### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 10-50771

BRYAN OSCAR COOPER, Plaintiff - Appellant
v. WARDEN PAUL MORALES, In His Individual and Official Capacity; DEBRA GLOOR, Medical Facility Administrative Manager, In Her Individual Capacity; JUAN TREVINO, Correctional Officer, In His Individual and Official Capacity; J. GARCIA, Step Two Grievance Respondent, In His Individual and Official Capacity; SERGEANT HIPOLITO N. RODRIGUEZ, In His Individual and Official Capacity; JOHN DOE 1, Sergeant, In His Individual and Official Capacity; JOHN DOE 2, Correctional Medical Infirmary Officer, In His Individual and Official Capacity; ROBERT G. CANTU, Correctional Officer, In His Individual and Official Capacity, Defendants - Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 5:08-CV-738

Before JOLLY, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 TH C IR

. R

. 47. 5, the court has d eterm ined that this op inion should not be publis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 TH C IR

. R. 47. 5. 4. Case: 10-50771 Document: 00512307097 Page: 1 Date Filed: 07/15/2013No. 10-50771

In this 42 U.S.C. § 1983 a ction ba s e d u p o n an “excessive punishment” violation of the Eighth Amendment, Plaintiff–Appellant Inmate Bryan Cooper (“Cooper”) appeals the district court’s grant of Defendant–Appellee Corrections Officer J u a n T revino’s (“Trevino”) motion for judgment as a matter of law (“JMOL”), which set aside a jury v erdict of $ 30.00 in compensatory damages and $3,500.00 in punitive damages and granted a new trial. Because we hold that there was a sufficient factual basis for a reasonable jury t o find f or Cooper and the verdict was not against the great weight of the evidence, we REVERSE the district court’s grant of JMOL and conditional grant of the m o t i o n for a new trial. We REMAND for reinstatement of the jury verdict a nd entry of judgment in favor of Cooper. I. In a § 1983 civil rights complaint against O fficer Trevino and other prison officials, Bryan Cooper alleged that Officer Trevino assaulted him, violating his Eighth Amendment right to be free from excessive punishment. Cooper testified that on December 31, 2 007, as Officer Trevino escorted Cooper to the medical department (“Medical”) to receive a d ose of his twice-daily insulin shots, Trevino bumped Cooper repeatedly against a fence as they walked. Cooper did not allege that this bumping caused him any injury. Cooper testified that o n c e they arrived at Medical, an infirmary officer directed Trevino to escort Cooper to the side so that two other inmates then inside Medical c ould be escorted o ut. Cooper testified that while Trevino was moving him out of the way o f th e o t h e r t wo inmates, Cooper gave his inmate number to an infirmary officer, a s r e quested. Then, Cooper testified, Trevino “grabbed [him] and s lammed [him] to the floor.” Cooper testified that Trevino claimed Cooper h ad jerked away from T revino’s gra s p, which C ooper denied. Next, T revino helped Cooper off the floor before placing him face-first a gainst the wall, pr e s s i n g his own body behind Cooper.

2 Case: 10-50771 Document: 00512307097 Page: 2 Date Filed: 07/15/2013No. 10-50771

Cooper testified that after Trevin o m o v e d him t oward the inner door, Trevino told Cooper he was refusing insulin (presumably due to his behavior). Cooper lay down on the floor to avoid being r emoved before receiving his insuli n shot. Trevino then got on top of Cooper, using his own body to hold C o o p e r t o t he floor, and placed his riot baton behind Cooper’s neck to hold Cooper’s head to the f

loor. C ooper testified that Officer Robert Cantu 1 held his legs while Cooper was pinned to the ground. The officers then helped Cooper to his feet, and faced him against the wall again. After that, Cooper was taken into Medical and given his insulin shot b y Nurse White before being e s corted back to his cell. Later i n the d ay, Cooper started experiencing pain. H e was taken back t o M edical, a nd then to a nearby hospital, where he was diagnosed with two fractured ribs and a dislocated elbow, which x-rays later confirmed. Trevino’s t estimony differs from Cooper’s in m a n y respects. Trevino testified that Cooper was difficult to manage on the escort to Medical and that he cal l e d o u t r a c ial epithets at T revino. Cooper tried to avoid Trevino’s grip several times, in violation o f s ecurity p rotocol. When Cooper succeeded in breaking Trevino’s grip, Trevino testified that he fol l o w e d protocol a nd faced Cooper t o the wall and told him that failure to “cut it out” would be viewed as an insulin refusal. When Cooper continued to be difficult and loud Trevino started to escort Cooper out of Medical, at which point, Cooper lay down on the ground. From there, T r e v i n o g o t on top of C ooper to restrain him, consistent with procedures. T revino t estified that he and another officer helped Cooper to his feet. Then Trevino took C ooper into Medical, where h e received his insulin shot. Trevino testified that he then took Cooper back to his cell. Cooper subsequently s u e d T e x a s D e p art m e nt o f C ri m i n al J u s tice (“TDCJ”) employe e s, alleging excessive force in violation of the Eighth Amendment and

1 Cantu w as originally nam ed as a d ef end ant. Claim s agains t him w ere d is mis s ed by the d is trict court follow ing a s um m ary jud gm ent m otion. 3 Case: 10-50771 Document: 00512307097 Page: 3 Date Filed: 07/15/2013No. 10-50771

42 U.S.C. § 1983. The district co u rt granted summary judgment as t o several TDCJ defendants. O nly the claims against Trevino procee d e d to trial. Before the case was submitted to the jury, the district court denied Trevino’s motion for JMOL. The jury found for Cooper and awarded h im $30.00 i n c o m p ensatory damages and $3,500.00 in punitive damages. Spec i f i c a l ly, the jury held that Trevino subjected Cooper to excessive punis h m e n t in violation of the Eighth Amend m ent and that Trevino was not entitled to qualified immunity. After trial, Trevino filed a renewed motion for judgment a s a matter of law and, in the alternative, a motion for a new trial. The trial court granted JMOL for Trevino and conditionally granted his alternative motion for a new trial

. C o o p er has timely appealed, seeking reinstatement of the jury verdict. He argues that the district court abused its discretion in granting Trevino’s motion for JMOL. The district court had federal question jurisdic t i o n o v er Cooper’s claim under 28 U.S.C. §§ 1 3 3 1 a nd 1343(a)(3). This court has appellate j urisdiction under 28 U.S.C. § 1291. I I. We review a district court’s ruling on a m otion for judgment as a matter of law de novo. Burch v. Coca-Cola Co. , 119 F.3d 305, 313 ( 5 t h C i r . 1 9 97). In deciding motions for judgment as a matter of law, the district court applies the standard established in Boeing Co. v. Shipman , 411 F.2d 3 65 (5th C ir. 1 969) (en banc), overruled in part on other gro u n ds , Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331, 336 (5th Cir. 1997) (en banc), and on appeal from such decisions, this court applies the same Boeing standard. Allied Bank-W., N.A. v. Stein , 996 F.2d 111, 114 (5th Cir. 1 993). The district court’s burden in granting judgment as a matter of law is heavy. Id

. Boeing directs us to: consider all of the evidence—not just that evidence which s upports the non-move r’s case—but in the light and w ith all reasonable inferences most favorable to the party o pposed t o the m otion. If the facts and inferences point so s t rongly and overwhelmingly in f avor

4 Case: 10-50771 Document: 00512307097 Page: 4 Date Filed: 07/15/2013No. 10-50771

of o ne party that the Court believes reasonable men could not arrive at a contrary verdict, granting of the motions is proper. 411 F.2d at 374. Said another way, “we view the entire trial r ecord in the light most favorable to the non-mov ant, drawing r easonable factual inferences in its favor.” Burch , 119 F .3d at 3 13. A district c ourt may not grant a Rule 50 motion “unless a party h as been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Ellis

v. Weasler Eng’g Inc ., 258 F

. 3 d 326, 337 (5th Cir. 2001). This c ourt does not weigh witness credibili t y and disregards all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sand e rs o n Plumbing Prods., Inc , 530 U.S. 13 3 , 135 (2000). This court reviews a jury’s verdict for sufficiency of the evidence by determining whether reasonable and fair-minded [jurors] in the e xercise o f i mpartial judgment might reach different conclusions

. . . . A mere scintilla is insufficient to present a question for the jury

. . . . However, it is the function o f the jury a s the traditional fin der of facts, a nd not the Court, to weigh conflicting evid e n ce and inferences, and determine the credibility of witnesses. Delano-Pyle v. Victoria Cnty., Tex ., 302 F.3d 567, 572 (5th Cir. 2002) (citation omitted). A Rule 50 m otion should not be gra n t e d unless there is no legally sufficient e videntiary basis f or a r easonable j ury to f ind for the non-moving party. Id

. The trial court h eld that Cooper’s e vidence was not sufficient, as a matter of law, to meet the burden of showing Trevino’s actions w ere outside the scope of qualified immunity. In the Fifth Circuit, a g o v e r n m ent official is entitled to q u a lif ied immunity unless all reasonable officials would have realized that the challenged conduct was proscribed b y l a w . Dudley v. Angel , 209 F.3d 460, 462 (5th Cir. 2000). Once a government official has asserted qualified i mmunity, as Trevino did here, the b urden shifts t o the plainti f f t o s h o w that qualified

5 Case: 10-50771 Document: 00512307097 Page: 5 Date Filed: 07/15/2013No. 10-50771

immunity does n ot bar recovery. 2 Salas v. Carpenter , 980 F.2d 299, 306 (5th Cir. 1992). The trial c ourt exam i n e d each aspect of the night in question, ably explaining why m ost were i nsufficient as a matter of l a w to support the verdict. We agree w ith the trial court’s analysis on all but one. We first briefly recount those with which we agree. First, C o o p e r t e s tified that Officer T r evino repeatedly bumpe d h i m i nto the fence while escorting him t o Medical. To the extent that Cooper alleges an Eighth Amendment violation from this bumping, judgment as

a matte r o f law could be properly entered in favor of T r evino, because Cooper does not complain of actionable injury from these actions. Second, Cooper testifie d that Trevino placed him against the wall, and planted his body a g a i n st C ooper’s, pressing C ooper into the wall face-first. Cooper c omplained o f no injury from being pressed against the wall. Moreover, Warden Barbosa testified that facing an inmate against a wall is consistent with policy, and done to restrain and maintain physical control over an inmate. To the extent Cooper a sserts an Eighth Amendment claim ba s e d o n Trevino pressing him against the w a l l o u t s ide of Medical, judgment as a matter o f law could be entered in favor of Trevino. Third, Cooper t estified that he l ay d o w n o n t he floor to keep the guards from r emoving him from Medical before he had received his i nsulin shot. Cooper testified that afte r he lay down, Trevino got on top of Cooper, while another

o fficer, Cantu, restrained Cooper’s l egs. C ooper testified that Trevino t old Co o p e r that his behavior amounted to an insulin r efusal. After Cooper reasserted, from

2 To d is charge this b u r d e n , a p laintif f m us t claim that d ef end ants com m itted a cons titutional violation und er current law and that d ef end ants ’ actions w e r e objectively unrea s o n a b l e i n the light of the law that w as clearly es tablis hed at the tim e of the actions
com p lained of

. Cl ub Retro LLC v . Hi l ton , 568 F. 3d 181, 194 ( 5th Cir. 2009) (internal quotation
m ark s om itted)

. Af

ter trial, the j ury rejected T revino’s d ef ens e of qualif

ied im m unity and , on ap p eal, the is s ue has been s ubs um ed into the argum ents that s traighf orw ard ly ad d r es s the
m erits

. 6 Case: 10-50771 Document: 00512307097 Page: 6 Date Filed: 07/15/2013No. 10-50771

his prone posit i o n on the ground, that h e w anted t o receive insulin, Trevino restrained Cooper’s head with his riot b aton. The trial court held, and we agree, t h at Cooper presented no evidence that Trevino was acting inconsistently with prison restraining policy when Trevino p l aced his body over C ooper’s body and
pr e s s e d his riot baton against Cooper’s neck. Cooper offered no t estimony to contradict Warden Barbos a’s testimony that inmates are not permitted to lie down while being escorted and that an inmate can be restrained against the wall

or the floor t o ensure the inmate cannot harm himself or others. Furth er, Barbosa tes t i f

i e d that an officer can use his riot baton t o restrain an inmate. Cooper o f

f e r e d n o evidence to show that it is not objectively reasonable for a correctional officer to r estrain an i nmate who lies d own. Thus, th ese actions were reasonable procedures within the scope of Trevino’s qualified immunity. Cooper, however, also c ontends that Trevi n o slammed him to the ground at some p oint during t h e e p i s o d e . Slamming a n inmate to the ground in these circumstances could be viewed by a jury a s o utside th e scope of objectively reasonable conduct that would be protected by qualif i e d i m m u nity . N ev e rtheless, the t rial court h eld that the evidence w as insufficient and too c ontradictory to support a finding that Trevino slammed Cooper to the ground. Although the issue is close, we disagree. We first exam i n e the e vidence Cooper presented. Cooper t estified that Officer Trevino grabbed him and slammed him to the floor in b etween bumping him along the f

ence and pressing him against the wall. C o o p e r testified that Trevino’s stated reason for doing s o was that Cooper j erked away from Trevino, which Cooper denied. Cooper also testified that Trevino kneed him in the side. Cooper provides evidence that c o rr ob o r at e s hi s t e s ti m o ny . Alth o ugh he was not c alled as a witness at trial, fellow inmate Cristobal Martinez’s s tatement was included in the u s e o f f o r c e report introduced into evidence. In h is statement, Martinez states that he was present at M edical and saw Trevino “slam” Cooper

7 Case: 10-50771 Document: 00512307097 Page: 7 Date Filed: 07/15/2013No. 10-50771

to the floor. 3Martinez stated that he saw Trevino knee Cooper in the stomach. The trial court he l d t hat M artinez’s assertion about Cooper being kneed in the stomach was n ot corroborated, even by Cooper. However, taking the evidence in the light most f

avorable to Cooper, as required, a f act-finder could r e a s o n ably conclude that not only does Martinez corroborate Cooper’s testimony about being slammed to the ground, b u t t h a t M a rtinez and Cooper used different terms to describe the same event when one states Trevino kneed Cooper in the side and

o n e s t ates Trevino kneed Cooper in the s tomach. The trial court dismis s e s Martinez’s statement b y insinuating that one cannot be k need in the stomach if his stomach is against the ground. However, the j u r y could reasonably have concluded that both Martinez and Cooper are referring to the middle portion of the body, or torso. What the district court interpreted a s conflicting, taken in the light most favoring the non-movant, is actually corroborating. Further, Cooper testified that the o fficers’ failure to file a discipline report is t elling. According to Cooper, when a n inmate violates procedure, the officers

are required to file a discipline report. N o suc h r eport w as filed. Cooper also offered i nto evidence the TDCJ’s “Use of Force Report” issued against T revino as

a result of hi s a c t i o n s on the night in question. B ecause h e failed to report a “Major Use of Force” against an i n mate, Trevino was put on disciplinary probation. Cooper argued that the officers’ failure indicates that either Cooper

wa s n o t violating procedure—which would call into question the p r opriety of Trevino laying on Cooper and using his riot baton to restrain his head—or that Trevino did not file a r eport abou t t h e i n c i dent to avoid scrutiny into his o wn actions.

3 How ever, Martinez als o s tated that Coop er d id not receive his ins ulin, w h i c h i s contrad icted by all other p arties to the events

. Eve n C o o p er ack now led ges that he w as ultim ately given his ins ulin. 8 Case: 10-50771 Document: 00512307097 Page: 8 Date Filed: 07/15/2013No. 10-50771

We acknowle dge that C ooper’s evidence is not perfectly c onsistent. Most damaging to his position on appeal i s his inconsistent c hronology. In his written “offender grievance,” C o o p e r states h e laid down to avoid b eing removed from Medical first, and then Trevino slammed him to the floor secon d

. B ut his testimony at trial r ecounts the events in th e opposite o rder. While this reversal of the o rder of e vents d oes not engender confidence in his tes timony, the court does not determine w i t n e s s c r edibility. The jury h ad b efore it the e vidence of Cooper’s chronological inconsistency. A re a s o n able jury could have concluded that despit e his c hronological inconsistencies, Cooper e stablished that at some point Trevino slammed Cooper to the floor, injuring his ribs and elbow. Weighing all the evidence most favorably to Cooper, as we are required to do, there is su f

f i c i e nt evidence—including Cooper’s t estimony and Martinez’s witness statement—to support a finding that Trevino u n n e c e ssarily slammed Cooper to the f

loor, injuring him. Although it is not required to support a verdict, Cooper presented evidence which would support a c onclusion that Trevino felt provoked into being rough with Cooper. Cooper and Trevino testified that Cooper

was directing racial epithets at Trevino during th e escort , a n d Trevino alleges that Cooper wa s t r y i n g t o break free of Trevino’s grip. T r evino testified that Cooper was disruptive enough t h a t T r evino took Cooper’s behavior as a n indication that he was refusing his insulin treatment. The jury could reasonably h ave determined that Trevino grew so irritated with Cooper that he slam m e d him to the ground. We do not r e-weigh the evidence to replace the jury’s verdict with our own. Although we m ight not have reached the same conclusion, the r e i s a legally sufficient basis for a reasonable jury to find for Cooper. III. Having concluded th at the trial court erred in granting JMOL, we turn to the court’s conditional grant of a new trial. See Lloyd v. Ga. Gulf Corp. , 961 F.2d

9 Case: 10-50771 Document: 00512307097 Page: 9 Date Filed: 07/15/2013No. 10-50771

1 1 9 0, 1196 (5th C ir. 1992) (“Because we have decided to reverse the [distri c t court's grant o f judgment as a matter of law], we must also address the merits of the district c o u r t ’ s d ecision to grant a conditional new trial.”). Although the standard for granting a new trial is less stringent than the standard for granting JMOL, Keeler v. Richards Mfg. Co. , 817 F.2d 1197, 1200 (5 th Cir. 1987), and review is for abuse of discretion, Smith v. T ransworld Drilling Co. , 773 F .2d 610, 613 (5th Cir. 1985), we exercise “particularly close scrutiny” over a district court’s grant of a new trial on evidentiary grounds i n order “to protect the litigants’ right to a jury t r i a l , ” Shows v. Jamison Bedding, I nc. , 671 F.2d 927, 930 (5th Cir. 1982). “[T]o prevent the trial judge from s imply s u b s t it u ting h is judgment for that of the jury,

. . . new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not m e r e l y the greater—weight of the e vidence.” Id. Where, as here, the issu e s are few and uncomplicated, the c ase hinges on the w eight given to conflicting testimony, and the evidence is not unfairly prejudicial, “our deference to the jury is reinforced by

our confidence in its ability to understand the i s sues, to evaluate credibility and sort throu gh c o nf

licting testimony, and to act r easonably a nd fairly in the absence of prejudicial influences.” Id. at 931. Viewing the evidence i n th i s context, we conclude that th e jury’s verdict was not against the great weight of the evidence, and that a new trial should not have been granted. IV. Finally, we review de novo the district court’s judgments as a matter of law that “[t]he evidence, taken as a whole, does n o t show that Trevino’s actions were

so shocking and offensive t o support a punitive damages a ward,” Gonza lez v. Fresenius Med. Care N. A m. , 689 F.3d 4 7 0 , 4 7 4 ( 5th Cir. 2012), and that the $3,500 punitive damages a ward rendered by the jury w a s “excessive under prevailing standards,” Cooper Indus., Inc. v . Leatherman Tool Grp. , 532 U.S. 424, 436 (2001).

10 Case: 10-50771 Document: 00512307097 Page: 10 Date Filed: 07/15/2013No. 10-50771

As we have previously observed, when a jury f inds con s t itutionally excessive force in violation of the E i gh t h Amendment, it makes “the threshold f i n d i n g of ‘evil intent’ or ‘callous indifference’ needed to warrant punitive damages, because the threshold standard for excessive-force liability—that the force was applied ‘maliciou s l y a n d sadistically for the v ery purpose of causing harm’—is substantially indistinguishable f r o m the threshold standard for punitive damages.” Jones v. Conner , 2 3 3 F .3d 574, at *1 ( 5th Cir. 2000) (per curiam) (unpublished disposition) (citin g S m i th v. Wade , 462 U.S. 3 2 (1983)). The court’s instructions t o the j ury reflect that congruity: the court i n structed that (1) to prove an Eighth Amendment excessive-force violation, the j ury must find that Trevino “used force against [Cooper] maliciousl y a n d sadistically f or the very purpose of causing plaintiff harm,” and (2) to award punitive damages, the j ury must find that Trevino “acted with malice.” Given our earlier conclusion that the evidence was s ufficient as a matter o f law to support the jury’s finding of Eighth Amendment excessive

- f o r c e liability, it follows that the jury had the discretion to award punitive damages. Smith , 462 U.S. at 51–52. We next assess whether the $3,500 punitive damages a ward is constitutionally e xcessive. Under the framework outlined in BMW of N

. Am., Inc.

v. Gore , 517 U .S. 559 (1996), a punitive d amages award violates due process if it is “grossly excessive,” such that “it furthers n o legitimate purpose and constitutes

an arbitrary depriv ati o n o f property.” State Farm Mut. Auto. Ins. Co. v. Campbell , 538 U.S. 408, 417 (2003). The considerations i nformin g o u r inquiry are the degree of reprehensibility of the defendant’s c onduct, the relationship between the h arm inflicted and the amount of punitive damages awarded, and the existence and extent of sanctions f or comparable misconduct. Gore , 5 17 U.S. at 575–85. The first Gore factor—the degr e e of r eprehensibility of the d efendant’s conduct—is “the mo st important indicium of the reasonableness of a punitive

11 Case: 10-50771 Document: 00512307097 Page: 11 Date Filed: 07/15/2013No. 10-50771

damages award.” 517 U.S. at 575. To determine the degree to which conduct is reprehensible, the Supreme Court has instructed us to consider whether (1) the harm was physical or merely economic, ( 2 ) t h e conduct evinced a reckless disregard of the h ealth o r safety of others, (3) the target was vulnerable, (4) the conduct involved repeated actions or was a n i s olated incident, and ( 5) the harm

was th e result o f intentional malice, trickery, or d e ceit. State Farm , 538 U.S. at 417–29. Viewed in the light most favorable to the verdict, s ee Lincol n v . Ca s e , 340 F.3d 283, 293 (5th Ci r . 2 0 0 3 ) ; Payne v. Jones , 711 F.3d 85, 99 n.10 (2d Cir. 2013), Trevino’s actions implicate four of the five enumerated aggravating factors: C ooper’s ribs were fractured and his elbow was dislocated; as a prisoner in Trevino’s custody, C ooper was a vulnerable victim; as the jury found, Trevino applied force “maliciously a nd sadistically for the very p urpose o f causing harm”; and after the incident, Trevino returned Cooper directly to h is c e ll without seekin g medical treatment, and did not file a use-of-force report. See Kunz v. DeFelice , 538 F.3d 667, 679 (7th Cir. 2008) (finding conduct highly reprehensible in part because the defendant officer intentionally inflicted physical i n juries on

a vulnerable arrestee in his custody); Bogle v. McClure , 332 F.3d 1347, 1 361 (11th Cir. 2003) (finding conduct highly reprehensible in part beca u s e i t w as accompanied by efforts to cover it up); Gregory v. Shelby Cnty., Tenn. , 220 F.3d 433, 445 (6th C ir. 2000) (finding conduct highly reprehensible in part b ecause the defendant officer “knew the beating occurred and l e t [the plaintiff] suffer through the night with his injuries”). On the other hand, there were m itigating factors: this was an isolated incident, it was brief in duration, and Cooper had some role in p r e c i p i tating it. See P ayne , 711 F.3d at 101 (noting that officer’s conduct, though reprehensible, “was provoked” and “lasted at most 3 0 seconds”). In light of the competing aggravating and mitigating considerations, the first Gore factor is inconclusive.

12 Case: 10-50771 Document: 00512307097 Page: 12 Date Filed: 07/15/2013No. 10-50771

The probative value of the second Gore factor—th e r e l a t ionship between the harm and the punitive damages award—depends upon the character of the underlying inju r y and amount of the compensatory damages award. “When compensatory damages are substantial ” and the m onetary value of the harm is easily calculated, “an award of more than four times the amount of compensatory damages might be close to the line of constitutional i m propriety . ” St a te Farm , 538 U.S. at 425–26. By contrast, “low awards of c ompensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in onl y a s m all amount o f economic damages.” Gore , 517 U.S. at 582; see also William s v. Kaufman Cnty. , 352 F.3d 994, 1016 ( 5th C ir. 2003) (“Because actions seeking vindication of constitutional

r i gh t s are more likely t o result only i n nominal d amages, s trict proportionality would defeat the ability t o award punitive d amages at all.”); Lee v. Edwards , 101 F.3d 805, 811 (2d Cir. 1996) ( “ I n Gore , a 500 to 1 ratio was ‘breathtaking.’ However, in a § 1983 case i n which the compensatory damages are nominal, a much h igher ratio can be contemplated while maintaining normal respiration.”). Here, the jury awarded o nly $30 in compensatory damages because, as Warden Barbosa testified, prisoners pay a $3 c o-pay for visits t o the medical department but are not otherwise charged for medical services rendered. Thus, beca u s e Cooper’s economic damages are minimal and do not re f lect the s everity of the harm h e suffered, t h e s e c o n d Gore factor “tells us little o f value in this case to help answer the question whether the punitive award was excessive.” P ayne , 711 F.3d at 103; s ee also Williams , 352 F.3d at 1016 (emphasizing that “any punitive damages-to-compensatory damages ‘ratio analysis’ cannot be applied effectively in cases wher e n ominal damages have b een awarded”) (emphasis omitted); L i n c o l n , 340 F .3d at 294 (affirming punitive damages award, despite a 2000:1 ratio, b ecause “ [a] high ratio o f p u n i t ives to compensatory damages is far less troubling in cases such as this one” involving minimal compensatory damages).

13 Case: 10-50771 Document: 00512307097 Page: 13 Date Filed: 07/15/2013No. 10-50771

The third Gore factor is the existence and extent of state civil a nd criminal

s anctions for comparable misconduct. If a state punishes c omparable misconduct with minor civil p enalties, then a much larger punitive damages award may be constitutionally excessive. G o r e , 517 U.S. at 5 83–85. If, on the other hand, the punitive damages award is commensurate with civil and criminal sanctions for comparable misconduct, it i s more likely t o fall within constitutional limits. See Kunz , 538 F.3d at 679–80. Under Texas la w , a s s a u l t with the i ntent to cause bodily injury t o another is a Class A m isdemeanor punishable by a criminal fine of up to $4,000 and up to one year of imprisonment

. Se e T E X

. P E NA L C O D E §§ 22.01(a)(1), 12.21. Although this sanction is commensur ate with the $3,500 punitive damages a ward—a relevant consideration—the eq u i valence is less probative than it otherwise would be because it is criminal, not civil, i n nature. Compare Abner v. Kansas City S. R.R. Co . , 5 1 3 F.3d 154, 164 ( 5th Cir. 2008) (finding dispositive that the punitive damages award f ell within a civil statutory punitive damages cap), w ith State Farm , 538 U.S. at 428 (explaining that although “the existe n ce of a criminal penalty does have bearing on the seriousness with which a State views the wrongful action,” it is of “ l e s s u t i l ity” in d e termining the dollar amount of the a ward), and Payne , 711 F.3d at 103 (“The fa c t t h a t New York classes [the defendant]’s conduct as warranting criminal prosecution tends to c onfirm the appropriateness of the imposition of a punitive award. However, it tells little about the a p p r o p r iateness of the a mount of the award.”). Examined t o gether, none o f the th r e e Gore factors weighs strongly for o r against finding the punitive damages award constitutionally excessive. Cooper’s injury was p hysical and serious, but n o t l i f e-threatening; the jury found that T r e v i n o ’s conduct w as malicious, b ut it was not unprovoked; the ratio betwe e n the harm to Cooper a nd the p u n i t i v e d amages awarded is high, but not unreasonably so in light o f the minimal economic damages; and the $3,500 award

14 Case: 10-50771 Document: 00512307097 Page: 14 Date Filed: 07/15/2013No. 10-50771

is at the high end of, but not out of proportion to, the Texas criminal sanction for comparable m isconduct. With the Gore factors in equipoise, we look to punitive damages rulings in f

actually similar cases. See Williams , 352 F.3d at 1 016 n.78 (surveying punitiv e d a m a ges awards in strip-search cases from other circuits); Payne , 711 F.3d at 104 (“Courts h ave often found it helpful in deciding whether

a particular p uni t i v e a w ard is excessive t o compare it to court rulings on the same question in other cases.”). Of the “r elati vely few other cases addressing the amount o f punitive damages awarded in the c ontext of c ivil rights actio ns,” Williams , 352 F.3d at 1 0 1 6 n . 7 8 , a n d th e still-smaller subset of excessive-force cases, w e find instru c tiv e the recent and factually similar Payne decision. Th e underlying assault in Payne , which the court f

ound “reprehensible” but not to an u nusually high degree, had aggravating and m itigating f a c t o r s : o n th e o n e h a nd, the o fficer verbally provoked the attack by taunting the arrestee, the arrestee w as mentally ill, a nd the officer had a history of excessive force violations; on the other hand, the attack “lasted

a t m o st 30 seconds, did not involve use of a w eapon, and did not cause an y serious physical injuries.” 711 F.3d at 101. The s econd and third Gore factors, the

c o u rt determined, were also inconclusive. Id. at 102–04. The court th e n conducted an e x h a u s tive s urvey of punitive d a mages awards in excessive-force
cases, noting that it had upheld awards as high as $175,000 and remitted awards

as low as $75,000 under similar circumstances. Id. at 104–06. Using precedent and the Gore factors as guideposts, the court concluded that “the h ighest level of punitive damages that can pro p e r l y be s ustained [under the circumstances] is $100,000.” Id. at 106. Our own decision in Williams , though it did not involve e xcessive force o r physical inj u r y , i s similarly instructive. In upholding a $15,000 punitive damages award for an unlawful strip sear c h , we opined that in cases involving only n on-economic damages, a $10,000 p unitive damag e s a w ard is the lowest

15 Case: 10-50771 Document: 00512307097 Page: 15 Date Filed: 07/15/2013No. 10-50771

award that “approaches the li m i t s of what w e would deem consistent with constitutional cons t r a i n t s . ” 352 F .3d at 1 016 n.78 (quoting Provost v. City of Newburgh , 262 F .3d 146, 164 (2d Cir. 2001)). Consistent with that estimation, Trevino d oes not identify, nor could w e find, a case in which a court u n der similar factual circumstances found co n s titutio n ally e xc e s s ive a punitive damages award as low as $3,500. Taking i nto consideration all of the foregoing factors, we conclude that the $3,500 punitive damages award is not constitut i o n a lly excessive. Although we might have awarded no p unitive damages in s o c lose a case, or s ettled on a different amount, we cannot say that the jury’s award “furthers no legitimate
purpose and constitutes an arbitrary deprivation o f property.” State F arm , 538 U.S. at 417. V

. For the foregoing reasons, w e r e verse the JMOL and the conditional grant of a new trial and reinstate the jury verdict. The case is remanded to the district court for the entry of judgment in favor of Cooper. REVERSED and REMANDED for entry of judgment.

16 Case: 10-50771 Document: 00512307097 Page: 16 Date Filed: 07/15/2013No. 10-50771

E. GRADY JOLLY, Circuit Judge, dissenting: I respectfully dissent. I would affirm t h e d i s t rict court’s JMOL setting aside the j ury verdict. Furthermore, I respectfully dissent from the affirmance of punitive damages. There is nothing more here than, at most an e xcessive force violation of the Eighth Amend m e n t

. There is no evidence to support punitive damages beyond the evidence that supports the bare Eighth Amendment claim. Finally, I respectfully dissent from the affirmance of an award 117 times greater than actual damages.

17 Case: 10-50771 Document: 00512307097 Page: 17 Date Filed: 07/15/2013