Warren v. Fanning

• Decision Date: 21 November 1991
• Docket Number: Nos. 90-2832,90-2833,s. 90-2832
• Citation: 950 F.2d 1370
• Parties: Paul WARREN, Appellant, v. Judy FANNING; Dr. Taca, Appellees. Paul WARREN, Appellee, v. Judy FANNING, Dr. Taca, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1370

950 F.2d 1370

Paul WARREN, Appellant, v. Judy FANNING; Dr. Taca, Appellees.

Paul WARREN, Appellee, v. Judy FANNING, Dr. Taca, Appellant.

Nos. 90-2832, 90-2833.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1991.

Decided Nov. 21, 1991.

Margaret Hart-Mahon, St. Louis, Mo., argued, for appellant.

Kathi L. Chestnut, St. Louis, Mo., argued, for appellees and Kathryn A. Dyer on the brief.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

Paul Warren, a state prisoner, filed this suit under 42 U.S.C. § 1983 (1988), alleging that his constitutional right to be free from cruel and unusual punishment had been violated by reason of the deliberate indifference of the defendant state actors to his serious medical needs. A jury found that Dr. Arturo Taca had violated Warren's Eighth Amendment rights, but awarded Warren neither compensatory nor nominal damages. The Magistrate Judge ¹ declined to award Warren attorney fees. Both parties appeal. We affirm.

Warren entered the Missouri Department of Corrections in May 1986. After he was transferred to the Missouri Eastern Correctional Center ("MECC") he began seeking medical treatment for an infection of the toes on his left foot in late 1986 or early 1987. He complained repeatedly of pain and discomfort in his toes for the next year. During that time, he also complained of pain in his right ankle. Warren wore a corrective boot on his right foot, the result of an injury suffered in 1974 that required a rod to be inserted in his right leg and that resulted in his right leg being shorter than his left leg. The pain in his right ankle caused him to seek medical treatment on numerous occasions during the years 1987 and 1988. For both of these ailments, Dr. Taca, a contract doctor at MECC, was the responsible physician in charge of Warren's treatment. In April 1988, after Dr. Taca referred Warren to an outside specialist, Warren underwent surgery to have his toenails on his left foot permanently removed. In June 1988, after Warren was referred to the same specialist, Warren had an operation to have the rod in his right leg removed. A surgical procedure also was performed on his right heel. After undergoing these procedures, Warren, who had complained earlier that his corrective boots were not being maintained properly, complained that his right ankle still bothered him as he was forced to wear the same pair of damaged boots.

In April 1988 Warren filed this Section 1983 lawsuit alleging that Dr. Taca, as well as three other defendants employed at MECC, had violated his right to be free from cruel and unusual punishment by denying him proper medical treatment in deliberate indifference to his serious medical needs. At the completion of the trial only Dr. Taca and Judy Fanning (now Hudson), the director of health at MECC, remained as defendants. The jury was instructed to find for Warren and against either of the defendants if it found (1) that Warren had a serious medical need that required treatment, (2) that the defendant was deliberately indifferent to that need, and (3) that the defendant's deliberate indifference was the proximate cause of injury and consequent damage to Warren. The jury found for Warren against Dr. Taca, but not against Fanning. Regarding damages, the jury was instructed to award Warren money damages to compensate him for any damages sustained as a direct result of the violation of his constitutional rights. If the jury found a violation but no substantial actual damages, the jury was allowed (but not required) to award Warren nominal damages in the amount of one dollar. The jury, having found for Warren and against Dr. Taca, awarded Warren neither actual damages nor nominal damages.

After the trial, Dr. Taca filed a motion to alter or amend the judgment, or in the alternative, for judgment notwithstanding the verdict. Warren filed a motion for a new trial, or in the alternative, to alter or amend the judgment. Warren also filed a motion requesting attorney fees. All these motions were denied by the Magistrate Judge, judgment was entered accordingly, and both parties appeal.

Dr. Taca appeals the denial of his motion for judgment notwithstanding the verdict. In reviewing the denial of this motion, we use the same standard as the trial court, Charles Woods Television v. Capital Cities/ABC, 869 F.2d 1155, 1159 (8th Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 145, 107 L.Ed.2d 104 (1989); namely, we must

(1) consider the evidence in the light most favorable to the prevailing party, (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party, (3) assume as proved all facts that the prevailing party's evidence tended to prove, and (4) give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved. That done, [we must affirm the denial of] the motion if reasonable persons could differ as to the conclusions to be drawn from the evidence.

Western Am., Inc. v. Aetna Casualty and Sur., 915 F.2d 1181, 1183 (8th Cir.1990).

Deliberate indifference to a prisoner's serious medical needs violates the prisoner's Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). "Grossly incompetent or inadequate care can constitute deliberate indifference, as can a doctor's decision to take an easier and less efficacious course of treatment." Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir.1990) (citation omitted). "Medical care so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care violates the eighth amendment," id., but a "mere disagreement with the course of [the inmate's] medical treatment [does not constitute] an eighth amendment claim of deliberate indifference." Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990).

Examining the record in the light most favorable to Warren, we conclude that reasonable persons could differ as to the conclusions to be drawn. Warren developed a problem with his left toes in late 1986. He first complained of this problem at some point prior to February 1987. Between February 1987 and April 1988, when he had his left toenails permanently removed by an outside specialist, he complained of pain and discomfort in his left toes at least twelve times to the prison medical staff. Warren testified that his toenails were black from June 1987 until January 1988, when he first saw the outside specialist. Warren and another witness testified that Dr. Taca once told Warren that his toenails were supposed to turn black and fall off once a year. Dr. Taca referred to Warren as a chronic complainer, many of whose complaints "didn't pan out." Trial Testimony, vol. III at 191. Of the numerous times in 1987 and 1988 that Warren complained of pain in his right ankle, at least nine times Dr. Taca's treatment consisted primarily of "patient reassurance." Our examination of Dr. Taca's trial testimony reveals an attitude towards Warren's medical needs that reasonably could be viewed as indifferent, if not contemptuous. The immediate diagnosis of the outside specialist was vastly different from that of Dr. Taca, as was the prescribed treatment. Considering the state of the record and the inferences the jury properly could have drawn regarding Dr. Taca's attitude toward Warren, we are persuaded that reasonable persons could differ as to whether Dr. Taca's actions amounted to deliberate indifference to Warren's medical needs, or whether there was simply a disagreement with the course of Warren's medical treatment. Accordingly, we affirm the Magistrate Judge's order denying Dr. Taca's motion for judgment notwithstanding the verdict. ²

We turn to Warren's appeal. He first argues that, because the weight of the evidence showed he was entitled to compensatory damages, the court erred in not granting a new trial. "The trial court's decision [on a motion for a new trial] should not be reversed absent a strong showing of abuse of discretion." Champeau v. Fruehauf Corp., 814 F.2d 1271, 1274 (8th Cir.1987). Warren has made no such showing. The fact that the jury found that his Eighth Amendment rights had been violated does not mean that he suffered substantial compensable damages that could be measured accurately. We therefore decline to reverse the trial court's denial of Warren's motion for a new trial.

In the alternative, Warren claims that he is entitled to nominal damages, that the jury was not so instructed, and that the judgment should be amended to include such damages. We agree that the law would entitle Warren to nominal damages from Dr. Taca. "[T]he 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." Cowans v. Wyrick, 862 F.2d 697, 699 (8th Cir.1988). Here, the jury found that Dr. Taca's deliberate indifference inflicted cruel and unusual punishment upon Warren. That does not end our inquiry, however, for the instructions proffered by Warren and read to the jury without objection stated only that

[i]f you find that the plaintiff is entitled to a verdict in accordance with these instructions, but do not find that the plaintiff has sustained substantial (actual) damages, then you may return a verdict for the plaintiff in some nominal sum such as one dollar (on account of actual damages).

Jury Instruction No. 14, reprinted in Appellant's Brief at 9-10 (emphasis added). On the verdict form sheet submitted to the jury, a space was included for an award of actual damages, but no provision was made for a nominal damages award.

"[A]ny error in instructions not properly objected to is waived unless it is plain error that resulted in a miscarriage of justice." Beckman v. Mayo Foundation, 804 F.2d 435, 438 (8th Cir.1986). Here,...