862 F.2d 697 (8th Cir. 1988), 87-1901, Cowans v. Wyrick

Docket Nº:87-1901.
Citation:862 F.2d 697
Party Name:Chris C. COWANS, Appellee, v. Donald W. WYRICK, Warden MSP; Urban A. Lock, Superintendent; Officer Brown; Officer Joe Trueblood; Officer Jerry Downing; Officer Leo Rodel; John Douglas, Appellant. Officer Walker.
Case Date:December 06, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 697

862 F.2d 697 (8th Cir. 1988)

Chris C. COWANS, Appellee,

v.

Donald W. WYRICK, Warden MSP; Urban A. Lock,

Superintendent; Officer Brown; Officer Joe

Trueblood; Officer Jerry Downing;

Officer Leo Rodel;

John Douglas, Appellant.

Officer Walker.

No. 87-1901.

United States Court of Appeals, Eighth Circuit

December 6, 1988

Submitted March 18, 1988.

As Corrected Jan. 23, 1989.

Page 698

John Simon, Asst. Atty. Gen., Jefferson City, Mo., for appellant.

Walter Blev, Columbia Mo., for appellee.

Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.

BEAM, Circuit Judge.

John Douglas, a prison guard at the Missouri State Penitentiary, appeals from a final judgment entered in the district court upon a jury verdict. The jury found that Douglas had inflicted cruel and unusual punishment upon a prisoner, Chris Cowans, in violation of the eighth amendment. The jury did not, however, assess any damages against Douglas. The court, sua sponte, awarded Cowans nominal damages in the sum of $1.00. We reverse and remand for a new trial.

I. BACKGROUND

Cowans filed this civil rights complaint on May 15, 1986. He claimed that Douglas slammed a food service door on his hand in response to Cowans' refusal to close the door himself. Cowans' reason for refusing to close the door was to protest the conduct of another prison guard who was distributing plasticwear without wearing gloves. Cowans testified that his hand swelled, turned black and blue, and was immediately painful.

Douglas denied slamming the food service door on Cowans' hand, and by implication, denied that any injury occurred. If such an event occurred, however, Douglas contends that closing the door was necessary because prisoners crawl through the openings and throw food down inside the doors.

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II. ISSUES

Douglas argues on appeal that the judge's instruction to the jury on cruel and unusual punishment misstated the applicable law. Additionally, Douglas contends that the court erred in awarding nominal damages because the proper remedy, in responding to the jury having found no injury, was a Judgment N.O.V., or at least, a new trial.

We believe that the instruction did misstate applicable law inasmuch as it set out an improper standard and allowed the jury to find for Cowans absent a finding of any injury. Because of this, the court's award of nominal damages was improper.

We believe the jury is required to award nominal damages once it has found cruel and unusual punishment if it has not been able to convert into dollars the injury and pain a plaintiff has suffered. If a jury finds that plaintiff has suffered no pain of any kind, then the question of damages, nominal or otherwise, does not arise. This is because an action for cruel and unusual punishment has not been established without a showing of some measure of pain of some type.

A. Instruction on Cruel and Unusual Punishment

The Supreme Court has set out the applicable definition of cruel and unusual punishment as it arises in the context of prison security. Reasonable measures undertaken to resolve a disturbance when the disturbance indisputably poses significant risks to the safety of inmates and prison staff do not rise to the level of cruel and unusual punishment. See Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). Cowans' refusal to shut the door when directed to do so was such a disturbance because a significant security threat was posed. Thus, the standards of Whitley must be applied.

In Whitley, the Court first found that the prisoner had suffered severe damage, and mental and emotional distress. Id., 106 S.Ct. at 1083. It said, citing Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) that "[a]fter incarceration, only the 'unnecessary and wanton infliction of pain ' * * * constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Id. 106 S.Ct. at 1084 (emphasis added). The court required, as indicated, the prisoner's pain be inflicted unnecessarily and wantonly. See id. at 1085. Whether pain is inflicted unnecessarily and wantonly depends, at least in part, upon whether "force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. * * * '[S]uch factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,' ibid., are relevant to that ultimate determination." See id.

The district court's instruction was as follows:

[T]he conduct of corrections officers will constitute cruel and unusual punishment if the force is applied intentionally for the very purpose of causing harm and not applied in a good faith effort to maintain and restore discipline.

In determining whether the constitutional line has been crossed by the use of intentional force, the jury may consider * * * the extent of the injury inflicted.

(Emphasis added). The district court's instruction was flawed in two respects. First, it seems to have allowed the jury to find for the plaintiff if it found that Douglas's use of force was not applied in a good faith effort to maintain and restore discipline. 1 We do not believe that such a finding, standing alone, is sufficient to establish Cowans' claim.

We read Whitley to mean that if force is applied in a good faith effort to

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maintain or restore discipline, then there is no cruel and unusual punishment. See id. Cruel and unusual punishment exists, in the context of prison security, only where force is applied maliciously and sadistically for the very purpose of causing pain and suffering. See id.

Secondly, the instruction allowed the jury to find for Cowans without finding that he had suffered any pain, misery, anguish or similar harm, whether capable of estimation or not. The extent of injury inflicted is not just something that a jury may consider, it is a relevant factor as to whether or not the punishment inflicted was cruel and unusual. See id. (citing with approval Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Indeed, a court must look to the extent of the pain inflicted in determining whether a constitutional deprivation occurred. Johnson v. Glick, 481 F.2d at 1033.

Often, the question of whether a plaintiff suffered injury and pain will be too obvious to address, and many cases have so proceeded. See, e.g., Martin v. White, 742 F.2d 469, 474 (8th Cir.1984); Vosburg v. Solem, 845 F.2d 763 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 313, --- L.Ed.2d ---- (1988). This was not such a case. Douglas denied that the event even occurred. Similarly, the jury was free to believe or disbelieve the extent of swelling, if any, that Cowans claims occurred, and whether or not he suffered any pain, anguish, or other compensable injury.

However, the court's instruction allowed the jury to find in favor of Cowans as long as the jury believed that Douglas closed the door in bad faith or for reasons other than maintaining discipline, even if they disbelieved Cowans' testimony about the pain he allegedly suffered and the swelling he purportedly endured. The failure of the jury to award even nominal damages suggests that this may have occurred.

In cases where injury has been at issue, an appropriate injury instruction has been given. See Wade v. Haynes, 663 F.2d 778, 782 (8th Cir.1981); see also 3 Devitt & Blackmar, Sec. 103.16, at 990 (1986) (instruction asking whether the defendant's conduct was the proximate cause of injury to the plaintiff).

B. Nominal Damages

If after a retrial, the jury finds that Douglas inflicted cruel and unusual punishment, the jury must enter an award of nominal damages if it is unable to place a monetary value on the harm that Cowans suffered from the punishment. This is because, as we have stated, the jury must have found that plaintiff suffered anguish, misery or pain in order to establish that cruel and unusual punishment was inflicted.

In this situation, the award of nominal damages is not to compensate the abstract value of the right to be free from a constitutional violation. Rather, it serves to compensate for a degree of harm sufficient to establish cruel and unusual punishment, but insufficient to support a more substantial measure of damages with reasonable certainty. See Dobbs, Remedies, Sec. 3.8, at 191 (1973).

III. CONCLUSION

Accordingly, the order of the district court is reversed. On retrial, the judge shall instruct the jury in a manner consistent with this opinion, and order that the jury must award nominal damages if it finds that Cowans was subjected to cruel and unusual punishment as prohibited by the eighth amendment.

McMILLIAN, Circuit Judge, specially concurring.

I concur in the decision to reverse the judgment and to remand the case to the district court for further proceedings. Although I agree that the instruction as given set forth an incorrect standard of liability, I do so for different reasons than my colleagues. In addition, I do not wholly agree with certain aspects of the discussion about actual injury and damages.

The district court instructed the jury that it could find an eighth amendment violation if it found that Douglas applied force "intentionally

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for the very purpose of causing harm and not ... in a good faith effort to maintain and restore discipline." The district court further instructed the jury that, in making this determination, it could consider

the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, the extent of the threat to safety of staff and inmates, as reasonably perceived by them, and any efforts made to temper the severity of a forceful response.

On appeal Douglas argued...

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