Butler v. Dowd

• Citation: 979 F.2d 661
• Decision Date: 11 November 1992
• Docket Number: 90-2091 and 90-2782,Nos. 90-2090,s. 90-2090
• Parties: Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Appellants, Doyle Kirkman, Jay M. French, Appellant, v. Denis DOWD, Appellee, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars. Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Appellees, Doyle Kirkman, Jay M. French, Appellee, v. Denis DOWD, Appellant, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars. Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Doyle Kirkman, Jay M. French, Appellees, v. Denis DOWD, Appellant, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 661

979 F.2d 661

Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Appellants, Doyle Kirkman, Jay M. French, Appellant, v. Denis DOWD, Appellee, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars.

Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Appellees, Doyle Kirkman, Jay M. French, Appellee, v. Denis DOWD, Appellant, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars.

Ivron BUTLER, Frank A. Ledferd, David Corder, Hershel Marsh, Doyle Kirkman, Jay M. French, Appellees, v. Denis DOWD, Appellant, Daniel Henry, Phil Banks, Bruce Scott, Tim Sellars.

Nos. 90-2090, 90-2091 and 90-2782.

United States Court of Appeals Eighth Circuit.

Submitted July 21, 1992.

Decided Nov. 11, 1992.

Michael J. Hoare, St. Louis, Mo., argued for Jay M. French, cross-appellee in 90-2090 and 90-2091.

Erwin A. Switzer, Asst. Atty. Gen., St. Louis, Mo., argued (Joseph M. Hepworth, Steven A. Nieters, Special Asst. Attys. Gen., on the brief), for appellee/cross-appellant.

Before RICHARD S. ARNOLD, Chief Judge, LAY and BRIGHT, Senior Circuit Judges, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS S. ARNOLD, Circuit Judges, En Banc.

MAGILL, Circuit Judge.

These prison inmates assert claims pursuant to 42 U.S.C. § 1983 against their custodians, the prison officials, for permitting them to be homosexually raped by other inmates in violation of their Eighth Amendment rights. Plaintiffs Frank Ledferd, David Corder, Hershel Marsh and Jay French appeal from the trial court's ¹ denial of their motions for a new trial on damages and for declaratory and injunctive relief. Defendant Denis Dowd cross-appeals, claiming that the trial court erred in denying his motion for judgment notwithstanding the verdict and that the trial court abused its discretion in awarding plaintiffs' counsel almost $95,000 in attorneys' fees. Dowd also argues that a jury instruction erroneously set out the standard to determine whether there was an Eighth Amendment violation. We affirm.

I.

The Farmington Correctional Center (FCC) is a near-maximum security facility located in Farmington, Missouri, that houses high-level security inmates serving long sentences for serious crimes. During 1988-89, all four plaintiffs were inmates of FCC. ² Denis Dowd was the Superintendent at FCC from January 1, 1987, through March 30, 1990. On February 17, 1989, the four plaintiffs ³ filed a complaint under the Civil Rights Act, 42 U.S.C. § 1983, against Dowd and four of his staff members, alleging, inter alia, that they had been homosexually raped by other inmates and Dowd had failed to protect them. After counsel was appointed, plaintiffs filed an amended complaint against Dowd, three of his superiors and seven staff members. The complaint alleged six causes of action. Only one cause of action against one defendant, however, was submitted to the jury: the claim that Dowd violated plaintiffs' constitutional rights by recklessly or knowingly subjecting them to a pervasive risk of sexual assault. ⁴ The evidence presented by both parties focused on whether there was a pervasive risk of sexual assault at FCC, whether Dowd had acted with deliberate indifference or reckless disregard by subjecting the plaintiffs to such a risk and whether Dowd failed to protect the plaintiffs from assault.

The setting in which plaintiffs claim to have been sexually assaulted is as follows. Each 100-foot, two-story wing of the prison, containing sixty-five to seventy-square-foot, double-occupancy cells, is controlled from a central "bubble." From inside this bubble, the control officer monitors all activity in the hall and second-floor walkway of the wing. The officer has a view of the doors to the cells. In the door of each cell is a window about two-thirds the size of a legal pad. The window is covered with mesh. There are four microphones spaced twenty-five feet apart in the ceilings of each wing, and if a prisoner calls out from a cell the officer in the bubble will hear him. For example, if the prisoner calls out his cell number, the officer, who controls unlocking the cell doors from the bubble, can press a switch to unlock the cell. The officer cannot hear conversations that take place in a normal tone of voice. There are set periods of time called "open wing" when prisoners can move freely within the wing and visit each other if they wish. During the time period relevant to this suit, the rules applicable to open wing were that all cell doors were to be left open if an inmate who did not live there was visiting, but otherwise the doors had to be closed. ⁵ At 10:00 p.m., after evening open wing, the prisoners are locked into their cells for the night. This is called "lock down." The guards then conduct a custody count of each cell by switching the cell light on from the outside and looking to see if there are two prisoners in each cell. They do not look at the prisoners' faces, so they do not know if the inmates are in the correct cells.

Prisoners who are threatened within the general population of FCC can request protective custody. The policy for the entire Missouri prison system is that an inmate requesting protective custody must spend three days in administrative segregation pending a hearing before the Classification Committee ⁶ before being accorded protective custody. Administrative segregation is a closely-monitored area generally used to punish prisoners for rules violations. Usually the wait in administrative segregation is longer than three days because there is a waiting list for bed space in protective custody. The wait can be up to several weeks. There was testimony from several witnesses about the differences in conditions between administrative segregation and protective custody. For example, prisoners in administrative segregation receive very little of their personal property, no phone calls for the first thirty days, and have five minutes every other or every second day to either shower or clean their cell. The cells do not contain any furniture. Prisoners in protective custody, in contrast, get most of their personal property some phone privileges, an hour a day out of the cell, and the cells contain furniture.

The evidence at trial indicated that the following happened to the plaintiffs after their arrival at FCC. Hershel Marsh, a nineteen-year-old, white, first-offender convicted of child abuse, arrived at FCC in July 1988. According to Marsh's testimony, prisoner William Stapleton, a black man, approached Marsh within 1 1/2 hours of his arrival at FCC and told him Stapleton would "fuck" him that night. Marsh was scared, but only told his cellmate about the encounter. That evening Stapleton came to Marsh's cell and talked to him for "several hours," but did not make any threats. The next day, Marsh met Stapleton in the gym and agreed to lift weights with him. That night, Marsh went to Stapleton's cell to discuss a weight-lifting schedule. Stapleton closed the cell door and raped him. ⁷ A week later, Stapleton told Marsh to come to his cell that evening. Marsh did so, and Stapleton raped him again. Marsh did not tell anyone about these attacks. In October or November, Stapleton told Marsh to request a cell change so that they could be cellmates. At that time they were living in different wings of the prison, so Marsh only saw Stapleton outside in the yard. Marsh asked for the cell change and his request was granted even though it was prison policy not to assign white and black inmates to the same cells. Although Marsh's caseworker discussed the request with him, Marsh claimed that Stapleton was present during the interview. The caseworker, Tom Gibson, testified that he talked to Marsh alone about the requested cell change and Marsh told him that there were no problems, that he and Stapleton were weight-lifting buddies and wished to live together. Marsh, on rebuttal, claimed that the one time he and Gibson discussed the cell change without Stapleton present, Gibson had called Marsh to his office on the loudspeaker and, therefore, Stapleton knew that he was talking to Gibson. Marsh testified that Stapleton raped him repeatedly after they became cellmates.

During this time, Stapleton also raped two of the other plaintiffs, Ledferd and Corder. In both instances, Stapleton told Marsh to switch cells with the victim for the night and Marsh did so. Marsh kept his face hidden when the guards passed so they could not tell that he was in the wrong cell.

Marsh did not report any of these incidents. In November, Marsh attempted to check into protective custody. Marsh testified that he told the prison officials his cellmate was forcing him to have sex. The check-in form filled out by prison officials recorded only that Stapleton was making Marsh pay his debts to other prisoners. Marsh was put in administrative segregation pending a hearing and available bed space in protective custody. Marsh testified that, shortly afterward, Stapleton, who worked in administrative segregation, contacted Marsh and threatened to harm him and his family if he maintained his allegations against Stapleton and stayed in administrative segregation. Stapleton provided Marsh with a typed letter stating that his allegations against Stapleton were not true, which Marsh signed. Although prisoners in administrative segregation are not allowed access to pens, paper or typewriters, no investigation into the origin of the letter took place. When his request for return to general population came before the Classification Committee, Marsh reaffirmed that his allegations against Stapleton were untrue. He then signed a statement saying that he was not in any danger and did not need protective custody. Marsh was returned to the same housing unit as Stapleton in general population, ⁸ where Stapleton again raped him. In January 1989, in preparation for this lawsuit Marsh informed FCC officials about the sexual assaults and entered administrative...