Petition for Writ of Certiorari — Armontrout v. Burton

92-1361 9 *

No.

IN THE

Supreme Court of the Wnited States

OcTOBER TERM, 1992

BILL ARMONTROUT, et al.,

Petitioners,

VS.

MICHAEL BuRTON, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

JEREMIAH W. (JAY) NIXON

Attorney General

Don M. DowninG

Deputy Attomey General

BRUCE FARMER*

MICHAEL E. PRITCHETT

Assistant Attomeys General

Sixth Floor, Broadway Building

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioners

*Counsel of Record

St. Louis Law Printing,Inc. 13307ManchesterRd. St. Louis,MO 63131 314-231-4477

QUESTION PRESENTED

Does a federal court have jurisdiction to order injunctive relief

when the individual defendants have received a directed verdict

or jury verdict in their favor and there has been no finding that

any individual defendant has violated the Constitution?

=

PARTIES TO THE PROCEEDING IN THIS COURT

AND THE COURT OF APPEALS

The parties to the proceeding in this Court and the Court of

Appeals are as follows:

Appellants

(now petitioners)

Dick Moore William Wieberg

Dora Schriro Louis Markway

George Lombardi Ed Hanauer

Bill Armontrout Larry Neal

Michael Groose Richard Bauman

Loren Stout Carl Borghardt, Jr.

Richard Bowers Dennis Gately

Dorothy Lauberth

Cindy Haggart

David Corum

Appellees

(now respondents)

Thomas Umphfrey John Murrain

Ricky VanOster Michael Nelson

Michael Burton Freddie Taylor

Kenneth Charron William Wirth

Leonard Joe Cooper

TABLE OF CONTENTS

Page

SURE MEETS WUMMINEEES BREED scosnnssssccrsscesnesescnseossvseseeencess i

PARTIES TO THE PROCEEDING ................::.cc:c0c0ee ii

EE PAR BEMIIRE ETERS ccvesecescssesssscesexssvessesnsscessone Vv

da vicatasssstvessntnessiveseseivenaseversseeeses I

ei iicsdaraessiecexcenenetdenesvsascssseesecsseocesen 2

CONSTITUTIONAL AND STATUTORY PROVI-

Lite Leabceladcennnechannsaseiusdasesetarseseonsnsneece 2

UREN GE” BURSA ccsnccccccscsvecsccesesccsnsccesecess 3

REASONS FOR GRANTING THE WRIT .................. 9

The Eighth Circuit’s holding that injunctive relief

was permissible despite verdicts in favor of

state officials is contrary to decisions of this

Court and an unprecedented expansion of

federal court jurisdiction ................cc:cceeeeee 9

I. Federal courts lack jurisdiction to order

injunctive relief absent a finding of

constitutional liability .................0...00. 9

II. A mandatory injunction, without a find-

ing of constitutional liability, unneces-

sarily interferes with state officials ... 11

III. Injunctive relief against officials who

receive a favorable jury verdict violates

the Seventh Amendment ....................... 16

Sa sialisnshdinineriectanersnevansacncesecase 20

ewes ae

APPENDIX

Appendix A

Order of United States Supreme Court Extending

Time for Filing Petition for Writ of Certiorari ...... A-1

Appendix B

CGer Demying ReRCOTiing ........0sscsssessnsssnecesssesseese A-2

Appendix C

Opinion and Judgment of Court of Appeals.......... A-3

Appendix D

Order of District Court of March 12, 1991 ........... A-10

Appendix E

Judgment of District Court of October 29, 1992... A-16

Appendix F

Order of District Court of October 30, 1990......... A-17

TABLE OF AUTHORITIES

Page(s)

Cases:

Afrika v. Selsky, 750 F.Supp. 595 (S.D.N.Y. 1990) iia 12

Alabama v. Pugh, 438 U.S. 781 (1978) ........ccccccee ewes 15

Beacon Theatres, Inc., v. Westover, 359 U.S. 500

IE aaaclacebdbieiesitestasiaaeencncebcsiln ic shgidgcdattliatenicansneaiaesiicauncin 16,17

Beli v. Wolfish, 441 U.S. 520 (1979)... ceeeecceesceseeeeee 15

Block v. Rutherford, 468 U.S. 576 (1984) .scsssssssssee 12

Bouchet v. National Urban League, Inc., 730 F.2d 799

ees Sy ena cncdaaniicaniehdlidicintnncicgeniahendgsnbindianeneain 17

Burton v. Armontrout, 975 F.2d 543 (8th Cir. 1992) .... l

Butler v. Pollard, 800 F.2d 223 (10th Cir. 1986).......... 10

Charles Jacquin Et Cie v. Destileria Serralles, Inc.,921

ce SE Ce Gs III sinciisesiiicianacincciesinciatnndinveiens 17

Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988).......... 19

Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir.

UE Acacivasislsioideicviniudanseasaiidanbaniibeacipaidasacinianiaslejdnanbians 16

Dairy Queen, Inc., v. Wood, 369 U.S. 469 (1962) ........ 16,17

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

CT TD intisicsslnnciadiaiancticiniansiendiphieadainaniaatniaieren 13

Freeman v. Pitts, 112 S.Ct. 1430 (1992)... eects 9

Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990) ............. 14

Green v. Mansour, 474 U.S. 64 (1985) ..........ccccccececeeees

=

GTE Sylvania, Inc., v. Continental T.V., Inc., 537 F.2d

980 (9th Cir. 1976), aff d, 433 U.S. 36 (1977) ..... 17

Hudson v. McMillian, 112 S.Ct. 995 (1992) .............005 19

Kitchen v. Chippewa Valley Schools, 825 F.2d 1004 (6th

8. EAE RE RSP CeCe ERE AER OP 10,16

Lincoln v. Board of Regents, 697 F.2d 928 (11th Cir.),

cert. denied, 464 U.S. 826 (1983) ............cccceeseseees 16

Lopez v. Garriga, 917 F.2d 63 (1st Cir. 1990).............. 10,16

McKnight v. General Motors Corp., 908 F.2d 104 (7th

Cir. 1990), cert. denied, 111 S.Ct. 1306 (1991)... 17

Milliken v. Bradley, 433 U.S. 267 (1977) .........c:c0cc00000 9,13

O’ Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ....... 12

Peery v. Brakke, 826 F.2d 740 (8th Cir. 1987) ............. 17

Procunier v. Martinez, 416 U.S. 396 (1974)................. 12

Rogers v. Scurr, 676 F.2d 1211 (8th Cir. 1982)............ 12

Skinner v. Total Petroleum, Inc., 859 F.2d 1439 (10th

CN i anaet aenaamtbiahadehoeaeiininienniCk 17

Stewart v. McManus, 924 F.2d 138 (8th Cir. 1991)...... 19

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

EE SEES, SEP COR ee Ea 9

Turner v. Safley, 482 U.S. 78 (1987) ..........ccccccceeeeseeees 12

Wade v. Orange County Sheriff s Office, 844 F.2d 951

RES I ee on ee er 16

Ward v. Texas Employment Comm’ n, 823 F.2d 907 (Sth

TUTTI R51 iit hihi neasacitesih alesis iiaietetis 16

Wilson v. Seiter, 111 S.Ct. 2321 (1991) won. 11,18

eel

Constitutional Provisions:

Pe SIE BIN TEE ceidaste pices einnsentissincdcinlnnchbcsiansnbmeasienelan 2,11

SF RA IIL WUE ehsshcicentinnsnsnnindctiecnssanssenanersngpetenlh 2,9,16

Statutes and Rules:

re Oe Re teen ciiciciaidcesaisauinivinnninannnapii en paseceannneninatittls 2

le Ae ONT sis aschps dscns ncieschchn caine iaidnacebealieth 2

ee TE seeisineiniineiomitiiniiminininmanitnn 2

ae i IE eiticnsnsctisonconsbvscnslhansiassaenensstesinnbnemeeinaneniatianei 2,3

PU MA Es. UG canisicsuniantnenscesse stligeptidninmansbcitasieaiessseindaniibiinisah 3

SNES SOUP Kes iconscsciensissieninslesiiannnentonninennnnademannenmeilana 15

No.

IN THE

Supreme Court of the United States

OcroBER TERM, 1992

BrLL ARMONTROUT, et al.,

Petitioners,

VS.

MICHAEL BuRTON, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals “or the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States Court of

Appeals for the Eighth Circuit, entered on September 21, 1992.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Eighth Circuit is

reported at Burton v. Armontrout, 975 F.2d 543 (8th Cir. 1992),

and is reprinted in the appendix hereto beginning at page A-3.

The Order of the district court is unreported and is reprinted in

the appendix beginning at page A-10.

ont tein

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. § 1983 and 28

U.S.C. §§ 1331 and 1343, respondents filed suit in the United

States District Court for the Western District of Missouri. At a

jury tal, each petitioner obtained either a directed verdict or a

jury verdict in his or her favor. The district court entered

judgments in favor of petitioners pursuant to these verdicts.

Thereafter, the district court entered injunctive relief against

petitioners. A-10 to A-18.

Following cross-appeals by the parties, the Court of Appeals

for the Eighth Circuit entered a judgment and opinion affirming

the rulings of the district court. A-3 to A-9. A timely petition for

rehearing or rehearing en banc was filed and was denied on

October 28, 1992. A-2. Following a timely application for an

extension of time within which to file a petition for a writ of

certiorari, this Court granted petitioners until February 15, 1992

to file their petition. A-1.

The jurisdiction of this Court to review the judgment of the

Court of Appeals is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant constitutional and statutory provisions are:

ARTICLE Ill

* * *

Section 2. The judicial power shall extend to all cases, in

law and equity, arising under this constitution, the laws of

the United States, and treaties made or which shall be made

under their authority; . . ..

SEVENTH AMENDMENT

In suits at common law where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall be

ail iaaiaaainia ini

=

preserved, and no fact tried by a jury shall be otherwise re-

examined in any court of the United States, than according

to the rules of common law.

42 U.S.C. § 1983

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, privi-

leges, or immunities secured by the Constitution and laws,

shall be liabie to the party injured in an action at law, suit in

equity, or other proper proceeding fox redress.

STATEMENT OF THE CASE

Respondents (hereinafter referred to as prisoners) are or were

incarcerated in the Jefferson City Correctional Center (JCCC),

formerly known as the Missouri State Penitentiary. These

prisoners worked in the maintenance department and claimed

their constitutional rights were violated when they were exposed

to waste water generated by inmates who were HIV-positive or

had other communicable diseases.

Petitioners are current and former prison officials. The

successors in office have been included as petitioners before this

Court because the injunctive relief ordered operates against the

officials in their official capacity. Successors of public officials

before the Court in their official capacity are automatically made

parties. Sup. Ct. R. 35.3. The large number of petitioners is due

to the district court’s failure to direct the injunction toward any

particular defendant official. Thus, the officials at trial and their

successors are as follows:

Dick D. Moore Former Director of the Missouri Depart-

ment of Corrections (DOC)

Dora Schriro Current Director of DOC (not a defen-

dant at trial)

George Lombardi Director of the Division of Adult Institu- |

tions of DOC

Bill Armontrout Former Warden (now termed Superin-

tendent) of JCCC

Michael Groose Current Superintendent of JCCC (not a

defendant at trial)

Loren Stout Former administrator of JCCC Hospital

(no comparable current position)

Richard Bowers Former Chief Physician for DOC (no

comparable current position)

Marilyn Butts Former Health Care Supervisor at JCCC

Sister Dorothy Current RN Supervisor at JCCC (most

Lauberth comparable current position to Health

Care Supervisor) (not a defendant at trial)

Cindy Haggart Former Hospital Sergeant at JCCC

David Corum Current Hospital Sergeant at JCCC (nota

defendant at trial)

William Wieberg Former Chief of Maintenance and Mate-

rials (M and M) section at JCCC

Louis Markway Current Chief of M and M section at

JCCC (not a defendant at trial)

Ed Hanauer Maintenance supervisor at JCCC

Larry Neal Maintenance supervisor at JCCC

Richard Bauman Maintenance supervisor at JCCC

isieeeienceennmiimiaineiiidiiedia

Ray ta

Carl Borghardt, Jr. | Maintenance supervisor at JCCC

Dennis Gately Former maintenance supervisor at JCCC

This litigation began because the prisoners were involved in

working on blocked or leaking sewer lines in the JCCC hospital

and in cleaning the water from the floor of the hospital which

overflowed from the sewer lines (Tr. 3-101, 3-104). The

prisoners were employed by the facility as maintenance workers

or plumbers. They testified that if they had been informed the

waste water possibly contained communicable diseases they

either would not have worked in it or they would have been more

careful and taken advantage of the boots and gloves which were

available (Supp. Tr. 1-109 to 1-110, Supp. Tr. 2-14, Supp. Tr. 2-

35, Supp. Tr. 3-6 to 3-8). The prisoners testified that civilian

plumbing supervisors worked alongside them in the clean up

with the same protective clothing available to the inmate work-

ers. (Supp.Tr. 1-43 to 1-44, Supp. Tr. 2-27 to 2-28, Supp. Tr. 2-

31, Supp.Tr. 2-83, Supp.Tr. 2-88). The record shows that none

of the prisoners contracted any condition or disease associated

with sewage (Tr. 4-11; Tr. 4-50 to 4-51).

In 1987, gloves and rubber boots were available for use by the

prisoners (Supp. Tr. 2-14; Tr. 3-6 to 3-8). At the time of trial in

1990, JCCC officials had available in the plumbing shop the

following equipment for prisoners, as well as civilian workers:

8 pairs of rubber boots

4 face shields

surgical masks (in boxes of 100)

rubber gloves

(Tr. 2-49 to 2-50). The injunction entered requires provision of

“sufficient numbers” of the following to inmates working in or

around blocked sewer lines or raw sewage:

rubber boots

rubber gloves

leather gloves

surgical masks

face shields

A-14to A-15. There are laundry facilities in the plumbing shop

(Tr. 2-61). There are also two showers located in the shop and

soap and other cleaning supplies are provided (Tr. 2-61). Pris-

oners assigned to the plumbing shop are allowed to shower any

time in the shop and have their clothes washed there (Tr. 2-61).

The inmate plumbers are not treated differently than the civilian

plumbers with respect to clean up and laundry facilities (Tr. 2-

61).

JCCC maintenance supervisors testified that the instructions

they gave to inmate plumbers were no different at the time of the

trial than they were in 1987 (Tr. 3-55). Prisoners have been

consistently instructed not to do anything they think is unsafe

and that at any time they get dirty to take a shower and change

clothes (Tr. 3-53, Tr. 3-60). Prisoners have been consistently

told that any sewer line at JCCC, in the hospital or otherwise,

may connect to the living area of HIV-positive inmates (Tr. 3-

78).

Eddie Hedrick, an epidemiologist, testified that HIV is a very

fragile virus which dies rapidly outside the body (Tr. 3-8 to 3-9).

There is no evidence of anyone becoming infected with HIV

from sewage (Tr. 3-10). Contact with large volumes of sewage

causes only a slight increase in the risk of some enteric type

diseases, such as hepatitis A, salmonella, and shigella (Tr. 3-10

to 3-11). The risk of infection of enteric type diseases through

sewage is minor (Tr. 3-11). Dr. David Tarlow, a physician

presented by the prisoners, testified that the research on whether

HIV can survive in sewage is inconclusive (Tr. 2-86).

£

aiid

Hedrick testified that maintenance people should protect

themselves from infection by wearing gloves when working in

sewage (Tr. 3-14). There is no need for gloves if the individual

is not putting his or her hands directly into the sewage (Tr. 3-15).

Dr. Richard Bowers, a physician formerly with the Department

of Corrections, testified that prisoners working around sewage

could protect themselves from infection by wearing gloves and

cleaning up with soap and water (Tr. 4-19 to 4-20). Jerry Kramp,

a plumber in the private sector, testified that the precaution

plumbers typically take when working in raw sewage is to wear

gloves and boots, if needed (Tr. 3-45).

At the close of plaintiffs’ case, the district court directed

verdicts in favor of defendants Armontrout, Moore, Lombardi,

Wieburg, Gately, Hanauer, Borghart, Bauman, and Neal. A-17.

Following the close of all the evidence, the prisoners submitted

to the jury claims that defendants Bowers, Stout, Butts, and

Haggart violated their constitutional rights by allowing the

prisoners to be exposed to dangerous communicable diseases in

sewage. A-16. The jury returned verdicts in favor of all defend-

ants on all claims. A-16.

Thereafter, the district court denied the prisoners’ motion for

new trial. The court, however, finding that raw sewage presents

potential health hazards and that the supply of protective cloth-

ing and equipment may not have been adequate, ordered injunc-

tive relief against the officials. The court directed the “defen-

dants” to provide general items of protective equipment and

warnings to inmates assigned to work on or about sewer lines or

raw sewage.’ The district court did not specifically find that any

individual official violated the Constitution.

' The injunctive relief entered is as follows:

ITIS, THEREFORE, ORDERED that defendants are henceforth required

to provide sufficient numbers of rubber boots, rubber gloves, leather gloves,

(Footnote 1 continued on next page)

The officials appealed the entry of injunctive relief. The

prisoners cross-appealed. The Eighth Circuit affirmed the rul-

ings of the district court. The Eighth Circuit held that the district

court had authority to award injunctive relief because the jury’s

factual findings were inconclusive, thereby permitting the court

to supply its own factual findings to supplement the jury’s ver-

dict and serve as the basis for its equitable order. A-4 to A-6.

(Footnote 1 continued)

surgical masks, and face shields in the maintenance and plumbing department

for use by each plumber’s helper and/or inmate worker assigned to the

plumbing shop. It is further

ORDERED that defendants henceforth provide sufficient numbers of

rubber boots, rubber gloves, leather gloves, surgical masks, and face shields

for use by other inmates assigned to work with clearing blocked sewer lines

or cleaning up raw sewage. It is further

ORDERED that defendants permanently post adequate warning in at least

two easily visible areas of the plumbing shop that inmate workers and others

should wear appropriate protective clothing when working on or around

sewer lines and/or raw sewage because of potential health hazards. A-14 to

A-15.

EE

oe ee

REASONS FOR GRANTING THE WRIT

The Eighth Circuit’s holding that injunctive relief was

permissible despite verdicts in favor of state officials is

contrary to decisions of this Court and an unprecedented

expansion of federal court jurisdiction.

In this case, state officials were found innocent of any consti-

tutional violation during a jury trial. Several officials received

directed verdicts at the close of plaintiffs’ case. Others received

a favorable jury verdict. The district court did not find that any

individual official violated the Constitution. Nevertheless, the

district court imposed a mandatory, permanent injunction against

these state officials and their successors.

This unprecedented expansion of federal jurisdiction is con-

trary to decisions of this Court, unnecessarily interferes with

state officials and violates the Seventh Amendment.

I. Federal courts lack jurisdiction to order injunctive

relief absent a finding of constitutional liability.

While a federal court possesses broad powers to remedy

constitutional violations, as an initial matter, there must first be

a finding that a constitutional violation exists. “[I]t is important

to remember that judicial powers may be exercised only on the

basis of a constitutional violation.” Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971). This Court

recently emphasized that the “authority of the court is invoked at

the outset to remedy particular constitutional violations.” Free-

man v. Pitts, 112 S.Ct. 1430, 1445 (1992).

In Milliken v. Bradley, 433 U.S. 267, 282 (1977), this Court

emphasized that “federal-court decrees must directly address and

relate to the constitutional violation itself.” See also, Freeman v.

Pitts, 112 S.Ct. at 1445. When there is no continuing violation of

federal law, injunctive relief is nota part of a federal court’s remedial

powers. See Green v. Mansour, 474 U.S. 64, 71 (1985).

ay foe

Federal appellate courts have reversed awards of equitable

relief in similar situations. For instance, in Lopez v. Garriga, 917

F.2d 63, 66 (1st Cir. 1990), the plaintiff sought damages and

equitable relief on his claims that his constitutional rights were

violated when officers of the Immigration and Naturalization

Service (INS) improperly detained and questioned him at an

airport. The jury found plaintiff’s rights had not been violated.

Id. Notwithstanding the jury verdict, the district court enjoined

INS officers from detaining and questioning certain persons at

the airport. /d. at 67. The court of appeals reversed the grant of

equitable relief, stating as follows:

[O}nce the jury rejected plaintiff’s constitutional claim, he

was left without any sound basis for equitable relief. He no

longer had standing to press for a restraining order or a

declaratory judgment.

Id. at 70. Likewise, plaintiffs now before this Court were left

without any sound basis for equitable relief once the jury rejected

their constitutional claim. Other federal appellate decisions

reversing awards of equitable relief due to jury verdicts inconsis-

tent with such awards are Kitchen v. Chippewa Valley Schools,

825 F.2d 1004, 1014 (6th Cir. 1987), and Butler v. Pollard, 800

F.2d 223, 224 (10th Cir. 1986).

Here, prison officials were found not liable for violating the

Constitution. Several officials, including all the officials in-

volved in the maintenance department, received a directed

verdict at the close of plaintiffs’ case. In effect, the district court

found that the prisoners failed to present sufficient evidence to |

show that these officials violated the Constitution. The remain- |

ing Officials received a favorable jury verdict. At that point, the

case should be over because federal courts simply do not have

jurisdiction to enter a mandatory, permanent injunction absent a

finding of a constitutional violation.

ee ae See |

—

The district court’s order imposing injunctive relief does not

contain any finding that an individual state official violated the

Constitution. It may be argued that the imposition of injunctive

relief includes with it an implicit finding that the Constitution

was violated somehow by someone. An implied constitutional

violation, however, is inconsistent with this Court’s requirement

that an individual official have a specific culpable state of mind

before he can be found liable for a constitutional violation. See

Wilson v. Seiter, 111 S.Ct.2321,2324-26(1991) (Eighth Amend-

ment cases “mandate inquiry into a prison official’s state of

mind”; punishment requires intent).

When there has been no finding that a particular state official

has violated the Constitution, Article III prohibits the federal

courts from exercising jurisdiction to impose a mandatory,

permanent injunction. The injunction in this case was issued

without jurisdiction and contrary to the principles established by

this Court governing injunctive relief.

II. A mandatory injunction, without a finding of constitu-

tional liability, unnecessarily interferes with state offi-

cials.

This Court has repeatedly cautioned against unnecessary

intervention into the operations of a prison.

[C]ourts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.

[T]he problems of prisons in America are complex and

intractable, and, more to the point, they are not readily

susceptible of resolution by decree.

Running a prison is an inordinately difficult undertaking

that requires expertise, planning, and the commitment of

an ee, , es

|)

resources, all of which are peculiarly within the province of

the legislative and executive branches of government.

Turner v. Safley, 482 U.S. 78, 84-85 (1987) (citing Procunier v.

Martinez, 416 U.S. 396, 404-05 (1974)) (quotations omitted).

This Court has emphasized its refusal to substitute its judgment

on “‘difficult and sensitive matters of institutional administra-

tion’... for the determinations of those charged with the formid-

able task of running a prison.” O’ Lone v. Estate of Shabazz, 482

U.S. 342, 353 (1987) (quoting Block v. Rutherford, 468 U.S. 576,

588 (1984)).

Ironically, the Eighth Circuit previously recognized the im-

portance of federal courts abstaining from “imposing strict

standards of conduct, in the form of injunctions, on prison

officials in the absence of a concrete showing of a valid claim and

constitutionally mandated directives for relief.” Rogers v. Scurr,

676 F.2d 1211, 1214 (8th Cir. 1982). One federal court stated:

In the area of state prisons, the federal courts should refuse

to interfere with internal state prison administration except

in the most extreme cases involving a shocking deprivation

of rights.

Afrika v. Selsky, 750 F.Supp. 595, 603 (S.D. N.Y. 1990).

In this case, there has not been any constitutional violation at

all, let alone a shocking deprivation of rights. This is the extreme

case where a federal court imposes a mandatory, permanent

injunction when no individual’s rights have been violated and

when no individual official has been found guilty of a constitu-

tional violation. The injunctive relief entered in this case does

not further this Court’s policy of according deference to the

determinations of prison authorities.

Further, the injunction unnecessarily interferes with state

officials even if this Court assumes the district court found a

constitutional violation. The power of a federal court to issue

ee

ons

injunctive relief is circumscribed by the nature and extent of the

constitutional violation. Dayton Bd. of Educ. v. Brinkman, 433

U.S. 406, 419-20 (1977). The injunction “must directly address

and relate to the constitutional violation itself.” Milliken, 433

U.S. at 282. Because of the inherent limitation upon federal

judicial authority, “federal-court decrees exceed appropriate

limits if they are aimed at eliminating a condition that does not

violate the Constitution or does not flow from such a violation.”

Id.

The intrusion in this case is readily apparent by comparing the

items available with the items ordered by the district court.

JCCC officials have available in the plumbing shop the follow-

ing equipment for prisoners, as well as civilian workers:

8 pairs of rubber boots;

4 face shields;

Surgical masks (in boxes of 100);

Rubber gloves.

(Tr. 2-49 to 2-50). The injunction entered requires provision of

“sufficient numbers” of the following to prisoners working in or

around blocked sewer lines or raw sewage:

Rubber boots;

Rubber gloves;

Leather gloves;

Surgical masks;

Face shields.

A-14to A-15. These lists are nearly identical. The district court

determined it should invoke the weighty hand of the federal court

to require the provision of one additional type of equipment

any,” ae

(leather gloves) than was already provided by prison authorities.

The lower court’s order requiring prison officials to provide

iterns to prisoners already available to them is a clear example of

a federal court substituting its judgment for decisions made by

officials entrusted with the administration of the prison.

The warnings which the district court ordered posted also

represent a substitution of the court’s judgment for that of prison

administrators. JCCC maintenance supervisors chose to orally

inform prisoners that any sewer line, in the hospital or otherwise,

may connect to the living area of HIV-positive prisoners (Tr. 3-

78). Ironically, the Eighth Circuit has noted that common sense

suggests that a person should have knowledge that unprotected

contact with human waste can cause disease. Fruit v. Norris,

905 F.2d 1147, 1150-51 (8th Cir. 1990). Thus, the “permanent”

warnings ordered by the district court are redundant, unduly

interfere in the operation of the maintenance department, and

subject prison officials to further litigation on the “adequacy”

and “visibility” of the warnings.

In entering its injunctive order, the district court indicated it

was not certain whether the protective equipment available at

JCCC was available in adequate supply. A-14. Yet, without

reaching a conclusion on this issue, the district court ordered

provision of “sufficient numbers” of boots, gloves, surgical

masks, and face shields.

This was improper because first, the jury had already deter-

mined prison officials’ sewage clean up operations had violated

no constitutional rights of the prisoners. Second, even if the

court could have departed from the jury’s determination of no

constitutional violation, it should not have exercised its equi-

table powers without a specific conclusion that supplies pro-

vided to inmates were, in fact, inadequate. Third, the actions

required to be done by the injunction are not sufficiently definite.

The injunction itself raises many unanswered questions. For

a yen

example, what is a “sufficient number” of boots, gloves, masks,

and face shields? Who, specifically, is bound by the injunction?

What is an “adequate warning”? These questions bring home the

validity of the Court’s concern that federal courts not become

enmeshed in the minutiae of prison operations. See Bell v.

Wolfish, 441 U.S. 520, 562 (1979). Here, state officials are in

constant danger of being hauled back into court on contempt

motions. The lack of specificity in the injunctive order violates

Rule 65(d), Fed.R.Civ.P., which requires “reasonable detail”

and further requires the injunction “shall be specific in terms.”

Because of the mandatory, permanent injunction, prison offi-

cials are “henceforth” (A-14 to A-15) faced with this risk. Even

though prison officials were already providing almost all of the

items ordered by the district court, this challenge to the injunc-

tion is not merely academic. In the Eleventh Amendment

context, this Court has held that these concerns are sufficiently

valid to justify dismissal of a mandatory injunction. See Ala-

bama v. Pugh, 438 U.S. 781, 782 (1978) (“Alabama has an

interest in being dismissed from this action in order to eliminate

the danger of being held in contempt if it should fail to comply

with the mandatory injunction”). The intrusive aspect of the

mandatory, permanent injunction, entered without jurisdiction

interferes with state officials and forever subjects state officials,

and their successors, to unnecessary risks.

The officials are also harmed because of the assessment of

attorneys’ fees and the potential for future fee liability in con-

tempt motions. Here, the prisoners requested $11,100 in fees and

expenses. The lower court awarded approximately $6,000.

State officials must pay the fee award even though no individual

state official has been found liable for a constitutional violation.

The effect of the Eighth Circuit’s holding is to expand federal

jurisdiction and multiply court proceedings. Especially in pris-

oner cases, state officials, after incurring the burden and expense

—_ 16—.

of a jury trial, can be forced into a separate proceeding to

determine if injunctive relief is warranted. Prisoners could

always argue that the general jury verdict is inconclusive and ask

the court to conduct additional hearings, make supplemental

findings and impose mandatory, permanent injunctions. Review

by this Court is necessary to protect limited state and judicial

resources.

III. Injunctive relief against prison officials who receive a

favorable jury verdict violates the Seventh Amend-

ment.

The Seventh Amendment to the United States Constitution

insures that “the right of trial by jury shall be preserved.” Where

acase involves a jury deciding legal claims and a court determin-

ing equitable ones, any factual issues central to both claims must

be tried to the jury first so that the parties’ Seventh Amendment

jury trial rights are not foreclosed on common factual issues.

Dairy Queen, Inc., v. Wood, 369 U.S. 469, 472-73 (1962);

Beacon Theatres, Inc., v. Westover, 359 U.S. 500, 510-11

(1959).

When a party has the right toa jury trial on an issue involved

in a legal claim, the judge is of course bound by the jury’s

determination of that issue as it affects his disposition of an

accompanving equitable claim.

Lincoln v. Board of Regents, 697 F.2d 928, 934 (1 1th Cir.), cert.

denied, 464 U.S. 826 (1983).? The jury in this case found that

? Other circuits, including the Eighth Circuit, are nearly unanimous in

holding that a jury's fact finding is binding upon the court when it is deciding

accompanying equitable claims. See, e.g.,Lopez v. Garriga,917 F.2d 63,67-

68 (1st Cir. 1990); Wade v. Orange County Sheriff s Office, 844 F.2d951,954

(2d Cir. 1988); Cox v. Keystone Carbon Co., 861 F.2d 390, 394 (3d Cir. 1988);

Ward v. Texas Employment Comm’ n, 823 F.2d 907, 908-909 (Sth Cir. 1987);

Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1014 (6th Cir. 1987);

(Footnote 2 continued on next page)

an wn

defendants did not violate the prisoners’ constitutional rignts.

Under the line of cases descending from Dairy Queen and

Beacon Theatres, the district court was bound by the Seventh

Amendment to accept this finding of no constitutional violation.

In this case, the Eighth Circuit sought to distinguish the Dairy

Queen and Beacon Theatres holdings by citing Charles Jacquin

Et Cie v. Destileria Serralles, Inc., 921 F.2d 467, 472 (3d Cir.

1990). There, the court held that a district court, in crafting

injunctive relief, properly supplies its own factual findings to

supplement jury findings in special verdicts where the factual

findings set out in the special verdicts are inconclusive or

incomplete. The Eighth Circuit applied this holding to this case,

and found that the jury’s general verdicts in favor of defendants

were inconclusive.

[T]he general verdict directive did not allow the jury to

make specific factual findings upon which the district court

could rely when crafting or denying the injunction. The

general verdict form listed seven elements the plaintiffs had

to establish to prove a constitutional violation and the jury

could have found the plaintiffs failed to establish any one of

the seven elements. For instance, the jury may have

believed the defendants were recklessly indifferent to the

health needs of the inmates and still found for the defen-

dants because the inmates suffered no damages. The return

of a general verdict prevented the court from ascertaining

the jury’s specific factual findings, and it was therefore,

(Footnote 2 continued)

McKnight v. General Motors Corp., 908 F.2d 104, 113 (7th Cir. 1990), cert.

denied, 111 S.Ct. 1306 (1991); Peery v. Brakke, 826 F.2d 740, 747 (8th Cir.

1987); GTE Sy’vania, Inc., v. Continental T.V., Inc., 537 F.2d 980, 986 n. 7

(9th Cir. 1976), aff d, 433 U.S. 36 (1977); Skinner v. Total Petroleum, Inc.,

859 F.2d 1439, 1443 (10th Cir. 1988); Bouchet v. National Urban League,

Inc., 730 F.2d 799, 803 (D.C. Cir. 1984).

—

proper for the court to supply its own factual findings to

supplement the jury’s verdict.

A-5.

It is so that the jury could have believed defendants to be

recklessly‘ indifferent to the health needs of the plaintiff but

* The verdict directing instruction provided as follows:

INSTRUCTION NO. 12

Your verdict must be for a plaintiff and against a defendant if all of

the following elements have been proved by the preponderance of the

evidence as to that plaintiff and that defendant:

First, dangerous, communicable diseases, which can be transmitted

through contact with the sewage, were present in the sewage in the

clogged sewer pipes in June and/or July, 1987;

Second, the defendant knew such diseases were probably present in

the sewage and that they can be transmitted through contact with the

sewage;

Third, the plaintiff did not know such diseases were probably

present in the sewage or that they can be transmitted through contact

with the sewage;

Fourth, there was a substantial danger of becoming infected with

such diseases from contact with the sewage without protective cloth-

ing;

Fifth, the defendant, with deliberate indifference to or reckless

disregard for the substantial risk to the plaintiff's health and safety,

failed to warn the plainuff of the danger of contact with the sewage;

Sixth, the plaintiff was exposed to such dangerous, communicable

diseases in June and/or July, 1987, through his work at the Missouri

State Penitentiary hospital; and

Seventh, as a direct result, the plaintiff sustained damage.

A-8.

*In lightof Wilson v. Seiter’s holding that the Eighth Amendment requires

an intentional state of mind, recklessness is not sufficient to violate the

Constitution.

"a

found for defendants because plaintiffs were not damaged. This,

however, does not make the general verdicts inconclusive with

respect to whether the district court had jurisdiction to award

equitable relief. Damages must exist in order for there to be an

Eighth Amendment violation. Stewart v. McManus, 924 F.2d

138, 143 (8th Cir. 1991); Cowans v. Wyrick, 862 F.2d 697, 699

(8th Cir. 1988). See also Hudson v. McMillian, 112 S.Ct. 995,

1000 (1992) (“Eighth Amendment’s prohibition of ‘cruel and

unusual’ punishment necessarily excludes from constitutional

recognition de minimis uses of physical force”). Thus, even if

the jury found the existence of each of the elements hypothesized

in the verdict directing instruction except for the element of

damages, there is still no constitutional violation.

A fatal flaw in the Eighth Circuit’s reasoning is that a nominal

damage instruction was submitted to the jury allowing a finding

of constitutional liabiltiy without actual damages. By rejecting

nominal damages, the jury necessarily found other elements of

the claim lacking.

In order for there to be a constitutional violation each of the

elements must be found to exist. In finding for defendants, the

jury obviously found that at least one of the hypothesized

elements, other than damages, was not proven. Where even one

of the elements has not been proven, there is no constitutional

violation. Therefore, the jury verdict in favor of defendants

conclusively establishes that there was no violation of plaintiffs’

constitutional rights. The district court was required to accept

this conclusive finding of no constitutional violation.

An interesting aspect of this issue concerns the directed

verdicts at trial. The only claims submitted to the jury were

against officials responsible for the operation of the hospital. All

of the maintenance supervisors received a directed verdict at the

close of plainuffs’ case. The Eighth Circuit’s speculation about

the jury findings are not relevant to the claims against the

EE

—_- 2 —

maintenance supervisors, the upparent primary target of the

mandatory, permanent injunction. The maintenance supervi-

sors, and their successors, are subject to the injunction even

though the claims against them were decided by directed verdict

and not submitted to the jury.

A prerequisite to an award of injunctive relief is a finding by

the court that defendants have violated plaintiffs’ rights. Swann,

402 U.S. at 16. Given that the court in this case was bound to

accept the jury’s finding that there was no violation of plaintiffs’

rights, a necessary prerequisite to injunctive relief was absent.

Thus, the court lacked authority to order injunctive relief and the

mandatory, permanent injunction violates the Seventh Amend-

ment.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General

DON M. DOWNING

Deputy Attorney General

BRUCE FARMER*

MICHAEL E. PRITCHETT

Assistant Attorneys General

Counsel for Petitioners

*Counsel of Record

APPENDIX

APPENDIX A

SUPREME COURT OF THE UNITED STATES

No. A-547

William Armontrout, et al.,

Petitioners

Vv.

Michael Burton, et al.

ORDER

UPON CONSIDERATION of the application of counsel for

the petitioner,

IT IS ORDERED that the time for filing a petition for a writ

of certiorari in the above-entitled case, be and the same is hereby,

extended to and including February 15, 1993.

/s/Harry A. Blackmun

Associate Justice of the Supreme

Court of the United States

Dated this 19th day of January, 1993.

i A

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-2831/3069WMJC

Michael Burton, et al.,

Appellees,

VS.

William Armontrout, et al.,

Appellants.

Order Denying Petition for Rehearing and

Suggestion for Rehearing En Banc

The Suggestion for rehearing en banc is denied. The petition

for rehearing is also denied.

October 28, 1992

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U. S. Court of Appeals, Eighth Circuit

ee a —

Se

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-2831 WM

No. 91-3069 WM

Michael Burton; Kenneth Charron; Joe Cooper;

John Murrain; Michael Nelson; Fred Taylor;

Ricky J. Vanoster; William Wirth; Thomas Lee Umphrey,

Appellees,

v.

William Armontrout; Richard Bauman; Carl Borghart, Jr.;

Richard Bowers; Marilyn Butts; Dennis Gately;

Cindy Haggart; Ed Hanauer; George Lombardi; Dick Moore:

Larry Neal; Loren Stout; William Weiburg,

Appellants.

Appeal from the United States District Court

for the Western District of Missouri.

Submitted: June 11, 1992

Filed: September 21, 1992

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON,

Senior Circuit Judge, and BEAM, Circuit J udge.

FLOYD R. GIBSON, Senior Circuit Judge.

William Armontrout appeals the district court’s' order grant-

ing injunctive relief to inmates at the Jefferson County Correc-

tional Center (“JCCC”). The inmates cross-appeal alleging the

district court erred in directing verdicts in favor of nine defen-

dants. We affirm.

"The Honorable Williasn A. Knox, United States Magistrate Judge for the

Western District of Missouri.

— a

I. BACKGROUND

The appellees are inmates and former inmates of the JCCC. In

June 1987, the inmates were involved in a large-scale cleanup of

sewage at the JCCC hospital. On September 18, 1987, Thomas

Umphrey filed suit alleging JCCC correctional officers violated

his constitutional rights by failing to warn him that the sewage

was contaminated with the AIDS virus and other infectious

diseases. In 1988, Michael Burton and other inmates also filed

suit alleging claims similar to those raised by Umphrey. On June

23, 1989, the district court consolidated these suits and the

parties consented to present the case to a magistrate. At the close

of the plaintiff’ s evidence, the court directed verdicts in favor of

nine defendants; at the close of trial, the jury returned verdicts in

favor of the remaining four defendants. The parties then submit-

ted post-trial briefs concerning the issue of injunctive relief, and

the inmates filed a motion for new trial. The court denied the

inmates’ motion for new trial, but granted limited injunctive

relief in favor of the inmates. Armontrout and the inmates

appeal.

Il. DISCUSSION

Armontrout argues the district court lacked jurisdiction to

order injunctive relief because the court and the jury determined

the correctional officers did not violate the inmates’ constitu-

tional rights. Courts have broad discretionary power to order

injunctive relief,Taylor Bay Protective Ass’n v. Administrator,

United States E.P.A., 884 F.2d 1073, 1079 (8th Cir. 1989)

(quotation and citation omitted), and we review the district

court’s grant of injunctive relief for abuse of discretion. /nter-

national Ass’ n of Machinists v. Soo Line R.R. Co., 850 F.2d 368,

374 (8th Cir. 1988) (en banc), cert. denied, 489 U.S. 1010(1989)

(citations omitted). “Abuse of discretion occurs if the district

court rests its conclusion on clearly erroneous factual findings or

if its decision relies on erroneous legal conclusions.” fd. Al-

ay, a

though the district court must grant equitable relief that is

“consistent with the facts as found by the jury,” Perry v. Brakke,

826 F.2d 740, 746 (8th Cir. 1987), the court may grant injunctive

relief despite a jury’s determination that defendants are not liable

for damages. See Johnson v. Bowers, 884 F.2d 1053, 1056 (8th

Cir. 1989) (court ordered injunctive relief for inmate despite jury

verdict in favor of prison doctors). In ordering this relief, the

court may rely on evidence not presented to the jury when the

jury’s factual findings are incomplete or inconclusive. See

Charles Jacquin Et Cie, Inc. v. Destileria Serralles, Inc., 921

F.2d 467, 472 (3d Cir. 1990). In this case, the jury’s findings are

inconclusive because the general verdict directive did not allow

the jury to make specific factual findings upon which the district

court could rely when crafting or denying the injunction. The

general verdict form listed seven elements the plaintiffs had to

establish to prove a constitutional violation and the jury could

have found the plaintiffs failed to establish any one of the seven

elements. For instance, the jury may have believed the defen-

dants were recklessly indifferent to the health needs of the

inmates and still found for the defendants because the inmates

suffered no damages. The return of a general verdict prevented

the court from ascertaining the jury’s specific factual findings,

and it was therefore, proper for the court to supply its own factual

findings to supplement the jury’s verdict.

Prior to making supplemental findings, the court heard addi-

tional testimony from Herschell Larimore, a maintenance super-

visor at the JCCC. Larimore stated that in March 1990, neither

inmates nor Civilians were warned that they would be working

with potentially dangerous waste from AIDS patients at the

facility. Additional evidence demonstrated that despite the

passage of three years and the greater awareness of the dangers

of AIDS, prison officials had failed to provide adequate protec-

tive clothing. The district court also noted this circuit has held

that exposure to raw sewage can present potential health hazards

in violation of a prisoner’s constitutional rights. Fruit v. Norris,

ion

905 F.2d 1147, 1151 (8th Cir. 1990) (“[w]e believe forcing

inmates to work in a shower of human excrement without

protective clothing and equipment would be ‘inconsistent with

any standard of decency.’’’) (citation omitted). After hearing the

additional evidence, the court ordered a limited injunction?

requiring JCCC to provide adequate protective clothing and

warnings to inmates of the potential danger of working in

contaminated waste. Keeping in mind that “equitable remedies

are a special blend of what is necessary, what is fair, and what is

workable,” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)

(footnote omitted), we hold the district court did not abuse its

discretion in ordering the injunction.’

The inmates cross-appeal, alleging the district court erred in

directing verdicts in favor of nine defendants at the close of the

inmates’ case. They argue they submitted sufficient evidence to

send the cases to the jury, and reasonable jurors could differ as

to whether the defendants had notice of the dangerous condition

of the sewage. In deciding whether to grant or deny a motion for

a directed verdict, a court must:

(1) resolve direct factual conflicts in favor of the nonmovant,

(2) assume as true all facts supporting the nonmovant

which the evidence tended to prove, (3) give the nonmovant

? The injunction ordered the defendants “to provide sufficient numbers of

rubber boots, rubber gloves, leather gloves, surgical masks, and face shields

in the maintenance and plumbing department . . . [and] permanently post

adequate warning in at least two easily visible areas of the plumbing shop that

inmate workers and others should wear appropriate protective clothing when

working on or around sewer lines and/or raw sewage because of potential

health hazards.”

>We also reject the inmates’ claim that the court abused its discretion in

ordering a limited injunction. The court appropriately tailored the injunction

to the specific concerns of the inmates, and any broader injunctive relief

would unduly infringe on the prison official’s day to day administration of

ICCC.

ae

ony Se

the benefit of all reasonable inferences, and (4) deny the

motion if the evidence so viewed would allow reasonable

jurors to differ as io the conclusions that could be drawn.

Porm v. White, 762 F.2d 635, 637 (8th Cir. 1985) (citation

omitted). In reviewing the district court’s decision, we apply the

same standard. City Nat. Bank of Ft. Smith v. Unique Structures,

929 F.2d 1308, 1312 (8th Cir. 1991).

To prevail on their Eighth Amendment claim, the inmates had

to show the correctional officers were deliberately indifferent to

the risk of harm posed to inmates working with the dangerous

sewage. Bailey v. Wood, 909 F.2d 1197, 1199 (8th Cir. 1990).

To establish reckless disregard, the inmates had to show the

correctional officers failed to respond reasonably to that risk. /d.

There was insufficient evidence presented at trial to indicate the

correctional officers knew the sewage was contaminated with

infectious diseases and presented a dangerous health risk to

those inmates who worked in the cleanup operation. Because

there was not substantial evidence to support a verdict in favor

of the inmates, we hold the court did not err in granting the

motion for a directed verdict. City Nat. Bank, 929 F.2d at 1312.

The inmates also allege the court erred in allowing the testi-

mony of Eddie Headrick, an epidemiologist who testified as to

the risks of infection from contact with sewage. We review a trial

court’s ruling with respect to witness testimony under an abuse

of discretion standard. Morfeld v. Kehm, 803 F.2d 1452, 1455-

56 (8th Cir. 1986). The inmates argue they were not allowed

adequate time to prepare for cross-examination because the

defendants’ witness list listing Headrick was not filed until the

day before trial. The inmates, however, may not allege prejudi-

cial error or surprise because they included Headrick on their

witness list, which was submitted the day of trial. Thus, the

inmates should have anticipated the nature of his testimony and

cannot claim the court abused its discretion in allowing the

testimony. See id.

— A-8 —

Finally, the inmates allege the court erred in instructing the

jury concerning the elements of a constitutional violation under

18 U.S.C. § 1983.4 A district court has broad discretion in

framing jury instructions, United States v. Coney, 949 F.2d 966,

967-68 (8th Cir. 1991), and our role is to determine “whether the

instructions, taken as a whole and viewed in light of the evidence

and the applicable law, fairly and adequately submitted the

issues in the case to the jury.” Jones v. Board of Police Comm’ rs,

844 F.2d 500, 504 (8th Cir. 1988), cert. denied, 490 U.S. 1092

(1989). The inmates contend the burden placed on the plaintiffs

to prove that infectious diseases were actually present in the

sewage was insurmountable, and the court should have included

* Instruction No. 12 stated:

Your verdict must be for a plaintiff and against a defendant if all of

the following elements have been proved by the preponderance of the

evidence as to that plaintiff and that defendant:

First, dangerous, communicable diseases, which can be transmitted

through contact with the sewage, were present in the sewage in the

clogged sewer pipes in June and/or July, 1987;

Second, the defendant knew such diseases were probably present in

the sewage and that they can be transmitted through contract with the

sewage;

Third, the plaintiff did not know such diseases were probably

present in the sewage or that they can be transmitted through contact

with the sewage;

Fourth, there was a substantial danger of becoming infected with

such diseases from contact with the sewage without protective cloth-

ing;

Fifth, the defendant, with deliberate indifference to or reckless

disregard for the substantial risk to the plaintiffs health and safety,

failed to warn the plaintiff of the danger of contact with the sewage;

Sixth, the plaintiff was exposed to such dangerous, communicable

diseases in June and/or July, 1987, through his work at the Missouri

State Penitentiary hospital; and

Seven, as a direct result, the plaintiff sustained damage.

ey

= ae

a phrase relating to the defendants’ failure to provide protective

clothing. We find no merit in the inmates’ claims. This case

hinged on the defendants’ knowledge that the inmates were

being exposed to potentially infectious sewage contaminated by

AIDS patients housed at the JCCC hospital. The availability of

protective clothing was not crucial to this issue; thus, the court

did not abuse its discretion in refusing to include a phrase

concerning the defendants’ failure to provide protective cloth-

ing. The jury instruction was a proper statement of the law and

the district court’s failure to instruct the jury as the inmates

requested was not an abuse of discretion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

—_

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

Consolidated Cases

No. 88-4521-CV-C-66BA

No. 87-4435-CV-C-66BA

RICKY J. VANOSTER, et al.,

Plaintiffs,

Vv.

DICK MOORE, et al.,

Defendants.

ORDER

(Filed: Mar. 12, 1991]

On November 8, 1990, plaintiffs filed a motion for new trial

on the following grounds:

(1) It was error and/or an abuse of discretion to permit Eddie

Hedrick and Jerry Kramp to testify as expert witnesses because

they had not been endorsed until the day of trial;

(2) It was error and/or abuse of discretion to set aside the

default entered against defendants as a condition of plaintiffs

receiving a jury trial’

(3) There was jury misconduct in the deliberations;

(4) Plaintiffs subpoenaed the medical records for trial but

were not given the records;

(5) There has been new evidence revealed in recent British

Medical Journals; and

— A-11 —

(6) Each of the plaintiffs is being retaliated against for filing

Suit and testifying at trial.

Defendants responded to each of the above allegations on

November 16, 1990.

“Generally, new trials are granted only if the record presents

prejudicial error or substantial justice has not been done.”

Comerio v. Beatrice Foods Co., 616 F. Supp. 1423, 1428 (E.D.

Mo. 1985). The burden of demonstrating the verdict was against

the weight of the evidence or showing prejudicial error is on the

moving party. /d. Here, plaintiffs have not persuaded the court

there was prejudicial error in this case or that substantial justice

has not been done. Thus, in light of the above standards and for

the reasons set forth below, plaintiffs’ motion for a new trial will

be denied.

Plaintiffs’ witness list, submitted the day of trial’, listed

“Eddie Hedrick, Infection Control Dept., University of Missouri

Medical Center, Columbia, 882-2264.” Defendants’ witness

list, filed the day before trial, also listed Eddie Hedrick and

defendants called Hedrick to testify. Plaintiffs cannot assert

prejudicial error or surprise by the defendants calling a witness

whom plaintiffs endorsed.

Additionally, the testimony of Jerry Kramp, a plumber, re-

garding plumbing practices relating to protective clothing and

work in raw sewage, should not have surprised plaintiffs in light

of their allegations. Furthermore, Kramp was not endorsed as,

and did not testify as, an expert regarding diseases found in

sewage. He testified as a licensed plumber.

’ Plaintiffs’ list of witnesses was submitted to the court on the day of trial.

Due to a clerical error, the witness list was accepted by the court but not

docketed. Thus, plaintiffs’ original witness iist will be attached to this order

and made a part hereof.

— A-12 —

Plaintiffs next assert it was error for the Honorable Scott O.

Wright to set aside the default judgment as a condition to trial by

a jury. Plaintiffs cite no case support for this proposition. To the

contrary, “it is generally held that neither party has a constitu-

tional right to a jury trial on the issue of damages after entry of

default (citations omitted).”” Goodman v. Lattimore, No. 79 Civ.

4501, slip op. (S.D.N.Y. Jan. 6, 1981); Kormes v. Weis, Voisin

and Co., 61 F.R.D. 608 (E.D. Pa. 1974); Martin v. Detroit

Marine Terminals, Inc., 189 F. Supp. 579 (E.D. Mich. 1960).

Furthermore, plaintiffs did not raise this issue prior to the jury

trial.

Plaintiffs further assert jury misconduct because “one juror

stated they could not believe that a warden would take the risk of

being sued by subjecting inmates to contagious diseases because

‘then he would be sued.’ ” Doc. 111, p. 4. As stated by defen-

dants in their response, “the statements attributed to the jury do

not objectively indicate ‘that the jury’s verdict was based on

considerations other than the evidence presented’ and thus do

not support a new trial.” Doc. 112, p. 4.

Plaintiffs introduced their medical records into evidence at

various times during the testimony on October 23 and 24, 1990,

and did not indicate to the court that they were incomplete or not

the records which they had subpoenaed. Furthermore, plaintiffs

called Frank Schroeder, the medical records custodian, and

could have asked him while he was on the stand whether he had

brought the subpoenaed records. Then, counsel could have

requested a recess, if necessary, to review those records.

Lastly, plaintiffs’ reliance on evidence revealed in recent

British Medical Journals and plaintiffs’ claims that they have

been retaliated against since the filing of this lawsuit and their

testifying at trial are not sufficient grounds to justify a new trial.

Such matters do not show justice was not done or that prejudicial

error was committed during the trial of this case.

— A-13 —

On November 20, 1990, defendants filed a motion to dismiss

plaintiffs’ claims for injunctive relief on the grounds that such

relief is precluded by the jury’s finding there was no violation of

plaintiffs’ constitutional rights. Plaintiffs responded to defen-

dants’ position but failed to cite case law in support.

A similar issue was addressed last year in Johnson v. Bowers,

No. 88-2641, slip op. (8th Cir. 1989) when Johnson appealed an

adverse jury verdict. The jury verdict was upheld but the case

was remanded to the district court to enter an appropriate order

regarding injunctive relief. Thus, the clear implication of that

order was that injunctive relief is not precluded by a jury verdict

in favor of defendants.

The federal courts have broad power to grant or deny equitable

relief in a civil rights action. Holt v. Sarver, 442 F.2d 304 (8th

Cir. 1971); Knowles v. Board of Public Instruction, 405 F.2d

1206, 1207 (Sth Cir. 1969); Johnson v. Lark, 365 F. Supp. 289,

304 (E.D. Mo. 1973). However, a “large degree of discretion is

vested in the trial court” in determining whether an injunction

should issue. American Home Investment Co. v. Bedel, 525 F.2d

1022, 1023 (8th Cir. 1975), cited with approval in Rittmiller v.

Blex Oil, Inc., 624 F.2d 857 (8th Cir. 1980). Further, injunctive

relief is considered an “extraordinary remedy.” See 11C. Wright

& A. Miller, Federal Practice and Procedure, § 2942 at 368

(1973). As such, federal courts should not employ their equi-

table power to interfere with the internal administration of state

correctional facilities absent a clear showing of a violation of

federally protected rights. Rogers v. Scurr, 676 F.2d 1211, 1214

(8th Cir. 1982); Anderson v. Hascall, 566 F. Supp. 1492, 1495

(D. Minn. 1983). Traditionally, “the main prerequisite to obtain-

ing injunctive relief is a finding that plaintiff is being threatened

by some injury for which he has no adequate legal remed.” 11

C. Wright & A. Miller, Federal Practice and Procedure, § 2941

at 368-69. The burden of proving these prerequisites is on the

party seeking the relief. United States v. Dorgan, 522 F.2d 969,

—*)

973 (8th Cir. 1975). Thus, to obtain permanent injunctive relief,

a party must show first, his nights have been violated; second,

there is a threat of future violation; and third, such threat is more

than a “mere possibility.” Rogers v. Scurr, 676 F.2d at 1214.

And the federal courts must use restraint “in dealing with the

complex and intractable problems of prison administration.” /d.

See also Bell v. Wolfish, 441 U.S. 520, 547 (1979).

Here, evidence presented at trial clearly indicates inmates

worked and continue to work as plumbers’ helpers in the plumb-

ing and/or maintenance department at Missouri State Peniten-

tiary. Evidence presented also indicated that rubber gloves and

boots were available to plumbing shop workers, although there

may not have been an adequate supply. It was also clear that if

individuals work in raw sewage, there is a real possibility of

getting raw sewage on their hands and feet and that raw sewage

presents potential health hazards. See also Fruit v. Norris, 905

F.2d 1147 (8th Cir. 1990) (“[w]e believe forcing inmates to work

in a shower of human excrement without protective clothing and

equipment would be “ ‘inconsistent with any standard of de-

cency.’” Howard v. Adkison, 887 F.2d at 137 (quoting Toussaint

v. McCarthy, 597 F. Supp. 1388, 1411 (N.D. Cal. 1984) (subse-

quent history omitted)).””)

Defendants assert there are currently gloves, boots and visors

available in the maintenance department for plumbing helpers.

Defendants’ assertion, however, does not indicate whether there

are sufficient numbers of those items for all inmate workers who

will work in raw sewage.

IT IS, THEREFORE, ORDERED that defendants are hence-

forth required to provide sufficient numbers of rubber boots,

rubber gloves, leather gloves, surgical masks, and face shields in

?Donald Bax, a maintenance supervisor at Missouri State Penitentiary,

testified at trial that there were approximately eight pairs of rubber boots, four

face shields, hundreds of surgical masks.

ee ee

— A-15 —

the maintenance and plumbing department for use by each

plumber’s helper and/or inmate worker assigned to the plumbing

shop. It is further

ORDERED that defendants henceforth provide sufficient

numbers of rubber boots, rubber gloves, leather gloves, surgical

masks, and face shields for use by other inmates assigned to work

with clearing blocked sewer lines or cleaning up raw sewage. It

is further

ORDERED that defendants permanently post adequate warn-

ing in at least two easily visible areas of the plumbing shop that

inmate workers and others should wear appropriate protective

clothing when working on or around sewer lines and/or raw

sewage because of potential health hazards. It is further

ORDERED that plaintiffs’ motion for a new trial is hereby

denied. It is further

ORDERED that defendants’ motion to dismiss plaintiffs’

request for injunctive relief in this case is denied.

Dated this 12th day of March, 1991.

/s William A. Knox

WILLIAM A. KNOX

United States Magistrate Judge

—s) pe

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

Case Number:

88-4521-CV-C-66BA

87-4435-CV-C-66BA

Ricky J. Vanoster, et al.,

v.

Dick Moore, et al.

JUDGMENT IN A CIVIL CASE

[Filed: Oct. 29, 1990]

() Jury Verdict. This action came before the Court for a trial

by jury. The issues have been tried and the jury has

rendered its verdict.

(% Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered

IT IS ORDERED AND ADJUDGED

on plaintiff Umphrey’s, Burton’s, Nelson’s, Vanoster’s,

Murrain’s, Taylor’s, Wirth’s, Charron’s, and Cooper’s

claims against defendants Stout, Bowers, Butts, and Haggart,

the jury unanimously finds in favor of defendants.

entered on October 26, 1990

Oct. 29, 1990 Robert F. Connor

Date Clerk

/s/ K. Markway

(By) Deputy Clerk

— A-17 —

APPENDIX F

IN THE UNITED STATES COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

Consolidated Cases

No. 88-4521-CV-C-66BA

No. 87-4435-CV-C-66BA

RICKY J. VANOSTER, et al.,

Plaintiffs,

V.

DICK MOORE, et al.,

Defendants.

ORDER

[Filed: Oct. 30, 1990]

Defendants moved for a directed verdict as to all defendants

and all claims at the close of plaintiffs’ case on October 25, 1990.

Plaintiffs objected thereto and oral argument was heard. The

court ruled on defendants’ motion and defendants moved for

summary judgment based on qualified immunity as to the

remaining damage claims.

IT IS, THEREFORE, ORDERED that defendants’ motion for

a directed verdict at the close of plaintiffs’ case is denied as to

defendants Loren Stout, Richard Bowers, Marilyn Butts and

Cindy Haggart and is granted as to the damage claims against

defendants Dick Moore, George Lombardi, Bill Armontrout,

William Weiburg, Dennis Gately, Ed Hanauer, Carl Borghart,

Jr., Richard Bauman, and Larry Neal. It is further

ORDERED that a ruling on defendants’ motion for summary

judgment on the remaining damage claims based on qualified

immunity is stayed pending the return of verdict by the jury.

— A-18 —

Dated this 30 day of October, 1990.

/s/William A. Knox

WILLIAM A. KNOX

United States Magistrate