Heyl Royster

Nominal Damages in Section 1983 Litigation; Creatively Crafting Your Jury Instructions

March 27, 2017

In Moore v. Liszewski, 838 F.3d 877 (7th Cir. 2016), an Illinois state prison inmate brought a Section 1983 claim against a correctional official, Peter Liszewski, for using excessive force against him almost a decade ago. The inmate’s initial suit, Moore v. Mahone, was previously dismissed, and on remand, a jury was left to determine if the correctional officer used excessive force against the inmate. The jury found that the correctional officer did actually use excessive force against the inmate, but awarded the inmate nominal damages of only $1, an option as part of the jury instructions. The jury further found that there was nothing to compensate the inmate for because they believed the excessive force was not the cause of the inmate’s injury. Instead, the Seventh Circuit Court of Appeals mentioned that the evidence that connected Moore’s injury to having fallen and hitting his head on a table, was an accident unrelated to the correctional officer.

It is a well-established norm that it is rare for nominal damages to be awarded, and typically an explanation is given for awarding nominal damages. Moore, 838 F.3d at 878. What is even more puzzling is why nominal damages, which hardly ever exceed $2, are even awarded at all. Id. The court considered nominal damages to have “negligible value” to the recipient and impose a large cost in time and paper involved to the judges who have to give an explanation in their opinion for the nominal damages.

Nominal damages are essentially to demonstrate that the plaintiff is in the right and would have been entitled to compensatory damages, even if there are none. The inmate in this case was not the prevailing party. This small amount of nominal damages was on the grounds that the excessive force did not cause the injury and therefore the jury found that the inmate had no entitlement to compensatory damages.

The Seventh Circuit Court of Appeals looked to various authorities to justify the small amount of awarded nominal damages rather than outright dismissing the case which would be the “simpler, cheaper and faster” way. Id. The court cited the United States Supreme Court opinion in Carey v. Piphus, 435 U.S. 247, 266 (1978), to affirm the present nominal – damages rule that “[b]y making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.” Moore, 838 F.3d at 879-80.

The court looked closely to the inmate’s argument that he was injured by the correctional officer when he struck him in the head twice with a walkie talkie. However other evidence existed showing that plaintiff fell and hit his head on a table rather than being injured by the correctional officer. The court found that this swayed the jury to grant the inmate nominal damages and whatever increments such as court costs and attorneys’ fees, to which an award of nominal damages entitles the plaintiff.

In Moore, the court is essentially underscoring that even though the correctional officer used excessive force against plaintiff, that plaintiff was not victorious because he obtained small nominal damages rather than a monetary award. Moore teaches that the plaintiff must meet a hefty burden in a Section 1983 case to prove damages and must provide sufficient support to show what actually caused plaintiff’s injury or deprivation of a constitutional right. The mere fact that plaintiff has a physical injury is insufficient to prove up a Section 1983 claim.

This is advantageous to defense attorneys who represent correctional officers, who should be cognizant that they should provide jury instructions with an option that awards plaintiff miniscule nominal damages, as little as $1. Absent any injury, plaintiff may be less likely to meet their burden and sway a jury to award compensatory damages where none exist. Further, defense attorneys should develop a theory that plaintiff’s injury has no relation to the defendant’s acts which essentially breaks any causal connection and decreases plaintiff’s chances of proving a deprivation of his or her constitutional rights. In conclusion, it is likely that nominal damages may be the appropriate remedy when plaintiff has failed to prove a physical injury in a Section 1983 case. This can only benefit defense and not the plaintiff.

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