Henry Unseld Washington v. ROBERT GILMORE, Warden

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2963
_______________
HENRY UNSELD WASHINGTON
v.
ROBERT GILMORE, Warden; TRACY SHAWLEY, War-
den’s Assistant; S.P. DURCO, RHU Commander; P.E.
BARKEFELT, RHU Lieutenant; A.J. MORRIS, Lieutenant;
C. WILLIAMS, Lieutenant; G. CRABLE, Sergeant; J.M.
SMITH, Sergeant; ROBERT NELSON, Corrections Officer;
T.S. OSWALD, Corrections Officer; L. COMER, Corrections
Officer; T.I. BENNETT, Property Officer/Corrections Officer;
R. HENDRICKS, Corrections Officer; J. CODDY, Correc-
tions Officer; J. HEGETER, Corrections Officer; D. FAR-
RIER, Corrections Officer; M. STUMP, Corrections Officer;
G. TAIT; J.D. SUHAN, Corrections Officer; IRMA
VIHLIDAL, Health Care Administrator; B. JIN, Medical Direc-
tor; M. PARK, Doctor; P. DASCANI, Doctor; M. COMER,
P.A.; E. MATTES, P.A.; E. MWUARA, P.A.;
P. DENNISON, Corrections Officer
T.S. OSWALD,
Appellant
_______________

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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:15-cv-01031)
District Judge: Honorable Cathy Bissoon
_______________
Argued: September 24, 2024
Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges
(Filed: December 18, 2024)
Sean A. Kirkpatrick
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE
Strawberry Square 15th Floor
Harrisburg, PA 17120
Anthony T. Kovalchick [ARGUED]
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE
APPELLATE LITIGATION SECTION
1251 Waterfront Place
Pittsburgh, PA 15222
Counsel for Appellant
Samuel Weiss [ARGUED]
Amaris A. Montes
RIGHTS BEHIND BARS
1800 M Street NW
Front 1 #33821
Washington, DC 20003
Counsel for Appellee

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_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Juries have leeway to punish and deter wrongdoers with
punitive damages. Prison guard T.S. Oswald sexually abused a
prisoner twice. So the jury ordered him to pay not only $20,000
in compensation for each assault, but also $25,000 in punitive
damages for the first one and $200,000 for the second.
We will affirm the jury’s award. Oswald denies that there
was enough evidence that he committed the assault, but there
was. He also challenges the punitive damages as excessive. But
the assaults were blameworthy, the awards are in the range of
comparable cases, and even the 10-to-1 ratio of punitive-to-
compensatory damages is fitting.
I. OFFICER OSWALD SEXUALLY ASSAULTED
WASHINGTON TWICE
On this appeal from a jury verdict, we view the facts in the
light most favorable to the prevailing party: state prisoner
Henry Washington. CGB Occupational Therapy, Inc. v. RHA
Health Servs. Inc., 357 F.3d 375, 379 (3d Cir. 2004).
In 2013, Oswald and another guard came to move Wash-
ington from his cell to the prison’s visiting room. They hand-
cuffed Washington and hooked a tether to his cuffs. A guard
“started to rub and touch [him] in a very sexual manner.” App.
109. They kept trying to push a nightstick into his rectum.

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When he tried to move away, they jerked the tether or poked
him with a pin or needle.
At the visiting room, “someone … insert[ed] their finger
into the cleavage of [his] buttocks.” App. 110. Washington
jumped. Oswald yanked on his tether so hard that it pulled his
arms “through the wicket” in the door to the visiting room. Id.
The other guard prodded his testicles with the nightstick “so
vigorously” that Washington collapsed “to the floor.” App.
110–11.
On the walk back to Washington’s cell, the guards again
prodded him with the nightstick, poked him with the pin or
needle, and called him “honey,” “sugar,” and “blackberry.”
App. 111. By the time he got back to his cell, “blood [was]
running down the back of [his] leg” and his “crotch was all
soaked with blood.” App. 112. He was “bleeding from [his]
buttocks … [a]nd … penis.” App. 138.
Two years later, Oswald assaulted Washington again.
While walking Washington back to his cell in handcuffs, Oswald
fondled him all over his back and “rump,” “shove[d] his finger
into [Washington’s] buttocks” like he was “trying to insert his
finger into [Washington’s] rectum,” and again called him
“sweet dark sugar” and “blackberry.” App. 113–14.
Washington sued Oswald under 42 U.S.C. § 1983 for inflict-
ing cruel and unusual punishment. U.S. Const. amend. VIII.
The jury found for Washington. For the 2013 assault, it
awarded him $20,000 in compensatory damages plus $25,000
in punitive damages; for the 2015 assault, $20,000 plus
$200,000.

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After the verdict, Oswald moved for judgment as a matter
of law or a new trial, claiming that there was insufficient evi-
dence that he was the one who had assaulted Washington. He
also moved for remittitur, asking the District Court to reduce
the punitive damages as excessive under the Constitution, state
law, and federal common law. The court denied all these motions.
Oswald now appeals. We review the District Court’s denial
of judgment as a matter of law de novo and its denial of a new
trial for abuse of discretion. Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166–67 (3d Cir. 1993). We ordinarily
review the District Court’s denial of a motion for remittitur for
abuse of discretion. Jester v. Hutt, 937 F.3d 233, 238 (3d Cir.
2019). But where, like here, we review a district court’s “deci-
sion upholding the constitutionality” of a punitive damages
award, our review is de novo. Willow Inn, Inc. v. Pub. Serv.
Mut. Ins. Co., 399 F.3d 224, 230 (3d Cir. 2005) (citing Cooper
Indus. v. Leatherman Tool Grp., 532 U.S. 424, 431 (2001)).
II. THERE WAS ENOUGH EVIDENCE TO FIND
OSWALD LIABLE
Oswald does not deny that Washington was assaulted by
someone but, as noted, disputes that there was enough evidence
that he was the one who did it. In essence, he argues that Wash-
ington had to identify him by name but did not. If “a reasonable
jury would not have a legally sufficient evidentiary basis” to
find Oswald responsible, the District Court may grant judg-
ment as a matter of law. Fed. R. Civ. P. 50(a)(1). Oswald pre-
served this argument by moving for judgment as a matter of
law at the close of Washington’s case and again after the jury’s
verdict. Fed. R. Civ. P. 50(a)–(b).

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But Oswald’s claim fails. Judgment as a matter of law is
proper only if the record is “critically deficient of the minimum
quantum of evidence” needed to support the verdict. See
Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083
(3d Cir. 1995). It is not. Drawing “all reasonable and logical
inferences” in Washington’s favor, the jury had enough evi-
dence to find that Oswald was one of the assailants. Lightning
Lube, 4 F.3d at 1166.
Start with the 2013 assault. Washington specifically named
Oswald as one of the two guards involved; the other was an
unnamed sergeant. After one of them fondled Washington’s
back and rear end and stuck his finger into Washington’s but-
tocks, it was Oswald who yanked on the tether to restrain
Washington. Oswald did that as part of a course of conduct in
which the guards rubbed and touched Washington sexually,
then kept prodding Washington’s rear end and testicles with a
nightstick, poking him with something sharp until he had blood
down his leg and all over his crotch, and calling him sexual
terms. This is sufficient evidence for a jury to find that, at a
minimum, Oswald was personally involved in the constitu-
tional violation. Though Oswald denied all this, he confirmed
that he was “probably” working in Washington’s cell block
that day (August 1, 2013) and “[m]ost likely” escorted him to
the visiting room. App. 158–59. The jury could reasonably
have believed Washington’s version of events over Oswald’s
and found that Oswald had sexually assaulted him in 2013.
So too with the 2015 assault. Washington testified that a
guard who “was in the first event” and had since “bec[o]me a
sergeant” assaulted him again. App. 113. He had said that the
first assault was by Oswald and “a sergeant.” App. 110. The

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only guard who could have assaulted him the first time and
later been promoted to sergeant was Oswald. Plus, Oswald tes-
tified that he had “[p]robably” become a sergeant by then
(April 2, 2015) and was “probably” working that day. App.
180. And he admitted that he regularly escorted prisoners to
showers during that time. That was enough evidence for a jury
to find that he was the assailant in 2015. In short, the District
Court properly denied Oswald’s motion for judgment as a mat-
ter of law or for a new trial.
III. THE JURY’S PUNITIVE-DAMAGES AWARDS
WERE NOT EXCESSIVE
Next, Oswald challenges the punitive-damages awards as
excessive under both federal common law and the Due Process
Clause of the Fifth Amendment. But the District Court
properly rejected both claims.
A. Exxon does not limit punitive damages under § 1983
Oswald argues that federal common law limits punitive dam-
ages in § 1983 suits. And he contends that the Supreme Court’s
decision in a maritime-tort case creates a federal-common-law
limit that applies here. Exxon Shipping Co. v. Baker, 554 U.S.
471 (2008). That claim misses the mark.
True, “Congress intended § 1983 to be construed in the light
of common-law principles.” Rehberg v. Paulk, 566 U.S. 356,
361–62 (2012) (cleaned up). And because § 1983 provides a
cause of action for constitutional torts but says nothing about
damages, the Supreme Court has “looked first to the common
law of torts” to decide when damages, including punitive ones,

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are available in § 1983 actions. Smith v. Wade, 461 U.S. 30, 34
(1983).
But Exxon does not provide any common-law principles
that govern here. That case arose in federal maritime jurisdic-
tion, where the Court decides issues “in the manner of a com-
mon law court.” 554 U.S. at 489–90. In making common law,
the Court held that “punitive damages in maritime law” should
not exceed compensatory damages. Id. at 489, 513. But we are
under a statute, not at sea. On dry land, that maritime rule does
not bind us.
If there is any nonconstitutional limit on punitive damages
under § 1983, it might come from the settled common-law rules
that the statute incorporated. See Kunz v. DeFelice, 538 F.3d
667, 678–79 (7th Cir. 2008); Beard v. Wexford Health Sources,
Inc., 900 F.3d 951, 956 (7th Cir. 2018). Here, though, Oswald
based his nonconstitutional claim on Exxon and federal com-
mon law, not the meaning of § 1983. Because the parties nei-
ther preserved that distinct claim nor briefed how best to con-
strue § 1983, we leave it to future courts to decide what common-
law limits, if any, the statute incorporated.
Ultimately, courts “must respect the limitations Congress
built into the statute.” Kunz, 538 F.3d at 678. Cases evaluating
punitive damages under the common law that governed when
§ 1983 was enacted might shed light on those limits. See, e.g.,
Belknap v. Bos. & M.R.R., 49 N.H. 358, 371 (1870) (noting
that courts lowered punitive damages if their size suggested
that juries had imposed them out of “passion, prejudice, or ig-
norance” (quoting Theodore Sedgwick et al., A Treatise on the
Measure of Damages 707 (5th ed. 1869))); Zimmerman v.

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Bonzar, 16 A. 71, 71–72 (Pa. 1888) (evaluating 2-to-1 ratio);
Parks v. Young, 12 S.W. 986, 987–88 (Tex. 1889) (0.7 to 1);
P.J. Willis & Bro. v. McNeill, 57 Tex. 465, 480 (1882) (12 to 1);
Saunders v. Mullen, 24 N.W. 529, 529 (Iowa 1885) (13 to 1).
But we leave it to future courts to decide this question when
the issue is properly before them.
B. The punitive-damages awards were not constitution-
ally excessive
Oswald’s constitutional challenge is a closer issue. The
Supreme Court has held that the Due Process Clause limits puni-
tive damages. To decide whether they are excessive, we look to
three “guideposts”: how reprehensible (blameworthy) the defend-
ant was, the disparity (ratio) between the award and the harm
the plaintiff suffered or could have suffered, and how the award
stacks up against “civil penalties authorized or imposed in
comparable cases.” State Farm Mut. Auto. Ins. v. Campbell,
538 U.S. 408, 418 (2003) (emphasis added). Each factor favors
upholding both of the jury’s punitive-damages awards.
1. Reprehensibility. The “most important” factor is the
defendant’s blameworthiness. Id. at 419. To measure it, State
Farm tells us to consider five subfactors. Id. All five support
the awards here.
• Oswald physically injured Washington. Id.
• He did it on purpose. Id.
• Though Oswald injured only one victim, he did it repeat-
edly. Id.
• He did it not for a legitimate reason, but “maliciously and
sadistically for the very purpose of causing harm.” Ricks

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v. Shover, 891 F.3d 468, 475 (3d Cir. 2018) (quoting
Whitley v. Albers, 475 U.S. 312, 320–21 (1986)).
• And Oswald targeted one of the most vulnerable among
us: a prisoner. Sexually assaulting a prisoner “offends our
most basic principles of just punishment.” Id. at 473 (inter-
nal quotation marks omitted). Prisoners are “stripped …
of virtually every means of self-protection” and cannot
get outside help; they depend on their guards to safeguard
them. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Instead
of safeguarding Washington, Oswald exploited his power
to prey upon him. Those acts were reprehensible in every
sense of the word.
2. Ratio of punitive damages to harm. Though the punitive
damages were up to ten times as big as the compensatory ones,
that ratio is permissible here. The Supreme Court has refused
to cap punitive damages with a “bright-line ratio.” State Farm,
538 U.S. at 425. It did warn us that “few awards [should]
exceed[ ] a single-digit ratio … to a significant degree.” Id. But
some factors can justify higher ratios: when, for instance, eco-
nomic damages are low or noneconomic damages are hard to
measure. Id. The touchstone is whether the awards are “reason-
able and proportionate” to the defendant’s wrongdoing and the
plaintiff’s specific harm. Id. at 425–26.
The parties dispute whether we should calculate the ratio
separately for each assault or combine the two. Washington
argues that we should aggregate them because the jury
awarded them for related wrongs. Some of our sister circuits
have conceptualized the issue this way. Bains LLC v. Arco
Prods. Co., Div. of Atl. Richfield Co., 405 F.3d 764, 776 (9th

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Cir. 2005); see also Saccameno v. U.S. Bank Nat’l Ass’n, 943
F.3d 1071, 1089 (7th Cir. 2019). But that approach to aggre-
gating does not apply here, where the jury was instructed to
treat each assault discretely and did so. Aggregating the awards
would distort the jury’s findings. When a jury doles out sepa-
rate awards for separate counts, courts must consider whether
each award was constitutional. That means calculating the ratios
separately.
Even considered separately, both ratios pass constitutional
muster. The first was 1.25 to 1 ($25,000 punitive to $20,000
compensatory); the second, 10 to 1 ($200,000 to $20,000).
True, the latter ratio exceeds single digits—but by only a
penny, not “a significant degree.” State Farm, 538 U.S. at 425.
And because the single-digit ratio is only a rule of thumb, not
a cap, it just alerts us to look for a “special justification.” CGB
Occupational Therapy, Inc. v. RHA Health Servs., Inc., 499
F.3d 184, 192 (3d Cir. 2007) (internal quotation marks omit-
ted). We have that here. Sexual assault inflicts the kind of non-
economic harm that is hard to put a price on, justifying a higher
ratio. State Farm, 538 U.S. at 425.
Plus, the rationales for punitive damages are to punish
wrongdoing and deter it. Id. at 416. Oswald repeated his sadis-
tic assault, making him more blameworthy and compounding
Washington’s earlier suffering. Just as the criminal law pun-
ishes recidivists more harshly for failing to learn their lessons
and choosing to flout the law again, so too does the civil law.
The jury reasonably found the second assault worse than the
first and raised its punitive-damages award accordingly.

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What is more, potential harm matters too. We must com-
pare punitive damages with not only actual harm, but also
“possible harm to other victims that might have resulted if sim-
ilar future behavior were not deterred.” TXO Prod. Corp. v. All.
Res. Corp., 509 U.S. 443, 460 (1993) (plurality). Oswald will-
ingly repeated his egregious behavior. If we fail to deter him,
others could suffer as well. That all favors finding the award
not “grossly out of proportion to the severity of the offense.”
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576 (1996) (inter-
nal quotation marks omitted).
3. Comparable cases. Under State Farm’s third guidepost,
we look at what “civil penalties [are] authorized or imposed in
comparable cases.” 538 U.S. at 418. Section 1983 does not list
civil penalties. Outside the § 1983 context, we have declined to
consider this third factor where we lack statutory penalties.
See, e.g., Brand Mktg. Grp. LLC v. Intertek Testing Servs.,
N.A., Inc., 801 F.3d 347, 363 (3d Cir. 2015). But some of our
sister circuits do consider this third factor in § 1983 cases. They
compare the punitive-damages awards at issue to those approved
by courts in factually similar § 1983 actions. See, e.g., Oster-
hout v. Bd. of Cnty. Comm’rs, 10 F.4th 978, 1003 (10th Cir.
2021); Kidis v. Reid, 976 F.3d 708, 717 (6th Cir. 2020); Men-
dez-Matos v. Municipality of Guaynabo, 557 F.3d 36, 55 (1st
Cir. 2009). We need not decide whether to adopt that approach
here because the other two factors already support the awards’
constitutionality. Cf. Inter Med. Supplies, Ltd. v. EBI Med.
Sys., Inc., 181 F.3d 446, 468 (3d Cir. 1999).
If we looked at these comparators, they would at most help
us gauge whether an award is so “grossly excessive” that it falls
within “the zone of arbitrariness that violates the Due Process

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Clause.” BMW, 517 U.S. at 568. They would not be a strait-
jacket or outer limit. And the awards here would fall within the
ballpark that courts have deemed reasonable in similar § 1983
actions. See, e.g, Doe v. Green, No. 17-cv-1765, 2021 WL
2188534, at *2, *9 (S.D.N.Y. Apr. 29, 2021), report and rec-
ommendation adopted, No. 17-cv-1765, 2021 WL 2188148
(S.D.N.Y. May 28, 2021) (imposing $200,000 in punitive dam-
ages on a prison guard who forcibly kissed an inmate and fon-
dled her genitals); Amador v. Galbreath, No. 10-cv-6702L,
2013 WL 1755784, at *1, *3 (W.D.N.Y. Apr. 24, 2013) (impos-
ing $250,000 in punitive damages on a prison guard who forced
a female prisoner to perform oral sex on him).
Whether we consider only the first two factors or all three,
both punitive-damages awards are constitutional. The District
Court properly upheld them.
* * * * *
The jury had enough evidence to find that it was Oswald
who sexually abused Washington twice. And its two punitive-
damages awards were proportional to “the enormity of his
offense[s]” and the harms that they inflicted on Washington.
BMW, 517 U.S. at 575 (internal quotation marks omitted).
While the second award may be close to the line, it does not
exceed it, so we will affirm.

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