Record and brief — Smith v. Wade

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"l-11969 Co

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM H. SMITH,

Petitioner,

Vv.

DANIEL R. WAD

Respondent.

Petrrion For a Writ or CERTIORARI TO THE

Unrrep States Court or APPEALS

rok THE EicuTH Crmovir

Joun ASHCROFT

Attorney General

Pavut Rosert Orro

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Rosert Presson

Assistant Attorney General

of Counsel

a eee

KELLY PRESS, INC., 201 8. Eighth St., Columbia, Missouri Dial 314/449-4163

QUESTIONS PRESENTED FOR REVIEW

1. Does an award of punitive damages in an action

under 42 U.S.C. § 1983 require a showing of actual malice

on the part of the defendant?

2. If a showing of actual malice on the part of the de-

fendant is not required for an award of punitive damages,

does it require a showing of some circumstances or conduct

in excess of that needed to establish a defendant’s liability

for compensatory damages under 42 U.S.C. § 1983?

TABLE OF CONTENTS

Page

Questions Presented for Review .............s.ceeeeees I

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Reasons for Granting the Writ ...............0seeceeees 4

PE Vis cuvunedidsheeann bess cndbecabeesabhaeeke 11

Appendix A

(Opinion of the United States Court of Appeals

For the Eighth Circuit, Nos. 80-2120 and 80-2131,

filed on November 9, 1981) ............cccceeeees A-1

Appendix B

DE BP 5 Gnedckehcantkicedsceécce ..A-21

Appendix C

I CD o's. i ks Vas cacabiececanedes vei A-23

Ill

TABLE OF AUTHORITIES

Page

Adickes v. Kress and Company, 398 U.S. 144 (1970) ...... 9

Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) ............ 7

Cantrell v. Forest City Publishing Co., 419 U.S. 245,

EE We cduitunse secdaduedsatecs sen sennves 10

Carey v. Piphus, 435 U.S. 247 (1978) ............ceeeeees 4

City of Newport v. Facts Concert, Inc., 49 U.S.L.W.

ee Ce Es OED iccdcecccéesacesceszseseds 5

Clappier v. Flynn, 605 F.2d 519, 533 (10th Cir. 1979) ..... 7

Cochetti v. Desmond, 572 F.2d 102 (3rd Cir. 1978) ........ 6

Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979) ........ 7

Guzman v. Western State Bank of Devils Lake, 540

ee ee EE eas Se ducGsehedelcdséeccen 6

Konezak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979),

cert, denied 444 U.S. 1016 (1980) ............cceeees 6

Morrow v. Igleburger, 584 F.2d 767, 769 (6th Cir.

1978), cert. denied, 489 U.S. 1118 (1979) ............ 6

Pierce v. Stinson, 493 F.Supp. 609, 612 (E.D.Tn. 1979) ....6

Smith v. Losee, 485 F.2d 334, 345 (10th Cir. 1973) ........ 6

ED on cdatvaceusseeadbens cus I, 1, 2, 3, 4, 10, 11

Be Sy © FEED. 8 hc hbnb cconcneedehe ce eUbsonwsaceben 1

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM H. SMITH,

Petitioner,

Vv.

DANIEL R. WADE,

Respondent.

PetrTion For a Writ or CERTIORARI TO THE

Unrrep States Court or APPEALs

For THE E1icHtTa Crrovrir

OPINIONS BELOW

There is no written opinion of the district court. The

opinion of the United States Court of Appeals for the Eighth

Circuit is as yet unreported, but is reprinted herein as

Appendix A.

JURISDICTION

Petitioner seeks review of a judgment issued by the

United States Court of Appeals for the Eighth Cireuit which

affirmed a judgment against him entered in the United

States District Court for the Western District of Missouri

in an action pursuant to 42 U.S.C. § 1983. The opinion of

the Court of Appeals was filed on November 9, 1981. The

jurisdiction of this court is invoked pursuant to 28 U.S.C.

§ 1254 (1).

STATUTES INVOLVED

42 U.S.C. § 1983 provides as follows:

‘*Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any state or

territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privi-

leges, or immunities secured by the constitution and

laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for

redress. ’’

STATEMENT OF THE CASE

The respondent arrived at the Algoa Reformatory, an

institution operated by the Missouri Division of Correc-

tions, in 1976. The Algoa Reformatory is an institution for

first offenders, from the ages of 17 to 25 years of age. The

institution consists of housing dormitories which have sepa-

rate rooms, to which inmates have their own keys. In Oc-

tober, 1976, the population of the Algoa Reformatory was

approximately 600 inmates. The original designed capacity

for the Algoa Reformatory was 425. Dormitory No. 6 con-

tains the punitive and administrative segregation units of

the institution. Contrary to the other dormitories in the

institution, these units have cells for lock-up purposes. The

punitive segregation area is used for short-term confinement

and the administrative segregation is used for longer-termed

confinement. Dormitory No. 6 has two floors containing

26 cells each.

The respondent had voluntarily checked into the pro-

tective custody unit of the Algoa Reformatory in late spring

or early summer of 1976. However, following disciplinary

violations occurring in the protective custody unit, and after

the normal disciplinary process, the respondent was as-

signed to a short-term in punitive segregation and a reassign-

ment to administrative segregation. After serving his term

in the punitive segregation unit, the respondent was trans-

ferred to the administrative segregation area of the bnild-

ing on the morning of October 27, 1976. At that time the

respondent was placed in a cell with another inmate by

the name of McCarthy. At approximately ten o’clock that

evening, while the petitioner was on duty in the segrega-

tion building, another inmate by the name of Thompson

was placed in the same cell. The respondent testified that

shortly after this McCarthy and Thompson began to harass

him and eventually sexually assaulted him.

The population of the segregation units at the time was

approximately 110 to 120 (the precise population figure was

unavailable because the records are normally maintained

for only a period of one year and had been destroyed prior

to the filing of this case). At that time, only one guard

was assigned to cover both floors of Dormitory No. 6 during

the evening shift.

Respondent’s complaint pursuant to 42 U.S.C. § 1983

was filed on February 14, 1978. The defendants included

Edward Haynes, the then Director of the Missouri Division

of Corrections, David Blackwell, the then Superintendent

of the Algoa Reformatory, and William Schroeder, Fred

Miles, and William Smith, the petitioner herein, correctional

officers employed at the Algoa Reformatory Following a

jury trial, a verdict was returned in favor of respondent

and against the petitioner in the amount of $25,000 actual

damages and $5,000 punitive damages. The judgment of

the district court was affirmed and opinion filed by the

United States Court of Appeals for the Eighth Circuit on

November 9, 1981.

REASONS FOR GRANTING THE WRIT

The Court of Appeals below applied an improper stand-

ard in affirming the jury’s award of punitive damages,

in that, (1) the court approved the imposition of punitive

damages in the absence of any evidence of actual malice

by petitioner against the respondent and, (2) the court

held that ‘‘malice’’ in the form of reckless and callous dis-

regard of a prisoner’s safety authorizes the imposition of

punitive damages in an action under 42 U.S.C. § 1983.

The issue presented herein is what factual basis au-

thorizes an award of punitive damages in an action pursuant

to 42 U.S.C. § 1983. The District Court below submitted

Instruction No. 7 on punitive damages which is reprinted

in its entirety as Appendix B. In short, this instruction

authorized the jury to award punitive damages if they found

the petitioner’s conduct to be ‘‘a reckless or callous disre-

gard of, or indifference to, the rights or safety of others .. .’’

The jury awarded $5,000 in punitive damages in addition

to its award of $25,000 in actual damages.

In Carey v. Piphus, 435 U.s. 247 (1978), this court

held that there was no basis for an award of punitive dam-

ages in the absence of a finding of actual malice on the

part of a defendant. In note 11 at page 257 of that opinion

this court stated:

‘*This is not to say that exemplary or punitive

damages might not be awarded in a proper case under

§ 1983 with the specific purpose of deterring or pun-

ishing violations of constitutional rights. [Citations

omitted] Although we imply no approval or disapproval

of any of these cases, we note that there is no basis

for such an award in this case. The District Court

specifically found that petitioners did not act with

malicious intention to deprive respondents of their

rights or to do them other injury, .. .’’

._-| More recently, in City of Newport v. Facts Concert,

Inc., 49 U.S.L.W. 4860 (U.S. June 26, 1981), this court

again stated that under appropriate circumstances puni-

tive damages may be awarded in order to punish for vio-

lations of constitutional rights. As to what constitutes

appropriate circumstances, this court stated:

‘‘Tf a government official acts knowingly and mali-

ciously to deprive others of their civil rights, he may

become the appropriate object of the community’s vin-

dictive sentiments. .. .’’ Id. at 4865.

The majority and dissenting opinions below split over

consideration of this court’s opinion in Carey v. Piphus.

The majority recognized this court’s requirement of proof

of ‘‘malicious intent’’ but went on to hold that malicious

conduct would include culpable recklessness or a willful

and wanton disregard of another’s rights. The dissenting

opinion not only felt that the Carey opinion was controlling

but that the majority’s result was inconsistent therewith.

The dissent pointed out that this court’s statement in

Carey that punitive damages would not be appropriate

because the district court had specifically found that the

defendants did not act with malicions intention to cause

a deprivation of constitutional rights or other injury, was

made in the context of another finding by the district court

that the defendants should have known that their actions

would have violated the plaintiff’s constitutional rights.

The dissent further pointed out that this was almost identi-

cal to the ‘nstant case where the jury had been instructed

to find the petitioner liable if he knew or should have known

of the risk to the respondent. Further, the majority opinion

itself fully recognized that there was no evidence of ill

will or spite by the petitioner toward the respondent (Ap-

pendix A p. 14). The dissent concluded, therefore, that

punitive damages were not authorized or appropriate in

this case.

In the process of reaching its result, the majority below

discussed opinions of other federal courts presenting con-

flicting standards for the award of punitive damages. On

the one hand, they recognized that various courts had

required a showing of actual intent or malice in order to

award such damages. Morrow v. Igleburger, 584 F.2d 767,

769 (6th Cir. 1978), cert. denied, 439 ~.S. 1118 (1979);

Smith v. Losee, 485 F.2d 334, 345 (10th Cir. 1973), cert.

denied, 417 U.S. 908 (1974) ; Pierce v. Stinson, 493 F.Supp.

609, 612 (E.DTn. 1979). For instance, in Morrow, the court,

citing Carey, staied:

‘*While punitive damages also may be awarded in

appropriate cases to deter the deprivation of consti-

tutional rights, the district court made no specific find-

ing that defendants acted with malicious intent to

deprive appellant of his constitutional rights, and no

such malice will be presumed. .. .’’ Jd. at 769.

In Smith, which predated Carey, the district court

found actual malice on the part of two of the defendants.

As to a third defendant, who was held to have acted to

punish the plaintiff for supporting a particular political

candidate as well as other reasons relating to First Amend-

ment activities, the court of appeals held that this would

not support a punitive damage award.

The Courts of Appeals below, however, also noted cases

which approved punitive damages based upon a standard

of either actual intent or reckless disregard. Knoczak v.

Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S.

1016 (1980) ; Cochetti v. Desmond, 572 F.2d 102 (3rd Cir.

1978) ; Guzman v. Western State Bank of Devils Lake, 540

F.2d 948 (8th Cir. 1976). It is open to some question as

to whether all of these cases stand for this precise propo-

sition. In Konczak the court held that punitive damages

were not justified because of the absence of evidence of

malicious intent or ‘‘aggravating circumstances. ’* Contrary

to the suggestion of the 8th Circuit, the only discussion of

recklessness in the Konczak opinion is in regard to over-

coming a claim of good faith. Recklessness is not mentioned

in the context of an award of punitive damages.

In Cochetti, the court did apply a test of either mali-

cious intent or reckless disregard to justify punitive dam-

ages but only as part of a general principle that punitive

damages requires a showing of ‘‘something more than a

bare violation justifying compensatory damages or injunc-

tive relief.’’

The majority below next pointed to still other cases

which implied that punicive damages would automatically

be available upon a finding of liability. However, in Clap-

pier v. Flynn, 605 F.2d 519, 533 (10th Cir. 1979), cited by

the Court of Appeals, punitive damages were not even

sought in the case. The discussion referred to by the ma-

jority below related only to the standard for liability.

Further, the 10th Circuit stated in its opinion only that

‘*perhaps’’ the standard of care on the liability question

is ‘‘comparable’’ to that required to support punitive dam-

ages. Nut only is this statement couched in extremely cau-

tious terms, but the court never delineates precisely what

it believes the standard for punitive damages is.

The other case cited by the majority below is Fielder

v. Bosshard, 590 F.2d 105 (5th Cir. 1979), in which the

court held that ‘‘in order to find cruel and unusual punish-

ment the jury must have found egregious conduct capable

of supporting an award of punitive damages.’’ The court,

however, went on to note that maliciousness in their opin-

ion includes actions which are substantially certain to

result in the consequences of which the plaintiff complains.

This latter standard derives from the 5th Circuit’s earlier

opinion in Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978),

in which the court had held that either actual intent or

conduct which is so likely to produce injury that it can be

characterized as substantially certain to result, is necessary

to overcome official immunity. Thus, even though the 5th

Circuit may in some instances apply the same standard

to both liability and punitive damages, the test adopted

by the majority below is not nearly as stringent as that

applied by the 5th Circuit.

Petitioner had urged the court below to adopt the

Bogard standard as the test for liability in this case but

was rejected. The petitioner had argued below that the

evidence in this case did not meet the Bogard standard for

liability; actual intent or conduct substantially certain to

result in injury. The evidence indicated that there were

several instances of tripie celling in the segregation unit

at that time and that this was not unique to the respondent.

The statement of the majority below that petitioner knew

or should have known hat inmate Thompson was ordered

separated from other inmates for his and their safety was,

as the majority recognized, based on the detention order

for Thompson to administrative segregation which ‘‘recom-

mended that he be separated from the general population

for his own safety and that of others.’’ See Appendix A,

Page 3 (emphasis added). A detention order is simply a

form used by guards, on which various categories justify-

ing detention can be checked. If the records had been avail-

able, a great many of the inmates in administrative segre-

gation at that time would probably have had similar state-

ments checked on their detention orders, (It was impossible

to determine either the total number of identity of each

inmate in administrative segregation at that time because

the log books for that unit are maintained for only a one-

year period and had been destroyed prior to the filing of

this lawsuit). Since the court below rejected the Bogard’s

standard of liability, neither Bogard nor Fielder would

provide any support for the upholding of an award of

punitive damages in this case.

The Fielder and Clappier cases, even though not spe-

cifically approved by the court below, do raise a slightly

different aspect of the problem of punitive damages. To

the extent that either of these cases can be taken as stand-

ing for the proposition that a finding of liability auto-

matically provides a basis for a jury to award punitive

damages, petitioner believes they are clearly incorrect.

As stated by Cochetti v. Desmond, supra, punitive damages

are reserved for situations in which the conduct of the

defendant amounts to more than that necessary to estab-

lish a right to compensatory damages. The Cochetti opin-

ion, in turn, drew upon Justice Brennan’s separate opinion

in Adickes v. Kress and Company, 398 U.S. 144 (1970).

In Konczak v. Terrell, supra, the court approved punitive

damages based upon aggravating circumstances. The very

use of the term ‘‘aggravating’’ implies some showing of

facts beyond the threshold level. Thus, even if a showing

of actual malice is not required for the imposition of puni-

tive damages in all instances, petitioner believes it is in

this case. The verdict directing instruction in this case

submitted to the jury that they should find for the respond-

ent if the petitioner’s conduct constituted a ‘‘callous in-

difference or thoughtless disregard of the consequences

of one’s acts or failure to act.’’ See Appendix C. Thus, in

this case, the liability and punitive damage submissions

to the jury were in virtually identical terms. Thus, while

the court of appeals below did not specifically adopt the

holdings of either Clappier or Fielder, by allowing the

punitive damage award to stand in this case, it in effect

equated a finding of liability with an authorization to the

jury to award punitive damages. Petitioner believes this

clearly runs contrary to the opinions of the 3rd and 7th

Cireuits in Cochetti and Konceak.

In fact, this court faced a similar situation in Cantrell

v. Forest City Publishing Co., 419 U.S. 245, 251-252 (1974).

In that case this court dealt with a defamation claim. Both

the liability standard and the standard for punitive dam-

ages were loosely worded in terms of recklessness. The

district court had found the defendants liable and yet had

denied punitive damages. This court affirmed and recog-

nized the distinction between the two even though phrased

in very similar terms. First, the plaintiff was required

to show that the defendants had acted with a reckless

disregard of the truth or falsity of their statements in

order to overcome the defense of qualified privilege. This

court stated that this was quite different from the common

law standard of malice required to support an award of

punitive damages in such cases. Petitioner believes that

a similar distinction should have been made in this case

between facts establishing liability and those justifying

punitive damages.

Petitioner believes that the holding of the court of

appeals below is directly in conflict both with prior opin-

ions of this court as well as with other opinions of other

courts of appeals. At the very least, however, it is obvious

that the standards being applied by the various courts of

appeals with regard to the imposition of punitive damages

are in a great deal of conflict and confusion. The issue of

the award of punitive damages in actions brought pursuant

to 42 U.S.C. § 1983 is both frequent and substantial. Peti-

tioner submits that this court should, therefore, consider

this issue and definitely hold that punitive damages under

42 U.S.C. § 1983 are authorized only upon a showing of

actual malice.

CONCLUSION

WHEREFORE, petitioner requests that this court issue

its Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit and review the question of the

standard for imposition of punitive damages pursuant to

42 USC. § 1983.

Respectfully submitted,

JoHN ASHCROFT

Attorney General

Paut Roserr Orto

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Rosert Presson

Assistant Attorney General

of Counsel

~yipueddy

A-1

APPENDIX A

UNITED STATES COURT

OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 80-2120 and 80-2131

Denial I Wad :

” Appellee,

Edward E. Haynes, Director of Division of f

Corrections for Missouri; Walter David t _ = So ee

Blackwell, Superintendent of Missouri for the Western District

Intermediate tory, of Missouri.

i H. Smith, Correction Officer,

William th, on Agueltant,

William Schroeder, Officer, M.S.P., Fred Miles,

Officer, . SP. y

Deuisl Wade

: Appellant,

Edward E. Haynes, Director of Division of from

Corrections for Missouri, Walter David ‘ tates ae Soe

——— for the Western District

Intermediate ’ Missouri

Appellees,

William H. Smith, Corrections Officer,

Miles, Officer, M.S.P.,

Appellees. /

Submitted: April 17, 1981

Filed: November 9, 1981

Before LAY, Chief Judge, GIBSON, Senior Circuit Judge,

and BRIGHT, Circuit Judge.

LAY, Chief Judge.

A-2

Daniel R. Wade, an inmate at the Algoa, Missouri re-

formatory brought suit under 42 U.S.C. § 1983 against three

correctional officers, William H. Smith, William Schroeder,

and Fred Miles; Edward E. Haynes, Director of the Mis-

souri Division of Corrections and Walter Blackwell, super-

intendent at the reformatory. He claimed that on Octo-

ber 27, 1976, he was wrongfully placed in an administrative

cell with two other prisoners where he was beaten and sex-

ually assaulted. The district court directed a verdict in

favor of Haynes and one of the correctional officers, Miles.

Thereafter, the jury entered verdicts for Blackwell and

Schroeder, but awarded Wade $25,000 compensatory dam-

ages and $5,000 punitive damages in his claim against Smith.

Smith has appealed; Wade cross-appeals claiming the trial

court erred in failing to grant judgment notwithstanding ~

the verdict in his claim against Blackwel’, the superin-

tendent, and one of the correctional officers, Schroeder.

On appeal Smith challenges (1) the overall sufficiency

of the evidence; (2) the trial court’s instruction on cruel

and unusual punishment; (3) the trial court’s ruling on

cross-examination by plaintiff’s counsel and closing argu-

ment; (4) the exclusion of documentary evidence; (5) the

use of expert testimony; and (6) the award of punitive

damages. On cross-appeal Wade asserts that there was un-

controverted evidence warranting a directed verdict against

Blackwell and Schroeder.

Smith’s Claims.

Smith first challenges the sufficiency of plaintiff’s

evidence to take the case to the jury. He contends that as

a prison official he was immune from liability unless there

was evidence that he was guilty of gross negligence or

reckless misconduct. See Procunier v. Navarette, 434 U.S.

555 (1978).

The facts demonstrate sufficient evidence to sustain

A-3

the verdict against Smith. At the time of the assault Wade

was approximately 18 years old, five feet, eight inches tall

and weighed approximately 130 pounds. He had previously

spent some time in the reformatory’s special treatment unit.

The special treatment unit is an area secured from the gen-

eral reformatory population and is used for housing those

inmates susceptible to physical abuse from members of the

general population. Wade spent some time in punitive segre-

gation for rule violations which occurred during his stay

in the special treatment unit; thereafter he was assigned

to a cell in the administrative segregation unit of the prison.

Schroeder, a correctional officer, placed Wade in a cell on

the second floor of the administrative segregation unit with

another prisoner from the general population. Later that

evening Smith replaced Schroeder and subsequently put

a third inmate from the general population in the cell with

Wade and the other inmate. The third inmate had been

sent to administrative segregation for fighting and it was

recommended that he be separated from the general popu-

lation for his own safety and that of others. Shortly after

the third inmate was placed in the cell, Wade charges that

both inmates began to harrass him and eventually beat

and sexually assaulted him. Wade alleges that defendants

knew or should have known that he was likely to be as-

saulted under these circumstances, varticularly in light of

American Correctional Association standards which recom-

mended single unit housing in administrative segregation

units, and the availability of at least one other cell con-

taining only one prisoner.

Smith’s conduct was such that a jury could reasonably

find that he either knew or should have known that the

third prisoner, Thompson, had been ordered separated from

the other inmates for his own safety and the safety of

others. Smith made no effort to check whether another cell

was available. Smith knew another prisoner had been beaten

A-4

to death in his cell during that shift only a few weeks before.

Dormitory six was a two-story dormitory with 26 cells

on each floor. The cells on the second floor were approxi-

mately 65 square feet in size. The only access to the cells

on the second floor was through steel doors, locked from

the outside, with several small holes at the top of the doors.

It was impossible for guards to see an entire cell without

opening the door. A reformatory guard testified at trial

that experience and common sense dictated that in dormi-

tory six general population inmates and those inmates who

had been housed in the special treatment unit be segregated.

The Official Immunity Defense.

It has been said of the immunity defense that:

It does not insulate an official who, although not pos-

sessed of any actual malice or intent to harm, is so

derelict in his duties that he must be treated as if he

in fact desired the harmful results of his inaction.

Bogard v. Cook, 586 F.2d 399, 412 (5th Cir. 1978).

We agree with the Seventh Circuit:

In order to state an eighth amendment claim result-

ing from an attack . . . a prisoner must show that

prison officials ‘‘deliberately deprived’’ him of his

constitutional rights. Deliberate deprivation may re-

sult from actual intent to deprive him of his rights or

from recklessness in ignoring known threats.

Schaal v. Rowe, 460 F. Supp. 155, 157 (E.D. Ill. 1978).

See Little v. Walker, 552 F.2d 193, 197 n.8 (7th Cir. 1977).

We conclude there existed sufficient evidence to demon-

strate that Smith reckless!y and with callous indifference

placed Wade into a dangerous situation.

On appeal Smith also challenges the court’s instruction

relating to the eighth amendment. The court’s instruction

reads in part:

A-5

As stated before, the Eighth Amendment to the

Federal Constitution provides that no cruel and unusual

punishment may be inflicted. In order for an alleged

physical injury to constitute cruel and unusual punish-

ment, the injury must constitute physical abuse of such

base, inhumane and barbaric proportions as to shock

the sensibilities.

The court also instructed the jury that they must find

the defendant’s conduct was either grossly negligent or was

an egregious failure to protect the plaintiff and violated

his right to be free from cruel and unusual punishment."

The challenge made here is that the instructions mis-

led the jury in focusing on the injury itself. Smith argues

that the concern should be not whether the injury inflicted

was an unnecessary and wanton infliction of punishment

but whether there was an egregious failure to protect plain-

tiff. Thus it is urged that the nature of the injury is relevant

only te the question of damages and not to w ether there

was in fact a constitutional violation by the infliction of

a cruel and unusual punishment. Smith thus maintains

that this instruction is also inconsistent wih the other

instructions relating to gross negligence and egregious fail-

ure to act. He also now complains that the court erred

in defining gross negligence as equivalent to ‘‘callous in-

difference.’’ Smith, relying on Bogard v. Cook, supra, 586

F.2d 399 urges that these terms fail to demonstrate intent

as opposed to simple negligence. In sum, the defendants

argue that these combined instructions relate to the nature

of the injury which determines the cruel and unusual punish-

ment rather than the conduct of the defendants.

act” and an egregious failure to protect as “a flagrant or remarkably

bad failure to protect.”

A-6

We must disagree.? The instructions must be viewed

in their entirety. Instruction number 5, the verdict director,

read:

Your verdict must be for the plaintiff if you believe:

FIRST: Defendants knew or should have known

that placing two or more inmates in the same cell in

administrative segregation with only one guard on duty

in that building made it highly foreseeable that some

inmates, and in particular the plaintiff Daniel R. Wade,

would be physically attacked and sexually abused, and

SECOND: Defendants’ conduct was grossly negli-

gent or an egregious failure to protect the plaintiff

Daniel R. Wade, and

THIRD: Such acts of the defendants were done

under the color of the law of the State of Missouri, and,

FOURTH: Such acts violated plaintiff’s constitu-

tional right to be free from cruel and unusual punish-

ment, and,

FIFTH: As a direct result of such conduct, the

plaintiff suffered injury.

Gross negligence as used in this instruction means

a callous indifference or a thoughtless disregard for

the consequences of one’s act or failure to act.

Egregious failure to protect means a flagrant or

remarkably bad failure to protect.

2The objection concerning the use of “callous indifference” is spe-

cious. See Clappier v. Flynn, 605 F.2d 519, 531 (10th Cir. 1979);

Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979). See also Estelle v.

pone ol agin ae nara In the instruction conference with the court

here, to the consequences of one’s act or failure to act.

A-7

These instructions make it clear that for plaintiff to

recover defendants’ acts must have violated plaintiff’s

right to be free from cruel and unusual punishment. Thus,

defendant’s action must have been more than negligent,

his conduct must have been such that it was done with

callous disregard of plaintiff’s right not to be punished

in an inhumane and base way. The mere placement of plain-

tiff in the cell with two others from the general popula-

tion without further incident would not have given legal

sustenance to his claim under the eighth amendment. It

was the callous nature of this act which recklessly exposed

him to inhumane treatment which constituted the action-

able wrong. The inhumane treatment was part of the wrong

in the same sense as if Smith had committed the harm

himself.

We find no prejudicial error in the instructions.

Smith next urges that the court erred in permitting

certain questions by plaintiff’s counsel on cross-examina-

tion as well as comments concerning this subject matter

during closing argument.

Smith’s objections include: (1) Wade’s counsel’s cross-

examination of him relating to an alleged unwritten policy

followed by prison officials regarding the segregated celling

of black and white inmates while in administrative segre-

gation; (2) the question ‘‘But you can mix homosexuals

with people who aren’t homosexuals?’’ and (3) a question

relating to the earlier murder of a black inmate by his

black cellmate, which occurred a few weeks prior to the

assault on Wade.

Smith argues that these questions and the subsequent

testimony were unfairly prejudicial under Fed. R. Evid.

403 and should not ave been admitted.

A trial judge can and should exclude evidence when

convinced that it will create a danger of prejudice out-

A-8

weighing its probative value. E. I. DuPont DeNemours v.

Berkley & Co., Inc., 620 F.2d 1247, 1272 (8th Cir. 1980).

However, rule 403 of the Federal Rules of Evidence does

not offer protection against evidence that is merely preju-

dicial in the sense of being detrimental to a party’s case.

The rule protects against evidence that is unfairly preju-

dicial, that is, if it tends to suggest decision on an improper

basis. Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir. 1980).

Considering that this case involved a homosexual rape

and in light of Wade’s various assertions, including the

allegation that another, safer, cell was available and that

he was not celled there because of an unwritten policy of

segregating inmates, the questions relating to those matters

do not appear unfairly prejudicial.

Smith also alleges that the trial court erred in exelud-

ing from evidence a letter allegedly written by Wade which

he sought to introduce for impeachment purposes. Smith

contends that the letter was admissible under Fed. R. Evid.

613(b) as extrinsic evidence of a prior inconsistent state-

ment. The trial court excluded the letter, which was dated

July 25, 1978, on the ground that it was written long after

the incident in question and was irrelevant. It is our rule

that the trial court’s ruling on the admissibility of evidence

will not be disturbed absent a clear and prejudicial abuse

of discretion. E. 1. DuPont DeNemours v. Berkley ¢ Co.,

Ine., supra, 620 F.2d at 1272. The letter in question appears

to have been written by Wade and was directed to the

prison classification board. In it Wade makes various state-

ments regarding his future conduct which imply that his

conduct prior to that date had been less than desirable.

However, there appears to be nothing in the letter or in

the transcript which demonstrates a clear abuse of discre-

tion by the trial court in excluding the letter.

Smith also claims the district court erred in permitting

testimony by an expert witness, David Musacchio, who was

A-9

called by Wade as an expert in corrections administration.

The testimony was as follows:

Q. You mentioned before that you could compare

this with overcrowding of a hospital. Well, you might

have some putting people in the same rooms in the

hospital. Could you draw that analogy out even fur-

ther? If you have to double cell, if you have to double

cell in an institution, do you look at the background

of the inmates before you put them in that cell?

A. I would think a prudent administrator would,

yes.

Q. And if he, in fact, does not look at the back-

ground, is it—is that egregious failure?

A. Yes.

Smith asserts this question improperly calis for a legal

conclusion and, since the witness was not qualified as a

legal expert, testimony on that issue was improper. It is

settled, however, that testimony otherwise admissible is

not inadmissible because it embraces an ultimate issue to

be decided by the trier of fact. Fed. R. Evid. 704.

In Neilson v. Armstrong Rubber Co., 570 F.2d 272 (8th

Cir. 1978) this court held it was not error for an expert

witness to offer testimony regarding the cause of a defect

in a tire. In that case the court acknowledged the wide

discretion of the trial court in determining the admissi-

bility of expert testimony. Jd. at 276. It also stated ‘‘[t]he

extent of a witness’ knowledge of matters about which he

offers to testify go to the weight rather than the admis-

sibilty of testimony.’’ Jd. at 277. Cognizant of Neilson,

Smith would distinguish this case on the ground that a

legal conclusion was involved here, rather than a factual

issue. He relies upon Stoler v. Penn. Central Transp. Co.,

583 F.2d 896 (6th Cir. 1978) which upheld the trial court’s

A-10

exclusion of testimony by a eivil engineer whether a par-

ticular railroad crossing was ‘‘extra hazardous.’’ Although

the Sixth Cireuit did characterize the question as calling

for a legal opinion, it appears to have based its decision

on the broad discretion accorded the trial judge in such

circumstances.®

We agree that the issue is a cose one.* In the sense

that the question attempted to have the witness testify

that defendant’s conduct violated a constitutional norm,

the form of the question was improper in seeking a pure

legal conclusion. See Fed. R. Evid. 701. On the other hand

the jury had the right to be informed concerning prison

policy and to consider evidence as to whether the failure

to review the background of prisoners in making cell as-

signments amounted to a breach affecting their personal

safety. In view of the overall testimony we do not find

the trial court’s ruling an abuse of discretion or ‘‘mani-

festly erroneous.’’ Soo Line R. Co. v. Fruehauf Corp., 547

F.2d 1365, 1374 (8th Cir. 1977).

Smith urges that the trial court erred in permitting

improper remarks by plaintiff’s counsel during closing

argument. He asserts that the ‘‘tenor’’ of the argument

exceeded all permissible bounds. The statements to which

he specifically refers are: (1) a reference to defendants

leaving a ‘‘legacy of blood, tears, rape and murder;’’ and

(2) the following statement by Wade’s counsel:

8Smith also relies on Marx & Co. Inc. v. Diners Club, Inc., 550

F.2d 505 (2d Cir. 1977), cert. denied, 434 U.S. 861 in which the

Second Circuit held that it was error not to exclude the testimony of

a securities expert who was also a lawyer regarding his opinion of the

legal obligations under a contract. The court in that case appeared to

base on the fact that the witness not only construed the

contract at issue but repeatedly gave his conclusions as to the legal

significance of various facts adduced at trial.

“We also note, as stated by Smith’s counsel, the question related

to the administrator’s responsibility and not Smith’s.

A-11

I’m asking you send a message to Danny Wade, as a

17 year old boy in prison, 18 when he was raped, his

Dad came here and testified about it, about what he

was like. Some of you may be fathers and I’m a father.

With a little bad luck, my boy might sometime have

to go to an institution like that for robbery or theft... .

for burglary, and he won’t deserve to be raped for

that.’’

Although we do not condone such argument, particularly

counsel’s hypothetical personal references, we do not find

the comment so inflammatory or flagrant as to unduly

and materially affect the verdict of the jury. See Wich-

mann v. United Disposal, Inc., 553 F.2d 1104, 1107 (8th

Cir. 1977).

Damages.

Aieo under attack on appeal is the award of $5,000

in punitive damages. Smith challenges the instruction given

the jury which read:

In addition to actual damages, the law permits

the jury, under certain circumstances, to award the

injured person punitive and exemplary damages, in

order to punish the wrongdoer for some extraordinary

misconduct, and to serve as an example or warning

to others not to engage in such conduct.

If you find the issues in favor of the plaintiff,

and if the conduct of one or more of the defendants

is shown to be a reckless or callous disregard of, or

indifference to, the rights or safety of others, then you

may assess punitive or exemplary damages in addi-

tion to any award of actual damages.

He «rgues that the court’s instructions on the issues of

liability and punitive damages are essentially the same

and insists that, to be in keeping with the purpose of puni-

tive damages, a more stringent standard is required.

A-12

Generally, punitive damages are available in section

1983 actions where there are aggravated circumstances.

Konczak v. Tyrrell, 603 F.2d 13, 17 (7th Cir. 1979), cert.

denied, 444 U.S. 1016 (1980); Spence v. Staras, 507 F.2d

554, (7th Cir. 1974). In construing punitive damages some

courts have held that only a showing of malice or actual

intent will support an award of punitive damages. Morrow

v. Igleburger, 584 F.2d 767, 769 (6th Cir. 1978), cert. denied,

439 U.S. 1118 (1979); Smith v. Losee, 485 F.2d 334, 345

(10th Cir. 1973), cert. denied, 417 U.S. 908 (1974); Pierce

v. Stinson, 493 F. Supp. 609, 612 (D. Tenn. 1979). Still

others have required intent or reckless disregard. Konczak,

supra, 603 F.2d at 17; Cochetti v. Desmond, 572 F.2d 102,

105 (3rd Cir. 1978). In Gueman v. Western State Bank

this court held that punitive damages may ‘‘be awarded

in civil rights actions where the defendant exhibits oppres-

sion, malice, gross negligence, willful or wanton miscon-

duct or a reckless disregard for the rights of the plain-

tiff.’’ 540 F.2d at 953. In a separate opinion in Adickes

v. S. H. Kress, 398 U.S. 144 (1970) Justice Brennan stated

‘*[t]o recover punitive damages, I believe a plaintiff must

show more than a bare violation of 4 1983.’’ Id. at 233.

(Brennan, J.; concurring in part and dissenting in part).

However, in that opinion he goes on to state that a showing

of knowledge or reckless disregard for the constitutional

rights of a plaintiff would support such an award. Id.

Viewed in light of the more stringent test for deter-

mining liability in section 1983 actions involving failures

to act or ommissions by prison officials the question be-

comes whether punitive damages are a necessary con-

comitant of a finding of liability. At least one court has

suggested that it is. Clappier v. Flynn, 605 F.2d 519, 533

(10th Cir. 1979). But the impact of that language is under-

mined by the fact that the plaintiff in that case sought

only compensatory damages. The Fifth Circuit has taken

A-13

the strongest position yet articulated in upholding an

award of punitive damages against a county sheriff, con-

cluding that ‘‘[i]n order to find cruel and unusual punish-

ment, the jury must have found egregious conduct capable

of supporting an award of punitive damages.’’ Fielder

v. Bosshard, 590 F.2d 105, 111 (5th Cir. 1979).

In Harris v. Harvey, 605 F.2d 330, 340 (7th Cir. 1979),

cert, denied, 445 U.S. 938 (1980) the court upheld an award

of punitive damages against a municipal judge for conduct

amounting to a ‘‘racially motivated campaign”’ to discredit

the plaintiff, a police official. That court found the puni-

tive damages justified in view of the jury’s finding that

the judge had acted ‘‘maliciously, wantonly or oppres-

sively.’’ Id.

While these cases suggest that a finding of liability

automatically triggers the consideration of puritive dam-

ages that question is appropriately left to the broad dis-

cretion of the jury. City of Newport v. Fact Concerns,

49 U.S.L.W. 4860, 4865 (U.S. Dec. June 26, 1981) ; Guzman

v. Western State Banks, 540 F.2d 953 (8th Cir. 1976). As

the Third Circuit recentiy stated: ‘‘the allowance of such

damages inherently involves an evaluation of the nature

of the conduct in question, the wisdom of some form of

pecuniary punishment, and the advisability of a deterrent.

Therefore, the infliction of such damages, and the amount

thereof when inflicted, are of necessity within the discre-

tion of the trier of fact.’’ Scott v. Plante, 641 F.2d 117,

135 (3rd Cir. 1981). But that opinion also implies that

there must be some minimal showing beyond that required

for liability to justify such an award: ‘‘[w]hen the evi-

dence is simply too sparse to determine the punitive dam-

ages issue one way or another, and plaintiff bears the

burden of proving malice or wantonness, perhaps a jury

award of punitive damages cannot stand.’’ /d.

The Supreme Court in Carey v. Piphus, 435 U.S. 247

A-14

(1978), although not expressly approving or disapproving

punitive damages in section 1983 cases, did indicate, how-

ever, if such were approved the predicate for recovery

would require proof of ‘‘malicious intent.’’ Malicious con-

duct has long been defined so as to include ‘‘eulpable reck-

lessness or a willful and wanton disregard’’ of another’s

rights. See e.g., Galloway v. General Motors Acceptance

Corp., 106 F.2d 466 (4th Cir. 1939). As we have earlier

indicated in this opinion liability in civil rights cases may

be incurred even though an official does not possess ‘‘any

actual malice or intent to harm [but] is so derelict in his

duties that he must be treated as if he in fact desired the

harmful results of his inactions.’’ See Bogard vy. Cook,

supra. This is so because deliberate intent may be predi-

cated on factual circumstances which are so egregious

and reckless that the natural consequences of the actor’s

conduct implies the requisite malicious intent to do wrong.

See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Although

the record here shows no evidence of ill will or spite by

Smith against Wade, it does demonstrate a reckless and

total disregard for the safety of prisoners in his care. Thus

we conclude a finding of malice may be found from an

official’s reckless and callous disregard of known dangers.

In the present case Smith knew or should have known that

Thompson had been ordered separated from the other

inmates for his safety and that of others. The record also

indicates that Smith made little or no effort to determine

whether another cell was available or that he ever checked

on the inmates during his shift. This, coupled with the

knowledge that Elijah Smith was beaten to death in his

cell during Smith’s shift only a few weeks before, could

conceivably persuade the jury of a need for some deterrent

to avoid further conduct of this type. The Supreme Court

has recently suggested that deterrence is an even more

important purpose of section 1983 than retribution. City

of Newport v. Fact Concerts, supra, 49 U.S.L.W. at 4865.

A-15

Upon review the amount of punitive damages may

be disturbed only when it appears, in the judgment of the

reviewing court to be unfair and shocking. Guzman v. West-

ern State Bank, supra, 540 F.2d at 954. We find the award

of punitive damages justifiable under the evidence.

Wade’s Cross-Appeal.

Wade initiated this cross-appeal charging that the dis-

trict court erred in refusing to grant directed verdicts

against defendants Blackwell and Schroeder. He maintains

that there was uncontroverted evidence that both Blackwell

and Schroeder committed an egregious failure to protect

him from assault. A review of the record reveals that this

contention is without merit. Defendant Blackwell testified

only in regard to administrative practices and policies.

Schroeder testified that he moved Wade from punitive

segregation to administrative segregation on October 27,

1976, and placed Wade in the cell with one other inmate.

It was for the jury to decide whether the overall evidence

warranted a verdict in favor of the plaintiff as to these

defendants. The evidence was conflicting and the court

properly submitted the cases to the jury. There is nothing

in the testimony of either defendant or in the record itself

which would require reasonable men to reach only one ver-

dict. Hladyshewski v. Robinson, 557 F.2d 1251, 1252, (8th

Cir. 1977.)

The judgment of the district court is affirmed. Plain-

tiff Wade shall pay the costs on the cross-appeal.

GIBSON, Senior Circuit Judge, concurring in part and

dissenting in part.

I concur in the majority’s opinion holding that a quali-

fied immunity will not shield a prison official from liability

for injuries caused from a ‘‘callous indifference to a prison-

er’s rights.’’ I dissent from that part of the opinion allow-

ing punitive damages without a finding of actual malice.

A-16

The decision of the majority on the latter point is directly

contrary to a part of the holding of Carey v. Piphus, 435

U.S. 247 (1978). Furthermore, even if gross negligence

or recklessness could substitute for malice in an award of

punitive damages, the jury was improperly instructed.

Finally, the evidence in this case would not support a find-

ing of either actual malice or gross negligence or reckless-

ness.

The Supreme Court has never expressly held that puni-

tive damages are available in § 1983 actions. Nevertheless,

lower courts have often allowed the recovery of punitive

damages. See cases cited p. 12 ante. Even without decid-

ing this issue, the Supreme Court has included in its hold-

ings a standard for the award of punitive damages under

§ 1983. In Carey, the Court held that malice on the part of

a defendant is a prerequisite to an award of punitive

damages.

The Court in Carey avoided the question of whether

punitive damages are proper by holding that if they were,

they would be proper only when malice is present. The

Court stated:

Alth- ugh we imply no approval or disapproval of any

of these cases [allowing punitive damages for 4 1983

violations,] we note that there is no basis for such an

award in this case. The District Court specifically found

that petitioners did not act with a malicious intention

to deprive respondents of their rights or to do them

other injury. ...

435 U.S. at 257 n.11 (emphasis added).

Instead, the district court in Carey found that defend-

ants ‘‘should have known that [their conduct] would violate

procedural due process.’’ 435 U.S. at 251. The Supreme

Court allowed an award of compensatory damages, despite

A-1T

the qualified immunity of defendants, because they should

nave known that they were violating plaintiffs’ rights.

The additional element of malice was necessary before puni-

tive damages could be awarded; the Court withheld judg-

ment on whether punitive damages are permissible even

when malice is present.

There is a distinction between the type of wrongdoing

necessary to cast away the shield of qualified immunity

and to justify an award of punitive damages. This dis-

tinction is overlooked by the majority. Pp. 12-13 ante. When

the findings in Carey are laid side by side with those in

the case before us, Carey clearly controls its disposition.

In Carey, two students in Chicago public schools received

twenty-day suspensions for rules violations. Neither re-

ceived a hearing in connection with the suspensions. The

district court held that the suspensions violated the pro-

cedural due process rights of the students, and defendants

did not challenge that holding. In the instant case, the

district court found that Smith violated Wade’s right to

be free from cruel and unusual punishment. The Carey

district court found that defendants ‘‘ ‘should have known

that a lengthy suspension without any adjudicative hear-

ing of any type’ would violate procedural due process.’’

435 U.S. at 251. In the instant case, the jury was instructed

to find for the plaintiff if:

Defendants knew or should have known that placing

two or more inmates in the same cell in administrative

segregation with only one guard on duty in that build-

ing made it highly foreseeable that [Wade] would be

physically attacked and sexually abused, and

. . . Such acts violated plaintiff’s constitutional

right to be free from cruel and unusual punishment.

Pp. 6-7 ante.

A-18

_,, The Supreme Court in Carey did not disturb the dis-

trict court’s finding that defendants were not ent‘tled to

qualified immunity because they should have known that

their conduct would deprive plaintiffs of constitutional

rights. The district court relied on Wood v. Strickland,

420 U.S. 308, 322 (1975). In the instant case, the majority

finds that Smith is not entitled to qualified immunity

because of his callous indifference to Wade’s rights. Pp.

4-5 ante. I agree with that decision.

In Carey the district court held that defendants ‘‘did

not act ‘with the malicious intention to cause a depriva-

tion of constitutional rights or other injury... .’’’ 435

U.S. at 251 n.6, quoting Wood vy. Strickland, 420 U.S. at

322. This court finds ‘‘no evidence of ill will or spite by

Smith.’’ Pp. 14 ante. The Supreme Court in Carey held

‘*there is no basis for such an award [of punitive damages]

in this case. The District Court specifically found that

petitioners did not act with a malicious intention.’’ 435

U.S. at 257 n.11. The majority would award punitive dam-

ages even without a showing of actual malice.

The cases cited by the majority for the proposition

that reckless disregard of a plaintiff’s constitutional rights

can be a basis for an award of punitive damages are in-

appropriate. Cochetti v. Desmond, 572 F.2d 102 (3d Cir.

1978), and Gueman v. Western State Bank of Devils Lake,

540 F.2d 948 (8th Cir. 1976), both predated Carey. Further-

more, the Cochetti court determined that punitive damages

were not in order; it dia not have to decide if mere reck-

lessness or callousness is sufficient. 572 F.2d at 106.

The other case cited by the majority, Konczak v.

Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S.

1016 (1980), also fails to support the majority position.

At the page cited by the majority, the court requires

‘*intent or reckless disregard’’ only to get beyond the quali-

A-19

fied immunity defense. 603 F.2d at 17. When the court

discussed punitive damages, it cited Carey and six lower

court cases supporting the malice requirement. 603 F.2d at

18.

The majority argues that malice :ncludes recklessness .

or a willful and wanton disregard of another’s rights.

None of the cases cited by the majority, see p. 14 ante,

support this proposition.’ Indeed, two of the majority’s

eases refer to malice as something distinct from reckless-

ness. See Bogard v. Cook, 586 F.2d 399, 411 (5th Cir.

1978) ; Galloway v. General Motors Acceptance Corp., 106

F.2d 466, 471 (4th Cir. 1939). The Supreme Court citation

offered by the majority makes no reference to malice and

the case deals only with liability under § 1983, not puni-

tive damages. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

The majority would have been correct in arguing

that recklessness or gross negligence, if outrageous, as

well as malice will often support a claim for punitive

damages. See, e.g., Restatement (Second) of Torts § 908(2)

(1979). However, we are not dealing with the common law

of torts. We are dealing with interpretation of a federal

statute. Although under a narrow reading Carey may not

always require actual malice, the case at least requires

application of different standards for liability and an award

of punitive damages. Contrary to the instructions to the

jury, mere callousness or recklessness should not be suf-

ficient to support an award of punitive damages under

§ 1983. The majority is not following Carey’s mandate

to require more egregious conduct when punitive damages

are sought than is necessary tc surmount the qualified

immunity doctrine.

1In the special area of defamation, the Court has adopted a defini-

tion of actual malice which includes recklessness. N. Y. Times v. Sullivan,

376 U.S. 254, 280 (1964).

A-20

Even if the majority’s view of the law is correct, the

jury was not instructed in accordance with that view. The

majority concluded that malice could be inferred from an

official’s ‘‘reckless and callous disregard’’ of known dan-

gers. P. 14 ante. On the other hand, the jury was told it

eould award punitive damages if there was a ‘‘reckless or

callous disregard’’ of the safety of others. P. 12 ante (em-

phasis added). Under the majority’s view a remand is

in order to determine whether Smith acted recklessly. Of

course, a remand would not be necessary if the majority

concludes that not only does ‘‘malice’’ include ‘‘reckless-

ness’’ but it includes ‘‘callousness’’ as well, and either

suffices for the other.

Finally, the facts of this case do not support a find-

ing of recklessness or gross negligence. Out of fifty-two

cells in the dormitory, only one housed a single prisoner.

In light of the difficulties of administering a crowded

prison, Smith’s conduct cannot be characterized as gross

negligence or recklessness.

Because of the controlling precedent regarding the

award of punitive damages as well as the facts of this

case, I dissent from the award of punitive damages. I join

the rest of the opinion of the majority.

A true copy.

ATTEST:

CLERK, U. 8. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-21

APPENDIX B

INSTRUCTION NUMBER 7

In addition to actual damages, the law permits the

jury, under certain circumstances, to award the injured

person punitive and exemplary damages, in order to punish

the wrongdoer for some extraordinary misconduct, and to

serve as an example or warning to others not to engage in

such conduct.

If you find the issues in favor of the plaintiff, and

if the conduct of one or more of the defendants is shown

to be a reckless or callous disregard of, or indifference to,

the rights or safety of others, then you may assess punitive

or exemplary damages in addition to any award of actual

damages.

If punitive or exemplary damages are assessed against

more than one defendant, the amounts assessed against each

defendant may be the same or they may be different. The

amount of punitive or exemplary damages assessed against

any defendant may be such sum as you believe will serve

to punish that defendant and to deter him and others from

like conduct.

A-23

APPENDIX C

INSTRUCTION NUMBER 5

Your verdict must be for plaintiff if you believe:

FIRST: Defendants knew or should have known that

placing two or more inmates in the same cell in adminis-

trative segregation with only one guard on duty in that

building made it highly foreseeable that some inmates,

and in particular the plaintiff Daniel R. Wade, would be

physically attacked and sexually abused, and

SECOND: Defendants’ conduct was grossly negligent

or an egregious failure to protect the plaintiff Daniel R.

Wade, and

THIRD: Such acts of defendants were done under the

color of law of the State of Missouri and

FOURTH: Such acts violated plaintiff’s Constitu-

tional right to be free from cruel and unusual punishment.

FIrTH: As a direct result of such conduct, the plain-

tiff ». “fered injury.

Gross negligence as used in this instruction means a

callous indifference or thoughtless disregard for the conse-

quences of one’s acts or failure to act.

Egregious failure to protect means a fragrant or re-

markably bad failure to protect.

xipusdidy juior

Office - Supreme Court, U.S.

FILED

MAY 12 198?

No. 81-1196 ALEXANDER L. STEVAS.

iitiiiiaiainiaiiias CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

On Warr or Certionant To THE Untrep States Court

or ApPEALs ror THE ExouTH Crecurr

JOINT APPENDIX

222 Monroe St. Attorney

(314) oy AO oe Pavut Rosear Orro

i Post Office Box 899

Bravizy Jefferson , Missouri 65102

Attorney at Law Of Counsel (314) 751

Attorneys for Petitioner

Rosert Presson

fr nt Gane

————— ee eee eee

KELLY PRESS, INC., 201 8. Eighth St., Columbia, Missouri Dial 314/449-4163

PETITION FOR WRIT OF CERTIORARI

FILED DECEMBER 23, 1981

CERTIORARI GRANTED APRIL 19, 1982

TABLE OF CONTENTS”

Relevant Docket Entries ............2eeeeeeeeeeeeees 1

Plaintiff’s Second Amended Complaint .............. 5

Tmastrustion Whe. & ...ccccccccccccccccccccccctccccoces 13

Enstrmstiod We. FT ...ccccccscccccsccccccsccsccccccces 14

No. 81-1196

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM H. SMITH,

Petitioner,

DANIEL R. WADE,

Respondent.

JOINT APPENDIX

RELEVANT DOCKET ENTRIES

United States District Court,

Western District of Missouri

February 14, 1978 Complaint filed.

March 16, 1978 Motion by defendants to Dismiss, with

Suggestions in Support Thereof, filed.

March 27, 1978 First Amended Complaint filed.

April 5, 1978 Motion by defendants to Dismiss, with

Suggestions in Support Thereof filed.

April 14, 1978 Suggestions by plaintiff in Opposition

to Motion to Dismiss filed.

May 30, 1978

June 7, 1978

July 27, 1978

August 10, 1978

August 21, 1978

March 11, 1980

March 12, 1980

Order Granting Plaintiff’s Motion for

Leave to File Supplemental Sugges-

tions in Opposition to Motion to Dis-

miss filed.

Report and Recommendation of the

United States Magistrate that the de-

fendant’s Motion to Dismiss be Denied

filed.

Motion by plaintiff to File Second

Amended Complaint with Suggestions

in Support Thereof, filed.

Order Granting Plaintiff Leave to File

Second Amended Complaint filed.

Answer by defendants filed.

Trial of this case is before the Honor-

able Scott O. Wright. Parties announce

ready for trial. Jury is called, duly

sworn, empaneled and comes as fol-

lows: 1. James Edwin Paneck; 2.

Erick R. Hopper; 3. Orin W. Chap-

pell; 4. Finice O. Porter; 5. John W.

Richard; 6. Jessie Riley; alternate

Fred Pimberton. Opening statements,

plaintiff presents evidence. Court is

in recess until 9:00 a.m. March 12, 1980.

Defendants’ Oral Motion for Continu-

ance before trial began—denied. Min-

ute Sheet—filed. Jury list—filed.

Parties again come for trial. Plaintiff

continues testimony. Court is in recess

until 9:00 a.m. March 13, 1980. Minute

sheet—filed.

March 13, 1980

March 14, 1980

Parties again come for trial. Plaintiff

continues to present evidence. Court

is in recess until 9:00 a.m., March 14,

1980. Attorneys remain for instruction

conference.

Parties again come for trial. Plaintiff

continues to present evidence. Plain-

tiff rests. Defendant’s Motion for Di-

rected Verdict in Favor of Defendants,

Close of Plaintiff’s Evidence—over-

ruled. Defendant presents evidence.

Defendants rest. Plaintiff moves for a

directed verdict (oral)-—overruled.

Defendant’s Motion for Directed Ver-

dict in Favor of Defendants at Close of

All the Evidence—filed. Sustained as

to defendants Haynes and Miles. Over-

ruled as to defendants Smith, Schroe-

der and Blackwell. Closing arguments

made. Instructions given to the jury.

Jury retires to deliberate. Instructions

—filed. Exhibits lists—filed. 7:00 p.m.

verdict returned. Jury finds in favor

of plaintiff against defendant William

Henry Smith on the issue of actual

damages in the amount of $25,000.

And, the jury finds in favor of plain-

tiff and against defendant William

Henry Smith on the issue of punitive

damages in the amount of $5,000.

Court is adjourned. Verdict forms

filed. Minute Sheet—filed.

Judgment on jury verdict as to defend-

ant Smith. Filed.

March 24, 1980

October 21, 1980

November 7, 1980

Motion for Judgment Notwithstanding

the Verdict, or Alternatively, for New

Trial filed.

Order denying defendant William

Smith’s Motion for Judgment Not-

withstanding the Verdict, or Alterna-

tively for New Trial filed.

Notice of Appeal filed by defendant.

UNITED STATES DISTRICT COURT

WESTERN DIVISION OF MISSOURI

FILED AUGUST 10, 1978

DANIEL R. WADE,

Plaintiff,

vs.

EDWARD E. HAYNES,

Director of the Division of

Corrections of the State of Missouri,

WALTER DAVID BLACKWELL,

Superintendent of the Missouri

Intermediate Reformatory,

WILLIAM H. SMITH,

Corrections Officer for Division of

Corrections of the State of Missouri,

WILLIAM SCHROEDER,

Corrections Officer for Division of

Corrections of the State of Missouri,

FRED MILES,

Corrections Officer for Division of

Corrections of the State of Missouri,

and

DIVISION OF CORRECTIONS OF

THE STATE OF MISSOURI.

Case No.

78 4043 CV-C

SECOND

AMENDED

COMPLAINT

EEE Ee

Comes now plaintiff and having requested leave to

amend pursuant to Rule 15 of the Federal Rules of Civil

Procedure files his SECOND AMENDED COMPLAINT.

JURISDICTION AND VENUE

1. Plaintiff files this complaint, institutes these pro-

ceedings and invokes the jurisdiction of this Court under

and by virtue of 28 USC Section 1343 to obtain the costs

of suit, including reasonable attorneys’ fees, and damages

suffered by Mr. Daniel R. Wade caused by defendants’

violation of his rights as guaranteed in the Eighth and

Fourteenth Amendments to the Constitution of the United

States and by federal law, particularly the Civil Rights

Act, 42 USC 1983.

This Court also has jurisdiction of this action under

28 USC Section 1331, in that the matter in controversy ex-

ceeds the sum of Ten Thousand Dollars ($10,000.00), ex-

clusive of interest and costs, and arises under the Eighth

and Fourteenth Amendments of the Constitution of the

United States.

2. The violation of plaintiff’s rights as alleged herein

was committed within the State of Missouri.

PARTIES

3. Plaintiff, Daniel R. Wade, is a citizen of the

United States of America and was at all times relevant

herein an inmate of the Division of Corrections of the State

of Missouri, incarcerated at the Missouri Intermediate

Reformatory, known as Algoa, in Cole County, Missouri.

4. Defendant, Edward E. Haynes, was at all times

relevant herein the duly appointed, qualified and acting

Director of the Division of Corrections of the Staite of

Missouri (organized pursuant to the Omnibus Reorganiza-

tion Act of 1974, Appendix B, Section 15 (13) and Sections

216.010 RSMo. et seg.) and is and at all times relevant

herein was a resident of Callaway County, Missouri.

5. Defendant, Walter David Blackwell, was at all

times relevant herein the duly appointed, qualified and

acting Superintendent of the Missouri Intermediate Re-

formatory, known as Algoa, and is and at all times relevant

herein was a resident of Cole County, Missouri.

6. Defendant, William H. Smith, was at all times

relevant herein a duly appointed, qualified and acting

Corrections Officer of the Division of Corrections of the

State of Missouri and is and at all times relevant herein

was a resident of Maries County, Missouri.

7. Defendant, William Schroeder, was at all times

relevant herein a duly appointed, qualified and acting

Corrections Officer of the Division of Corrections of the

State of Missouri and is and at all times relevant herein

was a resident of Cole County, Missouri.

8. Defendant, Fred Miles, was at all times relevant

herein a duly appointed, qualified and acting Corrections

Officer of the Division of Corrections of the State of Mis-

souri and is and at all times relevant herein was a resident

of Cole County, Missouri.

9. Defendant Division of Corrections, is and was at

all times relevant herein a division of the government of

the State of Missouri organized pursuant to the Omnibus

Reorganization Act of 1974, Appendix B, Section 15 (13)

and Sections 216.010 RSMo et seq.

10. Defendants, Edward E. Haynes, Walter David

Blackwell, William H. Smith, William Schroeder and Fred

Miles are sued individually and in their official capacities.

Relief is sought against each and all defendants as well as

their agents, assistants, successor, employees and persons

acting in concert or cooperation with them or at their

direction or under their supervision.

11. At all times relevant herein the defendants, Ed-

ward E. Haynes, Walter David Blackwell, William H.

Smith, William Schroeder and Fred Miles and their agents,

assistants, and employees acted pursuant to the policies,

regulations or decisions officially adopted or promulgated

by those in the Division of Corrections whose acts may

fairly be said to represent official policy or were pursuant

to governmental custom of the Division of Corrections.

12. At all times relevant herein defendants have acted

under the color of authority of the law of the State of Mis-

souri or in active concert with such defendants who are

so acting.

COMPLAINT

COUNT ONE

13. On or about January 26, 1976, plaintiff entered

the Missouri Intermediate Reformatory (hereinafter re-

ferred to as Algoa).

14. Shortly after plaintiff entered Algoa, defendants

Edward E. Haynes, Walter David Blackwell and the Di-

vision of Corrections and their officers, agents, assistants

and employees working under their supervision, placed

plaintiff in a special treatment unit for his protection be-

cause of his susceptibility to physical attack and sexual

abuse from prisoners of the general population.

15. On or about October 27, 1976, defendants, Edward

E. Haynes, Walter David Blackwell, William H. Smith,

William Schroeder, Fred Miles, the Division of Corrections

or officers, agents, assistants or employees working under

their supervision locked plaintiff in a cell on the second

floor of an administrative segregation building with two

prisoners who had been in the general population of Algoa.

16. On or about October 27, 1976, and October 28, 1976,

only one guard was on duty in that administrative segre-

gation building.

17. On or about October 27, 1976, and October 28, 1976,

plaintiff was viciously, maliciously and brutally, assaulted

and battered and forcibly subjected to acts of sodomy and

buggery by two inmates who had been in the general

population of the prison, causing plaintiff to suffer ex-

treme physical pain and mental anguish and humiliation,

the full extent of which cannot be measured.

18. Defendants Edward E. Haynes, Walter David

Blackwell, William H. Smith, William Schroeder, Fred

Miles and the Division of Corrections and their officers,

agents, assistants and employees individually and collec-

tively were grossly negligent in:

(a) allowing two or more inmates housed in the ad-

ministrative segregation building to be placed in the same

cell while only one guard was on duty in that building,

and in

(b) allowing inmates, who defendants knew or should

have known were particularly susceptible to physical at-

tack and sexual abuse by other prisoners, to be placed in

the same cell in the administrative segregation building

with two other prisoners and keeping them there while

only one guard was on duty in that building, when based

on prior experience they knew or in the exercise of or-

dinary care should have known: (1) that these practices

made it highly foreseeable that some inmates, and in par-

ticular plaintiff Daniel R. Wade would be attacked or

sexually abused and (2) that the number of guards pro-

vided was insufficient to prevent such attack and sexual

abuses or to rescue inmates should such attacks occur.

19. In addition, defendants Edward E. Haynes, Wal-

ter David Blackwell and the Division of Corrections and

their officers, agents, assistants and employees were

grossly negligent in failing to assign an adequate number

of guards to the administrative segregation building on

the dates in question when they individually and collec-

tively knew, or the exercise of ordinary care should have

known, based on prior experience: (a) that this practice

made it highly foreseeable that some inmates, and in par-

ticular plaintiff Daniel R. Wade, would be attacked or

sexually abused and (b) that the number of guards pro-

vided was insufficient to prevent such attacks and sexual

abuses or to rescue inmates should such attacks occur.

20. The acts of Defendants and each of them, sub-

jected plaintiff to cruel and unusual punishment in viola-

tion of the Eighth and Fourteenth Amendments of the

United States Constitution and have caused plaintiff to

suffer damages in the sum of Five Hundred Thousand

Dollars ($500,000.00).

WHEREFORE, plaintiff respectfully prays this

Court to:

a) permanently enjoin the defendants, their agents,

assistants, successors, employees and persons acting in

concert or cooperation with them from further violating

the rights, privileges and immunities guaranteed to the

plaintiff under the Constitution of the United States of

America ;

b) grant compensatory damages to plaintiff in the

sum of Five Hundred Thousand Dollars ($500,000.00) ;

ec) grant punitive damages to plaintiff in the sum of

One Hundred Thousand Dollars ($100,000.00) ;

d) grant plaintiff his costs of this action, including

a reasonable attorney’s fee.

COUNT TWO

Comes now the plaintiff and for Count Two of his

SECOND AMENDED COMPLAINT hereby adopts by

reference paragraphs 1 through 17 of Count One of this

SECOND AMENDED COMPLAINT and further states:

18. Defendants Edward E. Haynes, Walter David

Blackwell, William H. Smith, William Schroeder, Fred

Miles and the Division of Corrections and their officers,

agents, assistants and employees, individually and collec-

tively, egregiously failed to provide adequate security for

plaintiff Daniel R. Wade by:

(a) placing him in the same cell in the administrative

segregation building with two other inmates and by

(b) placing him in the same cell in the administrative

segregation building with two other inmates and keeping

him there while only one guard was on duty in that build-

ing when they knew, or in the exercise of ordinary care

should have known, based on prior experience, that plain-

tiff Daniel R. Wade was highly susceptible to physical

attack and sexual abuse by other inmates and that: (1)

these actions made it highly foreseeable that he weuld be

physically attacked and sexually abused, and (2) that the

number of guards provided was insufficient to prevent

such attacks and sexual abuses or to rescue the plaintiff

should such attacks occur.

19. In addition, defendants Edward E. Haynes, Wal-

ter David Blackwell and the Division of Corrections and

their officers, agents, assistants and employees egregiously

failed to provide security for plaintiff Daniel R. Wade by

failing to assign an adequate number of guards to the

administrative segregation building on the dates in ques-

tion when they individually and collectively knew, or the

exercise of ordinary care should have known, based on

prior experience: (a) that this practice made it highly

foreseeable that some inmates, and in particular plaintiff

Daniel R. Wade, would be attacked or sexually abused and

(b) that the number of guards provided was insufficient

to prevent such attacks and sexual abuses or to rescue

inmates should such attacks occur.

20. The acts of Defendants and each of them, sub-

jected plaintiff to cruel and unusual! punishment in viola-

tion of the Eighth and Fourteenth Amendments of the

United States Constitution and have caused plaintiff to

suffer damages in the sum of Five Hundred Thousand

Dollars ($500,000.00).

WHEREFORE, plaintiff respectfully prays this

Court to:

a) permanently enjoin the defendants, their officers,

agents, assistants, successors, employees and persons act-

ing in concert or cooperation with them from further vio-

lating the rights, privileges and immunities guaranteed to

the plaintiff under the Constitution of the United States

of America;

b) grant compensatory damages to plaintiff in the

sum of Five Hundred Thousand Dollars ($500,000.00) ;

c) grant punitive damages to plaintiff in the sum of

One Hundred Thousand Dollars ($100,000.00) ;

d) grant plaintiff his costs of this action, including

a reasonable attorney’s fee.

Brapiey H. Lockxenvirz

Box 95

Linn, Missouri 65051

314/897-3683

Attorney for Plaintiff

CERTIFICATE

I hereby certify that a copy of the above and foregoing SECOND

AMENDED COMPLAINT was mailed. postage prepaid, addressed to

Robert Presson, Assistant Attorney General, Supreme Court Building,

Jefferson City, Missouri on this 27th day of July, 1978.

BRADLEY H. LOCKENVITZ

INSTRUCTION NUMBER 5

Your verdict must be for plaintiff if you believe:

FIRST: Defendants knew or should have known that

placing two or more inmates in the same cell in adminis-

trative segregation with only one guard on duty in that

building made it highly foreseeable that some inmates,

and in particular the plaintiff Daniel R. Wade, would be

physically attacked and sexually abused, and

SECOND: Defendants’ conduct was grossly negligent

or an egregious failure to protect the plaintiff Daniel R.

Wade, and

THIRD: Such acts of defendants were done under

the color of law of the State of Missouri and

FOURTH: Such acts violated plaintiff’s Constitu-

tional right to be free from cruel and unusual punishment.

FIFTH: As a direct result of such conduct, the plain-

tiff suffered injury.

Gross negligence as used in this instruction means a

callous indifference or thoughtless disregard for the conse-

quences of one’s acts or failure to act.

Egregious failure to protect means a flagrant or re-

markably bad failure to protect.

INSTRUCTION NUMBER 7

In addition to actual damages, the law permits the

jury, under certain circumstances, to award the injured

person punitive and exemplary damages, in order to punish

the wrongdoer for some extraordinary misconduct, and to

serve as an example or warning to others not to engage in

such conduct.

If you find the issues in favor of the plaintiff, and

if the conduct of one or more of the defendants is shown

to be a reckless or callous disregard of, or indifference to,

the rights or safety of others, then you may assess punitive

or exemplary damages in addition to any award of actual

damages.

If punitive or exemplary damages are assessed against

more than one defendant, the amounts assessed against each

defendant may be the same or they may be different.

The amount of punitive or exemplary damages assessed

against any defendant may be such sum as you believe will

serve to punish that defendant and to deter him and others

from like conduct.

onsoddg

Office - Supreme Court, U.S.

FILED

No. 81-1196 MAR 18 1962

In the Supreme Court of the United States

October Term, 1981

WILLIAM H. SMITH,

Petitioner,

vs.

DANIEL R. WADE,

Respondent.

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

JouN W. INGLISH

(Counsel of Record)

222 Monroe Street

Jefferson City, Missouri 65101

(314) 635-1122

Attorney for Respondent

Brap.tey H. LocKENvITz

P.O. Box 95

Linn, Missouri 65051

(314) 897-3683

Of Counsel

E. L. Muewpewnatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

A ID chicicicsihictciccicielllibiis bce ailiahiniecnctatineincieoepaegs I

I CII a iniciriesintsstcinicsnepiibiansti hnintechanttnnceanintatiioas 1

I I CD veer eineprcteeinccpasiaipactennctnmnichinnpinciare 2

Reasons for Denying Petitioner’s Application for Writ

Se IID ctsssnlentsiniensnennchliinnigatsietntthbilaindlCinisiidaritpnsinsigtilie 3

Conclusion 7

ERR OS EP > PREREN SERS We Ne sO ar Oe EO 8

TABLE OF AUTHORITIES

Adickes v. Kress, 398 U.S. 144 (1970) .0..2......-.cccccceceeeees 4

Carey v. Piphus, 435 U.S. 247, 257 n. 11 (1978) ............ 5,6

City of Newport v. Fact Concerns, 450 U.S. 960 (1981) 5

Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir. 1978) 5

Estelle v. Gamble, 429 U.S. 97 (1976) ...............2.--ceceeceeeeeee 4,6

Fielder v. Bosshard, 590 F.2d 105, 111 (5th Cir. 1979) ... 5

Galloway v. General Motors Acceptance Corp., 106 F.2d

Se TEINS SUID cactus ihdaeiincscinatecsibadelitatiagnasinepssinsetgssatbees 6

Guzman v. Western State Bank, 540 F.2d 948, 953 (8th

RE eee

Konczak v. Tyrell, 603 F.2d 13 (7th Cir. 1979), cert

den., 444 U.S. 1016 (1980) ......

7 5

Little v. Walker, 552 F.2d 193, 197 n. 8 (7th Cir. 1977) 4

Schaal v. Rowe, 460 F. Supp. 155, 157 (E.D. Ill. 1978)

42 U.S.C. Section 1983 ..... BOE Scie Me Oe 1,4,

No. 81-1196

In the Supreme Court of the United States

October Term, 1981

DANIEL R. WADE,

Respondent.

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

STATUTES INVOLVED

42 U.S.C. Section 1983 provides as follows:

“Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any state

or territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.”

STATEMENT OF THE CASE

Respondent, Daniel R. Wade, makes the following addi-

tions and corrections to Petitioner’s Statement of Facts.

Respondent was an inmate at the Missouri Intermediate

Reformatory known as Algoa, entering that institution

when he was 17 years old. When he entered the prison he

was approximately 5 feet 8 inches tall and weighed 130

pounds. During his term there respondent suffered from

beatings at the hands of inmates in the general population.

These beatings resulted in black eyes for the respondent,

black eyes that were apparent to at least four prison of-

ficials or employees. During one term while respondent

was living among the inmates in the general population,

one eye was black for six months. He once had a cut over

an eye which scarred him for several weeks. Respondent’s

day to day existence in the general population of the

prison consisted of constant fighting with other inmates.

He lost most of these fights which were provoked by

others and he received little if any assistance from prison

guards. Respondent checked himself into the Special

Treatment Unit for protection from assaults from inmates

in the general population. The Special Treatment Unit

was secured from the general population and was used to

protect inmates acceptable to physical abuse. Respondent

was moved to dormitory six for punitive segregation and

administrative segregation for rule violations. Dormitory

six was a two story dormitory with 26 cells on each floor.

The cells on the second floor were approximately 65 square

feet in size. The only access to the cells on the second

floor was through steel or iron doors, locked from the out-

side with several small holes at the top of the doors. It

was impossible for guards to see an entire cell without

opening the door.

Only one guard was assigned to dormitory six. In

July, 1976 while petitioner William Henry Smith was on

duty in dormitory six inmate Elijah Smith was beaten to

death by his cellmate in a cell on the second floor. Guards

on duty in dormitory six were responsible for knowing

where their inmates had been housed prior to entering

administrative segregation. One guard testified that ex-

perience and common sense dictated not to mix inmates

who had been housed in a Special Treatment Unit with in-

mates who had come from the general population while

they were in dormitory six. No firm rules were estab-

lished for double celling inmates in dormitory six other

than an unwritten rule followed by petitioner not to mix

black inmates with white inmates.

On October 27, 1976 respondent was placed in a cell

in dormitory six with an inmate who had come from the

general population. Later that day petitioner William

Henry Smith placed a third inmate who had come from

the general population in that same cell. That inmate,

inmate Thompson, was sent to dormitory six because of

fighting and an urgent need to separate him from others

for his own safety and the safety of others. Another in-

mate who, like respondent had come from the Special

Treatment Unit, was alone in a cell in dormitory six at

the time this third inmate was placed in the cell with re-

spondent by the petitioner.

REASONS FOR DENYING PETITIONER’S

APPLICATION FOR WRIT OF CERTIORARI

The Court of Appeals below did not err in affirming

an award of punitive damages, because the evidence sup-

ports a finding of reckless or callous disregard of respon-

dent’s rights, and such a finding automatically triggers the

proper consideration of punitive damages for prisoner

plaintiffs under 42 U.S.C. Section 1983. A finding of this

nature meets the test announced by Mr. Justice Brennan’s

separate opinion in Adickes v. Kress, 398 U.S. 144 (1970),

It is sufficient for the plaintiff to show either that

the defendant acted “under color of a statute, ordi-

nance, regulation, custom or usuage of any State or

Territory” with actual knowledge that he was violat-

ing a right “secured by the Constitution and laws.”

or (emphasis supplied) that the defendant acted with

reckless disregard of whether he was thus violating

such a right,” citing C. McCormick Handbook on the |

Law of Damages Section 79 (1935), Id.

While it is true that Mr. Justice Brennan also ruled,

“To recover punitive damages, I believe a plaintiff

must show more than a bar violation of Section 1985.”, Id.,

it must be noted that the Court in Adickes was not ruling

on a case involving the same stringent requirement for

finding liability as we have in the instant case. To es-

tablish liability at all in this case, vespondent had to show

gross negligence or an egregious failure to protect. This

could be shown by a deliberate deprivation, which could be

shown by recklessness, Little v. Walker, 552 F.2d 193, 197

n. 8 (7th Cir. 1977), or recklessness in ignoring known

threats, Schaal v. Rowe, 460 F. Supp. 155, 157 (E.D. Ill.

1978), or deliberate indifference to known threats, Estelle

v. Gamble, 429 U.S. 97 (1976). By the very nature of this

action, if a defendant is found to have egregiously failed to

protect a prisoner to the extent that the qualified privilege

of prison officials in Section 1983 actions is overcome, then

it is a fortiori that punitive damages may follow, or as the

Court of Appeals below phrased it, the question is whether

punitive damages are a necessary concomitant of a finding

of liability. The Fifth Circuit has taken that position.

“In order to find cruel and unusual punishment, the jury

must have found egregious conduct capable of supporting

an award of punitive damages, Fielder v. Bosshard, 590 F.2d

105, 111 (5th Cir. 1979).

The reckless disregard test of Mr. Justice Brennan was

adopted by the Third Circuit in Cochetti v. Desmond, 572

F.2d 102, 106 (3rd Cir. 1978). That court held, “Usually

assessed both as an example and as a warning against

particularly egregious (emphasis added) conduct, such

damages serve both punitive and deterent functions. Such

awards may be particularly appropriate as a means of

vindicating public interest in preventing violations of civil

rights by state officials,” Id. at 105. This deterent function

serves a more important purpose than retribution, City of

Newport v. Fact Concerns, 450 U.S. 960 (1981). Not making

punitive damages a concomitant of a finding of liability

in prison cases would effectively abrogate the policy behind

punitive damages.

Petitioner suggests the respondent did not meet a stan-

dard of malice or actual intent noted in Carey v. Piphus,

435 U.S. 247, 257 n. 11 (1978). Yet in applying this test

courts have not abrogated the policy behind punitive dam-

ages with a narrow definition of malice or actual intent,

Guzman v. Western State Bank, 540 F.2d 948, 953 (8th

Cir. 1976); Konezak v. Tyrell, 603 F.2d 13 (7th Cir. 1979),

cert. den., 444 US. 1016 (1980). The Fifth Circuit in

Fielder dealt with this proposition.

We can divine no real difference between acting

with ‘deliberate’ or ‘callous difference’ and committing

acts which are ‘substantially certain’ to harm a prisoner.

If the plaintiff establishes the requisite ‘indifference’

and thus establishes liability, then he would also have

established the official’s ‘malicious intent’ as defined

in [Wood v. Strickland, 420 U.S. 308 (1975)], thus

negating with the same proof of existence of a qualified

privilege, Id. at 110.

See also Galloway v. General Motors Acceptance Corp.,

106 F.2d 466 (4th Cir. 1939). This holding is particularly

applicable in the instant case where the defendant not

only subjected the plaintiff to a situation which was sub-

stantially certain to cause him harm, but only a few

months before had committed similar acts which had re-

sulted in the death of another inmate.

The note in Carey does not conflict with these holdings

as petitioner suggests. Carey, merely takes note of the

fact that the district court in that case found no malicious

intent. There was no discussion of the callous indifference

or reckless disregard standard in any sense nor was there

any reversal of the stand taken in Estelle v. Gamble, 429

U.S. 97 (1976), where this court held that malicious intent

may be shown where conduct is so egregious and reckless

that the natural consequences of that conduct implies the

requisite malicious intent to do wrong.

The Court of Appeals did not decide an important

question of federal law which has not been, but should

be decided by this Court, nor is its decision in conflict

with any decision of this Court. The evidence supports

the award of punitive damages under the standards es-

tablished by this Court and the courts of appeals and the

punitive damage instruction submitted by the district court,

reprinted here as appendix A, was proper.

CONCLUSION

WHEREFORE, respondent requests this Court deny

petitioner’s request for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit to review

the question of the standard for imposition of punitive

damages pursuant to 42 U.S.C. Section 1983.

Respectfully submitted,

Joun W. INGLISH

(Counsel of Record)

222 Monroe Street

Jefferson City, Missouri 65101

(314) 635-1122

Attorney for Respondent

Brap.ey H. LOCKENVITZ

P.O. Box 95

Linn, Missouri 65051

(314) 897-3683

Of Counsel

APPENDIX

APPENDIX A

INSTRUCTION NUMBER 7

In addition to actual damages, the law permits the

jury, under certain circumstances, to award the injured

person punitive and exemplary damages in order to punish

the wrongdoer for some extraordinary misconduct, and to

serve as an example or warning to others not to engage

in such conduct.

If you find the issues in favor of the plaintiff and if

the conduct of one or more of the defendants is shown

to be a reckless or callous disregard of, or indifference

to, the rights or safeties of others, they you may assess

punitive or exemplary damages in addition to any award

of actual damages.

If punitive or exemplary damages are assessed against

more than one defendant, the amounts assessed against

each defendant may be the same or they may be different.

The amount of punitive or exemplary damages assessed

against any defendant may be such sum as you believe

will serve to punish that defendant and to deter him and

others from like conduct.

jog $ JQUONN2¢

No. 81-1196

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM H. SMITH,

Petitioner,

Vv.

DANIEL R. WADE,

Respondent.

On Wart or Certioram ro THE Untrep States Court or

APPEALS FOR THE EicutTs Crecvit

BRIEF FOR THE PETITIONER

Jouw AsHonorr

Attorney General

Pavut Rosert Orro

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

Rosert Presson

of Council

June, 1982

KELLY PRESS, INC., 201 S. Eighth St., Columbia, Missouri Dial 314/449-4163

QUESTIONS PRESENTED FOR REVIEW

1. Does an award of punitive damages in an action

under 42 U.S.C. § 1983 require a showing of actual malice

on the part of the defendant?

2. If a showing of actual malice on the part of the

defendant is not required for an award of punitive damages,

does it require a showing of sorae circumstances or conduct

in excess of that needed to establish a defendant’s liability

for compensatory damages under 42 U.S.C. § 1983?

TABLE OF CONTENTS

Questions Presented for Review ...............0eee0e0: I

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Table of Authorities ............... babeccséeceewened Ii

EE sic cavck scenes coedsncececoncncanbebel 1

SEL Gactrcedesodues dcabbacdyencescvcaendeésne 1

nS . cadidicccatscpcebodbbadasdeadd stb4a0n 2

I OT ID ED vc cnc caccccsambescecccecnsedanbe 2

I III oo ans ccccsksadncdadescctcodanes 5

SEE ss 450 vadeaweeeécdedagedotanesecels sscchie 8

TE 6.6 60 écc ec bvbcxcenad tages oceedcussyenbes 14

pani

TABLE OF AUTHORITIES

Adickes v. Kress and Company, 398 U.S. 144 (1970) ....15

Beckley Newspaper Corp. v. Hanks, 389 U.S. 81 (1967) ...9

Buckley v. Valeo, 424 U.S. 1 (197@) ..............0005- 10

Cantrell v. Forrest City Publishing Company, 419

eh SP SD és cc Cabot he tabibectecscowetaen¥i )

Carey v. Piphus, 435 U.S. 247 (1978) ........... 5, 8,14, 15

City of Newport v. Fact Concerts, Inc., ___. U.S. ___

101 S.Ct. ___., 69 L.Ed.2d 616 (1971) ......... 5, 8, 15

Cochetti v. Desmond, 572 F.2d 102 (3rd Cir. 1978) ...... 15

Day v. Woodworth, 54 U.S. 363 (1851) ................. 9

Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974) ..12, 13, 18

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 1)

Guzman v. Western State Bank, 540 F.2d 948 (8th Cir.

DED. don tudustns ss Abi divs sas abbeuinn+ebeilevees oe 11

International Brotherhood of Electrical Workers v.

BR ee, UE Ge GOOD Ch cc cctccncccccce 12, 13, 17

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..... 10

Koncezak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979),

cert. denied 444 U.S. 1016 (1980) ................. 15

Milwaukee and St. Paul Railroad Company v. Arms,

Se IED ‘x On dudWks nnd cuadakedvess 60ankse 12

Owens v. City of Independence, 445 U.S. 622 (1980) ....10

Procunier v. Navarette, 434 U.S. 855 (1978) ............ 16

Robertson v. Wegmann, 436 U.S. 584 (1978) ........... 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) ................ 16

Smith v. Goguen, 415 U.S. 566 (1974) ................. 10

United States v. Harriss, 347 U.S. 612 (1954) ........... 10

Valcourt v. Hyland, 503 F.Supp. 603 (D. Mass. 1980) ...10

Wade v. Haynes, 663 F.2d 778 (8th Cir. 1980) ...... 4, 8, 16

Wood v. Strickland, 420 U.S. 308 (1975) ............... 17

Statutes and Miscellaneous Cites

See WES IEE Ads Ov édgaacho nd cachesenecsues cheese 10, 13

42 U.S.C. § 1983 ........... I, 1, 2, 3, 5, 7, 8, 9, 10, 11 13, 14

Ps a hbddhcBeecnctiks Khadesecndnceucavevns 9

es WIG GUNN =, ch nwsaddedpbededs sch venshene 17

Kenneth R. Redden, Punitive Damages, § 7.4 (B) and

Se ED dnb edacdncuweens vedewe cs ésvecceseckuees 9

James D. Ghiardi and John J. Kircher, Pusitive

Damages, Law and Practice, § 1.02 (1981) .......... 9

No. 81-1196

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM H. SMITH,

Petitioner,

DANIEL R. WADE,

Respondent.

On Wait or CertTiorariI TO THE Unirep States Court or

APPEALS FoR THE Eicuts Circuit

BRIEF FOR THE PETITIONER

OPINIONS BELOW

There is no written opinion from the District Court.

The opinion of the United States Court of Appeals for the

Kighth Circuit is reported at 663 F.2d 778 and was reprinted

in the petition for writ of certiorari, Appendix A.

JURISDICTION

A judgment was entered against the defendant-peti-

tioner and in favor of plaintiff-respondent in the United

States District Court for the Western District of Missouri

in an action pursuant to 42 U.S.C. § 1983. This judgment was

affirmed in an opinion by the United States Court of Appeals

for the Eighth Circuit filed on November 9, 1981. Petition

for writ of certiorari was filed on December 23, 1981, and

granted on Aprii 19, 1982. The jurisdiction of this court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

42 U.S.C. § 1983 provides, in pertinent part, as follows:

‘*Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities se-

cured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.’’

STATEMENT OF THE CASE

The plaintiff was assigned as an inmate to the Algoa

Reformatory, an institution operated by the Missouri Di-

vision of Corrections, in 1976. The Algoa Reformatory is

an institution for first offenders, generally between the

ages of 17 and 25. The institution consists of housing dormi-

tories which have separate rooms to which inmates have

their own keys (Tr. 234). In October of 1976 the population

of Algoa Reformatory was approximately 600 inmates. The

original designed capacity for the Algoa Reformatory was

425 (Tr. 222). Dormitory no. 6 contains the punitive and

administrative segregation units of that institution. In con-

trast to the other housing units in the institution, dormitory

no. 6 did heave cells for lock-up purposes. The punitive

segregation area was used for short term confinement

and the administrative segregation unit was employed for

longer term confinement. Dormitory no. 6 had two floors

which had 26 cells each (Tr. 12).

The plaintiff voluntarily checked into the protective

custody unit of the Algoa Reformatory in late spring or

early summer of 1976 (Tr. 383). Because of disciplinary

violations by the plaintiff which occurred in the protective

custody unit itself, the prison disciplinary committee de-

cided upon a short term inpunitive segregation and a re-

assignment of plaintiff to the administrative segregation

unit (Tr. 259, 265-266, 387, 390). After serving his term in

punitive segregation, the plaintiff was transferred to the

administrative segregation area of dormitory no. 6 on the

morning of October 27, 1976 (Tr. 392). At that time the

plaintiff was placed in a cell with another inmate by the

name of McCarthy (Tr. 392). The defendant was not on

duty at that time. At approximately 10:00 p.m., while the

defendant was on duty in the segregation building, an

inmate by the name of Thompson was brought to dormitory

no. 6 and placed in the same cell as the plaintiff and Me-

Carthy (Tr. 395). Plaintiff testified that shortly after this

McCarthy and Thompson began to harrass him and even-

tually sexually assaulted him (Tr. 406).

The population of both segregation units at that time

combined was approximately 110 to 120 (Tr. 547). At that

time, only one guard was assigned to cover both floors

of dormitory no. 6 during the evening shift (Tr. 13).

Plaintiff’s complaint pursuant to 42 U.S.C. 4 1983 was

filed on February 14, 1978. A second amended complaint

was filed on August 10, 1978. The defendants included

Edward Haynes, the then director of the Missouri Division

of Corrections; David Blackwell, the then superintendent

of the Algoa Reformatory; and William Schroeder, Fred

Miles and William Smith, the petitioner herein, who were

employed as correctional officers at the Algoa Reforma-

tory. The plaintiff’s second amended complaint alleged

that the defendants knew or should have known of the

danger posed to the plaintiff by housing him in the ad-

ministrative segregation unit in this manner and that,

therefore, his rights under the Eighth and Fourteenth

Amendments to the United States Constitution were vio-

lated. (Joint Appendix, p. 5.) The trial court instructed

the jury both as to the standard for compensatory damages

as well as that for punitive damages. (Joint Appendix,

pp. 13, 14.) A verdict was returned in favor of plaintiff

and against defendant Smith in the amount of $25,000

actual damages and $5,000 punitive damages. Both awards

were affirmed by the United States Court of Appeals for

the Eighth Circuit in an opinion filed on November 9, 1981.

Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981). (Petition

for writ of certiorari, p. A-1.)

SUMMARY OF ARGUMENT

The petitioner, a defendant in the original proceeding

before the District Court, urges that this court adopt a

requirement of actual malice on the part of a defendant

in order to support an award of punitive damages under

42 U.S.C. § 1983. Defendant employs the term actual malice

herein to refer to actual ill will, spite, or intent to injure.

This Court has given previous indications that actual

malice in the foregoing sense is necessary in order to sup-

port an award of punitive damages under 42 U.S.C. § 1983.

Carey v. Piphus, 435 U.S. 268 (1978) ; and City of Newport

v. Fact Concerts, Inc., CB anne, 1 BK. 1.5 @

L.Ed.2d 616 (1981). The dissent below considered this posi-

tion controlling, in particular this Court’s opinion in Carey.

The majority, however, concluded that malice sufficient to

form a basis for an award of punitive damages might con-

sist of a reckless and callous disregard of known dangers

to a plaintiff.

Historically the primary reasons advanced to justify

the doctrine of punitive damages have been punishment

and deterrence. This Court has indicated, however, that

punishment has never been a central purpose to 42 U.S.C.

§ 1983. In order to rationally advance either punishment or

deterrence as a goal, it is necessary to delineate precise

standards which provide adequate notice as to when a de-

fendant may be subject to punitive damages. Just as in

the criminal law, punishment by way of punitive damages

without adequate notice as to what conduct justifies such

a sanction, violates a very fundamental principle of our

judicial system. Similarly, for deterrence to be effective,

people must have notice of what conduct is proscribed or

will subject them to sanction. Recklessness, callousness,

wantonness, or any of the other common standards which

courts have devised with regard to punitive damages do

not provide a sufficient degree of notice in order to make

either punishment or deterrence a rational justification for

punitive damages. Defendant believes that only a showing

of actual malice provides the necessary specificity and

narrows the jury’s focus such that the unpredictability and

possible bias which this Court has noted in connection with

punitive damages can be avoided. Because there was no

evidence of actual malice, the award of punitive damages

should be reversed.

Even if actual malice is not required in every instance

in order to justify an award of punitive damages, defend-

ant urges that it is required in this case. The Court of

Appeals below upheld the award of punitive damages on

essentially the same level of condm=t as that which was

held to establish the defendant’s liability for compensatory

damages. The dissent argued that the level of conduct

necessary to overcome qualified immunity and that neces-

sary to award punitive damages should be different.

Defendant contends that an award of punitive dam-

ages must be based on some aggravating circumstances

over and above the factual elements necessary to award

compensatory damages. However, because standards for

basic liability vary, what are aggravating circumstances in

one case may not be in another. Defendant believes that one

cannot import a standard of punitive damages from one

case to another when the standard for liability for com-

pensatory damages varies radically between them.

The standard of liability for compensatory damages,

whatever it might be in a particular case, is established for

a particular reason, resulting from a balancing of the in-

terests involved. In this case, the standard of liability for

compensatory damages has been set high in order to over-

come the qualified immunity which this Court has held

available under 42 U.S.C. § 1983. Defendant believes that

the qualified immunity which this Court has recognized

serves legitimate and significant interests, and that any

attempt to impose both compensatory and punitive dam-

ages for the same level of conduct is both illogical and

counter-productive to those interests.

Defendant contends, therefore, that punitive damages

must be based upon aggravating circumstances in every

case and that in this case, a showing of actual malice is

the only rational aggravating circumstance which might

conceivably justify an award of punitive damages. Because

the Court of Appeals below did not apply such a standard,

defendant urges that this Court reverse the award of puni-

tive damages.

An award of punitive damages under 42 U.S.C. § 1983

should require a showing of actual malice on the part of the

defendant.

This Court has previously indicated that punitive dam-

ages are available in a ‘‘proper’’ case under 42 U.S.C.

§ 1983. Carey v. Piphus, 435 U.S. 247 (1978), and City of

Newport v. Fact Concerts, Inc., Mah. aces: ae

S.Ct. __., 69 L.Ed.2d 616 (1981). The instant case pre-

sents the question of what constitutes such a ‘‘proper’’

case. In Carey v. Piphus this Court indicated that punitive

damages would be appropriate if a defendant had acted

with the malicious intention to deprive a plaintiff of his

rights or to do him injury. Carey v. Piphus, supra, at 257,

n. 11. In Fact Concerts this Court stated:

‘If a government official acts knowingly and ma-

liciously to deprive others of their civil rights, he may

become the appropriate object of the community’s

vindictive sentiments.’’ City of Newport v. Fact Con-

certs, Inc., supra, at 632.

The court of appeals below, however, held that the malice

necessary to impose punitive damages can be found from a

‘reckless and callous disregard of known dangers.’’ Wade

v. Haynes, 663 F.2d 778, 786 (8th Cir. 1981). (Petition for

Writ of Certiorari, p. A-14.) The dissent in the court be-

low concluded that a finding of actual malice was a neces-

sary prerequisite to the imposition of punitive damages.

Wade v. Haynes, supra, at 787-788. (Petition for Writ of

Certiorari, p. A-18.) As used herein the term actual malice

will not refer to that term of art created by this Court in

defamation cases but rather to the more traditional com-

mon law meaning of malice as employed by this Court in

Carey v. Piphus, supra; ill will, spite, or intent to injure.

Cf. Cantrell v. Forrest City Publishing Company, 419 U.S.

245 (1974), and Beckley Newspaper Corp. v. Hanks, 389

U.S. 81 (1967).

Defendant believes that a brief review of the justifica-

tions for the doctrine of punitive damages is necessary for

the consideration of what circumstances are appropriate for

their imposition. Historically, the rationale for punitive

damages is somewhat unclear. Although the very use of

the term ‘‘punitive’’ may imply a strictly penal rationale,

other theories have been advanced. It has been suggested

that one rationale for the rise of the doctrine of punitive

damages was the nonrecoverability of certain items of

damage or costs. Kenneth R. Redden, Punitive Damages,

§ 7.4 (B) and (C) (1980); James D. Ghiardi and John J.

Kircher, Punitive Damages, Law and Practice, § 1.02

(1981). In fact, very clearly this Court recognized the prac-

tical, if not legal, connection between punitive damages

and costs of litigation which were not generally recoverable.

Day v. Woodworth, 54 U.S. 363 (1851). However, with the

expension of items of damage which are properly re-

coverable, as well as the increased availability of recover-

ing costs and fees pursuant to 42 U.S.C. ¢ 1988, this ra-

tionale, if it was ever a major consideration, is certainly

decreased in importance. As this Court has noticed previ-

ously, the potential liability for attorney’s fees under 42

U.S.C. § 1988 provides a substantial assurance that the

enstitutional rights of individuals will not be ignored.

Carey v. Piphus, supra, at 257, n. 11. While in the past the

foregoing rationale may have had some impact upon the

formulation of the standard authorizing the imposition of

punitive damages, defendant believes that the definition

of an appropriate case for punitive damages under 42

U.S.C. § 1983 must be viewed in light of the most current

rationale for the doctrine.

The two rationales for punitive damages which thi-

Court has advanced have been punishment and deterrence.

Carey v. Piphus, supra. However, this Court cautioned in

Fact Concerts that punishment has never been as promi-

nent a purpose under 42 U.S.C. § 1983 as have compensa-

tion and deterrence. City of Newport v. Fact Concerts, Inc.,

supra, at 632. In fact, it has been suggested that the exis-

tence of 18 U.S.C. § 242, as a criminal counterpart to 42

U.S.C. § 1983, also undercuts a punishment rationale under

the latter. Valcourt v. Hyland, 503 F.Supp. 630 (D. Mass.

1980).

Deterrence on the other hand has been recognized as

a primary purpose under 42 U.S.C. § 1983. City of Newport

v. Fact Concerts Inc., supra; Owens v. City of Independ-

ence, 445 U.S. 622 (1980); Robertson v. Wegmann, 436

U.S. 584 (1978). However, deterrence is itself a penal con-

cept, as is punishment. Kennedy v. Mendoza-Martinez, 372

U.S. 144 (1963). Since the major justifications for puni-

tive damages are both traditionally penal in nature, de-

fendant believes that punitive damages constitute a quasi-

criminal fine. It is the quasi-criminal nature of the award

which defendant believes necessitates a showing of actual

malice as a necessary predicate to its imposition.

This Court has held on numerous occasions that, in the

criminal context, due process requires that a criminal stat-

ute provide adequate notice that conduct is illegal and that

men of ordinary intelligence should not be forced to guess

at the meaning of criminal statutes. Buckley v. Valeo, 424

US. 1 (1976); Smith v. Goguen, 415 U.S. 566 (1974). The

requirement of adequate notice in the criminal context has

as its foundation the punishment and deterrence rationales

of criminal law. In United States v. Harriss, 347 U.S. 612

(1954), the Court stated that the principle underlying the

requirement of notice is that no person should be held

criminally responsible if he could not reasonably under-

stand what conduct was proscribed. To the extent that

punishment remains a viable purpose for punitive damages

under 42 U.S.C. § 1983, defendant submits that it would

be equally illogical to punish by means of punitive damages

if one does not have adequate notice of what level of con-

duct would subject him to such a sanction.

With regard to the rationale of deterrence, this Court

has indicated that since it is assumed an individual can

choose between courses of conduct, the law insists upon

adequate notice as to what is or is not criminal so that one

may act accordingly. Grayned v. City of Rockford, 408 U.S.

104 (1972). If one does not have adequate notice of what is

proscribed, then one could not be deterred, by the existence

of a sanction, from pursuing such a course of conduct.

Similarly, if one has inadequate notice as to what justifies

the imposition of punitive damages, then one cannot be

deterred from ergaging in that conduct by the availability

of such damages.

Defendant submits, therefore, that in order to prop-

erly and logically serve the interests of punishment or de-

terrence, the standard for imposition of punitive damages

must be precisely delineated so as to provide notice. The

United States Court of Appeals for the Eighth Circuit has

indicated that punitive damages may be awarded based

upon ‘‘oppression, malice, gross negligence, willful or wan-

ton misconduct or a reckless disregard for the rights of the

plaintiff.’’ Guzman v. Western State Bank, 540 F.2d 948,

953 (8th Cir. 1976). While terms such as these may have

some utility in characterizing conduct for the purpose of

determining a level at which an award of compensatory

damage is appropriate, defendant contends that they are

totally inadequate in the realm of punitive damages. The

primary flaw of such terms is that they are inherently sus-

ceptible to varying interpretations and coupled with the

virtually unlimited ability of a jury to impose punitive

damages, they are inadequate. As this Court noted in Gertz

v. Robert Welch, Inc., 418 U.S. 323, 350 (1974), a jury’s

discretion with regard to punitive damages is limited only

by the ‘‘gentle rule that they not be excessive.’’ Defend-

ant contends that it is simply impossible to predict with

any reasonable degree of certainty what constitutes reck-

lessness, wantonness, oppression, or any of the other

generalized terms which have generally been held to au-

thorize the imposition of punitive damages. Given this basic

inability, punishment is irrational and deterrence unlikely.

Even with regard to future violations, if one cannot rea-

sonably determine what fact or facts resulted in the jury’s

determination, it is unlikely that the goal of deterrence

would be significantly served, if at all. The wider the range

of factors which go into a jury’s determination or the wider

the range of discretion of a defendant, the more difficult

it becomes to make any sort of reasoned judgment regard-

ing a future course of conduct.

In Milwaukee and St. Paw Railroad Company v. Arms,

91 U.S. 489 (1875), this Court reversed an award of puni-

tive damages imposed on the basis of gross negligence.

This Court stated that gross negligence had never been

adequately defined and that imperfect and unsuccessful

attempts should be abandoned. Although this Court in that

case indicated that punitive damages could be awarded

for either willful conduct or conduct which exhibits a reck-

less indifference to the rights of others, defendant believes

that this Court should now recognize that attempts over

the past 100 years to adequately define such terms as reck-

lessness have been imperfect and unsuccessful and should

likewise be abandoned. In fact, this Court has, on at least

two occasions, noted the unpredictability of punitive dam-

ages. International Brotherhood of Electrical Workers v.

Foust, 442 U.S. £2, 50 (1979), and Gertz v. Robert Welch,

Inc., supra, at 350. In Foust this Court indicated the man-

ner in which punitive damages could be abused.

‘*Moreover, it cannot be ignored that punitive

damages may be employed to punish unpopular de-

fendants. As we observed in the defamation context:

‘[Since] juries assess punitive damages in wholly un-

predictable amounts bearing no necessary relation

to the actual harm caused . . . they remain free to use

their discretion selectively to punish expressions of

unpopular views. Like the doctrine of presumed dam-

ages, jury discretion to award punitive damages un-

necessarily exacerbates the danger . . .’’ International

Brotherhood of Electrical Workers v. Foust, supra,

at 50, n. 14.

Defendant contends that a standard of actual maiice

in the sense of ill will or intent to injure, as opposed to

constructive or implied malice, provides a greater degree

of specificity and, therefore, better serves the goals of

punishment and deterrence. This standard focuses a jury’s

attention on a specific factor raiser than on a generalized

characterization of conduct which can vary widely depend-

ing upon the individual members of the jury. In a criminal

context a jury or court is rarely, if ever, given a carte

blanche with regard to sentencing. In fact, the maximum

fine under 18 U.S.C. § 242, the criminal counterpart to 42

U.S.C. § 1983, is $1,000, as opposed to the $5,000 punitive

damages awarded in this case. Given a jury’s virtually

unlimited discretion with regard to the amount of puni-

tive damages, defendant believes that it is all the more

important that a jury’s deliberation on this issue be ap-

propriately guided and limited by requiring that only a

showing of actual malice will justify an award of punitive

damages. As this Court noted in Carey v. Piphus, supra,

at 256-257, compensatory damages alone have a deterrent

effect and there is no evidence that Congress intended to

establish a more formidable deterrent. Although this Court

has since gone on in Fact Concerts to indicate that punitive

damages are available under 42 U.S.C. § 1983, to the ex-

tent that a desire or need for increased deterrence is the

rationale for that expansion, such damages should be avail-

able only under the most exacting standards. Defendant

contends that a standard of actual malice is the only stand-

ard which provides the specificity necessary to enhance

either the punishment or deterrence rationales and to jus-

tify an expansion beyond the deterrence already inherent

in the award of compensatory damages. Defendant con-

tends, therefore, that the Court of Appeals below erred in

upholding the award of punitive damages against him which

was admittedly not based upon a finding of actual malice.

Il.

Even if a showing of actual malice is not required for

an award of punitive damages in all instances, such a show-

ing is required in this case because of the general principle

that punitive damages requires the showing of some level

of conduct in excess of that needed to establish a defend-

ant’s liability for compensatory damages.

Even if a standard of actual malice is not required in

order to award punitive damages in every case under 42

U.S.C. § 1983, defendant submits that such a standard is

required in this instance. The Court of Appeals below held

that malice sufficient to justify an award of punitive dam-

ages may, in addition to traditional ill will, consist of a

reckless and callous disregard for known dangers. This was

essentially the same standard upon which the jury predi-

cated the award of compensatory damages. In the verdict

director, liability was premised on gross negligence which

was defined as a callous indifference and thoughtless dis-

regard for the consequences of one’s acts or failure to

act (App. p. 13). As noted in Point I, this Court has indi-

cated that punitive damages are available in a ‘‘proper’’

case under 42 U.S.C. § 1983. Carey v. Piphus, 435 U.S. 247

(1978), and City of Newport v. Fact Concerts, Inc.

U.S. —_, 101 8.Ct. ___, 69 L.Ed.2d 616 (1981). However,

defendant believes that the statement that some cases are

‘*proper’’ for punitive damages carries with it the negative

implication that some cases are improper vehicle for such

relief, even though a plaintiff may be entitled to injunctive

relief or compensatory damages. Defendant contends there-

fore, that the standard of liability for injunctive or com-

pensatory relief cannot, consistent with this Court’s state-

ments in Carey and Fact Concerts, automatically trigger

a jury’s consideration of an award of punitive damages.

There must be some aggravating circumstances over and

above the facts necessary to estiblish the existence of the

constitutional tort under 42 U.S.C. § 1983. The foregoing

principle has been specifically adopted by the Third and

Seventh Circuit Courts of Appeals in Cochetti v. Desmond,

572 F.2d 102 (3rd Cir. 1978), and Konczak v. Tyrrell, 603

F.2d 13 (7th Cir. 1979), cert. denied 444 U.S. 1016 (1980).

In particular, the Third Cireuit in Cochetti relied upon

Justice Brennan’s separate opinion in Adickes v. Kress and

Company, 398 U.S. 144 (1970). Defendant recognizes that

Justice Brennan suggested therein that reckless disregard

of a plaintiff’s rights would justify an award of punitive

damages. Jd. at 233. However, defendant believes that that

dicta must be viewed in context of what has been held to

-be the appropriate standard of liability for compensatory

damages. For instance, in Konceak the standard for basic

liability was intentional or reckless disregard of plaintiff’s

rights. With regard to punitive damages, the court focused

on the existence of non-existence of malice.

The appropriate standard for an award of punitive

damages cannot be viewed in isolation or in a vacuum. One

cannot take what has been held to be an aggravating cir-

cumstance sufficient to justify punitive damages in one

case and apply it to an entirely different case in which

those same facts would simply establish the basic liability

for compensatory damages. To do so would run afoul of

the basic policy reasons why a particular standard of lia-

bility has been established at the level that it has. Stand-

ards of liability for compensatory damage, whether they be

negligence, gross negligence, recklessness, or deliberate in-

difference, are not set arbitrarily. Standards of liability are

established at various levels to reflect what the court or

the legislature has perceived to be a balancing of appropri-

ate societal interests. In other words, it is an insufficient

argument to say in this case that the standard of basic

liability is high and that therefore compensatory and puni-

tive damages should be considered at the same level.

The level of basic liability for cases such as this has

been established at a high level for a very good reason.

As the dissent below pointed out, the jury’s finding of basic

liability in terms of callous indifference to the plaintiff’s

rights was necessary in order to overcome the qualified

immunity possessed by a correctional official. Wade v.

Haynes, 663 F.2d 778, 786 (8th Cir. 1981). (Petition for

writ of certiorari, p. A-15.) This Court has recognized the

existence and necessity for a qualified immunity in vari-

ous contexts and for various levels of officials. Scheuer v.

Rhodes, 416 U.S. 232 (1974); Wood v. Strickland, 420 U.S.

308 (1975); Procunier v. Navarette, 434 U.S. 855 (1978).

Defendant believes that one of the foremost reasons ad-

vanced by this Court for the recognition of a qualified im-

munity is that it protects an official’s ability to exercise

the discretion which has been afforded him without und.

timidity. Wood v. Strickland, supra, at 321. In fact, a a.-

cern over the possible undue inhibiting effects of punitive

damages was one factor which lead this Court to totally

reject the availability of punitive damages under the Rail-

way Labor Act, 45 U.S.C. $4 151, et seq. International

Brotherhood of Electrical Workers v. Foust, 442 U.S. 42,

51 (1979).

Defendant believes that the necessity for the qualified

immunity in this instance is sharply brought into focus

when one realizes that the defendant was charged not only

with the welfare and safety of the plaintiff, but also with

the welfare and safety of the 110 to 120 other inmates who

were confined in the segregation unit during the time that

he was on duty (Tr. 547). From the record below it would

appear that the jury rendered its verdict against the de-

fendant on the basis that it was he who was responsible for

placing Thompson as the third man in the cell with the

plaintiff (Tr. 651-654). Of course, given the availability of

only 52 cells in that unit, it is obvious that triple celling

was occurring in other cells and the defendant might be

open to a similar charge on behalf of other inmates no

matter where he placed Thompson. Further, one must keep

in mind that all of the inmates in that unit were in there

for disciplinary reasons and all, including the plaintiff,

could be viewed as posing a threat

It is obvious that a great me. y interests are at stake

in the apparently simple task of assigning a newly arrived

inmate to a unit. Consistent with this Court’s prior opin-

ions, defendant believes that the protection afforded by

qualified immunity is an absolute necessity under these

and a myriad of other situations which face a correctional

official. However, to award punitive dama; °s on the same

standard of conduct which is necessary to overcome that

qualified immunity significantly underminds the protection

afforded. As discussed in Point I, this Court has recog-

nized that awards of punitive damage are frequently unpre-

dictable and possibly infected with personal bias. Further,

the control over the amount of a jury’s award of punitive

damages is minimal at best. In the defamation context, this

Court held for very similar reasons that punitive damages

unnecessarily exacerbate the danger of media self-censor-

ship. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

While defendant does not equate the protection af-

forded by the First Amendment with that of qualified im-

munity under 42 U.S.C. § 1983, the protection afforded by

the latter has been established for a significant reason. An

award of punitive damages, which does not require some

aggravating circumstances, unnecessarily exacerbates the

danger of self-restriction in the exercise of discretion by

state officials. The danger of this form of self-censorship

is that correctional officials must often act for the safety

and welfare of hundreds and thousands of inmates and not

simply the plaintiff who is appearing before the court. The

failure of such officials to act or their hesitancy in acting

may often carry with it its own dangers.

To maintain the degree of protection which qualified

immunity affords to the exercise of discretion, the defend-

ant believes that a higher standard of liability must be

established for punitive damages over that for compensa-

tory damages. Since the level of conduct already required

to overcome the qualified immunity in this case is callous-

ness or a reckless indifference, defendant contends that the

only rational standard to justify punitive damages would

be that of actual malice. Because the Court of Appeals be-

low failed to make this crucial distinction between compen-

satory and punitive damages, defendant believes that the

award of the latter must be reversed.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals, insofar as it affirms the award of punitive

damages against the defendant, should be reversed.

Respectfully submit*ed,

Joun AsHOROFT

Attorney General

Pavut Rosert Orro

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

Rosert Presson

of Council

. aug

juepuodsey

Office - Supreme Court, U.S.

FILED

Jue 2 Oe

No. 81-1196 ALEXANDER L. STEVAS,

STITT a AE SARS S00: RBS RS

In the Supreme Court of the United States

October Term, 1981

DANIEL R. WADE,

Respondent.

On PETITION For Writ oF CERTIORARI TO THE

Unttep States Court or APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT’S BRIEF

Brap.ey H. LOcKENvitTz

(Counsel of Record)

P.O. Box 95

Linn, Missouri 65051

(314) 897-3683

Attorney for Respondent

E. L. Muwpewmatt, Inc., 926 Cherry Street, Kansas City, Mo. 64105, (816) 421-8030

QUESTIONS PRESENTED FOR REVIEW

1. Does an award of punitive damages in an action

under 42 U.S.C. Section 1983 require more than a showing

of callous or reckless disregard of Constitutional rights

which result in physical injury?

2. If a showing of actual malice on the part of the

defendant is not required for an award of punitive dam-

ages, does it require a showing of some circumstances or

conduct in excess of that needed to establish a defendant’s

liability for compensatory damages under 42 U.S.C. Section

1983?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... I

pS III

TR I nnn scsnsnncnsnsnsesesnesll II

STATERRIINT OF "THI CASE nanan csnncenenssseese 1

SUMMARY OF ARGUMENT. 0200022. eeeeeeccceeeeeeees 3

IEE irataicciniaebbilitetiitoceeiiicnbipsitiierstnneccivecnessenititibe 5

EERSTE SSS ets ee a Ee 10

TENE accccncvccnsossscossonsssnncsiattinitntbontasettssesassssbesihsoessibic 13

Tabie of Authorities

Adickes v. Kress, 398 U.S. 144 (1970) 000.000... 5, 7,8

Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) ................ 6,9

Carey v. Piphus, 485 U.S. 247, 257 n.11 (1978) ............ 6, 10

City of Newport v. Fact Concerts, Inc., 69 L.Ed.2d 616

I scctistilthsinenioaieiaenibendsietibidiinigeandi ...6, 7, 10

Clappier v. Flynn, 605 F.2d 519, 531 (10th Cir. 1979) ... 6

Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir. 1978)

, 7, 8,10

Day v. Woodworth, 54 U.S. (13 How.) 363 (1851) ........ 8,9

Estelle v. Gamble, 429 U.S. 97 (1976) -220.........ceeeneeee 5,6

Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979) .......... 6,7

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) 13

Guzman v. Western State Bank, 540 F.2d 948 (8th Cir.

1976) 6

Konezak v. Tyrrell, 603 F.2d 13, 17 (7th Cir. 1979)

cert. den. 444 U.S. 1016 (1980) - 6

Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.

SIT. Siolnginebninhjclinsaesinieindsiemangphenepbbincnechiodiahinaliiteniggecnianta 6

Little v. Walker, 552 F.2d 193, 197 n.8 (7th Cir. 1977) 6

Owen v. City of Independence, 445 U.S. 622 (1980) ....9, 10

Penn v. Oliver, 351 F.Supp. 1292 (E.D. Va. 1972) ........ 6,7

Procunier v. Naverette, 434 U.S. 855 (1978) ................ 13

Redmond v. Baxley, 475 F.Supp. 1111, 1117 (E.D. Mich.

1979) 6,7

Roberts v. Williams, 456 F.2d 819, 827 (5th Cir. 1971) 6

Schaal v. Rowe, 460 F.Supp. 155, 157 (S.D. Ill. 1978) ... 6

Spence v. Staras, 507 F.2d 554 (7th Cir. 1974) —.............. 6

Van Horn v. Lukhard, 392 F.Supp. 384, 387 (E.D. Va.

1975) 6,7

Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981) ............ 6,7

Wood v. Strickland, 420 U.S. 308 (1975) ....................... 7,9

ER 1, 3, 4, 5, 7, 11

No. 81-1196

In the Supreme Court of the United States

October Term, 1981

WILLIAM H. SMITH,

Petitioner,

vs.

DANIEL R. WADE,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

Untrtep States Court or APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT’S BRIEF

STATEMENT OF THE CASE

Respondent, Daniel R. Wade, makes the following ad-

ditions and corrections to Petitioner’s Statement of Facts.

Respondent was an inmate at the Missouri Interme-

diate Reformatory known as Algoa, entering that institu-

tion when he was 17 years old (T. 367). When he entered

the prison he was approximatciy 5 feet 8 inches tall ind

weighed 130 pounds (T. 370). During his term there re-

spondent suffered from beating at the hands of inmates in

the general population. These beatings resulted in black

eyes for the respondent, black eyes that were apparent to

at least four prison officials or employees including the

superintendent (T. 15, 16, 24, 25, 30, 252, 370-375). During

one term while respondent was living among the inmates

in the general population, one eye was black for six

months. He once had a cut over an eye which scarred

him for several weeks (T, 372). Respondent's day to day

existence in the general population of the prison consisted

of constant fighting with other inmates. He lost most of

these fights which were provoked by others and he re-

ceived little if any assistance from prison guards (T. 372-

374). Respondent checked himself into the Special Treat-

ment Unit for protection from assaults from inmates in the

general population (T. 10, 11, 261, 262, 383, 387). The

Special Treatment Unit was secured from the general pop-

ulation and was used to protect inmates susceptible to

physical abuse (T. 10, 11, 261, 262, 383, 387). Respondent

was moved to dormitory six for punitive segregation and

administrative segregation for rule violations (T. 259, 265,

266, 387, 390). Dormitory six was a two story dormitory

with 26 cells on each floor. The cells on the second floor

were approximately 65 square feet in size. The only access

to the cells on the second floor was through steel or iron

doors, locked from the outside with several small holes at

the top of the doors. It was impossible for guards to see

an entire cell without opening the door (T. 331).

Only one guard was assigned to dormitory six. In

July, 1976 while petitioner William Henry Smith was on

duty in dormitory six inmate Elijah Smith was beaten to

death by his cellmate in a cell on the second floor (T. 241-

242, 306). Guards on duty in dormitory six were re-

sponsible for knowing where their inmates had been

housed prior to entering administrative segregation (T. 19,

20, 200, 203, 225, 318). One guard testified that experience

and common sense dictated not to mix inmates who had

been housed in a Special Treatment Unit with inmates

who had come from the general population while they

were in dormitory six (T. 200-201). No firm rules were

established for double celling inmates in dormitory six

other than an written rule followed by petitioner not to

mix black inmates with white inmates (T. 313-317),

On October 27, 1976 respondent was placed in a cel! in

dormitory six with an inmate who had come from the gen-

eral population (T. 38, 39, 392-393). Later that day peti-

tioner William Henry Smith placed a third inmate who had

come from the general population in that same cell (T.

395). That inmate, inmate Thompson, was sent to dormi-

tory six because of fighting and an urgent need to separate

him from others for his own safety and the safety of others

(T. 321-322). Another inmate who, like respondent had

come from the Special Treatment Unit, was alone in a

cell in dormitory six at the time this third inmate was

placed in the cell with respondent by the petitioner

(T. 365).

SUMMARY OF ARGUMENT

The respondent, the plaintiff in the District Court,

urges this Court to affirm the opinion of the Court of Ap-

peals because a reckless or callous disregard of safety re-

sulting in physical injury warrants an award of punitive

damages under 42 U.S.C. Section 1983.

These are the identical standards required to over-

come the qualified immunity of prison officials in Section

1983 actions. A deliberate deprivation of Constitutional

rights and actual malice can be inferred from such conduct.

There is no real difference between acting with deliberate

or callous indifference and committing acts which are sub-

stantially certain to cause harm. Cases where this Court

and others have required more than bare violation of Sec-

tion 1983 to warrant punitive damages are not applicable

on this point, because they were not dealing with the same

stringent requirement for finding liability for actual dam-

ages as we have in this case.

Being subject to punitive damages does not give a

defendant all the rights afforded defendants in the crim-

inal law, because the primary purpose of punitive damages

is deterrence. Even if punitive damages are regarded as a

quasi-criminal fine, adequate notice of the proscribed con-

duct was given because the standard is not so vague that

men of ordinary intelligence would have to guess at its

meaning. To so hold would make all criminal statutes

proscribing reckless behavior, including manslaughter, un-

constitutional. Furthermore, a public official is deemed

on notice of the proscribed conduct from pre-existing case

law.

II.

The policy of detering violations of Constitutional

rights requires that punitive damages be available for

plaintiffs who meet the standards required for punitive

damages under 42 U.S.C. Section 1983 even in cases where

those standards are identical to those required for an

award of actual damages. Punitive damages serve a public

interest in detering future violations. Malice can be in-

ferred from reckless or callous acts. Even where that in-

ference is not made, there is no meaningful justification

for making the standards higher in cases where a qualified

immunity exists except in areas involving free speech. No

First Amendment rights are involved here, and no interest

comparable to First Amendment rights is present. The

qualified immunity will not be undermined by upholding

the Court of Appeals, because the immunity still must be

overcome to obtain actual damages.

ARGUMENT I

The decision below should be affirmed because, show-

ing a reckless or callous disregard of individual rights

which results in physical injury justifies an award of puni-

tive damages under 42 U.S.C. Section 1983. This meets

the test of Mr. Justice Brennan in his concurring opinion

in Adickes v. Kress, 398 U.S. 144 (1970).

“It is sufficient for the plaintiff to show either that

the defendant acted ‘under color of a statute, ordinance,

regulation, custom or usage of any State or Territory’ with

actual knowledge that he was violating a right ‘secured by

the Constitution and laws,’ or (emphasis supplied) that

the defendant acted with reckless disregard of whether he

was thus violating such a right,” citing C. McCormick

Handbook on the Law of Damages, Section 79 (1935), Id.

To establish liability at all in the instant case, respon-

dent had to show gross negligence or an egregious failure

to protect the plaintiff from other prisoners. (Instruction

Number 5, Joint Appendix) (The basic liability and result-

ing award of actual damages are not at issue before this

Court.) Meeting these standards was necessary to over-

come the qualified immunity of prison officials.

These standards also have been referred to as deliber-

ate indifference to a known threat to health or safety,

Estelle v. Gamble, 429 U.S, 97 (1976), recklessness in ig-

noring known threats, Schaal v. Rowe, 460 F.Supp. 155,

157 (S.D. Ill. 1978), callous indifference to predictable

consequences, Clappier v. Flynn, 605 F.2d 519, 531 (10th

Cir. 1979), Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1979),

Roberts v. Williams, 456 F.2d 819, 827 (5th Cir. 1971),

flagrant culpability, Van Horn v, Lukhard, 392 F.Supp. 384,

387 (E.D. Va. 1975), Redmond v. Baxley, 475 F.Supp. 1111,

1117 (E.D. Mich. 1979), egregious failure to protect, Penn

v. Oliver, 351 F.Supp. 1292 (E.D. Va. 1972), and gross neg-

ligence, Leite v. City of Providence, 463 F.Supp. 585, 590

(D.R.I. 1978). Deliberate deprivation of a Constitutional

right can be shown by recklessness, Little v. Walker, 552

F.2d 193, 197 n.8 (7th Cir. 1977). Punitive damages are

available in Section 1983 actions, City of Newport v. Fact

Concerts, Inc., 69 L.Ed.2d 616 (1981), particularly those in-

volving aggravated circumstances, Konczak v. Tyrrell, 603

F.2d 13, 17 (7th Cir. 1979) cert. den. 444 U.S. 1016 (1980),

Spence v. Staras, 507 F.2d 554 (7th Cir. 1974), Wade v.

Haynes, 663 F.2d 778 (8th Cir. 1981), and in cases where

the defendant demonstrates malice, gross negligence, will-

ful or wanton misconduct or a reckless disregard for the

rights of the prisoner, Wade, supra at 785, citing Guzman

v. Western State Bank, 540 F.2d 948 (8th Cir. 1976).

There is no distinction between the standards required

to overcome the qualified immunity and those required

for punitive damages. While petitioner suggests that some

form of malice or actual intent is required as noted in

Carey v. Piphus, 435 U.S. 247, 257 n.11 (1978), malice can

be implied from the acts of a defendant that demonstrates

a reckless or egregious disregard for the safety of prisoners,

Estelle, supra at 105-06, Wade, supra at 786, Bogard v. Cook,

586 F.2d 399 (5th Cir. 1978).

To be callously indifferent to one’s civil rights or to

callously or recklessly disregard them is tantamount to

being egregious as that term was used in Cochetti v. Des-

mond, 572 F.2d 102 (3rd Cir. 1978), and Penn v. Oliver,

supra, both cases involving liability for injuries to prisoner

plaintiffs. It is also tantamount to being grossly negligent

as that term is used in similar cases, Van Horn v. Luk-

hard, supra, Redmond v. Baxley, supra, It is important

to note that one of the grounds for denying punitive dam-

ages in Cochetti was because the plaintiff had not pleaded

anything akin to reckless disregard, callous indifference,

egregious failure or gross negligence, Id. at 106. That is

not the case here.

Petitioner cites Newport, supra, for the proposition

that the only time punitive damages are appropriate

under Section 1983 is when the defendant acts knowingly

or maliciously to deprive others of their civil rights, but

that opinion did not limit such awards to those circum-

stances alone.

By the very nature of this action, if a defendant is

found to have egregiously, recklessly or callously failed

to protect a prisoner, it is a fortiori that punitive damages

may result. As the court below phrased it, the question

is whether punitive damages are a necessary concom-

itant of a finding of liability in cases of this nature,

Wade, supra at 785. Fielder has so held. “We can divine

no real difference between acting with ‘deliberate’ or

‘callous indifference’ and coramitting acts which are ‘sub-

stantially certain’ to harm a prisoner. If the plaintiff

establishes the requisite ‘indifference’ and thus establishes

liability, then he would also have established the official’s

‘malicious intent’ as defined in [Wood v. Strickland, 420

U.S. 308 (1975)], thus negating with the same proof the

existence of the qualified immunity,” Fielder, supra at 110.

It is true that in Adickes, Mr. Justice Brennan also

ruled that “To recover punitive damages, I believe a

plaintiff must show more than a bare violation of Sec-

tion 1983, Id. at 233, cited as guidance in Cochetti v. Des-

mond, 572 F.2d 102, 106 (3rd Cir. 1978), but it must be

noted that neither Adickes nor Cochetti involved the same

stringent standard for finding liability for actual damages

as we have in the instant case.

The fact that punitive damages serve to punish and

deter does not mean the petitioner was entitled to all the

protections afforded defendants in the criminal law, and

even if punitive damages are what he terms a quasi-

criminal fine, he was given adequate notice of the pro-

scribed conduct. The notion that petitioner is entitled to

the protections given criminal defendants flies in the face

of Day v. Woodworth, 54 U.S. (13 How.) 363 (1851).

It is a well-established principle of the common

law that, in actions of trespass and all actions on the

case for torts, a jury may inflict what are called ex-

emplary, punitive or vindicative damages upon a de-

fendant, having in view of the enormity of his offense

rather than the measure of compensation to the plain-

tiff. We are aware that the propriety of this doctrine

has been questioned by some writers; but if repeated

judicial decisions for more than a century are to be

received as the best exposition of what the law is, the

question will not admit of argument. By the common

as well as by statute law, men are often punished for

aggravated misconduct or lawless acts, by means of a

civil action, and the damages inflicted by way of pen-

alty given to the party injured. In many civil actions,

such as libel, slander, seduction etc., the wrong done

to the plaintiff is incapable of being measured by a

money standard; and the damages assessed depend on

the circumstances, showing the degree of moral turpi-

tude or atrocity of the defendant’s conduct, and may

properly be termed exemplary or vindicative rather

than compensatory. Id. at 371.

As petitioner recognizes, the primary emphasis of

punitive damages is on deterrence, not punishment, New-

port, supra, Owen v. City of Independence, 445 U.S. 622

(1980). Assuming that the policy of deterrence is quasi-

criminal, petitioner was given adequate notice of the pro-

scribed conduct by the previously existing case law dealing

with the rights of prisoners. “An official is liable under

Section 1983 ‘if he knew or reasonably should have known

that the action he took within his sphere of official re-

sponsibility would violate the constitutional rights’ of the

person affected,” Bogard v. Cook, 586 F.2d 399 (5th Cir.

1978), citing Wood v. Strickland, 420 U.S. 308, 322 (1975).

Those charged with the responsibility of operating our

prisons cannot be allowed to be totally oblivious to Sixth

Amendment Rights. Furthermore, the standard of reck-

lessness is not so vague that men of ordinary intelligence

would have to guess at its meaning.

If petitioner is correct in asserting that a standard

of carelessness is too vague to justify punishment, then

all criminal statutes proscribing reckless conduct, includ-

ing most manslaughter statutes, are suspect.

Finally, the mere existence of a criminal statute on

the subject has never obviated the need or right to punitive

damages in this Court, and for good reason. If peti-

tioner’s argument on this point becomes the law of the

land, every victim of crime will be deprived of an op-

portunity to punitive damages in civil litigation.

ARGUMENT II

The policy behind punitive damages requires that they

be available in those cases where the test of liability

for awarding actual damages is the same as that for award-

ing punitive damages. The rationale behind punitive dam-

ages in Section 1983 cases is to punish or deter violations

of Constitutional rights, Carey, supra, Newport, supra,

Owen v. City of Independence, 445 U.S. 622 (1980). The

emphasis is on deterrence, Newport, supra, Owen, supra,

“Usually assessed both as an example and as a

warning against particularly egregious conduct, such

damages serve both punitive and deterrent functions.

Such awards may be particularly appropriate as a

means of vindicating the public interest in prevent-

ing violations of civil rights by state officials. The

availability of punitive damages as a deterrent may

be more significant than ever today, in view of the

apparent trend of decisions curtailing the powers of

federal courts to impose equitable remedies to termi-

nate such violat’ons, Cochetti, supra at 105-106.

The fact that a qualified immunity exists does not make

the conduct involved any less heinous or any less re-

pugnant to the public interert. As was shown in Argu-

ment I, actual malice can be implied by reckless conduct.

Even if that implication is not made, recklessness or cal-

lousness is all that is required (see Argument I), and

there is no justifiable reason to increase the burden sim-

ply because a qualified immunity exists in the test for

actual damages. To do so could effectively eliminate the

possibility of punitive damages in cases involving questions

of cruel and inhuman punishment.

Eliminating the possibility of punitive damages in

cases such as this where the plaintiff must overcome a

qualified immunity would be stating to public officials

that they are safe in violating the Constitutional rights of

others as long as they make sure actual damages are at

minimum. It would be putting a price tag on the ability

to seek redress for such violations in cases involving qual-

ified immunity. It would make any concept of deterrence

meaningless except in those cases where actual damages

are high. It would deprive one class of civil rights liti-

gants, those who must overcome qualified immunity to

make their case for actual damages, of the rights given

to those who do not have to overcome such a burden

without any reasonable justification.

If a state initiated such a policy, the courts at a mini-

mum would consider whether that policy bore some rea-

sonable relationship to a legitimate state purpose to de-

termine if the state was violating the equal protection

clause contained in the Fourteenth Amendment. Although

the Fourteenth Amendment does not directly apply to the

federal government or the courts, due process would re-

quire those institutions to consider equal protection when

establishing new policy. If the equal protection test would

be applied to the petitioner’s argument on this point, one

would be hard pressed to find any legitimate purpose

furthered by such a distinction in treatment between two

classes of plaintiffs, and no compelling interest would

be served.

The availability of attorney fee awards is insufficient

to insure that those with low actual damages would seek

redress for Constitutional violations. As a practical mat-

ter anyone who is a party in a lawsuit is subject to a much

higher price tag, both financially and emotionally than that

supplied by attorney fees and court costs. If Section 1983

is to continue to serve as a meaningful vehicle to seek

redress for violation of Constitutional rights and to deter

government officials from violating those rights, punitive

damages must be made available to all those who suffer

because of reckless, callous or egregious conduct regard-

less of whether or not those standards are also the stan-

dards for acquiring actual damages.

Petitioner argues that the facts of the case demon-

strate the need for the qualified immunity of prison of-

ficials and that the qualified immunity would somehow

deteriorate if punitive damage were awarded in this case

without a showing of actual malice. The facts also show:

that the petitioner in this case violated what another guard

called a rule of common sense, to wit: what inmates from

a protective custody unit should not be housed with in-

mates from the general population of the prison when

they are in administrative segregation (T. 200-201); that

petitioner knew one of respondent’s assailants was sent to

administrative segregation because of fighting and an

urgent need to separate him from others for the safety of

others (T. 321-322); that petitioner placed this assailant

in a cell with respondent and one other inmate from the

general population even though another cell in the dormi-

tory contained only one inmate who, like respondent, had

come from the protective custody unit (T. 365); that re-

spondent, immediately prior to coming to administrative

segregation, was placed in the protective custody unit to be

protected from the general population because he was

susceptible to physical abuse (T. 10, 11, 261, 262, 383, 387).

All of this, along with petitioner’s knowledge that inmate

Elijah Smith was beaten to death in similar circumstances

during petitioner’s shift only a few weeks before this in-

cident (T. 241-242, 306), is basis for a jury to find a need

to deter further conduct of this nature regardless of the

existence of the qualified immunity. Awarding punitive

damages under such circumstances certainly does not

undermine the protection given by the qualified immunity

as the petitioner suggests, because the immunity still must

be overcome in order to obtain actual damages and to get

the case to a jury.

Finally, petitioner, in citing Gertz v. Robert Welch,

Inc., 418 U.S. 323, 350 (1974), attempts to analyze the

Court’s concern with the effect of punitive damages on

First Amendment freedoms with the case at bar. The

comparison is not warranted. At no time has this Court

ever suggested that the qualified immunity granted prison

officials is on the same plane as the concern for inhibiting

free expression. The concerns which justified the estab-

lishment of a qualified immunity for certain state officials,

see Procunier v. Naverette, 434 U.S. 855 (1978), Wood,

supra, have no relation to free speech or the paramount

public interest in protecting free speech.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

Brap.ey H. Lockenvirz

(Counsel of Record)

P.O. Box 95

Linn, Missouri 65051

(314) 897-3683

Attorney for Respondent

aus 184000

NO. 81-1196-CFX

TITLE William H. SMITH, Petitioner

Vv.

Daniel R. Wade

DOCKETED

Dec. 23, 1981

COURT

United States Court of Appeals for the Eighth Circuit

Dec. 23, 1981

Feb. 3, 1982

Feb. 16, 1982

Mar. 18, 1982

Mar. 24, 1982

Apr. 19, 1982

May 12, 1982

June 4, 1982

July 2, 1982

Aug. 25, 1982

Nov. 10, 1982

Pet

Bri

Counsel for Petitioner: Paul Robert Otto

Counsel for Respondent: Bradley H. Lockenvitz

ition for writ of certiorari filed. (Record filed).

DISTRIBUTED. 2-19. (Stricken).

Response requested.

Brief for the respondent in opposition filed.

DISTRIBUTED. 4-16.

Petition GRANTED.

Joint appendix filed.

£ for the Petitioner filed.

Brief for the Respondent filed.

CIRCULATED.

ARGUED.

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