Ivan B. Davis v. Berks County Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3026
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IVAN B. DAVIS,
Appellant
v.
BERKS COUNTY PHILADELPHIA;
BERKS COUNTY PRISON;
JAMES COOPER, CORRECTION OFFICER;
BERKS COUNTY PRISON BOARD;
JOI FRANKLIN; FRANK GALONIS;
JOHN DOES 1-8; JOHN DOES 9-18;
GEORGE WAGNER
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 04-cv-01795)
District Judge: Honorable Lawrence F. Stengel
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2009
Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges.
(Filed: November 12, 2009 )
OPINION OF THE COURT

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Davis does not appeal the grant of Galonis’s motion for judgment as a matter of1
law.
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RENDELL, Circuit Judge.
Plaintiff Ivan Davis claims that while he was incarcerated at the Berks County
Prison, three correctional officers, defendants James Cooper, Frank Galonis, and Joi
Franklin, used excessive force against him, unnecessarily and wantonly inflicting pain,
constituting cruel and unusual punishment in violation of the Eighth Amendment. Davis
also claims that Galonis and Franklin improperly failed to intervene to stop other guards
from attacking him. During trial, at the close of Davis’s case in chief, the District Court
granted Galonis’s and Franklin’s motions for judgment as a matter of law on the
excessive force claims against them. The court submitted the remaining claims to the
jury. The jury found for defendants on all of the claims.
On appeal, Davis challenges the District Court’s entry of judgment as a matter of
law on his claims against Franklin, as well as its denial of Davis’s motion for a new trial1
on the ground that the court improperly instructed the jury regarding the elements of an
excessive force claim. We will reverse the entry of judgment as a matter of law in favor
of Franklin on the excessive force claim and remand for a new trial on that claim.
However, we will affirm the denial of the motion for a new trial based on the challenge to
the jury instructions.

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I. Background
This case concerns an incident that occurred at the Berks County Prison on
September 10, 2002. After Cooper found Davis using a pay phone without authorization,
a physical altercation occurred. Although many of the details of the altercation are
disputed, the parties agree that Davis bit Cooper’s arm. Davis claims that he did this in
self-defense, after Cooper had slammed Davis’s head into a wall numerous times,
punched him, and attempted to choke him. According to Davis, Galonis witnessed this
incident but failed to intervene to stop Cooper’s actions. At some point, Cooper
requested assistance from other officers. Davis was then handcuffed and escorted to a
high-security cell in the Behavioral Adjustment Unit (“BAU”).
During the presentation at trial of his case in chief, Davis testified that after he had
been moved to the BAU cell, Galonis and other correctional officers continued to beat
him. Davis stated that Franklin watched this beating occur but did not intervene. Davis
also testified that after the other guards had “finished kicking me and punching me,”
Franklin “kicked me two times in my butt, and one time in my back.” App. 119a-120a. It
is not clear from the evidence presented by Davis whether his handcuffs had been
removed upon his arrival at the BAU cell.
Davis testified that the guards who were present in the BAU cell at that time said
to him, “[M]other fucker, this is going to happen to you for assaulting one of our officer
[sic], every time you be in here, something is going to happen to you.” App. 120a.

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Davis’s testimony is unclear regarding whether Franklin herself made this statement.
However, another prisoner, Angel Cotto, when asked if “Sergeant Franklin [said]
anything,” gave the following testimony in a deposition (which was read at trial during
Davis’s case in chief):
I believe she either told [Davis] to shut the fuck up. He was
asking--he was telling them to stop hitting him and they were
telling him that this is what you get for fucking--Sergeant
Crowley and Sergeant Franklin were telling him, this is what
you get for fucking one of my officers.
App. 222a-223a. Later in that deposition, Cotto reiterated that he heard Franklin “telling
[Davis] to shut the fuck up and telling him that that’s what he gets for fucking one of her
officers.” App. 238a. Davis also testified that he sustained back pain (along with other
injuries) as a result of the defendants’ actions, and that this back pain persisted to the time
of trial, over five years later. App. 120a-121a.
After the conclusion of Davis’s case in chief, Franklin moved under Federal Rule
of Civil Procedure 50(a) for entry of judgment as a matter of law on the excessive force
claim. App. 255a-256a. Franklin argued that Davis had not established that Franklin
caused “any harm or any damages” when she kicked him, and that “therefore . . . there is
no testimony that [the kicks] were excessive under the circumstances.” App. 256a. She
also argued that kicking him amounted to a “minimum use of force.” Id.
The District Court granted Franklin’s motion, stating,
[T]he only evidence is that [Davis] was on the ground and that, in the
plaintiff’s words, [Franklin] administered two kicks on the butt and one on

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the back.
There is no evidence in the record of any harm. The plaintiff has
testified as to his injuries and there really is no evidence of any harm caused
by any kicking in the back or the buttocks of Mr. Davis.
I do not see any evidence of malice or a purpose to cause harm, and I
do not think the evidence against Correction Officer Joi Franklin rises to the
level of excessive force.
App. 260a. The District Court also granted Galonis’s motion for judgment as a matter of
law on the excessive force claim.
The trial continued on the excessive force claim against Cooper and the failure-to-
intervene claims against Franklin and Galonis. At the end of trial, the court’s jury
instruction on the elements of excessive force claim included the following language:
I should tell you that Pennsylvania Law provides that a corrections officer
may use force in self defense or to prevent an assault on staff or other
prisoners.
So, the use of force is sanctioned and permitted by Pennsylvania
Law. The issue here is whether there was excessive force, because it is
excessive force that would constitute a constitutional violation.
To establish his claim for a violation of the 8th Amendment Mr.
Davis must prove that the defendant used force against him maliciously for
the purpose of causing harm rather than in a good faith effort to maintain or
restore discipline.
App. 555a-556a. Davis had objected to the instruction regarding Pennsylvania’s self-
defense law during the charging conference. App. 420a.
The jury found for Cooper on the excessive force claim, and for Galonis and
Franklin on the failure-to-intervene claims. App. 588a.

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Davis moved for a new trial under Rule 59(a) on the grounds that it was error to
grant Galonis’s and Franklin’s motions for judgment as a matter of law and to provide the
self-defense jury instruction regarding the excessive force claim. App. 590a-600a. The
District Court denied the motion. With respect to Franklin’s motion for judgment as a
matter of law, the court found that there was “no evidence of any harm or injury” as a
result of Franklin’s actions, and that “there was no evidence of malice or a purpose to
cause harm on the part of Officer Franklin.” App. 12a-13a. With respect to the self-
defense instruction, the court held that it was proper to instruct the jury on a correctional
officer’s right to use force in self-defense, especially when that instruction is considered
in the context of the entire charge. App. 8a-10a. This timely appeal followed.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291.
II. Judgment as a Matter of Law
Our review of a decision granting judgment as a matter of law is plenary. Buskirk
v. Apollo Metals, 307 F.3d 160, 165-66 (3d Cir. 2002). A district court should grant a
motion for judgment as a matter of law only if, “viewing the evidence in the light most
favorable to the nonmovant and giving [him] the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury reasonably could find
liability.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). We
apply the same standard as the district court. Buskirk, 307 F.3d at 166.

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Prison officials violate the Eighth Amendment when they apply force “maliciously
and sadistically to cause harm,” rather than “in a good-faith effort to maintain or restore
discipline.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). If a plaintiff establishes that a
prison official acted with malice, he need not show that “significant injury” resulted from
the official’s actions. Id. at 9; see also Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000).
However, “[t]he Eighth Amendment’s prohibition of cruel and unusual punishments
necessarily excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 9-10 (citations and internal quotation marks omitted).
On appeal, Davis argues that the District Court erred by (1) finding that Franklin’s
use of force against Davis was de minimis; (2) finding that Franklin had not acted with
malice; (3) requiring Davis to show significant physical injury; and (4) finding that
Franklin had not caused Davis any physical injury. In response, Franklin contends that
Davis had offered insufficient evidence of his injuries and of Franklin’s state of mind.
Franklin argues that Davis should have offered “testimony that he suffered bruising or
other physical injury,” and should have called Franklin as a witness.
We conclude that a jury could have reasonably found, based on the evidence
offered by Davis in his case in chief, that Franklin had used force that was not de minimis,
that Franklin had acted with malice, and that the injury shown was sufficient to support a
verdict in Davis’s favor. According to the testimony of Davis and Cotto, Franklin said

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that she was kicking Davis in retaliation for his assault on Cooper. Davis had already
been moved by the guards to a more secure cell, in the BAU, and was no longer attacking
the guards. It also appears from Davis’s testimony that he had been handcuffed before
being moved to the BAU, and that the handcuffs had not yet been removed. This
indicates that any threat to the prison’s staff and inmates had ended, and that there was no
need for the further use of force by Franklin and the other guards. Also, Davis testified
that he had sustained injuries to his back that had endured for over five years, further
substantiating his claim that Franklin was using excessive force. Under Hudson, and
when viewed in the light most favorable to Davis, this evidence was sufficient for the jury
to have concluded that Franklin had acted maliciously and sadistically to cause harm,
rather than to restore prison discipline. Although Franklin may have ultimately been able
to convince the jury of her version of events, it was premature for the court to grant
judgment as a matter of law on this record.
We also disagree with the District Court’s assessment of the record regarding
Davis’s injuries and its statement that there was “no evidence in the record of any harm.”
App. 260a. Davis had testified that “[his] back was in pain from the punching and the
kicking,” and that his back “still hurt from the beating” at the time of trial. App. 120a-
121a. Even if Davis had not offered this testimony, however, that would not have
justified the dismissal of his claim. As we have previously commented, “the absence of
significant resulting injury is not a per se reason for dismissing a claim based on alleged

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The District Court relied on our statement in Fuentes v. Wagner, 206 F.3d 335,2
345 (3d Cir. 2000), that “[t]he objective inquiry is whether the inmate’s injury was more
than de minimis,” which was followed by a general cite to Hudson v. McMillan. This
sentence in Fuentes was drawing a distinction between the subjective—purpose of
force—and objective—harm caused by the force—and was not intended to limit
Hudson’s holding, which was much broader, as we discuss herein, and which, as we
recognized in Brooks and again in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002),
clearly controls.
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wanton and unnecessary use of force against a prisoner. Although the extent of an injury
provides a means of assessing the legitimacy and scope of the force, the focus always
remains on the force used (the blows).” Brooks, 204 F.3d at 109.2
III. Jury Instructions
When examining jury instructions, we exercise plenary review to determine
whether the jury charge, taken as a whole, was capable of “confusing and thereby
misleading the jury” as to the correct legal standard. Mosley v. Wilson, 102 F.3d 85, 94
(3d Cir. 1996) (internal quotation marks and citation omitted).
Davis argues that the District Court’s instruction regarding Pennsylvania’s self-
defense law “replaced well-established federal constitutional law under the Eighth
Amendment with a state law standard.” This argument is unconvincing. The District
Court followed its comment regarding self-defense with a lengthy, and accurate,
description of the law regarding excessive force. When viewed in the context of the
entire instruction, we therefore cannot conclude that the jury charge was error.

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We will not disturb the jury verdict for Franklin and Galonis on Davis’s failure to3
intervene claim or for Cooper on the excessive force claim.
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IV. Conclusion
For the reasons set forth above, we will REVERSE the entry of judgment as a
matter of law in favor of Franklin on the Eighth Amendment claim and will REMAND
for a new trial on that claim. However, we will AFFIRM the denial of the motion for a
new trial on the ground that the jury instructions were erroneous.3

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