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$252,000 Awarded in Kansas Prisoner's Suicide

The suicide of Scotty Ray Sisk, a prisoner at Kansas' Shawnee County Department of Corrections (KDOC) has resulted in an award of $252,000 to his parents. On July 6, 1999, Sharon Sisk called the prison and told guard Joel Manzanares that she thought her son was suicidal and had written a suicide note. Manzanares advised her that her son was not suicidal. Manzanares, however, ordered other guards to search Sisk's cell for such a note. After a suicide note was found, Manzanares, interviewed Sisk, finding him suicidal and ordering him placed on suicide watch.

Sisk was placed in a hard lock down room and given a standard issue wool blanket because a suicide prevention blanket was not available. The hard lock down room contained a metal switch plate with a slot in it to the left of the door. Such a plate was not available in a suicide rubber room, which is to be used by procedure if available. The rubber rooms were empty at the time of Sisk's placement. Between 10:15 and 11:30 p.m. that night of placement, Sisk hung himself with strips from the wool blanket wrapped around the switch plate.

A jury held that guards were not deliberately indifferent to Sisk's medical needs, but found Manzanares negligent for placing Sisk in the hard lock down room with the wool blanket. They also found guards Ryan Redd and Andrew Johnson negligent in their supervision. The jury awarded $2,000 for funeral expenses and $10,000,000 in non-economic damages.

The Sisks sought a new trial on the § 1983 deliberate indifference claim because it was contrary to the evidence. The district court found the jury could have believed or disbelieved the evidence presented on the issue. As the evidence was adequate to support the jury's verdict, the court held that verdict was not illogical or contrary to the weight of the evidence.

Specifically, the court noted no evidence was presented that other suicidal prisoners had attempted to hang themselves via the switch plate.

The Court found it was required to reduce the non-economic award under the Kansas Tort Claims Act (KTCA). The KTCA holds that when governmental agencies "are liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." Under Kansas law, a private person could only be held liable for up to $250,000 in non-pecuniary damages in a wrongful death action. No such cap exists under § 1983.

While the KDOC had no capacity to be sued in this action, it affirmatively represented it would pay an award against the defendants. The Court also held that as the § 1983 claim failed, the Sisks were not entitled to an award of attorney fee costs under 42 U.S.C. § 1988. Accordingly, the court upheld the jury's verdict, but reduced the total damages award to $252,000. See: Estate of Sisk v. Manzanares, 272 F.Supp.2d 1265 (D. Kan. 2003).

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Related legal case

Estate of Sisk v. Manzanares

Accordingly, defendants' motion to alter or amend the judgment is granted FN53 and plaintiffs' motion for enforcement of the entire judgment on plaintiffs' negligence claims is denied. The court will reduce the $10 million award for noneconomic damages to $250,000.
FN53. Defendants filed an alternative motion to alter or amend the judgment (doc. 174) for the court's consideration only "in the event the Court for some reason does not apply the damage limi[ta]tion of $250,000 on nonpecuniary damages in K.S.A. 60-1903." That is, in such event, defendants asked that the court grant a remittitur so as to reduce the nonpecuniary damage award to $250,000. Because the court is applying this damage cap, defendants' alternative motion is denied as moot.

D. Plaintiffs' Motion for Entry of Judgment in Favor of the Estate.

Plaintiffs' also have moved to "correct the verdict form and entry of judgment in favor of the Estate of Scotty Ray Sisk"(docs. 178 & 181).FN54 Defendants have responded (docs. 185, 186 & 188), and the time for plaintiffs to reply has expired.FN55 Consistent with the jury verdict in this case, the court entered judgment in favor of the Sisks on the state law negligence claim, and against the estate of Scotty Sisk on the § 1983 claim. By way of the instant motion, plaintiffs ask the court to also enter judgment in favor of the estate. For the reasons explained below, plaintiffs' motion is denied.

FN54. Doc. 178 is virtually identical, in relevant part, to doc. 181.
FN55. SeeD. Kan. Rule 6.1(e).
The court will construe plaintiffs' request for the court to enter judgment in favor of the estate as a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). Rule 59(e) preserves the district court's right to alter or amend a judgment after the judgment is entered. Motions to alter or amend a judgment are appropriate where they involve "reconsideration of matters properly encompassed in the decision on the merits." FN56 A Rule 59(e)-motion allows a party to allege fundamental legal errors that require the court to reconsider an earlier decision.FN57 A party cannot invoke Rule 59(e) to raise *1280 arguments or evidence that could have been raised prior to judgment, FN58 or to rehash arguments previously considered and rejected by the court.FN59 That is, Rule 59(e) is "aimed at re consideration, not initial consideration," and thus a party may not rely on Rule 59(e) to raise an argument that could and should have been made before judgment issued. FN60
FN56. White v. N.H. Dep't of Employment Sec., 455 U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).
FN57. Federated Mut. Ins. Co. v. Botkin Grain Co., 856 F.Supp. 607, 609 (D.Kan.1994).
FN58. Steele v. Young, 11 F.3d 1518, 1520 n. 1 (10th Cir.1993); 11 Charles Alan Wright et al., Federal Practice & Procedure § 2810.1 (2d ed.1995).
FN59. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir.1995).
FN60. United States ex rel. Noyes v. Kimberly Constr., Inc., 43 Fed. Appx. 283, 286-87 (10th Cir.2002).
In this case, plaintiffs could have raised the instant argument before this case was submitted to the jury. Based on the proposed jury instructions and verdict forms filed by the parties (docs. 152, 153, 162, and 165), the court drafted its own proposed jury instructions and verdict form for all concerned to discuss at the jury instruction conference (doc. 166). The damages component of the court's proposed verdict form, as originally drafted, read as follows:
3. What amount of damages do you find were sustained by the Estate of Scotty Sisk?
$ _________________________
4. What damages do you find were sustained by Dan and Sharon Sisk?
Noneconomic loss $ _________________________
Funeral expenses $ _________________________
The phrasing of Question 3 on the verdict form was specifically addressed during the jury instruction conference. Eventually, in response to defense counsel's objection, plaintiffs' counsel suggested: "If No. 3 is the problem, why don't we just add on to the end of it: 'What amount of damages do you find were sustained by the estate of Scotty Sisk under his Eighth Amendment claim'?" FN61 Defense counsel responded: "That's fine. I have no problem with that." FN62 Thus, the court informed the parties:
FN61. (Doc. 184 at 32 (emphasis added)).
FN62. Id.
What I'm going to do is on Question No. 3 of the proposed verdict form, it will be rewritten to state "What amount of damages do you find were sustained by the estate of Scotty Sisk on the Eighth Amendment claim" as suggested by [plaintiffs' counsel]. And lest there be any internal inconsistencies on the verdict form, on the same line I'm going to modify question No. 4 to read, "What damages do you find were sustained by Dan and Sharon Sisk on the negligence claim." FN63
FN63. Id. at 34 (emphasis added).
The court then inquired: "Any other objections by any of the parties to any of the instructions or to the verdict form?" FN64 Plaintiffs' counsel responded, "Plaintiff has none, Your Honor." FN65 The court then proceeded to revise the verdict form consistent with the discussion and agreement of the parties' attorneys during the instruction conference, and so instructed the jury ( see doc. 168).
FN64. Id. at 35.
FN65. Id.
As just explained, during the instruction conference, the parties and the court specifically discussed the very component of the verdict form to which plaintiffs now object. Plaintiffs voiced no objection to this part of the verdict, let alone state the legal basis for any such objection. Obviously*1281 and clearly, plaintiffs could have raised this issue before the jury began its deliberations, as the court gave plaintiffs an ample opportunity to do so. In short, plaintiffs have failed to preserve the objection now raised.FN66
FN66. See, e.g., Johnson v. Unified Gov't, 180 F.Supp.2d 1192, 1202 (D.Kan.2001) (holding plaintiffs failed to preserve objections where "plaintiffs raised certain concerns about the court's verdict form, [but] none of those concerns had anything to do with the specific issues about which they now complain").
Rule 51 of the Federal Rules of Civil Procedure specifically states that, "[n]o party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." FN67 The obvious rationale for Rule 51 is to give the trial judge an opportunity to correct any mistake before the jury begins its deliberations.FN68 In this case, as explained above, plaintiffs did not timely assert the instant objection to the verdict form. Therefore, the court reviews the matter only for plain error.FN69
FN67. Fed.R.Civ.P. 51.
FN68. Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir.1999); Weir v. Fed. Ins. Co., 811 F.2d 1387, 1390 (10th Cir.1987).
FN69. See Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir.1999) (court will reverse only for plain error where a party has not complied with Rule 51).
To constitute plain error, the court must have made a mistake that was both obvious and substantial.FN70 With all due respect to plaintiffs, the court is unpersuaded that it made a mistake at all, let alone a mistake that was obvious and substantial, by submitting the verdict form in the manner that the court did. Based on numerous comments made by plaintiffs' counsel throughout this case, it has been the court's understanding that it was largely irrelevant, as a practical matter, whether judgment on the negligence claim FN71 was ultimately entered in favor of Dan and Sharon Sisk and/or the estate because, in either event, the Sisks would receive any amounts recovered given that they are the only persons entitled to any distribution from their son's estate. Thus, the court is hard pressed to understand why plaintiffs would even bother raising this issue at this procedural juncture.

FN70. Camfield v. Okla. City, 248 F.3d 1214, 1233 (10th Cir.2001).
FN71. Admittedly, the distinction was significant on plaintiffs' § 1983 claims because these could only be brought by the estate.
The only explanation the court can conceivably muster is plaintiffs may believe that, if judgment were also entered in favor of the estate, the estate arguably would be entitled to an additional $250,000 in noneconomic damages. That is, in this regard, plaintiffs have argued that, without any factual or legal support, "at least $250,000 should be awarded to the Estate of Scotty Ray Sisk from [sic] wrongful death." However, it is well-settled under Kansas law that a wrongful death claim can only be brought on behalf and for the benefit of the decedent's heirs, not his estate.FN72 Thus, as a matter of law, Sisk's estate is not entitled to recover anything for his wrongful death. Therefore, the court is unpersuaded that it erred by submitting the verdict form in the manner that it did.
FN72. K.S.A. 60-1902; Tank v. Chronister, 160 F.3d 597, 599 (10th Cir.1998).
In sum, plaintiffs failed to preserve this belatedly raised argument that they should have raised before this case was submitted to the jury. The court did not commit error at all, much less plain error, by *1282 submitting the verdict form in the manner in which it did. Accordingly, plaintiffs' motion for entry of judgment in favor of the estate is denied.
E. Plaintiffs' Objection to Judgment in a Civil Case Form and/or Request for Clarification of Judgment.

Lastly, the court will consider plaintiffs' pleading styled "Objection to Judgment in a Civil Case Form and/or Request for Clarification of Judgment"(doc. 189). Plaintiffs here ask that the court enter judgment against the DOC based on the negligence verdict against defendants Manzanares, Redd, Johnson, and Green. The time for defendants to respond to this pleading has expired, FN73 and therefore the court considers it unopposed. Nevertheless, for the reasons explained below, the court will deny plaintiffs the relief sought by way of the instant pleading.
FN73. SeeD. Kan. Rule 6.1(e).
The Federal Rules of Civil Procedure do not recognize an "objection to judgment" or a "request for clarification of judgment." Therefore, as a threshold matter, the court must determine how this pleading should be construed. The most apparent alternatives are a Rule 59(e)-motion to alter or amend the judgment or a Rule 60(b)-motion for relief from judgment. Whether a motion is considered under Rule 59(e) or under Rule 60(b) depends on when it was filed.FN74 A Rule 59(e)-motion must be filed within ten days of judgment; motions filed after that time must be considered under Rule 60(b).FN75 In this case, the judgment was filed on April 23, 2003, and plaintiffs did not file the instant motion until May 20, 2003, well past the 10-day time limit for filing a Rule 59(e)-motion. The court is without authority to extend the 10-day time period specified in Rule 59(e). FN76 Therefore, the instant pleading must be construed as a Rule 60(b)-motion for relief from judgment.

FN74. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991).
FN75. Id.
FN76. Fed.R.Civ.P. 6(b) (providing that the court "may not extend the time for taking any action under Rule[ ] """ 59(b), (d) and (e)"); Weitz v. Lovelace Health Sys., Inc., 214 F.3d 1175, 1179 (10th Cir.2000); Collard v. United States, 10 F.3d 718, 719 (10th Cir.1993) ( "Rule 6(b) expressly prohibits a trial court from extending the time to file [a Rule 59(e) ] motion.").
Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.FN77 A party seeking relief under Rule 60(b) must satisfy one or more of the six grounds set forth in the rule. FN78 Notably, plaintiffs do not specify which of these six grounds they are attempting to invoke. The court, however, can envision that at least two of them arguably apply: Rule 60(b)(1) and Rule 60(b)(6).

FN77. Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.1996).
FN78. Van Skiver, 952 F.2d at 1243-44.

1. Relief Under Rule 60(b)(1).

Rule 60(b)(1) allows a party to obtain relief from judgment based on "mistake, inadvertence, surprise, or excusable neglect." The movant has the burden of pleading and proving the mistake or excusable neglect.FN79 Relief is generally only warranted where: (1) a party made an excusable litigation mistake or an attorney acted without authority from a party; or (2) the judge made a substantive mistake of law or fact in the final judgment or order.FN80
FN79. Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir.1990).
FN80. Yapp, 186 F.3d at 1231; Cashner, 98 F.3d at 576.
*1283 A litigation mistake is not considered to be an excusable one within the meaning of Rule 60(b)(1) if it was the result of a deliberate and counseled decision by the complaining party.FN81 Rather, an excusable litigation mistake refers to a mistake that the party "could not have protected against, such as counsel acting without authority." FN82 Simply misunderstanding or failing to predict the legal consequences of deliberate choices "cannot later, once the lesson is learned, turn back the clock to undo those mistakes." FN83

FN81. Yapp, 186 F.3d at 1231 (citing Cashner, 98 F.3d at 576).
FN82. Id.
FN83. Id.; see also Pelican Prod. Corp., 893 F.2d at 1146 ("Carelessness by a litigant or his counsel does not afford a basis for relief under Rule 60(b)(1).").
In this case, plaintiffs did not bring this lawsuit against a governmental entity with the capacity to be sued. That is, the DOC does not have the capacity to be sued.FN84 Notably, the court specifically pointed out this procedural defect in footnote 1 on the very first page of the court's October 3, 2002 memorandum and order ruling on defendants' motion for summary judgment (doc. 133).FN85 This issue was the subject of discussion, repeatedly, during subsequent status conferences with the court. Defense counsel affirmatively represented to the court and to plaintiffs' counsel on more than one occasion that the DOC fully intended to pay any judgment entered against the DOC's employees. However, to the best of the court's recollection, defense counsel repeatedly and very carefully stopped short of stipulating that judgment should be entered against the DOC if the jury returned a verdict against any of the individual defendants. Yet, plaintiffs never took any action to join the proper governmental entity with the capacity to be sued, i.e., the Board of Commissioners of Shawnee County, Kansas.

FN84. Barngrover v. County of Shawnee, Case No. 02-4021-JAR, 2002 WL 1758914, at *2 (D.Kan. June 10, 2002) (holding that the Shawnee County DOC does not have the capacity to be sued).
FN85. Sisk v. Manzanares, 262 F.Supp.2d 1162 n. 1 (D.Kan.2002).
Thus, by the time of the trial of this case, plaintiffs and their attorneys had been on actual notice for more than six months that the DOC did not have the capacity to be sued, and still they did not obtain any stipulation from the DOC (at least, any stipulation of which the court is aware) that the court should enter judgment against the DOC if the jury returned a verdict against any of the individual defendants. Nor did plaintiffs join the Board of Commissioners of Shawnee County as a defendant. The instant predicament is simply a product of carelessness. There is no basis here for relief under Rule 60(b)(1).

The court will now turn to the second ground for relief under Rule 60(b)(1), i.e., that the judgment was the result of a judicial mistake. In this respect, relief under Rule 60(b)(1) is available only for "obvious errors of law" that are "apparent on the record." FN86 The rule does not provide a basis for relief if the court's conclusions are "arguable." FN87

FN86. Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir.1991).
FN87. Id.
In this case, the court properly entered judgment according to the jury's verdict. To the extent the instant motion might be construed as arguing that the verdict form was erroneous, the court is wholly unpersuaded that it committed any legal error *1284 by failing to include the DOC on the verdict form. A specific subject of discussion during the jury instruction conference was whether the verdict form should reflect plaintiffs' negligence claim against the DOC. Plaintiffs' counsel initially stated that the jury should be given the opportunity to evaluate whether the DOC itself was negligent. FN88 Then, after some discussion, plaintiffs' counsel conceded that the DOC could only be held liable on a theory of respondeat superior because the DOC can only act through its agents. In fact, as the court stated during the jury instruction conference, the only negligence claim that plaintiffs preserved against the DOC in the pretrial order was a respondeat superior claim. Ultimately, plaintiffs' counsel withdrew their objection to the proposed verdict form and, therefore, did not ask the court to submit the issue of the DOC's liability to the jury.FN89

FN88. (Doc. 184 at 16-17.)
FN89. Id. at 22.
Indeed, as a matter of law, no finding by the jury was required in order for the DOC to be held liable for the judgment. The KTCA provides that governmental entities are liable "for damages caused by the negligent or wrongful act or omission of any of its employees acting within the scope of their employment[.]" FN90 The parties have stipulated that, at all times relevant to this case, defendants Manzanares, Redd, Johnson, and Green all were acting within the scope of their employment. Further, the KTCA defines a "governmental entity" as a "state or municipality." FN91 The DOC is not a "state," and thus it must be a "municipality" in order to be vicariously liable. The KTCA broadly defines a "municipality" as a "county, township, city, school district or other political or taxing subdivision of the state, or any agency, authority, institution or other instrumentality thereof." FN92 Given this broad definition, the court is persuaded that the DOC is vicariously liable as a matter of law for the judgment entered against the individual defendants.

FN90. K.S.A. 75-6103(a).
FN91. K.S.A. 75-6102(c).
FN92. K.S.A. 75-6102(b) (emphasis added).
Under different circumstances, the court would have no difficulty entering judgment against the DOC because it is, in fact, vicariously liable.FN93 However, the court is unpersuaded that it would be an obvious error of law in this case to decline to enter judgment against the DOC at this belated date because, as explained previously, the DOC does not have the capacity to be sued.FN94 Thus, the court will next evaluate whether Rule 60(b)(6) affords plaintiffs with a basis for relief.
FN93. See, e.g., Dickerson v. City Bank & Trust Co., 590 F.Supp. 714, 716 (D.Kan.1984) (noting that the court granted a motion to alter or amend to reflect the vicarious liability of an employer).
FN94. See, e.g., Fugate v. Unified Gov't, 161 F.Supp.2d 1261, 1267 (D.Kan.2001) (explaining that although the KTCA definition of governmental entity and municipality includes county and city agencies, it does not "imbue all local government agencies with the capacity to sue or be sued").

2. Relief Under Rule 60(b)(6).

Rule 60(b)(6) allows the court to relieve a party from a final judgment for "any """ reason justifying relief from the operation of the judgment." Relief under Rule 60(b)(6) is even more difficult to attain than relief under Rule 60(b)(1).FN95 Although Rule 60(b)(6) is regarded as "a 'grand reservoir of equitable power to do justice in a particular case,' " FN96 this power *1285 must be reserved for situations in which it offends justice to deny relief.FN97 The court's power under Rule 60(b)(6) is not to be used to "reliev[e] a party from free, calculated and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests." FN98

FN95. Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1225 (10th Cir.2002).
FN96. In re Woods, 173 F.3d 770, 780 (10th Cir.1999) (quoting Pierce v. Cook & Co., 518 F.2d 720, 722 (10th Cir.1975) (en banc)).
FN97. Middle Rio Grande, 294 F.3d at 1225; Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir.1999).
FN98. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir.1996) (quotation omitted).
As described previously, despite prodding by the court, early and often, plaintiffs either deliberately or carelessly did not join the Board of Commissioners of Shawnee County as a defendant. Therefore, relief under Rule 60(b)(6) is unavailable to plaintiffs. This is not a case of extraordinary circumstances where it would offend justice to deny plaintiffs the relief requested because plaintiffs have numerous alternatives to attempt to collect the judgment.

There is, of course, the judgment against the four individual defendants. As described previously, the DOC is vicariously liable for this judgment under the KTCA. Consistent with this vicarious liability, defense counsel has repeatedly represented to plaintiffs and the court that the DOC (acting by and through the county) intends to pay any final negligence judgment entered against the individual defendants. Given the state of the record, the court has no reason to believe that the DOC will not stand by defense counsel's representations. Thus, plaintiffs are not entitled to relief under Rule 60(b)(6).

Accordingly, plaintiffs' objection to judgment and/or request for clarification of judgment is denied.
V. Conclusion and Order.

In consideration of the foregoing,

1. Defendants' motion to alter or amend judgment (doc. 172) is granted. Specifically, the clerk is directed to reduce the amount of judgment in this case from $10,002,000 to $252,000.

2. Defendants' alternative motion to alter or amend judgment by way of remittitur (doc. 174) is denied as moot.

3. Plaintiffs' motion for judgment notwithstanding the verdict or, alternatively, for a new trial and for punitive damages (docs. 178 & 182), is denied.

4. Plaintiffs' motion for attorneys' fees (docs. 178 & 183) is denied.

5. Plaintiffs' motion to enforce entire judgment (docs. 178 & 180) is denied.

6. Plaintiffs' motion for entry of judgment in favor of the estate of Scotty Ray Sisk (docs. 178 & 181) is denied.

7. Plaintiffs' objection to judgment and/or request for clarification of judgment (doc. 189) is denied.

8. The clerk shall serve copies of this memorandum and order on all counsel of record. Further, the clerk is directed to serve a certified copy of this memorandum and order on the Attorney General of the State of Kansas, consistent with section III(C)(1) of the court's memorandum decision.