*1 jury’s actions that the causation issue. in federal securities quirement Therefore, need not reach caused the defen- the issue of plaintiffs loss be jury preclusion respect claim to either wrongful conduct. dant’s decide claim. action had to whether state court shortcomings and the in- personal judgment we AFFIRM the defendants concealed or formation that the of the District Court. beyond defen- industry-wide conditions plaintiffs’

dants’ control that caused reaching of no causa- its verdict

loss.

tion, decided that the jury must have loss, caused the

condition of the market wrongful conduct. The de-

the defendants’ represent, did not and securities

fendants in- presume, does not that tax shelter estate, cattle, gas in real oil and vestments WEEKS, Harry Plaintiff- J. free. properties and similar are risk On Appellant/Cross- in this securities case the causation issue Appellee, jury essentially have to answer would type question the same the earlier CHABOUDY, M.D., L.R. Defendants change in the market the case: Was Appellee/Cross-Appellant. wrongful cause of the loss or the conduct? wrongful proved Because the 91-3856, 91-3993, Nos. 91-3994. respects case in all material is the state Appeals, United States Court allege plaintiffs same as the conduct here Circuit. Sixth the test of causation is essen- because same, tially jury verdict on the Argued 1992. Oct. precludes cause of the loss in the state case Decided Jan. 1993. relitigation of this issue the federal case. Denying Rehearing Petition presented by The RICO claim April subject defendants is to the same issue preclusion remedy bar. civil RICO 1964(c) that, provides

under 18 U.S.C. §

“any person injured prop in his business or

erty violation by reason of section chapter may 1962 of this sue therefor in (em appropriate district court.” Id. added).

phasis “by reason of” lan

guage imposes requirement a causation Sedina,

recovery damages. S.P.R.L. v. Co., Inc., 479, 496-97, 105

IMREX (1985). 87 L.Ed.2d 346 sufficiently issue is similar

This causation litigated plaintiffs’

to that which was justify application claim to of issue

state noted,

preclusion. As the Seventh Circuit tort,

“[cjivil statutory RICO is a so causa apply principles generally in tort

tion apply Reyn cases.”

cases civil RICO Co., Dyer Development East

olds v. (7th Cir.1989). plaintiffs’

Both of claims are barred Michigan preclusive effects of the *2 (argued and A. Gerhardstein

Alphonse Gerhardstein, Laufman, & briefed), Rauh OH, plaintiff-appel- Cincinnati, cross-appellee. lant/ Atty. Gen. Stegeman, Asst. B. Christian briefed), Litigation Federal (argued defendant-ap- OH, Cincinnati, Section, cross-appellant. pellee/ Judge; and MERRITT, Chief Before: BATCHELDER, Circuit NORRIS Judges. Judge.

MERRITT, Chief prison medical Harry Weeks sued Inmate Eighth under L.R. director for “deliberate Amendment of Es- in violation needs” serious 97, 104, Gamble, telle Dis- (1976). The Weber, J., plaintiff’s Court, granted trict issue on the summary judgment motion plaintiff’s liability, determined pay defendant $50,000, ordered to be dam- the total $5,000, or 10% reduction appeals the 90% Plaintiff ages. cross Defendant damage award. summary judg- claiming that appeals, damages and awarding plaintiff ment order rea- For the was error. relief injunctive below, Dis- affirm the expressed sons the is- summary judgment trict Court’s Defendant, reverse liability against sue of remand damages and apportionment federal law. under assessment proper for a the order reverse alsoWe relief.

FACTS uncontroverted, following facts were Judge Weber by District cited and were mo- plaintiff’s granting his 1/8/91 Order”): (“S.J. summary judgment tion for was incarcerated Harry Weeks Facility from Correctional at Southern Ohio 9, 1988. September parole on 1978 until director Chaboudy, medical L.R. retired) prison, Weeks’ (now at the time, of this treating physician much May including period dur- 4, 1985, period February which Eighth alleges rights violated. Court held that “deliberate reaction,1 Weeks suffered a conversion indifference to serious medical needs of whereby paralyzed prisoners he was from the waist constitutes the unnecessary and May February pain From proscribed by down. wanton infliction of ... (citation omitted), Weeks was housed “administrative Amendment” *3 control,” control,” “security or “local con- and that such deliberate trol,” areas that were most restrictive with “states a cause of action under [42 U.S.C.] respect privileges. to inmate Wheelchairs 1983.” permitted (nor in were not these areas they part in other available of the asser Contrary to Defendant’s prison except infirmary). tion, indiffer a determination of deliberate require proof of intent ence does not Chaboudy authority to admit Dr. had inquiry a detailed into his state of harm or prison infirmary. to the It was the Weeks County, 891 Shelby In Leach v. mind. keep paralyzed in- accepted practice to denied, 495 U.S. (6th Cir.), cert. F.2d 1241 infirmary because was mates 932, 2173, (1989), 110 S.Ct. 109 L.Ed.2d 502 cater to prison equipped to only area of the “deplorable” we found that conditions fact, prison In another doctor needs. their under which inmate Leach was incarcerat infirmary in 1986 at to the admitted Weeks (he given hospital ed or a was bathed warden, and request prison days, spite mattress of his parole until his remained there Weeks condition) paraplegic established that his Chaboudy that Weeks Dr. knew deliberately ig serious medical needs were if access to a wheelchair not have would In nored. this it is uncontroverted infirmary. He wrote not admitted Chaboudy para that Dr. knew of Weeks’ 15, February 1983 that Weeks was on plegia. per He knew that Weeks negates in Block this “presently locked J so mitted a wheelchair in his Block J cell. He particular in his of a wheelchair the use infirmary could admit Weeks to the if he so pursue other avenues area. We will chose. He refused to admit Weeks to the if can’t derive and see consultation infirmary. These facts establish that he other than disposition of this man some deliberately indifferent to Weeks’ seri disposi- infirmary.” other here in the No needs, Judge ous medical Weber found. by the defen- attempted found or tion was Chaboudy that a Dr. counters conversion dant. psychiatric there- reaction is a disorder and being denied the use of As a result need, constitute a medical seri- fore cannot wheelchair, unable to take ad- Weeks was support or otherwise. We find no ous time, out-of-cell or to vantage of his limited argument. Paralysis is a medical dis- He could not care for his shower himself. physical injury by induced or order whether his cell. person or clean problems. Mental ill- emotional or mental no less real than other illness. ness is VIOLATION CONSTITUTIONAL lack of actual Defendant’s reliance on challenges the District Chaboudy Dr. unavailing. Judge knowledge is also Web- he violated Weeks’ conclusion that Court’s Chaboudy, by “Dr. virtue of er found that points out rights. He Eighth Amendment facility, should long tenure at the knowledge that had actual that he never plain- known that his refusal to admit the or to to clean himself was unable infirmary tiff to the would result claims that his cell. He move about conditions which he did in fact endure ...” liability re- Court’s assessment agree squalor that the which Weeks intent, a find- a determination of quired being was forced to live as a result of a motion impermissible is ing he asserts clearly denied a wheelchair was foreseeable ar- summary judgment. He further Chaboudy. Dr. official, public he should gues that as a We must also affirm the District immunity from suit. enjoy qualified rejection claim of Court’s of Defendant’s Gamble, Estelle v. In 104- qualified immunity. Under the (1976), Creighton, Court’s test Anderson v. 50 L.Ed.2d 251 Gindin, agnosis a neurosur- defined was made Dr. 1. A "conversion reaction” was Chaboudy process Hospital, geon in his Affidavit as "a where at Scioto Memorial whom physical, emotions become transformed into ei- Chaboudy in De- referred Weeks for evaluation manifestations, sensory, hys- i.e. ther motor or cember of 1982. blindness, hysterical paralysis.” terical The di- judgment entering than 11. Rather 3038-39, 638-39, amount, howev- Defendant against (1987), 97 entitled apportion toon went er, the District he violated if immunity qualified Defen- damages between liability for a reason- of which law clearly established who were personnel prison have been would dant physician prison able aware. him: the District before argues that never Eighth Cir- an improperly considered responsibility Court cuit major “[T]he Roberts, case, Cummings v. observed those who rests with Cir.1980), as established daily: condition and his plaintiff aware. have been he should personnel security the director for sued Cummings, on medical blocks into the came who rounds. Louis, city jail Mo. the St. security comparing their *4 wheelchair him with a provide to failure ... the defendant’s responsibilities jail, injury the back a he sustained after security and those finds that the Court prevented deprivation asserting that the responsible medical hygiene. maintaining adequate from him damages the of total amount 90% point. directly on is therefore case The responsible the defendant and claimed for ...” damages Employees Ass’n of Civil Service In Ohio Cir.1988), we 1171 Seiter, 858 v. ap- whether determine We must Id. of decisions under test out a set in permitted damages is of portionment clearly estab- may become other courts lished law 1983. pursuant to brought § actions offi- government chargeable to 42 has held that Court un- point must both decisions “those cials: a to courts follow directs 1988 U.S.C. § unconstitutionality the of the mistakably to rules determining the three-step process in clearly so of and be complained conduct foreshadowed rights claims: to civil applicable decision direct authori- applicable laws of the First, are to look to courts the mind of in no doubt ty as to leave as such laws “so far States the United conduct, if chal- that officer reasonable and crimi- carry civil to suitable [the are be grounds, would constitutional lenged on into effect.” rights [42 nal statutes] Cummings Id. at 1177. wanting.” found If no suitable federal U.S.C. rule 1988.] the chal- only was Not test. passes this exists, the second courts undertake identical, but nearly lenged official of state considering application step by its Cummings based in Eighth Circuit changed law, modified and “common of action valid cause of a determination and statutes” by the constitution 97, 97 S.Ct. Gamble, 429 U.S. v. Estelle step asserts A Ibid. third forum state. certainly (1976),which 285, L.Ed.2d 251 50 interest: federal predominance authority” “applicable direct constitutes only if it is state apply to law courts are not the outcome. “clearly foreshadowed” that the Constitution “inconsistent with Ibid. our States.” cited of the United Furthermore, and the District Court laws concluded Leach, in which in 261, 267, 105 Garcia, 471 v. Wilson should County jail employees Shelby (1984) that L.Ed.2d 254 85 S.Ct. (quoting (the time same 42, in 1983 Grattan, aware have v. Burnett judice) in the sub 36 the events L.Ed.2d period as 47-48, 104 S.Ct. deliberate conclude (brackets original). their in (1984)) that consti- inmates paraplegic exists, it was and that needs rule medical a federal that violation, District Court. by the applied an tuted 1244. Under F.2d at on Estelle. circumstances, based the common- outlined Supreme Court quali- defense these liability joint and rule of available. is not immunity simply fied Tran Compagnie Generate Edmonds satlantique, 443 U.S. DAMAGES law ... (1979): common “[T]he a tortfeasor party sue Having injured that Dr. Cha an determined allows for an damages amount the harms suffered the full boudy Weeks, for indivisible ligence caused neg that tortfeasor’s injury that to the issue of dam we turn now causing, factor a substantial that “the was the Court found ages. The District others negligence of if concurrent requested by plaintiff even contributed damages 260, 99 Id. at to the incident.” $50,000 prop and reasonable amount of are continued then The court S.Ct. at compensate vindicate er to him a footnote: rights S.J. Eighth Amendment ...” of concurrent tort- supra, forth actions liability is not relieved A tortfeasor for the regarding are an feasors irrelevant indivisi- just be- he caused entire harm injury. To recover his full ble from also a negligence was another’s cause factor only necessary Chaboudy, it was injury. ‘Nor are effecting the to show the Defendant for the him diminished.’ damages against proximate injury. cause of his generally concurrent tortfeasor A... another, ... contribution may seek found that Dr. Cha- liability for relieved from is not but he proximate cause of boudy was the Weeks’ the nonde- damages even when the entire harm: from liabili- is immune tortfeasor fendant infirmary only place Since the was the principles, These ty_ courseware to a could access wheel- injury is divisible where inapplicable chair, assignment strictly thereto awas part can be each the causation decision, a wheelchair was each tortfeasor. assigned to separately being provided by security per- block, sonnel in the the defendant was n. 8 2756 & n. at 260-61 & Id. position change plain- the tiff’s circumstances.... one (Second) of Torts Restatement (quoting His failure to 881). 886A, 433A, 879, §§ cannot be a claim of reli- act ance excused admiralty but an others, including security upon Edmonds *5 one, ap have courts, including this personnel. other therein to expressed principles the plied prison other Order at 10-11. That S.J. See, City v. e.g., Patrick claims. predica- of Weeks’ of were aware personnel (6th Cir. Detroit, 906 F.2d 1114-16 well, may render them liable as but it ment cannot must several joint on and 1990) instruction (jury liability. dimmish Defendants’ We is “apportionment proper, and liability was therefore the District reverse Court’s liabili only joint several Defendant’s liabili- when and insofar as it limits improper order ty Laurent, considered”); damages. v. to of Plaintiff’s Watts ty is to be Cir.1985) (former (7th inmate 774 F.2d judg entire may recover youth center at RELIEF INJUNCTIVE found any the defendants from of ment liable); that the District Defendant asserts Vernon, 877 F.2d City v. Finch of relief on behalf of award Court’s case, (“In Cir.1989) (11th this 1497, 1503 The District Court’s error. Plaintiff was of rule of court, a federal applying the district addition, “In the Court provides: S.J. jointly and City correctly held the damages, pre to defendant the the hereby ORDERS suf damages Finch for the severally liable plaintiff in the for a wheelchair scribe event discharge.”) wrongful from the fered parole on plaintiff is violated [sic] paralyzed in the same to returns SOCF and condition personnel Although prison all times rele in at he has been action,2 District Court parties to the not the 11. Dr. S.J. Order to this case.” vant the harms liability concurrent for found has Weeks argues that since Chaboudy suffered Weeks: Dr. since Cha- parole and on released responsibili- the bulk of Unquestionably, medical director longer boudy is no the security per- damages falls on the ty for injunctive re claim prison, Weeks’ the of the ignored the condition sonnel who moot. is lief him help refused to plaintiff and Hairston, F.2d 409 Mosley v. the secu- person his or cell. It was clean of in- Cir.1990), mootness we considered constantly personnel observed rity who of the defen- context relief the junctive he en- and knew the conditions Weeks provi- pass-through compliance with dant’s he could walk and had because dured no Depen- Aid to Families with the sions dent though outside his cell. to a wheelchair access held that program. “[al- Children wrongful However, voluntary applying the cessation at 9. S.J. Order automatically render liability set does joint principles complaint Warden, copy the Marshall, origi- with Ron Marshall prison was the 2. R.C. summons, bring attempt to apparently nally He was nor did ever as a defendant. he named expressed dropped reasons never from the case the District Court ad- estate." The Marshall’s Findings orders, Proposed of Fact and although in Defendant's point in of his dressed this 9/19/90, Law, only 11: "The No. Conclusions Chaboudy listed in the has his SJ. Order Chaboudy, the is as in this action Dr. defendant caption. SOCF Warden plaintiff never served deceased orig- the been referred rehearing has for inal be may nevertheless moot, ‘the case moot if there is panel. hearing that demonstrate can defendant the that expectation no reasonable rehearing, petitioned earlier Plaintiff ” 415 (quot- Id. repeated.’ be wrong will accompanying the Order that asserting Co., 345 Grant W.T. States United January on this Court entered Opinion 26, L.Ed. cross- Defendant’s address did Mosley is reasoning in (1953)). Our 1303 applicable fees awarded attorney’s of the appeal here. not reverse We did court. district therefore out, injunc- award; should pointed has As Defendant court’s district personally, The defendant’s affirmed. against tion is considered be di- post based retired award fee challenge he has and since medical underlying he cannot prison, challenge to the director rectly on Furthermore, no there is district Since comply. case. possibly merits affirmed, paral- Plaintiffs liability record that finding of evidence court’s pa- appeal violate on he Should cross permanent. is ysis for defendant’s basis (and see no we longer ex- reincarcerated no attorney’s be fees role and award occur), he will this presume reason ists. Final- a wheelchair. require longer may no remand that we requests also already demon- ly, prison work attorney’s fees an award for done will provide willingness court strated the district appeal. Since on the opinion; to consider care consistent opportunity have the the last re- infirmary for fees of additional the award was admitted two remand case, we done work incarceration. further garding will of his years stage of at this the issue not address disposition facts and our of these In light plaintiff’s proceedings. the petition conclude in this issues of the other denied. is expectation “no reasonable that that there rehear- petitioned has also repeated,” will be wrong *6 panel has reviewed The banc. en improper. is therefore injunction rehearing and con- for petition defendant’s petition original raised the issues cludes CONCLUSION upon the fully considered summary judg- its Court District Ac- the case. submission cordingly, grounds its erred has Order ment also de- petition is defendant’s violating Plain- liable finding nied. rights. tiff’s damages based apportionment Court's findings is inconsistent factual these on with federal that AFFIRM therefore law. We rendering judg- the Order portion against Defen- favor ment in dant. We portions REVERSE CORPORATION, only TRUST liable holding Defendant RESOLUTION ordering damages, County Plaintiff’s Federal Madison as Receiver relief. Association, Plain- Savings and Loan is remanded Accordingly, the tiff-Appellee, proceedings for further Court opinion. inconsistent INVESTMENTS, Defendant- M & L Appellant. PETITION DENYING ORDER No. 91-3009. REHEARING FOR Appeals, United States 16, 1993. April Circuit. Seventh petition having received court having petition banc, rehearing en March Argued original circulated 11, 1993. Jan. Decided active to all but also panel members of this judge court, no judges sug- a vote requested having court banc, petition rehearing en gestion