             United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 17-2747
                    ___________________________

    Ecclesiastical Denzel Washington, also known as Willie Simmons

                    lllllllllllllllllllllPlaintiff - Appellee

                                       v.

                          Larry Denney, Warden

                  lllllllllllllllllllllDefendant - Appellant

Terry Page, Deputy Warden; Chris McBee, Deputy Warden; Todd Warren,
         Assistant Warden; Lauretta Aitkens, Chief of Custody

                        lllllllllllllllllllllDefendants

                      Ronda Pash, Deputy Warden

                  lllllllllllllllllllllDefendant - Appellant

                        Kimberly Herring, F.U.M.

                         lllllllllllllllllllllDefendant

                Cyndi Prudden, Deputy Division Director

                  lllllllllllllllllllllDefendant - Appellant

Shawn D. Huff, C.O.II; Shawn Pettigrew, C.C.W.; Judy Huff, C.C.W.; Brian
                        Montgomery; Mr. White

                        lllllllllllllllllllllDefendants
                                     Mrs. Richey

                       lllllllllllllllllllllDefendant - Appellant

 Sliver, C.O. II; Mrs. McDonnal; Steven Nibarger; Mr. Green; Deron Neu; Brent
                             Jestes; Mrs. Parkhurst

                             lllllllllllllllllllllDefendants
                                     ____________

                     Appeal from United States District Court
                  for the Western District of Missouri - St. Joseph
                                  ____________

                             Submitted: April 12, 2018
                              Filed: August 13, 2018
                                  ____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                             ____________

SMITH, Chief Judge.

       Ecclesiastical Denzel Washington brought suit against Larry Denney, Ronda
Pash, Cynthia Prudden, and Cheryl Richey, corrections officials (collectively,
“corrections officials”) at Crossroads Correctional Center (“Crossroads”), for
violation of his Eighth Amendment rights under 42 U.S.C. § 1983. Specifically, he
alleged that these officials were deliberately indifferent to his serious medical need
by failing to take reasonable steps to abate the risk of harm that secondhand smoke
poses to him. He alleged that his long history of asthma and other respiratory
conditions exacerbates these risks. The jury found in Washington’s favor and
awarded him $40,000 in compensatory damages and imposed a total of $71,000 in
punitive damages as follows: $20,000 against Denney; $25,000 against Pash; $25,000

                                          -2-
against Prudden; and $1,000 against Richey. The officials appeal, arguing that (1)
Washington failed to offer sufficient evidence to prove that they violated his clearly
established Eighth Amendment rights and, therefore, they are entitled to qualified
immunity; and (2) punitive damages were improper because Washington failed to
show that they were motivated by evil motive or intent or showed callous indifference
to his Eighth Amendment rights.

       We hold that sufficient evidence exists that the officials violated Washington’s
Eighth Amendment rights, but we conclude that insufficient evidence justifies an
award of punitive damages. Accordingly, we affirm the jury’s finding that the
officials were deliberately indifferent to Washington’s serious medical need by failing
to take reasonable steps to abate the risk of harm that secondhand smoke poses to
him. We vacate the award of punitive damages and remand for further proceedings
consistent with this opinion.

                                     I. Background
       “We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017) (quoting United States
v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006)).

       Washington “suffers from chronic asthma and bronchitis.” Transcript of Jury
Trial, Vol. II, at 340–41, Washington v. Denney, No. 5:14-cv-06118-NKL (W.D. Mo.
Apr. 11, 2017), ECF No. 184. His “asthmatic attacks are very painful” and are
preceded by wheezing, chest pains, and coughing. Transcript of Jury Trial, Vol. I, at
37, Washington v. Denney, No. 5:14-cv-06118-NKL (W.D. Mo. Apr. 10, 2017), ECF
No. 183. These attacks are more frequent when Washington is exposed to tobacco
smoke.




                                         -3-
       In 2010, Washington was transferred to Crossroads. At that time, Denney was
Crossroads’s warden, Pash was Crossroads’s deputy warden,1 Prudden was the
Missouri Department of Corrections Deputy Director for the Division of Adult
Institutions,2 and Richey was Washington’s case manager.

       Over 85 percent of prisoners at Crossroads smoke. The Missouri Department
of Corrections has a smoking policy that prohibits smoking in any building and
within 25 feet from any entryway, which applies to Crossroads. Staff and offenders
have designated areas in which they smoke outside at Crossroads; those designated
areas are the recreational yards for offenders and the walkways for staff. Crossroads
also has offender rules consistent with the smoking policy. While “sometimes the
smoking policy is enforced,” Transcript of Jury Trial, Vol. I, at 46, the “policy is
routinely violated,” Transcript of Jury Trial, Vol. II, at 286. Prisoners are confined to
their cells for 18 to 21 hours per day, and Crossroads allows prisoners to keep
cigarettes, tobacco, rolling papers, rolling machines, and lighters in their cells.
Corrections officers “can smell smoke all the time” in housing units. Id.

       Shortly after Washington arrived at Crossroads, the medical staff enrolled him
in the asthma chronic care clinic. His treatments included nebulizers and inhalers.
They also included “lay-ins,” which are nonpharmaceutical prescriptions that doctors
at Crossroads order. Washington’s lay-ins required that he be housed with
nonsmoking roommates and given a painter’s mask to protect him from smoke.
Despite Washington’s treatments and lay-ins, secondhand smoke continued to cause
Washington to suffer asthma symptoms and attacks.

     Washington sent letters to Denney, Pash, and Richey to alert them of the
smoking in Crossroads’s housing units. He also raised the issue to Denney and

      1
          Pash became Crossroads’s warden upon Denney’s retirement.
      2
          Prudden still holds this position.

                                               -4-
Richey verbally. When Denney, Pash, and Richey ignored him, Washington began
filing informal resolution requests (IRRs), the first step in Crossroads’s grievance
procedure. On March 13, 2014, Washington filed an IRR “about [how] the staff was
not enforcing the no-smoking policy” or following the doctors’ orders. Transcript of
Jury Trial, Vol. I, at 53. Washington complained that his cellmate was smoking in the
cell. He also described how he had suffered an asthmatic attack from exposure to the
secondhand smoke and explained “that the secondhand smoke was still repeatedly
recycled, coming through the ventilation system.” Id. at 55. Washington directed the
IRR to Denney, Page, and Pash. When Washington’s IRR was denied, he appealed
by filing a grievance. Denney denied the grievance, stating, “Your allegation of
tobacco limitation restrictions not being enforced has been refuted and found to be
without merit.” Transcript of Jury Trial, Vol. II, at 231. Washington appealed
Denney’s decision to Prudden, but she denied the appeal.

         On May 28, 2014, Washington filed a second IRR after corrections officers
took away the mask that doctors had prescribed Washington to reduce his smoke
exposure. Washington’s IRR was denied, and he appealed to Denney. Denney did not
dispute the medical staff’s orders or that the mask had been taken, but he found “no
evidence to substantiate [Washington’s] claim” that he was “denied medical care as
a result of not being allowed to possess a face mask to protect [himself] from
secondhand tobacco smoke.” Transcript of Jury Trial, Vol. II, at 251–52. Denney
explained, “On May 29, 2014, you submitted a request for reasonable accommodation
form requesting to be issued a face mask. It has been determined that a face mask
. . . is not a necessity, and you shall not be allowed to possess the same.” Id. at 252.
Denney recited that tobacco use is prohibited in the housing units and advised
Washington, “Should you observe anyone violating this policy, I recommend that you
report it immediately to a staff member.” Id. Washington appealed Denney’s decision
to Prudden, who denied it. Prudden advised Washington that he did not “need the face
mask because CRCC is a nonsmoking environment,” stating that the “housing units
at CRCC are considered a nonsmoking environment. CRCC staff will make every

                                          -5-
effort to ensure that Policy D2-11.9, Tobacco Use Limitations, is adhered to, and staff
will issue conduct violations to an offender if he is caught smoking in the housing
unit. This should resolve your complaint.” Id. at 304.

        On May 5, 2015, Washington filed an IRR asking to be transferred to another
cell because his cellmate smoked. Medical staff had ordered that he have a
nonsmoking cellmate to protect him from secondhand smoke. Despite the order,
Washington was consistently housed with smokers. When Washington told this
cellmate he had asthma and was “allergic” to secondhand smoke, the cellmate wrote
a letter to Page, telling Page that he smoked. Washington and the cellmate spoke with
a caseworker, who replied that the issue would be resolved. When asked if the “IRR
was then handled, and [Washington’s cellmate] was moved,” Washington responded
that “this IRR wasn’t handled because [he] had to go back and file another one to
medical because [he] had an asthmatic attack, and [the cellmate] was still in the cell
and smoking.” Transcript of Jury Trial, Vol. I, at 62. According to Washington, he
“had to file another [IRR] to request that they move him from the cell.” Id.

       On May 11, 2015, Washington filed another IRR requesting a nonsmoking
cellmate. Washington again referred to the medical staff’s order that he be housed
with a nonsmoker. The responding officer informed Washington that the medical
staff’s orders requiring him to have a nonsmoking cellmate were “discontinued, as
Crossroads Correctional Center is a nonsmoking facility.” Id. at 80. Washington
appealed by filing a grievance, but his grievance was denied.

      On June 17, 2015, Washington filed yet another IRR asking to be housed with
a nonsmoking cellmate. Because his lay-in for a nonsmoking cellmate was
discontinued, his IRR was denied. The responding officer found that Washington’s
“medical need ha[s] been met.” Transcript of Jury Trial, Vol. II, at 275. Washington’s
grievance and appeal were also denied.



                                         -6-
       On December 1, 2015, Washington filed an IRR asking Crossroads to move the
facility’s designated smoking area away from the medical clinic. He complained that
the walkway leading to the clinic’s door required him to pass smokers on his way to
get breathing treatments. After his IRR was denied, Washington filed a grievance
detailing his concerns and their effects on this asthma. Pash denied the grievance
because she found that the designated smoking area conformed to Crossroads’s
smoking policy. Washington appealed to Prudden. Prudden denied the appeal,
explaining that the response that Washington received “adequately addressed [his]
complaint” and stating that “[t]he staff smoking area is appropriately located 25 feet
from the entrance to the medical unit.” Id. at 307. According to Prudden, Washington
“failed to provide any additional evidence to support [his] claim.” Id.

       Washington brought suit against the corrections officials for violation of his
Eighth Amendment rights under 42 U.S.C. § 1983. Specifically, he alleged that these
officials were deliberately indifferent to his serious medical need by failing to take
reasonable steps to abate the risk of harm that secondhand smoke poses to him. He
alleged that his long history of asthma and other respiratory conditions exacerbates
these risks. The corrections officials moved for summary judgment, arguing that they
were entitled to qualified immunity because no evidence existed that the corrections
officials were deliberately indifferent to Washington’s conditions of confinement.
The district court denied the motion.

       The case proceeded to trial. After the close of Washington’s case-in-chief, the
corrections officials moved for judgment as a matter of law (JML). See Fed. R. Civ.
P. 50(a)(1). They did not reassert qualified immunity, but instead argued that
Washington failed to present sufficient evidence that they acted with deliberate
indifference in failing to take reasonable measures to abate the risk of injury to
Washington from secondhand smoke. They also contended that Washington failed to
present sufficient evidence that he suffered harm as a direct result of their alleged
failure. After the defense rested, they again moved for judgment as a matter of law on

                                         -7-
the same grounds. See id. Again, the motion did not mention qualified immunity. The
district court took the corrections officials’ motion under advisement.

       The jury found in Washington’s favor and awarded $40,000 in compensatory
damages and imposed a total of $71,000 in punitive damages as follows: $20,000
against Denney; $25,000 against Pash; $25,000 against Prudden; and $1,000 against
Richey. The district court entered judgment consistent with the jury’s verdict. The
corrections officials then renewed their motion for judgment as a matter of law and
moved for a new trial. See Fed. R. Civ. P. 50(b); Fed. R. Civ. P. 59. In addition to
raising the arguments previously made in their Rule 50(a) motions, the corrections
officials also argued that Washington failed to present sufficient evidence of
outrageous, intentional, or malicious conduct to justify submission of a jury
instruction for punitive damages to the jury. The corrections officials did not mention
qualified immunity in their motion or opening brief. Instead, in their reply brief in
support of their motion, they asserted for the first time that they did not violate
Washington’s clearly established constitutional rights.

       The district court denied the corrections officials’ Rule 50(b) and Rule 59
motions. The district court found that Washington sufficiently proved that he suffered
from an objectively serious medical need and that the corrections officials knew of
the need but deliberately disregarded it. The court also concluded that sufficient
evidence supported the punitive damages award. The court declined to consider the
corrections’ officials argument that they did not violate Washington’s clearly
established rights because they did not raise qualified immunity in their opening brief.

                                    II. Discussion
       The corrections officials appeal, arguing that (1) they are entitled to qualified
immunity because Washington failed to offer sufficient evidence to prove that they
violated his clearly established Eighth Amendment rights to be free from deliberate
indifference to his serious medical need; and (2) punitive damages were improper

                                          -8-
because Washington failed to show that they were motivated by evil motive or intent
or callous indifference to his Eighth Amendment rights.

       “We review de novo a district court’s denial of a motion for judgment as a
matter of law, viewing the evidence in the light most favorable to the verdict. We
review a motion for a new trial for abuse of discretion.” Smiley v. Gary Crossley
Ford, Inc., 859 F.3d 545, 552 (8th Cir. 2017) (quoting Barkley, Inc. v. Gabriel Bros.,
Inc., 829 F.3d 1030, 1042 (8th Cir. 2016)).

       “[T]he law places a high standard on overturning a jury verdict because of the
danger that the jury’s rightful province will be invaded when judgment as a matter of
law is misused.” Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017)
(alteration in original) (quoting Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029
(8th Cir. 2002)), cert. denied, 138 S. Ct. 1991 (2018). We are hesitant “to interfere
with a jury verdict,” as reflected in the “analysis for considering renewed JML
motions.” Id. The applicable standard provides:

      In ruling on a motion for [judgment as a matter of law], the district court
      must (1) consider the evidence in the light most favorable to the
      prevailing party, (2) assume that all conflicts in the evidence were
      resolved in favor of the prevailing party, (3) assume as proved all facts
      that the prevailing party’s evidence tended to prove, and (4) give the
      prevailing party the benefit of all favorable inferences that may
      reasonably be drawn from the facts proved. That done, the court must
      then deny the motion if reasonable persons could differ as to the
      conclusions to be drawn from the evidence.

Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir. 1996) (alteration in
original) (quoting TEC Floor Corp. v. Wal–Mart Stores, 4 F.3d 599, 601 (8th Cir.
1993)).



                                         -9-
                             A. Deliberate Indifference
      The corrections officials’ appellate brief makes the same substantive argument
as their Rule 50(a) and 50(b) motions—Washington failed to present sufficient
evidence that they acted with deliberate indifference in failing to take reasonable
measures to abate the risk of injury to Washington from secondhand smoke.3




      3
        The corrections officials initially phrase their argument in their opening brief
as one of qualified immunity: that they “were entitled to judgment as a matter of law
on Washington’s claims under 42 U.S.C. § 1983, which alleged violations of the
Eighth Amendment, because they had qualified immunity, in that Washington failed
to prove that these corrections employees violated his clearly established
constitutional rights.” Appellants’ Br. at 12. “But a party seeking a
qualified-immunity defense must continue to urge it during and after trial in order to
avoid forfeiting the argument on appeal.” Ayers v. City of Cleveland, 773 F.3d 161,
167 (6th Cir. 2014) (citing Ortiz v. Jordan, 562 U.S. 180, 185 (2011)). The record
shows that but for a contention in their reply brief to their Rule 50(b) motion that they
“did not violate Plaintiff’s clearly established constitutional rights,” Reply
Suggestions at 2, Washington v. Denney et al., No. 5:14-cv-06118-NKL (W.D. Mo.
June 5, 2017), ECF No. 192, the corrections officials never renewed their qualified-
immunity argument.

       We acknowledge that the Supreme Court “left open the possibility that a
‘qualified immunity plea raising an issue of a purely legal nature’ may be ‘preserved
for appeal by an unsuccessful motion for summary judgment, and need not be brought
up again under Rule 50(b).’” Plascencia v. Taylor, 514 F. App’x 711, 719 (10th Cir.
2013) (quoting Ortiz, 562 U.S. at 189). Here, the corrections “officials’ claims of
qualified immunity hardly present ‘purely legal’ issues capable of resolution ‘with
reference only to undisputed facts.’ Cases fitting that bill typically involve contests
not about what occurred, or why an action was taken or omitted, but disputes about
the substance and clarity of pre-existing law.” Ortiz, 562 U.S. at 189 (citations
omitted). Accordingly, we decline to address the corrections officials’ argument to
the extent they claim they are entitled to qualified immunity.



                                          -10-
       To prove deliberate indifference, Washington had to show that he suffered
from an objectively serious medical need and that the corrections officials “acted with
a ‘sufficiently culpable state of mind,’ namely, that they actually knew of, but
deliberately disregarded, [his] medical need[].” Krout v. Goemmer, 583 F.3d 557, 567
(8th Cir. 2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The
corrections officials do not dispute that Washington has an objectively serious
medical need to be kept free from exposure to secondhand smoke; instead, they argue
that they lacked culpable states of mind and responded reasonably to the substantial
risk of harm to Washington.4

        To satisfy the subjective prong, Washington had to prove that the corrections
officials “recognized that a substantial risk of harm existed and knew that their
conduct was inappropriate in light of that risk.” Id. (citations omitted). It is a question
of fact “[w]hether a prison official had the requisite knowledge of a substantial risk”;
this may be proven through circumstantial evidence, “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.” Farmer, 511 U.S. at
842 (citations omitted). “It is not enough merely to find that a reasonable person
would have known [about the risk], or that the defendant should have known . . . . ”
Id. at 843 n.8. “While . . . deliberate indifference entails something more than mere
negligence . . . it is satisfied by something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Id. at 835. “[A]
prison official cannot be found liable under the Eighth Amendment for denying an


      4
        At trial, the parties stipulated that “Washington’s medical records indicate he
suffers from chronic asthma and bronchitis.” Transcript of Jury Trial, Vol. II, at
340–41. They also stipulated that “[s]econdhand smoke is known to cause health
risks, especially among people with asthma and other breathing difficulties.” Id. at
341.



                                           -11-
inmate humane conditions of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety.” Id. at 837. This means that “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.” Id. An
official’s inadequate “response to a risk may support an inference that the offic[ial]
recognized the inappropriateness of his conduct.” Krout, 583 F.3d at 567.

       But “prison officials who actually knew of a substantial risk to inmate health
or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. “[P]rison
officials who act reasonably cannot be found liable under the Cruel and Unusual
Punishments Clause.” Id. at 845. But “[i]t does not follow . . . that an unreasonable
response—i.e., a negligent response—is sufficient to establish liability.” Krout, 583
F.3d at 567. “The plaintiff must show that the officers were deliberately indifferent
in their response to the perceived risk.” Id. at 568 (citation omitted).

       The corrections officials concede they “were aware that Washington claimed
that he had asthma” and that he claimed he “had cellmates smoking in his cell, which
exacerbated that condition.” Appellants’ Br. at 16. But they argue that Washington
failed to prove that they drew an inference that a substantial risk of serious harm
existed to Washington based on these facts. First, they assert they changed
Washington’s cellmate on two occasions in response to his grievances. Second, they
contend that “Prudden and Denney denied Washington’s grievance related to the
surgical mask because prison staff determined it was a security issue and medical”
personnel determined it unnecessary. Id. at 16–17 (citing Transcript of Jury Trial,
Vol. II, at 315 (“Masks determined to be custody risk and were removed from
patient’s possession by custody. Patient educated. Medical director discussed and
determined to not be necessary.”)). Third, they maintain that when Richey discussed
an IRR with Washington, she informed him that he could find a nonsmoking cellmate



                                         -12-
who would agree to cell with him. She also advised him to report any violations of
the smoking policy to custody staff so staff could write a violation. They maintain
that while Richey could do cell assignments, she rarely did, and no evidence exists
that she assigned any of the smoking cellmates to Washington’s cell. Fourth, the
corrections officials note that none of them prevented Washington from receiving
medical care, including his medication and breathing treatments. Finally, while they
acknowledge that Washington asked them to change the smoking policy to ban
tobacco products at Crossroads, the corrections officials argue that Washington failed
to prove they could do so. They contend they could only enforce the existing policy,
direct their subordinates to enforce the policy, and direct the offenders to follow the
policy.

       In light of the “high standard on overturning a jury verdict,” we conclude that
“legally sufficient evidence . . . support[s] the jury’s liability finding.” Bavlsik, 870
F.3d at 805 (citation omitted). First, sufficient evidence supports the jury’s finding
that Denney was deliberately indifferent to Washington’s serious medical need.
Washington proved that Denney knew of the serious risk tobacco smoke posed to
Washington’s health. Denney testified that he knew Washington has asthma and
chronic bronchitis. He confirmed that Washington “has been vocal with staff of
Crossroads about the secondhand smoke that goes on.” Transcript of Jury Trial, Vol.
II, at 240. He also stipulated knowing that “Washington required a nonsmoking
cellmate as part of his medical treatment plan since at least as early as 2010.” Id. at
342. Washington testified he alerted Denney to the smoking problem at Crossroads
both verbally and via letter prior to filing his IRRs. He then filed at least three
grievances with Denney in which Washington attributed his asthmatic attacks to
secondhand smoke. Denney admitted reviewing these grievances.

      Sufficient evidence also exists that Denney disregarded the risk that
secondhand smoke poses to Washington’s health. For instance, Washington



                                          -13-
complained about a cellmate smoking in his cell, described how he had suffered an
asthmatic attack from exposure to secondhand smoke, and explained that the
secondhand smoke was being recycled through the ventilation system. Denney denied
Washington’s grievance as “without merit,” despite admitting that prisoners did
smoke in their cells and corrections officers violated the smoking policy. Denney
admitted he never conducted “any tests to determine the levels of environmental
tobacco smoke in the housing units” to verify Washington’s complaint. Id. at 225.
Despite acknowledging he “developed the standard operating procedures based upon
the departmental guidelines,” Denney testified that he did not recall ever considering
the possibility of “provid[ing] matches or lighters near the receptacles outside”
instead of permitting “prisoners to have lighters in their cells.” Id. at 225, 240.
Denney admitted having access to Washington’s lay-ins for a nonsmoking cellmate
but still permitting Washington to be housed with offenders who were known
smokers.

       Second, sufficient evidence supports the jury’s finding that Pash was
deliberately indifferent to Washington’s serious medical need. As with Denney,
Washington proved that Pash knew secondhand smoke was a serious risk to
Washington’s health. Pash testified that she knew Washington had been treated for
asthma. Pash admitted knowing that Washington had “filed grievances about the
indoor smoking that goes on at Crossroads” and that “Washington ha[d] been vocal
about his concerns about secondhand smoke at Crossroads.” Transcript of Jury Trial,
Vol. I, at 139, 148–49. Washington testified he alerted Pash to the smoking problem
at Crossroads via letter prior to filing his IRRs. Through the grievance process,
Washington informed Pash that the ventilation system circulated secondhand smoke
through the housing units. His grievances also asserted staff was ignoring his lay-in
for a nonsmoking cellmate. In addition, his grievances informed Pash that the
smoking areas’ proximity to the medical facility prevented him from avoiding
secondhand smoke. Pash’s signature appears on the grievance form immediately



                                        -14-
below Washington’s handwritten notes linking secondhand smoke at Crossroads to
his asthmatic attacks.

       As with Denney, sufficient evidence exists that Pash disregarded the risk that
secondhand smoke poses to Washington’s health. Pash admitted receiving violations
stating that prisoners smoke in their cells yet never conducting “any studies [on]
whether environmental tobacco smoke exists in the housing units at Crossroads.” Id.
at 129. She admitted knowing that “Washington had a lay-in and restriction for a no-
smoking roommate from September 12, 2014, to September 12, 2015,” but she
acknowledged that Washington was regularly celled with prisoners who violated the
smoking policy. Id. at 141. She acknowledged “prisoners are allowed to have lighters
and cigarettes in their possession at Crossroads” and “in their cells.” Id. at 131. When
asked whether she could “change the policy,” she replied, “I could try to pilot
something, I guess.” Id. Pash admitted she denied all of Washington’s grievances,
referring him to the smoking policy.

       Third, sufficient evidence supports the jury’s finding that Prudden was
deliberately indifferent to Washington’s serious medical need. Washington proved
that Prudden knew secondhand smoke was a serious risk to Washington’s health.
Prudden reviewed and responded to at least three grievance appeals that Washington
filed concerning secondhand smoke at Crossroads. She admitted that Washington
generally claimed in these grievance appeals that “his asthma was exacerbated by
offenders smoking” indoors. Transcript of Jury Trial, Vol. II, at 302. Prudden
acknowledged in her disposition of Washington’s grievance appeal that Washington
was “claim[ing] that the custody staff has failed to enforce the ban on tobacco usage
in state buildings.” Id. at 293. In another disposition, Prudden acknowledged
Washington’s claim that he was “not being permitted by custody staff to have a face
mask that was approved by medical” to “protect against the tobacco smoke” in his
housing unit. Id. at 301.



                                         -15-
       Washington also produced sufficient evidence that Prudden disregarded the
risk that secondhand smoke poses to Washington’s health. Prudden denied each of
Washington’s grievance appeals. Prudden testified that although she investigates
some of the grievance appeals on which she rules, she did not investigate any of
Washington’s grievance appeals. Despite not contacting anyone at Crossroads to
inquire about Washington’s conditions, Prudden disposed of Washington’s appeal on
one occasion by reciting that Crossroads is a “nonsmoking environment” with a
tobacco-use limitations policy in place that “should resolve [his] complaint.” Id. at
304.

       Finally, sufficient evidence supports the jury’s finding that Richey was
deliberately indifferent to Washington’s serious medical need. Washington proved
that Richey knew secondhand smoke was a serious risk to Washington’s health.
Washington testified he alerted Richey to the smoking problem at Crossroads via
letter prior to filing his IRRs. Richey admitted knowing that Washington needed to
be kept away from tobacco smoke and knowing that Crossroads’s medical staff had
ordered a lay-in for Washington to be assigned a nonsmoking cellmate. She
acknowledged a conversation with Washington in which he asked her to move him
to a different cell with a nonsmoking cellmate and their discussion of Washington’s
IRR in which he complained of prisoners smoking in their cells.

       The jury also had sufficient evidence from which it could reasonably conclude
that Richey disregarded the risk that secondhand smoke poses to Washington’s
health. Richey admitted that she was responsible for assigning Washington’s
cellmates. Transcript of Jury Trial, Vol. III, at 382, Washington v. Denney, No. 5:14-
cv-06118-NKL (W.D. Mo. Apr. 12, 2017), ECF No. 185 (“That fell under my job
duties. I did not do a lot of those, but yes, ultimately I could determine where an
offender was assigned and moved.”). Part of Richey’s job duties involved cell
assignments when medical placed a “bunk restriction” on an offender. Id. Despite



                                        -16-
Washington’s lay-in requiring a nonsmoking cellmate, Richey told Washington upon
his request for a nonsmoking cellmate that Crossroads “do[esn]’t track whether an
offender smokes or not.” Id. at 383. But Washington produced an exhibit of violation
reports documenting who had violated the smoking policy. These violation reports
are accessible to “most staff” by running a query. Transcript of Jury Trial, Vol. I, at
143.

                               B. Punitive Damages
       The corrections officials also argue that insufficient evidence supports the
jury’s award of punitive damages because Washington failed to show that their
conduct was motivated by an evil motive or intent or involved reckless or callous
indifference to Washington’s Eighth Amendment rights.5


      5
     The corrections officials do not challenge the jury instruction on punitive
damages. Jury Instruction No. 24 provided, in relevant part:

            In determining whether to award punitive damages, you should
      consider whether the defendant’s conduct was reprehensible. In this
      regard, you may consider whether the harm suffered by the plaintiff was
      physical or economic or both; whether there was intentional malice or
      reckless disregard for human health or safety; whether the defendant’s
      conduct that harmed the plaintiff also caused harm or posed a risk of
      harm to others; and whether there was any repetition of the wrongful
      conduct and past conduct of the sort that harmed the plaintiff.

            If you decide to award punitive damages, you should consider the
      following in deciding the amount of punitive damages to award:

             1. How much harm the defendant’s wrongful conduct caused the
      plaintiff. You may not consider harm to others in deciding the amount
      of punitive damages to award.




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        “In a § 1983 case, both compensatory and punitive damages are available upon
proper proof.” Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir. 1997) (citation
omitted). While an award of compensatory damages is mandatory upon a finding of
liability, “punitive damages are awarded or rejected in a particular case at the
discretion of the fact finder once sufficiently serious misconduct by the defendant is
shown.” Id. (citations omitted). The purpose of a punitive damages award is “to
‘punish the defendant for his [or her] willful or malicious conduct and to deter others
from similar behavior.’” Id. (alteration in original) (quoting Memphis Cmty. Sch. Dist.
v. Stachura, 477 U.S. 299, 306 n.9 (1986)). The factfinder focuses on the defendant’s
intent in determining whether to award punitive damages “and whether the
defendant’s conduct is of the sort that calls for deterrence and punishment over and
above that provided by compensatory awards.” Id. (citation omitted).

      In Coleman, we set forth the standard for awarding punitive damages in
deliberate-indifference cases, applying the § 1983 punitive damages standard:

            2. What amount of punitive damages, in addition to the other
      damages already awarded, is needed, considering the defendant’s
      financial condition, to punish the defendant for his wrongful conduct
      toward the plaintiff and to deter the defendant and others from similar
      wrongful conduct in the future;

            The amount of any punitive damages award should bear a
      reasonable relationship to the harm caused to the plaintiff.

            You may assess punitive damages against any or all defendants
      or you may refuse to impose punitive damages. If punitive damages are
      assessed against more than one defendant, the amounts assessed against
      such defendants may be the same or they may be different.

Jury Instructions at 26–27, Washington v. Denney, No. 5:15-cv-06118-NKL (W.D.
Mo. Apr. 12, 2017), ECF No. 167.



                                         -18-
“[W]hen the defendant’s conduct is shown to be motivated by evil motive or intent,
or when it involves reckless or callous indifference to the federally protected rights
of others.” Id. (quoting Walters v. Grossheim, 990 F.2d 381, 385 (8th Cir. 1993)).6
“Punitive damages punish a defendant for outrageous, intentional, or malicious
conduct, and deter similar extreme conduct in the future.” Schaub v. VonWald, 638
F.3d 905, 922–23 (8th Cir. 2011) (citing Smith v. Wade, 461 U.S. 30, 54 (1983); City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–67 (1981)). “A finding of
deliberate indifference to a serious medical need, while establishing liability under
§ 1983, does not necessitate a finding of callous indifference warranting punitive
damages.” Coleman, 114 F.3d at 787 (citing Standley v. Chilhowee R–IV Sch. Dist.,
5 F.3d 319, 323 (8th Cir. 1993) (holding defendant was liable under § 1983 for
violating plaintiff’s First Amendment rights, but concluding there was insufficient
evidence that defendant’s conduct rose to the level of “evil motive” or “reckless or
callous indifference” to justify punitive damages); Cornell v. Woods, 69 F.3d 1383,
1391 (8th Cir. 1995) (holding prison officials’ conduct in punishing inmate for


      6
        In Coleman, we did not discuss Farmer’s rejection of deliberate indifference
as equating with civil-law recklessness. See Farmer, 511 U.S. at 837. Farmer
“adopted an approach consistent with the recklessness in the criminal law.” Id. As a
result, Farmer held that to be liable for deliberate indifference of a serious medical
need, a prison official must “know[] of and disregard[] an excessive risk to inmate
health and safety.” Id. Our court’s use of the ordinary § 1983 punitive damages
standard of “reckless or callous indifference” in Coleman would permit a punitive
damages awards against prison officials under a standard that is less harsh than the
deliberate indifference standard under which they were adjudicated liable. However,
we need not resolve this legal issue in the present case. First, the corrections officials
have not objected to application of the ordinarily applicable § 1983 punitive damages
standard and, in fact, quote that standard in their brief. See Appellants’ Br. at 19
(citing Schaub, 638 F.3d 905, 922 (8th Cir. 2011). Second, in Schaub, we clarify that
the defendant’s conduct must be “outrageous, intentional, or malicious” to warrant
imposition of punitive damages. Schaub, 638 F.3d at 922.



                                          -19-
exercising his First Amendment rights established liability under § 1983 but did not
warrant imposition of punitive damages); Ivey v. Wilson, 832 F.2d 950, 956 (6th Cir.
1987) (holding prison officials’ acts violated prisoner’s due process rights and gave
rise to § 1983 liability, but punitive damages award was improper because there was
no evidence that defendants “were acting in bad faith” or “harbored any ill will”
towards plaintiff); Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986)
(upholding jury’s finding that “defendants were responsible for the racial
discrimination” plaintiff suffered, but vacating punitive damages award because the
record did not show that defendants “acted with either the requisite ill will or callous
disregard of [plaintiff’s] federally protected rights”); Lavicky v. Burnett, 758 F.2d
468, 477 (10th Cir. 1985) (holding unlawful search and seizure and taking of
plaintiff’s property without a hearing gave rise to § 1983 liability, but concluding
punitive damages award was properly set aside because “there was no evidence of
malice, wantonness, or oppressiveness”); Soderbeck v. Burnett Cty., 752 F.2d 285,
289 (7th Cir. 1985) (holding plaintiff’s showing of political dismissal was sufficient
for compensatory damages, but not punitive damages); Hernandez–Tirado v. Artau,
874 F.2d 866, 872 (1st Cir. 1989) (same)).

       Coleman upheld a compensatory damages award for deliberate indifference to
an inmate’s serious medical need against a prison nurse. Id. The damage award
compensated the inmate for the physical pain and mental anguish she experienced
resulting from the nurse’s two-hour delay in transferring the inmate to the hospital for
the premature delivery of the inmate’s child, despite the nurse’s contention that the
inmate would have experienced the same labor in the hospital. Id. But we held that
the district court abused its discretion in awarding punitive damages and vacated the
district court’s punitive damages award to the inmate after reviewing the trial
evidence, holding that the nurse’s conduct “was not sufficiently egregious to justify
the imposition of punitive damages.” Id. at 788 (citation omitted). This was because
the nurse had “relied on, and attempted to follow, the University physicians’



                                         -20-
instructions in caring for [the inmate].” Id. (citation omitted). We determined that the
nurse’s conduct did not “rise to the level calling for punishment and deterrence over
and above that provided by the compensatory award.” Id. (citing Smith, 461 U.S. at
54; Stachura, 477 U.S. at 310 (“Section 1983 presupposes that damages that
compensate for actual harm ordinarily suffice to deter constitutional violations.”)).

       Having reviewed the trial evidence, we conclude that Washington presented
no evidence that the corrections officials’ actions were “outrageous, intentional, or
malicious” to justify imposition of a punitive damages award. See Schaub, 638 F.3d
at 922. Like the nurse in Coleman, the corrections officials did “rel[y] on” the
existing smoking policy, which prohibits smoking indoors. See 114 F.3d at 788. With
regard to Richey, Washington offered no evidence that Richey intentionally assigned
him a smoking cellmate; instead, he testified that he had both smoking and
nonsmoking cellmates. Prudden, Pash, and Denney all were supervisors who only
reviewed Washington’s grievance appeals—Washington has not identified any
conduct that they engaged in toward him beyond their review and denial of those
appeals. “The facts of this case illustrate the difference between conduct justifying
mere liability under the Eighth Amendment and conduct justifying punitive damages
under § 1983.” Id.

                                   III. Conclusion
       Accordingly, we affirm the jury’s finding that the officials were deliberately
indifferent to Washington’s serious medical need by failing to take reasonable steps
to abate the risk of harm that secondhand smoke poses to him. We vacate the award
of punitive damages and remand for further proceedings consistent with this opinion.
                        ______________________________




                                         -21-
