* Chief Judge of the Eastern District of Texas, sitting by

designation.

1 John Crittle has been subsequently released from

incarceration.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-3082.

Gregory SOCKWELL, Raymond Rochon, and John Crittle, PlaintiffsAppellants, Cross-Appellees,

v.

Betty Halbert PHELPS, spouse, personal representative, and

testamentary executrix of decedent, C. Paul Phelps, Jr. and Frank

Blackburn, Defendants-Appellees, Cross-Appellants.

May 10, 1994.

Appeals from the United States District Cou rt for the Middle

District of Louisiana.

Before POLITZ, Chief Judge, GARWO OD, Circuit Judge, and PARKER *

, District Judge.

ROBERT M. PARKER, District Judge:

Plaintiffs-Appellants Gregory Sockwell, Raymond Rochon and

John Crittle (the Prisoners) 1 filed this action pursuant to 4 2

U.S.C. § 1983 against Defendants-Appellees C. Paul Phelps (Phelps),

former Secretary of the Louisiana Department of Public Safety and

Corrections, and Frank Blackburn (Blackburn), former Warden of the

Louisiana State Penitentiary, alleging that Phelps and Blackburn,

in their individual capacities, violated their constitutional

rights by racially segregating the prison's two-man cells. After

a de novo review of the record, the district court adopted all

except the amount of the puniti ve damage award of the report and2 The district court's order reduced the magistrate judge's

recommended amount of $5,000.00 each to $2,000.00 each, and

appointed a team to monitor the new warden's desegregation

policy.

2 rec ommendation of the magistrate judge, holding that Phelps and

Blackburn violated the Prisoners' right to equal protection under

the Fourteenth Amendment by knowingly permitting the continued

assignment of prisoners to segregated two-man cells based solely on

their race. The court awarded the Prisoners nominal damages of

$1.00 each, and ordered Phelps and Blackburn to pay p unitive

damages of $2 ,000.00 each 2 plus attorney's fees. All parties

appeal the judgment of the district court. We AFFIRM.

FACTS

The parties do not dispute the facts of this case as reflected

in the testimony received from two evidentiary hearings before the

magistrate judge. A court order was issued in W illiams v.

McKeithen, CA 71-98 (M.D.La.1975), enjoining racial discrimination

in the operation or administration of the Louisiana State

Penitentiary (Angola) and ordering prison officials to immediately

correct any effects of past racial discrimination and to maintain

Angola as a completely integrated facility. Deputy Warden Richard

Pe abody testified, however, that even after the court order was

issued it remained the policy and general practice at Angola not to

mix black and white prisoners together in the same two-man cell.

He further stated that the segregation of prisoners in two-man

cells was not racia lly motivated but, instead, motivated by

security concerns and the past incidents of violence between black3

and white prisoners. He was able to testify as to two incidents,

one in 1976 and one in 1977, where violence erupted between black

and white prisoners who wer e placed together in administrative

lockdown cells. However, he did not testify as to whether either

of these incidents were i nvestigated or whether either incident

developed from racial tension. Despite his testimony regarding

security concerns and past experiences of violence between black

and white prisoners, Warden Peabody did admit that the rest of

Angola had been completely integrated.

Phelps testified that he was familiar with the court order,

and that he understood it to mean that segregating prisoners by

race alone is unconstitutional. Although he toured the cell blocks

in Angola on a regular basis, he could not say that he was or was

not aware of the general policy of racial segregation of the

two-man cells. He did testify, however, that he did not believe

that the past incidents of violence in the cell blocks had racial

overtones, but that such incidents usually involved sex or money.

Blackburn testified that while he was warden he became aware

of the court order, but that he did not recall ever seeing a white

and black prisoner housed together in a two-man cell. He stated

that it was his belief that the two-man cells were racially

segregated because of the feeling that there was a need for

security, although he could not recall any specific incidents that

would have justified a need for security.

The Prisoners testified that while they were confined at

Angola they w ere never housed in a two-man cell with a white4

prisoner, nor did they ever see a black and white prisoner housed

together in a two-man cell. They also testified that white

prisoners in two-man cells received preferential treatment over the

cells occupied by black prisoners. For example, white two-man

cells were called to showers and to sell plasma first, enjoyed

better telephone and store privileges, and had a better view of the

televisions.

In addition, the Priso ners testified that when a prisoner

awaits assignment to a two-man cell, his privileges are suspended.

This temporary suspension of privileges, called "administrative

lockdown," was prolonged at Angola due to the general policy of

racial segregation. As a result, the Prisoners were damaged

bec ause they were deprived of privileges such as work, plasma

donation, etc. for a longer period of time because they could not

be assigned until a two-man cell with another black prisoner became

available.

In October 1990, after the Prisoners filed this lawsuit, the

present warden at Angola issued a written memorandum in which he

terminated the general policy and practice of racially segregating

two-man cells.

STANDARD OF REVIEW

A trial court's findings of fact are accepted unless clearly

erroneous or grounded on an erroneous view of the law, or an

incorrect legal standard. See P ullman-Standard v. Swint, 456 U.S.

273, 289, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982); see also

Branch-Hines v. Hebert, 939 F.2d 1311, 1320 (5th Cir.1991). Where3 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

4 671 F.2d 892 (5th Cir.1982).

5 there exists two permissible views of the evidence, a fact finder's

choice betwee n them cannot be clearly erroneous, even if the

reviewing court would have weighed the evidence diffe rently.

Branch-Hines v. Hebert, 939 F.2d at 1321. A finding of fact is

clearly erroneous only if the reviewing court, after reviewing the

entire record, is convinced that the trial court made a mistake.

Texas Pig Stands, Inc. v. Hard Rock Cafe Int'l, Inc., 951 F.2d 684,

693 (5th Cir.1992). Questions of law, however, are reviewed d e

novo. Branch-Hines v. Hebert, 939 F.2d at 1320.

EQUAL PROTECTION

The Prisoners contend that the segregation of two-man cells by

race at Angola violated their right to equal protection under the

Fourteenth Amendment of the United States Constitution. In L ee v.

Washington, 3 the United States Supreme Court held that segregation

of the races in prisons and jails violates the Equal Protection

Clause of the Fourteenth Amendment. The Court recognized, however,

"that prison authorities have the right, acting in good faith and

in particularized circumstances, to take into account racial

tensions in maintaining security, disci pline, and good order in

prisons and jails." Lee v. Washington, 390 U.S. at 334, 88 S.Ct.

at 995.

In W illiams v. Treen, 4 this Circuit confirmed the Supr eme

Court's decision, stating:

We believe that the right to be free from general policies of6

racial segregati on in prison housing and administration was

clearly established in the opinions rendered by Judge Johnson

in Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), and the

Supreme Court's per curiam affirmance in Lee v. Washington,

390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

Williams v. Treen, 671 F.2d at 902. The exception for

"particularized circumstances," however, has not been specifically

defined by this Court. Phelps and Blackburn argue that prison

security, not discriminatory purpose or intent, formed the

foundation of Angola's general policy of racial segregation in its

two-man cells, which remained in effect until 1990. They further

argue th a t because racial tensions factor into administrative

decisions regarding security, the general policy of segregation in

the two-man cells met the "particularized circumstances" exception

in Lee v. Washington, and that, absent bad faith, this Court should

not substitute its views for those of the prison authorities.

To justify the general policy of limited segregation, Phelps

and Blackburn cite five factors which contributed to the need for

increased security through racial segregation in the two-man cells:

(1) prison guards were unable to visually monitor each two-man cell

at all hours of the night; (2) the prisoners placed in Angola are

the "worst of the worst"; (3) two instances occurred in which

black and white prisoners housed together became violent; (4)

racial supremacy groups existed within the prison ranks; and (5)

interracial confl icts may have triggered more generalized racial

violence. In support of the policy, they add that the low number

of two-man cell assaults were a direct result of its success.

Altho ugh this Court has not specifically defined the5 The Tenth Circuit specifically held that a vague fear that

desegregation may result in violence is not enough to meet the

"particularized circumstances" exception in Lee v. Washington.

United States v. Wyandotte County, Texas, 480 F.2d 969, 971 (10th

Cir.1973).

6 See McClelland v. Sigler, 456 F.2d 1266, 1267 (8th

Cir.1972).

7 "particularized circumstances" exception in Lee v. Washington, the

g eneral rule is clear: a generalized or vague fear of racial

violence is not a sufficient justification for a broad policy of

racial segregation. 5 The five factors Phelps and Blackburn argue

fail to p rove the existence in Angola of an unusual situation in

which security and discipline would have demanded segregation. If

violent disruptions did occur, we would expect the prison officials

to take appropriate action against the offending prisoners, black

or white. Even the racial segregation of offending individual

prisoners would be acceptable if, based on an individualized

analysis, the prison officials determined such action would be

needed to stifle particular instances of racial vio lence. 6

Although we respect the need for security at Angola, the argument

that integrated two-man cells may lead to m ore violence between

black and white prisoners is not tenable, given t hat the rest of

the prison was integrated pursuant to the court order in Williams

v. McKeithen. Therefore, we hold that the general policy of

segregating two-man cells in effect at Angola until 1 990 was

u nconstitutional. We further hold that Phelps and Blackburn are

not protected under qualified immunit y, due to their knowing and

intentional participation in a general policy of racial segregation8

which remained in effect until 1990 and violated a court order

mandating full integration of the prison facility.

COMPENSATORY DAMAGES

Compensatory damages awarded pursuant to § 1983 are governed

by common law tort principles. Keyes v. Lauga, 635 F.2d 330, 336

(5th Cir.1981). Absent an error of law, the reviewing court will

sustain the amount of damages awarded by the fact finder, unless

the amount is clearly erroneous or so gross or inadequate as to be

contrary to right reason. T hompkins v. Belt, 8 28 F.2d 298, 301

(5th Cir.1987).

The district co u rt upheld the magistrate judge's

determination that the Prisoners were entitled to $1.00 each in

compensatory damages on grounds t hat the Prisoners failed to

present evidence that they suffered any real harm or quantifiable

loss as a result of their prolonged deprivation of privileges. We

agree with the lower courts. The Prisoners failed to present

evidence in t he record that while they were confined without

privileges in administrative lockdown, vacancies existed in two-man

cells occupied by white prisoners. Without such evidence, the

Prisoners have not proved that they s uffered any actual damages,

and they may not be awarded damages based solely upon the abstract

value or importance of the constitutional right violated by Phelps

and Blackburn. See Russell v. Harrison, 736 F.2d 283, 291 n. 17

(5th Cir.1984). Therefore, we hold that the district court's

judgment was not clearly erroneous.

PUNITIVE DAMAGES9

As for the punitive damages awarded, the Prisoners challenge

the $2,000.00 award on two fronts: they contend that the original

award of $5,000.00 each by the magistrate judge was too small and

argue that the district court erred when it reduced that amount to

$2,000.00 each. Phelps and Blackburn argue that they had no evil

intent in following the segregation policy, and that they did not

act with reckless or callous indifference to the Pris oners'

constitutional rights.

Under § 1983, punitive damages may be aw arded only if the

official conduct is "motivated by evil intent " or demonstrates

"reckless or callous indifference" to a person's constitut ional

rights. S mith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 1640, 75

L.Ed.2d 632 (1983); see also Thompkins v. Belt, 828 F.2d at 301-

02. However, even if a party has made a proper showing to justify

an award of punitive damages, the trier of fact's decision whether

to award such damages is discretionary. C reamer v. Porter, 754

F.2d 1311, 1319 (5th Cir.1985). The reviewing court may not

reverse the award of punitive damages absent an abuse of

discretion.

The magistrate judge awarded punitive damages for Phelps' and

Blackburn' s reckless or callous indifference in their knowing

perpetuation of an unconstitutional prison policy in violation of

the court order issued in Williams v. McKeithen. The district

court reduced the amount of punitiv e damages recommended by the

magistrate judge, noting that Phelps and Blackburn were no longer

associated with Angola. The purpose of punitive damages under §10

1983 i s to deter future egregious conduct in violation of

constitutional rights. Creamer v. Porter, 754 F.2d at 1319. The

district court concluded that the elimination of racial segregation

would be better served by the threat of future contempt sanctions

against the present warden than by the extraction of money from

people no longer affiliated with Angola.

We agree with lower courts' finding of reckless or callous

indifference. Phelps and Blackburn knowingly participated in the

violation of a court order which resulted in the violation of the

Prisoners' constituti onal rights. Their failure to present any

evidence showing that the violence or risk of violence in Angola

was race related can only lead to the conclusion that their actions

constituted reckless or callous indifference to the constitutional

rights of the Prisoners. Nevertheless, the district court's

reduction of the punitive damage award must be given deference, and

nothing in the record indicates an abuse of discretion. Therefore,

we hold that the district court in its discretion properly awarded

punitive damages under the ci rcumstances for the total amount of

$4,000.00.

ATTORNEY'S FEES

The Civil Rights Attorney's Fees Awards Act of 1976, 42

U.S.C. § 1988, provides that courts may award reasonable attorney's

fees to a pre vailing party in a § 1983 action. K irchberg v.

Feenstra, 708 F.2d 991, 995 (5th Cir.1983). Attorney's fees may be

recovered unless special circumstances render such an award unjust.

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 8811

S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Having upheld the judgment

of the distri ct court that Phelps and Blackburn violated the

Prisoners' constitutional rights by racially segregating Angola's

two-man cells, the Prisoners are entitled to an additional award of

reasonable attorney's fees. The Prisoners contend that an award of

$5,000.00 in additional attorney's fees is reasonable under the

circumstances of this case, while Phelps and Blackburn argue that

the decision should be deferred until an evidentiary hearing can be

held on the matter.

The question of what constitutes reasonable attorney's fees is

a question of fact to be determined by the fact finder. J erry

Parks Equip. Co. v. Southeast Equip. Co., Inc., 817 F.2d 340, 344

(5th Cir.1987). Therefore, we hold that the district court is to

receive evidence and thereafter determine a fair and reasonable

amount of attorney's fees for the proper preparat ion, trial, and

appeal of this matter.

CONCLUSION

We AFFIRM the judgment on the basis of the district court's

o rder, and REMAND the matter of the award of attorney's fees for

further proceedings consistent herewith.