### Th e Honorable John R. Tunheim, United States District Judg e 1 

### for the District of Minnesota, sitting by designation. The Honorable Ca rol E. Jackson, United States District Judge 2 

### for the Eastern District of Missouri. ___________ No. 96-1896

___________ Estate of Jeffrey L. Davis, * by Mark L. Ostenfeld, * Public Administrator of the * City of St. Louis, * * Appellee, * * Appeal from the United v. * States District Court for * the Eastern District of Paul K. Delo, Gregory Dunn, * Missouri Greg Conaway, David McPeak, * Billy Davis, Jim Underwood * and Phillip Wade, * * Appellants. *

___________ Submitted: December 11, 1996 Filed: June 16, 1997

___________ Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, District Judge. 1

___________ TUNHEIM, District Judge.

Appellant s, correctional officers and prison administrators, appeal from an or der entering judgment against them under 42 U.S.C. § 1983. At 2 the conclusion of a b ench trial, the district court found that appellants had violated inmate Jeffrey Davis-El’s constitutional right to freedom fro m cruel and unusual punishment

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byusing excessive force while removing him from his prison cell. Th e court awarded plaintiff $10,000.00 in compensatory damages against seven defendants jointly and severally, and awarded punitive damages of $5,000.0 0 each against two of the defendants. We affirm.

I. BACKGROUND

A. The Use of Force
JeffreyL. Davis-El (“Davis”) was an inmate at the Potos i Correctional Center ( “PCC”) in Potosi, Missouri. In November 1992, Davis filed a complaint alleging that prison guards us ed excessive force against him w hile removing him from his cell on October 3, 1992. At that time , defendant Paul Delo was the Superintendent of PCC. Defendants Gregor y Dunn, Gregory Conaway, David McPeak, Billy Davis, Jim Underwood and Philli p Wade were corrections officers at PCC.

On Octob er 3, 1992, prison officials conducted a routine search o f Dav is’ housing unit. Each inmate was required to “cuff up” befor e
corr ections officers entered and searched his cell. Each inmate wa s required to stand wit h his back against the cell door and place his hands behind his back and through the food slot in the cell door to allo w officers to handcuff him. Davis was ordered to “cuff up,” but instead of placing his back to the door, he faced the door and inserted his hand s through the slot. Anofficer ordered Davis to turn around. Davis slowly removed his hands fro m the slot and turned his back to the officers. The officers construed Davis’ slow movements as a refusal to obey an order, an d shu t the food slot before he had finished turning around. Davis the n requested the presence of a higher-ranking corrections officer.

### -3- In response, defendant Dunn, a zone lieutenant, assembled a “mo vement team,” the object of which is to restrain and remove an inmate from hi s cell with physical force. A movement team is comprised of five correction s officers, each of who m is assigned a role in restraining the inmate. One restr ains the inmate’s head and upper torso, one restrains each of th e inmate’s arms, and on e restrains each of the inmate’s legs. The officers wear protective padding and a helmet, but do not carry weapons.

The tria l court made findings of fact regarding the PCC’s policie s with respect to the u se of movement teams. The movement team’s objective is to gain physical control of the inmate with minimal risk of injury to the corre ctions officers and the inmate. Once the decision to employ a movement t eam is made, physical force is used to restrain the inmate , regardless of whether he resists. The officers are not authorized , however, to use physi cal force beyond that which is necessary to maintain
or regain c ontrol. The court found that if each member of the tea m competently performs his assigned task and the i nmate does not resist, the probability of injury to either the officers or the inmate is remote, and that 200 instances of use of a movement team at PCC had resulted in only two serio us injuries to inmates. One was the injury at issue in thi s appeal; the other was an incident in which an inmate’s arm was broken.

Missouri Department of Corrections procedures require that eac h member of the movement team and any other official observing the use o f forc e submit a written report of the incident which should include a description of any in juries sustained by corrections officers or inmates. The incident is also videotaped. There is an official process for review of the movement team’s activity. A “use-of-force packet” is assemble d which i ncludes officers’ reports, the videotape, medical reports, an y allegations

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of abuse by the inmate, a conduct violation report issued to the inmate, and the outcome of any internal investigation.

The packet is reviewed by a series of supervisory personnel , beginning with the of ficer in charge of the exercise, and ending with the prison superintendent. The prison superintenden t reviews the use-of-force packet and makes a determination as to whether the movement team use d appropriate force. The packet is then sent to the central office of the Missouri Department of Corrections, where it is reviewed by the security coordinator, the assistant director of adult ins titutions, and an internal affairs officer. The packet is also reviewed by the Missouri Department of Public Safety and a citizens’ advisory committee which does not have th e authority to order an internal investigation.

The t rial court also made findings of fact regarding the movemen t team exercise in Davi s’ cell on October 3, 1992, and the aftermath of the
exe rcise. Defendant Dunn was the designated supervisor of the movemen t team. The movement team was comprised of defendants McPeak, Conaway , Dav is, Underwood, and Wade. McPeak was responsible for restraining th e inmate’s head and upper torso, Davis and Conaway were each responsible for
one of his arms, and Wade and Underwood were each responsible for one of his legs. Another corrections officer was respo nsible for videotaping the movement team’s activities. A licensed practica l nurse (“LPN”)was present to observe and to examine Davis following the use of force.

Dunn chos e McPeak to lead the movement team because of his stature, agility and ability to quickly regain control of inmates. Dunn arrived at Davis ’ cell at approximately 1:25 p.m. Davis attempted to explain hi s response to the order to “cuff up.” Before he had finished, Dunn ordered him t o lie face down on the floor with his head opposite the cell door

. Davis immediately

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complied and the movement team entered his cell in a single file. Th e trial court found tha t McPeak lunged onto Davis as he lay unmoving on the cell floor. The court also found that McPeak th en repeatedly struck Davis about the head and face, and smashed Davis’ chin against the cell’ s
concre te floor. Although appellants Davis, Conaway, Wade and Underwoo d
were in a position to have seen or heard the assault, as they were securin g Davis’ limbs, each testified that they did not s ee McPeak strike him. The trial court specifically found that this testimony was not credible.

After D avis was restrained, he was carried from his cell, the cel l was searched, and he was carried back into the cell. The LPN wiped blood from his head, face, and chest and off the floor . Davis requested further medical treatment, but refused to be treated while lying on the floor in his cell in restraint s. The LPN construed Davis’ statements as a refusal of medical care. Dav is was instructed to remain on the floor and his leg restraints were removed. The movement team left his cell. The door to th e cell was locked and Davis’ hand restraints were removed.

The movement team disbanded at approximately 1:34 p.m. Davi s contin ued to complain to corrections officers that he needed medica l treatment for a cut on his chin. He was transported to a medical center
some ti me after 4:00 p.m. The cut on Davis’ chin required internal an d ext ernal sutures. The treating physician also ordered x-rays of Davis ’ head, to rso and extremities due to the existence of numerous othe r contusions and lacerations.

B. The Institution’s Response

Eachmember of the movement team submitted the required writte n account of the movement team’s activities to the appropriate supervisor. None of these reports mentioned any injury

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to plaintiff. Superintendent Delo reviewed the use-of-force packet, and observed from the vid eotape that Davis was bleeding immediately after the
use of force, but he did not immediately order an investigation. Th e videotape of the inci dent was lost after it was forwarded to the Missouri Department of Corrections and had not been located as of the date of trial

.

The day after the incident, Davis saw defendant McPeak. As Davi s passed by, McPeak pointed at him, laughed, and said, “Keep your chin up. Next time it will be your teeth.” Plaintiff saw McPeak again the next day

. McPeak pointed at him and laughed.
On October 9, 1992, six days after the incident, James Bush, di strict assistant for the fourth senatorial district of Missouri, visited Davis at PCC. Bush is responsible for investigating and responding to inmat e
com plaints of mistreatment by corrections officers. At that time, Bus h observed that Davis’ eyes and the right side of his face were bruised and swollen and saw the s utures in his chin. Davis told Bush that McPeak had beaten him.

Defendant Delo, as superintendent of PCC, was responsible fo r investigating all inmate claims of excessive force. Delo testified that he could not recall any prior report of abuse or excessive force by a n inma te against McPeak. PCC does not track inmate complaints agains t individual correction s officers; thus, there is no official record of the frequency of complaints of abuse against a parti cular corrections officer.

The trial court found, however, that Delo had received severa l complaints about McPeak in the past. Davis had drafted letters to Delo on behalf of other inmates on a number of occasions complaining that McPeak had used excessive force. Delo had not ordered any interna l investigations, but had nevertheless concluded

### The trial court also stated in a footnote that Dunn supervised 3 

### McPeak in a use of force in which the inmate’s arm was broken and that thi s was the incident for which McPeak was suspended for 2 0 days. The parties both acknowledge that this factual finding was erroneous. While there is evidence in the record supporting th e fact that McPeak was suspendedfor 20 days for failure to report a use of f orce, there is no evidence in the record indicating tha t this discipline was for the incident in which an inmate’s arm was broken. Nor is there evidence in the record indicating that McPeak was present during that incident.

-7- that these claims lac ked merit. James Bush had also expressed concern to Delo about corrections officers’ treatment of inmates at PCC on a number of occasions prior to this incident. Bush had s pecifically recommended to Delo on one or two oc casions that certain corrections officers, including McPeak, be dischargedor reassigned due to persistent complaints that the officers used excessive force against inmates. Delo never ordered an y investigations into these complaints or any interview with Bush.

Defendant McPeak served as a corrections officer at PCC from Ma y 1989 to December 1993. During that time, he participated in a number of use-of

force exercises. Defendant Dunn supervised at least 10 of these exercises

. In May 1991, a corrections officer reported that McPeak used excessiv e force against an inma te and conspired with other corrections officers not to report the incident. An investigation into the incident resulted i n Mc Peak’s 20-day suspension for failing to report a use of force. I n 3 August 1993, after the incident at issue in this appeal, McPeak was charge d again with failing to report injuries an inmate sustained during a use of force. In December 1993, McPeak was discharged for using unnecessary forc e against an inmate and failing to report the incident.

On October 7, 1992, Davis filed an internal resolution reques t charging the movement team with using excessive force. Delo then

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began an investigation into the incident. Delo testified that he that did not initiate an investigation sooner because it could not “definitely be determined” that Davi s was injured during the use of force because he had refused t o be treated by the LPN immediately after the incident. Delo , however, admitted that, based on the LPN’s written statement that plaintif f
was bleeding from an unknown source following the movement team’s exercise , he was “fairly certain” and did not “think there was any doubt” that Davis was injured during the use of force.

C. The Trial Court’s Order
Following a bench trial, the court entered judgment for plainti ff and against defendants Delo, Dunn, McPeak, Conaway, Davis, Underwood and Wade, jointl yand severally, for $10,000.00 compensatory damages. The cour t conclud ed that McPeak maliciously and sadistically used force agains t plaintiff for the purpose of causing him harm in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. The court also found that the other four members of the movement team, Conaway, Davis , Underwood and Wade, failed to intervene or prote ct plaintiff from McPeak’s use of excessive forc e. The court found that they observed McPeak strike plaintiff, but failed to take any affirmative action to protect him from a substantial risk of serious harm. The court found that Dunn, the lieutenant responsible for th e movement team’s actio ns, had knowledge of the substantial risk of harm to plaintiff and tacitly authorized the use of excessive force by selecting McPea k to serve on the movement team despite his knowledge of McPeak’ s propensity to use excessive force against inmates. The court further foun d that Superintendent Delo had knowledge of and wa s deliberately indifferent to the su bstantial risk of harm posed by McPeak’s propensity to us e excessive force.

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Based on its conclusion that McPeak’s use of force and Delo’s failure to protec t appellee each demonstrated a willful and wanton disregard o f plaintiff’s rights un der the Eighth Amendment, the court awarded punitive damages of $5,000.00 each against McPeak and Delo.

II. Analysis

A. Standard of Review.
In reviewing a district court’s order entering judgment after a bench trial, we review the district court’s findings for clear error. Fed. R. Civ. P. 52(a). Under this standard, we will overturn a finding of fac t only if it is not sup ported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if we are left with the definite and firm conviction that an error has been made. Sawheny v. Pioneer Hi-Bred Int’l, Inc. , 93 F.3d 1401, 1407-08 (8th Cir. 1996). A district court’s choice between two permissible views of evidence cannot be clearly erroneous. Moody v. Proctor , 986 F.2d 239, 241 (8th Cir. 1993)

. We also must give due regard to the district court’s opportunity to judge the credibility of the witnesses. Fed. R. Civ. P. 52(a).

Whether the trial court erred in con cluding that defendants’ actions const ituted cruel and unusual punishment is a legal issue we review d e
novo . Moody , 986 F.2d at 241. The denial of qualified immunity is also
a legal issue we review de novo

. Cornell v. Woods , 69 F.3d 1383, 1390 (8t h Cir. 1995).

B. McPeak

### -10- Appellant McPeak assets that the trial court’s conclusion that h e acted maliciously and sadistically in order to cause Davis harm is no t supported by the evid ence and constitutes reversible error. In excessive forc e cases, the district court must determine whether the force wa s applied “i n a good faith effort to maintain or restore discipline, o r maliciously or sadistically to cause harm.” Hud son v. McMillian , 503 U.S. 1, 6 (199 2). The Court must consider the need for the application o f physical force; the relationship between the need for physical force and the amount of force applied; and the extent of injury suffered by th e inmate. Id. at 7.

Our re view of the record reveals ample evidence to support th e dis trict court’s conclusion as to defendant McPeak. It is a n uncontroverted fact that Davis complied with the order to lie face down on the floo r and did not at any time resist the movement team’s effort t o restrain him. Defend ant McPeak acknowledged that he threw himself on top of Davis’ head and torso. McPeak denied striking Davis, but Davi s testified that McPeak struck him in the head andface 20 to 25 times. The record substantiates the trial court’s finding t hat Davis suffered serious injuries as a result of the incident, including both internal and external sutures of a cut on h is chin, and swelling and bruising to his face which was visible almost a week later.

The trial court found Davis’ testimony regarding the beating mor e credible, and therefore found that McPeak repeatedly struck Davis

. Credibilitydeterminations are uniquely within the province of the trier of fact. Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer , 470 U.S. 56 4 (1985). Given that the court found Davis’ testimony to be credible, the court’s finding that the physical force expended to control Davis vastly exceeded the amount o f force required supports its conclusion that McPeak used force maliciously

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and sadistically for the purpose of causing Davis harm. The court’ s conclusion is also supported by evidence that McPeak taunted and threatene d Davis on the day after the incident.

McPeak also asserts that the trial c ourt erroneously failed to grant him qualified immunity. Government officials performing discretionar y funct ions are entitled to immunity from civil damages. Harlow v

. Fitzgerald , 457 U.S. 800 (1982). Officials may nevertheless be held liabl e if their conduct violates clearly established ri ghts of which a reasonable official would have known. Harlow , 102 S. Ct. at 2738. The trial court found that a reasonab le prison official should have known that repeatedly striking an inmate’s head on a concrete floor wh en the inmate’s limbs were being restrained by four other officers and the inmate offered n o resistance would viol ate clearly established law. See Whitley v. Albers , 475 U.S. 312, 321 (1986) (“inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced suchwantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur”). Department o f Corrections policy authorizes use of only the am ount of force necessary to mai ntain control. Superintendent Delo testified that any use of force , even a single blow to the head, would have constituted excessive forc e under the circumstanc es. We agree that the law was well established that striking an unresisting inmate 20 to 25 times inthe head while four other officers were restraining his limbs and two other officers were standing by to ass ist if necessary, is a violation of the Eighth Amendment’ s prohibition of cruel and unusual punishment. We find no error in the tria l court’s denial of McPeak’s claim to qualified immunity.

C. Conaway, Davis, Underwood and Wade

### -12- The four other members of the movement team assert that the tria l court erred in finding them liable for their actions on October 3, 1992. A prison official may be liable for failure to protect an inmate from a us e of excessive force if he is deliberately indiffe rent to a substantial risk of serious harm to an inmate. Burgess v. Moore , 39 F.3d 216, 218 (8th Cir

. 1994); Buc kner v. Hollins , 983 F.2d 119, 122 (8th Cir. 1993) (quotin g Estelle v. Gamble , 429 U.S. 97, 105 (1976)).

The trial court found that the natur e of each member of the movement team’s duties was such that each member would have been in a position to
see or hear an assault by McPeak and that it would have been impossible fo r themnot to see McPeak strike Davis. In reaching this conclusion, th e tria l court considered the proximity of the movement team members t o McP eak, the nature of McPeak’s actions, the substantial risk of seriou s harmt o Davis, Davis’ actual injuries, and the fact that none of th e movement team members reported any injury in their use of force reports. The co urt concluded that the credible evidence established that th e movement team members observed McPeak strike Davis, yet did nothing t o protect him from the substantial risk of serious harm posed by McPeak’ s blows. We find no clear error in the district court’s factual findings, whichwere based on its credibility determinations. The trial court’ s find ing of liability as to the movement team members is supported b y substantial evidence in the record.

The movem ent team members also assert that the trial court erred in de nying their claims of qualified immunity. The law was clearl y established at the time of the incident that prison officials may be liabl e for failure to protect an inmate from a use of e xcessive force if they are deliber atelyindifferent to a substantial risk of serious harm to th e inmate. Buckner , 983 F.2d

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at 122 (quoting Estelle v. Gamble , 429 U.S. 97, 105 (1976)). The tria l court found that the movement team members witnessed McPeak beating a n inma te and did nothing to intervene and therefore violated a clearl y establ ished right of which a reasonable corrections officer would hav e known. The trial court’s conclusion that the movement team members were deliber atelyindifferent to a substantial risk of serious harm to th e inmate is supported by the record.

D. Dunn

De fendant Dunn asserts that the trial court erred in finding hi m liable for his action s in connection with the use of force. Dunn was the supervisor of the movement team. He testified h e chose McPeak to lead the movement team because of his reputation for quickly regaining control of unruly inmates. The court found that Dunn had supervised a minimum of 10 use-of -force exercises involving McPeak prior to the incident at issue

. The cou rt also found that McPeak was suspended for 20 days after one o f those incidents for failure to report a use of force which resulted i n serious injuries to an inmate. The court further found that, like th e movement team members, Dunn was present during and observed the entire use

of-force exercise and observed that plaintiff was bleeding following the
use of force, yet failed to report plaintiff’s injury in his writte n account of the incident.
Both parties acknowledge that the trial court’s finding that Du nn was aware that McPeak had been involved in a use of force in which an inmate’s
armwas broken was not supported by the record and was therefore clearly
erroneous. Appellee also acknowledges that the trial court’s finding of liability was based in large part on this erroneous finding of fact, as th e trial court found Dunn liable for his decision to choose McPeak to lead th e movement team

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when he was aware of the previous disciplinary action against McPeaks for use of excessive force.
Appellee urges the court to uphold the trial court’s judgment a gainst Dunn on a different theory. Dunn, like the other four members of th e movement team, was present during the use of force and was in a position to observe McPeak’s actions. Dunn also failed t o intervene to protect the inmate and failed to include the injury in his r eport on the use of force. We agree with appellee that there is no basis for distinguishing between the movement team members’ liability and Dunn’s liability. See Burgess , 39 F.3d at 218 (supervisor present during alleged use of excessive force could be found to be deliberately indifferent for failure to intervene). We therefore find that the court’s erroneous fac tual finding was harmless, and affirm the trial court’s judgment against Dunn and its denial of Dunn’ s claim of qualified immunity.

E. Delo
Superintendent Delo asserts that the trial court erred in findin g that he was on notice that McPeak had a tendency to use excessive force, but that he failed to take appropriate action, a nd in concluding that this fa ilure constituted deliberate indifference to a substantial risk o f serious h arm to Davis. Delo testified that he could not recall an y previous complaints o f abuse or excessive force regarding McPeak and that he had no knowledge that McPeak had been reprima nded for failure to report
a use of for ce. The trial court found that this testimony was no t credible. The trial court found that Delo had knowledge that McPeak had
a pro pensity to use excessive force for several reasons. The evidenc e establ ished that Delo had authorized an internal investigation into a n incident in which McPeak failed to report a

### A s previously noted, the parties agree that the trial cour t 4 

### erred in concluding that this use of force resulted in seriou s injuryto an inmate. The trial court erroneously concluded tha t McPea k was disciplined for a different use of force in which a n inmat e’s arm was broken. We find that this error was harmless

. There is evidence in the recor d which the trial court did not cite which indicates that the disciplinary action against McPeak was for an incident in which he deniedhitting the inmate, but admitted to an investigator that the fact that the inmate was “pretty bange d up” was the reason why the off icers “didn’t do the paperwork.” We find that the trial court would have reached the same result had it considered the facts supported by the record. See Largent v
. United States , 910 F.2d 497 (8th Cir. 1990) (error harmless where ina dmissible evidence was just one of several factors leading t o legal conclusion and court would have reached same result had i t not considered evidence).
-15- use of force and received a 20-day suspension. There is also evidenc e 4 in the record indicating that Delo received written complaints allegin g that Mc Peak used excessive force against other inmates, but that Del o failed to order investigations of any of these complaints. Furthermore, there is evidence that senatorial assistant Bush informed Delo on one or two occassions that McPeak was one of several corrections officers wh o should be discharged or reassigned due to persistent complaints that the offic ers used excessive force against inmates. Delo took no action i n response to this information.

Given Delo’s knowledge of these previous complaints, and the fac t that he was the only individual who could have o rdered investigations into these allegations of excessive force prior to the decision to choose McPea k in a pl anned use of force, the trial court concluded that Delo had bee n deliberately indifferent to a substantial risk o f serious harm to inmates. We find that the reco rd adequately supports the trial court’s conclusion. The record also supports the trial judge’s denial of Delo’s claim o f qualified immunity.We also affirm the trial court’s award of punitive damages agains t

McPeak and Delo. An award of punitive damages i s within the discretion of the finder of fact and will not be disturbed unless it appears to be unfai r and shocking. Jackso n v. Crews , 873 F.2d 1105 (8th Cir. 1989). Punitive damages may be recovered in a § 1983 case when a defendant’s conduct i s shown t o be motivated by malicious or evil motive or intent, or when i t involv es reckless or careless disregard or indifference to an inmate’ s righ ts or safety. Smith v. Wade , 461 U.S. 30 (1983). The trial cour t found evidence of malicious or evil intent in Mc Peak’s beating Davis about the head a nd face while Davis offered no resistence, and taunting an d threatenin g Davis the following day. The court found Delo acted wit h reckless or careless disregard for Davis’ safety in refusing to investigat e
or tak e remedial action after numerous complaints were made regardin g McPeak’s use of excessive force. The trial cour t awarded punitive damages against McPeak and Delo in the amount of $5,000.00 each. We do not find this award to be unfair or shocking; thus, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.