Butler v. Dowd

BRIGHT, Senior Circuit Judge,

with whom RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, McMILLIAN, WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, join, concurring in part and dissenting in part.

We concur in the rejection of the cross-appeal by Denis Dowd, Superintendent of the Farmington Correctional Center (FCC). However, we would reverse on the appeal by Frank A. Ledferd,. David Corder, Hershel Marsh and Jay M. French [hereinafter plaintiffs-appellants] and grant them a new trial on damages. Inasmuch as the Court affirms the nominal damages award, we approve of the award of attorneys’ fees made by the trial court.

The plaintiffs-appellants in this case are prisoners who bring this § 1983 action, seeking money damages and equitable relief against former Superintendent Dowd and four members of his staff for their failure to protect them from the savage and heinous acts of homosexual rape in *680prison. The jury, although finding in favor of plaintiffs-appellants on liability, awarded each only $1.00.

By a slim seven to six vote, this court affirms the trial court’s refusal to grant a new trial on damages.1 The Court, in our view, engages in speculation, not supported by the record, the instructions or the parties’ contentions in their arguments to the jury, in approving a verdict denying plaintiffs-appellants actual damages for the rapes.

We dissenters, following well-reasoned policy developed by courts in this circuit relating to control of prison brutality, believe a shocking injustice has been done in this case; that no justification exists for the jury’s award denying the plaintiffs-appellants actual damages. Consequently, we would remand for a new trial on damages alone and instruct the trial court to consider injunctive relief.

The principal issue on appeal is whether the trial court erred in denying the plaintiffs-appellants’ motion for a new trial. In our opinion, it did. We differ here with the principal opinion2 because we feel damages resulting from a rape — any rape — can never be valued at only $1.00, particularly in this case, where defendant Dowd at trial never denied the rapes occurred, but asserted they were not the warden’s responsibility.

I.

This circuit is not unfamiliar with prison rape and the attending responsibilities prison administrators - have to curb such con-duct. In 1969, then Chief District Judge J. Smith Henley ruled that cruel and unusual conditions existed at the Cummins Farm Arkansas Penitentiary. , Commenting on the problem of sexual assaults at the prison, he wrote:

An inmate who is physically attractive to other men may be, and frequently is, raped in the barracks by other inmates. No one comes to his assistance; the floor walkers do not interfere; the trusties [prisoners entrusted to guard other prisoners] look on with indifference or satisfaction; the two free world people on duty appear to be helpless.
Inmates who are passively homosexual are called “punks.” There are varieties of “punks,” including the “pressure punks” who will engage in homosexual acts if more or less pressure is put upon them to induce or compel them to do so.
In an effort to protect young men from sexual assaults, they are generally assigned to the two rows of cots nearest the front bars of the barracks, which portion of the barracks is called “punk row.” It appears, however, that if would-be assailants really want a young man, his being assigned to the “row” is no real protection to him.
To the extent that consensual homosexual acts take place in the barracks, they are not carried out in any kind of privacy but in the full sight and hearing of all of the other inmates.
Sexual assaults, fights, and stabbings in the barracks put some inmates in such fear that it is not unusual for them to come to the front of the barracks and cling to the bars all night. That practice, which is of doubtful value is called “coming to the bars” or “grabbing the bars.” Clearly, a man who has clung to the bars all night is in poor condition to work the next day.

Holt v. Sarver, 309 F.Supp. 362, 377 (E.D.Ark.1970) (Holt II), aff'd, 442 F.2d *681304 (8th Cir.1971).3 After reviewing the conditions at the penitentiary, Judge Henley observed:

For the ordinary convict a sentence to the Arkansas Penitentiary today amounts to a banishment from civilized society to a dark and evil world completely alien to the free world, a world that is administered by criminals under unwritten rules and customs completely foreign to free world culture.

Id. at 381. Judge Henley ordered injunc-tive relief to rectify the unconstitutional conditions, concluding:

Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed, upon what Respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.

Id. at 385.4

Fifteen years later, Judge Ross in Martin v. White, 742 F.2d 469 (8th Cir.1984) addressed the problem of sexual assaults at the Missouri Training Center, stating:

In this case we deal with a subject matter which has become a national disgrace in some of our nation’s prisons. We speak, of course, of the inability or unwillingness of some prison administrators to take the necessary steps to protect their prisoners from sexual and physical assaults by other inmates.

Id. at 470. Judge Ross concluded: “Subjecting prisoners to violent attacks or sexual assaults, or constant fear of such violence, shocks modern sensibilities and serves no legitimate penological purpose. We reject as below any level of decency the theory that sexual or other assaults are a legitimate part of a prisoner’s punishment.” Id. at 474 (citations omitted).

II.

Here, the jury’s verdict established that Dowd operated FCC in reckless disregard for the prisoners’ constitutional rights by failing to take proper steps to prevent sexual assaults when he knew such assaults were occurring. The evidence is summarized in the principal opinion. Ante, at 663-69. We also adopt the statement of facts from the panel opinion. Ledferd v. Dowd, Nos. 90-2090, 90-2091, slip op. at 3-8 (8th Cir. Feb. 6, 1992), vacated on grant of reh’g en banc (1992). The evidence on liability must be taken favorably to support the determination in favor of the plaintiffs-appellants on liability. Each unquestionably suffered physical and emotional damages as a result of the rapes caused by the defendant’s recklessness. Indeed, it is conceded in the principal opinion that at a minimum:

[t]he jury did find that the defendant’s unconstitutional actions were the cause in fact of at least one of the attacks on each plaintiff. The jury could, however, have found the defendant’s unconstitutional actions were not the cause in fact of many of the plaintiffs’ injuries and still have returned a verdict for plaintiffs.

Ante, at 670. However, for some reason the jury decided that none of the plaintiffs-appellants should obtain actual' damages.

Juries usually award nominal damages in cases where some question exists about whether a prisoner suffered any injury as a result of a constitutional violation, such as a denial of procedural due process. E.g., Graham v. Baughman, 772 F.2d 441, 447 (8th Cir.1985). However, in eighth amendment cases a jury must find that a defen*682dant willfully or recklessly inflicted pain on the plaintiff to find for the plaintiff at all. See Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). Upon a finding of an eighth amendment violation, a plaintiff automatically receives at least nominal damages. Cowans v. Wyrick, 862 F.2d 697, 700 (8th Cir.1988). In such cases, a jury may award only nominal damages if it cannot place a monetary value on the victim’s injuries. Id. at 700. This court commented in Cowans that nominal damages are, in effect, impossible in prison assault cases, for the injuries suffered in those cases are “too obvious to address.” Id. at 700 (citing as examples Vosburg v. Solem, 845 F.2d 763 (8th Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 313, 102 L.Ed.2d 332 (1988); Martin v. White, 742 F.2d 469 (8th Cir.1984)). A reasonable explanation for the jury awarding only nominal damages in this case is that the jury concluded it did not want to give tax dollars as a damages award to persons in prison. The failure to award damages, in our opinion, constitutes a miscarriage of justice.

III.

Before addressing the viewpoint of damages in the principal opinion of the Court, we think it appropriate to reiterate important undisputed evidence in the record. The record is replete with evidence the plaintiffs-appellants suffered terror and tremendous pain as a result of the rapes. Appellant Hershel Marsh, a nineteen-year-old, first-time offender testified that, within a couple of hours of arriving at FCC, inmate William Stapleton told him he was going to “fuck” him. Stapleton raped Marsh the following night and repeatedly thereafter. Marsh testified that, as a result of the rapes, he suffered from ulcers and lack of sleep, for which a prison psychiatrist prescribed sleeping pills. Inmate Iv-ron Butler testified he observed Marsh vomiting numerous times after being raped by Stapleton.

Appellant Frank A. Ledferd, an eighteen-year-old, first-time offender, testified that, within two weeks of his arrival at FCC, he was raped by inmate Rob Johnson. Led-ferd immediately sought protective custody, which prison officials denied because Ledferd refused to implicate Johnson. Shortly thereafter, Ledferd sought to straighten things out on his own and was advised by his cellmate to talk with Staple-ton. Ledferd went to Stapleton’s cell, where Stapleton immediately closed the door shut, told him to face the wall when the guard walked by, and then proceeded to rape him. Ledferd testified he suffered anal bleeding for a week and a half after Stapleton raped him. He also stated he continues to suffer torment and depression as a result of the attacks.

Appellant David Corder, a twenty-three-year-old, first-time offender, testified that Stapleton also raped him. Corder testified that, as a result of the rape, he had difficulty defecating and urinating, and lost his appetite. Corder also testified he suffered from headaches after Stapleton struck him on the head during an assault.

Appellant Jay M. French was twenty-one years old and, although he had been in jail, he had never been in prison before entering FCC. French testified inmate Darryl Saddler raped him and inmate George Anderson both raped and beat him. Inmate Doyle Kirkman testified French broke down in tears when French later described the ordeal to him.

The rationale in the principal opinion for denying actual damages is well capsulated in the contention “[t]he jury could, however, have found the defendant’s unconstitutional actions were not the cause in fact of many of the plaintiffs’ injuries and still have returned a verdict for plaintiffs.” Ante, at 670. To support such a theory, a scenario is surmised in which the jury might have selectively accepted a “this” fact and rejected a “that” fact from the testimony.

We note the obvious incredibility of the conclusions in the principal opinion on damages when we examine the record against the backdrop of counsel’s presentation of arguments to the jury. First, plaintiffs-appellants’ counsel stated that nobody, not even the defendant, denied the plaintiffs-*683appellants were sexually attacked by other prisoners. Trial Tr., Vol. V p. 15. Second, Dowd’s counsel did not challenge that assertion. At trial, Dowd’s attorney stated: “Denis Dowd ... doesn’t know if they were sexually assaulted.” Trial Tr., Vol. V p. 24. Dowd’s defense asserted a denial of any responsibility for the rapes.5 Third, defendant’s counsel recognized that plaintiffs-appellants’ case rested on

The Victim Profile, The Attacker Profile. You heard their testimony that we’re small, the attackers are big. We’re white, the attackers are black. We’re young, they were not. And we’re in jail for armed robbery, sodomy, child abuse, deviate sexual assault, and burglary. These people were violent. You shouldn’t have put us in with these violent people, because they would attack us and you should have known that.

Trial Tr., Vol. V p. 30. Counsel added, quoting denial by Dowd, “I don’t believe that profile exists.” Trial Tr., Vol. V p. 30.

Contrary to the view expressed in the principal opinion that each plaintiff-appellant suffered only a single attack (although even a single attack justifies a substantial award), the jury’s liability determination rested on uncontested proof of several rapes to each plaintiff-appellant. In this regard, we observe that Dowd did not segregate his defense on individual rapes, but denied responsibility for all that occurred. Moreover, the instruction referred to not one (see ante, at 670), but “one or more sexual attacks.” Trial Tr., Vol. V p. 47.

Finally, the jury instructions belie the contention in the principal opinion that plaintiffs-appellants consented to sexual activity with fellow prisoners and, thus, are entitled only to nominal damages. The trial court instructed:

If you find that any one or more of the plaintiffs consented or was not forcibly compelled to engage in any alleged sexual conduct with other inmates, then your verdict must be for the defendant. Consent or lack of consent may be expressed or implied. Forcible compulsion means physical force that overcomes reasonable resistance or a threat that places a person in reasonable fear of death or serious physical harm. When I use the word consent, I mean willingness, in fact, for conduct to occur. It may be manifested by action or inaction. It need not be communicated to the actor. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
■. However, consent is not effective, if it is given under duress. Duress is constraint of another’s will by which a person is compelled to give consent whether or not he is, in reality, willing to do so.

Trial Tr., Vol. V pp. 46-47. In light of the evidence and this instruction, the assertion in the principal opinion must be rejected.

In these circumstances, the award in this case shocks our senses. Even the assumption in the principal opinion, that the jury verdict may reflect that each appellant suffered only a single incidence of rape related to the unconstitutional conduct of Dowd, clearly warrants more than $1.00 in damages. That the brutal acts to which the plaintiffs-appellants were subjected are somehow on the de minimis end of a damages scale is, in our opinion, a sad commentary on this case. In light of our discussion above, the award is so inadequate as to constitute a plain injustice to the plaintiffs-appellants. Nelson v. All American Life and Financial Corp., 889 F.2d 141, 152 (8th Cir.1989). Accordingly, we would remand this case for a trial on damages.

IV.

' In the principal opinion, Corder’s plea for injunctive relief is denied on the grounds that Corder fails to present sufficient evidence indicating he is currently subject to a pervasive risk of attack. The district court summarily denied Corder’s plea for injunc-*684tive relief. Because Corder’s claim may have merit, particularly in light of other evidence uncovered in this case, we would remand to determine the scope of the threat faced by Corder,6 and permit the district court, at its discretion, to reopen the record for additional evidence on this issue. Plaintiffs-appellants, including Corder who remains incarcerated, have made a number of reasonable requests for injunctive relief that deserve scrutiny. Corder specifically requested a training program for FCC employees to acquaint them with the risks of sexual assaults; the development of procedures to be followed with respect to sexual assault complaints; the development of an orientation program to instruct new prisoners on their vulnerability to sexual assault; the development of a system to segregate predatory prisoners from more vulnerable prisoners; the estabr lishment of protective custody cells which are available upon demand without the need for a preliminary stay in the punitive environment of administrative segregation; the implementation of a system which would protect prisoners from being held captive by other prisoners in a cell through the night; the establishment of procedures for the investigation and referral of sexual assault complaints to the local prosecuting attorney; the establishment of punishments for predatory prisoners; and the review of job assignments for predatory prisoners to ensure they have no contact with those seeking protective custody.

. The panel majority (Judges Lay and Bright) voted to reverse the district court. Judge Ma-gill, dissenting, voted to affirm. Ledferd v. Dowd, Nos. 90-2090, 90-2091 (8th Cir. Feb. 6, 1992), vacated on grant of reh’g en banc (1992).

. In light of the differences in views of the members of this Court represented in the several opinions — six votes to affirm the district court per Judge Magill’s opinion; six votes to grant a new trial on damages alone in this dissenting opinion and including the separate dissent of Judge Morris Sheppard Arnold; and one separate concurrence by Judge Beam joining the result reached in Judge Magill’s opinion, but stating he would reverse and remand for a new trial on all issues — this dissent refers to Judge Magill’s opinion as the principal opinion in this case.

. The complete history of this case reads as follows: Holt v. Sarver, 300 F.Supp. 825 (E.D.Ark.1969) (Holt I); Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970) (Holt II), aff'd, 442 F.2d 304 (8th Cir.1971), further hearings, Holt v. Hutto, 363 F.Supp. 194 (E.D.Ark.1973) (Holt III) (granting injunctive relief but withdrawing supervisory jurisdiction), rev’d as to withdrawal of jurisdiction, Finney v. Arkansas Bd. of Correction, 505 F.2d 194 (8th Cir.1974), further hearings, 410 F.Supp. 251 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir.1977), aff'd, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

. Both this court and the Supreme Court affirmed Judge Henley. See supra note 2.

. Dowd’s counsel stated in final argument ”[i]t’s an unfortunate fact of our society that sexual assaults can happen inside or outside of prisons. What you need to do, like Denis Dowd has done, is make the efforts that you can make to try keeping those to the absolute minimum.” Trial Tr., Vol. V p. 26. He added, "I hope you don’t believe for a minute that he callously disregarded or was recklessly indifferent to any sexual assaults at the prison.” Trial Tr., Vol. V p. 27.

. After trial, Jim Purket replaced Denis Dowd as Superintendent of FCC. Plaintiffs moved pursuant to Fed.R.Civ.P. 25(d)(1) to add Purket as a party defendant being sued in his official capacity. The district court denied plaintiffs’ motion without explanation. In our view, the district court should add Purket as a party defendant in order to consider injunctive relief.