# Petition for Writ of Certiorari — Armontrout v. Burton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2120%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 508 U.S. 972 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2120%3A1. Public record. Not legal advice.