concurring in part and dissenting in part.
I concur in parts I-IV(A) and the result in part V of Judge Jameson’s opinion for the court, but must respectfully dissent from parts IV(B) and (C) because I believe that the trial court erred in entering judgment notwithstanding the verdict on the question of damages. . The standard for determining whether a judgment n.o.v. should be granted is “whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed.” Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir.1985). Any conflicts in the evidence and all permissible inferences from the evidence must be resolved in favor of the party resisting the motion. Id. Therefore, entry of judgment n.o.v. is appropriate in this case only if there is insufficient evidence upon which a reasonable person could properly base an award of damages. See id.
The trial judge stated that several factors motivated him to enter judgment n.o.v.: the concerns expressed in Judge MacKinnon’s separate statement in Doe v. District of Columbia, 697 F.2d 1115 (D.C.Cir.1983) (separate statement reported at 701 F.2d 948), the pendency of additional class actions by other jail inmates seeking similar relief, the fact that the judgment would affect the public interest as well as the interest of the class members, and the fact that there was insufficient evidence of actual harm to support the jury’s verdict. Of these factors, all but the latter are general considerations that the jury was capable of taking (and may well have taken) into account when determining the amount of its award. For example, the jury was undoubtedly made aware that a few members of the plaintiff class may not have “deserved” money damages and that an award against the defendants would most likely be paid out of public funds. In my view, the trial court erred in substituting its own judgment on these matters for that of the jury.
That leaves as the only theoretically appropriate basis for granting judgment n.o.v. the trial judge’s conclusion that there was insufficient evidence to support the jury’s award of damages. In reaching this conclusion, however, the judge did not com-*848merit on why he found the plaintiffs’ unre-butted evidence insufficient or what further evidence he would have required. The majority’s current attempts to justify the trial court’s finding of insufficient evidence, see ante at 840, 847, are based on alleged weaknesses in the evidence that properly go only to the amount of damages due for the injury, not to whether an injury occurred in the first place. For instance, Dr. Schuster’s testimony that only a small percentage of inmates would suffer severe stress due to the unconstitutional conditions in the jail does not preclude an award of damages for the less severe psychological injuries experienced (as Dr. Schuster testified and as the jury could infer from the evidence) by virtually every member of the plaintiff class. In addition, the fact that eighty percent of the class was incarcerated for two days or less was taken into account by the jury in fashioning its verdict on a per diem basis. A person incarcerated for two days would therefore receive only $26 in damages, hardly an excessive amount for enduring the conditions con-cededly present in the jail during the first subclass period. Finally, the majority’s attempt to discount one of the plaintiffs’ professed fear of homosexual attack as “common among all young inmates,” ante at 840, 847, does not support a conclusion that the fear was not justified, real, or caused by the defendants’ lack of supervision. Rather, it lends support to the plaintiffs’ assertion that these fears of bodily injury and the other psychological harm resulting from the unconstitutional conditions in the jail were common among class members.
Although I therefore am not persuaded that there was insufficient evidence to support the jury’s award of damages in this case, my primary concern is with the trial court’s apparently conflicting rulings. If the trial judge was concerned that a certain group of inmates (i.e., those who preyed on other inmates) should not receive any damages or that the witnesses who testified did not adequately represent the experiences of the entire class, then the judge should have either refused to grant class certification for the damages portion of this litigation or should have established subclasses of inmates based on prison conduct and/or experience.1 Once the court ruled that questions of law or fact were common to the class and that the damage claims of the named plaintiffs were typical of the damages suffered by the class, it should have been left to the jury to decide how to factor into its award the fact that some members of the plaintiff class may have been undeserving of money damages, and the witnesses’ observations should not have been discounted as unrepresentative of the entire class. From a reliance standpoint, I find troubling the fact that the trial court first granted class certification; then consolidated into the class action at least ten individual prisoner suits against the defendants, leading the plaintiffs to believe both that their evidence would be deemed typical of other class members and that it would not be necessary (or even acceptable) for each individual plaintiff to present his own evidence; and finally ruled that the plaintiffs’ evidence was insufficient to support an award of damages to the entire class. Once the judge decided that the evidence presented was not representative of the class or that some of the class members did not deserve a monetary award, the class should have been decertified (with notice to all class members) and the jury’s verdict either upheld as to the named plaintiffs or a new trial (or trials) held on damages for individual plaintiffs.
If the judge’s concern was not so much that the evidence was insufficient but rather that the jury’s verdict was excessive, he should have ordered a remittitur and given the plaintiffs the option of accepting the lower award or retrying the case. In short, I would remand this case for a renewed and more equitable determination of the plaintiffs’ claims for damages, whether *849by holding a new trial for the plaintiffs to provide sufficient evidence of actual harm to the entire class, decertifying the class as to damages and then holding a new trial on damages for individual plaintiffs, decertify-ing the class and reinstating the jury verdict as to the named plaintiffs, or ordering a remittitur.
Turning to the majority’s contention that consequential damages are inappropriate in the absence of proof of actual harm, it should be noted that the plaintiffs have never asserted otherwise. Rather, the inmates’ complaint requested only declaratory and injunctive relief plus “money damages for any actual injuries sustained as a result of the complained of conditions and practices at the Madison County Jail” (emphasis added). The question of whether actual harm must be shown was never an issue in this case until the Indiana Civil Liberties Union filed an amicus brief on appeal. This case is thus distinguishable from Doe v. District of Columbia, 697 F.2d 1115 (D.C.Cir.1983), in which the jury was instructed that it could award damages for the intrinsic value of the plaintiffs’ constitutional rights. Id. at 1122. It seems inappropriate to suggest that Doe established a new legal principle that justifies the trial court’s finding of insufficient evidence in this case when Doe only enunciated a rule that the plaintiffs have consistently acknowledged — that they could not recover damages for violation of their constitutional rights in the absence of proof of actual harm. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978); Doe, 697 F.2d at 1122-25.
I must further dissent from the trial court’s and the majority’s reliance on Judge MacKinnon’s separate statement in Doe to support setting aside the jury’s award of damages to the plaintiffs. In my view, Doe has little relevance to the question of whether the plaintiffs introduced sufficient evidence to support an award of damages in this ease. In Doe, the plaintiff class consisted of convicted inmates in a maximum security facility. 697 F.2d at 1117. The named plaintiffs had been convicted of first degree murder, second degree murder, kidnapping, armed robbery, manslaughter, bank robbery, attempted rape, grand larceny, and assault with a dangerous weapon. Doe, 701 F.2d at 949 (separate statement of MacKinnon, J.). Each of the six counts of the prisoners’ complaint in Doe was based on actual and threatened inmate violence and a pervasive risk of harm in the institution. Id. at 948. Judge MacKinnon’s belief that the inmates had not presented sufficient evidence to support a finding that these conditions violated their constitutional rights was based on his view that (1) some level of violence is to be expected in a maximum security prison, and (2) there was insufficient evidence that the violence at the institution was excessive. Id. at 953. Judge MacKinnon’s statement therefore addressed the question of whether there were unconstitutional conditions in the prison in the first instance, whereas in this case the defendants admitted that conditions in the Madison County Jail did not meet minimum constitutional standards. Furthermore, in contrast to the maximum security prison at issue in Doe, Madison County Jail is a local jail housing pretrial detainees; misdemeanants, others serving short-term sentences, and some convicted persons awaiting transportation to the state prison system. Of the initial named plaintiffs in this action, for example, three were pretrial detainees, one was serving a one-year sentence for driving without a license, one was serving a short sentence for an unnamed offense, and two had been convicted of robbery and were awaiting their transfer to prison. Approximately 90% of the plaintiff class of inmates consists of pretrial detainees. Because the situation in Doe bears little factual resemblance to the case before us, Judge Mac-Kinnon’s view that inmate violence is to be expected in a maximum security prison that houses violent convictees has little if any relevance to the instant case.
Judge MacKinnon’s separate statement expressed his further belief, which the trial judge below found particularly persuasive, that it would be “incongruous to pay mon*850ey damages to prisoners who are causing the violence and unhygienic conditions, who adhere to a code of silence, and who refuse to report violations or to cooperate in ameliorating the conditions about which they complain.” Id. at 949 (citation omitted). In reaching this conclusion, however, Judge MacKinnon expressly distinguished the situation in Doe, where the only actual harm alleged was the lack of supervision and consequent pervasive risk of harm due to inmate violence, from cases like the present one, where a substantial number and variety of unconstitutional prison conditions are alleged. Id. at 950. Judge MacKinnon himself recognized, therefore, that his reasons for criticizing an award of damages to a class of prisoners would not apply to a Madison County Jail situation. There is no indication in this case, for example, that any members of the plaintiff class were responsible for the overcrowding, the lack of ventilation, the inadequate lighting, the inoperative shower, toilet, and wash basin facilities, the boarded-up windows, or the inadequate health care, visitation policies, library facilities, and recreational programs. The fact that a few members of the plaintiff class may have contributed to a few of the unconstitutional conditions found in the prison does not justify denying relief to the entire class. In sum, I believe that reliance on Judge MacKinnon’s separate statement in Doe is inappropriate in this case and cannot support a finding that there was insufficient evidence to sustain the jury’s award of damages to the plaintiff class.
. In this regard, it should be noted that the plaintiffs expressly sought a ruling in January 1982 "whether the class should be subdivided into subclasses and a determination of their proper scope, if appropriate.”