could find that this evidence shows compensable emotional distress.
In the present case, Pica sued Sarno both in his official capacity and as an individual. When a defendant is sued "in his official capacity" under section 1983, liability is imposed on the municipality he represents. Brandon v. Holt, 469 U.S. 464, 471-72, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985). Punitive damages, however, may not be assessed against a municipality in a section 1983 action. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). Thus, a plaintiff may not recover punitive damages when he sues an official "in his official capacity."
A plaintiff may recover punitive damages from a defendant official sued in his "individual capacity." The Supreme Court has held that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 55, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983).
Here, however, Pica has failed to show sufficient evidence that Sarno acted with evil motive or intent, or reckless disregard of Pica's rights. Sarno was enforcing a municipal ordinance.
This fact creates a strong presumption that Sarno did not believe he was violating Pica's rights. It is true that Allen twice called the zoning office, spurring Sarno to action. However, it is likely a great many zoning violations are brought to Sarno's attention by irritated neighbors.
Pica points out that Sarno's testimony was inconsistent and asks the Court to infer from these inconsistencies that Sarno is hiding the truth. The inconsistencies are minor, however, and do not sufficiently show Sarno was motivated by evil motive in enforcing the zoning ordinance to support Pica's burden. Therefore, the Court will dismiss the claim for punitive damages in this case.
Springfield's zoning ordinance violates the Free Speech Clause both because it discriminates based on content when applied to "window signs," and because it flatly bans an entire type of speech when applied to outside signs. Sarno's motion for summary judgment is thus denied as it is clear that plaintiff's First Amendment rights were violated, Pica may recover for injuries proximately caused by the constitutional violation, including those for emotional distress, so long as he can prove he actually suffered them. He may not, however, recover punitive damages, because he has failed to show Sarno acted from evil motive or with a reckless disregard for Pica's federal rights. Accordingly, Sarno's motion for summary judgment will be denied as to liability and compensatory damages with one proviso. As to the injury to plaintiff's ability to publish his message, the Court will grant summary judgment to defendant to the extent that plaintiff may receive no more than nominal damages. Defendant's motion will be granted on the issue of punitive damages, and that part of the Complaint will be dismissed.
An appropriate Order is attached.
Dated: September 5, 1995
ALFRED M. WOLIN, U.S.D.J.
In accordance with the Court's Opinion filed herewith,
It is on this 5th day of September, 1995,
ORDERED that defendant Morris Sarno's motion for summary judgment is denied in part and granted in part; and it is further
ORDERED that defendant's motion is denied on the issue of liability for violation of plaintiff's rights under the First Amendment of the Constitution; and it is further
ORDERED that defendant's motion is denied on the issue of compensatory damages, except that plaintiff may receive no more than nominal damages for the interference with his ability to publish his message; and it is further
ORDERED that defendant's motion is granted on the issue of punitive damages, and that part of his complaint that claims punitive damages is hereby dismissed.
ALFRED M. WOLIN, U.S.D.J.