995 F.2d 817 (8th Cir. 1993), 92-2699, Cummings v. Malone

Docket Nº:92-2699.
Citation:995 F.2d 817
Party Name:Rederick E. CUMMINGS, Appellee, v. Robert MALONE; Harry Lloyd, Cpt.; James Eberle, Defendants, Michael L. Plemmons; Scott L. Lawson, Appellants, Tony Lander; Steve Lingo, CO; George Adams; David Corum; Gary Blank; Phillip Vance; Arthur W. Dearixon; James Bohannon; Richard Corser; Lewis Foxworth; William L. Rutledge; Louis Ferguson, Defendants.
Case Date:June 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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995 F.2d 817 (8th Cir. 1993)

Rederick E. CUMMINGS, Appellee,


Robert MALONE; Harry Lloyd, Cpt.; James Eberle, Defendants,

Michael L. Plemmons; Scott L. Lawson, Appellants,

Tony Lander; Steve Lingo, CO; George Adams; David Corum;

Gary Blank; Phillip Vance; Arthur W. Dearixon; James

Bohannon; Richard Corser; Lewis Foxworth; William L.

Rutledge; Louis Ferguson, Defendants.

No. 92-2699.

United States Court of Appeals, Eighth Circuit

June 9, 1993

Submitted Feb. 16, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied July 19, 1993.

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[Copyrighted Material Omitted]

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Michael Pritchett, Jefferson City, MO, argued, for appellant.

There was no argument presented on behalf of the appellee.

Before McMILLIAN, MAGILL, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

Michael Plemmons and Scott Lawson (collectively appellants) appeal from the judgment entered upon a jury verdict finding them liable for violating the Eighth Amendment rights of appellee Rederick Cummings and awarding nominal damages to Cummings. Appellants claim that the district court erred (a) by improperly instructing the jury on the mental state necessary to prove an Eighth Amendment violation and with respect to nominal damages, and (b) by failing to admit certain evidence. Appellants also appeal the award of attorneys' fees to Cummings. We reverse and remand for a new trial, and vacate the award of attorneys' fees.


The parties presented diametrically opposed accounts of the events leading to this lawsuit. Because the facts are important to the resolution of the issues on appeal, we set out the contentions of both parties in detail.

Cummings, an inmate within the Missouri Department of Corrections, asserted that several prison officials violated his right to be free from cruel and unusual punishment by beating him at various times and in various combinations on March 24, 1989, while he was confined at the Missouri State Penitentiary (MSP). Named as defendants in Cummings' final amended complaint were Maj. James Eberle, Capt. Gary Blank, Capt. George Adams, Capt. Harry Lloyd, Lt. Robert Malone, Lt. Phillip Vance, Lt. Michael Plemmons, Lt. James Bohannon, Sgt. David Corum, CO-1 Scott Lawson, CO-1 Tony Lander, CO-1 Steve Lingo, CO-1 Lewis Foxworth, Bill Rutledge (an assistant superintendent), Arthur Dearixon (an investigator), and Lois Ferguson (a nurse).

At trial, Cummings testified that on March 24, 1989, an officer instructed him to go to the captain's shack. When he arrived at the captain's shack, defendants Plemmons, Lawson, and two or three other officers were already there. Cummings then complied with a request to be strip searched. Cummings denied striking defendant Plemmons or attempting to strike defendant Blank at that time.

After the strip search, defendants Lawson and Plemmons escorted Cummings to the major's office. Major Eberle met them there and escorted Cummings into a file room adjacent to the office. Cummings claims that while in the file room he was beaten for about five to seven minutes by defendants Eberle and Adams, who also made racially derogatory comments toward Cummings. Cummings then was taken to the investigator's office, where he was beaten for approximately twenty minutes by numerous correction officers, primarily defendants Eberle, Adams, Corum and Vance. Investigator Melvin Coonce was present during this beating but did not participate. At one point during the beating, defendant Ferguson, a nurse, came into the investigator's office, but did not examine Cummings.

Cummings then left the investigator's office and was taken to Housing Unit 5C. There he claims he was beaten by defendants Malone, Lander, and Lingo for about five to seven minutes.

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Later that day, Cummings was taken to the major's office to be informed of certain conduct violations. Cummings testified that after he arrived, he was beaten again for approximately twenty to twenty-five minutes. Defendants Eberle, Blank, Lawson, Plemmons, and Lloyd were present at that time, as was investigator Melvin Coonce. Cummings testified that at no time during any of these beatings did he offer any resistance.

Melvin Coonce, a former investigator at MSP, testified for Cummings. He testified that in March 1989, Cummings was escorted to his office by defendants Eberle, Plemmons, and a couple of other officers. Coonce testified that those officers beat Cummings in his office, and that defendant Dearixon came into his office later and joined the beating.

Later that day, Cummings was brought to the major's office so that Coonce could interview him about alleged conduct violations. Defendants Eberle, Plemmons, Blank, and Lawson were present. Corrections Officer Kim Turner also was present, as well as several other officers Coonce could not recall. Several people left the room and shut the door, and then defendants Eberle, Plemmons and Lawson struck Cummings.

Defendants' evidence showed the following circumstances relevant to this case. On March 24, 1989, officers received a report that Cummings had committed a major conduct violation. Defendant Adams instructed Plemmons and Lawson to pick up Cummings, who they located and escorted to the captain's shack. Defendant Blank met them there. Plemmons told Cummings that he was going to be strip searched, and Cummings asked why. When Plemmons told him, Cummings hit him in the face. Cummings then swung at Blank, who ducked and hit Cummings in the mouth, cutting his finger in the process. Blank and Lawson then took Cummings to the floor and put him in hand restraints.

Following this altercation, Blank, Plemmons, and Lawson escorted Cummings to the investigator's office, where Eberle joined them. Before arriving at the investigator's office, Blank went to the rest room to care for his bleeding hand. Adams and investigator Melvin Coonce were waiting at the investigator's office when Cummings and escorts arrived. Plemmons and Lawson remained at the investigator's office for about ten minutes and then Lawson escorted Plemmons to the hospital on orders of Eberle and Adams. Plemmons began receiving treatment at the hospital at 9:30 a.m., and remained at the hospital for about one hour and fifteen minutes. Lawson remained with Plemmons during this time. Eberle stayed in the investigator's office for about three or four minutes before returning to his office, while Adams stayed in the investigator's office for about ten minutes before returning to his assigned duties.

Just before Adams left, Ferguson, a nurse, reported to the investigator's office to examine Cummings for injuries resulting from the use of force at the captain's shack. Ferguson asked Cummings what injuries he had suffered, and Cummings replied that he had none. According to Ferguson, Cummings had no visible injury other than a cut lip. Cummings then signed a waiver stating that he refused medical treatment, and was taken to Housing Unit 5C.

Later that day, Cummings was brought to the major's office for an interview on a conduct violation Plemmons had issued him. Investigator Coonce was present to conduct the interview. Eberle was present at first, but left when the interview began. Plemmons and Turner were in an adjoining room where they could view and hear the interview. After the interview, Lawson escorted Cummings back to Housing Unit 5C.

Defendants and their witnesses consistently testified that Cummings was not physically or verbally abused in any way. They testified that the only force directed at Cummings was that used by Blank and Plemmons after Cummings had hit Plemmons and swung at Blank in the captain's shack. Defendants further testified that Dearixon, Corum and Vance had no contact at all with Cummings on March 24, 1989, and that Dearixon was not even at the prison that day.

Much of the controversy in this case concerns what the jury did not hear, however. The appellants sought to introduce, through

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testimony from Plemmons, Lawson, and prison employee Kim Turner, that Cummings was initially picked up for interrogation because Turner alleged Cummings attempted to sexually assault her. The district court excluded this evidence, finding that it was irrelevant and highly prejudicial.

Appellants attempted to introduce this evidence and other evidence of Cummings' malfeasance on March 24 in several other ways. First, appellants attempted to introduce for impeachment purposes the "face sheet" listing Cummings' felony convictions, which included his conviction for assaulting Plemmons and for attempting to rape Turner on March 24. The district court allowed defendants to question Cummings about the number of his felonies, but did not allow them to use the "face sheet" to dispute his answer. Appellants further attempted to introduce Cummings' assault and attempted rape convictions to impeach Cummings' testimony that he was not violent toward anyone on the day he claims he was assaulted. Second, the appellants attempted to introduce the fact that Plemmons and Blank testified against Cummings in the assault trial to establish Cummings' bias against them. The district court allowed appellants to establish that two defendants had testified against Cummings, resulting in a criminal conviction and fifteen more years in prison, but would not allow the appellants to establish which defendants testified or what the charge was. Finally, appellants attempted to introduce Cummings' prior deposition and initial pro se complaint as prior inconsistent statements to impeach Cummings' testimony that he did not know why he was initially called down for interrogation. In these documents, Cummings states he was told that he was called down because Turner alleged he sexually assaulted her. The district court did not allow defendants to introduce these documents.

At the close of the evidence, Cummings submitted to the jury claims that...

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