Preayer v. Ryan et al

Filing 154

ORDER denying 132 Motion in Limine. Signed by Judge David G Campbell on 5/30/2017.(TCA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Roger Wayne Preayer,

10

Plaintiff,

11

ORDER

v.

12

No. CV-15-00069-PHX-DGC

Charles L Ryan, et al.,

13

Defendants.

14
15

Plaintiff Roger Wayne Preayer, originally proceeding pro se, brought this civil

16

rights action under 42 U.S.C. § 1983 against multiple Arizona Department of Corrections

17

employees for the alleged violations of his Eighth Amendment rights.

18

Following motion practice, the remaining Defendants are Deputy Warden D. Schuster;

19

Lieutenant Cheryl Malysa; and Corrections Officers Maria Piller, Jaudiel Barajas, and

20

Eduardo Arreola. See Docs. 109, 111. Defendants have filed a motion in limine asking

21

the Court to preclude Plaintiff from offering any testimony, questions, or evidence at trial

22

concerning compensatory or punitive damages. Doc. 132. The motion is fully briefed

23

(Docs. 132, 144, 149), and the Court heard oral argument on May 19, 2017. For the

24

reasons that follow, the Court will deny Defendants’ motion.

25

I.

Doc. 61.

Compensatory Damages.

26

Defendants argue that Plaintiff has not alleged that he suffered a physical injury

27

that is more than de minimis and thus cannot recover for his alleged mental and

28

emotional injuries. Doc. 132 at 1-2. Additionally, Defendants argue that Plaintiff has not

1

alleged any actual or out-of-pocket losses and thus has no claim for compensatory

2

damages. Id.

3

A.

4

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), provides that

5

“[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other

6

correctional facility, for mental or emotional injury suffered while in custody without a

7

prior showing of physical injury or the commission of a sexual act.” In Oliver v. Keller,

8

the Ninth Circuit held that this statutory provision requires a prisoner to allege a physical

9

injury that is “more than de minimis” in order to pursue claims for mental and emotional

10

injury. 289 F.3d 623, 627-29 (9th Cir. 2002). The Ninth Circuit further held that the

11

physical injury requirement applies only to claims for mental and emotional injury, and,

12

“[t]o the extent that appellant’s claims for compensatory, nominal or punitive damages

13

are premised on alleged [constitutional] violations, and not on emotional or mental

14

distress suffered as a result of those violations, § 1997e(e) is inapplicable and those

15

claims are not barred.” Id. at 629-30 (even absent physical injury, the prisoner was

16

entitled to seek damages premised on alleged Fourteenth Amendment violations).1

Governing Standard.

17

As one district court in this circuit has noted, and as discussed in the May 19, 2017

18

hearing, Oliver is not “a model of clarity.” Cockcroft v. Kirkland, 548 F. Supp. 2d 767,

19

776 (N.D. Cal. 2008). Generally, a plaintiff who establishes liability for the violation of a

20

constitutional right actionable under § 1983 is entitled to recover compensatory damages

21

for “economic harm, pain and suffering, and mental and emotional distress that results

22

from the violations.” Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) (citing

23

Carey v. Piphus, 435 U.S. 247, 257-64 (1978)); see Memphis Cmty. Sch. Dist. v.

24

Stachura, 477 U.S. 299, 307 (1986) (in § 1983 suits, “compensatory damages may

25
1

26
27
28

In Canell v. Lightner, the Ninth Circuit held that § 1997e(e) does not apply to
First Amendment claims regardless of the form of relief sought. 143 F.3d 1210, 1213
(9th Cir. 1998). Some might argue that this holding and its justifications could be
extended to Eighth Amendment conditions-of-confinement claims like Plaintiff’s, but the
Ninth Circuit has never reached that conclusion. Consistent with Oliver, the Court will
proceed with the understanding that § 1997e(e) applies to the constitutional claims in this
case.
-2-

1

include not only out-of-pocket loss and other monetary harms, but also such injuries as

2

‘impairment of reputation . . . , personal humiliation, and mental anguish and suffering’”)

3

(internal quotation omitted).

4

damages are not available for “emotional or mental distress suffered as a result of” a

5

constitutional violation. See Oliver, 289 F.3d at 629-30. This would seem to limit

6

compensatory damages to economic harm (out-of-pocket losses) and pain and suffering.

7

Without a physical injury, however, there likely is no pain and suffering apart from the

8

unavailable mental or emotional distress. This would leave only economic damages, but

9

they too are unlikely. Prisoners typically have no out-of-pocket losses except for medical

10

co-pays (which will not exist if there is no physical injury), or loss of property (which can

11

rarely arise in prisoner § 1983 actions). See Barnett v. Centoni, 31 F.3d 813, 816 (9th

12

Cir. 1994) (“a negligent or intentional deprivation of a prisoner’s property fails to state a

13

claim under § 1983 if the state has an adequate post deprivation remedy”) (citation

14

omitted).

15

constitutional right. Stachura, 477 U.S. at 308. What, then, did the Ninth Circuit have in

16

mind when it stated that compensatory damages “premised on alleged [constitutional]

17

violations” are not affected by § 1997e(e)? Id. at 629-30.

But under § 1997e(e), if there is no physical injury,

Nor can compensatory damages be awarded for the abstract value of a

18

Some courts in this circuit have held that Oliver applies only to separate and

19

distinct claims for mental or emotional injuries, such as where a prisoner sets forth a

20

claim seeking damages for mental and emotional suffering and asserts a separate claim

21

seeking damages for a constitutional violation. See e.g., Low v. Stanton, No. CIV S-05-

22

2211 MCE DAD P, 2010 WL 234859, at *4 (E.D. Cal. Jan. 14, 2010) (finding “that if a

23

plaintiff states a constitutional claim, as opposed to a claim for mental or emotional

24

injuries, the physical injury requirement of § 1997e(e) does not apply”); Washington v.

25

Brown, No. CIV S-06-1994 WBS DAD P, 2010 WL 2737141, at *18 (E.D. Cal. July 12,

26

2010) (“if a plaintiff states a constitutional claim, as opposed to one for mental or

27

emotional injuries, the physical injury requirement of § 1997e(e) does not bar the award

28

of compensatory damages”); see also Bodnar v. Riverside Cnty. Sheriff’s Dep’t, No.

-3-

1

EDCV 11-291-DSF (OP), 2014 WL 2737815, at *6 (C.D. Cal. March 28, 2014) (“to the

2

extent that Plaintiff alleges emotional injury, his claim is barred by § 1997e(e),” but “to

3

the extent that Plaintiff presents a pure constitutional violation, § 1997e(e) is

4

inapplicable”). But none of these cases truly articulates the distinction between a claim

5

for compensatory damages premised on an alleged constitutional violation and a claim

6

for compensatory damages premised on “emotional or mental distress suffered as a result

7

of those violations,” and the Court cannot see such a distinction. See Oliver, 289 F.3d at

8

630.

9

At least one district court has held that Oliver limits the available relief to nominal

10

and punitive damages if there is no physical injury. See Quinn v. Singh, No. 11-CV-

11

1085-DMS (JMA), 2012 WL 3868014, at *4 (S.D. Cal. July 27, 2012). The court in

12

Quinn held that the plaintiff did not allege a physical injury and could not seek damages

13

for mental or emotional injury on his Eighth Amendment claim, but that “he is not barred

14

under Oliver from seeking nominal or punitive damages in relation to this claim.” Id. A

15

majority of circuits similarly hold that § 1997e(e) precludes compensatory damages

16

absent a physical injury, but not nominal or punitive damages.

17

McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Royal v. Kautzky, 375 F.3d 720, 723-24

18

(8th Cir. 2004); Calhoun v. De Tella, 319 F.3d 936, 941 (7th Cir. 2003); Thompson v.

19

Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869, 878-79

20

(10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000). Notably,

21

Oliver cited two of these cases favorably. 289 F.3d at 630 (“we reach a conclusion

22

similar to Al-Hafeez and Searles”).

23

The full application of Oliver remains uncertain.

See Hutchins v.

With respect to this case,

24

Plaintiff has identified no economic losses caused by Defendants’ conduct. If Plaintiff

25

has suffered no physical injury, it would seem that the only kind of “pain and suffering”

26

he could claim would be mental and emotional, which § 1997e(e) would proscribe. Thus,

27

if there is no physical injury associated with one or more of Plaintiff’s claims, it would

28

appear that he could seek only nominal and punitive damages. If he has suffered physical

-4-

1

injury, he could also seek compensation for pain and suffering, including mental and

2

emotional distress. With these preliminary thoughts in mind, the Court will consider the

3

facts of this case.

4

B.

5

Oliver held that a de minimis injury does not constitute a physical injury for

6

purposes of § 1997e(e). Id. at 627-28. Defendants contend that Plaintiff alleges only a

7

de minimis injury in this case.

Physical Injury.

8

The Ninth Circuit did not provide an explicit standard for de minimis injuries in

9

Oliver, but it rejected the appellees’ argument that an injury is de minimis unless it is “an

10

observable or diagnosable medical condition requiring treatment by a medical care

11

professional, which would cause a free person to seek such treatment.” Id. at 628

12

(citation and quotation marks omitted).

13

demanding. Id. While a sufficient physical injury is not simply any injury, the Ninth

14

Circuit held that it need not rise to the standard proposed by the appellees.

The Ninth Circuit found this standard too

15

Not surprisingly, cases applying Oliver’s physical injury holding have reached a

16

variety of conclusions. See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1224 (9th Cir.

17

2008) (reviewing Oliver and finding that bladder infections and bed sores suffered by a

18

paraplegic inmate were not de minimis); Monclova-Chavez v. McEachern, No. 1:08-CV-

19

00076-AWI, 2011 WL 39118, at *6 (E.D. Cal. Jan. 5, 2011) (finding that significant

20

bruises, weakness, and numbness in the plaintiff’s shoulder were not de minimis under

21

Oliver); cf. Lombardelli v. Halsey, No. 1:08-CV-00658-AWI, 2012 WL 2529225, at *9

22

(E.D. Cal. June 29, 2012) (allegations of some headaches at unspecified times do not

23

support more than a de minimis injury).2

24
2

25
26
27
28

Defendants cite Jackson v. Mendenhall, No. 113CV01679SABPC, 2016 WL
8731189, at *3 (E.D. Cal. Aug. 5, 2016). Jackson discusses whether the force used was
de minimis – the standard used to establish an Eighth Amendment excessive force
violation. Jackson does not address whether the injury was de minimis – the issue before
the Court under § 1997e(e). The Court will not look to Jackson for guidance in this case.
See Oliver, 289 F.3d at 628 (“In ruling that the requisite physical injury must be more
than de minimis for purposes of § 1997e(e), we are not importing the standard used for
-5-

1

In arguing that Plaintiff’s injuries are de minimis, Defendants cite Oliver and

2

emphasize that the Ninth Circuit found that “severe and lasting back and leg pain, a

3

canker sore, and unspecified injuries in a fight are not more than de minimis injuries.”

4

Doc. 132 at 2. But this argument leaves out important observations from the Ninth

5

Circuit’s analysis. Oliver noted that the appellant was “now contend[ing] that [his back

6

and leg] pain was ‘severe and lasting,’ [but] on deposition he testified that ‘it was nothing

7

too serious’ and that he did not seek medical treatment.” 289 F.3d at 629. Additionally,

8

the appellant originally alleged that he got in a fight with other inmates due to crowded

9

cell conditions (his alleged Eighth Amendment violation), but later admitted the fight

10

concerned use of the telephone, not the facts at issue in his claim. Id. Moreover, the

11

appellant did not specify any injuries resulting from the fight. Id. Oliver noted the

12

appellant’s contradictory statements and found that, even if Plaintiff’s allegations of

13

injury were true, the injuries alleged were not more than de minimis. Id.

14

As discussed in the May 19, 2017 hearing, Plaintiff’s allegations can be

15

characterized as two claims: (1) a claim alleging unlawful conditions of confinement, and

16

(2) a claim alleging deliberate indifference to serious medical needs.

17

1.

Conditions of Confinement.

18

Plaintiff alleges that he was housed for approximately nineteen weeks in an

19

isolation cell where the toilet was inoperative and he had no running water for eight

20

weeks. Doc. 61 at 5-6. He had to use the cell’s emergency button to get staff’s attention

21

when he needed to use the restroom or needed water, and it sometimes took hours for any

22

response. He would have to resort to banging on or kicking his door to get staff’s

23

attention. Id. In his subsequently filed declaration, Plaintiff avers that he often had to

24

urinate into the nonworking toilet in his cell and was exposed to the stench of his own

25

accumulated urine for two months. Doc. 76, Ex. A, Pl. Decl. ¶ 17. He also avers that

26

when he needed to empty his bowels, he would push the emergency button but no one

27
28

Eighth Amendment excessive force claims, which examines whether the use of physical
force is more than de minimis.”).

-6-

1

would respond and he would have to bang on the door for a long time before an officer

2

would show up. Id. ¶¶ 14-15. Plaintiff alleges that he was physically neglected and

3

abused. Doc. 61 at 5.

4

In Alexander v. Tippah County, the Fifth Circuit addressed whether nausea and

5

vomiting caused by exposure to human waste and its odor constituted an injury that was

6

more than de minimis for purposes of § 1997e(e). 351 F.3d 626, 628-29, 631 (5th Cir.

7

2003). Two inmates were housed together for 24 hours in “the hole,” an eight foot by

8

eight foot room meant to hold one inmate. Id. at 628. There was no running water and

9

no toilet, and only a grate-covered hole in the floor that could be “flushed” from outside.

10

Id. The inmates’ feces obstructed the hole and clogged the drain, which then caused their

11

urine to splatter onto the cell floor. One inmate became nauseated from the smell and

12

vomited into the drain. Id. The Fifth Circuit found that the only physical injury was

13

nausea, which caused vomiting. Because there was no allegation of any lasting effects,

14

the injury was de minimis and § 1997e(e) precluded the plaintiffs from recovering for

15

emotional and mental injuries. Id. at 631.

16

In Sowell v. Kyle, the plaintiff was held in a cell for four days without running

17

water or the ability to shower, wash his hands, or flush his toilet. No. 2:08-CV-0051,

18

2011 WL 320196, at *1 (N.D. Texas Jan. 13, 2011). The plaintiff alleged that he was

19

subjected to the odor of the toilet’s contents and eventually quit defecating, choosing

20

instead to restrain his bowels. Id. at *9. As a result, he suffered severe constipation and

21

associated vomiting and chest pains.

22

constitute a physical injury under § 1997e(e), making emotional damages unavailable.

23

Id. at *10. Other courts have similarly held that nausea and headaches resulting from one

24

or two days of exposure to human waste and overflowing toilets did not meet the physical

25

injury requirement under § 1997e(e).

26

(GLS/DEP), 2014 WL 2946545, at *3 (N.D. N.Y. June 30, 2014); Cambre v. Jefferson

27

Parish Sheriff Office, No. Civ.A. 05-6863, 2006 WL 2092403, at *5 (E.D. La. May 15,

28

2006) (Wilkinson, M.J.) (adopted by Beer, J., on July 25, 2006).

Id.

The district court held that this did not

See Herring v. Tabor, No. 9:12-cv-1739-

-7-

1

Although these cases did not find physical injury that was more than de minimis,

2

they all concern conditions lasting a few days. The court in Alexander noted no “lasting

3

effects” from the nausea and vomiting that resulted from one day of exposure, implying

4

that longer-lasting effects may rise above the de minimis injury threshold. 351 F.3d at

5

631. Here, Plaintiff was exposed to a nonworking toilet and the stench of his urine for

6

two months, and he regularly had to wait long periods, sometimes hours, to empty his

7

bowels.

8

The Court also notes that Plaintiff alleges he was regularly served meals late or not

9

at all during the approximately four months in the isolation cell. Doc. 61 at 5. Later

10

filings indicate that he was served two meals a day, which was a deprivation of five

11

meals a week. Doc. 109 at 19. Plaintiff testified in his deposition that he lost weight

12

during the relevant time and often went to bed hungry. Doc. 84, Pl. Dep. Change/Corr.

13

errata form at 2. In Chappell v. Pliler, the plaintiff alleged that during a lockdown period

14

of approximately eight months he was denied adequate meals and served just two cold

15

meals a day. After the first three months, the meals consisted only of an apple and frozen

16

lunchmeat. No. 2:04-cv-1183 TLN DB P, 2017 WL 363002, at *2, 18 (E.D. Cal. Jan. 24,

17

2017). The court found that the plaintiff’s allegations that he suffered stomach pains and

18

dizziness were sufficient to show an actual injury. Id. at *6, 18; see Pratt v. Corrs. Corp.

19

of Am., 124 F. App’x 465, 467 (8th Cir. Feb. 14, 2005) (unpublished per curiam) (the

20

plaintiff’s allegation that his vegetarian meals lacked adequate nutritional value and

21

caused him to lose thirty pounds was sufficient to satisfy the physical injury requirement

22

of § 1997e(e)); Shirley v. Sternal, No. 09-10045-Civ-Martinez, 2010 WL 6020684, at *10

23

(S.D. Fla. Aug. 30, 2010) (the plaintiff’s allegations of weight loss, headaches, light-

24

headedness, swollen legs, constipation, upset stomach, and nausea due to a diet too low in

25

calories established more than a de minimis injury for purposes of § 1997e(e)).

26

Defendants did not make any argument regarding § 1997e(e) in their motion for

27

summary judgment. Doc. 71. As a result, specific facts on this issue were not fleshed

28

out and the Court cannot determine whether the conditions to which Plaintiff was

-8-

1

exposed caused more than de minimis injury.

2

complaint in support of their argument that Plaintiff lacks evidence of any meaningful

3

injury, but this is a motion in limine, not a motion to dismiss, and Plaintiff is not limited

4

to the facts alleged in his complaint when responding to a motion in limine or presenting

5

his case at trial. Because Plaintiff will be free to present more information at trial, the

6

Court cannot conclude at this time that he will be unable to prove more than a de minimis

7

injury.

Defendants cite Plaintiff’s pro se

8

What is more, because Plaintiff may present evidence at trial of Defendants’

9

deliberate indifference in order to prove his Eighth Amendment claim, and because

10

Plaintiff will be permitted to seek punitive damages (as discussed below), all of the

11

evidence related to his conditions of confinement will come into evidence. Defendants’

12

motion in limine would not limit such evidence even if granted. If Defendants believe

13

that Plaintiff has failed to present evidence sufficient to show a physical injury that is

14

more than de minimis, they may make a Rule 50(a) motion for judgment as a matter of

15

law on the conditions-of-confinement claim, and the Court will rule on the basis of

16

evidence presented during Plaintiff’s case-in-chief.

17

2.

Deliberate Indifference to Medical Needs.

18

Plaintiff alleges in his amended complaint that on March 29, 2014, he began

19

sweating and feeling dizzy and disoriented in his isolation cell. After trying for 45 or 50

20

minutes to get the attention of prison guards by pushing the emergency call button,

21

banging and kicking on his cell door, and waiving “frantically” in his cell’s security

22

camera, Plaintiff sat down on his bed and passed out. He awoke on the floor with

23

extreme pain in his head and lying face down in a puddle of blood. Doc. 61 at 14-15.

24

His blood pressure was measured at 184 over 108, and he was transported to the complex

25

medical unit on a stretcher. Id.

26

The Court cannot find this injury de minimis. It satisfies even the standard that

27

Oliver found overly restrictive: an observable medical condition requiring treatment by a

28

medical care professional, which would cause a free person to seek such treatment.

-9-

1

Oliver, 289 F.3d at 628. Because Plaintiff has alleged a physical injury that is more than

2

de minimis, he may seek damages for physical injury, pain and suffering, and emotional

3

and mental injury on the claim alleging deliberate indifference to a serious medical need.

4

II.

Punitive Damages.

5

Defendants argue that because Plaintiff did not request punitive damages in his

6

amended pleading, he should be precluded from seeking punitive damages under Federal

7

Rules of Civil Procedure 8(a)(3) and 26(a)(1)(A). Defendants argue that they would be

8

prejudiced if a claim for punitive damages were added at this stage of the case. Doc. 132

9

at 2-3.

10

Rule 8(a)(3) does state that a pleading must contain a demand for the relief sought,

11

but Plaintiff was proceeding pro se when he filed his amended complaint. The Court

12

must construe his complaint liberally, including his prayer for relief. See Hebbe v. Pliler,

13

627 F.3d 338, 342 (9th Cir. 2010); Hill v. Arnold, No. 09-cv-05434-TEH, 2015 WL

14

3523199, at *4 (N.D. Cal. June 4, 2015 (finding that when construing liberally the pro se

15

prisoner’s complaint, his request for “monetary compensation” included a request for

16

punitive damages). Rule 26(a)(1)(A) does not apply to this case because it was brought

17

by a pro se prisoner. Fed. R. Civ. P. 26(a)(1)(B)(iv).3

18

Further, courts may grant relief beyond that requested in the complaint. Rule 54

19

instructs courts that every “final judgment should grant the relief to which each party is

20

entitled, even if the party has not demanded that relief in its pleadings.” Fed. R. Civ. P.

21

54(c). Citing this rule, the Ninth Circuit has found that a plaintiff need not include in his

22

complaint a “specific prayer for emotional distress or punitive damages” in order to give

23

the opposing party proper notice of the claim against him. Cancellier v. Federated Dep’t

24

Stores, 672 F.2d 1312, 1319 (9th Cir. 1982); accord Red Rock Commc’ns, Inc. v. Am.

25

Telecasting, Inc., No. CV-S01-0611-PMP (LRL), 2006 WL 2432628, at *5 (D. Nev.

26

Aug. 21, 2006) (“Courts have interpreted [Rule 54(c)] to mean a plaintiff need not

27
28

3

Hoffman v. Construction Protective Services, Incorporated, on which Defendants
rely, is inapposite. Doc 132 at 3, citing 541 F.3d 1175 (9th Cir. 2008). Hoffman was not
a § 1983 action, did not involve a pro se prisoner or litigant, and upheld the exclusion of
damages as a sanction for failure to disclose under Rule 26(a). Id. at 1177-80.
- 10 -

1

specifically claim punitive damages in the complaint so long as the complaint alleges

2

conduct that would support a claim for punitive damages, and the evidence at trial

3

supports sending the issue to the trier of fact”). But, if it appears that a failure to request

4

specific relief substantially prejudiced the defendant, “Rule 54(c) does not sanction the

5

granting of relief not prayed for in the pleadings.” Rental Dev. Corp. of Am. v. Lavery,

6

304 F.2d 839, 842 (9th Cir. 1962); Red Rock Commc’ns, 2006 WL 2432629, at *5; Int’l

7

Harvester Credit Corp. v. E. Coast Truck, 547 F.2d 888, 891 (5th Cir. 1977).

8

Defendants argue that they are prejudiced by Plaintiff seeking punitive damages

9

“on the eve of trial” because they were precluded from filing dispositive motions on the

10

subject and “designed their defenses and interviewed the witnesses they intend to call

11

based upon the absence of a claim for punitive damages.” Doc. 132 at 3. The Court is

12

not persuaded. Defendants’ answer included an affirmative defense to punitive damages,

13

showing that they recognized well over a year ago that punitive damages could be an

14

issue in this case. Doc. 66 at 2 ¶ 11. Defendants’ filing of this motion in limine,

15

unprompted by any action from Plaintiff, further indicates that Defendants were aware

16

that Plaintiff might seek punitive damages at trial. And as Defendants concede, “[m]any

17

inmates routinely request punitive damages in their complaints against ADOC

18

employees.” Doc. 132 at 3.

19

Defendants also fail to show that they were prejudiced by being unable to seek

20

summary judgment regarding punitive damages. If Defendants could anticipate punitive

21

damages in their affirmative defenses and motions in limine, they could anticipate them

22

in their summary judgment motion.

23

The Court also concludes that Defendants would not have prevailed on such a

24

motion for summary judgment. Plaintiff’s Eighth Amendment claim is governed by the

25

“deliberate indifference” standard.

26

“acting or failing to act with deliberate indifference to a substantial risk of serious harm

27

to a prisoner is the equivalent of recklessly disregarding that risk.” 511 U.S. 825, 836

28

(1994) (emphasis added). A jury may assess punitive damages in a § 1983 action when

Doc. 109 at 13-14.

- 11 -

Under Farmer v. Brennan,

1

the defendant’s conduct “is shown to be motivated by evil motive or intent, or when it

2

involves reckless or callous indifference to the federally protected rights of others.”

3

Smith v. Wade, 461 U.S. 30, 56 (1983) (emphasis added). The Court denied summary

4

judgment on Plaintiff’s Eighth Amendment claim, finding sufficient evidence to raise a

5

question of fact as to whether Defendants recklessly disregarded a substantial risk of

6

serious harm to Plaintiff. Doc. 109 at 21-26. The Court likewise would have found a

7

question of fact on whether Defendants were recklessly indifferent to Plaintiff’s rights.

8

See Doe v. Beard, 63 F. Supp. 3d 1159, 1171 (C.D. Cal. 2014) (“Plaintiff alleges that

9

Defendants acted with deliberate indifference to a substantial risk to his safety, and his

10

allegations could also give rise to an inference of indifference to his rights” and support

11

an award of punitive damages).

12

Nor can the Court conclude that Defendants’ trial preparation would be different

13

with punitive damages expressly in this case.

14

anticipated a punitive damages claim from the filing of their answer. And the Court

15

cannot conclude that they would have interviewed witnesses differently when a basic

16

question in this case has always been whether Defendants were deliberately indifferent to

17

Plaintiff’s wellbeing. Defendants have not shown that they will be prejudiced if Plaintiff

18

is permitted to seek punitive damages at trial.

19

III.

As already noted, Defendants have

Prospective Issues.

20

In connection with the final pretrial conference and preparing proposed jury

21

instructions and a verdict form, the parties should consider the following issues:

22

(1) because the elements of proof are different for a conditions of confinement claim than

23

a claim for neglect of serious medical needs, the Court presumes that it must give the jury

24

separate instructions for each of these claims and that the verdict form should reflect

25

these as separate claims (this is also true because the medical claim is asserted against

26

some but not all of the Defendants); (2) whether, if there is no physical injury on the

27

conditions of confinement claim, there is any other compensable harm for an Eighth

28

Amendment violation (aside from nominal and punitive damages).

- 12 -

1

IT IS ORDERED that Defendants’ Motion in Limine (Doc. 132) is denied.

2

Dated this 30th day of May, 2017.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 13 -