United States Court of Appeals

For the Eighth Circuit

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No. 10-3863

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Arthur E. Taylor, Jr.

lllllllllllllllllllll Plaintiff - Appellant

v.

Dave Dormire, in his individual and official capacity; Walter Friesen, 3rd Shift

Sergeant, in his individual and official capacity; Chad Hovis, 2nd Shift Sergeant,

in his individual and official capacity

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: April 19, 2012

 Filed: September 4, 2012

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Before WOLLMAN, BYE, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Arthur E. Taylor, Jr. sued Missouri prison officials under 42 U.S.C. § 1983

for refusing to feed him for several days while he was restrained. A jury returned

a verdict for the prison officials, which Taylor appeals. Jurisdiction being proper

under 28 U.S.C. § 1291, this court reverses and remands.
I.

Taylor was a prisoner at the Jefferson City Correctional Center, a maximum

security prison. According to Department of Corrections Policy, if a prisoner

becomes concerned about potential violence within the cell, a prisoner may declare

the cellmate an “enemy” and be removed from the cell. Prison officialsthen place the

removed prisoner on a restraint bench until a compatible cellmate is found, an

individual cell becomes available, orthe prisoner decides to return to the original cell. 

Policy providesthat prisoners cannot be fed unlessthey are in a cell. The Policy does

allow bathroom breaks and small amounts of water and also has an exception for

medical necessity.

After an alleged argument on the evening of Friday, September 9, 2005, Taylor

declared his cellmate an enemy and was removed from the cell. Prison officials

shackled him to a metal restraint bench. Several other prisoners used the same

procedure simultaneously, and still others were flooding their cells by tampering with

the sprinklers. On Sunday, September 11, Taylor was placed in a cell with a new

cellmate. Taylor did not eat the offered breakfast or lunch because he was sleeping. 

He had been unable to sleep the previous two days while sitting upright on the

restraint bench. Later that day, after another alleged argument, Taylor declared his

new cellmate an enemy and was returned to the bench. At all points, Taylor refused

to return to a cell with either cellmate. Taylor remained on the bench or a metal stool

until the evening of Wednesday, September 14. During that time, prison officials,

following the Policy, did not feed Taylor. Taylor described having stomach pains,

lightheadedness, and headaches as well as feeling weak. He first ate again on the

morning of Thursday, September 15, after missing about twelve meals. 

Taylor sued prison officials alleging violations of his Eighth and Fourteenth

Amendment rights. His case proceeded to trial. Taylor’s counsel requested an

excessive force instruction, which the district court gave. Taylor’s counsel also

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requested a nominal damages instruction, which the district court refused to give. 

The jury returned a verdict for the prison officials, finding “Ø” damages for Taylor.

II. 

Both before and during trial, Taylor’s trial counsel requested a nominal

damagesinstruction. A nominal damagesinstruction is appropriate in excessive force

cases where there is evidence that the force, despite being excessive, did not cause

a significant injury. Foulk v. Charrier, 262 F.3d 687, 701 (8th Cir. 2001). A party

is entitled to an instruction on its theory of the case if it is legally correct and there

are facts to support it. Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008). This

court reviews jury instructions for abuse of discretion and reverses a jury verdict

when the failure to give a requested instruction misled the jury or had a probable

effect on the verdict. See Friedman & Friedman, Ltd. v. Time McCandless, Inc.,

606 F.3d 494, 500 (8th Cir. 2010). 

The district court erred in not submitting the instruction to the jury. “We

believe the jury is required to award nominal damages once it has found cruel and

unusual punishment if it has not been able to convert into dollars the injury and pain

a plaintiff has suffered.” Cowans v. Wyrick, 862 F.2d 697, 699 (8th Cir. 1988)

(emphasis added); accord Foulk v. Charrier, 262 F.3d 687, 701 (8th Cir. 2001). This

view is consistent with the Eighth Circuit Model Jury Instruction for nominal

damages, upon which Taylor based his proposed instruction. This instruction directs

the jury that if it finds in favor of a plaintiff but finds that the damages have no

monetary value, the jury “must return a verdict for the plaintiff in the nominal amount

of One Dollar ($1.00).” Eighth Circuit Model Jury Instruction 4.50B (West 2008

& 2011). The Committee Comments to this Instruction also state that “nominal

damages must still be submitted in Eighth Amendment cases if requested.” Id. 

Moreover, the Notes on Use accompanying the Excessive Force Instruction that the

district court used here state: “Nominal damages will also have to be submitted under

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Cowans.” Eighth Circuit Model Jury Instruction 4.30, note 7 (West 2008 & 2011)

(emphasis added). 

The prison officials argue the error in not submitting the nominal damages

instruction to the jury was harmless because the jury found in their favor. The

government has the burden of proving harmless error. United States v. Pirani, 406

F.3d 543, 550 (8th Cir. 2005) (en banc). Under the instruction the district court gave,

damages are a required element of a verdict in favor of Taylor. See Eighth Circuit

Model Jury Instruction 4.30 (West 2008 & 2011) (listing damages as the third

element of the claim and stating that: “If any of the above elements has not been

proved, then your verdict must be for the defendant.”); see also, e.g., Lee v.

Anderson, 616 F.3d 803 (8th Cir. 2010) (using same elements of excessive force

instruction). That is, if the jury analyzed this element first and found no damages, it

could not find excessive force. The instructions defined damages as including:

[t]he physical pain and emotional suffering the plaintiff has experienced

and is reasonably certain to experience in the future; the nature and

extent of the injury; whether the injury is temporary or permanent and

whether any resulting disability is partial or total and any aggravation of

a pre-existing condition.

None of the instructions mentioned nominal damages. The damages instruction also

stated: “Remember, throughout your deliberations you must not engage in any

speculations, guess, or conjecture and you must not award any damages under this

Instruction by way of punishment or through sympathy.” In the absence of a nominal

damages instruction, the instructions misled the jury.

The prison officialsrely on Holloway v. Alexander, 957 F.2d 529, 531 (8th Cir.

1992) to argue the error was harmless. The Holloway court did find that a failure to

instruct on nominal damages was harmless because “the jury did not consider

damages . . . .” In this case, although the jury found for the defendants, it also wrote

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“Ø” in the space for damages on the verdict form. This shows that the jury

considered the damages issue and found that Taylor had no damages under the

instructions given. The lack of a nominal damages instruction had a probable effect

on this verdict. 

The district court abused its discretion in not submitting the requested nominal

damages instruction to the jury.1

*******

The judgment of the district court is reversed, and the case remanded for

further proceedings consistent with this opinion.

BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the majority's conclusion to reverse and remand for a new trial

because the district court failed to provide a jury instruction on nominal damages. I

believe the district court also erred when it did not provide a deliberate indifference

instruction, affecting Taylor's substantial rights and amounting to a miscarriage of

justice. Unlike the majority, I think the district court will once again confront the

Taylor also seeks (plain error) review of the district court’s failure to 1

give—after his failure to request—a jury instruction on deliberate indifference. This

court need not address that issue because Taylor can request a deliberate indifference

instruction if the issue arises again on remand in light of evidence at the retrial. See

Qualley v. Clo-Tex Int’l, Inc., 212 F.3d 1123, 1132 n.18 (8th Cir. 2000) (“In light of

our decision to remand the case, we decline to address whether a jury instruction on

the doctrine of in pari delicto should be given in the new trial – that determination

must be made in light of all of the admissible evidence submitted to the district court

on retrial.”).

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question of the proper jury instructions regarding Taylor's Eighth Amendment claim

during his new trial. I therefore respectfully dissent from the majority's decision not

to consider the matter, and I address it in this separate opinion.

The majority believes we need not consider the deliberate indifference

instruction matter because Taylor can request such an instruction if the issue arises

again on remand. If the district court declines to provide the instruction and Taylor

appeals that issue, we will revisit the matter at that time. However, we are not

required to overlook matters that are likely to recur on remand, and in fact, we have

engaged them on many occasions. See United States v. Ochoa-Gonzalez, 598 F.3d

1033, 1038 (8th Cir. 2010); Wheeling Pittsburgh Steel Corp. v. Beelman River

Terminals, Inc., 254 F.3d 706, 719 (8th Cir. 2001); Minn. v. Kalman W. Abrams

Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998); United States v. Graham, 60 F.3d

463, 467 (8th Cir. 1995); Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 641 (1993);

Ouachita Nat'l Bank v. Tosco Corp., 686 F.2d 1291, 1299 (8th Cir. 1982), rev'd en

banc on other grounds, 716 F.2d 485 (1983). When "allegations of error concern

actions of the district court that are likely to be repeated upon remand," we may

consider those matters "in the interests of judicial economy." Ouachita Nat'l Bank,

686 F.2d at 1299. This case fits the mold. It therefore works no departure from our

custom to address the deliberate indifference matter, and I do so below.

As the majority correctly notes, Taylor requested and received a jury

instruction on excessive force, but did not request an instruction on deliberate

indifference. When a party does not request an instruction at trial, we review the

district court'sfailure to give that instruction for plain error. Webber v. Strippit, Inc.,

186 F.3d 907, 915 (8th Cir. 1999). To show plain error, Taylor must demonstrate:

(1) there is an error; (2) the error is clear or obvious, rather than subject

to reasonable dispute; (3) the error affected the appellant’s substantial

rights, which in the ordinary case means it affected the outcome of the

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district court proceedings; and (4) the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (citations, brackets, and

internal quotation marks omitted); see also Moore v. Am. Family Mut. Ins. Co., 576

F.3d 781, 786 (8th Cir. 2009) (internal citation, quotation marks, and alterations

omitted) ("[W]e may grant plain error relief when instructional error is plain, affects

a party's substantial rights, and seriously affected the fairness, integrity, or public

reputation of judicial proceedings[.]").

The Eighth Amendment prohibits cruel and unusual punishment of a person

convicted of a crime. U.S. Const. amend. VIII. "[T]he unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual punishment forbidden by the

Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986)(internal quotation

marks and citations omitted). This wantonness does not have a fixed meaning. 

Instead, it is determined with "due regard for differences in the kind of conduct

against which an Eighth Amendment objection is lodged." Id. at 320. To

demonstrate such wantonness in the context of a claim challenging a condition of a

prisoner's confinement, a plaintiff must show two things. First, the plaintiff must

make an "objective" showing that the deprivation imposed by the condition was

"sufficiently serious" to form the basis for an Eighth Amendment claim. Wilson v.

Seiter, 501 U.S. 294, 298 (1991). Second, the plaintiff must make a "subjective"

showing that prison officials "acted with a sufficiently culpable state of mind." Id.

The deprivation imposed by the condition of Taylor's confinement was

"sufficiently serious" to satisfy the objective component of the Eighth Amendment

inquiry. To be sufficiently serious, "a prison official's act or omission must result in

the denial of'the minimal civilized measure oflife’s necessities.'" Farmer v. Brennan,

511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). 

"[P]rison officials must ensure that inmates receive adequate food, clothing, shelter,

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and medical care, and must 'take reasonable measures to guarantee the safety of the

inmates.'" Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)). We have previously held the denial of four consecutive meals in a 36-hour

period fell below that minimal measure. Simmons v. Cook, 154 F.3d 805, 808 (8th

Cir. 1998). And the Supreme Court has agreed with the Eleventh Circuit's conclusion

shackling a prisoner to a hitching post for seven hours without food or bathroom

breaks, and with only minimal water, was likewise inadequate. See Hope v. Pelzer,

536 U.S. 730, 738 (2002). The facts in Taylor’s case are no less serious. With one

brief intermission during a six-day period, Taylor remained shackled in an upright

position to a metal restraint bench or stool and was denied food. The deprivation

imposed upon Taylor plainly meets the objective component of the Eighth

Amendment inquiry.

The "subjective" requirement ofthe Eighth Amendment inquiry depends on the

nature of the constitutional violation the plaintiff alleges. When the plaintiff alleges

prison officials used excessive physical force, we inquire whether the force was

applied in a good-faith effort to maintain or restore discipline, or used maliciously

and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1,

6-7 (1992); Whitley, 475 U.S. at 320-21. The "malicious and sadistic" standard

applies when prison officials act in response to a prison disturbance. Hudson, 503

U.S. at 6; Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009) (en banc). 

We employ this standard because in a disturbance, prison officials must balance the

threat the disturbance poses to prison employees, inmates, and others, against the

harm that may result from the use of force. A disturbance also requires corrections

officersto act "in haste, under pressure, and frequently without the luxury of a second

chance." Whitley, 475 U.S. at 320. The "malicious and sadistic" standard reflects the

deference we give to prison officials who respond to an emergency.

But when exigent circumstances are not present, neither are the competing

concerns of preserving safety while preventing the harm that follows from the use of

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force. The state's responsibility to provide inmates with adequate food, clothing,

shelter, and medical care is not balanced against the competing penological objective

of remedying an unsafe situation. As a result, the subjective requirement of the

Eighth Amendment inquiry becomesless exacting. In such a prison-conditions case,

the plaintiff must allege prison officials acted with "deliberate indifference" to the

inmate's health orsafety. Wilson, 501 U.S. at 303; Nelson, 583 F.3d at 528. A prison

official is "deliberately indifferent" if he orshe "knows of and disregards an excessive

risk to inmate health or safety." Farmer, 511 U.S. at 837. This knowledge

requirement exists because "prison officials who lacked knowledge of a risk cannot

be said to have inflicted punishment." Id. at 844.

Determining the applicable standard, and whether that standard is met, "will

depend upon how the incident . . . is characterized–whether it was a security measure

taken to quell a disturbance or merely punishment." Stenzel v. Ellis, 916 F.2d 423,

426 (8th Cir. 1990). If prison officials' actions are characterized as a response to a

disturbance, the "malicious and sadistic" standard will apply. If, on the other hand,

they are characterized as merely punishment, the "deliberate indifference" standard

will apply.

The prison officials characterize Taylor's shackling and denial of food as part

of a response to an inmate-led disturbance. Taylor was one of twenty-six inmates

who declared their respective cellmate their enemy in a period of two-to-three hours,

and inmates attempted to flood their cells by breaking the sprinkler heads located

inside them. Appellee's Br. 9-10. Because shackling Taylor to the restraint bench

took place as part of an effort to deal with that disturbance, they say, their state of

mind should be measured by the "malicious and sadistic" standard.

It is not altogether clear there was a significant disturbance requiring

emergency action, and if there wassuch a disturbance, when it ended. But even if the

shackling did arise out of an organized effort to agitate, it is highly doubtful—so

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much so that the prison officials do not argue—the disturbance continued for the full

six days during which Taylor was shackled without food. Once prison officials had

contained the alleged disturbance and the inmates no longer presented further danger

to prison staff, the public, or each other, prison officials were no longer required to

make split-second decisions. At that time, the state-of-mind required to show an

Eighth Amendment violation was deliberate indifference. See DeSpain v. Uphoff,

264 F.3d 965, 976 (10th Cir. 2001) (applying the "deliberate indifference" standard

once the threat to safety during an inmate-led prison flood had ended); Johnson v.

Lewis, 217 F.3d 726, 734 (9th Cir. 2000) (concluding the heightened Whitley

standard applied during a prison riot, but the deliberate indifference standard

governed prison officials' conduct once inmates were prone and handcuffed in a

prison yard). Indeed, the Supreme Court said as much in Hope, when it concluded

because "[a]ny safety concerns had long since abated by the time petitioner was

handcuffed to the hitching post," prison officials had acted with deliberate

indifference to the inmate's health and safety. 536 U.S. at 738. 2

What is more, Taylor's claim is not limited to excessive use of force. Taylor's

pleading included the condition of confinement claim and specifically mentioned

deprivation of food. Pl.'s Am. Compl. 10. The district court recognized as much. 

Summ. J. Order 6 ("[I]t is not at all clear from the evidence why plaintiff could not

have been provided a minimally nutritious diet while restrained."). "[A] party is

entitled to an instruction on its theory of the case so long as it is legally correct and

there isfactual evidence to support it." Farmland Indus. Inc. v. Morrison-Quirk Grain

Corp., 987 F.2d 1335, 1341 (8th Cir. 1993). And it is not open to question the

deliberate indifference standard applies to denial-of-food claims. Farmer, 511 U.S.

The prison officials cite Key v. McKinney, 176 F.3d 1083 (8th Cir. 1999) for

2

the proposition the "malicious and sadistic" standard governs prison disturbances. 

In fact, we had no occasion to consider the applicability of the "malicious and

sadistic" standard because the parties agreed the "deliberate indifference" standard

was appropriately applied in that case. Id. at 1086.

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at 832; Butler, 465 F.3d at 345-46. In light of the pleadings, the summary judgment

order, and the law, it cannot reasonably be disputed the deliberate indifference

standard should have been applied to Taylor's case and Taylor was entitled to have

the jury instructed on that standard. Therefore, because the district court did not

provide a required instruction in the face of incontrovertible law, the district court

committed (1) error that is (2) clear and obvious.

Taylor must also show the error "affected [his] substantial rights, which in the

ordinary case means it affected the outcome of the district court proceedings."

Marcus, 130 S. Ct. at 2164. An error is prejudicial if there is "'a reasonable

probability that, but for [the error claimed], the result of the proceeding would have

been different.'" United States v. Kent, 531 F.3d 642, 656 (8th Cir. 2008) (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).

Consider the two possible instructions. First, the instruction given at trial:

Your verdict must be for the plaintiff and against defendant Dave

Dormire if all the following elements have been proved:

First, the defendant caused or permitted Arthur Taylor to be held

on a restraint bench, without food, for multiple days, and

Second, the use of such force was excessive and applied

maliciously and sadistically for the very purpose of causing harm,

and not in a good faith effort to achieve a legitimate purpose; and

Third, as a direct result, the plaintiff was damaged.

In determining whether the force was excessive, you must consider such

factors as the need for the application of force, the relationship between

the need and the amount of force that was used, and the extent of the

injury inflicted, and whether the force was used to achieve a legitimate

purpose or wantonly for the very purpose of causing harm. 

“Maliciously” means intentionally injuring another without just cause

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or reason. “Sadistically” means engaging in extreme or excessive

cruelty or delighting in cruelty.

If any of the above elements has not been proved, then your verdict must

be for the defendant Dave Dormire.

Appellant's App. 177. Compare this instruction to the model Eighth Circuit jury

instruction on deliberate indifference.

Deliberate indifference is established only if there is actual knowledge

of a substantial risk that the plaintiff (describe serious medical problem

or other serious harm that the defendant is expected to prevent) and if

the defendant disregards that risk by intentionally refusing or

intentionally failing to take reasonable measures to deal with the

problem. Mere negligence orinadvertence does not constitute deliberate

indifference.

Eighth Circuit Manual of Model Jury Instructions (Civil) § 4.44 (2012). The

instructions require significantly different levels of culpability. By not providing a

deliberate indifference instruction, the district court led the jury to believe Taylor had

to show the prison officials denied him food maliciously and sadistically for the very

purpose of causing harm. In fact, the jury could have found for Taylor upon a

showing the prison officials were deliberately indifferent to his need to eat during the

time he was shackled. Given the facts of the case, I believe it is reasonably probable

the jury would have concluded differently had Taylor received the deliberate

indifference instruction.

This is especially so given the prison officials were following Department of

Corrections Policy in not providing Taylor food. The jury may have concluded

because the prison officials were simply carrying out the Policy, they were not

injuring Taylor without just cause or reason, engaging in extreme or excessive

cruelty, or delighting in cruelty–in other words, not acting maliciously and

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sadistically. Nevertheless, the jury could reasonably have found the prison officials

knew of the significant risk to Taylor's health that followed fromnot feeding him, and

disregarded thatrisk by adhering to the Policy. Therefore, I believe Taylor has shown

the error omitting the instruction affected his substantial rights.

Finally, Taylor must show "the error seriously affects the fairness, integrity or

public reputation of judicial proceedings." Marcus, 130 S. Ct. at 2164. "Jury

instructions must fairly and adequately state the law, but 'we will not find error in

instructions simply because they are technically imperfect or are not a model of

clarity.'" Quigley v. Winter, 598 F.3d 938, 950 (8th Cir. 2010) (quoting Hastings v.

Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992)). In close factual

situations, "the standard of care and burden of proof have heightened importance and

can easily affect the jury's ultimate verdict." Wheeling Pittsburgh Steel, 254 F.3d at

714; see also United States v. Herron, 97 F.3d 234, 238 (8th Cir. 1996) (internal

citation and quotation marks omitted) ("[B]ecause it is unclear whether a properly

instructed jury would have found [the defendant] guilty . . . failure to correct the

district court's error could result in a miscarriage of justice and would seriously affect

the fairness, integrity, or public reputation of judicial proceedings.").

Here, the jury was not instructed on the proper framework for analyzing and

remedying the alleged constitutional violation. Permitting the verdict to stand when

the jury may have found differently if given the required information would be a

miscarriage of justice.

In sum, Taylor has satisfied the standard for plain error, and I would reverse

the judgment of the district court on this basis. I concur in the majority's conclusion

to reverse on the nominal damages instruction matter, and respectfully dissent from

the majority's decision not to address the deliberate indifference instruction matter.

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