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September 4, 2001


The opinion of the court was delivered by: Kessler, District Judge.


On January 24, 2001, following six days of trial including deliberations, a jury returned a verdict for Plaintiff on all claims in the amount of $174,178.00. Defendants have renewed their trial motion for judgment as a matter of law, Fed.R.Civ.P. 50(b), and alternatively move for a new trial pursuant to Fed.R.Civ.P. 59(a). Upon review of the motion, Plaintiffs opposition, the extensive record in this case and the applicable law, both motions will be denied, except that the verdicts assessing damages for violation of the Lorton Regulations Approval Act will be vacated based on the recent decision of the District of Columbia Court of Appeals in Coates v. Elzie, 768 A.2d 997 (D.C. 2001).*fn1

Plaintiff, a prisoner of the District of Columbia Department of Corrections, sued the District of Columbia and several employees of its Department of Corrections for injuries suffered as a result of allegedly unconstitutional actions in violation of the Civil Rights Act, 42 U.S.C. § 1983. The claims arose out of Plaintiffs residence in the Maximum Security Facility at the Lorton Correctional Complex in May 1997. For several months during 1997, Plaintiff was lodged in the lower left tier of Cell Block 3 in that facility, a cell block in which mentally ill prisoners and those requiring special handling were housed. Plaintiff alleged, and the testimony showed, that conditions in this cell block were characterized by excessive heat, lack of ventilation, water contaminated with feces and urine that flooded into the cells, smoke from rolled toilet paper "wicks", mace, excessive noise, and lack of outdoor recreation. Plaintiff contended that certain of the Defendants were aware of and tolerated these conditions, which constituted cruel and unusual punishment in violation of the Eighth Amendment. He also claimed that similar conditions persisted in the other tiers of Cell Block 3, where he was housed from September 30, 1999, to October 6, 2000.

Plaintiff also asserted that the deliberate failure of Defendants to comply with medical orders for treatment of his glaucoma and skin cancer exacerbated those conditions, again in violation of the Eighth Amendment. Other claims involved a due process violation for the procedure under which Plaintiff was transferred to the lower left tier of Cell Block 3 in May 1997, violations of the Lorton Regulations Approval Act, and the conditions of confinement in Cell Blocks 2 and 4 of the Maximum Security Facility from August 1997 through September 1999. Plaintiff presented both lay and expert testimony in support of his claims.


Defendants' motion for judgment as a matter of law must be denied "unless the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable [people] could not disagree on the verdict." Mackey v. United States, 8 F.3d 826 (D.C.Cir. 1993), citing Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1227 (D.C.Cir. 1984) (citations omitted). The Court may not, however, substitute its judgment for that of the jury by weighing the evidence or the credibility of the witnesses.

Defendants' motion for a new trial pursuant to Fed.R.Civ.P. 59 may be granted if "the verdict is against the weight of the evidence, damages are excessive, for other reasons the trial was not fair, or substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions." Dickerson v. HBO & Co., 1995 WL 767177 (D.C. 1995), citing Sedgwick v. Giant Food, Inc., 110 F.R.D. 175, 176 (D.C. 1986). The issue is essentially whether there was "a clear miscarriage of justice." Id.


A. Plaintiff's Closing Argument Regarding Damages

In closing argument, Plaintiffs counsel proposed specific dollar amounts for the jury's consideration in awarding damages. Defendants' objection was overruled at that time. The following morning, however, the Court instructed the jury to disregard the dollar amounts mentioned by counsel, reiterated that the arguments of counsel were not evidence, and instructed the jury that the amount of damages, if any were awarded, was for them alone to decide based on the record and all the Court's instructions. The verdict was not returned until 2:24 p.m., several hours after the supplemental instruction was given. Defendants argue that a new trial should be granted because counsel's closing argument was so improper that the Court's instructions were inadequate to overcome the prejudice.

The Courts of Appeals for the various circuits are divided as to whether the suggestion of an appropriate amount of damages in closing argument is per se improper. Some courts flatly prohibit counsel from mentioning any specific amount for pain and suffering; others have adopted "a more flexible approach that would leave the matter largely to the trial judge's discretion." See Mileski v. Long Island RR Co., 499 F.2d 1169, 1173-74 (2d Cir. 1974), and cases cited. The Court of Appeals for this Circuit, in its most recent published opinion, stated only that "to constitute reversible error a counsel's request for specific compensation must cause actual prejudice." Queen v. Washington Metro. Area Transit, 901 F.2d 135, 140 (D.C.Cir. 1990), citing Judge Youngdahl's discussion in Piper v. Andrews, 216 F. Supp. 758, 762 (D.C. 1963). In Queen, the court declined to find reversible error in an argument that counsel "thought `a million dollars' was appropriate compensation."*fn2 Id. The court relied on the express finding of the trial judge that no prejudice had ensued and that the suggested figure was supported by the plaintiffs evidence. Moreover, the appellate court noted, plaintiff's counsel had withdrawn his remark and apologized to the jury, and the court had immediately instructed the jury to disregard the suggestion.

In arguing that counsel's argument in this case created actual prejudice. Defendants rely on the coincidence that the amounts suggested by Plaintiffs counsel totaled $175,025 and the jury awarded damages of approximately that amount, $174,178. In fact, however, as Plaintiff points out, the amounts awarded by the jury on specific claims bear no relation to the amounts suggested by counsel. For example, counsel suggested an award of $41,600 to compensate for Plaintiffs first incarceration in Cell Block 3. The jury awarded a total of $21,501 in compensatory and $10,000 in punitive damages on that claim. For the failure to treat Plaintiff's skin cancer appropriately, counsel suggested $30,000 as appropriate compensation; the jury awarded Plaintiff $45,000 in compensatory and $20,000 in punitive damages. The jury rejected Plaintiffs suggestion that $74,200 would be appropriate compensation for his last tenure in Cell Block 3, awarding only $46,375 in compensatory damages (and $15,000 in punitive damages). The clearest indication that counsel's argument did not sway the jury is its refusal to award any damages for Plaintiffs 769 days in Cell Blocks 2 and 4, rejecting the suggestion that it award $19,225 because of the allegedly unconstitutional conditions of confinement in those cellblocks.

Before it heard the arguments of counsel, the jury was instructed specifically that the

statements and arguments of the lawyers, such as their opening and closing arguments, are not evidence. They are only intended to help you understand and interpret the evidence from each party's perspective.

The jurors were further instructed that

If you find for the plaintiff, then you must award the Plaintiff a sum of money which will fairly and reasonably compensate him for all the damage which he experienced which was proximately caused by any defendant.
The burden of proof is upon the Plaintiff to establish all elements of his damages by a preponderance of the evidence. The Plaintiff must prove his damages with reasonable certainty. You may only award the Plaintiff damages for past, present or future harm that is not speculative. Speculative damages are those that might be possible but are remote or based on guesswork. . . . You may award the Plaintiff damages that are based on a just and reasonable estimate derived from relevant evidence. . . . .

On the second day of jury deliberations, however, several hours before the verdict was returned, the Court, after hearing further argument, recalled the jury and instructed it specifically to disregard the dollar amounts suggested by counsel in closing argument. The Court reiterated that the arguments of counsel do not constitute evidence and that the decision as to whether to award damages and, if so, the amount of damages, was for the jury alone, to be based on the record and on all the Court's instructions.

The jury must be presumed to follow the Court's instructions. United States v. Olano, 507 U.S. 725, 740, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In this case, comparison of the verdict with counsel's suggested figures makes clear that this jury did follow the Court's instructions to disregard the dollar figures proposed by Plaintiffs counsel. The Court explicitly finds that Defendants were not prejudiced by counsel's suggestion of appropriate compensation for the various violations of Plaintiffs constitutional rights.

B. Physical Injury Under the Prison Litigation Reform Act

Defendants next contend that Plaintiffs claims are barred by Section 803(d) of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e), which provides that

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

This argument reiterates an argument made by Defendants in a motion for partial dismissal or partial summary judgment filed January 9, 2001, one week before the trial, which was opposed by Plaintiff and denied by the Court at the outset of trial on January 16, 2001.

Defendants rely on Davis v. District of Columbia, 158 F.3d 1342 (D.C.Cir. 1998), which upheld the constitutionality of Section 1997e(e), and on decisions in other circuits that relied on Section 1997e(e) to reject claims by prisoners who either did not allege physical injury or suffered only minor physical injuries from the allegedly unconstitutional actions of prison officials. Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997) (no allegation of physical injury); Sarro v. Essex County, 84 F. Supp.2d 175 (Mass. 2000) (no physical injury when asthma sufferer required to use inhaler for three days because of restricted airflow to cell)*fn3; Evans v. Allen, 981 F. Supp. 1102 (N.D.Ill. 1997) (no allegation of physical ...

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