Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Miller, District Judge.
Submitted: April 12, 2011
Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,*fn1
Clayton Miller filed suit against St. Louis police officers Mark Albright and Patrick E. Cobb for violating his Fourth Amendment rights by unlawfully entering his home, using excessive force, and unlawfully arresting him, and for violating Missouri common law by maliciously prosecuting him. A jury rendered a verdict for Miller on the unlawful entry claim and for Albright and Cobb on the excessive force, unlawful arrest, and malicious prosecution claims. Because the jury awarded no damages to Miller on his unlawful entry claim, Miller asked the district court*fn2 to direct the jury to award nominal damages. The district court denied Miller's request, and Miller subsequently moved, pursuant to Federal Rule of Civil Procedure 59(e), for the district court to alter or amend the judgment to award nominal damages. When that motion was denied, Miller brought this appeal. We affirm.
Officials at Dewey Elementary School in St. Louis, Missouri noticed Clayton Miller, an unfamiliar and noticeably intoxicated adult, in the schoolyard taking pictures of the students. They asked him to leave but he refused, so they called 911 to seek emergency help. By the time Mark Albright and Patrick E. Cobb of the St. Louis Police Department arrived, Miller had left the scene. One of Miller's neighbors, however, directed the officers to Miller's home. Upon arriving at Miller's home, the officers noticed that it appeared to be uninhabited, so they entered and found Miller asleep in a bedroom. When they entered the bedroom, an altercation ensued and Miller was arrested. Charges were filed against Miller but were subsequently dismissed.
Miller sued Albright and Cobb under the Fourth Amendment for unlawful entry, excessive force, and unlawful arrest. He also brought a state common law claim of malicious prosecution. At the conclusion of the proof, Miller proposed jury instructions for both compensatory and punitive damages, but did not propose an instruction for nominal damages. Miller also proposed a verdict form that addressed each claim but did not provide specifically for nominal damages. The verdict form merely provided blank spaces for the jury to write in the amount of damages awarded to Miller on each claim for which the jury rendered a verdict in his favor. The district court held an instructions conference and gave the parties an opportunity to object to the proposed instructions and verdict forms; however, Miller did not object to the instructions or verdict form. In fact, the damages instructions and verdict form given to the jury were practically identical to those submitted by Miller.
After deliberating, the jury entered a verdict for Miller on the unlawful entry claim and entered verdicts for Albright and Cobb on the remaining claims. The jury, however, wrote "none" on the damages line of the verdict form. After the verdict was read, but before the jury was discharged, Miller's lawyer approached the bench and requested that the district court direct the jury to award nominal damages, but that request was denied. Miller subsequently filed a Federal Rule of Civil Procedure Rule 59(e) motion to alter or amend the judgment to include an award of nominal damages, but that motion was also denied.
Miller appeals, asserting that the district court abused its discretion by failing to order the jury to award nominal damages following entry of the verdict and by denying Miller's Rule 59(e) motion to alter or amend the judgment to award nominal damages. He concedes that under Federal Rule of Civil Procedure 51, a party waives the right to request an instruction if the party does not request the instruction before the jury retires. Appellant's Opening Brief (App. Br.), at 9. He also acknowledges that he neither requested a nominal damages instruction nor objected to the damages instructions or the verdict form at the instructions conference. App. Br., at 3, 6. Miller further concedes that the damages instruction given to the jury was nearly identical to the one he proffered. Id. Miller, however, asks that we adopt an exception to Rule 51 that would permit a plaintiff to request nominal damages after the return of a verdict, but before dismissal of the jury, in cases where a plaintiff alleges multiple constitutional claims and one claim has damages and one does not.
We affirm because the district court did not plainly err in denying either Miller's post-verdict request to direct the jury to award nominal damages, or his Rule 59(e) motion to alter or amend the judgment to award nominal damages. We also decline to adopt an exception to Rule 51 that would permit plaintiffs to request nominal damages after the verdict is rendered.
Miller waived the right to appeal any error in the jury instructions and verdict form because he failed to object to them. "Error cannot be based on the giving of an instruction to which the complaining party has not properly objected." Westcott v. Crinklaw, 133 F.3d 658, 662 (8th Cir. 1998) (citing Fed. R. Civ. P. 51). To overcome his failure to object to the instructions and verdict form, Miller must show that the giving of the instructions and verdict form was plain error that resulted in a "miscarriage of justice." See Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir. 1991), cert. denied, 506 U.S. 836, 113 S.Ct. 111, 121 L.Ed. 2d 68 (1992); Fed. R. Civ. P. 51(d)(2) ("A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights"). "Our review under [the plain error] standard is narrow and is confined to the exceptional case in which error has 'seriously affected the fairness, integrity, or public reputation of the judicial proceedings.'" Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006) (quoting Genthe v. Lincoln, 383 F.3d 713, 718 (8th Cir. 2004)).
Miller does not argue, and the record does not indicate, that the fairness, integrity, or public reputation of the judicial proceedings were effected by the district court's ruling. Instead, Miller argues that the district court was obligated to award nominal damages, regardless of the timeliness of the request, once the jury found that Albright and Cobb violated his constitutional rights. In support of his position, Miller cites Carey v. Piphus, 435 U.S. 247, 266 (1978) ("[T]he denial of procedural due process is actionable for nominal damages without proof of actual injury."); Farrar v. Hobby, 506 U.S. 103, 112 (1992) ("[A] court [must] award nominal damages when a plaintiff establishes a violation of his right to procedural due process but cannot prove actual injury."); and Risdal v. Halford, 209 F.3d 1071, ...