# Record and brief — Smith v. Wade > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1944%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 30 ## Text —— UOHag "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? I TABLE OF CONTENTS Page Questions Presented for Review .............s.ceeeeees I cha cad ced seids ocbsnceewhaked It i a a 1 I ONL 1 .. Ccncctodad ckdeseoeeneaves 1 SEES 5p cc cdueegs cndusewtsatcbenevcseusael 2 ED. wd cakdducuswadebcondeces oceean’ 2 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- 3 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, .. .’’ 5 ._-| 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. 6 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 7 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), 8 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. 10 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. ll 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, v. 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, v. 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, v. 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 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. 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 13, 1980 March 14, 1980 3 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 4 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. 5 _ 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. 6 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 7 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. 9 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 10 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 11 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 12 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 13 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. 14 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 4 7 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 4 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 ee 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? It TABLE OF CONTENTS Questions Presented for Review ...............0eee0e0: I IES on ccc ecne ch dgpeegeesccccccesenagpen Il 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 IV 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, v. 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 4 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 I. 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. I. 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- 7 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. L 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 10 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 ll (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 12 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 13 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- 14 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 15 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 16 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1944%3A0. Public record. Not legal advice.