Vosburg v. Solem
| Decision Date | 22 September 1988 |
| Docket Number | Nos. 87-5032,87-5033,s. 87-5032 |
| Citation | 845 F.2d 763 |
| Parties | Willard Ralph VOSBURG, Appellee, v. Herman SOLEM and Richard Rist, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John W. Bastian, Pierre, S.D., for appellants.
Michael J. Schaffer, Sioux Falls, S.D., for appellee.
Before LAY, Chief Judge, MAGILL, Circuit Judge, and LARSON, Senior District Judge. *
Willard Vosburg brought this 42 U.S.C. Sec. 1983 (1982) action, seeking monetary and injunctive relief. Vosburg claims that Herman Solem, Warden of the South Dakota State Penitentiary, and Richard D. Rist, Associate Warden, violated his right to be free from cruel and unusual punishment. Following a five-day trial, the jury returned a verdict awarding Vosburg $10,000 on his section 1983 claim. We affirm the judgment on the verdict, award attorney's fees and post-verdict interest, and we remand the case to the district court with directions to dismiss the prayer for injunctive relief as moot.
Vosburg entered the South Dakota State Penitentiary on December 16, 1982, to begin serving his sentence for possession of a stolen motor vehicle. It was his first time in prison. At the time, Vosburg was nineteen years old. He weighed approximately 135 pounds.
Two days after Vosburg entered the penitentiary, Edward Abbenhaus was brought to the penitentiary to serve out his sentence. Abbenhaus had killed his mother by strangling her. Vosburg and Abbenhaus met in the "intake area" of the penitentiary. Abbenhaus soon asked Vosburg to share a cell ("double cell") with him. At that time, the penitentiary did not have a policy of segregating inmates in the intake area based upon the nature of their crime, criminal record, or psychological profile. With the prison officials' approval, Vosburg was placed in a cell with Abbenhaus.
Four days after Vosburg and Abbenhaus began double celling, Abbenhaus assaulted Vosburg. Abbenhaus shoved a piece of cloth into Vosburg's mouth and raped him. Word of Vosburg's rape spread throughout the prison. Vosburg was sexually assaulted again on three separate occasions by three other inmates.
After his release in February of 1984, Vosburg brought this section 1983 action. Following the return of the jury's verdict, the district court 1 took Vosburg's requests for injunctive relief under advisement. After several months' consideration, the district court granted Vosburg partial injunctive relief, requiring defendants to report to county and state law enforcement officials all cases in which the prison authorities had reasonable cause to believe that a rape had occurred in the penitentiary. The district court, however, denied Vosburg's request for an injunction prohibiting double celling inmates in the intake and protective custody areas of the penitentiary. The district court also denied defendants' motions for judgment notwithstanding the verdict and a new trial, and awarded Vosburg attorney's fees and costs under 42 U.S.C. Sec. 1988.
The prison officials urge this court to reverse the district court's denial of their motion for a judgment n.o.v. on the ground that Vosburg failed to prove that they acted with reckless disregard of his right to protection from attacks of other inmates. 2 The district court submitted the issue of liability to the jury under the following instruction:
Prison officials may be liable for a violation of a prisoner's civil rights where they are deliberately indifferent to a prisoner's constitutional right to be free from sexual attacks by other inmates, if they actually intend to deprive him of that right, or if they act with reckless disregard of this right.
Reckless disregard of a prisoner's right to be free from sexual attacks by other inmates may be shown by the existence of a pervasive risk of harm to inmates from other prisoners and a failure by prison officials to reasonably respond to that risk.
A pervasive risk of harm may not ordinarily be shown by pointing to a single incident or to isolated incidents, but it may be established by much less than proof of a reign of violence and terror in the particular institution. It is enough that violence and sexual assaults occur with sufficient frequency that prisoners are put in reasonable fear for their safety and to reasonably apprise prison officials of the existence of the problem and the need for protective measures.
It is not necessary to show that all prisoners suffer a pervasive risk of harm. It is enough that an identifiable group of prisoners do, if the complainant is a member of that group.
There is no challenge to this instruction. It clearly reflects the applicable law. See Martin v. White, 742 F.2d 469, 474 (8th Cir.1984); Wade v. Haynes, 663 F.2d 778 (8th Cir.1981), aff'd, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Solem and Risk argue that Vosburg failed to prove that the risk of violence and sexual assault was substantial enough to put them on notice of the danger Vosburg faced. The defendants also maintain that prison policies, such as orientation for new inmates, availability of protective custody, and training of prison personnel, were adequate to address the existing level of violence at the penitentiary. We are satisfied, however, that sufficient evidence supports the jury's finding of liability.
The evidence contains specific and detailed accounts of the four separate instances in which Vosburg was sexually assaulted. Other young inmates also gave evidence that they had been raped repeatedly at the penitentiary, both in the intake area and other locations throughout the facility. Both sides presented statistical evidence as to the level of violence and sexual assault in the penitentiary. Vosburg also presented evidence that revealed that prison officials failed to refer assaults to the local prosecutors. The prison official in charge of investigating crimes at the South Dakota State Penitentiary testified that of approximately 500 crimes investigated by him between 1984 and 1985, only two or three were referred to prosecution. Conversely, the defendant's own expert witness, Warden Winston Satran of the North Dakota State Penitentiary, testified that all crimes committed in the North Dakota institution are referred to the local prosecutor. Furthermore, disciplinary reports revealed that there were over 140 instances of fighting and assaults from 1981 to 1985 in the South Dakota institution. None were referred to the local prosecutor. No sexual assaults at the South Dakota Penitentiary, including an instance in which an inmate had a broomstick shoved into his rectum, have ever been prosecuted. No inmate who has ever been accused of committing a rape in the South Dakota State Penitentiary, including Vosburg's assailants, has ever been disciplined.
Vosburg also presented extensive testimony as to the prison authorities' failure to respond to the risk of sexual assault; testimony that revealed that the prison authorities did not screen violent offenders from the less violent and non-violent when making cell assignments. Inmates were not segregated based upon the nature of the crime for which they were convicted, and no policy existed to segregate inmates who were the likely targets of sexual assaults. Warden Satran testified that at the North Dakota State Penitentiary newly-admitted inmates are screened and those convicted of violent crimes are segregated from the other inmates until prison authorities have an opportunity to assess their behavior. Warden Satran stated that if he had known what Warden Solem knew concerning the crimes with which Vosburg and Abbenhaus had been convicted, those two inmates would not have been double celled in his institution.
Both sides presented expert opinion testimony about the adequacy of the prison policies in place to protect the inmates from violence and sexual assault. Evidence adduced at trial revealed that prison authorities permitted the use of a pass system that allowed prisoners to have young inmates, like Vosburg, brought to an isolated area within the prison where no guards were stationed. Vosburg also presented evidence which illustrated that guards were stationed in a location removed from the inmates, where they could not see into the individual inmates' cells. Evidence revealed that one guard attempted to monitor 175 cells on four separate tiers during the night. Many of these cells housed two prisoners and monitoring rounds were conducted only every three or four hours.
The frequency of assaults at the penitentiary was sufficiently high that a jury might reasonably find pervasive risk of harm to the prisoners. The prison officials' failure to develop administrative policies to protect Vosburg and others in the intake facility and other high-risk areas of the penitentiary clearly supports a jury finding that the defendants failed to reasonably respond to the risk of inmate assault. Accordingly, we affirm the district court's denial of the defendants' motion for a judgment n.o.v. and a new trial.
The prison officials urge in the alternative that the district court erred in denying their motion for a new trial on the ground that there was an erroneous jury instruction on damages. Although the defendants did not object to the instructions as required under Fed.R.Civ.P. 51, they maintain that we should consider the damage instructions as plain error and hold that the failure to object should not bar them from raising the issue on appeal. Defendants argue that the instruction challenged has now been held to be erroneous by the Supreme Court of the United States and that such holding occurred after the trial in the present case. Assuming, without deciding, that this would present an exception under Rule 51 to recognize plain error, 3 we find that the error committed was...
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