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Berberena v. Pesquino

September 19, 2007

DANIEL BERBERENA, PLAINTIFF,
v.
ERIC PESQUINO, TIM FLETCHER, ROBERT WALKER, AND STEPHAN BAKER, DEFENDANTS.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Before the court is defendant Pasquino's Motion for Judgment as a Matter of Law. (Doc. 84).

Plaintiff Daniel Berberena, an inmate in the custody of the Illinois Department of Corrections, sued defendants pursuant to 42 U.S.C. §1983. He alleged that defendants Pasquino and Walker used excessive force on him in two separate incidents on September 1, 2001. He also alleged that defendant Fletcher either ordered or allowed Pasquino to use excessive force, and defendant Baker either used excessive force on him, or allowed other officers to do so. The jury returned verdicts in favor of Fletcher, Walker, and Baker, but found in favor of plaintiff on his claim against Pasquino. The jury awarded $1.00 in actual damages and $5,000.00 in punitive damages. Judgment was entered in accordance with the jury verdicts. See, Docs. 79 to 83.

Pasquino moves for judgment as a matter of law on the following grounds:

1. The verdict for nominal damages is inconsistent with a finding that Pasquino used excessive force.

2. The punitive damage award cannot stand because there was a lack of compensable damages and there was no showing that Pasquino had subjective knowledge that he was violating plaintiff's rights.

3. Pasquino is entitled to qualified immunity.

The court first notes that defendant did not object to plaintiff's jury instruction number 31, which informed the jury that they could award plaintiff nominal damages. Thus, defendant has arguably waived his first point. See, Penn v. Harris, 296 F.3d 573, 577 (7th Cir. 2002).

In his memorandum in support, defendant relied on Babcock v. White, 102 F.3d 267 (7th Cir. 1996) for his argument that the verdict cannot stand because the jury necessarily found that plaitnff did not suffer a signigicant injury. However, in his reply, he concedes that Babcock does not stand for that proposition; Babcock was a conditions of confinement case, and is not applicable to an excessive force case. See, Doc. 93.

Defendant's first argument is squarely rejected by Briggs v. Marshall, 93 F.3d 355 (7th Cir. 1996). There, the Seventh Circuit explained that, although excessive force and nominal damages may be "strange bedfellows, " nominal damages may be appropriate in an excessive force case in three situations:

First, during an altercation between a police officer and an arrestee/detainee, the officer might use both justifiable and excessive force, but any injury might have resulted from the justifiable force, thereby supporting the denial of compensatory damages. Gibeau v. Nellis, 18 F.3d 107, 110 (2nd Cir.1994). Next, nominal damages may be appropriate where a jury reasonably concludes that evidence concerning the plaintiffs' injuries was not credible. Butler v. Dowd, 979 F.2d 661, 669 (8th Cir.1992) (en banc), cert. denied, 508 U.S. 930, 113 S.Ct. 2395, 124 L.Ed.2d 297 (1993). In Butler, the court affirmed the award of nominal damages to excessive force victims because "plaintiffs failed to produce at trial objective medical evidence supporting their physical injuries or detailing the extent of their emotional injuries," and thus, the "jury could have disbelieved the plaintiffs' testimony regarding the extent of their injuries." Id. at 669, 672. Finally, nominal damages may be appropriate where the victim's injuries "have no monetary value or are insufficient to justify with reasonable certainty a more substantial measure of damages." Howard v. Barnett, 21 F.3d at 873.

Briggs, 93 F.3d at 360.

Defendant argues that Briggs is not applicable to this Eighth Amendment case because Briggs was brought by a detainee under the Fourth Amendment. That argument borders on the frivolous. Briggs cites with approval Howard v. Barnett, 21 F.3d 868 (8th Cir. 1994), which was an Eighth Amendment excessive force case, and which in turn relied on Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992). While defendant cites Hudson in his memorandum in support of his motion, he ignores the part where the Supreme Court stated as follows:

In the excessive force context, society's expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. See Whitley, supra, 475 U.S., at 327, 106 S.Ct., at 1088. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary ...


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