832 F.2d 950 (6th Cir. 1987), 85-5903, Ivey v. Wilson

Docket Nº:85-5903.
Citation:832 F.2d 950
Party Name:Gregory A. IVEY, Plaintiff-Appellee, v. George WILSON, Ron Hanley, Lt. Barnes, Robert Hendricks, Dewey Sowders, Capt. Barnett, Phil Parker, Andy Knight, and Tom Stewart, Defendants-Appellants.
Case Date:November 04, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 950

832 F.2d 950 (6th Cir. 1987)

Gregory A. IVEY, Plaintiff-Appellee,


George WILSON, Ron Hanley, Lt. Barnes, Robert Hendricks,

Dewey Sowders, Capt. Barnett, Phil Parker, Andy

Knight, and Tom Stewart, Defendants-Appellants.

No. 85-5903.

United States Court of Appeals, Sixth Circuit

November 4, 1987

Argued Aug. 7, 1986.

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G. Edward Henry, II (argued), Clem, Henry and Watz, Lexington, Ky., for defendants-appellants.

Nancy M. Curtis (argued), Lexington, Ky., for plaintiff-appellee.

Before KEITH and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

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This is an appeal by a number of prison officials from a judgment awarding compensatory and punitive damages on a jury verdict in favor of a convict who brought suit under 42 U.S.C. Sec. 1983. Finding that the defendants waived any qualified immunity defense, we shall affirm the judgment insofar as it awarded compensatory damages against certain of the defendants for violations of the plaintiff's due process rights; in all other respects the judgment will be reversed.


The plaintiff, Gregory A. Ivey, was an inmate in the Kentucky State Penitentiary at Eddyville. The matters before us on appeal stem from four incidents that occurred during Mr. Ivey's incarceration in that institution. On March 20, 1980, the date of the first incident, Mr. Ivey entered the protective custody unit to see prisoners there on legal business. (Mr. Ivey's work assignment was to furnish legal assistance to other prisoners.) Mr. Ivey entered the unit with half a pack of cigarettes, and a pat-down search revealed four additional packs of cigarettes when he left. Accused of charging inmates for legal services, Ivey was placed in segregation pending a hearing six days later.

Mr. Ivey testified that he believed that Defendant Hanley was the person who ordered him into segregation. Ivey said that the guard who found the cigarettes telephoned "somebody whom I thought was Defendant Ron Hanley, and all I heard was like one end of the conversation was when J.R. Owens [the guard] hung up, he told another officer who was present, he says Hanley says to write him up and lock him up for charging inmates for legal services." A prison log, however, indicates that the lock up was ordered "per Hendricks."

Defendant Tim Barnes investigated the incident. His investigation led to a hearing by an adjustment committee that included among its members Defendants Ron Hanley and Robert Hendricks. At the hearing Ivey claimed that he was given the cigarettes in exchange for services other than the legal services called for by his prison job. Ivey refused to say who gave him the cigarettes, and the authorities were thus unable to check the veracity of his story. The committee ruled that Ivey had improperly accepted payment for legal services and removed him from his legal aide position. In addition, Ivey was sentenced to six days in administrative segregation, with credit for the six days already served. The findings of the adjustment committee were upheld by Defendant (and then-Warden) Dewey Sowders.

The second incident began on January 22, 1983, when a prison guard named Hatfield told another guard, Defendant Andy Knight, that he (Hatfield) thought he saw Ivey put something in his coat pocket. Officer Knight then subjected Ivey to a strip search that included a search of body cavities. Ivey threatened to file a grievance, and Officer Knight, although he found no contraband, filed an incident report against Ivey for not carrying proper identification and for threatening Officer Knight with filing the grievance ("interfering with an officer").

Ivey went to the grievance office to file a complaint against Officer Knight concerning the search. While he was attempting to file the grievance, Defendant Tom Stewart and two other guards took Ivey to a hospital security cell to test him for drug and alcohol use. The guards claimed that they thought they smelled "home brew" on Ivey's breath. Urinalysis proved to be negative. On January 23, possibly because Ivey refused to submit to a blood test in addition to the urinalysis and possibly because of the incident report filed by Officer Knight, Defendant Harry Barnett ordered that Ivey be put in prehearing segregation. Captain Barnett said he completed a prehearing detention form, but no such form was ever produced. Ivey was returned to his cell on the morning of January 24 to pack his belongings, and was then taken back to segregation. Later in the day the warden ordered Ivey released from segregation. The appellant prison officials explain the release as having been based on the warden's review of the form purportedly

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prepared by Captain Barnett; the facts stated in that form are said not to have justified segregation.

The third incident occurred on February 13, 1983, when Ivey became upset at Officer Knight for a supposed 15-minute delay in turning on the telephone lines that morning. (Officer Knight denied any delay.) Ivey filed a grievance. The grievance was denied because of records showing that the phones were activated on time and because the "log [did] not indicate that [Ivey] even used the phone that day." Ivey produced records at trial showing that he did make a phone call at 8:39 a.m. on February 13. (The phones were supposed to be turned on at 8:30 a.m., but Ivey claimed this was not done until 8:45.)

The last incident involved the head of "penitentiary program services," Phil Parker. On August 15, 1983, Mr. Parker reportedly recommended that Ivey be dismissed from his legal aid position (to which he had been reinstated by this time) because he called one Officer Newsome a liar in front of other legal aides and staff. Parker said in a "Dismissal from Work Assignment" form that "[w]e do not need inmate legal aides who can not get along with supervisors and show respect."


Although the parties ask us to use a "clearly erroneous" standard of review, that would not be appropriate in assessing the factual findings of a jury. "In reviewing the jury verdict, we may not substitute our view of the facts for the jury's, unless 'reasonable minds viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact.' " Ikpeazu v. University of Nebraska, 775 F.2d 250, 255 (8th Cir.1985) (quoting McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978)).

"Jury factfinding, unlike judicial factfinding, is not subject to direct attack as 'clearly erroneous.' In view of the Seventh Amendment's prohibition ('no fact tried by a jury shall be otherwise re-examined in any Court of the United States than according to the rules of the common law'), a jury verdict can only be set aside if the 'evidence [viewed] in the light most favorable to the plaintiff and * * * [the] facts and inferences reasonably drawn from the facts * * * lead to but one conclusion--that there is a total failure of evidence to prove the plaintiff's case.' Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1064 (1st Cir.1980), vacated on other grounds, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)."

Independence Tube Corp. v. Copperweld Corp., 691 F.2d 310, 319 (7th Cir.1982), rev'd on other grounds, 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984).

In his original complaint Ivey alleged violations of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. The jury was presented with an elaborate set of interrogatories that covered due process claims, Fourth Amendment claims, and cruel and unusual punishment claims. The jury found that defendants did not violate Ivey's constitutional rights in placing him in pre-hearing detention after the March 1980 cigarette incident, in any part of a "copier" incident not involved in this appeal, or in any of the searches conducted by defendants. The jury did find that Defendant Barnett violated Ivey's due process rights during the hospital incident of January 1983 by placing him in pre-hearing detention and by failing to prepare a pre-hearing detention form containing specific reasons to support the detention; that with respect to the cigarette incident of March 1980, Defendants Hanley, Barnes, Hendricks, and Sowders failed to provide Ivey with hearings comporting with due process; and that Defendants Parker, Knight, Stewart, Hendricks, Sowders and Hanley violated the prohibition against cruel and unusual punishment in various ways.


We first consider the finding of the jury on the cruel and unusual punishment question. The interrogatory read as follows:

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"Did defendants subject plaintiff to verbal abuse, harrassment [sic] (including threats of discipline or write-ups), arbitrariness in dealing with him or his property, conditions of confinement, or unreasonable strip searches in violation of plaintiff's constitutional right against cruel and unusual punishment?"

The jury was given the following instruction on this issue:

"The final aspect of plaintiff's claim is that he was subjected to 'cruel and unusual punishment' because he was placed in prehearing detention, and because he was subjected to unconstitutional strip searches. Before the jury can determine whether the plaintiff was subjected to conditions that are 'cruel and unusual,' the jury must first find that the plaintiff was being punished. 'Punishment' may result from intentional actions taken by defendants to restrain plaintiff.

"If the jury finds from a preponderance of the evidence that plaintiff was punished, then it must determine whether the punishment imposed by the defendants was unnecessarily cruel punishment. The constitutional prohibition against cruel and unusual punishment prohibits sanctions, whether physical or psychological, which are disproportionate to the charged offense. If the jury finds from a preponderance...

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