In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1375

VERNON A. HENDRICKSON,

Plaintiff-Appellee,

v.

SCOTT COOPER,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Indiana, Terre Haute Division.

No. 05 C 268—Larry J. McKinney, Judge.

ARGUED SEPTEMBER 10, 2009—DECIDED DECEMBER 21, 2009

Before MANION, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Prison is rough. Violent prisoners

can pose a serious threat, requiring prison officers to

use force to maintain order. Sometimes, though, the

only real threat comes from a rogue officer who attacks

a prisoner for no good reason. When such abuse occurs

in a facility operated by a State, the prisoner can sue the

officer under the civil rights statute, 42 U.S.C. § 1983, for

excessive force. Still, a § 1983 suit is not always a perfect
2 No. 09-1375

remedy, as the prisoner faces many challenges in

proving his case. He must pit his story against the conflicting story of the defendant officer, who often boasts

an impressive law enforcement résumé and calls a cadre

of fellow officers to support his side. Yet this case proves

that these challenges are not insurmountable, and that

§ 1983 plays a pivotal role in the cause against prison

brutality.

Vernon Hendrickson, an inmate at Indiana’s Wabash

Valley Correctional Facility, brought a § 1983 action

against Sergeant Scott Cooper, an officer at the facility,

claiming that Cooper attacked him without justification.

The case went to trial before a jury, which found Cooper

liable for using excessive force against Hendrickson in

violation of the Eighth Amendment’s ban on cruel and

unusual punishment, awarding both compensatory and

punitive damages. Cooper appeals, arguing that the

jury’s liability finding and damages awards were unsupported by the evidence. We recount that evidence in the

light most favorable to the jury’s verdict. Woodward v.

Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 920, 926 (7th

Cir. 2004).

On April 21, 2005, Hendrickson was walking back from

the prison’s dining hall to his housing unit. He passed

Cooper, who, for no apparent reason, called him a “son of

a bitch.” Hendrickson stayed quiet and kept walking.

Cooper persisted. “Mother fucker” was Cooper’s next

insult at Hendrickson. Hendrickson, no longer able to

bite his tongue, turned back toward Cooper and told him

to “keep his mother off the streets.”
No. 09-1375 3

Hendrickson’s verbal insult was unaccompanied by

any physical aggression. Hendrickson, along with two

of his fellow inmates who witnessed the encounter,

testified that he never made any threatening movements

towards Cooper. Indeed, Hendrickson was hardly capable

of challenging Cooper physically, as two prior car accidents rendered Hendrickson partially crippled. The first

accident damaged the right side of Hendrickson’s brain

along with the left side of his body, affecting his ability

to walk. The second resulted in a herniated disk in

Hendrickson’s neck. These injuries left Hendrickson

with serious pain in his neck and upper back, as well

as some pain in his lower back.

So while Hendrickson was never any physical threat,

his insult gave Cooper all the excuse he needed. “You son

of a bitch, you’ve had it now,” Cooper threatened as he

walked into the housing unit ahead of Hendrickson. After

stalling for a few minutes, Hendrickson entered the

building, only to find Cooper there waiting for him.

Hendrickson tried to avoid eye contact and quietly walk

to his room, but Cooper was honed in. “Now, bitch,”

Cooper demanded as he threw his equipment belt out

of the way, grabbed Hendrickson, threw him against a

wall, slammed him onto the concrete floor, and pressed

his knees into Hendrickson’s back while another officer

cuffed Hendrickson.

Hendrickson testified that all of that “hurt pretty bad,”

especially in light of his preexisting back and neck problems. After Cooper’s attack, officers took Hendrickson to

a segregation unit, where he initially refused a nurse’s
4 No. 09-1375

offer to examine him because he was agitated and didn’t

want to deal with prison officials. After about an hour,

however, Hendrickson told a nurse that he was feeling

“pain all over” and requested treatment. About a month

later, Hendrickson followed up with multiple requests

for a transfer to a hospital for an MRI scan and additional care, as the Tylenol and ibuprofen that he was

receiving in prison were not providing sufficient

pain relief. Hendrickson also described for the jury how

Cooper’s attack increased his back pain. Before Cooper’s

assault, Hendrickson had a “little bit of lower back pain,”

but this pain became much worse afterwards.

The jury found Cooper liable for using excessive force

against Hendrickson, in violation of his Eighth Amendment rights. The jury awarded Hendrickson $75,000 in

compensatory damages for pain and suffering and

tacked on a punitive damages award of $125,000. The

district court denied Cooper’s motion under Fed. R. Civ. P.

50 for judgment as a matter of law or a new trial. Cooper

appeals, arguing that the jury’s liability finding was

unsupported by the evidence and that the damages

awards were excessive.

Beginning with Cooper’s attack on the jury’s liability

finding, Cooper faces an uphill battle, for we will overturn a jury verdict only if “no legally sufficient

evidentiary basis” exists “for a reasonable jury to find

for the non-moving party.” Woodward, 368 F.3d at 926

(quotation omitted). To determine if this verdict was

supported by sufficient evidence, we must consider

what Hendrickson had to prove to make out his Eighth
No. 09-1375 5

Amendment excessive force claim. The core requirement

for such a claim is that Cooper used force not “in a goodfaith effort to maintain or restore discipline,” but “maliciously and sadistically to cause harm.” Hudson v.

McMillian, 503 U.S. 1, 7 (1992). Several factors guide

the inquiry of whether an officer’s use of force was legitimate or malicious, including “the need for an application

of force, the relationship between that need and the

force applied, the threat reasonably perceived by the

responsible officers, the efforts made to temper the

severity of the force employed, and the extent of the

injury suffered by the prisoner.” Outlaw v. Newkirk, 259

F.3d 833, 837 (7th Cir. 2001) (quotation omitted). Even if

an officer’s use of force serves no good-faith disciplinary

purpose, the force may be so “de minimis” that it does not

violate the Eighth Amendment. Hudson, 503 U.S. at 10

(quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Still,

while de minimis uses of force are non-actionable, a

prisoner need not suffer “serious injury” in order to

bring an Eighth Amendment claim. Id. at 4.

The evidence in this case amply supports the jury’s

verdict that Cooper attacked Hendrickson for the

malicious purpose of causing harm. Hendrickson and

his fellow inmates testified that he made no threatening

movements towards Cooper, or anyone else, but simply

responded to Cooper’s repeated cussings with an insult

of his own. Accepting Hendrickson’s version of events,

as we must, Cooper did not reasonably perceive any

threat from Hendrickson and had no need to use any

force. Nevertheless, Cooper waited for Hendrickson to

enter the housing unit and then grabbed him, slammed
6 No. 09-1375

him into the wall and concrete floor, and pressed his

knees into Hendrickson’s bad back. The jury could reasonably find that this use of force was gratuitous and

intended solely to cause pain. (It is interesting that although Hendrickson’s testimony was corroborated by

two other inmates, none of the other correctional

officers present during the events provided any evidence

at trial.)

Cooper’s attack was also not the type of de minimis force

that cannot, as a matter of law, constitute an Eighth

Amendment violation. Cooper offered more than a mere

“malevolent touch,” Hudson, 503 U.S. at 9, or “simple act

of shoving,” DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir.

2000). Cooper took Hendrickson to the concrete ground

and kneed him in the back. This force was severe and,

though perhaps justified under other circumstances to

restrain a dangerous inmate, uncalled-for here. Cf. Lewis

v. Downey, 581 F.3d 467, 475-76 (7th Cir. 2009) (finding

that the use of a taser gun was a more than de minimis

use of force, triggering the inquiry of whether the

tasering served a legitimate disciplinary purpose).

Hendrickson was no threat, yet Cooper attacked him

for the malicious purpose of causing pain. Or so the jury

could reasonably find.

Cooper argues that Hendrickson failed to prove that

the attack caused any injury severe enough to violate the

Eighth Amendment, stressing that Hendrickson offered

no expert medical evidence showing that the attack

exacerbated his preexisting back pain. This argument

assigns to Hendrickson a burden that he did not have,
No. 09-1375 7

namely, proof that he suffered any serious injury or longterm pain. It is “pain, not injury,” that is the touchstone

of an Eighth Amendment claim. Id. at 475. Hendrickson

testified that he felt a lot of pain when Cooper threw

him to the ground. It got worse when Cooper gave

him the knee treatment, causing what Hendrickson

described as a sharp, needle-like pain in his lower back.

Hendrickson’s testimony about the pain that he suffered

from the assault, if believed by the jury, was enough to

show an Eighth Amendment violation. The jury was

not required to find that Hendrickson suffered a more

debilitating, longer-term injury.

True, if an officer’s use of force causes only minor

injury, that factor tends to show that the force served a

proper disciplinary purpose. See Outlaw, 259 F.3d at 837.

So in cases where it’s debatable whether the use of force

was legitimate or malicious, the lack of serious injury

may tip the scales against the prisoner. See id. at 839

(relying in part on the minor nature of the inmate’s

injuries to conclude that the officer’s use of force served

a legitimate security objective); Lunsford v. Bennett, 17

F.3d 1574, 1582 (7th Cir. 1994) (“This type of minor

injury further supports our conclusion that at most this

incident was a de minimis use of force not intended to

cause pain or injury to the inmate.”). The jurors in this

case didn’t need the extent-of-injury factor to make up

their minds; they could rely on other factors such as the

lack of any reasonably perceived threat or need for

force, see Outlaw, 259 F.3d at 837, to find that Cooper

acted with malice.
8 No. 09-1375

And in any event, Hendrickson did offer evidence that

he incurred serious, long-term injury from the attack. He

testified that, before the incident, he had a “little bit of

lower back pain, but it wasn’t nothing like it was after

I got slammed on the concrete. . . . There’s no comparison.”

Shortly after the incident, Hendrickson told a nurse that

he was experiencing pain throughout his body. A month

later, he reported pain in his “lower back” and “insides”

and requested a transfer to a hospital for an MRI scan.

He followed up with a second request for an MRI,

stating that the non-prescription pain medications that

he received in prison were ineffective at alleviating his

back pain. In yet a third health care request, Hendrickson

repeated his complaints of continuous, severe back pain.

This evidence allowed the jury to conclude that Cooper’s

attack caused Hendrickson severe, recurring pain.

We also disagree with Cooper’s suggestion that

Hendrickson had to support his claims of increased back

pain with expert medical evidence. No expert testimony

is required to assist jurors in determining the cause of

injuries that are within their common experiences or

observations. See United States v. Christian, 342 F.3d 744,

750 (7th Cir. 2003). Here, the cause of Hendrickson’s

pain was perfectly clear: Cooper beat him. Had

Hendrickson claimed that Cooper never touched him

but merely denied him access to medical care for

several days, and that this delay in treatment exacerbated

his back problems, we might require Hendrickson to

support his theory of causation with some objective

medical evidence. See Williams v. Liefer, 491 F.3d 710, 716

(7th Cir. 2007) (concluding that a prisoner’s medical
No. 09-1375 9

records were sufficient to find that a delay in responding

to complaints of chest pain caused unnecessary pain

and elevated blood pressure); Walker v. Peters, 233 F.3d

494, 502 (7th Cir. 2000) (rejecting an Eighth Amendment

claim against prison doctors who refused certain

requests for medication on the ground that the prisoner

could only speculate that the refusal caused injury).

This case presents no such complicated question of

medical causation. Hendrickson testified that Cooper

beat him up and that it hurt really bad. The jury

believed him. No further proof was required for the jury

to find Cooper liable for violating Hendrickson’s

Eighth Amendment rights.

So much for the issue of Cooper’s liability; on to damages. The district court refused to grant a new trial based

on Cooper’s claim that the jury’s compensatory and

punitive damages awards were excessive, a decision

that we review for an abuse of discretion. Harvey v. Office

of Banks & Real Estate, 377 F.3d 698, 713 (7th Cir. 2004). As

for the $75,000 in compensatory damages awarded to

Hendrickson, we consider whether that award is “monstrously excessive” or lacks any rational connection to

the evidence. See Thomas v. Cook County Sheriff’s Dep’t,

No. 08-2232, 2009 WL 4251079, at *15 (7th Cir. Dec. 1,

2009). We may also compare the award with other compensatory damages awards upheld in similar cases,

although such comparisons are rarely dispositive given

the fact-specific nature of damages claims. See Harvey,

377 F.3d at 714. The required “rational connection” between the evidence and the award does not imply mathematical exactitude, especially where the compensatory
10 No. 09-1375

damages are for pain and suffering. Such damages are

very difficult to quantify, leaving it to the jury to select a

dollar amount that it believes will fairly compensate the

plaintiff. Fenolio v. Smith, 802 F.2d 256, 259-60 (7th Cir.

1986).

The jury’s award of $75,000 was rationally connected

to Hendrickson’s evidence of pain and suffering.

Hendrickson described how much pain Cooper inflicted

by throwing him to the ground and kneeing him in the

back. Following the attack, Hendrickson continued to

feel back pain that was significantly worse than before,

prompting several requests for medical treatment. The

jury heard this evidence and then received instructions,

without objection by Cooper, that properly guided the

jurors with the often-used language that is standard in

damages instructions. Specifically, the jurors were told

that, among other things:

Compensatory damages can also cover damages

that are less specific [than out-of-pocket monetary

harm], such as pain and suffering, inconvenience,

mental anguish, shock and discomfort, and loss

of enjoyment of life.

. . . .

. . . No evidence of the dollar value of physical or

mental or emotional pain and suffering or disability has been or needs to be introduced. There is no

exact standard for setting the damages to be

awarded on account of pain and suffering. You

are to determine an amount that will fairly compensate the Plaintiff for the injury he has sustained.
No. 09-1375 11

The amount that the jury came up with was $75,000, which

was not a monstrously excessive estimate of the pain that

Hendrickson experienced, and continues to experience,

from his ordeal. A different jury may have chosen a

lower number, but this uncertainty is unavoidable when

making difficult estimates of pain and suffering.

Additionally, the jury’s award of $75,000 for pain and

suffering is not out of line with similar awards upheld in

the past. See Reising v. United States, 60 F.3d 1241, 1244

(7th Cir. 1995) (upholding $150,000 in pain and suffering

damages for acceleration of back problems resulting from

a car accident); Hagge v. Bauer, 827 F.2d 101, 109-10 (7th Cir.

1987) (affirming a compensatory damages award of

$75,000, exclusive of medical bills, for pain from a

broken leg caused by a police officer’s assault). We

might have a different case if the jury came back with a

compensatory damages award in the millions, or even

the $350,000 in total damages requested by Hendrickson’s

trial counsel. In this case, though, we cannot say that

$75,000 was an excessive valuation of Hendrickson’s

pain and suffering.

Echoing his challenge to the jury’s liability finding,

Cooper argues that the compensatory damages award

is excessive absent objective medical evidence showing

that Cooper caused Hendrickson’s increase in back pain.

Again, we disagree. Given the uniquely subjective

nature of pain, see Cooper v. Casey, 97 F.3d 914, 917 (7th

Cir. 1996), it is understandable that Hendrickson relied

primarily on his own testimony to prove his pain and

suffering. He described how much worse his back felt as
12 No. 09-1375

a result of Cooper’s assault, and the verdict shows that

the jury believed him. At that point, the jury had the

duty to fairly compensate Hendrickson, a task that the

jury could perform without objective medical evidence

attempting to quantify Hendrickson’s pain and suffering.

Cf. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (observing that a prisoner did not need to offer “ ‘objective’

evidence of his pain and suffering” in order to recover

for prison doctors’ deliberate indifference to a serious

medical condition).

Satisfied that the $75,000 compensatory damages

award is supported by the evidence, we close by considering the $125,000 punitive damages award. Cooper

raises no constitutional challenge to the size of the

punitive damages award, which we would consider de

novo. Kunz v. DeFelice, 538 F.3d 667, 678 (7th Cir. 2008).

Instead, Cooper simply argues that the award is

excessive in light of the evidence, so we review only for

an abuse of discretion. Id. “We will set aside a jury’s

award of punitive damages only if we are certain that

it exceeds what is necessary to serve the objectives of

deterrence and punishment.” EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1287 (7th Cir. 1995). As with our

review of a compensatory damages award, it is useful

to compare the challenged punitive damages award

with other awards upheld in the past. See id.

We do not find $125,000 excessive. “Punitive damages

are appropriate when the defendant acted wantonly and

willfully, or was motivated in his actions by ill will or a

desire to injure.” Hagge, 827 F.2d at 110. The jury in this
No. 09-1375 13

case heard ample evidence that Cooper acted with the

malicious desire to cause Hendrickson harm. It is

difficult to determine the exact amount required to deter

and punish such misconduct, see id., but we cannot say

with certainty that $125,000 is too much.

True, $125,000 is larger than the punitive damages

awards that we have upheld in similar, though less recent,

excessive force cases. See Bogan v. Stroud, 958 F.2d 180, 182,

186 (7th Cir. 1992) ($7000 in total punitive damages

against three prison officers who beat and stabbed an

inmate after subduing him); Hagge, 827 F.2d at 104, 110

($25,000 against a police officer who kicked an arrestee

and broke her leg); Taliferro v. Augle, 757 F.2d 157, 159, 162

(7th Cir. 1985) ($25,000 against two police officers who

beat an arrestee). More recently, we have upheld awards

approaching the $125,000 imposed here, but these

cases involved multiple officers who used force that was

probably more severe than Cooper’s attack. See Kunz, 538

F.3d at 671, 679 ($90,000 in total punitive damages where

multiple police officers beat an arrestee after he was

subdued and, later at the station, beat out a false confession); Marshall ex rel. Gossens v. Teske, 284 F.3d 765, 768-69,

772-73 (7th Cir. 2002) ($100,000 against three officers

who chased a minor at gunpoint, arrested him, and

detained him for several hours without probable cause);

Cooper, 97 F.3d at 916, 920 ($120,000 against seven prison

guards who beat inmates and then refused requests for

medical treatment). Drawing comparisons to these cases,

perhaps $125,000 approaches the upper end of what was

necessary to punish Cooper’s lone act of attacking a

prisoner for no good reason.
14 No. 09-1375

Still, we think that the substantial evidence of malice

in this case brings the $125,000 punitive damages award

within the bounds of reasonableness. In the distinct

but related context of a constitutional challenge to a

punitive damages award, the Supreme Court has

observed that the most important factor is “the degree of

reprehensibility of the defendant’s conduct.” State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419

(2003) (quotation omitted). Cooper’s use of force was

reprehensible because it was completely unjustified. It

was not as though Cooper was initially compelled to

use some force against Hendrickson, but the jury found

that he simply went too far. Cf. Kunz, 538 F.3d at 670-71

(recounting the plaintiff’s actions of delivering drugs,

driving a stolen vehicle while drunk, and fleeing the

police, all of which necessitated the plaintiff’s arrest).

Cooper’s actions were deliberate and calculated to

create a violent confrontation with Hendrickson. Cooper

goaded Hendrickson into leveling an insult, which

Cooper used as an excuse to attack. Cooper then lay in

wait for Hendrickson to enter the housing unit. When

Hendrickson finally appeared, Cooper grabbed, shoved,

floored, and kneed him. Hendrickson’s disability

made him especially vulnerable to such severe force,

increasing the likelihood that Cooper’s attack would

achieve his purpose of causing pain. Cf. id. at 679 (observing that the plaintiff “was shackled and defenseless

while he was being punched and thus vulnerable to the

injury inflicted”). Cooper also perpetrated this attack

right in the presence of other inmates, as if Cooper intended to vividly demonstrate who was the boss. The
No. 09-1375 15

It should be noted that Hendrickson proceeded pro se through 

the early stages of this case, including the summary judgment

process, right up to the brink of trial. At that point, the district

judge requested that counsel appear on Hendrickson’s behalf

pursuant to 28 U.S.C. § 1915(e)(1). The law firm that complied

with that request very ably represented Hendrickson through

trial and this appeal, thereby upholding the longstanding and

greatly appreciated tradition of volunteering to represent the

indigent.

12-21-09

jury could find that $125,000 was necessary to punish

and deter this malicious use of force.

The evidence supported the jury’s finding that

Cooper violated Hendrickson’s Eighth Amendment

rights, as well as the jury’s compensatory and punitive

damages awards.

AFFIRMED.