# Bradley v. Hardy

> District Court, M.D. Louisiana · July 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10648670

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** July 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

WILBERT BRADLEY (#118934) CIVIL ACTION

VERSUS
23-446-JWD-SDJ
CHAD HARDY, ET AL.

RULING
The pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary, filed this
proceeding pursuant to 42 U.S.C. § 1983 against Defendants Chad Hardy and Dejarius Dunn,
complaining that his constitutional rights have been violated due to the excessive use of force.
Plaintiff requests monetary relief. The plaintiff now moves for a default judgment against
defendant Hardy. See R. Doc. 19.
PROCEDURAL HISTORY
On June 9, 2023, the plaintiff filed a Complaint (R. Doc. 1) against defendants Dejarius
Dunn and Chad Hardy. On August 8, 2023, the Magistrate Judge issued a Report and
Recommendation (R. Doc. 4) recommending that the plaintiff’s claims be dismissed. The plaintiff
filed an Objection (R. Doc. 5) and on August 22, 2023, the Magistrate Judge issued an Amended
Report and Recommendation (R. Doc. 6) recommending that the plaintiff be given leave to amend.
On September 5, 2023, the plaintiff filed his Amended Complaint (R. Doc. 7), and the
Amended Report and Recommendation was adopted by the District Judge on September 26, 2023.
See R. Doc. 8. On November 7, 2023, the Magistrate Judge ordered that the United States Marshal
serve the defendants wherever found. See R. Doc. 10. Summons were issued and on December 22,
2023, both summons were returned unexecuted. See R. Docs. 12 and 13.
On April 9, 2024, the summons for defendant Dunn was again returned as unexecuted. See
R. Doc. 15. On the same date, the summons for defendant Hardy was returned as executed and
showed that defendant Hardy had been served on March 22, 2024. See R. Doc. 16. Despite being
personally served, defendant Hardy failed to respond, and the plaintiff filed a Motion for Clerks
Entry of Default (R. Doc. 17) on May 21, 2024. On the same date, the Clerk of Court issued an

Order (R. Doc. 18) granting the plaintiff’s Motion. On May 29, 2024, the plaintiff filed the instant
Motion for Default Judgment (R. Doc. 19) as to Chad Hardy.
LEGAL STANDARD
The United States Court of Appeals for the Fifth Circuit has adopted a three-step process
to obtain a default judgment. See New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir.
1996). First, a default occurs when a party “has failed to plead or otherwise defend” against an
action. Fed. R. Civ. P. 55(a). Next, an entry of default must be entered by the clerk when the default
is shown “by affidavit or otherwise.” See id.; New York Life, 84 F.3d at 141. Third, a party may
apply to the court for a default judgment after an entry of default. Fed. R. Civ. P. 55(b); New York

Life, 84 F.3d at 141.
After a party files for a default judgment, a court must apply a two-step process to
determine whether a default judgment should be entered. First, a court must consider whether the
entry of default judgment is appropriate under the circumstances. Lindsey v. Prive Corp., 161 F.3d
886, 893 (5th Cir. 1998). Several factors are relevant to this inquiry, including: (1) whether there
are material issues of fact at issue, (2) whether there has been substantial prejudice, (3) whether
the grounds for default have been clearly established, (4) whether the default was caused by
excusable neglect or good faith mistake, (5) the harshness of the default judgment, and (6) whether
the court would think itself obliged to set aside the default on a motion by the defendant. Id.
Second, a court must assess the merits of the plaintiff's claims and determine whether the
plaintiff has a claim for relief. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975); Hamdan v. Tiger Bros. Food Mart, Inc., 2016 WL 1192679, at *2 (M.D. La. Mar.
22, 2016).
DEFAULT JUDGMENT IS APPROPRIATE
UNDER THE LINDSEY FACTORS

The Court must first decide whether the entry of default judgment is appropriate under the
circumstances, by considering the Lindsey factors. First, there are no material facts in dispute
because Defendant failed to file an answer or motion under Rule 12. Second, there has been
substantial prejudice because Defendant's failure to appear in this action leaves Plaintiff with no
recourse for his alleged injuries. Third, the grounds for granting a default judgment against
Defendant are clearly established, as evidenced by the action's procedural history and the Clerk's
entry of default. See R. Doc. 18. Fourth, the Court has no basis to find that Defendant's failure to
respond was the result of a good faith mistake or excusable neglect because Defendant has failed
to respond to Plaintiff or to the Court. Fifth, Defendant's failure to file any responsive pleading or
motion mitigates the harshness of a default judgment. Finally, the Court is not aware of any facts
that would lead it to set aside the default judgment if challenged by Defendant. The Court therefore
finds that the six Lindsey factors weigh in favor of default.
THE SUFFICIENCY OF THE PLEADINGS
Due to his default, Defendant Hardy is deemed to have admitted the allegations set forth

in the Complaint. Busi and Stephenson Ltd., 2014 WL 1661213, at *3 (N.D. Tex. Apr. 25, 2014).
Nevertheless, the Court must review the pleadings to determine whether the plaintiff has
established a viable claim for relief. Nishimatsu Constr. Co., Ltd. V. Houston Nat. Bank, 515 F.2d
at 1206 (5th Cir. 1975) (noting that “default is not treated as an absolute confession by the
defendant of his liability and of the plaintiffs right to recover.”). The Court must determine whether
Plaintiff's pleadings provide a sufficient basis for a default judgment.
Color of Law
Plaintiff has sued defendant Hardy pursuant to 42 U.S.C. §1983 for the use of excessive
force in violation of the Eighth Amendment. As preliminary matter, section 1983 only imposes

liability on a person who violates another’s constitutional rights under color of law. In his
Complaint, as amended, the plaintiff alleges that defendant Hardy was a correctional officer
employed by Louisiana State Penitentiary at the time of the complained of event. As such,
defendant Hardy was acting under color of law.
Excessive Force
A use of force by a prison official is excessive and violates the Eighth Amendment to the
United States Constitution only when such force is applied maliciously and sadistically for the
very purpose of causing harm rather than in a good faith effort to maintain or restore discipline.
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010), quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). Not

every malicious or malevolent action by a prison guard gives rise to a federal cause of action,
however, and the Eighth Amendment’s prohibition against cruel and unusual punishment
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that such force is not of a sort “repugnant to the conscience of mankind.” Hudson v. McMillian,
supra, 503 U.S. at 10, quoting Whitley v. Albers, 475 U.S. 312, 327 (1986).
The fact that an inmate may have sustained only minimal injury, however, does not end the
inquiry, and an inmate who has been subjected to gratuitous force by prison guards “does not lose
his ability to pursue an excessive force claim merely because he has the good fortune to escape
without serious injury.” Wilkins v. Gaddy, supra, 559 U.S. at 38. Notwithstanding this, the Court
may consider the extent of injury, if any, as potentially relevant to a determination whether an
alleged use of force was excessive under the circumstances. In addition, other factors that may be
considered in determining whether an alleged use of force has been excessive include the perceived
need for the application of force, the relationship between the need for force and the amount of
force utilized, the threat reasonably perceived by prison officials, and any efforts made to temper

the severity of a forceful response. Hudson v. McMillian, supra, 503 U.S. at 7.
In his Amended Complaint (R. Doc. 7), the plaintiff alleges the following: On December
6, 2022, defendant Hardy responded to a beeper activation on the plaintiff’s housing unit where
the plaintiff had set a bed sheet on fire in his cell. When defendant Hardy arrived in front of the
plaintiff’s cell he shouted at the plaintiff, “Bitch you know I hate you and want to kill you and I
got something for you.” The plaintiff was then handcuffed behind his back and removed from his
cell.
After escorting the plaintiff from the tier, defendant Hardy told the plaintiff, “ I told you I
had something for your black ass.” Defendant Hardy then violently attacked the plaintiff by

spraying him with a chemical agent. The plaintiff was knocked onto a concrete walk and was
yelling due to the burning pain in his eyes and face. While the plaintiff was in agonizing pain,
defendant Hardy told the plaintiff, “This is for past grievances against me, dick-sucker” and
sprayed the plaintiff a second time with the chemical agent.
Accepting the plaintiff’s allegations as true, the plaintiff has stated a viable claim for use
of excessive force against defendant Hardy. The plaintiff was restrained, was no longer causing a
disturbance, and was not resisting any order when defendant Hardy sprayed the plaintiff with a
chemical agent. Defendant Hardy’s statements to the plaintiff prior to the administration of the
chemical agent indicate that the force was applied maliciously and sadistically for the very purpose
of causing harm rather than in a good faith effort to maintain or restore discipline. As such, the
pleadings set forth a viable claim for use of excessive force against defendant Hardy.
AN APPROPRIATE AMOUNT OF DAMAGES
As to defendant Hardy, the plaintiff requests $300,000 in compensatory damages and
$500,000 in punitive damages.

Compensatory Damages
In his original Complaint (R. Doc. 1), the plaintiff alleges that his face and eyes burned for
days, that his throat was injured, that he was seen by medical, and was given medication. In his
Amended Complaint (R. Doc. 7), the plaintiff alleges that his eyes and face burned when sprayed
and that he was in agonizing pain.
In conjunction with his Motion for Default Judgment the plaintiff has filed a Declaration
(R. Doc. 20, p. 2) wherein he states that when he was initially sprayed with the chemical agent it
caused him to stumble and he was “knock[ed] downward onto a concrete walk…slamming his
right knee onto same” injuring his right knee. He further states that he had “a lot of pain in [his]

right knee for several days after the… incident.” The plaintiff further states that in May of 2024
he began to have pain and swelling in his right knee for which he sought treatment which he relates
to the injury sustained on December 6, 2022. However, the medical records submitted by the
plaintiff in support of this contention are illegible. (Doc. 20, p. 3-9.)
The record simply does not support a compensatory damage award of 300,000.00. Juries
in this circuit have awarded significantly less for more extensive injuries than those shown by the
plaintiff herein. A jury in this district recently awarded a plaintiff $10,000.00 in compensatory
damages after finding that excessive force was used against the plaintiff who sustained severe
injuries. In Brooks v. Vannoy, et al., 19-cv-846 (M.D. La.), due to the use of excessive force, the
plaintiff suffered an injury to his left knee and extensive injuries to his face including fractures to
his right zygotic arch, right nasal bone, and right inferior orbital for which surgery was required.
The jury in Cowart v. Erwin, 10-cv-1800 (N.D. Tx.) awarded the plaintiff $10,000.00 in
compensatory damages for the use of excessive force. Cowart was punched in the face while in a
submissive position resulting in a neck sprain, contusions to his face, scalp and neck, and

permanent injury to his right hand. The plaintiff experienced pain during the incident which
persisted for a period of time thereafter.
In Ostrander v. Kosteck, et al., 13-cv-360 (W.D. Tx.) the jury awarded the plaintiff
$5,000.00 in compensatory damages for the use of excessive force and retaliation. Ostrander
suffered severe pain and suffering, nausea, vomiting, blurred vision for approximately 21 days due
to contusions to his face and head, swelling of both eyes and cheekbones and his right eyebrow,
and busted lips. A second incident resulted in a deep laceration across the plaintiff’s cheekbone.
A third incident reopened the laceration and left the plaintiff with a large lump on his forehead, a
bloody mouth and chin, an injury to his left shoulder, a swollen jaw, and contusions on his face

and other areas of his body. A fourth incident resulted in the plaintiff being sprayed with a chemical
agent.
In the instant matter, the plaintiff has suffered a compensable injury. He states that he was
in agonizing pain due to burning of his face, eyes, and throat for a number of days. He also had “a
lot of pain” in his right knee for “several days” as a result of being knocked downward onto a
concrete walk. See R. Doc. 20, p. 2. However, the plaintiff has not provided any medical evidence
supporting his suggestion that the knee complaints he had on May 17, 2024 (some year and five
months after the incident) were caused by the December 2022 events giving rise to this suit. The
medical records for the May 17, 2024, visit are illegible. While the plaintiff advised the Court on
June 6, 2024, that he “requested better legible copies for the medical treatment forms and will
forward same to the court upon receipt,” the Court has not received legible copies. See R. Doc. 20,
p.1. Therefore, he has failed to prove that his most recent knee complaints were caused by the
excessive force.
Based on the record before it, the Court finds that the plaintiff underwent an unnecessary

and traumatic assault and clearly suffered serious and painful injuries, albeit temporary in duration,
to his face, eyes, throat, and right knee. However, there is no evidence suggesting that these were
permanent or even long-lasting injuries. By his own account, except for the recurrent knee pain
which started some year and five months after the accident (which he has not proved is related),
the effects lasted only days. As such, a compensatory damage award of $300,000.00, as requested
by the plaintiff, would be grossly disproportionate to the injuries he sustained. The Court finds that
a compensatory damage award of $1,500.00 will fairly and adequately compensate the plaintiff
for the physical and mental injuries, and pain and suffering he underwent.
Punitive Damages

A claim for punitive damages under 42 U.S.C. § 1983 requires a showing that the
defendant's conduct is the result of “evil motive or intent, or ... involves reckless or
callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56
(1983). Since the Court has already determined that the standard for excessive force has been met
(force applied maliciously and sadistically for the very purpose of causing harm), the Court has
also found that defendant Hardy’s conduct meets the standard for punitive damages (“evil intent”
or “callous indifference”) as the two standards are substantially indistinguishable. See Jones v.
Conner, 233 F.3d 574, at *1 (5th Cir. 2000) (citing Smith v. Wade, 461 U.S. 30 (1983)); Hill v.
Kilbourne, 157 F. Supp. 3d 545, 552 (M.D. La. 2015) (deGravelles, J). An award of punitive
damages in this matter rests upon the Court’s “discretionary moral judgment” as to the punishing
and deterring effect punitive damages might have against defendant Hardy. See Smith v. Wade, 461
U.S. 30, 50-52.
“To determine whether punitive damages are excessive, the Supreme Court requires
consideration of three factors (1) the degree of reprehensibility of the defendant's conduct, which

receives the heaviest weight; (2) the disparity between the harm suffered (compensatory damages)
and the punitive damages awarded; and (3) the possible criminal and civil sanctions for comparable
misconduct.” Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (citing BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 575, 580, 583 (1996)); Hill, 157 F. Supp. 3d at 552.
Degree of Reprehensibility
To determine the degree to which conduct is reprehensible, the Supreme Court has
instructed to consider whether (1) the harm was physical or merely economic, (2) the conduct
evinced a reckless disregard of the health or safety of others, (3) the target was vulnerable, (4) the
conduct involved repeated actions or was an isolated incident, and (5) the harm was the result of

intentional malice, trickery, or deceit. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
417–29 (2003). Here, there is only one mitigating factor – this incident appears to be isolated rather
than repeated.1 All other aggravating factors have been met. The harm was physical rather than
economic. The conduct evinced a reckless disregard for the plaintiff’s health and safety and was
the result of intentional malice. The plaintiff, as an inmate, was a vulnerable victim. As such, only
one factor mitigates the reprehensibility of defendant Hardy’s conduct.

1 Based on Hardy’s statements to the plaintiff at the time of the incident, the plaintiff and Hardy obviously had prior
encounters before the December 6, 2022, incident but there is no evidence that these resulted in a physical battery.
Disparity
Regarding the disparity between the harm suffered (compensatory damages) and the
punitive damages awarded, the Fifth Circuit has stated:
The probative value of the second Gore factor ... depends upon the character of the
underlying injury and amount of the compensatory damages award. “When
compensatory damages are substantial” and the monetary value of the harm is
easily calculated, “an award of more than four times the amount of compensatory
damages might be close to the line of constitutional impropriety.” State Farm, 538
U.S. at 425–26 [ ]. By contrast, “low awards of compensatory damages may
properly support a higher ratio than high compensatory awards, if, for example, a
particularly egregious act has resulted in only a small amount of economic
damages.” Gore, 517 U.S. at 582 [ ]; see also Williams v. Kaufman Cnty., 352 F.3d
994, 1016 (5th Cir.2003) (“Because actions seeking vindication of constitutional
rights are more likely to result only in nominal damages, strict proportionality
would defeat the ability to award punitive damages at all.”); Lee v. Edwards, 101
F.3d 805, 811 (2d Cir.1996) (“In Gore, a 500 to 1 ratio was ‘breathtaking.’ However,
in a § 1983 case in which the compensatory damages are nominal, a much higher
ratio can be contemplated while maintaining normal respiration.”).

Cooper v. Morales, 535 F. App’x 425, 433 (5th Cir. 2013). See also Hill, 157 F. Supp. 3d at 555.
In the context of maritime punitive damages, the Fifth Circuit rejected a 1:1 compensatory
to punitive damages ratio giving as one of its reasons:
[W]here the conduct is intentional and malicious, and the compensatory damages
are small, imposing the 1:1 ratio would do little to serve the twin purposes of
punitive damages: to punish the wrongdoer and deter his and others' similar future
conduct. Exxon [Shipping Co. v. Baker], 554 U.S. [471,] 492 [(2008)] (“[T]he
consensus today is that punitives are aimed not at compensation but principally at
retribution and deterring harmful conduct.”).

Kenai Ironclad Corp. v. CP Marine Servs., LLC, 84 F.4th 600, 611 (5th Cir. 2023).
The same holds true in this setting. Where the compensatory damages are nominal or (as
in this case) small, holding punitive damages to an amount equal to or even a specific multiple of
the compensatory damage award would do little to deter and punish the egregious, malicious and
wanton behavior like that engaged in by defendant Hardy. An appropriate amount to achieve these
twin goals should be decided on a case-by-case basis.
Possible Criminal and Civil Sanctions for Comparable Misconduct
Under Louisiana Law, the crime of second-degree battery seems most akin to the instant
matter. See State v. Harris, 42, 376 (La. App. 2 Cir. 9/26/07), 966 So.2d. 773 (evidence sufficient
to convict inmate defendant of second-degree battery where inmate sprayed guards with a chemical
agent while trying to escape.) The crime of second-degree battery shall be fined not more than two

thousand dollars or imprisoned, with or without hard labor, for not more than eight years, or both.
See La. R.S. 14:34.1. As such, $2000.00 is the most a criminal defendant could be fined for similar
conduct.
However, the Fifth Circuit has stated that this Gore factor is less probative when there is
no comparable civil penalty. In Cooper, the punitive damage award was $3,500 while the
comparable Texas criminal law (assault with the intent to cause bodily injury to another) was a
“Class A misdemeanor punishable by a criminal fine of up to $4,000 and up to one year of
imprisonment.” 535 Fed. Appx. at 433–34 (citing Tex. Penal Code §§ 22.01(a)(1), 12.21). The
Fifth Circuit found that, while this similarity between the criminal sanctions and punitive damage

award was relevant, it was less probative because it was not a civil fine:
Although this sanction is commensurate with the $3,500 punitive
damages award—a relevant consideration—the equivalence is less
probative than it otherwise would be because it is criminal, not civil, in
nature. Compare Abner v. Kansas City S. R.R. Co., 513 F.3d 154, 164 (5th
Cir.2008) (finding dispositive that the punitive damages award fell within a
civil statutory punitive damages cap), with State Farm, 538 U.S. at 428 [ ]
(explaining that although “the existence of a criminal penalty does have
bearing on the seriousness with which a State views the wrongful action,”
it is of “less utility” in determining the dollar amount of the award), and
Payne, 711 F.3d at 103 (“The fact that New York classes [the defendant]’s
conduct as warranting criminal prosecution tends to confirm the
appropriateness of the imposition of a punitive award. However, it tells little
about the appropriateness of the amount of the award. Cooper, 535 Fed.
Appx. at 433–34.
Accordingly, while this Gore factor favors the Defendant, it is less important than
the reprehensibility factor and less probative because it is not a civil sanction. See Hill v.
Kilbourne, 157 F. Supp. 3d 545, 556–57 (M.D. La. 2015).
Amount
After considering the Gore factors and the record, the Court finds that an award of

$10,000.00 is an appropriate award of punitive damages considering all of the circumstances of
the case. Hopefully, the amount of this award will not only punish defendant Hardy but also deter
him and other prison officials from similar conduct while not exceeding constitutional limitations.
See Hill v. Kilbourne, 157 F. Supp 3d 545, 555 (M.D. La. 2015) (upholding a jury’s punitive
damages awards of $25,000 and $15,000 against two prison guards respectively when the plaintiff
prison inmate was awarded only $500.00 in nominal damages). Accordingly,
IT IS ORDERED that the plaintiff’s Motion for Default Judgment (R. Doc. 19) is
GRANTED, and a default judgment is granted in favor of the plaintiff and against defendant
Hardy. Plaintiff will be awarded $1,500.00 in compensatory damages and $10,000.00 in punitive

damages. Judgment shall be entered accordingly.
Signed in Baton Rouge, Louisiana, on July 17, 2024.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648670. Public record. Not legal advice.