Arthur Taylor, Jr. v. Dave Dormire

abuse its discretion in excluding this por-

tion of testimony. Blackwell’s

VI. Conclusion

Accordingly, we part reverse in af- in part

firm the decision of the district

court, and we remand for proceed- further

ings consistent with opinion.

Arthur TAYLOR, E. Jr.,

Plaintiff-Appellant DORMIRE,

Dave in his individual and capacity;

official Friesen, Walter 3rd Sergeant,

Shift in his individual and capacity;

official Hovis, Chad 2nd Sergeant,

Shift in his individual and

official capacity, Defendants-Appel-

lees.

No. 10-3863.

United States Court Appeals,

Eighth Circuit. April

Submitted: 2012.

Filed: Sept. maintenance, railroad track subject to set part. conditions forth in this potential

comes about violence concerned cell, may a declare prisoner within the and be “enemy” cellmate an removed from place Prison officials then cell. on a restraint bench un- prisoner removed found, til a iá an compatible cellmate indi- available, pris- or the vidual cell becomes original oner to to the decides return cell. Policy prisoners cannot provides that Policy in a cell. The fed unless breaks and small does allow bathroom water also has an excep- amounts of and necessity. tion for medical alleged argument on the After an eve- 9, 2005, ning Friday, September Taylor enemy an declared his cellmate was from the cell. Prison officials removed him to shackled a metal restraint bench. LLP, Schoemehl, Bryan Cаve John J. prisoners pro- Several other used the same (Brian Walsh, MO, Louis, C. argued St. simultaneously, and still others cedure LLP, Louis, MO, D. Bruce Bryan Cave St. Prof, flooding tampering were cells with Law, their Pierre, H. Nicholas Ras- La sprinklers. Sunday, September mussen, Osberghaus, Law On F. Stu- William Law, dents, Taylor placed in a with a Washington U. School St. was cell new Louis, MO, brief), appellant. on the for cellmate. did eat offered sleep- or lunch because he was brеakfast Gen., Horsman, Kan- Atty. Asst. Lauren sleep ing. He had been unable to (Chris MO, Koster, argued Atty. City, sas days previous sitting upright two while on MO, brief), Gen., City, Jefferson day, bench. Later that after restraint appellees. alleged Taylor declared argument, another BYE, WOLLMAN, Before enemy his an re- new cellmate BENTON, Judges. Circuit At all points, turned to the bench. a either refused to return to cell with BENTON, Judge. Taylor remained on the bench cellmate. Taylor, E. Jr. sued Missouri Arthur evening stool until the or metal Wed- § 1983 for under U.S.C. prison officials time, During nesday, September days while to feed him for several refusing officials, following Policy, did juryA returned he was restrained. Taylor. Taylor having not feed described officials, Tay- which for the verdict lightheadedness, head- pains, stomach being proper un- lor Jurisdiction appeals. feeling as He first ate aches as well weak. § reverses der 28 court U.S.C. Thursday, again morning Sep- on thе and remands. missing about tember after twelve meals. I. alleging prison officials vio- Taylor sued prisoner Jefferson

Taylor was of his and Fourteenth lations Center, a maximum se- City Correctional rights. proceeded His case Amendment According Department curity prison. requested an exees- trial. counsel Policy, prisoner be- of Corrections (West 2011). instruction, sive which the force district 2008 & The Committee gave. Taylor’s court also request- counsel Comments this Instruction also state instruction, damages ed a nominal which that “nominal must still be sub- give. the district court refused to The Eighth mitted in Amendment cases if re- jury returned verdict for the offi- quested.” Moreover, Id. the Notes on Use cials, finding Taylor. for damages “0” accompanying the Excessive Force In- struction that the court district used here

II. state: damages “Nominal will also have to trial, Both during before and Eighth submitted under Cowans.” Cir- Taylor’s trial ‍​​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌‌​​‌‌​‌​‌​​​‌‌​‌‌‌​​​​​​​​‍cоunsel requested nominal Jury 4.30, cuit Model Instruction note 7 damages instruction. A nominal damages (West 2011) added). & (emphasis 2008 in appropriate instruction excessive The argue officials the er force cases where there is evidence that ror in submitting the nominal damages excessive, despite the being did not instruction to jury the was harmless be significant cause a injury. Foulk v. Char jury cause the found in their favor. The rier, 687, (8th Cir.2001). 262 F.3d 701 A government has the of proving burden party is to an entitled instruction on its Pirani, harmless error. United States theory of the case if legally it is correct (8th Cir.2005) (en banc). 406 F.3d and support there facts to it. Boesing Under the instruction the district court Cir.2008). v. Spiess, 540 F.3d gave, damages required are a element of a This jury court reviews instructions for verdict in favor Taylor. Eighth See abuse of discretion and reverses a jury (West Jury Circuit Model Instruction 4.30 verdict give when the failure a request 2011) (listing 2008 & damages as the third ed jury instruction misled or the had a element of the claim stating that: “If probable on effect the verdict. See Fried any of above the elements has not been Friedman, man & Ltd. v. Tim McCand proved, your then verdict must be for the less, Inc., Cir.2010). 606 F.3d defendant.”); also, see Lee v. e.g., Ander district The court erred in not sub sen, (8th Cir.2010) 616 F.3d 803 (using mitting jury. the instruction to the “We same elements of excessive force instruc jury believe is required to award nomi tion). is, analyzed That jury nal damagеs once it has found cruel and element first and no damages, found it punishment unusual if it has not been able could not find excessive force. The in to convert into injury dollars the and pain structions damages defined as including: plaintiff has suffered.” Cowans v. Wy physical pain [t]he and emotional suffer rick, (8th Cir.1988) (em 862 F.2d ing plaintiff experienced has and is added); phasis Charrier, accord Foulk v. reasonably certain experience in the (8th Cir.2001). This future; the nature extent view is consistent with Eighth Circuit injury; injury whether the is temporary Jury Model Instruction for nominal dam permanent or any and whether resulting ages, upon which Taylor based pro his disability partial any or total and ag posed instruction. This instruction directs gravation of a pre-existing condition. jury if it in finds favor of a plaintiff None of the instructions mentioned damages but finds that the nomi value, nal damages. no The monetary jury damages “must return instruction “Remember, verdict also plaintiff throughout your stated: nominal ($1.00).” amount of One you Dollar engage any deliberations must not Jury Model speculations, guess, Instruction 4.50B conjecture you majority, justice. I think the damages under this Unlike the any must not award again punishment district court will once confront the by way Instruction In the absence of a through sympathy.” question proper instructions instruction, the instruc- Taylor’s Eighth Amendment regarding nominal jury. tions misled claim his new trial. I therefore majority’s rеspectfully dissent from de- rely Holloway v. officials matter, I cision not to consider Alexander, Cir. opinion. separate it in this address 1992) was harmless. argue the error find a failure Holloway court did that The majority The we need not con believes harm damages on nominal to instruct sider the deliberate indifference instruc jury did not consider less because “the Taylor request can tion matter because case, although In this the damagеs.... again instruction if the issue arises such an defendants, the it also wrote jury for found If on remand. the district court declines damages on the ver space in “0” Taylor provide ap instruction and jury that con This shows dict form. issue, peals that we will revisit the matter found that damages issue and sidered However, are not at that time. we re instruc damages no under the Taylor had matters that are quired likely to overlook a dam The lack of nominal givеn. tions remand, fact, in we to recur on probable a effect on ages had instruction engaged many them on occasions. See this verdict. Ochoa-Gonzalez, v. 598 United States F.3d court abused its discretion (8th Cir.2010); The district 1033, Wheeling 1038 Pitts requested nominal submitting the in not burgh Corp. v. Beelman River Ter Steel jury.1 instruction to (8th Inc., 706, minals, 254 719 F.3d Cir.

2001); v. W. Abrams Minn. Kalman Met (8th als, Inc., 1019, 155 F.3d 1025 Cir. court is judgment district Graham, 1998); v. 60 United States F.3d reversed, for fur- and the case remanded 463, Cir.1995); Lusby v. 467 Union opin- proceedings ther consistent with Co., Pac. R.R. 4 F.3d 641 Cir. ion. 1993); Nat’l Bank v. Tosco Ouachita BYE, part in Judge, concurring Cir.1982), F.2d 1299 Corp., 686 dissenting in part. grounds, rev’d banc on other en (8th Cir.1983). “allegations When majority’s I conclusion concur of the district court error concern actions trial and remand for new be- reverse repeated upon likely that to be re provide cause district court failed to mand,” may matters “in we consider those damages. nominal I jury on instruction econоmy.” judicial Oua interests when it the district court also erred believe Bank, F.2d at 1299. This chita Nat’l a deliberate indifference provide did not It therefore works no instruction, case fits the mold. affecting Taylor’s substantial from custom to address the miscarriage departure our rights amounting to (8th Cir.2000) (“In error) 1132 n. 18 (plain review of the Taylor also seeks case, we light to remand the give his of our decision failure to fail district court’s —after jury whether a instruction request jury on decline to address instruction deliber ure to —a pari delicto should be on the doctrine ‍​​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌‌​​‌‌​‌​‌​​​‌‌​‌‌‌​​​​​​​​‍of court need not address ate indifference. This given new trial —that determination request a in the that because can delib issue light of all the admissible made in if the issue must be erate indifference instruction light to the district court on at evidence submitted again on remand in of evidence arises Int'l, Inc., retrial.”). Qualley See the retrial. Clo-Tex matter, jection I do lodged.” deliberate indifference so Id. at 106 S.Ct. below. 1078. To demonstrate such wantonness in claim challenging the context of a a condi- correctly notes, majority theAs confinement, of a prisoner’s tion a plaintiff requested and received instruction things. First, must show two the plaintiff did request excessive but not an “objective” showing must make an that the instruction on deliberate indifference. deprivation imposed by thе condition was party request When a does an instruc- “sufficiently serious” to form the basis for trial, tion we review district court’s an Amendment claim. Wilson v. to give plain failure that instruction for Seiter, 294, 298, 501 U.S. 111 S.Ct. Inc., Strippit, Weber error. (1991). Second, plain- L.Ed.2d (8th Cir.1999). plain To show “subjective” tiff must showing make a error, Taylor must demonstrate: prison officials “acted a sufficiently with (1) (2) error; an there is culpable state of mind.” Id. obvious, subject clear or rather than (3) dispute; rеasonable the error affect- deprivation imposed The by the condi- appellant’s rights, ed the substantial tion of confinement was “suffi- ordinary which case means it ciently to satisfy objective serious” affected the outcome the district court component Eighth of the Amendment in- (4) proceedings; seriously and serious, quiry. To be sufficiently “a fairness, affects the integrity public official’s act or omission result in must reputation judicial рroceedings. denial ‘the minimal civilized measure of ” — Brennan, Marcus, life’s necessities.’ Farmer -, v. United States v. U.S. 825, 834, 2159, 2164, 1970, 511 U.S. 114 130 S.Ct. S.Ct. 176 L.Ed.2d 1012 128 (2010) (1994) (citations, brackets, L.Ed.2d 811 (quoting Rhodes and internal v. omitted); Chapman, 337, quotation 347, 452 marks U.S. 101 see also Moore S.Ct. 2392, (1981)). Co., Family v. Am. 69 L.Ed.2d Mut. Ins. 576 59 offi- “[PJrison (8th Cir.2009) (internal 781, citation, cials must that 786 ensure inmates receive ade- marks, omitted) quotation food, quate clothing, shelter, and alterations and medical (“[W]e may care, grant plain error relief when must ‘take reasonable measures plain, par- instructional error is guarantee safety affects of the inmates.’ ty’s Farmer, rights, substantial and seriously 832, affect- 511 at U.S. 114 S.Ct. 1970 fairness, ed the integrity, public reputa- Palmer, (quoting 517, v. Hudson 468 U.S. judicial tion of proceedings!.]”). 526-27, 104 S.Ct. 82 L.Ed.2d 393 (1984)). We previously have held deni- Eighth The prohibits Amendment cruel al of four consecutive meals in a 36-hour punishment unusual of a person con- Const, period fell below minimal measure. victed a crime. U.S. amend. Cook, Simmons v. 808 VIII. unnecessary in- “[T]he and wanton Cir.1998). Supreme And the Court has pain fliction of ... constitutes cruel and agreed with the Eleventh Circuit’s conclu- punishment unusual forbidden shackling sion a prisoner hitching post to a Eighth Albers, Whitley Amendment.” v. for seven 312, 319, hours without 475 U.S. 106 food or bathroom S.Ct. 89 (internal breaks, (1986) only water, 251 and with L.Ed.2d minimal quotation was omitted). Pelzer, marks and inadequate. Hope citations This wan- likewise See 730, 738, tonness does not 122 meaning. fixed 536 U.S. S.Ct. 153 Instead, (2002). it is regаrd determined with L.Ed.2d 666 in Taylor’s “due The facts for differences in the kind of conduct case are no less serious. With one brief against which an Eighth Amendment ob- intermission a six-day period, Tay- upright posi- Eighth in an Amendment inquiry lor remained shackled becomes less case, or stool and exacting. prison-conditions tion to a metal restraint bench In such a imposed deprivation was denied food. The plaintiff must allege prison officials objectivе upon Taylor plainly meets the acted with “deliberate indifference” to the Amendment in- component Eighth Wilson, safety. inmate’s health or quiry. Nelson, 2321; at U.S. S.Ct. F.3d at 528. A official is “deliber “subjective” requirement of ately indifferent” he or she “knows of inquiry depends Amendment disregards an excessive risk to inmate the nature of the constitutional violation Farmer, safety.” health or U.S. alleges. plaintiff plaintiff When the 837, 114 knowledge S.Ct. 1970. This re alleges prison officials used' -excessive quirement exists because “prison officials physical inquire we whether who lacked knowledge of a risk cannot good-faith in a applied force was effort to said to have punishment.” maintain or restore or used ma inflicted Id. at discipline, 844, 114 liciously sadistically S.Ct. 1970. purpose McMillian, causing harm. Hudson standard, Determining the applicable 1, 6-7, U.S. 117 L.Ed.2d 156 met, and whether that standard is “will (1992); 320-21, Whitley, 475 U.S. at 106 depend upon how the ... is char- incidеnt S.Ct. 1078. The “malicious and sadistic” acterized —whether ‍​​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌‌​​‌‌​‌​‌​​​‌‌​‌‌‌​​​​​​​​‍it a security meas- applies standard when officials act ure quell taken to or merely disturbance response prison in to a disturbance. Hud Ellis, punishment.” Stenzel v. 916 F.2d son, 6, 112 995; at 503 U.S. Nelson v. (8th Cir.1990). If prison officials’ Servs., Corr. Med. actions are a response characterized as to Cir.2009) (en banc). employ We this stan disturbance, a the “malicious and sadistic” disturbance, in prison dard because a offi If, apply. hand, standard will on the other cials must balance the threat the distur merely as punish- characterized inmates, poses prison employees, bance to ment, the “deliberate indifference” stan- others, against the harm that may will apply. dard result from the use of A force. distur prison Taylor’s officials characterize requires bance also corrections officers to shackling part and denial of food аs of a haste, “in pressure, act under and fre response to an inmate-led disturbance. quently luxury without the of a second Taylor was twenty-six one of inmates who chance.” Whitley, 475 U.S. at respective declared their cellmate their en- S.Ct. 1078. The “malicious and sadistic” emy period hours, in a of two-to-three give standard reflects the deference we to attempted by inmates to flood their cells prison respond officials who to an emer breaking sprinkler heads located inside gency. Appellee’s them. Br. 9-10. Because exigent But when circumstances are not shackling Taylor to the restraint bench present, competing neither are the con- place part took as of an effort to deal with preserving safety prevent- cerns of while disturbance, that they say, their state of ing the harm that follows from the use of mind should be “mali- measured the. responsibility provide force. The state’s to cious and sadistic” standard. food, adequate clothing, inmates with shel- ter, altogether It is not clear there was a and medical care is not balanced significant requiring emergen- disturbance against competing penological objec- action, cy and if remedying tive an unsafe situation. As there was such distur- result, subjective bance, requirement of the when it But even if ended. theory of the tied to an instruction on its organized of an arise out shackling did it correct and highly long legally doubtful—so case so as it is agitate, to effort support officials do not to it.” prison there is factual evidence much that so Morrison-Quirk continued for the Inc. v. argue disturbance Farmland Indus. —the days during which Corp., full six Cir. Grain prison 1993). food. Once offi without open question shackled to And it is not alleged disturbance cials had contained applies indiffеrence standard to deliberate fur longer presented no and the inmates Farmer, 511 U.S. at denial-of-food claims. staff, public, danger prison ther Butler, 1970; 465 F.3d at 114 S.Ct. other, longer officials were no each pleadings, In the sum light 345-46. decisions. split-second to make required order, law, and the it can mary judgment time, required to that the state-of-mind At reasonably disputed the deliberate violation was an Amendment show ap indifference standard should havе been DeSpain v. indifference. See deliberate ease and was enti plied (10th Cir.2001) 965, 976 Uphoff, 264 F.3d jury instructed on that tled to have the indifference” (applying the “deliberate Therefore, standard. because the district safety during once the threat standard provide required did not instruc court ended); flood had an inmate-led law, of incontrovertible tion the face Lewis, Johnson (1) district court committed Cir.2000) (concluding heightened Whit (2) clear and obvious. riot, ley applied standard error “affect- Taylor must also show the the deliberate indifference standard but rights, ed substantial which [his] in governed prison officials’ conduct once ordinary it the out- case means affected and handcuffed in a prone mates were proceedings.” come of the district court Indeed, prison yard). Supreme Court Marcus, An 130 S.Ct. error is Hope, much in when it concluded said as “ prejudicial рrob- if there is ‘a reasonable “[a]ny safety long concerns had because that, claimed], the ability but for [the petitioner the time was since abated would have been proceeding result of the hitching post,” prison to the handcuffed Kent, different.’ United States officials had acted with deliberate indiffer (8th Cir.2008) (quoting Unit- safety.2 ence to the inmate’s health and Benitez, Dominguez ed States v. U.S. 738, 122 2508. 536 U.S. at S.Ct. 159 L.Ed.2d 157 more, Taylor’s is claim is not limit- What (2004)). Taylor’s ed to еxcessive use of force. possible the two instructions. Consider confine- pleading included the condition of First, given the instruction trial: mentioned de- specifically ment claim and plaintiff Your verdict must be for the Compl. Am. 10. privation of food. Pl.’s against defendant Dave Dormiré if recognized The district court as much. following all the elements have been (“[I]t is not at all clear Summ. J. Order 6 proved: why not plaintiff from the evidence could First, permit- thе defendant caused or minimally provided have been nutritious restrained.”). Taylor Arthur to be held on a party is enti- ted “[A] diet while Key McKinney, and sadistic” standard be- prison 2. officials cite the "malicious (8th Cir.1999) proposi- for the parties agreed 176 F.3d 1083 indif- cause the the "deliberate and sadistic” standard tion "malicious applied appropriately ference” standard was fact, governs prison In we had disturbances. in that case. Id. at 1086. applicability no occasion to consider bench, food, without mul- jury restraint trict court led the Taylor to believe tiple days, and prison had to show the officials denied him Second, maliciously of such force was food and sadistically use for the applied maliciously excessive and and very purpose fact, of causing harm. In sadistically very purpose for the jury could have Taylor upon found for harm, causing and not in a faith good showing officials were deliber- legitimate to achieve a purpose; effort ately indifferent to his need to eat the time he was shackled. Given the facts Third, result, plaintiff as a direct case, I believe it reasonably prob- damaged. was jury able the would have concluded differ- determining In whether force was ently had received the deliberate excessive, you must consider such fac- indifference instruction. tors as the need for the application of especially This is given so the prison relationship between the need officials following Department were used, and the amount of force Policy Corrections in not providing Taylor inflicted, injury extent of the jury food. The may have concluded be- and whether the force was used to cause the officials simply were car- legitimate purpose wantonly achieve a or rying Policy, out the injur- were not very purpose for the harm. causing ing Taylor just reason, without cause or “Maliciously” intentionally injur- means engaging in extreme or excessive cruelty, just ing another without cause or reason. delighting cruelty words, or other —in “Sadistically” engaging means in ex- acting maliciously not sadistically. cruelty delighting treme excessive Nevertheless, jury reasonably could cruelty. have found the officials knew of the If any the above elements has not significant risk to health that fol- proved, your been then verdict must be him, lowed from feeding and disre- for the defendant Dave Dormiré. garded by adhering that risk Policy. to the

Appellant’s App. Compare in- Therefore, I believe has shown the struction to the model error omitting the instruction affected his instruction on deliberate indifference. rights. substantial Deliberate ‍​​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌‌​​‌‌​‌​‌​​​‌‌​‌‌‌​​​​​​​​‍indifference is established Finally, Taylor must show “the error only if there actual knowledge of a fairness, seriously affects the integrity or (de- substantial risk that the plaintiff public reputation judicial proceedings.” problem scribe serious medical or other Marcus, 130 “Jury instruc- harm serious that the defendant is ex- fairly adequately tions must state the pected prevent) and if the defendant law, but not ‘we will find error in instruc- disregards by intentionally that risk re- tions simply technically because or fusing intentionally failing to take imperfect clarity.’ or are not model of reasonable measures to deal with the Winter, problem. negligence Quigley Mere v. inadver- Cir.2010) tence does not constitute deliberate in- (quoting Hastings v. Boston difference. Co., Mut. Ins. Life Cir.1992)). situations, In close factual “the Jury Manual of In- Model (Civil) (2012). proof standard care and burden of § structions 4.44 The in- heightened importance easily and can af- structions require significantly different jury’s culpability. By Wheeling levels of fect ultimate verdict.” providing a instruction, Steel, 714; deliberate indifference Pittsburgh dis- 254 F.3d at see also Herron, States United Cir.1996) (internal quota- citation and omitted) (“[B]ecause it is un-

tion marks properly instructed whether a

clear guilty defendant] found [the

would have the district court’s

... failure to correct miscarriage jus- result in

error could fairness, seriously affect the

tice and would reputation judicial

integrity, public

proceedings.”).

Here, jury was not instructed on analyzing reme- framework for

proper constitutional violation.

dying alleged

Permitting the verdict to stand when the differently given

jury may have found required information would be mis- justice.

carriage of sum, Taylor

In has satisfied the stan- error, I plain

dard for and would reverse court on judgment of the district majority’s I concur in the conclu-

basis.

sion to reverse on the nominal ‍​​‌‌​‌​‌​​‌​​‌‌‌​‌​​‌‌‌​​‌‌​‌​‌​​​‌‌​‌‌‌​​​​​​​​‍matter, respectfully dissent

instruction majority’s not to

from the decision address mat-

the deliberate indifference instruction

ter. America,

UNITED STATES

Plaintiff-Appellee, GODSEY, Ann also known as

Sarah Marcum,

Sarah Defendant-

Appellant.

No. 11-2971. Appeals,

United States Court of

Eighth Circuit. March 2012.

Submitted: Sept.

Filed:

Case Details

Case Name: Arthur Taylor, Jr. v. Dave Dormire

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 4, 2012

Citation: 690 F.3d 898

Docket Number: 10-3863

Court Abbreviation: 8th Cir.