United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________________ Nos. 97-1505EA, 97-1509EA

________________________

_____________ * * No. 97-1505EA *

_____________ * * Laura Berry, * * Appellant, * * v. * * Jay L. Oswalt; Jay Blankenship; * Warden Virginia W. Wallace; * Larry Norris, Director; D.D. Cook; * Katherine Green; Kevin Murphy; * On Appeal from the C.O.-1 Wright; C.O.-1 R. Reed; and * United States District Court Arkansas Department of Correction, * for the Eastern District * of Arkansas. Appellees. *

_____________ * * No. 97-1509EA *

_____________ * * Laura Berry, * * Appellee, * * v. * * Randall K. Reed, * * Appellant. *The Hon. Richard S. Arnold stepped down as Chief Judge of the United States 1 Court of Appeals for the Eighth Circ uit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II. The Hon. Howard F. Sachs, United States District Judge for the Wester n 2 District of Missouri, sitting by designation. Berry also sued other ADC employees for conduct rel ated to the alleged assault 3 by Oswalt, but does not appeal the disposition of their cases. -2- ___________ Submitted: January 15, 1998 Filed: May 8, 1998

___________ Befor e RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD , 1 Circuit Judge, and SACHS, District Judge. 2

___________ RICHARD S. ARNOLD, Chief Judge. Laura Berry is an inmate at the Tucker Women’ s Unit (“Tucker”) of the Arkansas Department of Corrections (ADC). She alleged rape by Jay Oswalt, a correctio nal officer at Tucker, and sued him for violation of h er constitutional rights under 42 U.S.C. § 1983 (1994), and for the tort of outrage u nder Arkansas law. She also sued Virginia Wallace, the warden of Tucker, and Larry Norris, t he director of the ADC, for Oswalt’s conduct. 3 Further, she alleged that she had been sexually harassed by Randall Reed, also a correctional officer at Tucker, and sued him for violation of her constitutional rights and for the tort of outrage. The District Court granted summary judgment for Wallace and Norris. In a jury trial, Berry prevailed against Oswalt and Reed. Again st each defendant, the jury award ed separate damages for violation of Berry’s constitutional rights and the tort of outrage, as well as punitive damages. The-3-

Court elim inated the awards for outrage, finding them to be duplicative of the § 198 3 awards. Berry appeals the Court’s reduction of her damages awards. She also appeals the grant o f summary judgment as to her claims against Wallace and Norris. On cross

appeal, Reed seeks entry of judgment in his favor or a new trial. We reverse the Court’s reduction of Oswalt’s liability for damages. We affirm the grant of summary judgment to Wallace and Norris. As to Reed, we vacate the judgment and remand his case for a new trial.

I. Reduction of Damages Against Oswalt
We stat e the facts in the light most favorable to the verdict. On November 10 , 1993, Berry was raped by Oswalt at Tucker, under threat of disciplinary action an d physical violence. W

hen she informed Oswalt on January 3, 1994, that she thought she was pregna nt, he attempted to make her abort the pregnancy by forcing her to tak e quinine and turpentine. Under further threat, he instructed her to conceal the pregnancy and to blame another officer, Reed, if necessary. Berry sued Oswalt for violation of her constitutional rights and for the tort of outrage.
After a three-day trial, the jury found for Berry against Oswalt on both her 4 2 U.S.C. § 1983 claim and her sta te tort claim. It awarded her compensatory damages of $40,000 on the former and $25,000 on the latter, and $15,000 in punitive damages

. However the District Court eliminated the award for outrage, finding that “th e compensatory damage awards under theories of § 1983 and the tort of outrage amounted to a double recovery for the plaintiff on the same conduct by defendant[ ] Oswalt . . ..” Letter to Plaintiff’s and Defendants’ Lawyers (Dec. 10, 1996). We reverse.-4-

The tort of outrage and the violation of constitutional rights are legally distinc t claims. To prove outrage, a plaintiff must show that “(1) the actor intended to inflic t emotional dist

ress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was ‘extreme and outrageous,’ and was ‘beyond all possi ble bounds of decency’ and was ‘utterly intolerable in a civilized community’; (3) the act ions of the defendant were the cause of the plaintiff’s distress; and (4) th e emotional distress sustaine d by the plaintiff was so severe that no reasonable man could be expected to endure it.” Deitsch v. Tillery , 309 Ark. 401, 406, 833 S.W.2d 760, 762 (1992) (citation omitted). In comparison, to prove an Ei ghth Amendment violation under § 19 83, a plaintiff must show “as an objective matter, that the alleged abuse o r harassment

caused ‘pain’ and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind.” Freitas v. Ault , 1 09 F.3d 1335, 1338 (8th Cir. 1997). This proof does not require “signif icant injury.” Hudson v. McMillian , 503 U.S. 1, 8 (1992). A § 1983 plaintiff therefore does not have to show “emotional distress . .

. so severe that no reasonable man could be expected to endure it.” A jury reasonably could have found that

Oswalt’s conduct constituted a violation of Berry’s constitutional rights, but fell short of outrage. We defer to this jury’s finding that Berry had proved the separate elements of both claims.
The District Court carefully warned against confusion of the two claims, in th e jury’s determination of both liability and damages. Each verdict form included, in capital letters and bold print, the instruction “Remember to award damages applicable to thi s claimon ly.” Appellant’s App. at 300-01. The Court read the forms to the jury. I t explic itly cautioned jury members to avoid duplication: “Now, you are to awar d damages onl y as it applies to each of these individual claims on the verdict. That is , don’t duplicat e your awards if you find for the plaintiff or find for the plaintiff agains t more t han one defendant. You are to consider each of these claims separately not only as to the liability but to the damages. And if you found in favor of the plaintiff against an individual defendant, then you consider only the damages that are applicable to that particular claim . . ..” Trial Tr. at 666. The Court’s emphasis that the claims were toOriginally, Berry also argued that prison official s retaliated against her after she 4 complained about Oswalt, and that Norris a nd Wallace were liable for these actions as well. The District Court held that the disciplinary actions taken against her wer e justified and her allegations of verbal harassment unfounded. It thus dismissed he r retaliation claims. Her appeal does not rely on this theory of liability. -5- be considered separately, as well as the difference in the actual amounts that the jur y awarded for each, support our conclusion that the jury apportio ned Berry’s total damages between the two theories and did not allo w a double recovery. We therefore reverse the District Co urt’s elimination of the outrage award. On remand, a judgment full y effectuating the jury’s verdict against Oswalt must be entered.

II. Summary Judgment for Norris and Wallace
Berr y claimed that Warden Wallace and Director Norris were also liable fo r Oswalt’s alleged assault. The District Court rejected this argument on summary 4 judgment. We affirm.
Ber ry asserted that Wallace and Norris had known of the risk to her posed b y Oswalt, r elying on Norris’s statements that he had long been concerned about me n guarding women, and that it was possible that he had heard of complaints of male guards sexually abusing women inmates. She alleged that Wallace and Norris had failed t o implemen t

precautionary measures against sexual misconduct by guards, there bein g neithe r policies specifically addressing such misconduct, nor a systematic method o f ide ntifying and tracking complaints of such misconduct. She also relied on th e persisten ce of rumors of abuse as evidence of Wallace’s and Norris’s condoning suc h abuse. To establish that a prison official acted wi th deliberate indifference to a prisoner’s safet y in violation of the Eighth Amendment, a plaintiff must show that the official was aware of facts from which an inference of substantial risk could be drawn,-6-

and further that he or she actually drew that inference. Farmer v. Brennan , 511 U.S. 825, 835-36 (1994). Assuming Berry’s factual allegations to be true, they amount only t o general concern about men guarding women, not an awareness that Tucker guards posed a “ substantial risk” to Tucker inmates, or to Berry specifically. While Berry did allege two other inmate pregnancies at Tucker, she did not contend that they had resulted from sexu al misconduct by Tucker guards. We therefore agree with the District Court’ s statement that “[w]hile [the] undisputed facts reflect that ADC officials might be found negligent, they do not show that the officials had a culpable state of mind as defined in Farmer .” Order of Dec. 5, 1996, at 10. Up onthe Court’s grant of summary judgment and after the trial, Berry filed a motion to supplement the record, under Federal Rule of Civil Procedure 15, and fo r reconsideration of summary judgment, under Federal Rule of Civil Procedure 60. Sh e asked that the Court take notice of the testimony and exhibits that had been presented at trial , relating to other instances of sexual misconduct by Tucker guards. The Court denied her motion, and we affirm.
Fede ral Rule of Civil Procedure 15 authorizes district courts to accep t suppleme ntal pleadings “setting forth transactions or occurrences or events which have happened si nce the date of the pleading sought to be supplemented.” Fed. R. Civ. P

. 15(d). R ule 60 authorizes district courts to grant relief from judgments because o f “newly discovered evidence,” among o ther reasons. Fed. R. Civ. P. 60(b). Neither rule contemplates the type of facts that Berry sought to introduce: facts that were availabl e fordiscove ry and inclusion in her submissions when Berry first responded to th e defendants’ summary judgment motion. We therefore affirm the District Court’s denial of Berry’s motion to supplement the record and for reconsideration of summary judgment.-7- III. Verdict Against Reed In addition to assault by Os walt, Berry also alleged sexual harassment by another officer, Reed. Berry alleged that Reed had attempted to perform nonroutine patdowns on h er, had propositioned her for sex, had intruded upon her while she was not full y dressed, and had subjected her to s exual comments. She sued him under § 1983 and for the tort of outrage. The jury found for Berry and awarded damages against Reed totaling $40,000. On cross-appeal, Reed challenges the jury’s verdict on grounds of error in the Court’s evidentiary rulings and insufficient evidence.

A. Evidence of Reed’s Conduct Toward Other Inmates
Reed dis putes the Court’s admission, on multiple occasions and over numerou s objections, of evidence of prior uncharged sexual misconduct by Reed. This evidence include d the testimony of other women inmates. The Court admitted the dispute d evidence in two stages. First, it allowed Reed to be questioned about his prior conduct. Second, it allowed others to testify for the purpose of “impeaching” Reed’s testimony. We h old that the Court abused its discretion. We address the testimony of one inmate, Tammie Marino -Kompe, as the most extreme example of the evidentiary errors that we believe cumulated to render the trial unfair to Mr. Reed.
On direct examination of Reed, Berry’s lawyer attempted to elicit informatio n about oth er instances of misconduct. The Court found that such testimony was no t relevant as direct evidence, but allowed it for “impeachment” purposes. The statements on which impeachment was allowed were Reed’s depo sition statements that he was “not . . . aware of” any other sexual-misconduct allegations against him. Cross-Appellant’s App. at 40. Reed was asked about numerous instances of s exual misconduct. He denied the alleg ations. Regarding Kompe, Reed denied arranging for her to have sex with another inmate and being present during that incident. Trial Tr. at 169-70.-8-

Other witnesses were then also allowed to testify regarding Reed’s con duct toward oth er inmates, for the purpose of “impeaching” the denials Reed had made on direc t examination. Kompe testified as follows: Q: Now, as to Officer Reed was there a time when you had a n unwel come sexual encounter with somebody and Officer Reed was present? A: Yes. Q: Were you raped? A: Yes.
When Reed’s lawyer obj ected on grounds of relevance, the Court gave the jury a limiting instruction that Kompe’s testimony “goes only to the credibility of Mr. Reed.” Trial Tr. at 208. The disputed evidence was emphasized in Berry’s closing argument: You have heard testimony from Ra ndall Reed who said, “I would never do such a thing” and we even brought in the ADC’s own people who in their investigation said, “Yeah, we think he lies and we think he was lying about that,” and we produced the document that said, “I would never do that

. Never been accused of any of that.” And he told me that under oath, and then we come to find out there is a long litany, laundry list of things that he’s accused of doing from sexual harassment, to verbal harassment, t o sexual innuendo, toarranging sex. You remember that one: arranging sex betwee n inmates. And what did Tammy Marino-Kompe tell you about ? Tha t’s exactly what happened to her. She got raped by an inmate whil e [Reed] stood guard at the door. Is that the way we run a prison?Because Berry has not argued that the eviden ce was admissible under Rule 415 5 (Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Chil d Molestation), we do not address that question here. -9- Trial Tr. at 677-78.
We address first of all the reasoning given by the District Court in admitting this and similar testimony. The Court stated that the evidence was admissible for the purpose of “impeaching” Reed’s testimony that he was not aware of accusations of misconduct towards other inmates (or at least had not been aware of them when his deposition was taken), and that he had not committed any such miscond uct. The Court also told the jury that the evidence should be considered only on the issue of Reed’s credibility. Th e evidence in quest

ion, however, does not fit the definition of “impeachment.” That term refers to matters like the bias or interest of a witness, his or her capacity to observe an event in i ssue, or a prior statement of the witness inconsistent with his or her curren t testimony. The evidence in question here was of a fact directly in issue (according t o plaintiff’s theory of the case): whether Reed had hara ssed or otherwise misbehaved with respectto other women inmates. In addition, the evidence would not have bee n admissible even if it had been true impeachment evidence. “Specific instances of th e conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime . . . , may not be proved by extrinsic evidence.” Fed. R. Evid. 608(b).
So the re al issue is whether the evidence in question -- for example, that Ree d conspired with a male inmate to effectuate the latter’ s rape of Ms. Marino-Kompe -- was admi ssible as substantive evidence of a relevant fact legitimately in issue. The issu e requires us to apply Fed. R. Evid. 404(b). On this point we agree with the Distric t 5 Court, which held that

it was not. Rule 404(b) provides that evidence of prior bad acts, though inadmissible to show that a person acted in conformity with the prior act, may be admissible for other purposes, such as proof of motive, opportunity, intent,-10-

andabsence of mistake or accident. Fed. R. Civ. P. 404(b). Evidence is admissibl e under Rule 404(b) if it is “(1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the [event at issue].” United States v. Aranda , 963 F.2d 211, 215 (8th Cir. 1992) (citation omitted).
Be rry asserts that Kompe’s testimony, and other evidence of sexual misconduc t by Reed, was relevant to show intent to harass and absence of mistake. However , Kompe’s testimony was highly inflammatory, creating an “undue tendency to sugges t decision on an improper basis, commonly . . . an emotional one.” See United States v. Dennis , 625 F.2d 782, 796 (8th Cir. 1980) (cita tion omitted). The act alleged by Kompe -- facilitating an inmate-on-inmate rape -- was not “similar in kind” to the acts alleged by Berry -- verbal abuse, propositioning, unnecessary a nd selective patdowns. Its probative value as to Reed’s conduct toward Berry was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ..” Fed. R. Evid. 403. The District Court was therefore correct to hold the evidence inadmissible under Rule 404(b). Berry’s best argument is that evidence of other acts of harassment is admissibl e by analogy to a line of employment-discrimina tion cases in this Circuit. In Estes v. Dick Smith Ford, Inc. , 856 F.2d 1097, 1104 (8th Cir. 1988), for example, we held tha t evidence of prior acts of discrimination on the basis, for example, of race should normally be fre ely admitted in cases alleging racial discrimination in employment. The sam e rationale of course woul d apply in gender and other sorts of employment-discrimination cases. The issue in such cases, however, is motive. There is no doubt that certain acts occurred, for example, a firing or a failure to hire. The question is why they occurred. The present case is different. The primary question is whether Reed did what Berr y claims ( e .g. , propositioning her), not his motive in doing so. A guard who propositions an inmate cannot have a motive that the law would recognize as proper. When th e question of admissibility is looked at in this way, we think the answer is-11-

clear. I f the question at issue is whether Reed asked Berry for consensual sex, th e relevance of Reed’s having aided the rape of Kompe is slight at best. And the tendency towards unfair prejudice, as we have said, is very great. B. Sufficiency of the Evidence
Reed argues that Berry proved neither the objective pain nor the subjective state of mind necessary to sustain an Eighth Amendment claim, and appeals the Court’s denial of his motion for judgment as a matter of law. See Freitas v. Ault , 109 F.3d at 1338. But fromthe evidence presented at trial, reasonable jurors could have differed as to th e conclus ion that could be drawn. We therefore affirm. See Sherlock v. Quality Control Equip. Co. , 79 F.3d 731, 735 (citation omitted). Reed’s actions (if Berry is believed ) were repeated and improper, an abuse of the power he held over inmates.
Reed fi rst contends that Berry did not allege sufficient injury. A § 1983 plaintiff must allege threatened or actual injury, O’Shea v. Littleton , 414 U.S. 488, 494 (1974), and B erry has done that. Berry alleged that Reed had attempted nonroutine patdown s and had v erbally harassed her. She presented evidence that these acts had caused he r fear and frustration. The object ive-pain component of Eighth Amendment analysis does not require significant injury. Hudson v. McMillian , 503 U.S. 1, 8 (19 92). Rather, it was within the jury’s discretion to find that Reed’s alleged harassing behavior was “harmful enough,” ibid. (citation omitted), to be a violation of the Eighth Amendment.
We also reject Reed’s contention that Berry’s allegations failed to establish th e nec essary subjective state of mind for an Eighth Amendment violation. The conduc t alleged of Reed evidenced intent to initiate sexual contact with Berry, a state of min d more consistent with the “obduracy and wantonness . . . that characterize the conduc t prohibited bythe Cruel and Unusual Punishments Clause,” than “ inadvertence or error-12-

in good faith . . ..” Whitley v. Albers , 475 U.S. 312, 319 (1986). We therefore decline to disturb the jury’s verdict.
IV. We reverse the District Court’s reduction of damages against Oswalt and reinstate the o riginal award, which included $25,000 for the tort of outrage and totaled $80,000. We affirmits grant of summary judgment to Wallace and Norris. We vacate the jury verdict against Reed and remand his case for retrial. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.