[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
JANUARY 28, 2002
THOMAS K. KAHN
No. 00-14090 CLERK
___________________________
D.C. Docket No. 97-01615 CV-CAP-1
ERNEST D. JOHNSON,
Plaintiff-Appellee,
versus
BRIAN BREEDEN, Sgt.,
RUDOLPH GOMEZ,
Defendants-Appellants,
EDUARDO LUCIANO,
Defendant.
____________________________
Appeal from the United States District Court
for the Northern District of Georgia
____________________________
(January 28, 2002)
Before CARNES, COX and NOONAN*, Circuit Judges.
CARNES, Circuit Judge:
*
Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
Brian Breeden and Rudolph Gomez appeal from a judgment entered upon a
jury verdict finding that while acting as corrections officers they violated the
Eighth Amendment rights of a prisoner, Ernest Johnson, by using excessive force
against him. They ask us to reverse the judgment on grounds related to the jury
instructions and special interrogatories that were used, and also because they say
that no punitive damages should have been awarded. In addition, they seek a
reversal of the district court’s order awarding attorney fees. For the reasons that
follow, we affirm the judgment as to liability damages but reverse the order
awarding punitive damages and attorney fees and remand for a determination of
the appropriateness of punitive damages and recalculation of the amount of
attorney fees.
I. BACKGROUND
A. PROCEDURAL HISTORY
This lawsuit began when Johnson filed a variety of claims under 42 U.S.C. §
1983 against Breeden, Gomez, and others in their individual capacity. He claimed
that Breeden and Gomez, along with corrections officers Eduardo Luciano and
2
Shane Burel, used excessive force against him while he was a prisoner, subjecting
him to cruel and unusual punishment in violation of the Eighth Amendment.1
Breeden, Gomez, and Luciano filed a joint motion for summary judgment on
qualified immunity and other grounds.2 The district court denied that motion
insofar as the excessive force claim was concerned. The case was tried before a
jury. At trial, the parties agreed that on August 22, 1995, Ernest Johnson was
incarcerated at Phillips Correctional Institution in Buford, Georgia, serving a 20-
year sentence for armed robbery and aggravated assault. On that day, he was
returning to his cell after a work detail. A prison guard questioned Johnson as to
his possession of food items from the prison store when it was not his “store day.”
An altercation ensued. The Correctional Emergency Response Team responded to
the disturbance.
The accounts of what happen thereafter diverge, and the jury heard sharply
conflicting evidence. Johnson’s version of events is that after Breeden, Gomez,
Luciano, Burel, and another corrections officer named Eric Whitehead escorted
him into his cell, Breeden choked him, and the other officers, except Whitehead
1
Johnson also asserted other claims against these defendants and sued other defendants.
We will not discuss those other claims or defendants, because they were all removed from the
case one way or the other and are no longer at issue.
2
Burel died before Johnson had even filed his complaint in this case, which was noted in
a suggestion of death filed after the complaint.
3
(whom Johnson did not sue), punched him. Johnson was thrown to the floor,
kicked, and beaten with batons until he lost consciousness. He started convulsing,
was taken to the prison infirmary, and eventually to Gwinnett Medical Center.
There, Johnson was examined and found to have a closed head injury with swelling
of the left posterior parietal region of his head and seizure, as well as left eyebrow
laceration, and multiple contusions to his face, shoulders, and upper back.
In contrast, Breeden and Gomez maintain, and presented evidence at trial,
that Johnson became unruly when confronted about the store goods, and that after
Johnson was escorted to his cell he attacked Breeden. No one attacked Johnson.
Instead, he injured himself when he fell and hit his head on the heater in his cell as
the officers were trying to restrain him. They only responded with the force
necessary to restrain Johnson and protect themselves. In addition to putting forth
this version of the facts, Breeden and Johnson disputed the severity of the injuries
Johnson sustained. They introduced medical evidence, in the form of deposition
testimony from the doctor who examined Johnson shortly after he was injured,
that he had suffered only a cut over his eye and some minor contusions. In that
doctor’s opinion, Johnson’s injuries did not fit his story of having been beaten up.
After hearing the conflicting evidence, the jury returned a verdict in
Johnson’s favor against Breeden and Gomez, awarding Johnson $25,000 in
4
compensatory damages, plus $45,000 in punitive damages ($30,000 from Breeden
and $15,000 from Gomez). But the jury also returned a verdict in favor of
Defendant Luciano. Breeden and Gomez filed a Renewed Motion for Judgment as
a Matter of Law or, in the Alternative, Motion For New Trial, which contended,
among other things, that they were entitled to a new trial because the district court
had erred in refusing to submit their special interrogatories “which would have
required the jury to find the acts necessary for a final determination by the Court of
the Defendants’ qualified immunity defense.” The district court denied that
motion.
Content with his judgment against Breeden and Gomez, Johnson has not
appealed the judgment for Luciano or any of the pretrial rulings that went against
Johnson on his other claims. Breeden and Gomez have appealed the judgment
against them and the denial of their motion for new trial, as well as the award of
punitive damages and attorney fees.
II. DISCUSSION
A. THE JURY INSTRUCTIONS
5
After the close of evidence, the defendants requested that the following jury
instruction be given regarding Johnson’s excessive force claim:
After incarceration, only the unnecessary and wanton infliction
of pain . . . constitutes cruel and unusual punishment . . . [under] the
Eighth Amendment. To be cruel and unusual punishment, the
challenged conduct must involve more than ordinary lack of due care
for the prisoner’s interests or safety. Wantonness, not inadvertence or
good faith mistake, characterize the conduct prohibited by the Cruel
and Unusual Punishment Clause, whether that conduct occurs in
connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous
cellblock.
I charge you that to establish an Eighth Amendment claim for
excessive use of force, a Plaintiff must prove that force was applied
maliciously and sadistically for the very purpose of causing harm. A
plaintiff is required to show more than mere negligence to establish a
violation of the Eighth Amendment.
Crucial to establishing an unnecessary and wanton infliction of
pain is some proof that officials acted with specific intent. Therefore,
unless you find that one or more of the Defendants have, in some way,
acted with the specific purpose of harming Plaintiff, you may not hold
those individuals liable in this case.
(citations and internal marks omitted).
The district court rejected that request, and instead used the Eleventh Circuit
pattern jury instruction, substantially verbatim. The court instructed the jury, in
relevant part:
[T]he plaintiff claims the defendants, while acting under color of state
law, intentionally deprived the plaintiff of the plaintiff’s rights under the
Constitution of the United States. Specifically the plaintiff claims that while
6
the defendants were acting under color of authority of the State of Georgia
as correctional officers of the Phillips Correctional Institute, the defendants
did intentionally violate the plaintiff’s constitutional right to be free of cruel
and unusual punishment.
Under the 8th Amendment of the Constitution of the United States,
every person convicted of a crime or a criminal offense has the right not to
be subjected to cruel and unusual punishment. This includes, of course, the
right to not be assaulted or beaten without legal justification.
The law further provides that a person may sue in this Court for an
award of money damages against anyone who, under the color of any state
law or custom, intentionally violates the plaintiff’s rights under the
Constitution of the United States.
In order to prevail on this claim, the plaintiff must prove each of the
following facts by a preponderance of the evidence. First, that the
defendants intentionally committed acts that violated the plaintiff’s
constitutional right not to be subjected to cruel and usual [sic] punishment. .
..
The constitutional right to be free of cruel and unusual
punishment includes the right not to be subjected to excessive force
while being detained in custody by a law enforcement or corrections
officer.
On the other hand, not every push or shove, even if it later
seems unnecessary, will give rise to a constitutional violation, and an
officer always has the right and duty to use such reasonable force as is
necessary under the circumstances to maintain order and assure
compliance with prison regulations.
Whether or not any force used in this instance was excessive is
an issue for you to decide on the basis of whether such force, if any,
was applied in a good faith effort to maintain or restore discipline, or
whether it was used maliciously and sadistically to cause harm.
In making that decision, you should consider the amount of
force in relationship to the need presented, the motive of the officers,
7
the extent of the injury inflicted, and any effort made to temper the
severity of the force used.
Of course, when prison officials maliciously and sadistically
use force to cause harm, the result would be cruel and unusual
punishment regardless of the significance of the injury to the inmate.
The defendants contend these instructions were defective in several ways. In
considering their contentions, we keep in mind that it is a deferential standard of
review we apply to the district court’s jury instructions and special interrogatory
verdict forms. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1072 (11th Cir.
1996). As long as they “accurately reflect the law, the trial judge is given wide
discretion as to the style and wording employed.” United States v. Starke, 62 F.3d
1374, 1380 (11th Cir. 1995) (citing McElroy v. Firestone Tire & Rubber Co., 894
F.2d 1504, 1509 (11th Cir. 1990)). We examine whether the jury instructions,
considered as a whole, were sufficient “so that the jurors understood the issues and
were not misled.” Id. (quoting Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d
1560, 1569 (11th Cir. 1991)). We do not engage in word-by-word hairsplitting
when reviewing the instructions given at trial, because a “trial judge is given wide
discretion as to the style and wording employed in the instructions.” Carter v.
DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997).
1. Specific Intent
8
Defendants first contend that the district court’s instructions failed to inform
the jury that the defendants must have acted with specific intent before they could
be found liable for excessive use of force in violation of the Eighth Amendment.
They contend the jury should have been instructed that “[t]o establish an Eighth
Amendment claim for excessive force . . . [a plaintiff] must prove that force was
applied . . . maliciously and sadistically for the very purpose of causing harm.”
Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (citations and internal
marks omitted). They insist that the instructions given were ambiguous on this
point, allowing the jury to find them liable even if they had only negligently
injured Johnson in attempting to restrain him and defend themselves.
We disagree. The instructions told the jury that whether any force used
was excessive turned on whether that force “was applied in a good faith effort to
maintain or restore discipline, or whether it was used maliciously and sadistically
to cause harm.” The jury was told that Johnson claimed the defendants had
“intentionally deprived [him] of [his] rights under the Constitution,” specifically,
that they had “intentionally violate[d] [his] constitutional right to be free of cruel
and unusual punishment.” The instructions also said the law allows a person to
recover money damages against one who “intentionally violates [his or her] rights
under the Constitution,” and that in order to prevail on his claim, Johnson must
9
prove “that the defendants intentionally committed acts that violated [his]
constitutional right not to be subjected to cruel and usual [sic] punishment.” The
instructions were clear enough on the point that liability could be imposed only if
the jury believed that excessive force was applied with the requisite intent.
2. Factors Used in Determining if Force Was Applied in Good Faith
Or Maliciously and Sadistically
Next, the defendants contend that the district court failed to instruct the jury
on all of the factors essential to a determination of whether they had used force
maliciously and sadistically for the very purpose of causing harm. The district
court rejected the defendant’s proposed jury instruction, which provided:
In determining whether force was used maliciously and sadistically
for the purpose of causing harm, you should consider five essential
factors: 1) The extent of injury; 2) the need for application of force;
3) the relationship between that need and the amount of force used; 4)
any efforts made to temper the severity of a forceful response; and 5)
the extent of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of facts known to
them.
We have already quoted the instructions that were actually given on this
subject, which were taken substantially verbatim from the Eleventh Circuit pattern
instructions. The defendants contend that the instructions given differ greatly from
their proposed instructions, which they say were taken almost verbatim from our
Campbell opinion. They complain that the instruction given was more consistent
10
with a negligence claim than a constitutional claim, because it did not require the
jury to consider whether there was a need for force to subdue Johnson and the
threat to safety that Johnson posed.
Comparing the defendants’ proposed instructions on this subject with those
actually given, the closest thing to a substantive difference involves the fifth part of
the proposed instruction, dealing with Johnson’s threat to safety as reasonably
perceived by defendants. But the instructions the court gave stated that: “an
officer always has the right and duty to use such reasonable force as is necessary
under the circumstances to maintain order and assure compliance with prison
regulations.” The given instructions also informed the jury that the key issue was
whether the force used “was applied in a good faith effort to maintain and restore
discipline, or whether it was used maliciously and sadistically to cause harm,” and
that the jury “should consider the amount of force in relationship to the need
presented.” Force that was necessary to subdue Johnson and that was reasonable in
light of the threat to safety he posed would have been force “necessary under the
circumstances to maintain order and assure compliance with prison regulations,”
and it would not have been force “used maliciously and sadistically to cause
harm.” It follows that the instructions given were not defective in this respect.
3. Deference Given to Prison Officials in Maintaining Prison Security and
Presumption That They Properly Discharged Their Duties
11
The defendants’ final contention about the jury instructions involves our
statement in Campbell that prison officials are to be “accorded wide-ranging
deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain
institutional security.” 169 F.3d at 1374 (citation and internal marks omitted). The
district court denied an instruction requested by defendants that said:
I charge you that you may “presume that public officials have
properly discharged their official duties.” The burden is on the party
challenging their conduct to rebut this presumption. . . .
When the ever-present potential for violent confrontation and
conflagration at a prison ripens into actual unrest and conflict, the
prison’s internal security is a matter normally left to the discretion of
prison administrators. [P]reserving internal order and discipline are
essential goals that may require limitation on the rights of convicted
prisoners.
Prison officials confronted with a prison disturbance must
balance the threat unrest poses to inmates, prison workers,
administrators, visitors, and inmates themselves, against the harm
inmates may suffer if guards use force. Circumstances frequently
necessitate that these decisions are made in haste, under pressure, and
without the luxury of a second chance.
For these reasons, prison officials are given great deference in
the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to
maintain institutional security.
(citations and internal marks omitted).
12
The defendants’ position is that Johnson refused to follow their directions
and attacked an officer, and that their actions must be judged according to the
exigencies of the circumstances and not with 20/20 hindsight. Even if they applied
an excessive amount of force in restraining Johnson, they argue, what they did
must be evaluated in light of the need to maintain security and with a presumption
that they acted properly. They say that the failure to give their requested
instruction effectively reversed the burden of proof because it required the
defendants to prove that they had properly discharged their duties.
The district court, however, made it clear to the jury that the burden of
proving that the defendants had used excessive force in violation of the Eighth
Amendment rested on Johnson. The court told the jury:
In order to prevail on this claim, the plaintiff must prove each of the
following facts by a preponderance of the evidence. First, that the
defendants intentionally committed acts that violated the plaintiff’s
constitutional right not to be subjected to cruel and usual [sic]
punishment.
The defendants have cited no authority which requires that the jury be instructed
that prison officials should be presumed to have properly discharged their duties.
And we fail to see how the instruction which was given “leaves prison officials in
the position of having to prove that they properly discharged their duties,” as
defendants contend. To the contrary, the jury was told that the burden was on the
13
plaintiff to prove that the defendants had intentionally violated his constitutional
right not to be subjected to cruel and unusual punishment.
The instructions given also made clear that if the force was “applied in a
good faith effort to maintain or restore discipline,” no Eighth Amendment
violation had occurred. The jury was explicitly told that “an officer always has the
right and duty to use such reasonable force as is necessary under the circumstances
to maintain order and assure compliance with prison regulations.” There was no
error in this respect. We turn now to the issue involving the district court’s
decision not to submit to the jury the defendants’ special interrogatories.
B. THE SPECIAL INTERROGATORIES ISSUES
1. The Role of Special Jury Interrogatories in Connection
With a Qualified Immunity Defense
Because of the purpose served by the doctrine of qualified immunity, a valid
defense based upon it must be recognized as soon as possible, preferably at the
motion to dismiss or summary judgment stage of the litigation. See Saucier v.
Katz, ___ U.S. ___, 121 S. Ct. 2151, 2155-56 (2001) (“Where the defendant seeks
qualified immunity, a ruling on that issue should be made early in the proceedings
so that the costs and expenses of trial are avoided where the defense is
14
dispositive.”); Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991)
(per curiam) (“[W]e repeatedly have stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.”); Mitchell v. Forsyth, 472 U.S.
511, 526, 105 S. Ct. 2806, 2815 (1985) (stating that qualified immunity “is an
entitlement not to stand trial or face the other burdens of litigation”).
Where it is not evident from the allegations of the complaint alone that the
defendants are entitled to qualified immunity, the case will proceed to the summary
judgment stage, the most typical juncture at which defendants entitled to qualified
immunity are released from the threat of liability and the burden of further
litigation. See generally Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834 (1996)
(recognizing right to interlocutory appeal seriatim denial of motion to dismiss and
denial of summary judgment on qualified immunity grounds). Even at the
summary judgment stage, not all defendants entitled to the protection of the
qualified immunity defense will get it. The ones who should be given that
protection at the summary judgment stage are those who establish that there is no
genuine issue of material fact preventing them from being entitled to qualified
immunity. And that will include defendants in a case where there is some dispute
about the facts, but even viewing the evidence most favorably to the plaintiff the
law applicable to that set of facts was not already clearly enough settled to make
15
the defendants’ conduct clearly unlawful. But if the evidence at the summary
judgment stage, viewed in the light most favorable to the plaintiff, shows there are
facts that are inconsistent with qualified immunity being granted, the case and the
qualified immunity issue along with it will proceed to trial.
Defendants who are not successful with their qualified immunity defense
before trial can re-assert it at the end of the plaintiff’s case in a Rule 50(a) motion.
Fed. R. Civ. P. 50(a); Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir. 1996).
That type of motion will sometimes be denied because the same evidence that led
to the denial of the summary judgment motion usually will be included in the
evidence presented during the plaintiff’s case, although sometimes evidence that is
considered at the summary judgment stage may turn out not to be admissible at
trial. See generally Wright v. Southland Corp., 187 F.3d 1287, 1304 n. 21 (11th
Cir. 1999); McMillian v. Johnson, 88 F.3d 1554, 1584 - 85 (11th Cir. 1996).
Where there is no change in the evidence, the same evidentiary dispute that got the
plaintiff past a summary judgment motion asserting the qualified immunity defense
will usually get that plaintiff past a Rule 50(a) motion asserting the defense,
although the district court is free to change its mind. See Abel v. Dubberly, 210
F.3d 1334 (11th Cir. 2000)(collecting cases).
It is important to recognize, however, that a defendant is entitled to have any
16
evidentiary disputes upon which the qualified immunity defense turns decided by
the jury so that the court can apply the jury’s factual determinations to the law and
enter a post-trial decision on the defense. When the case goes to trial, the jury
itself decides the issues of historical fact that are determinative of the qualified
immunity defense, but the jury does not apply the law relating to qualified
immunity to those historical facts it finds; that is the court’s duty. Stone v.
Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992) (“The law is now clear, however,
that the defense of qualified immunity should be decided by the court, and should
not be submitted for decision by the jury.”); Ansley v. Heinrich, 925 F.2d 1339,
1348 (11th Cir. 1991) (“[O]nce the defense of qualified immunity has been denied
pretrial due to disputed issues of material facts, the jury should determine the
factual issues without any mention of qualified immunity.”).
A tool used to apportion the jury and court functions relating to qualified
immunity issues in cases that go to trial is special interrogatories to the jury.
“Qualified immunity is a legal issue to be decided by the court, and the jury
interrogatories should not even mention the term. Instead, the jury interrogatories
should be restricted to the who-what-when-where-why type of historical fact
issues.” Cottrell, 85 F.3d at 1488 (internal citations omitted). In a proper case, the
use of special jury interrogatories going to the qualified immunity defense is not
17
discretionary with the court. As we said in Cottrell, “[b]ecause a public official
who is put to trial is entitled to have the true facts underlying his qualified
immunity defense decided, a timely request for jury interrogatories directed toward
such factual issues should be granted.” Id. at 1487. In the same opinion, we
explained: “Denial of such a request would be error, because it would deprive the
defendant who is forced to trial of his right to have the factual issues underlying his
defense decided by the jury.” Id. at 1487-88; see also See Willingham v.
Loughnan, 261 F.3d 1178, 1184 n. 9 (11th Cir. 2001)(“[W]hen the question of
qualified immunity turns on specific questions of fact, the use of special
interrogatories can be very helpful to a judge in determining the legal question of
whether qualified immunity applies.”) But the failure to give requested jury
interrogatories may not be error, or if error may be harmless, where the jury verdict
itself, viewed in the light of the jury instructions, and any interrogatories that were
answered by the jury, indicate without doubt what the answers to the refused
interrogatories would have been, or make the answers to the refused interrogatories
irrelevant to the qualified immunity defense. That is the conclusion we reach in
this case.
To explain our conclusion, we begin by setting out the interrogatories that
the court actually gave the jury, and the jury’s answers to them. Next we will
18
discuss the applicable law and set out the special interrogatories that the defendants
requested and the court refused to submit to the jury. And then we will explain why
the failure to submit those interrogatories in this particular case did not matter.
2. The Verdict Form and Special Interrogatories Actually Used
Having rejected the defendants’ request for special interrogatories going to
the factual issues upon which their qualified immunity defense turned, the court
submitted interrogatories of its own to the jury on the merits issue. Those
interrogatories, and the jury’s answers to them, were as follows:
Do you find from a preponderance of the evidence:
1. That the Defendants intentionally committed acts that violated the
Plaintiff’s constitutional right not to be subjected to cruel and unusual
punishment?
Answer Yes or No: Brian Breeden Yes
Rudolph Gomez Yes
Eduardo Luciano No
Note: If you answered No to Question 1 as to each
Defendant, you need not answer the
remaining questions.
2. That the Defendants’ acts were the proximate or legal cause of
damages sustained by the Plaintiff?
Answer Yes or No Yes
3. That the Plaintiff should be awarded damages to compensate
19
for physical as well as emotional pain and mental anguish?
Answer Yes or No Yes
If you answered Yes,
in what amount? $25,000 Breeden & Gomez
4. That the Defendants acted with malice or reckless indifference
to the Plaintiff’s federally protected rights and that punitive
damages should be assessed against the Defendants?
Answer Yes or No Yes
If you answered Yes, Brian Breeden $30,000
in what amount?
Indicate separate Rudolph Gomez $15,000
amounts as to each
defendant. Eduardo Luciano $0
SO SAY WE ALL.
Those interrogatories are the Eleventh Circuit pattern ones for eliciting a
verdict on the merits of a prisoner’s excessive force claim. See Eleventh Circuit
Pattern Jury Instructions (Civil) § 2.3.1 (West 2000). The answers the jury gave to
them establish that the jury found Breeden and Gomez had intentionally used
enough force to cause Johnson damage including physical pain as well as some
emotional pain and mental anguish. The jury’s answers also establish that the
physical and emotional pain and the mental anguish Johnson suffered as a result of
Breeden and Gomez’s intentional, malicious, and sadistic acts was enough to
justify $25,000 in compensatory damages.
20
The jury’s answer to interrogatory no. 4 found the existence of either
reckless indifference or malice. Because that interrogatory did not ask the jury to
specify whether it was with reckless indifference or with malice that Breeden and
Gomez acted, the jury’s answer did not specify which of the two it found. None of
the interrogatories the court submitted to the jury asked it to state explicitly
whether the force the defendants used was applied sadistically and maliciously to
cause harm. However, in its instructions the court told the jury that: “Whether or
not any force used in this instance was excessive is an issue for you to decide on
the basis of whether such force, if any, was applied in a good faith effort to
maintain or restore discipline, or whether it was used maliciously and sadistically
to cause harm.” Reading that instruction and the jury interrogatories and verdict
together, the inference is inescapable that the jury implicitly found the defendants
had acted with malice and sadistically to cause harm. After all, we must presume
that juries follow their instructions. See Weeks v. Angelone, 120 S.Ct. 727, 733
(2000); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707
(1987)(referring to “the almost invariable assumption of the law that jurors follow
their instructions, which we have applied in many varying contexts”)(internal
citation omitted).
Therefore, the jury verdict and its answers to the submitted interrogatories,
21
when read against the court’s instructions, establish that Breeden and Gomez
intentionally, maliciously, and sadistically inflicted pain and injuries upon
Johnson, including physical and emotional pain and mental anguish, in an amount
sufficient to justify $25,000 in compensatory damages.
3. The Applicable Law
McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), involved a claim by a
pretrial detainee plaintiff who had been transferred from a local jail to death row
before he was tried on capital murder charges. The Due Process Clause of the
Fourteenth Amendment prohibits punishment before conviction, and so if the
defendants who transferred the plaintiff to death row did so for the purpose of
punishing him (instead of for his own safety), they violated his constitutional
rights. Id. at 1564. The district court concluded that there was a genuine issue of
material fact as to the defendants’ purpose, and accordingly denied their motion for
summary judgment on the merits. Id. at 1564 - 65. The district court also denied
the defendants’ motion for summary judgment on qualified immunity grounds.
In McMillian we affirmed the denial of summary judgment on qualified
immunity grounds, holding that prior decisions had clearly established the law that
pretrial detention amounting to punishment violated due process, and we held that
even though those prior decisions had involved different circumstances. Id. at
22
1565 - 66. They “involved conditions such as double-bunking, mail restrictions,
search policies, overcrowding, unsanitary food, and lack of adequate medical
services.” Id. at 1565 (internal citation omitted). There was no prior decision
involving detention on death row instead of in a pre-trail facility. Nonetheless, we
explained that: “Bell [v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)]’s
prohibition on any pretrial punishment, defined to include conditions imposed with
an intent to punish should have made it clear to all reasonable officials in [the
defendants’] place that holding McMillian on death row to punish him before he
was tried violated McMillian’s due process rights.” Id. at 1565 (emphasis in
original). As a result, the defendants had violated McMillian’s clearly established
constitutional rights, if they acted with the purpose to punish him.
The defendants in McMillian contended that, for qualified immunity
purposes, we should ignore their subjective purpose or motivation and only decide
whether a reasonable official in the defendants’ circumstances and acting without a
bad purpose (a purpose to punish) could have believed that it was lawful to transfer
McMillian to death row before trial. Id. at 1566. In rejecting that contention, we
said this:
Our precedent compels us to reject [the defendant’s]
contention. Like every other circuit that has considered the issue, we
have held that intent or motivation may not be ignored when intent or
motivation is an essential element of the underlying constitutional
23
violation. Edwards v. Wallace Community College, 49 F.3d 1517,
1524 (11th Cir.1995). A purpose to punish is an essential element of
a pretrial punishment claim under the Fourteenth Amendment. Hence,
[the defendants’] purpose must be considered in this case, just as
discriminatory intent must be considered when an equal protection
violation is asserted, see Ratliff v. DeKalb County, Ga., 62 F.3d 338,
341 (11th Cir.1995); Edwards, 49 F.3d at 1524, and intent or
motivation must be considered when certain First Amendment claims
are asserted, see, e.g., Tompkins, 26 F.3d at 607 (alleged retaliatory
transfer of government employee); Losavio, 847 F.2d at 648 (alleged
interference with speech); Musso, 836 F.2d at 743 (alleged
content-based censorship at school board meeting). When [the
defendants’] purpose to punish is considered, there is no question that
their alleged conduct violated clearly established law.
Id.
The same is true in this case where the subjective element of the
constitutional violation is that the force was used and the injury inflicted not in a
good faith effort to maintain and restore discipline, but maliciously and sadistically
for the very purpose of causing harm to the plaintiff. Acting with that specific
malevolent intent to cause harm, at least where (as here) more than de minimis
injury results, violates the Cruel and Unusual Punishment Clause of the Eighth
Amendment, and that was clearly established law at the time Breeden and Gomez
entered Johnson’s cell on August 22, 1995. See Hudson v. McMillian, 503 U.S. 1,
112 S.Ct. 995 (1992); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986).
We are aware of Saucier v. Katz, 121 S.Ct. 2151 (2001), but think that case
24
is distinguishable, because it did not involve a constitutional tort with a subjective
intent element. Instead, Saucier involved a Fourth Amendment claim of use of
excessive force against an arrestee, and such claims are purely objective. They
turn solely on the objective reasonableness of the amount of force used in the
circumstances, regardless of the intent or other subjective state of mind of the
defendant officer. See Graham v. M.S. Connor, 490 U.S. 386, 395-98, 109 S.Ct.
1865, 1871-72 (1989). It makes perfect sense to conclude, as the Supreme Court
did in Saucier, that with such claims the merits issue and the qualified immunity
issue are distinct, so that the existence of a valid Fourth Amendment excessive
force claim is not inconsistent with qualified immunity. In other words, a
defendant officer could use force in making an arrest that is later judged to be
excessive enough that it violates the Fourth Amendment, but if prior decisions did
not clearly establish that the use of that amount of force in those circumstances was
constitutionally excessive, the defendant officer would be entitled to qualified
immunity. That is what Saucier holds.
It is different with claims arising from the infliction of excessive force on a
prisoner in violation of the Eighth Amendment Cruel and Unusual Punishment
Clause. In order to have a valid claim on the merits of excessive force in violation
of that constitutional provision, the excessive force must have been sadistically
25
and maliciously applied for the very purpose of causing harm. Equally important,
it is clearly established that all infliction of excessive force on a prisoner
sadistically and maliciously for the very purpose of causing harm and which does
cause harm violates the Cruel and Unusual Punishment Clause. So, where this
type of constitutional violation is established there is no room for qualified
immunity. It is not just that this constitutional tort involves a subjective element, it
is that the subjective element required to establish it is so extreme that every
conceivable set of circumstances in which this constitutional violation occurs is
clearly established to be a violation of the Constitution by the Supreme Court
decisions in Hudson and Whitley. This is a different situation entirely from the
one in Saucier , ___ U.S. at ___, 121 S. Ct. at 2160, where the Supreme Court said
that, “neither respondent nor the Court of Appeals has identified any case
demonstrating a clearly established rule prohibiting the officer from acting as he
did, nor are we aware of any such rule.”
With this applicable law in mind, we turn now to the defendants’ requested
special interrogatories which the district court declined to submit to the jury.
4. The Special Jury Interrogatories the Defendants Requested
The defendants requested that the following special interrogatories be given
to the jury so that the district court could revisit the qualified immunity defense
26
after the verdict was returned:
1. Prior to entering the cell in D Building, did Plaintiff verbally
abuse any of the Defendants?
2. Do you find that it was necessary for any of the Defendants to
escort Plaintiff into his cell?
3. Did any of the Defendants instruct Plaintiff to sit on the bed
until they exited the cell?
4. Did Plaintiff get up off the bed contrary to the instructions
given to him?
5. Did Plaintiff deliberately strike Defendant Breeden?
6. Do you find that force by any of the Defendants was necessary
to subdue Plaintiff?
7. Did Plaintiff resist any of the Defendants as they attempted to
subdue him?
8. Did Plaintiff intentionally strike any of the Defendants during
this altercation?
9. Did Defendant Sergeant Breeden use excessive force against
Plaintiff?
(a) If yes to above, was the force used malicious and sadistic, done
for the very purpose of causing the Plaintiff harm?
10. Did Defendant Officer Gomez use excessive force against
Plaintiff?
(a) If yes to above, was the force used malicious and sadistic, and
done for the very purpose of causing the Plaintiff harm?
11. Did Defendant Officer Luciano use excessive force against
27
Plaintiff?
(a) If yes to above, was the force used malicious and sadistic, and
done for the very purpose of causing the Plaintiff harm?
12. Was Plaintiff injured during this altercation?
(a) If yes, what injuries did Plaintiff sustain as a result of this
altercation? (please list)
13. If you find that Plaintiff suffered a laceration (cut) to his head above
his left eye, was that injury caused by falling and hitting the heating
unit?
14. If you find that Plaintiff suffered a laceration (cut) to his head
above his left eye, was that injury caused by any Defendant
striking the Plaintiff?
(a) If yes, which Defendant(s)?
(b) If yes, with what kind of object/device?
15. Were any of the injuries sustained by Plaintiff the result of excessive
force? If so, which ones?
Obviously, requested interrogatory no. 11 is irrelevant because it involved a
different defendant, one who received a jury verdict in his favor. Requested
interrogatory nos. 6, 9 and 10, 12, and 15 are explicitly answered by the jury’s
verdict and its answers to the interrogatories that the court did submit. Requested
interrogatories 1 - 5 and 7- 8 go to the circumstances that preceded the defendants’
use of excessive force. Preceding and attendant circumstances are relevant in any
28
excessive force case, but to the extent of their relevance the answers to those
requested interrogatories are implicit in the jury’s verdict and its answers to the
submitted interrogatories; to the extent they are not covered by the verdict and
answers to the submitted interrogatories, the answers to the submitted
interrogatories are irrelevant.
In other words, what force is excessive will depend upon the circumstances
in which it is administered, but the jury in this case was instructed about that, and it
found that the force used in this case was, in view of the circumstances, excessive.
The jury also found that the force used was not administered to maintain or restore
order or discipline but instead was inflicted maliciously and sadistically for the
purpose of causing harm. No preceding circumstances could have justified
excessive force administered for that specific purpose, at least not where it resulted
in significant injury, which the jury found the force in this case did cause.
Requested interrogatories no. 13 and 14 go to the injuries Johnson suffered,
but in answer to the interrogatories that were submitted the jury found that the
excessive force Breeden and Gomez inflicted caused Johnson to suffer $25,000
worth of physical pain as well as emotional pain and mental anguish. To the
extent, if any, that the answers to the requested interrogatories would have gone
beyond those findings, they are not important to resolution of the qualified
29
immunity issue.
In summary, given the jury’s verdict, when read in light of the instructions,
and its findings in response to the submitted interrogatories, it was not an abuse of
discretion for the district court to refuse to submit the defendants’ requested special
interrogatories. The reason is that the answer to each requested special
interrogatory was either covered by the verdict and jury findings, or it was
irrelevant to the qualified immunity issue in light of the verdict and jury findings.
Having said that, we remind district courts that special jury interrogatories
can play an important and even essential role in the proper disposition of a
qualified immunity defense. Although the refusal to give the requested jury
interrogatories was not reversible error in view of the particular circumstances of
this case, including the nature of the constitutional violation claimed, the jury
instructions, and the jury’s answers to the interrogatories that were submitted, it
will not always be so. Sometimes it will be reversible error not to submit requested
jury interrogatories that will aid the district court in properly deciding a qualified
immunity issue that survives the jury’s verdict on the merits. For that reason,
courts should proceed with caution before denying requested interrogatories that
go to the factual circumstances of a case in which a qualified immunity defense has
been asserted.
30
C. PUNITIVE DAMAGES
The defendants’ next contention is that the district court erred by awarding
punitive damages to Johnson. They argue that under the Prison Litigation Reform
Act of 1996 (“PLRA”), punitive damages are a form of “prospective relief” which
cannot be allowed in the circumstances of this case.
The PLRA provides strict limitations on the availability of “prospective
relief:”
Prospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the
Federal right of a particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the court finds that such
relief is narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right. The court shall
give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A).
Johnson responds that the limitations on prospective relief under §
3626(a)(1)(A) are not applicable to his § 1983 action because it is not a “civil
action with respect to prison conditions.” That term is defined as follows:
[T]he term “civil action with respect to prison conditions” means any
civil proceeding arising under Federal law with respect to the
conditions of confinement or the effects of actions by government
officials on the lives of persons confined in prison, but does not
include habeas corpus proceedings challenging the fact or duration of
confinement in prison.
31
18 U.S.C. § 3626(g)(2). Johnson’s § 1983 action is a “civil action” within the
meaning of that provision; the issue, then, is whether excessive force is a “prison
condition” for purposes of § 3626(g)(2).
In Higginbottom v. Carter, 223 F.3d 1259 (11th Cir. 2000), we examined
whether an excessive force claim was subject to the “exhaustion requirements” of
the Prison Litigation Reform Act of 1995 (“PRLA”). The statute at issue provided
that “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Because that exhaustion provision
itself does not provide a definition of the term “prison conditions,” we looked to
the definition contained in 18 U.S.C. § 3626(g)(2), the statutory provision at issue
in this case. Following decisions of the Sixth and Third Circuits, see Freeman v.
Francis, 196 F.3d 641, 643-44 (6th Cir. 1999); Booth v. Churner, 206 F.3d 289 (3d
Cir. 2000), aff’d on other grounds, 531 U.S. 731, 121 S. Ct. 1819 (2001), we held
that the term “prison conditions,” as used in 42 U.S.C. § 1997e(a), includes
excessive force claims because the term “prison conditions” as it is used in 18
U.S.C. § 3626(g)(2) includes such claims. Higginbottom, 223 F.3d at 1260-61; see
also Freeman, 196 F.3d at 643 (“It is generally recognized that when Congress
32
uses the same language in two different places in the same statute [the PRLA], the
words are usually read to mean the same thing in both places.”) (citations omitted);
Booth, 206 F.3d at 294 (same).3
Thus, an essential premise of our holding in the Higginbottom case was that
excessive force claims are “prison conditions” claims for purposes of §
3626(g)(2). We reiterate that holding here. It follows that the limitations on
prospective relief contained in § 3626(a)(1)(A) are applicable to Johnson’s § 1983
action because it is a “civil action with respect to prison conditions.”
Johnson next argues that the limitations on prospective relief under §
3626(a)(1)(A) do not limit the award of punitive damages, because punitive
damages are not “prospective relief.” “Prospective relief” is defined in the statute
as “all relief other than compensatory monetary damages.”4 18 U.S.C. 3626(g)(7).
The plain language of that definition provision is clear, and where the statutory
language provides an explicit definition we apply it even if it differs from the
3
Judge Noonan dissented in the Booth case on the question of whether “prison
conditions” embraces an assault on a prisoner, 206 F.3d at 300 - 03 (Noonan, J., concurring in
part and dissenting in part), and his dissenting position was followed in Nussel v. Willette, 224
F.3d 95 (2d Cir. 2000). Nonetheless, sitting as a member of this circuit he feels compelled to
follow Eleventh Circuit precedent on the point. See Cohen v. Office Depot, Inc., 204 f.3d 1069,
1076 (11th Cir. 2000)(later panel bound by holding of an earlier one regardless of whether later
panel’s members believe that holding is correct).
4
"Relief" is defined expansively as "all relief in any form that may be granted or
approved by the court, and includes consent decrees but does not include private settlements." 18
U.S.C. § 3626(g)(9).
33
term’s ordinary meaning. Stenberg v. Carhart, 530 U.S. 914, 942, 120 S.Ct. 2597,
2615 (2000). Congress has told us that all relief other than compensatory
monetary damages is “prospective relief.” Punitive damages are relief other than
compensatory monetary damages. Therefore, punitive damages are prospective
relief. Cf. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 934 (11th Cir. 2000)
(“Punitive damages are generally available for willful or intentional violations of a
common law or statutory duty, and their purpose is to punish and deter the
wrongdoer rather than to compensate the aggrieved party. Therefore, punitive
damages would be out of place in a statutory provision aimed at making the
plaintiff whole.”).
Section 3626(a)(1)(A) provides in its opening sentence that any prospective
relief “shall extend no further than necessary to correct the violation of the Federal
right of a particular plaintiff or plaintiffs,” and then goes on to provide that
prospective relief must not be granted “unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of
the Federal right.” Because Congress has provided that punitive damages are
prospective relief, we must give the requirements of § 3626(a)(1)(A) some
meaning in the context of punitive damages. We think those requirements mean
34
that a punitive damages award must be no larger than reasonably necessary to deter
the kind of violations of the federal right that occurred in the case. They also
mean that such awards should be imposed against no more defendants than
necessary to serve that deterrent function and that they are the least intrusive way
of doing so. Many factors may enter into that determination. For example, the
number of excessive force violations an individual defendant or institution has had
might affect whether punitive damages were necessary, and if so, the amount
required to deter future violations. After considering all the facts and
circumstances, the district court in this case should have determined whether it
was reasonably necessary that Breeden be ordered to pay $30,000 and that Gomez
be ordered to pay $15,000 (beyond the amount of the compensatory damages) in
order to deter future Eighth Amendment excessive force violations by them or
others at this institution. We cannot tell whether it did.
In its order denying the defendants’ motion for judgment as a matter of law,
or, in the alternative, for a new trial, the district court assumed for the sake of
argument that punitive damages were a form of prospective relief, and stated
without elaboration that the jury’s award of punitive damages was “narrowly
drawn, extends no further than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct the violation of the
35
Federal right.” This conclusory language was not enough to satisfy the
requirements of 18 U.S.C. § 3626 (a)(1)(A). In Cason v. Seckinger, 231 F.3d 777,
784-85 (11th Cir. 2000), we considered the requirement in § 3626(b)(3) of the
PLRA that prospective relief terminate unless a judge makes findings that it
“extends no further than necessary to correct the violation of the Federal right, and
that the prospective relief is narrowly drawn and the least intrusive means to
correct the violation.” We held that statutory provision, which is closely analogous
to § 3626(a)(1)(A), requires more than a conclusory statement couched in the
statutory language. The same applies to the findings mandated by § 3626(a)(1)(A).
While there may not be much to say about the factors that a district court is
required to consider, the court should discuss those factors and enter findings that
are as specific to the case as the circumstances permit.
D. ATTORNEY’S FEES AND COSTS
As the prevailing party in this § 1983 action, Johnson moved under 42
U.S.C. § 1988 for an award of attorney’s fees and expenses.5 The district court
5
Section 1988 provides, in relevant part:
In any action or proceeding to enforce a provision of [42 U.S.C. § 1988], the
court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs . . .
42 U.S.C. § 1988(b).
36
granted the motion awarding Johnson $73,137.006 in attorney’s fees and
$12,131.80 in costs and expenses. The defendants contend that the district court
erred by failing to properly limit the award to fees and expenses “directly and
reasonably incurred in proving an actual violation of the plaintiff’s rights,” as
required by 42 U.S.C. § 1997e(d)(1)(A).7
We review an award of attorney’s fees by the district court only for an abuse
of discretion. See Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389
(11th Cir.1997). "An abuse of discretion occurs if the judge fails to apply the
proper legal standard or to follow proper procedures in making the determination,
or bases an award upon findings of fact that are clearly erroneous." In re
Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.1997) (internal
citation and quotation omitted).
6
The district court reduced that award, however, pursuant to 42 U.S.C. § 1997e(d)(2), by
$17,500.
7
Section 1997e(d)(1)(A) provides, in relevant part:
d) Attorney's fees
(1) In any action brought by a prisoner who is confined to any jail, prison, or
other correctional facility, in which attorney's fees are authorized under section
1988 of this title, such fees shall not be awarded, except to the extent that--
(A) the fee was directly and reasonably incurred in proving an actual violation of
the plaintiff's rights protected by a statute pursuant to which a fee may be awarded
under section 1988 of this title . . .
42 U.S.C. § 1997e(d)(1)(A).
37
The district court correctly noted that § 1997e(d)(1)(A) required it to limit
the amount of fees and expenses awarded to a prisoner under § 1988 to those
which are “directly and reasonably incurred in proving an actual violation of the
plaintiff’s rights.” 42 U.S.C. § 1997e(d)(1)(A). But it then stated that “[i]n doing
so, the court is guided by the common lodestar method of multiplying a reasonable
hourly rate by the hours reasonably expended on the case.” (emphasis added)
That is not the proper legal standard, because it ignores the limitations set forth in
§ 1997e(d)(1)(A). See Walker v. Bain, 65 F.Supp.2d 591, 596 (E.D. Mich. 1999)
(“Although the lodestar method provides the correct approach for determining a
reasonable attorney fee under § 1988 generally, the amount which may be awarded
in a case brought by a prisoner is now capped. Specifically, both the availability of
fees and their amount have been restricted by . . . [42 U.S.C. § 1997e(d)]”).
Johnson submitted documentation indicating that his attorneys spent a total
of 1,029.1 hours on “his case.” The district court found that the hours claimed
were “reasonable” and awarded attorney’s fees for all 1,029.1 hours. However, the
district court failed to restrict the award, as required by § 1997e(d)(1)(A), to only
those hours directly and reasonably incurred in proving a violation of Johnson’s
rights under the Eighth Amendment by Breeden and Gomez, the only claim and
defendants against whom he was successful.
38
Instead, the district court awarded payment for time spent on Johnson’s
unsuccessful claims (claims where Johnson did not “prov[e] an actual violation of
the plaintiff’s rights protected by a statute”). Included in the category of
unsuccessful claims are all of the claims Johnson brought against Harrison, Parker,
and Evans, all of his due process and malicious prosecution claims, and all of his
claims against Luciano. There is no finding in the record about, and no indication
that an inquiry was made concerning, whether the work done and expenses
incurred on the unsuccessful claims were “directly and reasonably incurred” in
proving that Breeden and Gomez violated Johnson’s Eighth Amendment rights, the
only claim Johnson proved. Johnson is only entitled to payment for work and
reimbursement of expenses that meet that standard. In reaching this holding, we do
not foreclose the possibility that some of the same time spent and expenses
incurred in connection with defendants and claims on which Johnson was not
successful also may have been directly and reasonably spent and incurred in
proving the claims against defendants for which he was successful. For example,
some of the time spent preparing a case against Defendant Luciano might have
been reasonably spent preparing a case against Defendants Breeden and Gomez if
Luciano had never been in the case. If so, Johnson is entitled to be paid for the
39
that time.8
Therefore, we agree with the defendants that § 1997e(d)(1)(A) compels the
conclusion that the district court abused its discretion when it awarded attorney’s
fees and expenses not directly and reasonably incurred in successfully proving the
Eighth Amendment excessive force claim against Breeden and Gomez. We will
remand the case to the district court so that it can re-calculate the award of attorney
fees and expenses in compliance with that provision.9
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment insofar as it awards
Johnson compensatory damages, but we VACATE the award of punitive damages
and the award of attorneys fees and expenses, and REMAND the case for further
proceedings consistent with this opinion.
8
In addition to seeking payment for work done in this federal litigation on his
unsuccessful claims, Johnson also sought and was paid for some work done in connection with
state court litigation between the parties that preceded this federal court case. In his motion for
attorney’s fees, Johnson indicated that the only state court work for which he was seeking
attorney’s fees and expenses was work “relevant to both cases.” Relevance to the federal case is
not the standard. The work must be “directly and reasonably incurred” in proving the violation
that was established in federal court.
9
Given our disposition of the attorney’s fees issue on this ground, we need not examine at
this time the other errors in the award alleged by defendants.
40