Gevas v. Pork

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID GEVAS,

Plaintiff,

Case No. 18-CV-04984

v.

Judge Mary M. Rowland

TERRELL PORK, et al.,

Defendants.

MEMORANDUM ORDER AND OPINION

Plaintiff David Gevas sued defendants Terrell Pork, William Brown, and

Ronald Gomez, all Illinois Department of Corrections (IDOC) employees, for lack of

access to medical care and supplies he suffered in state custody. In May 2023, a jury

found Defendants Pork and Brown were deliberately indifferent to a substantial risk

of harm to Gevas in violation of the Eighth Amendment to the U.S. Constitution.

[727]. The jury awarded no compensatory damages, one dollar each in nominal

damages against Pork and Brown, and $35,000.00 in punitive damages against Pork

and $25,000.00 in punitive damages against Brown. Id. The jury found Gomez not

liable. Id.

Pork and Brown filed timely motions for remittitur and/or a new trial under

Federal Rule of Civil Procedure 59. [736]. For the following reasons, the Court denies

Defendants’ motions for post-trial relief.

I. Background

Gevas is an inmate in the custody of IDOC and was incarcerated at Stateville

from 2010 to 2019. In June 2017, he was relocated from C-House to X-House in a

wheelchair. [732 Trial Tr. 5/23/23] at 313. Defendants Pork, Brown, and Gomez

worked in Stateville’s X House: Pork as a sergeant, Brown as a lieutenant, and Gomez

as a correctional officer. Id. at 202, 262, 272.

In June 2018, Gevas sued the three IDOC correctional officers — Pork, Brown,

and Gomez — and Wexford Health Sources medical staff under § 1983 and the First

Amendment for retaliation and the Eighth Amendment for deliberate indifference.

[14]. After the Wexford Defendants and First Amendment claims were dismissed at

summary judgment, [614], Gevas proceeded to trial in May 2023 on his Eighth

Amendment claims against the IDOC Defendants.

The jury held Pork and Brown liable for deliberate indifference for denying

Gevas access to a wheelchair for two months pursuant to a medical permit and

refusing for 17 months to give him a new mattress to comply with a permit allowing

him to have two mattresses to recover from surgery. [727]. The jury awarded Gevas

no compensatory damages, nominal damages of $1 against each defendant, and

punitive damages of $35,000 against Pork and $25,000 against Brown. Id. Gomez was

not found liable. Id.

II. Defendants’ Motion for Remittitur of Punitive Damages

Defendants contend that the $60,000 award violates principles of

proportionality under the Due Process Clause. For the reasons below, the Court

declines to remit the jury’s award.

A. Standard

A jury can award punitive damages to a plaintiff “to further a State's legitimate

interests in punishing unlawful conduct and deterring its repetition.” BMW of North

America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). A

punitive damages award violates the Due Process Clause “[o]nly when an award can

fairly be categorized as grossly excessive in relation to these interests [and thus]

enter[s] the zone of arbitrariness that violates the Due Process Clause of the

Fourteenth Amendment.” Id. (cleaned up); see also Holmes v. Elgin, Joliet & Eastern

Ry. Co., 18 F.3d 1393, 1395-96 (7th Cir.1994).

In Gore, the Supreme Court set three guideposts for judicial review of a

punitive damages award: (1) the reprehensibility of the defendant’s conduct; (2) the

disparity between the award and the harm or potential harm suffered by the plaintiff;

and (3) the difference between the award and civil penalties authorized in comparable

cases. 517 U.S. at 575. At bottom, the “primary responsibility for deciding the

appropriate amount[ ] of [punitive] damages rests with the jury,” EEOC v. AIC

Security Investigations, Ltd., 55 F.3d 1276, 1287 (7th Cir. 1995).

B. Reprehensibility

The reprehensibility of Defendants’ actions is the most important indicator of

whether a punitive damages award is reasonable. Gore, 517 U.S. at 568.

Reprehensibility breaks down into five factors: 1) the injury caused was physical as

opposed to economic; 2) the tortious conduct evinced an indifference to or a reckless

disregard of the health or safety of others; 3) the target of the conduct had financial

vulnerability; 4) the conduct involved repeated misconduct; and 5) the harm was the

result of intentional malice, trickery, or deceit, or mere accident. State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). When all factors are absent, a

punitive damages award is suspect. Id.

Here, at least four factors weigh against Defendants. The jury did not credit

Gevas’s evidence that he suffered a physical injury, hence the lack of compensatory

damages. Still, weighing the evidence favorable to both parties, the jury had ample

evidence to conclude that Pork and Brown acted in a way that indicated a reckless

disregard for the health of Gevas. Defendants denied Gevas access to a wheelchair

for six weeks without justification, and despite Gevas’s valid medical permit. [732

Trial Tr. 5/23/23] at 322, 377. This restriction caused Gevas pain and discomfort

whenever he had to go somewhere outside of his cell without a wheelchair. Id. 345-

50. The jury heard testimony that Pork aggressively confronted Gevas about why he

needed a wheelchair. id. at 320. Pork then went so far as to tell Gevas that “[i]n X

House, we don't give out wheelchairs. They give out wheelchair permits like water in

the health care unit,” and that “X-House officers do not get paid enough to push

wheelchairs.” Id. Both Defendants also knew that Gevas had a medical permit for a

double mattress, id. at 228-231, 282-86, and yet refused to replace his moldy, dingy

mattress for more than 500 days, again without any meaningful justification. Id. 316-

19, 370. The jury was free to assess Brown and Pork’s restrictive approach to Gevas’s

medical needs and consider the evidence of Pork’s remarks to find Defendants had a

reckless disregard for Gevas’ health.

Next, Gevas was not financially vulnerable per se, but he was personally

vulnerable as a prisoner in Defendants’ official physical custody and control. Lee v.

Edwards, 101 F.3d 805, 811 (2nd Cir. 1996) (finding a police officer’s misconduct “had

the power to set into motion the coercive apparatus of the state” and used “real and

threatened force that could have aroused the jury.”); Sommerfield v. City of Chicago,

2018 U.S. Dist. LEXIS 55136, at *20 (N.D. Ill. 2018).

Pork and Brown also denied Gevas a wheelchair for a period of two months and

denied him a new mattress over a period of seventeen months. These were not

isolated incidents.

Finally, the jury heard evidence through cross-examination that Pork and

Brown took steps to minimize their misconduct. At trial, both Defendants admitted

on cross-examination that they were aware of Gevas’ permit. [732] at 229, 283-85;

[733] at 494, 510. Brown testified that he called the healthcare unit about the permit.

[732] at 283-85. Pork acknowledged that he stored inmates’ medical permits in his

personal binder, id. at 227, and that he typically received notice of grievances about

his conduct. Id. at 232. To the contrary, both Defendants submitted declarations in

support of summary judgment that they had no knowledge of Gevas’s medical permit

for a wheelchair. [574].1 They were impeached with these declarations.

1 The declarations were summarized in the court’s summary judgment opinion. [614]. In all, Pork

and Brown both stated that: (a) They did not recall whether they were aware of Gevas’ wheelchair

permit for the period from June 29, 2017, to August 21, 2017, or whether Gevas had used a

wheelchair during that time; (b) They would always abide by an inmate’s medical permits and would

call the healthcare unit if they had questions or concerns about a permit; (c) They never personally

interfered with, delayed, or denied medical care to Gevas, and they never denied him access to a

wheelchair; and (d) They did not know whether Gevas had filed grievances against them and were

not involved in the grievance process at Stateville. Id. at 9-10.

In their motion, Defendants argue that the Court did not admit the

declarations into evidence, only allowing Plaintiff’s counsel to use the statements for

impeachment. [736] at 13-15. Still, the jury, in accessing the evidence, was permitted

to consider the statements as evidence of Defendants’ previous attempts to avoid

responsibility for their conduct. See Martinez v. City of New York, 16-CV-79, 2023 WL

4627739, at *17 (E.D.N.Y. July 19, 2023) (citing Jennings v. Yurkiw, 18 F.4th at 393

(2nd Cir. 2021) (allowing jury to consider evidence that “did not itself form the basis

of liability” when deciding whether to award punitive damages in a deliberate

indifference case). There was ample evidence for the jury to determine that Gevas

went without a wheelchair and clean mattresses for months because of deliberate and

reckless disregard by Pork and Brown.

Four out of the five State Farm factors weigh in Gevas’s favor. There is

sufficient evidence to support a finding of reprehensibility.

C. Ratio

Defendants next argue that the disparity between the punitive damages and

the lack of compensatory damages is “staggering.” Following Gore, Courts usually

look to the ratio of the various awards, i.e. the size of the award relative to the size of

compensatory damages awarded by the jury for the same conduct. That calculation

produces a peculiar outcome when, as here, the jury does not award compensatory

damages – here the “ratio” of the award as compared to the $2 nominal damages is

30,000 to 1.

It follows that “nothing prevents an award of punitive damages for

constitutional violations when compensatory damages are not available.” Calhoun v.

DeTella, 319 F.3d 936, 942 (7th Cir. 2003); accord Sommerfield v. Knasiak, 967 F.3d

617, 624 (7th Cir. 2020); Edwards v. Jewish Hospital of St. Louis, 855 F.2d 1345, 1352

(8th Cir.1988) (“To apply the proportionality rule to the nominal damages award

would invalidate most punitive damage awards because only very low punitive

damage awards could be said to bear reasonable relationship to the amount of a

nominal damages award.”). In Matthias v. Accor Economy Lodging, Inc., 347 F.3d

672, 676 (7th Cir. 2003), the Seventh Circuit explained that punitive damages serve

an important deterrence function in cases that prosecute dignitary harm.

Compensatory damages “do not do the trick” in such cases because compensable harm

can be minimal or hard to quantify. Id. Punitive damages thus fill in to prevent

offenders from “eluding liability” and deter future misconduct. Gavin v. AT & T Corp.,

464 F.3d 634, 641 (7th Cir. 2006).

So, though the jury did not find that Gevas suffered any compensable injury,

they still found that Defendants acted in reckless disregard of Plaintiff’s

constitutional rights. Gevas faced great potential harm due to Defendants’ deliberate

indifference, subjected to immobility and unsafe sleeping conditions. The disparity

between the nominal damages and punitive damages is not cause to remit the award.

D. Comparable Cases

The third Gore guidepost instructs courts to compare the punitive damages

award to jury awards authorized in similar cases. The Court will do so, with two

caveats that other courts considering remittitur have noted. First, the “relative

dearth of punitive damages awards for claims of deliberate indifference to serious

medical needs” across the federal courts, Martinez, 2023 WL 4627739, at *20 (quoting

Williams v. Marinelli, 13-CV-1154, 2017 WL 11473740, at *25 (D. Conn. Feb. 8, 2017),

prompts the Court to broaden its search to comparable police misconduct cases.

Second, older award sizes ought to be adjusted for inflation. See Synnott v.

Burgermeister, 22-1104, 2024 WL 108784, at *2 (7th Cir. Jan. 10, 2024); Jennings, 18

F.4th at 393 n.7.

With that in mind, the jury award here is not out of bounds with comparable

cases. While Defendants and Gevas cite cases on either side of the award at issue

here, the Court looks primarily to cases with similar facts. The most comparable case

in this Circuit is Townsend v. Allen, 09-CV-204-BBC, 2009 WL 347010 (W.D. Wis.

Feb. 10, 2009), in which an incarcerated plaintiff was forced to sleep on an unsanitary

mattress for two months and prevailed on his deliberate indifference claim. The jury

awarded him $295,000 in punitive damages, which the trial court remitted to

$29,500. Id. Looking outside the Circuit, Beckford v. Irvin provides another helpful

comparison. 49 F. Supp. 2d 170 (W.D.N.Y. 1999). There, an incarcerated plaintiff

brought a successful deliberate indifference suit against prison officials for denying

him a wheelchair for a month and ignoring his bedsores. Id. at 173-76. The jury

awarded no compensatory damages and $35,000 in punitive damages against two

correctional officer defendants. Id.

The awards in Townsend and Beckford are each worth more than $42,000

today. Altogether, the two cases indicate that the jury’s punitive damages award

against Pork and Brown is within the range established by comparable cases. Here,

Gevas suffered for a longer period than the Townsend and Beckford plaintiffs:

Defendants denied him wheelchair access for two months and refused to replace his

filthy mattress for 17 months. Where “the judicial function is to police a range, not a

point,” Matthias, 347 F.3d at 676, the Court finds a larger award reasonable to

account for more protracted misconduct. The jury’s punitive damages award of

$60,000 falls within the constitutionally permissible range.

The Court also notes that this was no “runaway jury.” The Court gave a

punitive damages instruction to the jury that accurately restated the law and aligned

with the standard approved by the Seventh Circuit. Compare [734, Trial Tr. 5/25/234]

at 15-16 with Alexander v. City of Milwaukee, 474 F.3d 437, 453 (7th Cir. 2007)

(quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)) (“A

jury may be permitted to assess punitive damages in an action under § 1983 when

the defendant's conduct is shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally protected rights of others.”).

The Court further instructed that punitive damages may only be awarded to punish

the Defendants’ conduct, not to vindicate jurors’ bias or prejudice. [734] at 16.

We presume the jury followed these instructions. CSX Transp., Inc. v. Hensley,

556 U.S. 838, 841 (2009). Tellingly, the jury verdict exhibits a close attention to the

evidence. The jury found Gomez not liable where the evidence pointed to him acting

as a messenger for Pork and Brown. The jury did not award Gevas compensatory

damages for injuries that it determined he did not establish. And finally, the jury

awarded different amounts against Pork and Brown to account for variances in their

respective liability. The jury determined that Pork, who directly confronted Gevas

about his need for a wheelchair and stored medical permits in his own office, should

pay more in damages than Brown. The punitive damages award was grounded in

sufficient evidence, not unchecked bias or prejudice. Remittitur of the punitive

damages amount is not warranted.

III. Defendants’ Motion for a New Trial

A. Standard

A motion for a new trial under Rule 59 may be granted only “when the district

court—in its own assessment of the evidence presented—believes that the verdict

went against [its] manifest weight.” Abellan v. Lavelo Prop. Mgmt., LLC, 948 F.3d

820, 831 (7th Cir. 2020) (alteration in original) (quoting Mejia v. Cook County, 650

F.3d 631, 634 (7th Cir. 2011)). Rule 59(a) grants the trial court the “special power” to

get a “general sense of the weight of the evidence, assessing the credibility of the

witnesses and the comparative strength of the facts.” Id. (quotation omitted). In

moving for a new trial, a party seeking to overturn a court's evidentiary ruling “bears

a heavy burden” because a trial court's balancing of probative value and unfair

prejudice is highly discretionary. Henderson v. Wilkie, 966 F.3d 530, 534–35 (7th Cir.

2020) (quoting Speedy v. Rexnord Corp., 243 F.3d 397, 404 (7th Cir. 2001)).

Evidentiary errors warrant a new trial only “if the evidentiary errors had ‘a

substantial and injurious effect or influence on the determination of a jury and the

result is inconsistent with substantial justice.’” Burton v. E.I. du Pont de Nemours &

Co., Inc., 994 F.3d 791, 812 (7th Cir. 2021) (quoting Fields v. City of Chicago, 981 F.3d

534, 544 (7th Cir. 2020)).

i. Plaintiff’s Closing Argument

Defendants argue that Plaintiff’s counsel improperly suggested to the jury

during closing argument that they should consider inaccuracies in the declarations

signed by Pork and Brown, as well as witnesses’ inconsistent trial testimony, in

deciding whether to award punitive damages. Defendants argue that these

statements influenced the jury to award damages based on a “defense strategy,”

instead of Defendants’ conduct, and shifted the burden of proof to Defendants. For

the reasons described below, this argument lacks merit.

To obtain a new trial based on attorney misconduct, Defendants must show

both that the “misconduct occurred and that it prejudiced their case.” Viramontes v.

City of Chicago, 840 F.3d 423, 431 (7th Cir. 2016). The Seventh Circuit “has been

loathe to find that improper comments made during closing argument rise to the level

of reversible error.” Smith v. Hunt, 707 F.3d 803, 812 (7th Cir. 2013).

Defendants identify three categories of comments made by Plaintiff’s counsel

in closing that they believe warrant a new trial: Pork and Brown’s testimony was

inconsistent with the signed declarations and other evidence from the record; the jury

would be able to review the declarations even though they were not submitted into

evidence; and Defendants decided to call Nurse Gallagher when “they knew [her

testimony] couldn't be true.” [736] at 10-15. All three points went towards counsel’s

argument for punitive damages.

The first two statements are non-issues. As discussed above, the jury could

properly consider whether Defendants’ trial testimony was inconsistent with their

previous statements when deciding whether to award punitive damages. See

Jennings, 18 F.4th at 393. As for counsel’s comments implying that the jury would be

able to read the declarations, though they were not admitted into evidence, the Court

promptly warned the parties of the potential to mislead the jury. [734] at 44-47.

Thereafter, in rebuttal argument, Plaintiff’s counsel clarified to the jury that “you

won't see the particular affidavits because of the way the [R]ules [of Evidence] work.”

Id. at 71. This clarification on rebuttal cured the risk of prejudice to the Defendants.

It remained proper, then, for the jury to weigh Pork and Brown’s previous

inconsistent statements to determine their overall credibility.

Plaintiff counsel’s comments about Nurse Gallagher were aggressive advocacy.

Gallagher, a registered nurse who worked in the sick call at Stateville in July 2017,

testified that she saw Mr. Gevas walking through X House on July 3rd of 2017. [733,

Trial Tr. 5/24/23] at 140. Gevas then took the stand in rebuttal and testified that the

geography of X House would make it physically impossible for Gallagher to see

Gevas’s cell from the sick room she testified she was working in. Id. at 210.

Plaintiff’s counsel later stated in closing that Defendants “were the ones who

in their own defense were willing to put up Ms. Gallagher, even though . . . they knew

it couldn't be true,” and “the way to stop that is punitive damages.” [734] at 74.

Defendants lodged a subsequent objection. Id. at 76. It’s true that the jury should not

award punitive damages to not punish Defendants for another witness’s lack of

credibility. However, any prejudice from the improper statement does not warrant a

new trial. Plaintiffs’ counsel’s comments regarding Defendants’ decision to call

Gallagher were brief, and not a substantial portion of the closing argument. In

addition, the Court instructed the jury on the proper burden of proof and that

attorneys’ statements during closing are argument, not evidence. [734] at 11, 12, 7.

“There is a longstanding presumption that ‘curative instructions to the jury mitigate

harm that may otherwise result from improper comments’ during closing argument.”

Viramontes, 840 F.3d at 431 (quoting Smith v. Hunt, 707 F.3d 803, 812 (7th Cir.

2013)). The comments do not warrant a new trial.

ii. Evidentiary Objections

Defendants next argue that the Court erred in admitting certain pieces of

evidence at trial. The Court declines to award a new trial on this basis.

First, Defendants believe the Court erred in admitting a video of a shakedown

of Gevas’s cell on May 2, 2018. This Court found the video relevant evidence of

Defendants’ motive and knowledge. [712]. The Court reaffirms its decision.

To prove Defendants were deliberately indifferent, Gevas was required to show

“something approaching total unconcern for [his] welfare in the face of serious risks.”

Stockton v. Milwaukee Cnty., 44 F.4th 605, 615 (7th Cir. 2022) (quoting Donald v.

Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020). Indifference “is

manifested by . . . prison guards in intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once prescribed.” Petties v.

Carter, 836 F.3d 722, 728 (7th Cir. 2016), as amended (Aug. 25, 2016). While the video

did not show Gevas’s wheelchair (or lack thereof) or a dirty mattress, it is undisputed

that Pork and Brown are displayed in the footage. Therein, Pork and Brown throw

items around the cell and into the hallway, including Gevas’s CPAP machine and

extra pillows he received through a medical permit. Evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be without the evidence”

and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. Here,

the video was relevant evidence of how Defendants treated Gevas’s property

generally, and his medical supplies in particular. It was proper for the Court to admit

the video.

Defendants also argue that the Court erred in allowing evidence of Plaintiff’s

alleged mental or emotional injuries where the Prison Litigation Reform Act requires

a showing of physical injury.2 The Court denied that motion in limine because Gevas

represented that he would proffer evidence of physical injury at trial. Gevas did

present such evidence, testifying at trial that he experienced dangerous falls without

a wheelchair and that he experienced pain and allergies from sleeping on a moldy

mattress. (Tr. 340-46; 316-18). The jury evidently did not credit his testimony,

declining to award compensatory damages. Still, the PLRA does not foreclose an

award of nominal or punitive damages for an Eighth Amendment violation involving

2 To satisfy the PLRA, incarcerated plaintiffs “must make a “prior showing” of physical injury or the

commission of a sexual act before recovering for these injuries.” Hacker v. Dart, 62 F.4th 1073, 1079

(7th Cir. 2023) (quoting § 1997e(e)). The injury must be “more than negligible although not necessarily

significant.” Id.

no physical injury. Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003). “This

conclusion readily follows from the fact that nominal damages “are not compensation

for loss or injury, but rather recognition of a violation of rights . . . [f]or similar reasons

we believe that § 1997e(e) does not preclude claims for punitive damages for

violations of the Eighth Amendment.” Id. (quoting Redding v. Fairman, 717 F.2d

1105, 1119 (7th Cir.1983)). Thus, the Court’s admission of Gevas’s mental and

emotional injuries stemming from the Eighth Amendment violation was proper and

is not now a basis for a new trial.

IV. Motion for Setoff

Defendants request in the alternative for a setoff of the punitive damages

award “the amount of any settlement Plaintiff may have entered into with any other

defendant.” This argument is unavailing. “Punitive damages are not common

damages.” Phoenix Bond & Indem. Co. v. Bridge, 05-CV-4095, 2012 WL 8706, at *2

(N.D. Ill. Jan. 2, 2012) (quoting Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d

Cir.1989)). While they are not “intended to remedy under compensation,” punitive

damages “are deliberately excess compensation,” BCS Services, Inc. v. BG

Investments, Inc., 728 F.3d 633, 641 (7th Cir. 2013). The jury here carefully

considered the evidence and crafted an individualized award as to each Defendant. A

setoff would disrupt their intention, through punitive damages, to deter

unconstitutional conduct “on a defendant-by-defendant basis.” Phoenix Bond, 2012

WL 8706, at *2. The Court thus declines to setoff the punitive damages award by any

amount.

V. Motion for Sanctions

Gevas requests sanctions against Pork and Brown for false statements

contained in the declarations. The Court declines to issue sanctions but cautions

litigants that misrepresentations under oath can have consequences—it likely did

here. The request for sanctions is denied.

VI. Conclusion

For the stated reasons, the Court denies Defendants Pork and Brown’s motions

for remittitur and a new trial.

ENTER:

Dated: February 22, 2024 Marg Vf bo L/

MARY M. ROWLAND

United States District Judge

16