in Re: Bayside Prison Litigation Tavius Lindsey v. William Fauver; Scott Faunce; Gary Hilton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-3739
_____________
IN RE: BAYSIDE PRISON LITIGATION
TAVIUS LINDSEY
v.
WILLIAM FAUVER;
SCOTT FAUNCE;
GARY HILTON,
Appellants
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 97-cv-05127)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
May 20, 2009
Before: RENDELL and GARTH, Circuit Judges,
and VANASKIE, District Judge*
(Filed: July 22, 2009)
*Honorable Thomas I. Vanaskie, Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.

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Hilton is also referred to in the record as the Commissioner’s “Chief of Staff.”1
Defendants’ Appendix (“D.A.”) 830a.
The jury awarded compensatory damages of $3,000, $2,000, and $2,000, and punitive2
damages of $15,000, $10,000, and $10,000, against Faunce, Fauver, and Hilton,
respectively.
2
RENDELL, Circuit Judge.
This appeal comes to us from a jury verdict in favor of plaintiff inmate Tavius
Lindsey and against defendants Scott Faunce, the Chief Administrator of Bayside State
Prison; William Fauver, the Commissioner of Corrections; and Gary Hilton, the Deputy
Commissioner. Damages were awarded against defendants in the amounts of $18,000,1
$12,000, and $12,000, respectively. Lindsey’s suit under 42 U.S.C. § 1983 arises from2
events that occurred during a lockdown in the prison following the death of a guard. We
must decide, first, whether defendants are entitled to a new trial because the District
Court improperly permitted Lindsey to testify about his injuries, and second, whether
legally sufficient evidence supported the jury’s determination of liability and damages.
We conclude that Lindsey’s testimony was admissible under Fed. R. Evid. 701, which
governs opinions offered by a lay witness, and that adequate evidence supported the jury
verdict. We will thus AFFIRM the order of the District Court.
Because we write solely for the benefit of the parties, we confine our discussion to
the facts salient to this appeal. Lindsey’s claims arose during a lockdown of Bayside
State Prison (“Bayside”), ordered after the death of a guard. Lindsey alleges that he was
severely beaten by Special Operations Group (“SOG”) personnel deployed to secure the

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The District Court exercised jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. §3
1334. Our jurisdiction is proper under 28 U.S.C. § 1291.
3
facility during the lockdown. Lindsey subsequently filed suit under 42 U.S.C. § 1983,
claiming that defendants were deliberately indifferent to a substantial risk of serious harm
to him, when they failed to respond to numerous allegations of inmate abuse. Following a
jury trial, judgment was entered in favor of Lindsey and against defendants. Defendants
requested a new trial on alternative grounds – the District Court improperly permitted
Lindsey to testify about his injuries, and the verdict was not supported by sufficient
evidence. Judge Kugler denied the motion in its entirety, and defendants appealed.3
Defendants’ first contention is that the District Court erred in permitting Lindsey
to testify about his recurring headaches and wrist pain since the date of the assault, thus
entitling defendants to a new trial. Where a party seeks a new trial, we accord substantial
deference to the decision of the trial judge, “who saw and heard the witnesses and has the
feel of the case which no appellate printed transcript can impart.” Bhaya v. Westinghouse
Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990) (quoting Cone v. West Virginia Pulp &
Paper Co., 330 U.S. 212, 216 (1947)). Where a motion for new trial is based on an
evidentiary ruling, “[w]e review a district court’s decision to admit or exclude evidence
for abuse of discretion, although our review is plenary as to the district court’s
interpretation of the Federal Rules of Evidence.” Marra v. Philadelphia Hous. Auth., 497
F.3d 286, 297 (3d Cir. 2007). We will not disturb the district court’s exercise of

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4
discretion “unless there is a definite and firm conviction that the court below committed a
clear error of judgment.” Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 127
(3d Cir. 1993)(quoting Ferrero, U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44, 48 (3d
Cir. 1991)).
Here, Lindsey testified that he has suffered chronic headaches and wrist pain since
the date of the assault. D.A. 725-731a. Confining his testimony to his subjective
sensations, Lindsey recounted the location, intensity, and onset date of his pains. He did
not offer a medical diagnosis, prognosis, or other opinion requiring special expertise. On
these facts, we easily conclude that Lindsey’s testimony, which was “rationally based on .
. . [his] perception” and was “not based on scientific, technical, or other specialized
knowledge,” was admissible under Fed. R. Evid. 701. See Cotton v. Consolidation Coal
Co., 457 F.2d 641, 643 (6th Cir. 1972) (“It has long been recognized that a lay witness
may testify as to his own physical condition or that of another person provided such
witness first states the detailed facts and then gives his conclusions.”); see also Hrichak v.
Pion, 498 F.Supp.2d 380, 382 (D. Me. 2007) (“[A] lay witness . . . may testify ‘regarding
subjective symptoms including, but not limited to, pain from or the existence of bruises,
cuts, and abrasions resulting from the beating . . . because it does not require the
knowledge of an expert witness.’” (quoting Townsend v. Benya, 287 F.Supp.2d 868, 875

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Defendants also maintain that the District Court’s admission of hearsay evidence4
warrants a new trial. Lindsey testified that his doctor told him that a mark on his face was
“scar tissue from what took place [the assault].” D.A. 730a. Even assuming, arguendo,
that this statement was inadmissible, no prejudice resulted: the statement was brief,
isolated, and largely duplicative of Lindsey’s own testimony about his facial injuries.
Defendants also argue that plaintiff’s counsel improperly argued in his summation5
that Lindsey suffered “lasting and permanent” injuries to his head and wrist from the
assault. Because this assertion rested on an adequate evidentiary foundation, this
argument was proper.
5
(N.D. Ill. 2003))).4
Alternatively, Defendants contend that Lindsey’s testimony was insufficient to
establish causation – that his assault was responsible for his recurring headaches and
wrist pain. “[N]ew trials because the verdict is against the weight of the evidence are
proper only when the record shows that the jury’s verdict resulted in a miscarriage of
justice or where the verdict, on the record, cries out to be overturned or shocks our
conscience.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).
Lindsey’s detailed testimony about the location and force of the blows dealt to his head
and face, the manner in which guards affixed his handcuffs, and his recurring cranial and
wrist pain near the points of impact, were sufficient for a jury to infer that the assault
caused his injuries. Such an inference was particularly reasonable here, where no
contrary evidence was introduced, no alternative explanation for plaintiff’s recurring
headaches was offered, and no meaningful impeachment of plaintiff’s testimony
occurred. We thus decline to disturb the jury verdict.5
Next, defendants contend that the verdict was unsupported by adequate evidence.

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6
In Farmer v. Brennan, the Supreme Court clarified that supervisory liability may attach
when an “official knows of and disregards an excessive risk to inmate health and safety;
the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” 511 U.S.
825, 837 (1994) (quoted in Kaucher v. County of Bucks, 455 F.3d 418, 427 (3d Cir.
2006)). Defendants insist that they were unaware of allegations of inmate abuse, and that
the decision to deploy and maintain a SOG presence at Bayside was necessary to secure
the facility. We consider the evidence relevant to each defendant in turn.
Adequate evidence supported the jury’s determination that Faunce, Bayside’s
administrator, knew, but chose to disregard, allegations of inmate abuse. Ombudswomen
Maggie Aguero, Margaret Lebak, and Jessie Rojas testified that they communicated to
Faunce, verbally and in writing, that they received numerous allegations of inmate abuse.
D.A. 678-680a, 685a, 686-89a, 707-708a. In fact, Faunce acknowledged that he received
one to two allegations of inmate abuse daily from the lockdown’s inception. D.A. 674-
75a. Despite the seriousness of these reports, Faunce, according to Aguero, dismissed
them, suggesting that inmates’ injuries resulted instead from their “slipping inside their
cells and injuring themselves against the metal bunks.” D.A. 708a. Faunce took no
specific measures to investigate or curb the abuse. We believe that a jury could rationally
conclude on these facts that Faunce acted with deliberate indifference to plaintiff’s rights.
Adequate evidence also supported the jury’s determination that Hilton, the Deputy

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Hilton testified as follows in his deposition:6
Q: [N]ow, as a result of your travels through Bayside and (sic)
lockdown, did you examine – did you see any evidence of inmates
who had, you know, even bruised, cuts or abrasions, any of that
stuff?
A: Nothing that was – if they did, it wasn’t significant enough that –
I mean I wasn’t going up and let me – but I mean there were no
inmates that couldn’t stand up or that, you know, that had been
bloodied up and nobody had cleaned them up or anything like that.
And there weren’t any medical reports of at that level of and
essentially if there had been in any judgment systematic brutality,
systematic brutality escalates, it starts with a push, it then goes to
something more than a push, then a punch, then a strike. Once
systematic brutality starts, it escalates and a push becomes a shove, a
shove becomes a punch, et cetera, et cetara. And I did not see that
nor was it being reported to me.
D.A. 771a. In light of Hilton’s imprecise and evasive response, and other evidence
adduced at trial, a jury could reasonably conclude that Hilton was aware of physical
abuse.
7
Commissioner, was aware of allegations of inmate abuse. Aguero testified that she
communicated to Hilton reports of abuse, inmates’ visible physical injuries, and Faunce’s
lackluster response. D.A. 707-709a. Confronted with this information, Hilton did
nothing. D.A. 708a. More troublesome, when Aguero indicated her desire to memorialize
her observations, Hilton directed her “not to put it in writing.” D.A. 709a. Hilton also
acknowledged that he did not confront SOG personnel after his conversation with
Aguero. D.A. 770a. When asked whether he observed any injured inmates during his
numerous visits to Bayside during the lockdown, Hilton vacillated. D.A. 770-71.6

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8
Defendants respond that Hilton learned of inmate abuse only after Lindsey’s
assault on August 14, 1997, and thus the jury’s imposition of supervisory liability was
improper. Persuaded by this argument, the dissent notes that, although Aguero testified
that she met with Faunce at 8:00 a.m. on August 14, a time sheet indicated her arrival at
Bayside on August 14 at 3:00 p.m. – several hours after Lindsey was assaulted. Further,
the dissent maintains that Aguero’s discussion with Hilton necessarily occurred after
Lindsey’s assault on August 14, 1997, because Aguero discussed allegations of inmate
abuse with Faunce on August 14, and because the record is clear that Aguero met with
Hilton only after her meeting with Faunce. This chronology, the dissent reasons,
confirms that Aguero met with Hilton after Lindsey’s assault, and that the jury’s contrary
conclusion was unsustainable.
Although the dissent correctly observes that Aguero met with Hilton after she
briefed Faunce, the dissent assumes as fact a proposition that the jury was within its
discretion to reject – that the meeting between Aguero and Faunce occurred on August 14,
1997. Adequate evidence supported the jury’s apparent determination that Aguero and
Faunce met on August 13, not August 14, 1997, and that Aguero promptly apprised Hilton
of allegations of inmate abuse – before Lindsey’s assault. Describing her activities on
August 13, Aguero testified, “I also was briefed by the Administrator [Faunce].” A. 707a.
On cross-examination, Aguero reiterated this fact, noting that she discussed allegations of
inmate abuse with Faunce on August 13, 1997. A. 714a. Whether Aguero had further

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As discussed, when asked whether he encountered any injured inmates in the gym,7
Hilton vacillated. Downplaying the severity of the injuries observed, Hilton testified that
he did not see any inmates who were “bloodied up” or “couldn’t stand up.” A. 771a. The
jury, however, was entitled to disbelieve Hilton’s characterization of inmates’ injuries.
9
discussions with Faunce on August 14, 1997, as the dissent maintains, is of no moment;
Aguero’s testimony was sufficient to permit a jury to conclude that Aguero discussed
guard misconduct with Faunce on August 13, 1997, and with Hilton shortly thereafter.
Accordingly, we reject the dissent’s conclusion that the evidence forecloses an inference
that Aguero communicated allegations of inmate abuse to Hilton prior to Lindsey’s
assault on August 14.
There was also uncontroverted evidence that Hilton toured the Bayside gymnasium
on August 2, 1997, where inmates had been temporarily relocated, and that several
prisoners in the gym had visible, fresh cuts and bruises. A. 677-78a. A jury could
reasonably conclude that these injuries effectively apprised Hilton of inmate
mistreatment. See Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (“[A]7
defendant’s knowledge of a risk can be proved indirectly by circumstantial evidence.”);
see also Farmer, 511 U.S. at 842 (“Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence, . . . and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact that the risk was obvious.”).
Finally, a jury could conclude that it was unrealistic that Hilton, who, as Deputy

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10
Commissioner, was charged with monitoring and reporting significant developments at
Bayside to the Commissioner during the lockdown, was oblivious to inmate abuse. In
Farmer, 511 U.S. at 842-43, the Supreme Court explained:
For example, if an Eighth Amendment plaintiff presents evidence showing
that a substantial risk of inmate attacks was “longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus ‘must have known’
about it, then such evidence could be sufficient to permit a trier of fact to
find that the defendant-official had actual knowledge of the risk.
As discussed, Hilton visited Bayside repeatedly during this time period specifically to
monitor lockdown conditions. A. 678a, 770a. Moreover, Hilton communicated regularly
with Bayside officials about the lockdown, including Faunce, who acknowledged
receiving one to two complaints of inmate abuse daily since the lockdown’s inception,
and who was regularly updated on prison conditions by ombudswomen deployed to the
prison. A. 694a, 696a, 769-70a. The record reflects that this chain of command was
adequate to inform Hilton of significant developments at Bayside, including, presumably,
repeated reports of inmate abuse. D.A. 769-771a. On this record, a “trier of fact [was
entitled] to find that the defendant-official had actual knowledge of the risk,” having been
exposed to information from multiple sources about that risk, and not that the defendant-
official merely “should have” known of the risk. Farmer, 511 U.S. at 842-43.
Legally sufficient evidence also supported the jury’s determination of liability with
respect to Fauver, the Commissioner of Corrections. The jury could reasonably conclude

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When asked about whether Hilton or Faunce indicated to him the problems they were8
facing at the Bayside prison after the murder, Fauver did not deny being told of the
situation, but rather stated that he could not recall. D.A. 769a.
We also reject Defendants’ contention that insufficient evidence supported the jury’s9
finding that Fauver was aware of allegations of inmate abuse before Lindsey’s assault.
First, Hilton confirmed that he communicated Aguero’s report of inmate abuse to Fauver
in a “timely and effective” manner. A. 771a. Second, Fauver acknowledged that he
regularly communicated with principals, including Faunce and Hilton, about prison
conditions during the lockdown. A. 769a. Because Faunce testified that he received daily
complaints of inmate abuse from the lockdown’s inception, a jury could rationally
conclude that Faunce timely communicated these complaints to Fauver, and that Fauver
thus knew of allegations of inmate abuse before August 14, 1997.
Defendants challenge the sufficiency of the evidence supporting the punitive10
damages verdict – not the specific sum awarded. Although “remittitur” appears in a
caption in defendants’ appellate brief, the term is wholly absent from the argument
section of the brief, which does not mention the Due Process Clause of the U.S.
11
that Hilton and Faunce timely conveyed reports of inmate abuse to Fauver, who
confirmed that he regularly “talk[ed] to principals” during the lockdown. D.A. 769a. In
his deposition, Hilton explained that, “[E]veryone reported through me [Hilton] to the
commissioner,” and that he had “gotten the information [alleged inmate abuse] to the
commissioner in a timely and effective manner.” D.A. 769-771a. Despite these reports,8
there is no evidence that Fauver directed a special investigation, disciplined responsible
personnel, modified lockdown procedures, or implemented other safeguards to avoid
future incidents. On this record, we cannot conclude that the jury verdict “cries out to be
overturned or shocks the conscience.” Williamson, 926 F.2d at 1353.9
Defendants’ final contention is that inadequate evidence supported the punitive
damages verdict. Judge Kugler properly instructed the jury, advising them that punitive10

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Constitution or urge that the amount of damages awarded was excessive. Appellants’ Br.
at 32-33 (“[T]here was no evidence that any of the Defendants acted in such a manner
[with reckless disregard of Plaintiff’s constitutional rights], and as such Plaintiff
presented no evidence to support any award of punitive damages against Defendants.
Thus, the award of punitive damages against Defendants is unsupported by the record and
must be vacated.”). Because defendants’ sole contention is that insufficient evidence
supported the punitive damages verdict, we confine our analysis to this argument.
12
damages could be imposed if “defendants engaged in reckless or callous indifference . . .
to the plaintiff’s federally protected right[s],” and if compensatory damages were
insufficient to deter misconduct in the future. D.A. 814a. As discussed, Lindsey
introduced evidence sufficient for a reasonable jury to conclude that Faunce, Hilton, and
Fauver, who were aware, but chose to disregard, reports of inmate abuse, acted with
deliberate indifference to plaintiff’s constitutional rights. See Farmer, 511 U.S. at 836
(“[A]cting or failing to act with deliberate indifference to a substantial risk of serious
harm to a prisoner is the equivalent of recklessly disregarding that risk.”). Other facts
also supported a punitive damages verdict here: that Lindsey suffered physical rather than
solely economic harm; that Fauver, Hilton, and Faunce occupied unique positions of
authority and responsibility; and that punitive damages were potentially necessary to deter
administrative complacency and ensure inmate safety. Accordingly, the imposition of
punitive damages was not improper.
For the foregoing reasons, the order of the District Court will be AFFIRMED.

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13
GARTH, Circuit Judge, dissenting in part and concurring in part:
I agree with Judge Rendell that the jury verdict in favor of plaintiff inmate Tavius
Lindsey should be affirmed as to Scott Faunce. I write separately, however, because as to
Fauver and Hilton, there was insufficient evidence that they were deliberately indifferent.
Accordingly, as to those two defendants, I would vacate the jury verdict.
A finding of deliberate indifference requires proof of subjective knowledge, not
objective knowledge, “meaning that the official must actually be aware of the existence
of the excessive risk; it is not sufficient that the official should have been aware.”
Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (emphases added). Although
subjective knowledge “can be proved by circumstantial evidence,” the excessive risk
must be “so obvious that the official must have known of the risk.” Id.
The relevant question here is not whether Hilton and Fauver did take, or would
have taken, reasonable steps to prevent the harm to Lindsey; that question is only reached
if it is first established that Hilton and Fauver had actual, subjective knowledge of the risk
of harm before Lindsey was assaulted such that they could have taken action to prevent it.
Without that timely knowledge, there can be no deliberate indifference.
The facts cited by the majority do not meet this standard. The majority relies
primarily on the fact that ombudswoman Maggie Aguero met with Hilton and conveyed
her concerns that prisoners were being abused. But Aguero’s testimony never establishes
when the meeting occurred. Aguero appears to have met with Hilton sometime on

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The majority responds at great length that the meeting between Aguero and Hilton11
might have occurred on August 13 rather than August 14. The point is simply that the
timing was, and remains, wholly unknowable based on the record available to the jury. In
any event, the timeline suggested by the majority is especially improbable given that,
when Aguero reported to Faunce on the evening of August 13, she had just completed a
14-hour shift, leaving open to question when she could have arranged an after-hours
meeting with Hilton. App. 706a, 770a. A midnight rendezvous seems even less likely to
have occurred in light of Aguero’s testimony that she still remained skeptical of the
inmates’ reports of abuse at that time. App. 711a.
Notably, the District Court did not rely on, or even mention, this meeting in its12
opinion.
14
August 14, the same day that Lindsey was assaulted. According to her testimony, she11
discussed her concerns first with Faunce when she arrived at Bayside at approximately
8:00 A.M. App. 714a. This statement, however, was contradicted by a timesheet that
recorded her arrival at Bayside at 3:00 P.M.—several hours after Lindsey was assaulted.
App. 715a. This timing is relevant because Aguero did not meet with Hilton until after
her initial meeting with Faunce, and Fauver in turn learned of Aguero’s concerns through
Hilton. App. 771a. Without any testimony as to when Aguero met with Hilton, the jury
could not have determined, and would have no basis for inferring, that Hilton and Fauver
had the requisite knowledge to be liable for the assault on Lindsey.12
To bolster its position, the majority also argues that Hilton was evasive when
asked whether he had witnessed any injured inmates during earlier tours of Bayside.
Although his answer was equivocal as to whether he saw injured inmates, he clearly
denied that he witnessed anything suggesting systematic brutality. Even if he did observe
injured inmates, it is not enough that he should have known that they were being

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15
assaulted by SOG officers; he must have had actual knowledge of the excessive risk of
harm, or the excessive risk must have been patently obvious. All that was proffered was
the suggestion that someone present at Bayside at the time should have seen the bruises,
cuts, and abrasions on these inmates, and therefore he should have known that rampant
abuse was occurring. These “should haves” do not satisfy our deliberate indifference
standard, and therefore cannot constitute sufficient evidence to hold Hilton and Fauver
liable.
Accordingly, I respectfully dissent as I would affirm the jury verdict as to Faunce,
but vacate it as to Hilton and Fauver.

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