FSM SUPREME COURT TRIAL DIVISION

Cite as Lippwe v. Weno Municipality, 14 FSM Intrm. 347 (Chk. 2006)

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PASINA FRITZ LIPPWE, individually, and in her

capacity as administratrix of the ESTATE OF RESEPI

FRITZ, and trustee for the heirs of RESEPI FRITZ,

who are KARASIA NIKETIPA, ERMINO FRITZ,

JACINTO FRITZ, SAWEI FRITZ, CRISTINA FRITZ,

NISURUPAT FRITZ, and ERMINA FRITZ,

Plaintiffs,

vs.

WENO MUNICIPALITY, and its Police Force, TAIDOS

WILLIAM, SAIROS SEMES, and TAYLOR TOBICH,

Defendants.

CIVIL ACTION NO. 2001-1021

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Martin Yinug

Associate Justice

Trial: June 12-13, 2006

Decided: August 17, 2006

Corrected: September 4, 2006

APPEARANCES:

For the Plaintiffs:   Stephen V. Finnen, Esq.

                                P.O. Box 1450

                                Kolonia, Pohnpei   FM   96941

For the Defendant:   Johnny Meippen, Esq.

          (Weno)             P.O. Box 705

                                    Weno, Chuuk   FM   96942

For the Defendants:            Joses Gallen, Esq.

(William, Semes, Tobich)  Acting Attorney General

                                              Office of the Chuuk Attorney General

                                              P.O. Box 189

                                              Weno, Chuuk   FM   96942

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HEADNOTES

Civil Rights; Criminal Law and Procedure ) Prisons and Prisoners

    When the decedent’s civil right to be free from excessive force while a prisoner in Weno municipal jail was violated, this violation and the defendants’ failure to monitor the plaintiff prisoner was

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the proximate cause of his wrongful death. The defendants’ failure to monitor may also show a deliberate indifference to the prisoner’s medical needs, which is also a violation of the FSM Civil Rights statute. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Civil Rights

    A civil rights cause of action survives the victim’s death because, if it did not, the national civil rights statute’s purpose would be thwarted. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Civil Rights; Torts ) Governmental Liability

    A government entity may be held liable under 11 F.S.M.C. 701(3) when violations are caused by officials who are responsible for final policy making with respect to the action chosen from various alternatives. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Civil Rights; Criminal Law and Procedure ) Prisons and Prisoners

    A prisoner has a civil right to be free of excessive force while in custody. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Civil Rights

    The Weno Chief of Police was the policy maker for the Weno municipal police and by his failing to investigate the issue of accountability for prisoner’s death in jail, he ratified the jailer’s actions or inactions. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Jurisdiction ) Pendent; Torts ) Wrongful Death

    Wrongful death is a state law cause of action created by a Trust Territory statute that is state law pursuant to the FSM and Chuuk Constitutions’ transition clauses. The FSM Supreme Court exercises pendent jurisdiction over a wrongful death action when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as the national civil rights claims. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 352 (Chk. 2006).

Torts ) Negligence

    Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed, which may be summarized as: a duty of care, a breach of that duty, which breach proximately causes damages. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 353 (Chk. 2006).

Criminal Law and Procedure ) Prisons and Prisoners; Torts ) Duty of Care

    The municipality, chief, and jailer owed a prisoner a duty of care, had a duty to regularly observe his condition, breached that duty by failing to provide the required checks on his condition. These defendants are therefore liable under for the prisoner’s death by neglect. The municipality, through its subsequent conduct, effectively ratified its agents’ conduct. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 353 (Chk. 2006).

Torts ) Damages

    Calculating damages for pain and suffering is difficult because no fixed rules exist to aid in that determination, which lies in the court’s sole discretion. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 353 (Chk. 2006).

Torts ) Damages; Torts ) Wrongful Death

    Wrongful death actions are brought for the exclusive benefit of the deceased’s surviving spouse,

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the children and other next of kin. When the decedent had no spouse or children, the damages are the next of kin’s pecuniary injury. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 353 (Chk. 2006).

Torts ) Damages; Torts ) Wrongful Death

    A decedent’s mother as the deceased’s parent is entitled to damages that include her mental pain and suffering for the loss of her child, without regard to provable pecuniary damages. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 353 (Chk. 2006).

Attorneys’ Fees; Civil Rights; Torts ) Damages

    The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. So long as a party has prevailed in a civil rights suit as a whole, that party is entitled to fees for all time reasonably spent on the matter, including the time spent on pendent state law claims that would not otherwise be statutorily entitled to a fee award, if the pendent claims arise out of a common nucleus of operative fact as the civil rights claim. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

Costs

    A prevailing party will be allowed costs for depositions. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

Costs

    Fees charged by private process servers may be recoverable as costs, because service costs are always allowable to the prevailing party. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

Costs

    Expenses such as faxing and telephoning to and from counsel, and travel, incurred because the defendant selected off-island counsel, fall outside the kind of expenses traditionally payable by the losing party and will be disallowed as costs, except where there is a showing of the unavailability of local counsel. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

Costs

    An attorney’s reasonable travel expenses are allowable as costs when there is a showing that no attorney is available on the island where the litigation is taking place, especially when the attorneys’ travel expenses were reasonable and the actual expenses pro-rated proportionally with other clients on whose behalf they also traveled. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

Costs

    Fax and long distance telephone charges are not recoverable as costs, but copying costs may be recoverable if the copies are not made in-house, and the costs represent payment to others. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

    This matter was tried on June 12-13, 2006, on the issues of damages of defendant Weno Municipality and liability, if any, of defendants Taidos William, Sairos Semes, and Taylor Tobich on the plaintiff’s wrongful death and civil rights allegations. On October 1, 2003, the court ordered the

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plaintiffs’ requests for admissions directed to Weno deemed admitted. The court’s March 10, 2005 order, based on earlier orders, held that Weno Municipality, at trial, could not contend, or introduce evidence, that it was not liable, but could introduce evidence concerning damages or that others are also liable.

    Dr. Julius Caesar Arsenal, Furacy Bonochou, Cindy Abur, Filorita Pitiol, Taidos William, Sairos Semes, Taylor Tobich, Pasina Fritz Lippwe, Karasia Niketipa, and Sawei Fritz testified at trial. The parties submitted post-trial briefs in lieu of oral argument. In addition, the plaintiffs moved for attorney’s fees and costs. The motion was not opposed.

    Based on the evidence and testimony presented, the court makes the following

Findings of Fact.

1.   Resepi Fritz was a prisoner confined in the Weno municipal jail the night of February 16-17, 2000, having been convicted of public intoxication and sentenced to one and a half months in jail, and having started his sentence on February 2, 2000.

2.   Weno municipal police officer Sairos Semes was the municipal jailer on February 16, 2000, on the 4:00 p.m. to 12:00 midnight shift.

3.   Weno municipal police officer Taylor Tobich was the municipal jailer on February 17, 2000, on the 12:00 midnight to 8:00 a.m. shift. Officer Tobich had received no training to be a jailer before working that night.

4.   The then Weno Municipal Police Chief Taidos William was the policy-making official for the Weno municipal police force at that time. Before February 2000, Chief William had not been trained in caring for prisoners.

5.   The policy he set for the jail required that the on-duty jailers inspect the arrestees and prisoners at least once every thirty minutes. The policy’s purpose was to protect the prisoners from themselves as well as from others. The jailers’ duties included breaking up fights.

6.   The Weno municipal police may also have followed the procedure used by the Chuuk State Police for monitoring prisoners and detainees, which required jailers to observe the prisoners and detainees at fifteen-minute intervals.

7.   Resepi Fritz’s cell was a room at the jail, about ten feet by ten feet, which had one metal door and three windows with rebars across them. He did not have any cellmates. The cell’s only furniture was a broken door which rested on some tire rims and which was used as a bed. The cell door could be locked from the outside and the door shut and locked. The cell door could only be opened from the outside by picking the lock. There was no window on the cell door although it was possible to look into the cell through the missing doorknob if there was light.

8.   During February 2000, the front door to the municipal jail building was locked and the key was lost, but the back door was broken and could not be locked.

9.   Resepi Fritz went to his cell at 9:00 p.m. and Officer Sairos Semes did not check on Fritz at all from 9:00 p.m. to midnight, on February 16, 2000. Officer Semes did not know how to open the lock to enter Fritz’s cell.

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10.   Officer Taylor Tobich did not check on Resepi Fritz at all from midnight, February 16, 2000 to 8:00 a.m., February 17, 2000. Officer Tobich also did not know how to open the lock to enter Fritz’s cell.

11.   Officer Tobich and two other jail personnel heard loud banging noises for a long time in Resepi Fritz’s cell at about 2:00 a.m. on February 17, 2000, but did not investigate or call Chief William for assistance or instructions.

12.   Officer Tobich and the two other jail personnel left the jail at about 5:00 a.m. to drive to Sapuk to pick up their relief. No one was left at the jail. They returned at about 7:00 a.m.

13.   The logbooks and any documents or records kept by the Weno police that night are missing.

14.   Resepi Fritz was found dead in his cell at about 8:00 a.m., February 17, 2000. Chief William touched Fritz’s body and it was cold to the touch and stiff. The Chuuk Department of Public Safety was called.

15.   Dr. Julius Caesar Arsenal, Chuuk State Hospital surgeon, performed an autopsy on Fritz at 2:00 p.m., February 17, 2000. Dr. Arsenal had been trained to perform autopsies and had experience in performing a large number of autopsies.

16.   Dr. Arsenal determined the cause of death to be "Hemmorhage, [sic] Severe, Extensive, Internal in origin with traumatic injury to the brain, lungs, liver, kidney and soft tissues secondary to Blunt Thoraco-Abdominal and Cephalic Trauma secondary to Mauling Incident in Rigor Mortis." Ex. A, Autopsy Rep. at 1. The term "mauling" means beaten, blunt application of force, or from a fall. The trauma was clear and extensive with Fritz suffering from multiple blunt force traumas to the head, chest, abdomen, and the arms with internal injuries to the brain, lungs, liver, pancreas, and kidneys. The multiple injuries were consistent with the infliction of blunt force by a hard object or fist. They were not consistent with a fall. The heart was examined and there was no sign of a heart attack.

17.   Fritz died over six hours before the autopsy.

18.   Weno Municipality controlled, or was obligated to control, access to the municipal jail building and to Fritz’s cell on the night of February 16-17, 2000 and had a duty to prevent access by unauthorized personnel to both the building and the cell. This duty was breached that night.

19.   The failure to observe Fritz at regular intervals, as required by policy, prevented any first aid treatment from being administered to Fritz after he was beaten and prevented Fritz from being promptly transported to the hospital for further medical care. No first aid facilities were available at Weno jail that night.

20.   Fritz survived for at least a half hour after being beaten and had a fifty percent chance or better of survival if promptly treated. The beating took place after midnight, probably around 2:00 a.m., by either a Weno police officer, one of the two arrestees being held that night who the Weno police had a duty to prevent from harming each other or other prisoner(s), or an unauthorized intruder who the police had a duty to prevent from entering the building.

21.   Chief William never disciplined any officer, including the jailers, for their actions, or inactions, at Weno jail that night. Nor did he conduct a proper investigation.

22.   Resepi Fritz’s funeral expenses were $4,375.30, which was paid by his family. About 500

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people attended.

23.   Resepi Fritz was survived by his mother, Karasia Niketipa, his brothers, Ermino Fritz, Jacinto Fritz, and Sawei Fritz, and his sisters, Pasina Fritz Lippwe, Cristina Fritz, Nisurupat Fritz, and Ermina Fritz. Resepi Fritz was unmarried and had no children.

24.   For about seven years before his February 17, 2000 death, Resepi Fritz took care of his widowed mother, cooking, cleaning, fetching water, and performing other household tasks. After Fritz’s death, his mother left her home and moved in with her married daughter Pasina Fritz Lippwe.

25.   Before his death, Resepi Fritz worked occasionally, earning $30 to $50 per month ($360-$600 per year) from fishing, casual labor, and other jobs. This money was used for household expenses of the home he shared with his mother. Fritz also helped in the community and assisted at funerals.

    Based upon these findings, the court makes the following

Conclusions of Law.

1.   Resepi Fritz’s civil right to be free from excessive force while a prisoner in Weno municipal jail was violated. This is a violation of the FSM Civil Rights statute, 11 F.S.M.C. 701(3).

2.   This violation of Fritz’s civil rights and the defendants’ failure to monitor Fritz was the proximate cause of his wrongful death. The defendants’ failure to monitor Fritz may also show a deliberate indifference to Fritz’s medical needs, which is also a violation of the FSM Civil Rights statute. Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 13 (Chk. 2001).

3.   Civil rights causes of action survive the victim’s death because, if it did not, the national civil rights statute’s purpose would be thwarted. Herman v. Municipality of Patta, 12 FSM Intrm. 130, 135 (Chk. 2003); Estate of Mori, 10 FSM Intrm. at 13.

4.   A government entity may be held liable under 11 F.S.M.C. 701(3) when violations are caused by officials who are responsible for final policy making with respect to the action chosen from various alternatives. Plais v. Panuelo, 5 FSM Intrm. 179, 205-06 (Pon. 1991).

5.   A prisoner has a civil right to be free of excessive force while in custody. Atesom v. Kukkun, 10 FSM Intrm. 19, 22 (Chk. 2001).

6.   The Chief of Police Taidos William was the policy maker for the Weno municipal police. Accord Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

7.   By failing to investigate the issue of accountability for Fritz’s death, he ratified the jailer’s actions or inactions. Estate of Mori, 10 FSM Intrm. at 14; Davis, 7 FSM Intrm. at 548.

8.   "Wrongful death is a state law cause of action created by a Trust Territory statute, 6 TTC 201-203, that is state law pursuant to the FSM and Chuuk Constitutions’ transition clauses, FSM Const. art. XV, § 1; Chk. Const. art. XV, § 9." Estate of Mori, 10 FSM Intrm. at 13.

9.   The FSM Supreme Court exercises pendent jurisdiction over this wrongful death action since it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as Fritz’s national civil rights claims. Herman, 12 FSM Intrm. at 136; Estate of Mori, 10 FSM Intrm. at 13.

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10.   Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed, which may be summarized as: a duty of care, a breach of that duty, which breach proximately causes damages. Estate of Mori, 10 FSM Intrm. at 14; Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997).

11.   The defendants (municipality, chief, and jailer) owed Fritz a duty of care, had a duty to regularly observe his condition, breached that duty by failing to provide the required checks on his condition. These defendants are therefore liable under 6 TTC 201(1) for Fritz’s death by neglect.

12.   The plaintiffs failed to prove by a preponderance of the evidence that Sairos Semes’s breach of the duty he owed to prisoner Fritz was the proximate cause of Fritz’s injuries and death because Fritz was beaten after Semes’s shift had ended and he had gone home.

13.   Thus only Weno Municipality, Taidos William, and Taylor Tobich are jointly and severally liable for Fritz’s damages. The case against Sairos Semes is dismissed.

14.   The municipality, through its subsequent conduct, effectively ratified its agents’ conduct. Plais, 5 FSM Intrm. at 203.

    Based upon these findings of fact and conclusions of law, the court awards the following

Damages.

A.  Civil Rights Damages

    The Estate of Resepi Fritz, of which Pasina Fritz Lippwe is administratrix, is awarded $23,000 for the violation of Resepi Fritz’s civil rights. This amount includes damages for Resepi Fritz’s pain and suffering before his death. Calculating damages for pain and suffering is difficult because no fixed rules exist to aid in that determination, which lies in the court’s sole discretion. Fabian, 8 FSM Intrm. at 66; see also Amayo v. MJ Co., 10 FSM Intrm. 244, 252 (Pon. 2001); Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000) (in making an award for pain and suffering court guided by other FSM cases which have addressed the issue); Primo v. Refalopei, 7 FSM Intrm. 423, 434 (Pon. 1996).

B.  Wrongful Death Damages

    Wrongful death actions are brought for the exclusive benefit of the deceased’s "surviving spouse, the children and other next of kin." 6 TTC 202. Since Mori had no spouse or children, the damages are the next of kin’s pecuniary injury. 6 TTC 203(1). The proven pecuniary injury consists of the $4,375.30 in funeral expenses and the $7,650 in earnings that Fritz would have, had he lived, given his mother, Karasia Niketipa. (The $7,650 is calculated at $425 per year for the eighteen years until Fritz reached retirement age of sixty. Herman, 12 FSM Intrm. at 138; Amayo v. MJ Co., 10 FSM Intrm. 244, 251 (Pon. 2001).)

    Under 6 TTC 203(1) Fritz’s mother as the deceased’s parent is entitled to damages that "include h[er] mental pain and suffering for the loss of [her] child, without regard to provable pecuniary damages." Karasia Niketipa is therefore awarded $10,000 for her pain and suffering that resulted from Fritz’s wrongful death.

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C.  Attorney’s Fees

    The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Herman, 12 FSM Intrm. at 137; Estate of Mori, 10 FSM Intrm. at 14; Davis v. Kutta, 8 FSM Intrm. 218, 220 (Chk. 1997); Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996) (relying on 11 F.S.M.C. 701(3)). So long as a party has prevailed in a civil rights suit as a whole, that party is entitled to fees for all time reasonably spent on the matter, including the time spent on pendent state law claims that would not otherwise be statutorily entitled to a fee award, if the pendent claims arise out of a common nucleus of operative fact as the civil rights claim. Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 537-38 (Chk. 2003); Estate of Mori v. Chuuk, 10 FSM Intrm. 123, 124 (Chk. 2001).

    The plaintiffs seek attorney’s fees of $14,616 (121.8 hours at $120 per hour). The detailed hourly fees requested in this case are reasonable as are the costs sought and will thus be awarded. The plaintiffs are awarded $14,616 in reasonable attorney’s fees.

D.  Costs

    The plaintiffs also seek $1,547.45 in costs ) $139.17 for deposition expenses; $240 for service of process; $931.92 for their attorney’s travel expenses; $139.17 for deposition expenses; $224 for copying expenses; and $12.36 for telephone and fax expenses.

    A prevailing party will be allowed costs for depositions. Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1996). Fees charged by private process servers may be recoverable as costs, Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001), because service costs are always allowable to the prevailing party, Udot Municipality v. FSM, 10 FSM Intrm. 498, 501 (Chk. 2002). The $139.17 for deposition expenses and $240 for service of process are therefore allowed.

    Expenses such as faxing and telephoning to and from counsel, and travel, incurred because the defendant selected off-island counsel, fall outside the kind of expenses traditionally payable by the losing party and will be disallowed as costs, except where there is a showing of the unavailability of local counsel. Salik v. U Corp., 4 FSM Intrm. 48, 49 (Pon. 1989). An attorney’s reasonable travel expenses are allowable as costs when there is a showing that no attorney is available on the island where the litigation is taking place, especially when the attorneys’ travel expenses were reasonable and the actual expenses pro-rated proportionally with other clients on whose behalf they also traveled. Udot Municipality, 10 FSM Intrm. at 501. Such a showing was made in this case and the counsel’s expenses were proportionally pro-rated. The $931.92 in attorney’s travel expenses is therefore allowed. Fax and long distance telephone charges are not recoverable as costs, but copying costs may be recoverable if the copies are not made in-house, and the costs represent payment to others. FSM Social Sec. Admin. v. Jonas, 13 FSM Intrm. 171, 173 (Kos. 2005); Damarlane, 7 FSM Intrm. at 470. There is no showing that the copying costs sought here represent payments to others. The copying, telephone, and fax expenses are therefore disallowed.

    Total costs of $1,311.09 are allowed.

Conclusion

    The Estate of Resepi Fritz, of which plaintiff Pasina Fritz Lippwe is administratrix, is awarded $23,000 plus attorney’s fees of $14,616. The other plaintiffs, Resepi Fritz’s next of kin, are awarded $22,025. The plaintiffs are awarded costs of $1,311.09. Defendants Weno Municipality, Taidos William, and Taylor Tobich are jointly and severally liable for the total sum of $60,952.09. Defendant

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Sairos Semes is dismissed from the case.

     Let the clerk enter judgment accordingly.

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