David Saxner and Alfred Cain, Jr., Cross-Appellants v. Charles Benson, Cross-Appellees , 727 F.2d 669 ( 1984 )

HARLINGTON WOOD, Jr., Circuit Judge.¹

Originally the most important issue in this case was whether the members of the prison Institutional Disciplinary Committee were entitled to absolute immunity, not merely qualified immunity, from suits alleging the deprivation of a prisoner’s constitutional rights. In the meantime, however, this court in Redding v. Fairman, 717 F.2d 1105, 1117 (7th Cir.1983), has resolved the immunity issue by adhereing to Chavis v. Rowe, 643 F.2d 1281, 1288 (7th Cir.), cert. denied, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981), and Mary and Crystal v. Ramsden, 635 F.2d 590 (7th Cir.1980), in finding no basis or justification for absolute immunity.²

The only remaining issues are whether or not the compensatory damages awarded by the jury and approved by the trial court are excessive, and whether the trial court erred in denying plaintiff’s request for attorneys’ fees under the Equal Access to Justice Act (28 U.S.C. § 2412).

I.

The defendants are senior correctional officers at the federal correctional institution at Terre Haute, Indiana. The plaintiffs, David Saxner and Alfred Cain, Jr., are former inmates of the institution. In 1975, the Terre Haute prison had a staff of 350 people; it housed nearly 2,000 inmates in its main facility and approximately 300 in its farm camp. In January, 1975 a prisoner died in the prison hospital under circumstances which were not entirely clear; shortly thereafter the prisoners engaged in a two day work stoppage to protest the inmate’s death. The plaintiffs apparently did not participate in the work stoppage. Instead, they endeavored to discover the circumstances surrounding the prisoner’s death and to report their findings to interested members of the press and public. Their efforts were partly responsible for an investigation of the prison’s hospital and the resignation of the prison’s physician.

On February 14,1975, the plaintiffs were each charged with encouraging others to engage in another work stoppage, and they were confined to a section of the hospital being used as an administrative segregation unit. Saxner was notified of his right to a hearing, to be represented by a staff member of his choice, and to present testimony and documentary evidence; the record does not indicate that Cain ever received a copy of a similar notice.

The plaintiffs, who had remained in segregation, appeared before the Institutional Disciplinary Committee (IDC) on February 21, 1975. On that day, the IDC was composed of Theodore Cleavinger, an associate warden, Marvin Marcadis, a correctional supervisor, and Tom Lockett, chief of case management.³

At the hearing before the IDC, Saxner was represented by a staff counselor of his choice. After reading the charge against Saxner, the incident report was introduced, as well as three documents written by Sax-ner; no guards or inmates were called to testify,⁴ but Saxner was permitted to introduce affidavits of several inmates, and to testify on his own behalf. At the close of evidence, the IDC found Saxner guilty of encouraging a work stoppage. The IDC also found Saxner guilty of two other offenses with which he had not been charged: possession of contraband and unauthorized use of the mail.⁵ The IDC ordered that Saxner be confined in administrative segregation for an indefinite period, and that he forfeit 84 days of good time; it also recommended that he be transferred to another institution.

Cain’s hearing was held on the same day, before the same three correctional officers. Cain denied that he had encouraged others not to work and demanded an opportunity to examine his accuser. The IDC produced an incident report, which contained the particulars of the work stoppage charge, and two other documents which had been seized in an administrative search of his cell; no other evidence was produced. Cain was found guilty of the original work stoppage charge and of an additional charge of possession of contraband (the materials which had been seized in the search of his cell). The IDC ordered that Cain be confined in administrative segregation indefinitely, and that he forfeit 96 days of good time; the IDC also recommended that Cain be transferred to another institution.

Each plaintiff was informed of his right to appeal the IDC’s decision, and both plaintiffs appealed the IDC’s decision to the warden of the prison. The warden granted part of the relief sought by the plaintiffs on appeal: he restored the forfeited good time and ordered the plaintiffs’ release from administrative segregation; the warden refused, however, to expunge their records. Both plaintiffs appealed to the Regional Office of the Bureau of Prisons; based upon the Regional Office’s recommendation, the records of both Cain and Saxner were expunged.

This action was commenced in March, 1975, while the plaintiffs were still in administrative segregation. The initial complaint was filed pro se. Subsequently, counsel was retained and the complaint was amended several times; the third amended complaint sought declaratory, injunctive, and monetary relief for alleged deprivations of the plaintiffs’ first, fourth, fifth, sixth, and eighth amendment rights resulting from the hearings before the IDC in February, 1975.

Prior to trial, the defendants moved for judgment on the pleadings, asserting that they were entitled to absolute immunity from liability for actions taken in their capacity as IDC members. Although the district court granted the motion, it held, on reconsideration, that the defendants were entitled only to qualified immunity in light of this court’s decision in Mary and Crystal v. Ramsden, 635 F.2d 590. The case was tried to a jury in April, 1981; the jury found, in response to special interrogatories, that all three of the IDC members had violated the plaintiffs’ fifth amendment right to due process. The jury awarded each plaintiff $4,500 as compensatory damages.⁶ In May, 1981 the defendants moved for judgment notwithstanding the verdict, arguing that the verdict was excessive; the motion was denied. The plaintiffs moved for an award of attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2413; this motion was also denied. The defendants appeal, arguing that the IDC members are entitled to absolute immunity, an issue we have already addressed, and that the jury’s verdict was excessive. The plaintiffs have cross-appealed, arguing that they are entitled to an award of attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2413.

II.

The jury award of compensable damages in the amount of $4,500 to each plaintiff was found by the trial court, in ruling on defendants’ motion for judgment notwithstanding the verdict, to be supported by sufficient evidence. The defendants find no fault with the jury instructions based on Carey v. Piphus, 435 U.S. 247, 262-64, 98 S.Ct. 1042, 1051-1052, 55 L.Ed.2d 252 (1978), claiming only that the amount was excessive.

Cain spent 35 days in segregation where he was confined almost 24 hours a day without access to the prison yard or other exercise facilities. He also lost various other privileges. Cain could not, while in segregation, earn good time, and his possible parole was affected. Saxner spent his first week in a windowless segregation cell in extremely unsanitary and repulsive conditions. He was not allowed out of that cell. For a few days he had no bedding, soap or adequate lighting. Later he was transferred to a different unit for two weeks.

The trial court credited plaintiffs’ testimony to establish mental and emotional distress injuries attributable to the due process violations. The trial court found that the “anguish and frustration which flowed from the patent unfairness of the hearings and the fear that such unfair treatment would continue in the future in their administrative review and appeals, at their parole hearings, and in their day to day existence in the segregation units unrelated to the issue of the length (35 days) of time served in segregation” contributed to their actual injuries. The trial judge noted that nominal damages are all that are due upon a showing of a denial of due process without proof of actual damage, as injury cannot be presumed from denial of due process. Carey v. Piphus, 435 U.S. at 258, 98 S.Ct. at 1049. However, being convinced that plaintiffs had established “the link between the due process violations and the actual injury consequences,” the trial judge allowed the awards to stand.

The awards may be somewhat excessive, but so are the defendants’ arguments which characterize plaintiffs’ damages as “little more than a litany of diminished creature comforts combined with generalized claims of anxiety.” In view of the general restrictions on appellate review of a jury’s award of monetary damages, we will not substitute our judgment in these circumstances for that of the judge and jury who heard the testimony. Our own review of the evidence briefly summarized above satisfies us that “the trial judge did not abuse his discretion in finding ‘nothing untoward, inordinate, unreasonable or outrageous — nothing indicative of a runaway jury or one that lost its head.’ ” Gruenthal v. Long Island Railroad Co., 393 U.S. 156, 160, 89 S.Ct. 331, 334, 21 L.Ed.2d 309 (1968).

III.

Plaintiffs, as prevailing parties, claim they are entitled to an allowance of attorneys’ fees under alternative theories.

During the time this suit was still pending in the district court on post-trial matters, the Equal Access to Justice Act, 28 U.S.C. § 2412, became effective on October 1, 1981. Although the Act broadened the liability of the government for attorneys’ fees and expenses, it contained certain prerequisites. Sections 2412(b) and (d) limit this broadened attorneys’ fees relief to actions “brought by or against the United States or any agency and any official of the United States acting in his or her official capacity.” The trial judge disallowed the attorneys’ fees because the United States was not named as a party defendant, nor were the defendants named as officials of the United States acting in their official capacities, although in fact they may have been so acting.

We agree with the district court. Plaintiffs do not satisfy the statutory requisites for attorneys’ fees under the Act. The United States was not named, and the defendants were named only individually. In addition to the absence of any allegation that the defendants were acting in their official capacities, it is specifically alleged in paragraph 10 of the Third Amended Complaint, upon which the case was tried, that “All defendants are sued in their individual capacities.” Plaintiffs would now have us remodel their complaint or give its allegations some subtle interpretation in variance with its plain language so as to qualify under the fees statute. The timing of this lawsuit and the enactment of the Equal Access to Justice Act may be unfortunate, but we cannot change those circumstances.

Plaintiffs alternatively claim to be entitled to an award of attorneys’ fees under section 2412(b) of the Act, although plaintiffs concede that section also requires that the action meet the “official capacity” requirement. Plaintiffs urge that we read section 2412(b), permitting an award of attorneys’ fees against the federal government to the same extent that fees may be awarded in cases involving “any other party,” as opening the way for attorneys’ fees through the Civil Rights Attorneys Fees Award Act, 42 U.S.C. § 1988. That Act provides for an award of fees in actions enforcing certain provisions of the Civil Rights Act, including 42 U.S.C. § 1983. After that argument brings us to section 1983, we are then urged to overlook section 1983’s “acting under color of state law” requirement. The plaintiffs’ claims here, they argue, are virtually identical to the usual section 1983 action so that attorneys’ fees should be allowed under color of federal as well as state law. That argument deserves credit for originality, but it is too original.⁷

Under the circumstances in this case we cannot send the government a judicial bill for plaintiffs’ attorneys’ fees.

The parties shall bear their own costs.

Affirmed.

1 . The author acknowledges the substantial assistance of Judge Celebrezze to this opinion by contributing Section I.

2 . This panel, nevertheless, recognizes and respects the thoughtful contrary analysis advanced by Judge Celebrezze who dissents from the resolution of this issue. His arguments suggest that in due time the issue may merit reconsideration in this circuit. District Judge Dillon, the original district judge to consider this case, also agreed with the view that defendants were entitled to absolute immunity, but reconsidered and changed his holding following Mary and Crystal v. Ramsden, 635 F.2d 590.

3 . Generally, IDCs at Terre Haute were composed of three members. At least two of these members necessarily were senior correctional officers with a rank of department head level or higher. The third member was normally a less senior member of the correctional staff. Staff members who witnessed the incident were excluded from membership in the IDC, unless the incident was so widely witnessed that every staff member witnessed it. Also named in the complaint were Charles Benson, warden, and C.D. Wilson, administrative supervisor, who by reason of a directed verdict and a favorable jury verdict are no longer in the case.

4 . Saxner attempted to produce several inmates to testify; this testimony was excluded because it was considered cumulative.

5 . The basis for these charges, and the additional charges against Cain, were certain documents seized in the course of administrative searches of their cells. In Saxner’s cell, a “press release” was found detailing the problems with the prison hospital; the document had been sent to fifty newspapers. Other documents of a similar nature were also seized. In Cain’s cell, a letter detailing the need for a prison labor union was found.

6 . Each plaintiff was awarded $1,500 from each defendant; thus, each defendant was exposed to liability for $3,000 of the full damage award.

7 . It appears that in the district court plaintiffs argued an entitlement to fees upon a bad faith contention. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Alyeska Pipeline Company v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The district court found the defendants’ actions were not vexatious, wanton, or oppressive sufficient to require an award of attorneys’ fees. Although that argument was not specifically advanced here, we would not disturb the trial judge’s findings on the basis of this record.