762 F.2d 654 (8th Cir. 1985), 83-2540, Thomas v. Booker

Docket Nº:83-2540, 83-2541 and 83-2573.
Citation:762 F.2d 654
Party Name:George THOMAS, Appellee, v. Thomas BOOKER, Alfonso Lark and Major C.O. Humphrey, Appellants. George THOMAS, Appellant, v. Thomas BOOKER, Alfonso Lark and Major C.O. Humphrey, Appellees. George THOMAS, Appellee, v. Thomas BOOKER, Alphonso Lark and William Frank Humphrey, Appellants.
Case Date:May 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 654

762 F.2d 654 (8th Cir. 1985)

George THOMAS, Appellee,


Thomas BOOKER, Alfonso Lark and Major C.O. Humphrey, Appellants.

George THOMAS, Appellant,


Thomas BOOKER, Alfonso Lark and Major C.O. Humphrey, Appellees.

George THOMAS, Appellee,


Thomas BOOKER, Alphonso Lark and William Frank Humphrey, Appellants.

Nos. 83-2540, 83-2541 and 83-2573.

United States Court of Appeals, Eighth Circuit

May 16, 1985

Submitted June 11, 1984.

Rehearing En Banc Granted Aug. 7, 1985.

Page 655

Robert Dierker, St. Louis, Mo., for appellants.

Gerald L. Birnbaum, O'Fallon, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

George Thomas sued St. Louis City Jail officials Thomas Booker, Alphonso Lark, and William Humphrey under 42 U.S.C. Sec. 1983, alleging that while he was a pretrial detainee at the jail, his constitutional right to be adequately protected from physical assaults by other inmates was violated.

I. Facts

In May 1980, Thomas was transferred to the St. Louis City Jail from the city workhouse to await trial on state charges. Initially, Thomas was assigned to a one-man cell in the administrative segregation section

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of the jail. He subsequently was assigned to a general population section of the jail. In July 1980, after a homemade knife was found in Thomas's cell, Thomas was placed in disciplinary segregation for ten days. Upon release from disciplinary segregation, Thomas was assigned to a four-man cell in a general population section of the jail.

On September 17, 1980, as inmates were being locked into their cells for the night, inmate Gregory Swink rushed into Thomas's cell, struck Thomas in the right eye, and ran to his nearby cell. Thomas immediately was taken to the city hospital for treatment of injury to his eye. Thomas was returned to the same four-man cell in the jail on September 18, 1980.

On the morning of September 22, 1980, a number of inmates, including Thomas and his cellmates, were in a dayroom located on the same floor of the jail as their cells. A fight ensued between Thomas and cellmate Gillian. Sometime after the fight had ended, defendant Humphrey entered the dayroom. Observing facial injuries to both Thomas and Gillian, Humphrey removed the two inmates from the dayroom and took them to the jail nurse's office for treatment. On September 23, 1980, Thomas was taken to the hospital and was treated for injuries he apparently sustained in the September 22 fight--a broken hand and additional injury to his right eye.

By consent of the parties, the jury trial in this case was held before a magistrate in accordance with 28 U.S.C. Sec. 636(c). 1 The jury initially returned to the courtroom after its deliberations having awarded Thomas $5,000 actual damages and $25,000 punitive damages on a verdict form designating defendant Booker and having left blank the two verdict forms designating defendants Lark and Humphrey. The following exchange then took place:

(Discussion was had off the record.)

THE COURT: I can only say this, Miss MacMillan, and I'll speak to you as the foreperson of the jury, it's incomplete.

THE FOREPERSON: You're right, we're just realizing that sitting here. I'm sorry.

THE COURT: You want to take it back and finish it for me?

THE FOREPERSON: Yes, I sure will.

Trial Transcript at 80-81.

The jury retired and returned some eight minutes later having completed all three verdict forms. Thomas again was awarded $5,000 actual damages but the actual damage award had been apportioned by the jury among all three defendants--$3,000 against Booker, $1,000 against Lark, and $1,000 against Humphrey. Likewise, Thomas again was awarded $25,000 punitive damages--$10,000 against Booker, $5,000 against Lark, and $10,000 against Humphrey.

Defendants moved the trial court for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court (1) upheld the actual and punitive damage awards against Booker, as well as the actual damage awards against Lark and Humphrey; (2) set aside the punitive damage awards against Lark and Humphrey; and (3) refused to grant a new trial. Defendants appealed arguing that the trial court either should have granted their motion for judgment notwithstanding the verdict in its entirety or ordered a new trial. Defendants also challenge the trial court's award of attorney's fees to Thomas. Thomas cross-appealed arguing that the trial court's partial grant of defendants' motion for judgment notwithstanding the verdict was erroneous.

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II. Substantive Liability

"[P]rison officials may be liable where they are 'deliberately indifferent to [a prisoner's] constitutional rights, either because they actually intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates.' " Martin v. White, 742 F.2d 469, 474 (8th Cir.1984) (quoting Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982)). And "a jury may be permitted to assess punitive damages in an action under Sec. 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, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983).

The "reckless disregard" and "reckless or callous indifference" portions of these standards are applicable to this case. Defendants argue that the instructions given by trial court failed to state correctly the proper legal standards and that even if the jury was correctly instructed, the evidence is insufficient to support verdicts against them.

A. Instruction No. 7

The trial court instructed the jury that:

Your verdict must be for Plaintiff if you believe:

FIRST: Defendants knew or should have known that placing inmates in the general population and not providing close supervision made it highly foreseeable that some inmates, and in particular the Plaintiff George Thomas, would be physically attacked and seriously injured, and

SECOND: Defendants' conduct was grossly negligent or an egregious failure to protect the plaintiff George Thomas, and

THIRD: Such acts of defendants were done under the color of law of the State of Missouri, and

FOURTH: Such acts violated Plaintiff's Constitutional right to be free from cruel and unusual punishment.

FIFTH: As a direct result of such conduct, the plaintiff suffered injury.

Gross negligence as used in this instruction means a callous indifference or thoughtless disregard for the consequences of one's acts or failure to act.

Egregious failure to protect means a flagrant or remarkably bad failure to protect.

Instruction No. 7, Appendix at 105. Before discussing defendants' challenge to Instruction No. 7, we feel obliged to share some observations of our own regarding that instruction.

Instruction No. 7 is virtually identical to an instruction previously found by this Court to be not prejudicially erroneous. 2 See Wade v. Haynes, 663 F.2d 778, 782 (8th Cir.1981), aff'd on other grounds sub nom. Smith v...

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