United States District Court, E.D. Virginia,
Richmond Division.
Timothy BARNARD, Plaintiff,
v.
PIEDMONT REGIONAL JAIL AUTHORITY, et al., Defendants.

Civil Action No. 3:07CV566.
Sept. 3, 2009.

John Edward Davidson, Davidson & Kitzmann, PLC, Charlottesville, VA, for Plaintiff.

James Davis, Keysville, VA, pro se.

Michael Jackson, Prospect, VA, pro se.

Clarence Whitehead, Keysville, VA, pro se.

MEMORANDUM OPINION
RICHARD L. WILLIAMS, District Judge.

*1 Plaintiff Timothy Barnard, a Virginia inmate currently incarcerated at Powhatan Correctional Center, brings this action under 42 U.S.C. § 1983, alleging that Andrew Johnson, James Davis, Michael Jackson, and Clarence Whitehead (the ?Defendants?) violated his Eighth Amendment FN1 rights by subjecting him to physical assaults while he was incarcerated at the Piedmont Regional Jail (the ?Jail?) in Farmvilie, Virginia. On November 14, 2009, the Court entered default judgment as to Defendant Johnson. On January 8, 2009, the Court referred this matter to the Magistrate Judge for further proceedings. An evidentiary hearing was held, and on July 17, 2009, the Magistrate Judge filed an amended Report and Recommendation addressing issues of liability and proposing findings of fact relevant to damages. This matter is ripe for decision.

FN1. ?Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.? U.S. Const. amend. VIII.


I. THE MAGISTRATE'S REPORT AND RECOMMENDATION
The Magistrate Judge recommended the following findings of fact:

A. Disturbance at the Jail and Subsequent Assault on Plaintiff
Around 11:30 p.m. on September 20, 2005, corrections officers at the Jail instructed inmates to retire to their bunks. Inmates Matthews and Seck were watching television in the ?pod.? Defendant Davis turned off the television, pursuant to Jail procedure. Matthews, however, turned it back on. Davis then removed the television and a microwave from the pod. In response, inmates began throwing trash and debris. In the course of the disturbance, inmates overturned a mop bucket and trash can, and flipped the television to the floor.
Johnson and other staff members came into the pod and removed all of the inmates from the floor into D-housing unit, except for Barnard, Seck, and Matthews Jackson took Barnard, Seck, and Matthews to the ?sally port,? a secure hallway between the command center and recreational area that is not monitored by surveillance cameras. The guards intended to question these three inmates about the disturbance, which had dissipated by this time. Officers Whitehead, Jackson, Davis, Johnson, Merritt, and Williams were all present in the sally port.FN2 They formed a half-circle around the three inmates, interrogating them harshly about the trash and debris littering the pod. Barnard and Seck denied knowing who had thrown trash during the disturbance. Matthews admitted to turning the television back on after Davis had turned it off. Jackson grabbed Barnard by the front of his jumper and slammed him into the wall.

FN2. Both Williams and Merritt testified that they had been working in the central control tower during the disturbance, but were relieved of that duty and directed to the sally port.


The evidence indicated that Christopher Williams (no longer a defendant here) punched Barnard in the head, causing him to fall to the ground. The six corrections officers present in the sally port repeatedly hit and kicked Mr. Barnard The officers then threw Seck on top of Barnard and assaulted Seck in the same way. Inmate Matthews was still in the sally port at this time, but was not assaulted.
Johnson picked up Seck off the floor, and Jackson picked up Barnard. Barnard and Matthews were then escorted out of the room. They stood outside the doorway to the sally port while the officers continued to press Seck for more information about who threw the trash during the disturbance. While he stood outside the closed door, Barnard heard the officers beating Seek, who was screaming. Twenty or thirty seconds later, Davis took Seck away to the ?M-pod .? FN3 Jackson pointed to Barnard, indicating that he was next. Davis returned from escorting Seek to M-pod, and brought Barnard back into the sally port. Johnson pulled out his metal baton and stated to Barnard, ?Do you see this [expletive]? You two are going to get real acquainted if you don't start talking.?

FN3. ?M-pod? apparently refers to the isolation and segregation unit of the Jail.


*2 Johnson grabbed Barnard by the front of his jumper and threw him against the wall. Johnson used his metal baton to strike Barnard on the top of the head and slammed him to the wall once more. Barnard fell to the floor and curled into a ball on his left side. Johnson, Jackson, Davis, Whitehead, Merritt, and Williams all participated in hitting, stomping, and kicking Barnard, occasionally bracing themselves on the wall for leverage. Jackson delivered a forceful blow with his foot that likely caused Barnard's rib to break. During the incident, no officer intervened or otherwise attempted to stop the physical interaction.
The officers then took Barnard to M-pod and placed him in a cell with Seck When he asked Jackson for a medical form the following night, Jackson told Barnard to ?keep [his] mouth shut, or [he] would [experience physical retaliation] again? X-rays taken at University of Virginia Department of Radiology on October 26, 2005 revealed that Barnard had suffered a fractured eighth rib.

B. Jail's Investigation of Plaintiff's Grievance
Ernest Toney was a major at the Jail at the time of the incident, and is now the Superintendent of the Jail. Superintendent Toney conducted an investigation in response to a grievance filed by Barnard regarding the September 30, 2005 incident. The investigation occurred in early November 2005. He spoke to Barnard, Seck, and Matthews, as well as each of the corrections officers involved.
Superintendent Toney spoke with Sergeant Johnson twice. During the first interview with Johnson, Johnson denied that the officers hit anyone.FN4 The other officers' accounts of the incident discredited Johnson's assertion. Davis told Superintendent Toney that ?it got kind of rough? in the sally port, and that all the officers were involved in using force, but that Williams ?went a little overboard? in hitting him. Jackson also admitted to Superintendent Toney that all of the officers present hit Barnard and Seck that night. Jackson advised that he thought Williams and Johnson had gone too far in the amount of force used. Merritt told Superintendent Toney that Williams slammed Barnard to the floor, then everyone hit Seck and Barnard. Merritt also admitted that all of the officers hit Barnard and Seck. Superintendent Toney's interviews with Williams and Whitehead confirmed these details.

FN4. Johnson had instructed Williams and Whitehead to lie if asked about the incident and to that nothing had happened.


Barnard, Seck, and Matthews provided accounts of the incident consistent with those above when Superintendent Toney interviewed them. Matthews suffered no physical injuries. He had admitted that he had turned the television back on after Davis turned it off. Matthews advised Toney that while he could see Seck being struck, he could only hear the guards attack Barnard. Seck's version of events corroborated Barnard's and Matthews's descriptions, with the addition that, after the incident, ?Barnard told me to keep my mouth shut or we might get beaten again.?
On November 2, 2005, Superintendent Toney again spoke with Sergeant Johnson. During this second interview, Toney advised Johnson of the findings of the investigation. Johnson took full responsibility for the incident, stating that he should have handled the situation differently. Johnson then resigned, handed in his badge and ID, and was escorted from the Jail.FN5

FN5. Superintendent Toney testified that Johnson would have been fired had he not resigned.


*3 A November 4, 2005 report from Toney's supervisor, Major Pugh, who had referred the investigation to Toney, made disciplinary recommendations in response to Barnard's allegations. This report was entered into evidence as Plaintiff's Exhibit 2. It shows that the Jail decided that Johnson should be terminated, both because he was responsible for the shift during which the incident occurred, and because he attempted to coerce Williams and Whitehead into lying about the incident The report recommended written reprimands for Whitehead, Williams, Davis, Jackson and Merritt. Superintendent Toney explained that the lower-level officers received reprimands rather than termination because they were relatively new employees and had been following the directions of a veteran supervisor, Sergeant Johnson.
C. Extent and Nature of Plaintiff's Injuries
Plaintiff filed medical request forms on November 11 and 23, and December 7, 2005, seeking pain medication for his broken rib. On January 11, 2006, Barnard filed another medical request form, advising that he was suffering dizzy spells which he believed might be related to the assault by Johnson with the baton. Plaintiff testified that following the incident, he had a four- to five-inch welt on the top of his head, but that the pain from his broken rib ?blocked the pain from [his] head? because it hurt to breathe. He had to stop exercising for four to six weeks after the incident, and had trouble sleeping because of the rib pain. Barnard testified that his ribs did not feel normal again until January 2006, approximately three months after the incident.
During the incident, all of the Defendant Officers were on duty and in uniform. Plaintiff testified that, emotionally, he lost respect for prison officers and guards as a result of the incident, and no longer expects them to be concerned about protecting him from other inmates or other guards.

D. Defendants' Lack of Justification for Force Used
The evidence presented at the hearing overwhelmingly indicated that Barnard had done nothing to justify the level of force used against him by Defendants Barnard himself testified that, in the sally port, he ?made it a point to keep [his] arms crossed and actually stare at the floor, to look the least bit intimidating as possible? He never cursed or threatened the Defendants. He never lunged at any corrections officer. He has consistently contended that all he did was deny that he had done anything to contribute to the disturbance.
Officer Merritt testified that he did not see Barnard do anything to deserve being struck, nor did he see Barnard contribute to the disturbance that precipitated the beating. Officer Williams testified that Barnard was not pushing anybody in the sally port, but Sergeant Johnson ?put his hands on Barnard in a bad way,? knocking him to the ground to be ?restrained? by the rest of the Defendants. Superintendent Toney's investigation yielded no evidence of wrongdoing by Barnard, and in fact substantiated Barnard's grievance that the Defendants used excessive force against him. In court, it was evident that Barnard was approximately the same size as one Defendant, and smaller than the others.

*4 (July 17, 2009 Am. Report and Recommendation. 2-7) The Magistrate Judge then proposed the following conclusions of law:
1. Standard for Imposing Liability for Excessive Force
Section 1983 ?is not itself a source of substantive rights,? but instead is ?a method for vindicating federal rights elsewhere conferred.? Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). Plaintiff claims that the Defendants' attacks ? ?were willfully, wantonly, and maliciously employed to inflict pain on Mr. Barnard,? in violation of his Eighth Amendment right to be free from cruel and unusual punishment.FN6 (Compl.¶ 53-54.)

FN6. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984) (?The unjustified striking or beating of a prisoner by police or correctional officials constitutes cruel and unusual punishment which is actionable under 42 U.S.C. § 1983.?).


In the context of an excessive force claim under the Eighth Amendment, a court must consider ? ?whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.? ? Whitley v. Albers, 475 U.S. 312, 320-21 (1986) ( quoting Johnson v. Glick 481 F.2d 1028, 1033 (2d Cir.1973)). To succeed on such a claim, a prisoner must establish two requirements. Stanley v. Hejirika, 134 F.3d 629, 633-35 (4th Cir.1998). First, the prisoner ?must satisfy a subjective requirement that the force used by the corrections officers ?inflicted unnecessary and wanton pain and suffering.? ? Id. at 634 ( quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Second, the prisoner must also make an objective showing ?that correctional officers' actions, taken contextually, were ?objectively harmful enough? to offend ?contemporary standards of decency.? ? Id. ( quoting Hudson, 503 U.S. at 8). Barnard succeeds on both prongs.
Subjectively, the Court finds that the Defendants inflicted unnecessary and wanton pain and suffering on Barnard. By all accounts, Barnard simply denied wrongdoing as to the disturbance at the Jail, and did nothing to instigate or otherwise warrant the subsequent beatings to which Defendants subjected him. Indeed, the disturbance had quelled before any questioning began, so no disciplinary exigency continued to exist. The fact that Defendants subjected Barnard to a second round of excessive force demonstrates wantonness. Johnson's use of the metal baton on Barnard's head and the number of guards involved demonstrates wantonness as well

Objectively, the Defendants' actions offend contemporary standards of decency. See Hudson, 503 U.S. at 9 (?When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident?) (citation omitted) see also Romaine v. Rawson, 140 F.Supp.2d 204, 213 (N.D.N.Y.2001) (?[W]hen ... all parties admit that no amount of force was needed to maintain discipline and security within the prison, guards cannot physically assault prisoners simply because they are angry at them.?). Barnard suffered painful injuries through repeated use of force by Defendants. That the incident occurred in an area lacking cameras suggests ill intent ab initio. The evidence showing that the Jail would have fired Johnson absent his resignation confirms that these actions contravened contemporary standards of decency for corrections officers.

*5 Accordingly, the Court RECOMMENDS that judgment be entered in favor of Plaintiff on his § 1983 claim against all Defendants.

2. Joint and Several Liability
?In order for an individual to be liable under § 1983, it must be ?affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.? ? Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985) ( quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977)). Such personal involvement in an excessive force claim can be established by showing either: (1) direct participation in the assault by the defendant, or, (2) the defendant was present during the assault, yet failed to intercede on behalf of the victim even though he had a reasonable opportunity to do so. Jeffreys v. Rossi, 215 F.Supp.2d 463, 474 (S.D.N.Y.2003). Furthermore, ?[a] plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene.? Id.; see also Watts v. Laurent, 774 F.2d 168, 179 (7th Cir.1985) (?Federal common law principles of tort and damages govern recovery under section 1983. It is axiomatic that where several independent actors concurrently or consecutively produce a single, indivisible injury, each actor will be held jointly and severally liable for the entire injury.?) (citation omitted).
The evidence before this Court showed that each Defendant personally took part in the assault. Johnson bears the greatest culpability of the remaining four Defendants because he was a sergeant in charge of the other corrections officers led the other officers in the assault, and used a metal baton to strike Barnard. Jackson is the second-most culpable defendant because the evidence showed he caused the fracture of Barnard's rib. Finally, Davis and Whitehead must be held liable as well for their participation in the assaults.

(July 17, 2009 Am. Report and Recommendation 8-11.) The Magistrate Judge recommended an award of damages based on the following elements:
The uncontroverted evidence established that Plaintiff's injuries to his rib and his head were caused by Defendants' unconstitutional use of excessive force in the sally port of the Jail on September 30, 2005. Plaintiff testified that his broken rib caused him substantial pain and discomfort for about two months after the beating During this time he found it difficult to breathe, cough, sneeze, or sleep Three months after the incident, Plaintiff sought medical attention for dizzy spells that occurred whenever he looked upward. None of Plaintiff's physical injuries appear permanent in nature.

(July 17, 2009 Am. Report and Recommendation 11.) The Court advised the parties that they could file objections to the Amended Report and Recommendation within ten (10) days of the date of entry thereof. The parties did not object to the Amended Report and Recommendation.
II. STANDARD OF REVIEW
?The magistrate makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court.? Estrada v. Witkowski, 816 F.Supp. 408, 410 (D.S.C.1993) ( citing Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court ?shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.? 28 U.S.C. § 636(b)(1). ?The filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.? Thomas v. Arn, 474 U.S. 140, 147 (1985). This Court may adopt without de novo review any portion of the magistrate judge's recommendation to which the parties do not raise a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 316 (4th Cir.2005).

*6 There being no objections, and upon review of the record, the Amended Report and Recommendation is ACCEPTED AND ADOPTED.

III. DAMAGES
Because the Court has found that Defendants violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment, and Plaintiff presented credible evidence of excessive force and his resulting injuries, he is entitled to more than just nominal damages. See Denny v. Hinton, 900 F.2d 251, available at 1990 WL 34233 (4th Cir. Mar. 13, 1990) (No. 88-7211); Wheatley v. Beetar, 637 F.2d 863 (2d Cir.1980) (remanding for new trial on damages and holding that trial court erred in instructing jury it could award plaintiff anywhere from $1.00 in nominal damages up to the full amount of his compensable injuries, where plaintiff established uncontroverted evidence of injuries).

The Court has reviewed damages awards in similar excessive force situations. FN7 The Court will award $250.00 in compensatory damages each from Defendants Johnson, Jackson, Davis, and Whitehead. Moreover, in order to deter future violations, and to punish Defendants for egregiously violating Plaintiff's constitutional rights, the Court will award $3,000.00 in punitive damages against Johnson, $1,500.00 in punitive damages against Jackson, and $1,000.00 each in punitive damages against Davis and Whitehead. Additionally, the Court requests counsel for Plaintiff to submit a fee petition for an award of costs and attorney's fees, pursuant to 42 U.S.C. §§ 1988 and 1997e(d).

FN7. See, e.g., Hudson, 503 U.S. at 4, 12 (reversing decision of Fifth Circuit Court of Appeals that had vacated the magistrate's finding of prison guard's Eighth Amendment liability to inmate for unjustified assault that caused bruising and swelling, loose teeth, and a cracked dental plate and reinstating magistrate judge's award of $800 in damages); Romaine, 140 F.Supp.2d at 214 (awarding prisoner $1000 in compensatory damages and $500 in punitive damages against guard who struck him across the face three times); Berberena v. Pesquino, Civ. No. 03-557-CJP, 2007 WL 2778636 (S.D .Ill. Sept. 19, 2007) (finding jury award of $1.00 in nominal damages and $5000 in punitive damages neither inconsistent nor excessive, where defendant struck plaintiff with handcuffs after plaintiff was already subdued on the floor); Card v. D.C. Dep't of Corr., No. 2:00cv631, E.D. Va. April 24, 2006 (Docket No. 103) (jury award against three defendants of $5000 for each of five occasions plaintiff was restrained in five-point restraints for forty-eight hours at a time); see also Card, 2005 WL 2260167 (E.D.Va. Sept. 13, 2005) (granting plaintiffs motion for summary judgment as to liability for excessive force, but preserving question of punitive damages for jury).


An appropriate Order will accompany this Memorandum Opinion.

ORDER
In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that:

1. The Report and Recommendation is ACCEPTED AND ADOPTED;

2. Plaintiff is AWARDED compensatory damages in the amount of $250.00 from Defendants Jackson, Johnson, Whitehead, and Davis;

3. Plaintiff is AWARDED punitive damages in the following amounts:

a. $3,000.00 against Defendant Johnson,

b. $1,500.00 against Defendant Jackson, and,

c. $1,000.00 each against Defendants Davis and Whitehead; and,

4. Plaintiff's counsel is DIRECTED to submit, within eleven (11) days of the date of entry hereof, a fee petition for an award of costs and attorney's fees pursuant to 42 U.S.C. §§ 1988 and 1997e(d). A final order specifying the total amount of the damages award, including costs and fees, will issue thereafter.

The Clerk is DIRECTED to send a copy of the Memorandum Opinion and Order to Defendants and Counsel of Record.

And it is so ORDERED.

AMENDED REPORT AND RECOMMENDATION
M. HANNAH LAUCK, United States Magistrate Judge.

This Amended Report and Recommendation supplants the June 23, 2009 Report and Recommendation in its entirety. Plaintiff Timothy Barnard, a Virginia inmate currently incarcerated at Powhatan Correctional Center, brings this action under 42 U.S.C. § 1983,FN1 alleging that Andrew Johnson, James Davis, Michael Jackson, and Clarence Whitehead (the ?Defendants?) violated his Eighth Amendment FN2 rights by subjecting him to physical assaults while he was incarcerated at the Piedmont Regional Jail (the ?Jail?) in Farmville, Virginia. FN3 The Honorable Richard L. Williams referred this matter to the undersigned Magistrate Judge for an evidentiary hearing on liability as to Defendants Davis, Jackson, and Whitehead, and potential damages as to all remaining Defendants.FN4 The Court held the evidentiary hearing on May 7, 2009, after first providing the parties an opportunity to submit written briefs. Plaintiff and Defendants Davis, Jackson, and Whitehead were present at the hearing. The Court heard testimony from Plaintiff, former Jail officer Duane Merritt, former Jail officer Christopher Williams, and Ernest Toney, the current superintendent of the Jail. Defendants had an opportunity to cross-examine each witness. The matter is now ripe for adjudication. For the reasons stated below, the Court RECOMMENDS that judgment be entered in favor of Plaintiff on his § 1983 claim against Defendants Davis, Jackson, and Whitehead.

FN1. Section 1983 states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....


42 U.S.C. § 1983.

FN2. ?Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.? U.S. Const. amend. VIII.


FN3. Plaintiff's Complaint also sought relief under 42 U.S.C. § 1983 against the Piedmont Regional Jail Authority. (Compl.¶¶ 39-49.) On January 4, 2008, the Honorable Richard L. Williams granted Plaintiff's motion to dismiss the Jail Authority without prejudice. Plaintiff also alleged a cause of action for conspiracy under 42 U.S.C. § 1985. Plaintiff formally withdrew that claim at the close of the May 7, 2009 evidentiary hearing. Plaintiff functionally withdrew his battery claim against the individual defendants at the hearing as well, characterizing it as ?irrelevant? and noting that it was essentially subsumed by Plaintiff's § 1983 claim.


FN4. Defendant Andrew Johnson never answered the Complaint, and Judge Williams granted Plaintiff's motion for a default judgment against Johnson on November 14, 2008. (Docket No. 75.)


I. Findings of Fact
A. Disturbance at the Jail and Subsequent Assault on Plaintiff
*7 Around 11:30 p.m. on September 20, 2005, corrections officers at the Jail instructed inmates to retire to their bunks. Inmates Matthews and Seck were watching television in the ?pod.? Defendant Davis turned off the television, pursuant to Jail procedure. Matthews, however, turned it back on. Davis then removed the television and a microwave from the pod. In response, inmates began throwing trash and debris. In the course of the disturbance, inmates overturned a mop bucket and trash can, and flipped the television to the floor.

Johnson and other staff members came into the pod and removed all of the inmates from the floor into D-housing unit, except for Barnard, Seck, and Matthews. Jackson took Barnard, Seck, and Matthews to the ?sally port,? a secure hallway between the command center and recreational area that is not monitored by surveillance cameras. The guards intended to question these three inmates about the disturbance, which had dissipated by this time. Officers Whitehead, Jackson, Davis, Johnson, Merritt, and Williams were all present in the sally port.FN5 They formed a half-circle around the three inmates, interrogating them harshly about the trash and debris littering the pod. Barnard and Seck denied knowing who had thrown trash during the disturbance. Matthews admitted to turning the television back on after Davis had turned it off. Jackson grabbed Barnard by the front of his jumper and slammed him into the wall.

FN5. Both Williams and Merritt testified that they had been working in the central control tower during the disturbance, but were relieved of that duty and directed to the sally port.


The evidence indicated that Christopher Williams (no longer a defendant here) punched Barnard in the head, causing him to fall to the ground. The six corrections officers present in the sally port repeatedly hit and kicked Mr. Barnard. The officers then threw Seck on top of Barnard and assaulted Seck in the same way. Inmate Matthews was still in the sally port at this time, but was not assaulted.

Johnson picked up Seck off the floor, and Jackson picked up Barnard. Barnard and Matthews were then escorted out of the room. They stood outside the doorway to the sally port while the officers continued to press Seck for more information about who threw the trash during the disturbance. While he stood outside the closed door, Barnard heard the officers beating Seck, who was screaming. Twenty or thirty seconds later, Davis took Seck away to the ?M-pod .? FN6 Jackson pointed to Barnard, indicating that he was next. Davis returned from escorting Seck to M-pod, and brought Barnard back into the sally port. Johnson pulled out his metal baton and stated to Barnard, ?Do you see this [expletive]? You two are going to get real acquainted if you don't start talking.?

FN6. ?M-pod? apparently refers to the isolation and segregation unit of the Jail.


Johnson grabbed Barnard by the front of his jumper and threw him against the wall. Johnson used his metal baton to strike Barnard on the top of the head and slammed him to the wall once more. Barnard fell to the floor and curled into a ball on his left side. Johnson, Jackson, Davis, Whitehead, Merritt, and Williams all participated in hitting, stomping, and kicking Barnard, occasionally bracing themselves on the wall for leverage. Jackson delivered a forceful blow with his foot that likely caused Barnard's rib to break. During the incident, no officer intervened or otherwise attempted to stop the physical interaction.

*8 The officers then took Barnard to M-pod and placed him in a cell with Seck. When he asked Jackson for a medical form the following night, Jackson told Barnard to ?keep [his] mouth shut, or [he] would [experience physical retaliation] again.? X-rays taken at University of Virginia Department of Radiology on October 26, 2005, revealed that Barnard had suffered a fractured eighth rib.

B. Jail's Investigation of Plaintiff's Grievance
Ernest Toney was a major at the Jail at the time of the incident, and is now the Superintendent of the Jail. Superintendent Toney conducted an investigation in response to a grievance filed by Barnard regarding the September 30, 2005 incident. The investigation occurred in early November 2005. He spoke to Barnard, Seck, and Matthews, as well as each of the corrections officers involved.

Superintendent Toney spoke with Sergeant Johnson twice. During the first interview with Johnson, Johnson denied that the officers hit anyone.FN7 The other officers' accounts of the incident discredited Johnson's assertion. Davis told Superintendent Toney that ?it got kind of rough? in the sally port, and that all the officers were involved in using force, but that Williams ?went a little overboard? in hitting him. Jackson also admitted to Superintendent Toney that all of the officers present hit Barnard and Seck that night. Jackson advised that he thought Williams and Johnson had gone too far in the amount of force used. Merritt told Superintendent Toney that Williams slammed Barnard to the floor, then everyone hit Seck and Barnard. Merritt also admitted that all of the officers hit Barnard and Seck. Superintendent Toney's interviews with Williams and Whitehead confirmed these details.

FN7. Johnson had instructed Williams and Whitehead to lie if asked about the incident and to say that nothing had happened.


Barnard, Seck, and Matthews provided accounts of the incident consistent with those above when Superintendent Toney interviewed them. Matthews suffered no physical injuries. He had admitted that he had turned the television back on after Davis turned it off. Matthews advised Toney that while he could see Seck being struck, he could only hear the guards attack Barnard. Seck's version of events corroborated Barnard's and Matthews's descriptions, with the addition that, after the incident, ?Barnard told me to keep my mouth shut or we might get beaten again.?

On November 2, 2005, Superintendent Toney again spoke with Sergeant Johnson. During this second interview, Toney advised Johnson of the findings of the investigation. Johnson took full responsibility for the incident, stating that he should have handled the situation differently. Johnson then resigned, handed in his badge and ID, and was escorted from the Jail.FN8

FN8. Superintendent Toney testified that Johnson would have been fired had he not resigned.


A November 4, 2005 report from Toney's supervisor, Major Pugh, who had referred the investigation to Toney, made disciplinary recommendations in response to Barnard's allegations. This report was entered into evidence as Plaintiff's Exhibit 2. It shows that the Jail decided that Johnson should be terminated, both because he was responsible for the shift during which the incident occurred, and because he attempted to coerce Williams and Whitehead into lying about the incident. The report recommended written reprimands for Whitehead, Williams, Davis, Jackson, and Merritt. Superintendent Toney explained that the lower-level officers received reprimands rather than termination because they were relatively new employees and had been following the directions of a veteran supervisor, Sergeant Johnson.

C. Extent and Nature of Plaintiff's Injuries
*9 Plaintiff filed medical request forms on November 11 and 23, and December 7, 2005, seeking pain medication for his broken rib. On January 11, 2006, Barnard filed another medical request form, advising that he was suffering dizzy spells which he believed might be related to the assault by Johnson with the baton. Plaintiff testified that following the incident, he had a four- to five-inch welt on the top of his head, but that the pain from his broken rib ?blocked the pain from [his] head? because it hurt to breathe. He had to stop exercising for four to six weeks after the incident, and had trouble sleeping because of the rib pain. Barnard testified that his ribs did not feel normal again until January 2006, approximately three months after the incident.

During the incident, all of the Defendant Officers were on duty and in uniform. Plaintiff testified that, emotionally, he lost respect for prison officers and guards as a result of the incident, and no longer expects them to be concerned about protecting him from other inmates or other guards.

D. Defendants' Lack of Justification for Force Used
The evidence presented at the hearing overwhelmingly indicated that Barnard had done nothing to justify the level of force used against him by Defendants. Barnard himself testified that, in the sally port, he ?made it a point to keep [his] arms crossed and actually stare at the floor, to look the least bit intimidating as possible.? He never cursed or threatened the Defendants. He never lunged at any corrections officer. He has consistently contended that all he did was deny that he had done anything to contribute to the disturbance.

Officer Merritt testified that he did not see Barnard do anything to deserve being struck, nor did he see Barnard contribute to the disturbance that precipitated the beating. Officer Williams testified that Barnard was not pushing anybody in the sally port, but Sergeant Johnson ?put his hands on Barnard in a bad way,? knocking him to the ground to be ?restrained? by the rest of the Defendants. Superintendent Toney's investigation yielded no evidence of wrongdoing by Barnard, and in fact substantiated Barnard's grievance that the Defendants used excessive force against him. In court, it was evident that Barnard was approximately the same size as one Defendant, and smaller than the others.

II. Procedural History
In summer 2006, Barnard reported the incident to a state magistrate, who referred the matter to the Virginia State Police. (Compl.¶ 35.) The State Police investigated the matter, resulting in the release of the x-rays taken on October 26, 2005, to Barnard and his counsel. (Compl.¶ 36.) Barnard filed his Complaint on September 13, 2007. The Complaint originally named the Piedmont Regional Jail Authority, Andrew Johnson, James Davis, Michael Jackson, Christopher Williams, Duane Merritt, and Clarence Whitehead as Defendants. On January 4, 2008, Judge Williams granted Plaintiff's motion to voluntarily dismiss the Jail Authority. (Docket No. 21.) On October 7, 2008, Judge Williams granted Plaintiff's motion to voluntarily dismiss Duane Merritt. (Docket No. 56.) On November 6, 2008, Judge Williams granted Plaintiff's motion to voluntarily dismiss Christopher Williams. (Docket No. 70.) Defendants Davis, Jackson, and Whitehead subsequently filed Answers to the Complaint. (Docket Nos. 73, 76, 82.) Default judgment was entered against Johnson, who failed to respond to the Complaint.

III. Analysis
A. Liability

1. Standard for Imposing Liability for Excessive Force

*10 Section 1983 ?is not itself a source of substantive rights,? but instead is ?a method for vindicating federal rights elsewhere conferred.? Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). Plaintiff claims that the Defendants' attacks ?were willfully, wantonly, and maliciously employed to inflict pain on Mr. Barnard,? in violation of his Eighth Amendment right to be free from cruel and unusual punishment.FN9 (Compl.¶ 53-54.)

FN9. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984) (?The unjustified striking or beating of a prisoner by police or correctional officials constitutes cruel and unusual punishment which is actionable under 42 U.S.C. § 1983.?).


In the context of an excessive force claim under the Eighth Amendment, a court must consider ? ?whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.? ? Whitley v. Albers, 475 U.S. 312, 320-21 (1986) ( quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). To succeed on such a claim, a prisoner must establish two requirements. Stanley v. Hejirika, 134 F.3d 629, 633-35 (4th Cir.1998). First, the prisoner ?must satisfy a subjective requirement that the force used by the corrections officers ?inflicted unnecessary and wanton pain and suffering.? ? Id. at 634 ( quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Second, the prisoner must also make an objective showing ?that correctional officers' actions, taken contextually, were ?objectively harmful enough? to offend ?contemporary standards of decency.? ? Id. ( quoting Hudson, 503 U.S. at 8). Barnard succeeds on both prongs.

Subjectively, the Court finds that the Defendants inflicted unnecessary and wanton pain and suffering on Barnard. By all accounts, Barnard simply denied wrongdoing as to the disturbance at the Jail, and did nothing to instigate or otherwise warrant the subsequent beatings to which Defendants subjected him. Indeed, the disturbance had quelled before any questioning began, so no disciplinary exigency continued to exist. The fact that Defendants subjected Barnard to a second round of excessive force demonstrates wantonness. Johnson's use of the metal baton on Barnard's head and the number of guards involved demonstrates wantonness as well.

Objectively, the Defendants' actions offend contemporary standards of decency. See Hudson, 503 U.S. at 9 (?When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident.?) (citation omitted); see also Romaine v. Rawson, 140 F.Supp.2d 204, 213 (N.D.N.Y.2001) (?[W]hen ... all parties admit that no amount of force was needed to maintain discipline and security within the prison, guards cannot physically assault prisoners simply because they are angry at them.?). Barnard suffered painful injuries through repeated use of force by Defendants. That the incident occurred in an area lacking cameras suggests ill intent ab initio. The evidence showing that the Jail would have fired Johnson absent his resignation confirms that these actions contravened contemporary standards of decency for corrections officers.

*11 Accordingly, the Court RECOMMENDS that judgment be entered in favor of Plaintiff on his § 1983 claim against all Defendants.

2. Joint and Several Liability
?In order for an individual to be liable under § 1983, it must be ?affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.? ? Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985) ( quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977)). Such personal involvement in an excessive force claim can be established by showing either: (1) direct participation in the assault by the defendant, or, (2) the defendant was present during the assault, yet failed to intercede on behalf of the victim even though he had a reasonable opportunity to do so. Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 (S.D.N.Y.2003). Furthermore, ?[a] plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene.? Id; see also Watts v. Laurent, 774 F.2d 168, 179 (7th Cir.1985) (?Federal common law principles of tort and damages govern recovery under section 1983. It is axiomatic that where several independent actors concurrently or consecutively produce a single, indivisible injury, each actor will be held jointly and severally liable for the entire injury.?) (citation omitted).

The evidence before this Court showed that each Defendant personally took part in the assault. Johnson bears the greatest culpability of the remaining four Defendants because he was a sergeant in charge of the other corrections officers, led the other officers in the assault, and used a metal baton to strike Barnard. Jackson is the second-most culpable defendant because the evidence showed he caused the fracture of Barnard's rib. Finally, Davis and Whitehead must be held liable as well for their participation in the assaults.

B. Damages
The uncontroverted evidence established that Plaintiff's injuries to his rib and his head were caused by Defendants' unconstitutional use of excessive force in the sally port of the Jail on September 30, 2005. Plaintiff testified that his broken rib caused him substantial pain and discomfort for about two months after the beating. During this time he found it difficult to breathe, cough, sneeze, or sleep. Three months after the incident, Plaintiff sought medical attention for dizzy spells that occurred whenever he looked upward. None of Plaintiff's physical injuries appear permanent in nature.

Upon reconsideration from the original Report and Recommendation, the Court has determined that it should not make a recommendation as to damages at issue in the case, especially in the manner addressed previously. As such, the Court presents this Amended Report and Recommendation without any recommendation as to damages, and leaves that issue to the District Court. The Court continues to recommend that the Honorable Richard L. Williams order counsel for Plaintiff to submit a fee petition for an award of costs and attorney's fees, pursuant to 42 U.S.C. §§ 1988 and 1997e(d).

*12 The parties are ADVISED that they may file specific written objections to the Report and Recommendation within ten (10) days of the date of entry hereof. Each objection should be labeled with the corresponding heading from the Report and Recommendation, should be numbered, and should identify with specificity the legal or factual deficiencies of the Magistrate Judge's findings. Failure to file specific objections to the Report and Recommendation in a timely manner may preclude further review or appeal from such judgment. See Wright v. Collins, 766 F.2d 841 (4th Cir.1985).

The Clerk is directed to send a copy of the Amended Report and Recommendation to Plaintiff, to counsel of record, and to the Honorable Richard L. Williams.

United States District Court, E.D. Virginia,
Richmond Division.
Timothy BARNARD, Plaintiff,
v.
PIEDMONT REGIONAL JAIL AUTHORITY, et al., Defendants.

Civil Action No. 3:07CV566.
Oct. 21, 2009.

John Edward Davidson, Charles Michael Henter, Davidson & Kitzmann, PLC, Charlottesville, VA, for Plaintiff.

James Davis, Keysville, VA, pro se.

Michael Jackson, Prospect, VA, pro se.

Clarence Whitehead, Keysville, VA, pro se.

MEMORANDUM OPINION
RICHARD L. WILLIAMS, District Judge.

*1 On September 3, 2009, the Court entered an order accepting the Report and Recommendations of the Magistrate Judge, finding Defendants liable to Plaintiff, and awarding damages.FN1 The Court also ordered counsel for Plaintiff to submit a motion for an award of attorney's fees. On September 14, 2009, the Court received the motion for fees. On October 19, 2009, the Court received Defendant Jackson's response. This matter is ripe for judgment.

FN1. The Court awarded $250.00 in compensatory damages each from Defendants Johnson, Jackson, Davis, and Whitehead. The Court also awarded punitive damages in the amount of $3,000.00 against Johnson, $1,500.00 against Jackson, and $1,000.00 each against Davis and Whitehead.


Reasonable attorney's fees are authorized pursuant to 42 U.S.C. § 1988 to prevailing parties in § 1983 suits. 42 U.S.C. § 1988(b). To acquire prevailing party status, a plaintiff must achieve

... at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought .... In short, a plaintiff ?prevails? when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Plaintiff is a prevailing party under this standard, and therefore eligible for an award of attorney's fees.

In lawsuits filed by prisoners, federal courts may not award attorney's fees unless:

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and

(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

42 U.S.C. § 1997e(d)(1). Federal law also imposes a limit on the rate used to calculate the fee award. The maximum hourly rate may not be ?greater than 150 percent of the hourly rate established ... for payment of court-appointed counsel [in criminal cases].? FN2 42 U.S.C. § 1997e(d)(3). The exact award of fees depends on twelve factors:

FN2. The applicable rates are available online at http:// www.vaed.uscourts.gov/cja.


(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.
E.E.O.C. v. Serv. News Co., 898 F.2d 958, 965 (4th Cir.1990) ( quoting Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978)).
Federal law also imposes two further requirements on the total award of attorney's fees in prisoner suits resulting in a monetary award:

*2 Whenever a monetary judgment is awarded ... a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.

42 U.S.C. § 1997e(d)(2). This provision ?effectively caps a defendant's liability for attorney's fees in a prisoner's action at 150% of a money judgment.? Torres v. Walker, 356 F.3d 238, 242 (2d Cir.2004); see also Folk v. Charrier, 262 F.3d 687, 704 (8th Cir.2001) (holding that attorney was entitled to fees of $1.50 where prisoner plaintiff recovered $1.00 in damages); Boivin v. Black, 225 F.3d 36, 46 (1st Cir.2000) (denying constitutional challenge to cap on total fees when money damages are awarded). The Court must apply some portion of a prisoner's recovery to any attorneys fees award, but no specific amount is required. Parker v. Conway, 581 F.3d 198, 2009 WL 2962733, at *5 (3d Cir.2009) ( citing Boesing v. Hunter, 540 F.3d 886, 892 (8th Cir.2008)).

Counsel has submitted records and an affidavit demonstrating the expenditure of 156.1 hours on this case. The Court disagrees with counsel as to what base compensation rate FN3 and multiplier FN4 would be proper in calculating the total award. Nevertheless, the maximum award in this case is $11,250, or 150 percent of the $7,500 total recovery. Attorney's fees in excess of this amount would be reasonable, but are beyond the Court's power to grant.

FN3. Counsel requests payment at a rate of $165 per hour, which is 150 percent of the current rate of $110 per hour for counsel appointed under the Criminal Justice Act (?CJA?) in the Eastern District of Virginia. This rate, however, applies only to work performed after March 11, 2009. The earliest entry in counsel's records is August 3, 2006, at which time the payment rate for CJA attorneys was $92 per hour. The CJA rate rose from $92 to $94, $100, and finally $110 per hour over the course of counsel's representation. Rather than determining on counsel's behalf the total number of billable hours to which each rate applies, the Court would have used the $92 per hour figure as the baseline CJA rate for all work done in this case.


FN4. Counsel's experience and reputation factor in favor of an increased rate, as do his ultimate success in the suit, his opportunity costs, the undesirability of prisoner litigation in general, and the lack of an ongoing relationship with Plaintiff. Weighing against an increased rate are relatively simple legal issues raised in an assault at the hands of a prison guard and in difficulties in finding and serving Defendants, the level of skill necessary to present such a claim, the fact that such litigation is usually undertaken pro se, and the low monetary recovery. While the Court appreciates counsel's expertise and dedication to public service, the Court believes that this relatively simple case would not warrant payment over that normally granted a CJA-appointed attorney.


As requested by Defendant Jackson, the fee award shall be apportioned according to the relative culpability of each Defendant, as determined by the appropriate punitive damages award. See, e.g ., Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir.1996) (explaining that fee awards under 42 U.S.C. § 1988 may in appropriate cases be apportioned ?between an active instigator of a wrong and a more passive codefendant who had a more peripheral or ministerial role in the wrong?). Thus, Defendant Johnson shall be responsible for forty-six percent (46%) of the fee award; Defendant Jackson, twenty-three percent (23%); and Defendants Davis and Whitehead, fifteen percent (15%) each. The remaining 1% of the fee award shall be paid by Plaintiff. Counsel shall be entitled to the first $112.50 of any recovery of damages by Plaintiff in this action.

An appropriate Order will accompany this Memorandum Opinion.