August 17, 2001 -County Could Be Liable; Polk May Have to Pay 1.4 Million in the Case of an Abused Prisoner

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A federal appeals court decision in the 1996 beating of a prisoner at the Polk County Jail could mean a big bill for the county.

A three-judge panel from the U.S. Court of Appeals for the 11th Circuit ruled that Polk Sheriff Lawrence W. Crow Jr.'s office does not have immunity from being sued in a case of negligence involving a jailer. And the judges ruled that the jailer, Edward Otte, can be sued for violating the prisoner's civil rights.

That ruling means the county, not the jailer, could be liable for up to $ 1.4 million to compensate the plaintiff, a mentally handicapped man who was diagnosed with a fractured hand, two fractured ribs, bruises, post traumatic stress disorder and a concussion after a day in the county jail. The attorney for the Sheriff's Office said the decisions will be appealed.

The ruling involves a lawsuit brought by the guardian of Robert Lee Livingston, who was a resident of the Meadows Convalescent Center in Winter Haven after suffering several strokes.

In March 1996, after Livingston had been at the center for two months, he wandered away and went into a department store, where he grabbed a female customer. Livingston mistook the woman for his ex-wife, said one of his attorneys, Michael Martin of Lakeland.

Livingston, 51, was arrested and taken to the Polk County Jail. He refused to get out of the back seat of the patrol car and was sprayed with a chemical agent. He was placed in a cell and then sprayed again when he beat on the cell door.

The following morning Otte and a subordinate corrections officer, Mark Ivankovich, came to move Livingston from the observation cell. Livingston began yelling "Country western, play country western." According to court records, Otte sprayed Livingston with a chemical agent and both corrections officers forced him on his hands and knees.

Ivankovich testified that Livingston was not hostile or attacking the officers when on his hands and knees. "The next thing I know, Otte just knee spiked him twice in the abdomen," Ivankovich said in court testimony. Livingston was hospitalized and then placed in an acute care mental health facility in St. Petersburg, where at age 55 he remains today. The charge against him for grabbing the store customer was dropped.

Jerry Livingston, Livingston's brother and guardian, sued Sheriff Crow, who runs the jail, Otte and the Meadows Convalescent Center. He reached a settlement with Meadows for an undisclosed amount. He sued Crow for claims of battery and negligence. His lawsuit against Otte contended the guard committed a battery and that his brother's civil rights were violated by Otte's use of excessive force.

But a U.S. district judge ruled that Crow had what is called qualified immunity in both cases and that Otte had immunity in the civil rights case. That meant only the battery claim against Otte went to a jury trial. The jury returned a judgment against Otte, awarding Livingston $ 890,000. But since he was sued as an individual, the Sheriff's Office and Polk County were not liable for Otte's judgment.

The Livingston legal team appealed to the federal district court of appeals, asking that limited immunity be removed from Crow on both the battery and negligence complaints and that qualified immunity on excessive force -- when it involves a civil rights violation -- should be removed.

The appeals court upheld immunity for Crow on the battery claim but reversed it on the negligence claim. And it reversed the immunity on the civil rights claim of excessive force against Otte, which Livingston's attorneys contend opens the Sheriff's Office to liability. The judges remanded the case back to the district court, which will decide whether the Sheriff's Office will pay any damages and how much. Citing a Supreme Court ruling that pretrial detainees may sue for violations of rights under the due process clause of the 14th Amendment, which protects a prisoner from the use of "excessive force that amounts to punishment," the appeals court found that the qualified immunity does not protect Otte from civil liability.

Hank Campbell of Gray Harris Robinson Lane Trohn, which represents the Sheriff's Office and county government, said the defense will file motions with the court for reconsideration. He said Otte doesn't have the money to pay the judgment. "The county is not liable for the corrections officer," he said. "And he does not have insurance or bond to cover $ 1 million." "I don't think there is any way they are going to get any money against a man who owns everything in joint ownership with his wife," Campbell said.

Otte now is a corrections officer with the federal prison system in Colorado. The cost of the judgment against him rendered by a jury is now $ 1 million because of interest that accrued in the 22 months of appeals since the decision. Martin said the attorneys for Livingston also will ask for $ 400,000 in their fees, making the total judgment request about $ 1.4 million. Martin argued that the civil rights violation places the liability for payment on the county and sheriff, which do have insurance. The Middle District Court now must reconsider the claims based on the appeals court's ruling.

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