     Case: 13-60526       Document: 00512763881         Page: 1     Date Filed: 09/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                       No. 13-60526                        September 10, 2014
                                                                              Lyle W. Cayce
DAVID CURTIS JOHNSON,                                                              Clerk


                                                  Plaintiff-Appellee

v.

TORI HANKINS; JAMES CLARK; FELIX NORWOOD

                                                  Defendants-Appellants


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:08-CV-632


Before STEWART, Chief Judge, OWEN, Circuit Judge, and MORGAN,
District Judge. ∗
PER CURIAM: **
       Plaintiff—Appellee David Curtis Johnson, an inmate in the custody of
the Mississippi Department of Corrections, sued Defendants—Appellants
Tori Hankins, James Clark, and Felix Norwood, former prison guards, for use
of excessive force. After a trial at which Johnson represented himself, the
jury awarded him $15,000 in compensatory damages.                        Defendants now


       ∗
         District Judge of the Eastern District of Louisiana, sitting by designation.
       **Pursuant   to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-60526         Document: 00512763881          Page: 2   Date Filed: 09/10/2014


                                           No. 13-60526

appeal from the district court's order denying their motion for judgment as a
matter of law. We review denial of a motion for judgment as a matter of law
de novo, deferring to the verdict and viewing all the evidence and drawing all
reasonable inferences in the light most favorable to the verdict. See E. Tex.
Med. Ctr. Reg'l Healthcare Sys. v. Lexington Ins. Co., 575 F.3d 520, 525 (5th
Cir. 2009).
      We affirm for the reasons articulated by the district court in denying
defendants' motions for post-trial relief. The testimony of Johnson and his
witness establishes that (1) defendants injured Johnson, (2) the injury was
physical, (3) the injury was more than de minimis, and (4) the use of force
was excessive under the circumstances. The jury was not required to believe
Hankins or Norwood 1 over Johnson, who the district court noted was
"immensely credible."          This case is distinguishable from our unpublished
decision in Wilburn v. Shane, which affirmed a grant of summary judgment
based on inconsistencies between the plaintiff's allegations of "severe
injuries" and his medical records—an issue not present in this case. See 193
F. 3d 517, at *1 (5th Cir. 1999) (Table opinion). The district court correctly
denied the motion for judgment as a matter of law.
      We also affirm the jury's award of $15,000 in compensatory damages
for Johnson's mental pain and suffering. 42 U.S.C. § 1997e(e) provides that
no prisoner may recover for mental or emotional injury suffered while in
custody without a prior showing of physical injury.                   The district court
instructed the jury appropriately that:
               In order to prove a violation under the Eighth
               Amendment in this case, therefore, the plaintiff must
               prove each of the following two elements by a
               preponderance of the evidence: First, that the
               defendants used force against the plaintiff

      1   Clark did not appear at trial.


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    Case: 13-60526    Document: 00512763881      Page: 3   Date Filed: 09/10/2014


                                 No. 13-60526

            maliciously and sadistically for the very purpose of
            causing plaintiff harm; and, two, that plaintiff
            suffered some harm as a result of defendants’ use of
            force. If the plaintiff fails to prove either of these
            elements, you must find for the defendants.

Johnson v. Hankins, No. 3:08-cv-632-CWR-FKB, 2013 WL 3289034, at *3
(S.D Miss. June 28, 2013). A jury is presumed to follow its instructions.
Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 876 (5th Cir. 2013).
      Johnson and the eyewitness to the incident testified that the
defendants dealt Johnson multiple physical blows, stomping him and kicking
him in the buttocks and his side, and that he had bruises on multiple parts of
his body and was limping after the attack. According to the eyewitness, the
defendants continued to beat Johnson as he fell to, and lay curled on, the
prison floor. The jury found that “Plaintiff sustained injuries as a result of
being subjected to cruel and unusual punishment,” by checking “YES” on the
jury verdict form. It is clear that the jury found that Johnson suffered a
physical injury before awarding damages for mental or emotional injury.
      The record supports the amount of the award for past mental pain and
suffering. Some degree of mental pain and suffering can reasonably be
expected to accompany an unprovoked beating that results in bruising and
aggravation of a preexisting leg injury. No additional specific evidence of a
mental injury was required; although defendants rely on Carey v. Piphus and
Brady v. Fort Bend County, those cases did not discuss damages for mental or
emotional distress accompanying a physical injury. See Carey, 435 U.S. 247,
264 & n.20 (1978) (discussing requisite proof of emotional injury caused by
denial of procedural due process); Brady, 145 F.3d 691, 718-19 (5th Cir. 1998)
(discussing requisite proof of emotional injury caused by job loss).
      The judgment of the district court is AFFIRMED.



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