*2 MсMILLIAN, Before JOHN R. GIBSON,* BOWMAN, Judges. Circuit BOWMAN, Judge. Circuit Howard, prisoner, Keith a Missouri sued Barnett, Terry officer, a Missouri corrections claiming that Barnett violated the Cruel and Unusual Punishments Clause of the Amendment of the United States Constitu- by using tion him. excessive force The rendered a verdict in Howard’s favor, aрpeals. and Barnett We reverse and remand for a new trial.
* The Honorable John January R. Gibson took senior status 1994. Barnett, Johnson, Malone, fendants I. system two directors well as hotly contested this case facts of prison. of Howard’s superintendent and the appeal, we of this purposes trial. superintendent After the directors the events version Howard’s accept lawsuit, Howard *3 from the dismissed were question. Malone, against complaint filed amended an outside from return Howard’s Upon Barnett, sought Johnson, in he which and Offi- Corrections in visit March
medical
damages on his
punitive
and
compensatory
stan-
Malone,
in accordance
Patrick
cer
process
alleged due
and
claims for
federal
ordered
procedures,
operating
prison
dard
on his
violations and
Amendment
strip search. Malone
to а
to submit
Howard
battery
and
and
claims for assault
state-law
in the
room
to the rest
Howard
escorted
then
negligence.
where How-
segregation unit
administrative
there, Howard
being
Once
confined.
was
ard
claims were dis-
process
due
Howard’s
strip search.
to a
to submit
refused
аbandoned
negligence claims
and his
missed
assistance. Cor-
trial,
then summoned
close of Howard’s
Malone
and at the
before
responded,
Johnson
Charles
were
Officer
each
rections
Malone and Johnson
evidence
that Howard
to Howard
explained
of law on
he
matter
and
as a
granted
strip
a
search
to
jury
to submit
The
was
claims.
excessive force
Howard’s
officer.
a corrections
directed
against
so
when
claims
on Howard’s
was
Barnett, the
to submit.
still refused
unjustified
Howard
excessive
Barnett for
charge of the administrativе
in
officer
straint,
battery,
senior
and on How-
and
and assault
provide
unit,
to
was called
segregation
then
and Johnson
against Malone
ard’s claims
assistance.
further
jury found in fa-
unjustified restraint.
only on his
Amend-
vor of Howard
to
to submit
Howard
also ordered
Barnett
against Barnett
claim
ment еxcessive-force
again
search,
refused.
Howard
strip
but
damages
in nominal
Howard
and
$1
awarded
other
of the two
at least one
and
Barnett
damages. The District
punitive
and $750
Howard and executed
then rushed
officers
jury
judgment on the
verdict
entered
As Howard was
“two-man takedown.”
attorney
request for
granted
and
Howard’s
floor,
collided with
his head
to
thrown
$21,-
expenses in
amount
fees and
ceased
floor. Howard
then the
and
sink
handcuffed, and the
254.68.
he was
resisting after
strip search him.
to
were able
officers
appeal.
issues on
raises
Barnett
sеveral
room,
rest
Barnett
parties
left
As
(1)
jury’s verdict was
argues that
He
up
Howard’s hair
down on
pulling
was
impermissibly inconsistent
arguing
handcuffs,
the two
his
on
state-law
on Howard’s
for Barnett
found
banged Howard’s
Barnett
went.
battery,
but
Howard
assault and
claim of
cell
outside Howard’s
wall
head
on the
taken
As Howard was
or three times.
two
(2)
its
claim;
abused
dis-
the District Court
cell,
head
banged Howard’s
his
into
jury that, to
by failing to instruct
cretion
support.
against a steel
his
Howard on
find for
spread-
naked and
then
left
Howard
was
Barnett,
required to
find
it
claim
bed for
on his
eagle
four-point
restraints
“maliciously and sadisti-
acted
that Barnett
hours, bleeding and
approximately two
(3)
improperly sub-
District Court
cally”;
on
having sustained knots
bruised
to the
instruction
damages
a nominal
mitted
pris-
to
Pursuant
chipped tooth.
and a
head
(4)
permit-
erred
jury;
the District Court
use of
regulations on the
direct
a witness’s
ting
to rehear
he
Howard
examine
while
came
nurse
(5)
light
testimony; and
examination
bed,
embar-
but out of
on the
restrained
trial, the District
limited success
Howard’s
immediately.
to leave
he told her
rassment
by awarding to
its discretion
Court abused
attorney fees he
full sum of
Howard thе
brought
this 42 U.S.C.
later
Howard
requested.
lawsuit,
as de-
originally listed
§ II.
the jury to believe that Barnett did not vio-
late the
Amendment unless he re-
A.
ceived sexual
satisfaction
administering
turn
argument
We
first to Barnett’s
excessive
reject
Howard. We
these
improperly
failed to in-
arguments.
that,
struct the
conclude
Barnett used
A district
has
broad discretion
force, it
had to find that he acted
when framing jury instructions, and we will
“maliciously and sadistically”
only
reverse
the instructions as a whole do
if
harm. The District Court
fairly
and adequately state
applicable
that,
instructed the
if it believed Barnett
Malone,
law. Cummings
995 F.2d
Howard,
committed
alleged by
the acts
(8th Cir.1993);
*4
822
Sterkel v.
following
should use the
Fruehauf
standard to deter-
.
Corp.,
(8th
Cir.1992)
F.2d
975
531
mine whether
the force used
Barnett was
excessive:
applicable
standard
when de
determining
whether the force as [sic]
termining
prison
officials unneces
unnеcessary
and constituted the
sarily
wantonly
and
pain,
have inflicted
and
and wanton
pain, you
infliction of
must
thus
Eighth
have violated
Amendment,
the
consider such factors as the need for the
varies with the
of
type
violation alleged.
application
force,
of
the relatiоnship be-
—
McMillian,
v.
Hudson
U.S. -, -,
tween the need and the amount of force
995, 998,
112
(1992).
S.Ct.
jecting a new trial. remand case appro that the made clear repeatedly was one priate standard official had acted B. find that sadistically for “maliciously both appeal on the basis disposition of the Our *5 Id. More causing harm.” of II.A, supra, in Part discussed of the issue over, the issue that instruction we note any other of of the any makes discussion in here, issue Cum instruction at like the unnecessary. We by Barnett issues raised it told thе mings, defective because was however, advisable, one of to discuss think malicious behavior was of presence that the issues. these consider, jury to merely factor a inquiry. jury’s pivotal the
rather than the The District you plaintiff, but that, you in favor of “If find by the inclusion of provided The distinсtion no mone- damages plaintiffs have find that significance, “sadistically” of is one the term value, you return a verdict tary then “sadistically” dif- “maliciously” and of plaintiff $1.00.” in the nominal amount together estab- meanings, and the two ferent Ill at Transcript 36-37. Trial Vol. intent would either of than higher levеl lish a “maliciously” undertak- acts alone. One too, instruction, that this Barnett reason, a course of just ing, cause without reasoning that an award improper, another; injure in con- action intended with a find- damages is inconsistent nominal “sadistically” by engaging in trast, one acts injury is the ing forсe. Where of excessive by delighting cruelty extreme or reasons, minimis, force also Barnett de Interna- New cruelty. Third in Webster’s minimis, so an instruction de must have been 1367, (unabridged Dictionary 1997-98 tional damages based permits to award that 956, 958, Dictionary 1336 1981); Law Black’s damages injury permits de minimis on a (6th Heritage Dic- 1990); The American ed. then minimis force. on de based 1982). (2d 759, Because the ed. tionary 1084 force de minimis correctly points out that in this case instruction used cognizable generally is not under Eighth Amend- jmy to find an allowed the Amendment. standard of on lower ment based violation the Su- that culpability than detain us argument need not This by this Circuit preme in Hudson and physical de minimis uses long. Although adversely af- Cummings, the instruction proscribed are not force rights. substantial fected Barnett’s “repugnant are Amendment unless mankind,” conscience cases where a In all reiterate: We turns on was violated viola prisoner alleges an maliciously applied ... “whether force force, the fact-finder tion based on excessive harm,” not on sadistically to cause Eighth Amend may that not conclude that injury from resulted serious that the whether unless it finds ment was violated — -, -, Hudson, U.S. force. “maliciously and sadistical- applied force was (internal quotation S.Ct. at marks consider such factors as the need for the omitted). quoted citations cases application Sim- the relationship be- ply put, force that is excessive within the tween the need and the amount of force meaning of the Amendment is com- used, were [sic] the extent of the pensable if it prisoner causes the inju- actual injury inflicted, and whether the force was ry, injury if the great even is not of signifi- applied in good faith effort to achieve a cance. legitimate purpose or maliciously for the very purpose harm.
If, trial, after a new a properly instructed jury finds that Barnett used excessive force If any of the above elements have not in violation of Eighth Amendment, then proved preponderance [sic] must award damages nominal if it evidence, your then verdict must be for the also injuries finds that Howard’s have no defendant. monetary value or are justify insufficient to Transcript Trial Ill Vol. at 84-35. certainty reasonable a more substantial damages. measure of See Wy Cowans person When а uses a manner that rick, (8th Cir.1988). 862 F.2d Bar satisfies all of the above, elements listed par- nett’s attack on the District Court’s nominal ticularly when the force is “excessive” under damages instruction must fail. the circumstances and “constitute[s] the un- necessary wanton and malicious infliction of
III. pain,” believe, I by definition, it applied “sadistically.” above, fact, reasons stated we the majority reverse opinion Court, states “one acts ‘sadistically’ by vacate engaging fees, ... attorney cruelty’_” award ‘excessive Maj. and remand op. *6 Therefore, case for a new trial. add the two “and words sadisti- cally” required by as the majority would have McMILLIAN, been Judge, Circuit mere dissenting. surplusage. Moreover, Cum- mings distinguishable present from the I respectfully dissent. In my opinion, the because, there, case neither the word “sadis- addition sadistically” words “and to the tic” nor “malicious” was used the district portion of the instructions page cited court’s statement of the essential elements majority opinion would made a plaintiffs excessive force claim. 995 F.2d material difference. The court district stated Thus, by contrast present to the the essential plaintiffs elements of excessive ease, elements stated the district force claim follows: court Cummings merely set forth a delib- verdict Your must plaintiff erate indifference claim. Here, Id. at 822. Terry Defendant plain- Barnett on the essential elements stated the district tiffs claim of excessive if all of the require did finding of “malicious” following proved elements have been pain. infliction of Accordingly, I would af- preponderance of the evidence: firm. First, that ... Defendant Barnett struck plaintiff, pulled out a substantial amount of
plaintiffs hair plaintiffs or shoved face objects;
into and, solid
Second, use under the
circumstances, was excessive and constitut-
ed the unnecessary wanton and malicious pain upon plaintiff;
infliction
Third, result, as a direct plaintiff was
injured.
In determining whether the force [w]as constituted unnecessary
and wanton pain, you infliction of