Walker v. BainWalker v. Bain
- Reporters:
- Before:
- Damon J. Keith, Norris, Daughtrey
ARGUED: Linda M. Olivieri, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for Appellant. Deric J. Bomar, DYKEMA GOSSETT, Detroit, Michigan, for Appellee. Daniel Kaplan, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C., for Intervenor. ON BRIEF: Linda M. Olivieri, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for Appellant. Deric J. Bomar, DYKEMA GOSSETT, Detroit, Michigan, for Appellee. Daniel Kaplan, John C. Hoyle, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, Washington, D.C., for Intervenor. Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Amicus Curiae.
KEITH, J., delivered the opinion of the court, in which NORRIS, J., joined. DAUGHTREY, J. (pp. 23-33), delivered a separate opinion concurring in part and dissenting in part.
OPINION
DAMON J. KEITH, Circuit Judge. Plaintiff-appellee William Walker, a Michigan state prisoner, brought suit against corrections officers claiming First Amendment retaliation in violation of
I. BACKGROUND
A. Factual History
Walker, an inmate, serves as a “jailhouse lawyer” at Standish Maximum Correctional Facility (“Standish“). In addition to handling his own legal matters, Walker assists other Standish inmates in connection with their legal matters. Walker routinely filed grievances against correction officers, and assisted other inmates in filing and handling grievances.
On April 4, 1995, in retaliation for his filing of grievances, defendants-appellants Thomas Bain and Janice Metzger, Standish correction officers, performed a “shake down” of Walker‘s cell, and improperly confiscated documents and personal property. At that time, Walker was preparing for several cases, and had documents in stacks in various places in his cell.
Prior to April 4, 1995, Walker requested grievance forms from, and filed grievances against, both Bain and Metzger. Walker testified that Bain often delayed in providing him with grievance forms, and would provide only one form when he requested several. Walker reported Bain‘s conduct to Bain‘s superior officer, who ordered Bain to provide Walker with the number of grievance forms he requested.
On the date of the unlawful retaliatory incident, Metzger asked Walker if he wanted to take a shower, and he responded that he did. Subsequently, Bain came to Walker‘s cell and the two had a disagreement over whether Walker would be permitted to shower. When Bain indicated that Walker would not be taking a shower, Walker requested a grievance form so that he could report Bain‘s conduct. Bain stated that he was
While Walker was using the shower, Bain and Metzger searched his cell. Bain and Metzger left Walker‘s cell with a lаrge plastic bag containing documents.
Bain and Metzger escorted Walker back to his cell after his shower. Upon his return, Walker surmised that his cell had been the subject of a “shake down.” He called for another corrections officer to view the condition of his cell, and requested that photographs and a video be taken of his cell. Walker‘s request was denied, and Walker was ordered into his cell. When he entered his cell, Walker‘s wrists were handcuffed behind his back, and a leather strap was attached to the handcuffs. After the cell door had closed, Walker‘s hands and arms went through the food slot on the door in such a manner as to cause minor scrapes and cuts to Walker‘s hands and wrists. The prison nurse treated Walker‘s abrasions later that evening. Walker subsequently determined that many of his legal documents were missing.
B. Procedural History
On May 30, 1995, Walker filed a pro se complaint in the United States District Court for the Eastern District of Michigan against Bain and Metzger. Walker asserted retaliation claims pursuant to
Walker‘s
On May 7, 1999, as a partially successful civil rights litigant under
On October 18, 1999, the court granted Walker‘s motion for attorney fees in part, and ordered defendants to pay Walker‘s reasonable attorney fees in the amount of $34,493.72. Defendants filed a timely notice of appeal from the court‘s order granting in part Walker‘s motion for attorney
We permitted the United States to intervene pursuant to
II. DISCUSSION
A. The PLRA Fee Cap
The PLRA contains various provisions that were intended to discourage prisoners from filing claims that are unlikely to succeed. See Crawford-El v. Britton, 523 U.S. 574, 596 (1998). Among the many new changes relating to prisoner civil rights suits, the PLRA modifies the application of
(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 [
42 U.S.C. § 1988 ], 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 [
42 U.S.C. § 1988 ]; and(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney‘s fees awarded against the defendant. If the award of attorney‘s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney‘s fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under
section 3006A of Title 18 , for payment of court-appointed counsel.(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney‘s fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to [
42 U.S.C. § 1988 ].
We are confronted with two issues concerning
1. Interpretation of PLRA § 803(d)(2), 42 U.S.C. § 1997e(d)(2)
Walker contends that the second sentence of
Walker contends that, because the second sentence of
The court below rejected Walker‘s contention, finding that Walker‘s interpretation of
In resolving this question of statutory interpretation, we must first look to the language of the statute itself. See Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 237 (1990); United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000). “We read statutes and regulations with an eye to their straightforward and commonsense meanings.” Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000). We ascertain the plain meaning of a statute by reviewing “the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). “When we can discern an unambiguous and plain meaning from the language of a statute, our task is at an end.” Bartlik v. United States Dep‘t of Labor, 62 F.3d 163, 166 (6th Cir. 1995) (en banc).
While Walker‘s interpretation of
We believe that
Because we find that
2. Constitutionality of PLRA § 803(d)(2), 42 U.S.C. § 1997e(d)(2)
Since the PLRA fee cap neither involves a suspect classification nor infringes on the fundamental right of access to the courts, we analyze its constitutionality under the rational basis test.3 See Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000). Under rational basis review, a law is valid if it “rationally furthers a legitimate [governmental] interest.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); see also Romer v. Evans, 517 U.S. 620, 632 (1996) (“[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.“).
Under rational basis review, the statute will be accorded a strong presumption of validity, and we must uphold the
Walker contends that
Bain and Metzger, the United States, and the State of Ohio (collectively, “the government“) urge this Court to reverse the district court, and find that
In Hadix v. Johnson, this Court held that
In Hadix, we also concluded that
The government asserts that our decision in Hadix is dispositive on the issue of whether
Walker has asserted no valid grounds for distinguishing between
We note that two of our sister circuits have considered and rejected Equal Protection challenges to
B. Cross-Appeal
Walker argues that he is entitled to a new trial on several grounds. First, he contends that the magistrate gave an erroneous jury instruction that affected his substantial rights. Second, he asserts that he is entitled to a new trial because the magistrate erred in allowing defendants’ counsel to question Walker about medical documents concerning Walker‘s alleged injuries. Finally, he argues that he is entitled to a new trial on the issue of damages because the jury‘s award of $1 in comрensatory damages was against the weight of evidence and inconsistent with its award of punitive damages.
We review the denial of a motion for a new trial under
2. Jury Instructions
We begin by addressing defendants’ contention, raised for the first time on appeal, that Walker‘s motion for a new trial was untimely. Defendants’ argument is not well-taken.
Defendants do not dispute the magistrate‘s conclusion that the amended judgment triggered a new 10-day period. Rather, they argue that because Walker “could have” brought his motion earlier, his motion should have been dismissed as untimely. Defendants do not purport to base their contention on case law or the Rules; rather, they appeal to considerations
Walker argues that he is entitled to a new trial because the court gave an erroneous jury instruction. Specifically, the court instructed the jury that Walker had to prove as an element of his First Amendment retaliation claims that defendants’ actions “shock the conscience.” We agree that this instruction was erroneous, but do not find it to be sufficiently prejudicial such that a new trial is warranted.
“When instructions are challenged on appeal, our duty is not to read the instructions word for word in search of an erroneous word or phrase.” Wilson v. Int‘l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747, 757 (6th Cir. 1996) (quoting O-So Detroit, Inc. v. Home Ins. Co., 973 F.2d 498, 502 (6th Cir. 1992)). Rather, we review the instructions “as a whole in order to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury to reach its decision.” Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir. 1990).
We believe that the erroneous jury instruction did not result in unfair prejudice to Walker due to the magistrate‘s use of special interrogatories.4 The magistrate pursued this course
because it was unclear at the time of trial whether Walker‘s First Amendment retaliation claims were governed by the First Amendment standard5 or the heightened Fourteenth Amendment substantive due process standard.6 See, e.g.,
According to the special verdicts, the jury found that both defendants improperly confiscated and removed Walker‘s personal papers from his cell, that Walker‘s previous filing of grievances and lawsuits was a substantial and motivating factor behind this conduct, but that the defendants’ actions did not constitute an egregious abuse of power or otherwise shock the conscience. Following this Court‘s decision in McLaurin v. Cole, 115 F.3d 408, 411 (6th Cir. 1997), the magistrate applied the heightened “shocks the conscience” requirement to Walker‘s claims, and entered judgment in favor of defendants.
Subsequently, however, this Court issued an en banc decision in Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999), which held that the heightened substantive due process standard did not apply to prisoner retaliation claims based on the violation of an enumerated constitutional right. Under the applicable standard, then, Walker had proven a First Amendment retaliation violation. Based on the Thaddeus-X decision, Walker filed a motion to alter or amend the judgment, seeking entry of judgment in his favor. The magistrate judge granted Walker‘s motion, and entered judgment in favor of Walker and against the defendants in the amount of $426.
The use of special interrogatories in the case clearly reveals that the erroneous jury instruction had no effect on the result. Had the case been submitted to the jury using a general verdict form, a new trial probably would have been justified. See, e.g., Lewis v. City of Irvine, Kentucky, 899 F.2d 451, 456-57 (6th Cir. 1990) (holding that a new trial was warranted as the trial court erroneously instructed the jury on the legal
Walker contends that the erroneous jury instruction affected his substantial rights because the instruction misled and confused the jury, and that the use of special interrogatories did not cure this error. In support of this argument, Walker notes that several times during his counsel‘s closing arguments, he characterized defendants’ conduct as egregious and shocking. He argues that counsel‘s argument would have been “substantially different and more persuasive” had he not had to focus on the burden of proof. Appellee‘s Br. at 62.
We do not believe that Walker‘s closing arguments are of any relevance in this context. Counsel‘s closing statements certainly are not relevant to the issues of whether the magistratе‘s jury “instructions, viewed as a whole, were confusing, misleading, or prejudicial,” Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 263 (6th Cir. 2000) (quoting Innes v. Howell Corp., 76 F.3d 702, 714 (6th Cir. 1996) (quotation omitted)), or whether the erroneous jury instruction “affect[ed] the substantial rights of the parties.”
Moreover, Walker‘s argument misses the mark since, regardless of whether he had to show defendants’ conduct shocked the conscience, he had to prove that the alleged unlawful conduct actually happened. The interrogatories reveal that he did not succeed in this regard. The jury‘s finding that the conduct did not happen rendered the erroneous jury instruction harmless. While the court‘s instruction required Walker to prove one additional element, it did not alter his burden to prove the other elements which underlie the retaliation claim. Therefore, we agree with the magistrate that the erroneous jury instruction did not affect Walker‘s substantial rights.
Next, Walker contends that he is entitled to a new trial because the court below erred in permitting defendants’ counsel to question Walker, in front of the jury, about the absence of his medical records. Walker argues that this line of questioning wаs irrelevant and highly prejudicial, and such conduct tended to mislead the jury.
Importantly, Walker did not object to the allegedly prejudicial conduct at trial, nor did he raise the issue in his
4. Damages
Lastly, Walker claims that he is entitled to a new trial on the issue of damages because the award of damages was against the manifest weight of the evidence. Walker argues that he presented evidence of pain, suffering and mental anguish, and that the defendants did not rebut this evidence. Specifically, Walker notes that he testified that defendants’ conduct affected his sleeping and his willingness to exercise his First Amendment rights in the future. Moreover, he argues that the jury‘s award of nominal compensatory damages is inconsistent with its award of punitive damages and is against the weight of the evidence.
The scope of review of a damage award is extremely narrow. A trial court may not grant a new trial on the ground of insufficient damages unless the jury verdict is one that could not reasonably have been reached. See Anchor v. O‘Toole, 94 F.3d 1014, 1021 (6th Cir. 1996); v. Uniroyal, Inc.” cite=“661 F.2d 542” pinpoint=“546” court=“6th Cir.” date=“1981“>TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981). The remedy of a new trial for inadequate damages is appropriate only where the evidence indicates that the jury awarded damages in an amount substantially less than unquestionably proved by the plaintiff‘s uncontradicted and undisputed evidence. See Anchor, 94 F.3d at 1021. Thus, if the verdict is supported by some competent, credible evidence, a trial court will be deemed not to have abused its discretion in denying the motion. See id.
The fact that the defendants did not rebut Walker‘s testimony directly does not necessarily render the jury‘s determination on the issue of damages against the great weight of evidence. Walker had the burden of proving damages, and the only evidence of damages was Walker‘s self-serving testimony about his mental distress. This is not a case where the jury disregarded clear, objective and uncontradicted evidence. The jury was free to accept or disregard Walker‘s statement, and it chose to disregard it. There is no error in upholding civil rights jury verdicts awarding no compensatory damages where the plaintiff‘s sole evidence of damages is his or her own testimony of subjective injuries. See Robinson v. Cattaraugus County, 147 F.3d 153, 160 (2d Cir. 1998); Biggs v. Marshall, 93 F.3d 355, 360-61 (7th Cir. 1996); Davet v. Maccarone, 973 F.2d 22, 29-30 (1st Cir. 1992).
We also note that it was not inconsistent for the jury to conclude that defendants’ conduct was malicious enough to justify punitive damages, but that Walker suffered no actual, compensable injuries as a result. In civil rights cases, punitive damages may be awarded in the absence of a compensatory award. See Carlson v. Green, 446 U.S. 14, 22 n.9 (1980); Robinson v. Cattaraugus County, 147 F.3d 153, 161 (2d Cir. 1998). The jury‘s failure to award compensatory damages was not against the great weight of the evidence, nor was it inconsistent with its award of punitive damages.
For the foregoing reasons, we REVERSE the magistrate‘s order holding that
MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part, dissenting in part. In Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000), we found no constitutional deficiencies in the provisions of
I.
In upholding the constitutionality of the fee cap provision of
I take this opportunity, however, to point out that we, as a court and as a nation, would be naive to think that the statute did not have a disparate impact on suspect classes and on individuals exercising fundamental rights. The annals of human history are replete with accounts of atrocities committed against persons viewed as “different” by those individuals wielding political power and military might. Thus, it would be surprising indeed to find that American prisons were any more solicitous of differences in race, ethnicity, religion, or sexual orientation than is American society as a whole. Moreover, the demographic composition
II.
Even applying the rational basis review employed by the majority, however, I am convinced that the portion of the Prison Litigation Reform Act challenged in this appeal cannot withstand probing, analytical scrutiny. Although rational basis review does afford a strong presumption of validity to the enactment at issue as long as “there is a rational relationship between the disparity of treatment and some legitimate government purpose,” Hadix, 230 F.3d at 843, it “is not a rubber stamp of all legislative action, as
Walker has asserted no valid grounds for distinguishing between
We note that two of our sister circuits have considered and rejected Equal Protection challenges to
A. Reducing Frivolous Litigation
The first justification offered by the defendants and intervenors in this case as a basis for the disparity in treatment between prisoners and non-prisoners regarding attorneys’ fees is Congress‘s desire to curb the rising tide of frivolous litigation initiated by incarcerated plaintiffs. Assuming that such an intent is indeed rational and justifiable, it is clear that there is no rational relationship between the disparate treatment mandated by the PLRA and the governmental interest to be fostered. Because attorneys’ fees are awarded only to plaintiffs who can successfully demonstrate constitutional injury, “frivolous” filings are dismissed well before any calculation of attorneys’ fees comes into play. Capping the amount of fees to be paid to a “prevailing party,” therefore, bears absolutely no logical relationship to a desire to eliminate suits that by definition have no chance of succeeding. Reliance upon this line of argument for support for the challenged legislation is thus anything but rational.
Moreover, the 150% attorneys’ fee cap does not affect the chance of the litigant‘s success on the merits of the suit and would not, therefore, enter into any calculus into which a hypothetical, incarcerated plaintiff would delve prior to lodging a complaint in federal court. “To be sure, Congress‘s goal of reducing the number of prisoners who file frivolous lawsuits is a laudable goal. However, the attorney fees cap does not play any role in achieving this goal.” Johnson v. Daley, 117 F. Supp. 2d 889, 900 (W.D. Wis. 2000). But see Boivin v. Black, 225 F.3d 36, 44-46 (1st Cir. 2000); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999).
B. Deterring Trivial Or Inconsequential Suits
Curiously, one of the two rationales discussed in the majority opinion for limiting the total amount of a fee award in this case is the need to discourage lawsuits that, although meritorious, are considered “trivial” or not “significant.” I
Finally, it would be foolhardy for us to think that the litigants filing
[I]t is irrational to conclude that [a pro se prisoner] bases his decision [to file a civil rights claim] on the distant possibility that at some future time, his presently non-existent lawyer might recover a smaller rather than a larger amount of fees. . . . A prisoner may harbor hopes of a substantial monetary award (as do non-prisoner plaintiffs), but he has no reason to take into consideration the size of the fee award to his counsel. It is far more likely that the prisoner takes into consideration the immediate economic impact of giving up 20% of the
greater of the average monthly balance in his account or the average monthly balance in his account for the six months preceding the filing of his complaint, see § 1915(b)(1)(A) and(B) , as well as the non-economic consideration that if his suit is deemed frivolous he will be assessed one strike toward the maximum of three that will prevent him from filing any more suits without prepayment of the full filing fee except in the one situation in which he faces an imminent threat of serious physical injury. See§ 1915(g) .
117 F. Supp. at 896. Thus, I cannot believe that the governmental interest in reducing the proliferation of so-called “trivial” suits in any way justifies, or is rationally related to, the draconian efforts to limit fees awarded in successful civil rights cases.
C. Reducing Intervention Of Federal Courts Into Prison Management
Equally unpersuasive is the intervenors’ proffered justification that capping attornеys’ fees awards will reduce federal court intrusions into daily prison management matters. Because most prisons are still arms of state government, the officials in charge of those institutions remain subject to the rule of law as defined by the constitution and as interpreted by the courts. To the extent that litigants are able to establish constitutional violations by prison officials, the courts are duty-bound to rectify those transgressions. Any attempt, therefore, to restrict such relief unconstitutionally subverts bedrock principles lying at the core of our federal system of government.
Additionally, restricting the remuneration available to attorneys in no way limits the relief granted by a federal court to remedy a constitutional violation. Once again, the obvious lack of relationship between the result sought and the means chosen to gain that end ratifies the magistrate judge‘s determination that this ground is anything but a rational basis for the statutory enactment.
perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Moreover,
In Hadix, we upheld the PLRA‘s legislative determination of a reasonable rate for legal services for prisoner civil rights claims. Once that rate is established at a level that does not constitute an unconstitutional taking of a lawyer‘s time and expertise, federal courts themselves are directed to ensure that attorneys’ fee awards are commensurate with the effort expended and the relief obtained. In fact, district judges must undertake an evaluation of the appropriate time that should have been spent on such a case and must disallow any attempt to recover compensation for legal work not required to prevail on the claims asserted. Adherence to such sound legal principles prevents windfall awards without irrationally differentiating between successful prison civil rights cases and other civil rights cases. Consequently, this purported rationale for distinguishing between the two types of cases also fails to pass constitutional muster, even under a deferential rational basis analysis.
E. Protecting The Public Fisc
Without question, the desire to protect public funds is a laudable and legitimate goal of legislation. In fact, the majority seizes upon this rationale as its second justification for the purported legitimacy of the challenged legislation. As
Obviously, eliminating all awards оf attorneys fees in prison litigation would protect money in the public treasury. By enacting
F. Limiting Disruption From Prison Litigation On Prison Operations
The defendants and intervenors also submit that limiting the attorneys’ fees awarded in successful civil rights suits would enhance prison operations by increasing morale and minimizing the time prison officials must spend away from their jobs. To give any credence to such an argument, however, is literally tantamount to elevating absurdity to the level of rationality.
First, as noted previously, limiting attorneys’ fees does nothing to impinge upon the protected right of access to the courts for redress of constitutional violations. Short of an improper restriction of such a freedom, prison officials will not be insulated by an attorneys’ fee cap from demands on their time for administrative hearings, depositions, and court proceedings. In fact, even if all prisoner civil rights suits were prosecuted pro se, the relevant prison officials would
G. Curbing Prior Abuses Under § 1988
As a final attempt to justify the prisoner/non-prisoner distinction in the application of
III.
In arguing that the provisions of
Without question, this court‘s “law of the circuit” doctrine precludes us from challenging in this appeal the efficacy of the Hadix decision. See, e.g., United States v. Seltzer, 794 F.2d 1114, 1123 (6th Cir. 1986) (only an en banc court may overrule circuit precedent, absent an intervening Supreme Court decision or change in the applicable law). I believe, however, that the provisions of
IV.
The majority, while admitting “to being troubled by a federal statute that seeks to reduce the number of meritorious civil rights claims and protect the public fisc at the expense of denying a politically unpopular group their ability to vindicate actual . . . civil rights violations,” in fact upholds such legislation through fear of turning the judiciary into a “superlegislature.” I would suggest that the majority‘s vision in this matter has been inverted. Rather than the court being
Notes
- a. Did defendants ransack or trash plaintiff‘s cell on April 4, 1995?
b. Did defendants improperly confiscate and remove papers and/or other property from plaintiff‘s cell on April 4, 1995?
c. If you answered “yes” to either Question 1a or Question 1b, was the fact that plaintiff had previously filed grievances and lawsuits against the defendants or their colleagues a substantial or motivating factor behind that conduct?
d. If you answered “yes” to either Question 1a or Question
1b, was it conduct which shocks the conscience? - a. Did defendants, independently or collectively, verbally threaten and attempt to intimidate plaintiff because of his previous and anticipated lawsuits and grievances? b. If you answered “yes” to Question 2a, did the conduct of defendants amount to an egregious abuse of power; that is, was it conduct which shocks the conscience?
- a. Did defendant Bain pull plaintiff‘s handcuffed arms and wrists through his cell door food slot on April 4, 1995 with the intent to injure or inflict pain? b. If you answered “yes” to Question 3a, was the fact that plaintiff had previously filed grievances and lawsuits against the defendant or his colleague a substantial or motivating factor behind defendant Bain‘s action? c. If you answered “yes” to both Question 3a and 3b, did defendant [Metzger] improperly and intentionally allow defendant Bain to injure plaintiff? d. If you answered “yes” to Question 3c, was the fact that plaintiff had previously filed grievances and lawsuits against defendant or his colleague а substantial or motivating factor behind defendant [Metzger‘s] action? e. If you answered “yes” to Questions 3a and 3b, did the conduct of defendants amount to an egregious abuse of power; that is, was it conduct which shocks the conscience? Answer as to defendant [Metzger] only if you also answered “yes” to Questions 3c and 3d. f. If you answered “yes” to Question 3a, did plaintiff suffer physical injury and/or pain and distress as a result of that conduct?