                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                            Nos. 00-1132/2756/3242
                                 ___________

Robert Foulk,                           *
                                        *
       Plaintiff-Appellee,              *
                                        *
v.                                      *
                                        *
Ronald Charrier, Lieutenant Charrier    *
individually and in his official        * Appeal from the United States
capacity,                               * District Court for the
                                        * Eastern District of Missouri
       Defendant-Appellant.             *
                                        *
United States of America,               *
                                        *
       Intervenor below-Appellant.      *
                                   ___________

                            Submitted: May 18, 2001

                                 Filed: August 17, 2001
                                  ___________

Before McMILLIAN and BOWMAN, Circuit Judges, and MOODY,1 District
      Judge.
                          ___________

McMILLIAN, Circuit Judge.



      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
        Ronald Charrier, who at all relevant times was a corrections officer at the
Moberly Correctional Center (MCC) in Moberly, Missouri, appeals from a final
judgment entered in the United States District Court for the Eastern District of
Missouri,2 following a jury trial, in favor of Robert W. Foulk, a former MCC inmate,
on Foulk's Eighth Amendment claim of excessive use of force, brought pursuant to 42
U.S.C. § 1983. Based upon the jury's verdict, Charrier was ordered to pay Foulk one
dollar in nominal damages plus interest and costs. Foulk v. Charrier, No. 2:89CV18
(E.D. Mo. Aug. 25, 1999) (judgment). Charrier, together with the United States, as
intervenor-appellant, also appeals from the district court's order awarding Foulk
$12,048.60 in attorney's fees and $163.00 in costs, pursuant to 42 U.S.C. § 1988. Id.
(June 8, 2000) (order). For reversal, Charrier argues that the district court: (1) erred
in failing to dismiss Foulk's excessive force claim on the basis of Foulk's alleged failure
to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a), as amended
by the Prison Litigation Reform Act of 1996 (PLRA); (2) abused its discretion in
excluding evidence about the specific nature of Foulk's prior felony convictions; (3)
abused its discretion in limiting the documents Charrier could introduce at trial; (4)
erred in instructing the jury on nominal damages; (5) erred in denying Charrier’s motion
for judgment as a matter of law based on insufficiency of the evidence; and (6) erred
in awarding attorney’s fees above $1.50 despite the attorney's fees provision of the
PLRA, 42 U.S.C. § 1997e(d)(2) or, alternatively, abused its discretion in determining
the amount of the attorney’s fees award under 42 U.S.C. § 1988. The United States
seeks reversal solely on the basis of the district court's failure to limit the attorney's fees
award to $1.50, based upon 42 U.S.C. § 1997e(d)(2).




       2
        The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri. The parties consented to the exercise of Magistrate Judge Noce's
authority under 28 U.S.C. § 636(c).

                                             -2-
       For the reasons stated below, we vacate the district court's order awarding
attorney's fees and costs; we remand for a redetermination of attorney's fees and, if
necessary, costs; and we affirm the judgment of the district court in all other respects.

                                     Jurisdiction

       Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1343.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notices of appeal
were timely filed pursuant to Fed. R. App. P. 4(a).

                                     Background

Factual history

        The following summary of underlying facts is based upon the evidence presented
at trial, viewed in a light favorable to the jury's verdict.

        On June 21, 1994, Foulk, an inmate at MCC, went to the prison infirmary
complaining of illness after his dosage of seizure medication had been increased. He
filled out a request for medical services and asked to see a doctor immediately. In an
effort to avoid a delay in getting medical attention, Foulk became loud and demanded
to see a doctor. Foulk was seen by Dr. Knudson, who noted that Foulk had been over-
medicated. Under Dr. Knudson's orders, Foulk was admitted to the infirmary. Foulk
slept in the infirmary from approximately 4:00 p.m. on June 21, 1994, until
approximately 5:30 p.m. on June 22, 1994, when he was awoken by corrections officer
Shawn Bates, who told Foulk it was time to eat. Foulk told Bates that he was not
hungry and wanted to be left alone. A few minutes later, Foulk was again awoken and
told to eat. Foulk again refused and, this time, became angry. According to Foulk, he
again fell back asleep. At approximately 9:30 p.m., Foulk was again awoken by


                                          -3-
corrections officers, who told him that he had been issued conduct violations.3 Foulk
became angry and asked for the reason for the conduct violations. When the
corrections officers would not respond, Foulk demanded that he be allowed to speak
to a supervisor.

       According to Foulk, he was still feeling the effects of the medication and once
again fell back asleep. A short time later, Charrier and other corrections officers came
into Foulk's room, aroused him, and ordered him to stand spread eagle against the wall.
The officers removed the bed and portable equipment from the room. Charrier sprayed
Foulk on the side of the face with pepper spray and left the room, locking the door
behind him. When Foulk asked for the name of the officer who had sprayed him,
Charrier told Foulk to come close to the door to get a good look at his name tag through
the screened window in the door. When Foulk did as Charrier suggested, and put his
face up to the screen, Charrier sprayed pepper spray through the screen directly into
Foulk's face.

       Despite the fact that Charrier had sprayed pepper spray directly into Foulk's eyes
and nose, Foulk was not offered medical assistance. Moreover, he was put into solitary
confinement in a cell that had no running water and only dry paper towels to wipe his
face. He was not permitted to shower for at least two days. Foulk continued to feel
the painful effects of the pepper spray for several days.4




      3
      According to Bates, Foulk had become threatening and violent each time he was
awoken for dinner, thereby justifying the conduct violations. Foulk, however, denies
any misconduct.
      4
       Charrier introduced evidence at trial indicating that Foulk was offered medical
treatment but refused it. The defense also presented evidence suggesting that Foulk
was placed in a room that had a sink with running hot and cold water.

                                          -4-
       The prison conducted an internal administrative review of the conduct violations
issued against Foulk. The prison administration determined that Foulk was guilty of
the alleged misconduct and that the officers, including Charrier, were justified in their
actions. Foulk was transferred to another prison.

Procedural history

       In 1989, several years before the above-summarized events took place, the
original complaint in the present action was filed in federal district court by 29 MCC
inmates, including Foulk, alleging various forms of mistreatment at MCC by employees
of the Missouri Department of Corrections (MDOC), in violation of federal
constitutional and statutory rights. The complaint was amended numerous times, with
the above-summarized events being raised for the first time in the fourth amended
complaint filed on December 15, 1995. The fifth amended complaint, filed June 2,
1997, was the first to specifically name Charrier as a defendant. The fifth amended
complaint sought damages and injunctive relief based upon numerous alleged
constitutional violations by MDOC officials and employees. Through the district
court's dispositions of various motions, and the parties' agreements to dismiss various
claims and parties, the matter was eventually reduced to one plaintiff (Foulk), one
defendant (Charrier), and one count (excessive use of force in violation of the cruel and
unusual punishment clause of the Eighth Amendment).

       After Charrier unsuccessfully moved for summary judgment, a trial by jury was
held from August 23 to August 25, 1999. Over objections by the defense, the district
court excluded evidence revealing the specific nature of Foulk's prior felony convictions
and also limited the number of documents the defense could introduce into evidence;
and, contrary to Charrier's requested jury instructions, the district court allowed the jury
to award nominal damages.




                                            -5-
       During the trial, Charrier made an oral motion to dismiss the case for lack of
subject matter jurisdiction, raising for the first time the argument that, because Foulk
had failed to exhaust all available administrative remedies, the action was
jurisdictionally barred under 42 U.S.C. § 1997e(a), as amended by the PLRA
(hereinafter referred to as the "PLRA exhaustion requirement").5 See Trial Transcript,
Vol. II, at 189. The district court denied the motion and the trial proceeded. The jury
subsequently returned a verdict in favor of Foulk in the amount of one dollar.

        Charrier filed a post-trial motion for judgment as a matter of law or for a new
trial, again arguing, among other things, that the action was jurisdictionally barred
under the PLRA exhaustion requirement. The district court denied Charrier’s motion
on November 4, 1999. Charrier timely filed a notice of appeal from the judgment
(Appeal No. 00-1132).

       Meanwhile, Foulk moved pursuant to 42 U.S.C. § 1988 for an award of
attorney's fees and costs in the amount of $50,751.03. In response, Charrier argued,
among other things, that he could not, as a matter of law, be required to pay more than
$1.50 in attorney’s fees, in view of the PLRA's attorney's fees provision, 42 U.S.C.
§ 1997e(d)(2).6 On June 8, 2000, the district court ordered Charrier to pay Foulk


      5
          Section 1997e(a) of Title 42, United States Code, provides:

             No action shall be brought with respect to prison conditions under
      section 1983 of this title, or any other Federal law, by a prisoner confined
      in any jail, prison, or other correctional facility until such administrative
      remedies as are available are exhausted.
      6
          Section 1997e(d)(2) of Title 42, United States Code, provides:

             Whenever a monetary judgment is awarded in an action described
      in paragraph (1), a portion of the judgment (not to exceed 25 percent)
      shall be applied to satisfy the amount of attorney's fees awarded against

                                           -6-
$12,048.60 in attorneys' fees and $163.00 in costs. Foulk v. Charrier, No. 2:89CV18
(June 8, 2000) (order directing Charrier to pay attorney's fees and costs). On July 7,
2000, Charrier appealed from the order awarding Foulk attorney's fees and costs
(Appeal No. 00-2756). The United States intervened and filed a notice of appeal on
August 4, 2000, from the same order awarding Foulk attorney’s fees and costs (Appeal
No. 00-3242). The three appeals were consolidated, and they are now before this
court.

                                       Discussion

Exhaustion of administrative remedies requirement

       Charrier argues that the district court erred in failing to dismiss Foulk's excessive
force claim on the basis of Foulk's alleged failure to exhaust available administrative
remedies, as required by the PLRA exhaustion requirement. As stated above, the
district court addressed the issue twice – when the court denied Charrier's mid-trial oral
motion to dismiss for lack of subject matter jurisdiction and when the court later denied
Charrier's post-trial motion for judgment as a matter of law or for a new trial.

       On appeal, Charrier contends that the following prerequisites to the application
of the PLRA exhaustion requirement have been met: (1) the action was brought by a
prisoner confined in a jail, prison, or other correctional facility, (2) the action was
brought after the enactment of the PLRA, and (3) the action concerns prison conditions.
Charrier first points out, and it is undisputed, that Foulk was a prisoner at all relevant
times. Second, Charrier argues that the action was brought after the enactment of the
PLRA because Charrier was not specifically identified as a defendant until the fifth
amended complaint, which was filed after the PLRA was signed into law on April 26,


       the defendant. If the award of attorney's fees is not greater than 150
       percent of the judgment, the excess shall be paid by the defendant.

                                            -7-
1996. On this point, Charrier maintains that the dates of the original complaint and
prior amended complaints are irrelevant; otherwise, prisoners could circumvent the
PLRA exhaustion requirement simply by adding claims and defendants to pre-existing
lawsuits. Third, Charrier argues, the claim of excessive use of force is "with respect
to prison conditions" because it involves the effects of Charrier's actions on Foulk's life.
See 18 U.S.C. § 3626(g)(2) (defining "civil action with respect to prison conditions"
as "any civil proceeding arising under Federal law with respect to the conditions of
confinement or the effects of actions by government officials on the lives of persons
confined in prison, but does not include habeas corpus proceedings challenging the fact
or duration of confinement in prison"). Therefore, Charrier maintains, Foulk was
required to exhaust all available administrative remedies before pursuing his § 1983
claim.

        For a Missouri prisoner to exhaust all available administrative remedies, Charrier
continues, the prisoner must file an Informal Resolution Request (IRR), an Inmate
Grievance, and an Inmate Grievance Appeal. See Brief for Appellant at 25 (No. 00-
1132) (citing Smith v. Stubblefield, 30 F. Supp. 2d 1168, 1174 (E.D. Mo. 1998)). In
the present case, Charrier contends, Foulk did not exhaust his administrative remedies
because he filed only an IRR, but failed to file a grievance and a grievance appeal. See
id. (citing Trial Transcript at 188 (cross-examination of Foulk)).

       In response, Foulk argues that, for purposes of the retroactivity issue, the present
action was brought at the time the fourth amended complaint was filed because it was
there that the excessive force claim was originally asserted, albeit against "John Doe"
defendants, described as "unknown correctional officers [at MCC]." See Brief for
Appellee at 9 (No. 00-1132). Thus, he argues, because the fourth amended complaint
was filed prior to the enactment of the PLRA, and he has already prevailed at trial,
application of the PLRA exhaustion requirement at this stage of the litigation would
produce an impermissible retroactive effect. Id. at 9-10 (citing, e.g., Landgraf v. USI
Film Products, 511 U.S. 244, 280 (1994)). Foulk also argues that the PLRA does not

                                            -8-
apply because his Eighth Amendment claim is based on an isolated incident, and
therefore this is not "an action with respect to prison conditions." Foulk further argues
that the PLRA does not apply because an award of money damages – the only remedy
that he sought and obtained at trial – was not available to him through the prison's
administrative process.

        Even if the PLRA’s exhaustion requirement does apply, Foulk continues, he
satisfied that requirement by timely filing an IRR. He emphasizes that MDOC failed
to respond to his IRR within thirty days, as required. He suggests that the failure to act
by MDOC halted the process. In other words, he maintains that he did all he could to
obtain administrative relief, thereby exhausting his available administrative remedies.
Foulk additionally suggests that Charrier waived his right to rely on the PLRA
exhaustion requirement because he failed to adequately present the issue prior to the
commencement of the trial. Foulk argues that "[i]t would be a miscarriage of justice
to allow [Charrier] to fail to properly participate in the administrative remedy procedure
and then to raise same as a defense after [Foulk] has prevailed at trial." Brief for
Appellee at 12 (No. 00-1132) (citing Underwood v. Wilson, 151 F.3d 292, 295 (5th
Cir. 1998), cert. denied, 526 U.S. 1133 (1999)).

       To begin, we note that, after the submission of these appeals, the Supreme Court
resolved at least one of the legal questions now before us – the question of whether
failure to exhaust administrative remedies may be a bar to suit, under the current
version of 42 U.S.C. § 1997e(a), even though the remedy being sought in court was not
available to the prisoner through the administrative process. In Booth v. Churner, 121
S. Ct. 1819 (2001), the plaintiff, a prisoner, argued that he was not required under
§ 1997e(a) to exhaust his administrative remedies before bringing his § 1983 action
alleging a constitutional violation, because money damages were not available through
the prison's administrative process, and that was the only remedy he was seeking in
federal court. The Supreme Court rejected the plaintiff's argument, holding that, under
the PLRA, a particular remedy need not be available through the prison's administrative

                                           -9-
process in order for the PLRA exhaustion requirement to apply. Focusing on
§ 1997e(a)'s statutory history, the Supreme Court noted that the pre-PLRA version of
the statute contained language allowing dismissal of a prisoner suit for failure to
exhaust administrative remedies if a "plain, speedy, and effective" remedy were
available. Based on that language (particularly, the word "effective"), the Supreme
Court had previously held, in McCarthy v. Madigan, 503 U.S. 140, 155-56 (1992), that
a prisoner's claim in federal court seeking monetary damages could not be barred for
failure to exhaust administrative remedies unless monetary damages were
administratively available. As part of the PLRA, however, Congress specifically
deleted the "plain, speedy, and effective" language from § 1997e(a). In so doing, the
Supreme Court concluded, Congress must have intended for the exhaustion requirement
to apply "regardless of the relief offered through administrative procedures." Booth v.
Churner, 121 S. Ct. at 1824-25.

      In light of Booth v. Churner, we now hold that the PLRA exhaustion requirement
may apply to the case at bar even if money damages were not available to Foulk
through the prison's administrative process.

       We also note that Booth v. Churner involved the plaintiff prisoner's Eighth
Amendment claim of cruel and unusual punishment based upon alleged isolated
incidents of excessive force and denial of medical care, much like the allegations in the
present case. Recognizing the Supreme Court's implicit assumption that Booth v.
Churner was a "prison conditions" case, we similarly hold in the present case that
Foulk's action against Charrier is "with respect to prison conditions" for purposes of
applying the PLRA. Accord Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001) ("It
is also interesting to note that the Supreme Court, although not discussing the point,
required exhaustion in Booth even though the prisoner's claim grew, like here, out of
an alleged assault of a prisoner by corrections officers.").




                                          -10-
       We now turn to the retroactivity issue. As stated above, Foulk argues that the
pre-PLRA fourth amended complaint adequately asserted the excessive force claim at
issue, and application of the PLRA's exhaustion requirement would be impermissibly
retroactive. By contrast, Charrier argues that the relevant complaint is the post-PLRA
fifth amended complaint, which was the first to identify Charrier by name.

        We agree with the courts that have held that the current version of § 1997e(a),
as amended by the PLRA, may not be retroactively applied to cases already pending
at the time of the PLRA's enactment. See, e.g., Salahuddin v. Mead, 174 F.3d 271, 275
(2d Cir. 1999) ("Plaintiff had already filed his complaint as of the effective date of the
[PLRA], and the command of the amended § 1997e(a) therefore had no application to
this action.") (citing cases); Wright v. Morris, 111 F.3d 414, 417-23 (6th Cir.) (in-depth
analysis of retroactivity issue), cert. denied, 522 U.S. 906 (1997). Therefore, if the
filing date of the fourth amended complaint (or an earlier complaint) governs for
purposes of determining the applicability of the PLRA exhaustion requirement, then
Foulk is correct to say that the requirement cannot apply. If, however, the date of the
fifth amended complaint controls, then Charrier is correct to say that the PLRA
exhaustion requirement does apply. Thus, the pertinent threshold question is whether
the excessive force claim asserted against Charrier in the fifth amended complaint
"relates back" under Fed. R. Civ. P. 15(c) to the excessive force claim against "John
Doe" defendants in the fourth amended complaint.

       The issue of whether an amended complaint identifying a defendant by name will
"relate back" to a previously filed complaint against a "John Doe" defendant has
typically arisen in the context of statute of limitations issues. Such an amendment
ordinarily will not be treated as relating back to the prior pleading, unless certain
conditions set forth in Fed. R. Civ. P. 15(c) are satisfied. See, e.g., Barrow v.
Wethersfield, 66 F.3d 466, 467 (2d Cir. 1995) ("We have stated that '[i]t is familiar law
that "John Doe" pleadings cannot be used to circumvent statutes of limitations because
replacing a "John Doe"with a named party in effect constitutes a change in the party

                                          -11-
sued.' Thus, '[s]uch an amendment may only be accomplished when all of the
specifications of Fed. R. Civ. P. 15(c) are met.'") (citations omitted); see generally
Steven S. Sparling, Note, Relation Back of "John Doe" Complaints in Federal Court:
What You Know Can Hurt You, 19 Cardozo L. Rev. 1235 (1997).

        For purposes of determining the applicability of the PLRA exhaustion
requirement in the present case, the appropriate time to consider the "relation back"
issue under Rule 15(c), and underlying questions raised therein, would have been
before the case went to trial. See, e.g., Perez v. Wisconsin Dep't of Corrections, 182
F.3d 532, 536 (7th Cir. 1999) ("The [PLRA exhaustion requirement] can function
properly only if the judge resolves disputes about its application before turning to any
other issue in the suit."). In the present case, however, not only was the Rule 15(c)
"relation back" issue not timely presented to the district court, it was not presented to
the district court at all. This brings us to the question of whether Charrier waived his
right to rely on the PLRA exhaustion requirement by failing to raise it prior to trial, as
Foulk now contends.

        Our court has recognized that reliance on the PLRA exhaustion requirement can
be waived. See Randolph v. Rodgers, 253 F.3d 342, 347 n.11 (8th Cir. 2001) ("The
State argues that the [PLRA exhaustion requirement] required Randolph to exhaust all
administrative remedies available in the prison system . . . before filing suit. As we
held the first time this case was before us, the PLRA issue was not raised in the District
Court and the State has 'waived the argument on appeal.'") (quoting Randolph v.
Rodgers, 170 F.3d 850, 857 n.8 (8th Cir. 1999)); accord Perez v. Wisconsin Dep't of
Corrections, 182 F.3d at 536 ("Defendants may waive or forfeit reliance on § 1997e(a),
just as they may waive or forfeit the benefit of a statute of limitations.”). That principle
is consistent with this court's holding in Chelette v. Harris, 229 F.3d 684, 686-88 (8th
Cir. 2000), cert. denied, 121 S. Ct. 1106 (2001), that failure to exhaust administrative
remedies under § 1997e(a), as amended by the PLRA, does not deprive federal courts
of subject matter jurisdiction. Also consistent with the holding in Chelette v. Harris, we

                                           -12-
recognize that reliance upon the PLRA exhaustion requirement is an affirmative defense
under Fed. R. Civ. P. 8(c). Accord Massey v. Helman, 196 F.3d 727, 735 (7th Cir.
1999) ("A prisoner's failure to exhaust administrative remedies before filing a claim
constitutes an affirmative defense under Rule 8(c) of the Federal Rules of Civil
Procedure.") (citing cases), cert. denied, 121 S. Ct. 2214 (2001).

       As indicated above, Charrier did not raise the PLRA exhaustion issue by motion
prior to the trial. See Appellants' Appendix (Appeal No. 00-1132), Vol. II, at 216-89
(motion for summary judgment). Nor did he request a jury instruction on that issue.
See id., Vol. III, at 397-424 (requested jury instructions). While Charrier did include
in his answer to the fifth amended complaint a general affirmative defense for failure
to exhaust administrative remedies, see id., Vol. I, at 186, there is no mention in the
defense of the PLRA or § 1997e(a). On the other hand, Charrier did raise the issue
during trial in an oral motion to dismiss for lack of subject matter jurisdiction, see Trial
Transcript, Vol. II, at 189, and he reasserted his argument in his post-trial motion for
judgment as a matter of law or for a new trial. See Appellants' Appendix (Appeal No.
00-1132), Vol. III, at 438-40. We are also mindful that the present case was
proceeding in the district court at a time when the law of our circuit regarding the
PLRA remained undeveloped. Therefore, notwithstanding Charrier's failure to timely
raise the PLRA exhaustion issue prior to the start of the trial, we hold, under the
particular circumstances of this case, that Charrier did not waive his right to rely on the
PLRA exhaustion requirement for purposes of the present appeal. We now turn to the
PLRA exhaustion issue on its merits.

       As stated above, the assertion that a plaintiff prisoner failed to exhaust all
available administrative remedies as required under the PLRA is an affirmative defense
under Fed. R. Civ. P. 8(c). It is the burden of the defendant asserting this affirmative
defense to plead and prove it. See Massey v. Helman, 196 F.3d at 735. In the present
case, notwithstanding the understandable uncertainty as to whether or not § 1997e(a)
created a jurisdictional issue, Charrier knew or should have known from the language

                                           -13-
of the statute that he had to establish Foulk's failure to exhaust available administrative
remedies. On that particular issue, Charrier did nothing more than elicit the following
testimony from Foulk on cross-examination.

      Q.     Now as to the application of the pepper spray in that incident on
             the 22nd, you never filed any grievance, did you?

      A.     Yes, I filed an IRR.

      Q.     Now what's an IRR?

      A.     It's an informal resolution request.

      Q.     That's not the same thing as a grievance, is it?

      A.     I filed that July '94.

      Q.     The IRR?

      A.     Yes.

      Q.     But you haven't – my question is you haven't filed a grievance on this?

      A.     I have to wait to get the – I had to wait to get the response of the IRR
             back before I could file a grievance. I never did receive a response to the
             IRR.

      Q.     Can't you follow up on why you haven't received a response to the IRR?

      A.     No, you cannot.

      Q.     You can't file a grievance on that?

      A.     You can request an emergency grievance, but the grievance officers, they,
             more than likely or most times, they refuse that and which –


                                           -14-
      Q.     But as to this particular claim that you're making against Lieutenant
             Charrier today, you have not filed a grievance, have you?

      A.     I was transferred from Moberly to Jeff City.

      Q.     I understand that but –

      A.     Excuse me, I never did receive – I waited the response from the IRR and
             Moberly never did, you know, furnish me with or supply me with the
             response to the IRR.

      Q.     But my question is, as to the claim you're making today, you have never
             filed a grievance on this matter, have you?

      A.     No.

             MR. JOHNSON: No further questions, Your Honor.

Trial Transcript, Vol. II, at 187-88.

        In other words, Charrier merely established that Foulk filed an IRR, MDOC
failed to respond, and Foulk thereafter did not file a grievance or a grievance appeal.
Foulk’s testimony further indicates, however, that MDOC's failure to respond to his
IRR precluded him from filing a grievance (although he may have been able to request
an “emergency grievance,” the meaning of which is nowhere explained). Thus, Foulk's
testimony suggests that he had exhausted his available administrative remedies because,
once MDOC failed to respond to his IRR, no further administrative proceedings were
“available” to him. Cf. Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“[§
1997e(a)] does not require exhaustion of all remedies; it requires the exhaustion of
'such administrative remedies as are available.’”). Charrier points to no evidence in the
trial record which establishes that Foulk could indeed have filed a grievance despite




                                          -15-
MDOC's failure to respond to his IRR.7 Charrier’s reliance upon a wholly unrelated
district court case, Smith v. Stubblefield, 30 F. Supp. 2d at 1174, does not establish the
administrative rules applicable to Foulk at the time and place, and under the
circumstances, of his incarceration. Consequently, the district court lacked a sufficient
factual basis on which to find that Foulk did, in fact, fail to exhaust his administrative
remedies. We therefore hold that the district court did not err in declining to dismiss
Foulk's excessive force claim for failure to exhaust administrative remedies, as required
under the PLRA.

Evidentiary rulings

      We now turn to Charrier's arguments related to the trial proceedings. Charrier
argues that the district court abused its discretion under Fed. R. Evid. 609(a)(1)8 and




      7
        Nor has Charrier attempted to supplement the record with such evidence, either
before the district court in support of his post-trial motion for judgment as a matter of
law, or before this court in support of his brief on appeal.
      8
          Rule 609(a)(1) provides:

      (a) General rule. For the purpose of attacking the credibility of a
      witness,

                 (1) evidence that a witness other than an accused has been
               convicted of a crime shall be admitted, subject to Rule 403,
               if the crime was punishable by death or imprisonment in
               excess of one year under the law under which the witness
               was convicted, and evidence that an accused has been
               convicted of such a crime shall be admitted if the court
               determines that the probative value of admitting this
               evidence outweighs its prejudicial effect to the accused[.]

                                          -16-
Fed. R. Evid. 403,9 in excluding evidence showing the specific nature of Foulk's prior
felonies, which Charrier sought to introduce to impeach Foulk. Brief for Appellant at
40-50 (No. 00-1132). The district court allowed Charrier to show that Foulk had been
convicted of two felonies, sentenced to twenty years imprisonment, and incarcerated
since 1985.10 However, over Charrier’s objection, the district court disallowed
evidence that Foulk’s two felony convictions were for rape and sodomy.11 Charrier
argues on appeal that the jury’s assessment of Foulk's credibility was critical to the
outcome of the trial and that the nature of Foulk’s prior convictions for rape and
sodomy would have been particularly helpful to that assessment. Moreover, Charrier
argues, the likelihood of unfair prejudice resulting from such evidence was not
significant because the evidence could not have been used to show a propensity to
commit the same crime twice and because the jury already knew that Foulk was a
convicted felon. Charrier suggests that a limiting instruction could have addressed any
potential for unfair prejudice. In support of this argument, Charrier primarily relies
upon this court's decision in Cummings v. Malone, 995 F.2d 817, 825 (8th Cir. 1993)
(Cummings) (reversing and remanding for new trial on prisoner's Eighth Amendment
claim brought pursuant to 42 U.S.C. § 1983 in part because district court abused its
discretion in excluding evidence regarding the plaintiff's prior felony convictions).

      9
          Rule 403 provides:

              Although relevant, evidence may be excluded if its probative value
      is substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue delay,
      waste of time, or needless presentation of cumulative evidence.
      10
        According to the record, Foulk was serving two consecutive ten-year sentences
and had completed the first in 1991, less than ten years prior to the trial in the present
case. See Trial Transcript, Vol. I, at 15. Therefore, neither conviction was more than
ten years old, for purposes of applying Fed. R. Evid. 609(a)(2).
      11
       Neither of Foulk's prior felonies was a crime involving dishonesty or false
statement, which would have rendered them admissible under Fed. R. Evid. 609(b).

                                          -17-
       We disagree with Charrier’s contention that the district court's ruling in the
present case was inconsistent with Cummings. To begin, this court expressly
acknowledged in Cummings, id. at 826, that "the trial judge has discretion under Rule
403 to limit inquiry into past convictions, and in an appropriate case might exclude the
names of the specific crimes under Rule 403." Cf. United States v. Ford, 17 F.3d 1100,
1103 (8th Cir. 1994) (“It was within the district court’s discretion to conclude that the
nature of [the witness’s] sexual offense might inflame the jury. The introduction of [the
witness’s] specific felony could easily have distracted the jury from its task without
adding any real probative information to their deliberations.”) (citing Cummings, 995
F.2d at 826). Moreover, this court held in Cummings, 995 F.2d at 825-27, that the
district court had abused its discretion in excluding evidence showing the specific
nature of the plaintiff's prior felony convictions where the plaintiff had testified at trial,
the jury's assessment of that credibility was "paramount" to the outcome of the case,
and such evidence would have revealed prior inconsistent statements made by the
plaintiff. The evidence in question in the present case was not similarly probative on
the issue of credibility. Furthermore, in Cummings, this court specifically expressed
uncertainty as to whether the district court had carefully weighed the probative value
of the convictions against the potential for prejudice. See id. at 826 & n.3. By
contrast, the record reveals in the present case that the district court carefully
performed that duty. See Trial Transcript, Vol. I, at 13-17; Vol. II, at 61-62, 134-36.
We therefore hold that the district court did not abuse its discretion in excluding
evidence regarding the specific nature of Foulk's prior felonies.

       Charrier also argues that the district court improperly limited the number and
type of documents he was allowed to introduce into evidence. Brief for Appellant at
59-63 (No. 00-1132). Charrier acknowledges that the district court had broad discretion
in restricting the presentation of evidence to prevent undue delay, waste of time, and
duplication. However, Charrier argues, the district court abused that discretion by
limiting him to one medical document regarding Foulk's injuries and one MDOC record
for each of Foulk's conduct violations.

                                            -18-
       Upon review, we conclude that Charrier was given ample opportunity to
establish the facts covered by the excluded documents through the testimony of MDOC
employees and officials. We therefore hold that the district court did not abuse its
discretion in restricting Charrier's presentation of documents. See United States v.
York, 830 F.2d 885, 889 (8th Cir. 1987) (per curiam) (exclusion of FBI administrative
reports was not a clear abuse of discretion where appellants had been allowed to
explore the matter covered by the reports through witness testimony and to introduce
other documents which were duplicative of the excluded reports), cert. denied, 484
U.S. 1074 (1988).

Nominal damages instruction

        Charrier further maintains that the district court erred in instructing the jury that
they could award nominal damages in the present case. Brief for Appellant at 51-58
(No. 00-1132). The district court gave the following instruction: "If you find in favor
of plaintiff, but you find that plaintiff's damages have no monetary value, then you must
return a verdict for plaintiff in the nominal amount of one dollar." Trial Transcript, Vol.
III, at 207. As previously stated, the jury awarded Foulk $1.00.

      Charrier argues on appeal that, to the extent this court has previously held that
nominal damages are available for Eighth Amendment violations, such cases should
now be overruled because they are contrary to Supreme Court’s holding in Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992) (Eighth Amendment's prohibition of cruel and
unusual punishment excludes from constitutional recognition de minimis uses of force,
provided not of a sort "repugnant to the conscience of mankind").12 Charrier argues


       12
        The law is well established that this court may not overrule one of its prior
decisions unless it does so en banc. See, e.g., Minnesota Citizens Concerned for Life


                                            -19-
that "[n]ominal damages, by definition, can only be de minimis. Where the degree of
harm from a use of force is insufficient to support a finding of damages in more than
the nominal amount of one dollar, the use of force can only have been de minimis."
Brief for Appellant at 54 (No. 00-1132). Conversely, he argues, if the use of force was
more than de minimis, then the evidence would support actual damages – thus
obviating any need for a nominal damages instruction. Id. at 54-55. We disagree.

       An injury warranting nominal damages is not necessarily the result of a de
minimis use of force. Stated differently, it is possible for a use of force to be excessive
and in violation of the Eighth Amendment, and yet result in injury having no or only
nominal monetary value. As we explained in Howard v. Barnett, 21 F.3d 868, 872 (8th
Cir. 1994) (internal citation omitted):

              Although de minimis uses of physical force are not proscribed by
      the Eighth Amendment unless they are "repugnant to the conscience of
      mankind," whether the Eighth Amendment was violated turns on "whether
      force was applied . . . maliciously and sadistically to cause harm," not
      whether a serious injury resulted from that force. Simply put, force that
      is excessive within the meaning of the Eighth Amendment is compensable
      if it causes the prisoner actual injury, even if the injury is not of great
      significance.

      We therefore hold that the district court did not err in permitting the jury to
award nominal damages in the present case.

Sufficiency of the evidence




v. Federal Election Comm'n, 113 F.3d 129, 131 (8th Cir. 1997) (noting that overruling
a prior decision of the court is "an action that may only be taken by the court en banc").


                                           -20-
       Charrier argues that the district court erred in denying his post-trial motion for
judgment as a matter of law because Foulk failed as a matter of law to establish a
prima facie case of excessive use of force in violation of the Eighth Amendment. Brief
for Appellant at 26-39 (No. 00-1132). Charrier maintains that, even viewing the
evidence in the light most favorable to Foulk, no reasonable jury could conclude that:
(1) Charrier had applied force maliciously and sadistically for the very purpose of
causing harm; (2) he had not acted in good faith and his use of the pepper spray was
not necessary and appropriate under the circumstances; or (3) Foulk had suffered an
actual injury. Alternatively, Charrier argues that the district court should have granted
him judgment as a matter of law because Foulk failed to defeat his qualified immunity
defense. At the time of the underlying events, Charrier contends, an objectively
reasonable official would not have known that his conduct violated a clearly established
constitutional right.

        According to Foulk's testimony, he was being compliant, and the door was
locked, when Charrier enticed him to put his face up to the screened window. Charrier
then sprayed pepper spray directly into Foulk's face. Foulk testified that he could not
see, his eyes, nose, and mouth were burning, and he felt as though he were choking.
Moreover, contrary to Charrier’s contention that Foulk suffered “only temporary
discomfort for a matter of minutes,” Brief for Appellant at 39 (No. 00-1132), Foulk
testified that, because he received no medical care and had no ability to wash off the
pepper spray, he continued to feel its painful effects for several days. In light of this
testimony, and other aspects of the evidence at trial,13 we agree with the district court

      13
        For example, Theresa Thornburg, the associate superintendent of inmate
management at MCC, testified at trial that, prior to preparing a “use of force” report,
she reviewed a videotape of at least part of the confrontation between Foulk and the
corrections officers, including Charrier. See Trial Transcript, Vol. III, at 50-80
(testimony of Theresa Thornburg). Based upon her review of the videotape, she
concluded that the officers had acted appropriately. However, she admitted that the


                                          -21-
that a reasonable jury could have concluded that Charrier acted maliciously,
sadistically, and with the intent to cause injury, and that Foulk suffered an actual injury.
Moreover, the district court did not err in declining to grant judgment as a matter of law
based upon Charrier’s qualified immunity defense. By June of 1994, the law was well
established that a malicious and sadistic use of force by a prison official against a
prisoner, done with the intent to injure and causing actual injury, is enough to establish
a violation of the Eighth Amendment’s cruel and unusual punishment clause. See
Hudson v. McMillian, 503 U.S. at 9-10.

       We therefore hold that the district court did not err in denying Charrier's motion
for judgment as a matter of law based on insufficiency of the evidence.

Award of attorney's fees

       Finally, Charrier and the United States (together appellants), argue that the
district court violated the attorney’s fees provision of the PLRA, 42 U.S.C.
§ 1997e(d)(2), in awarding attorney's fees greater than 150% of the $1.00 nominal
damages award. As previously noted, § 1997e(d)(2) states:

              Whenever a monetary judgment is awarded in an action described
       in paragraph (1), a portion of the judgment (not to exceed 25 percent)
       shall be applied to satisfy the amount of attorney’s fees awarded against
       the defendant. If the award of attorney’s fees is not greater than 150
       percent of the judgment, the excess shall be paid by the defendant.

       In considering the applicability of § 1997e(d)(2) to the present case, the district
court relied on Boivin v. Merrill, 66 F. Supp. 2d 50 (D. Me. 1999), rev'd sub nom.,


videotape had been destroyed or taped over, and she explained that it had not been
preserved because it showed nothing unusual. Id. at 53.


                                           -22-
Boivin v. Black, 225 F.3d 36 (1st Cir. 2000),14 to reason that Congress could not have
intended for the 150% attorney’s fees cap to apply to nominal damages awards. See
Foulk v. Charrier, slip op. at 5-7 (June 8, 2000) (memorandum in support of award of
attorney's fees and costs). In light of that holding, the district court declined to make
a determination regarding the constitutionality of § 1997e(d)(2) under the equal
protection clause. Id. at 7.

       On appeal, appellants emphasize that the district court decision in Boivin v.
Merrill has since been reversed by the First Circuit, which held that § 1997e(d)(2) does
apply to nominal damages awards. Boivin v. Black, 225 F.3d at 40-41. Appellants
also defend the constitutionality of § 1997e(d)(2) under the equal protection clause,
arguing that an attorney's fees cap is rationally related to the government's interests in
discouraging lawsuits that are frivolous or based on trivial harms, and in preventing the
award of windfall attorney's fees out of government resources. Appellants suggest that
§ 1997e(d)(2), among other provisions of the PLRA, was adopted in recognition of the
overly litigious nature of prisoners who have relatively few living expenses, have plenty
of free time, are relatively unaffected by external or societal constraints on filing
frivolous lawsuits, and arguably tend to file frivolous lawsuits because it allows them
to spend time in court and to harass or inconvenience prison employees and officials.
The attorney's fees cap, appellants contend, counteracts the litigious nature of prisoners
by making it difficult for them to retain attorneys to file weak or frivolous claims and
by deterring both retained and appointed attorneys from pursuing weak or frivolous
claims. See id. at 41-46.




      14
         The district court's decision in Boivin v. Merrill was reversed by the First
Circuit on September 5, 2000, approximately three months after the district court filed
its order awarding attorney's fees in the present case.


                                          -23-
        In response, Foulk argues that the reasoning by the district court in Boivin v.
Merrill remains sound, and the award of attorney's fees in the present case can be
upheld on the ground that a nominal damages award is not a "monetary judgment" but
rather the vindication of an important constitutional right. He further contends that,
consistent with the reasoning of the district court in McKinnon v. Russell, 108 F. Supp.
2d 842, 849-53 (S.D. Ohio 1999), this court could read the second sentence of
§ 1997e(d)(2)15 as referring only to cases where the award of attorney's fees is "not
greater than 150 percent of the judgment." In cases where the attorney's fees award is
greater than 150% of the judgment, he argues, the statute is arguably silent, and pre-
PLRA standards should continue to apply. Finally, Foulk argues that, if § 1997e(d)(2)
can be read to impose a cap on attorney's fees at $1.50 in a case such as this, then it
violates the equal protection clause. Foulk explains that, unlike filing fees which make
a prisoner think twice before filing a lawsuit, an attorney's fees cap has no impact on
the filing decision of a pro se litigant, who may or may not later receive an appointment
of counsel. Furthermore, he explains, while the attorney's fees cap may have a small
impact on the few lawyers who are consulted before a prisoner lawsuit is filed, those
attorneys already face many other disincentives to filing frivolous claims, such as Fed.
R. Civ. P. 11, the prevailing party standards under Hensley v. Eckerhart, 461 U.S. 424,
443 (1983) (extent of success is a crucial factor in determining fee), and Farrar v.
Hobby, 506 U.S. 103, 115 (1992) (reasonable fee for recovering nominal damages is
usually no fee at all), and the proportionality standard in the PLRA, 42 U.S.C.
§ 1997e(d)(1)(B)(i). Therefore, he concludes, the attorney's fees cap is not rationally
related to a legitimate governmental interest.16


      15
        "If the award of attorney's fees is not greater than 150 percent of the judgment
the excess shall be paid by the defendant."
      16
        This court has held that § 1997e(d)(2) applies to all hours worked by an
attorney after the date of the enactment of the PLRA. See, e.g., Williams v. Brimeyer,
122 F.3d 1093, 1094 (8th Cir. 1997). In the present case, Foulk’s attorneys were


                                          -24-
       "We review claims of constitutional error and issues of statutory construction de
novo." United States v. Allen, 247 F.3d 741 (8th Cir. 2001). On the issue of whether
an award of nominal damages is a "monetary award" under § 1997e(d)(2), we agree
with the reasoning and conclusions of the First Circuit in Boivin v. Black, 225 F.3d at
40-46. Exempting nominal damages awards from the statute could, as the First Circuit
explained, lead to absurd results. See id. at 41. Moreover, including nominal damages
awards within the statute's reference to "monetary awards" is consistent with that term's
plain and ordinary meaning and Congress's apparent intent. See id. at 40-41.17

       We also reject Foulk's argument that the statute should be read literally as having
no effect if a court were to award attorney's fees in an amount greater than 150% of the
monetary judgment. As the Sixth Circuit explained in Walker v. Bain, Nos. 99-2001,
99-2004, 99-2349, 2001 WL 823612, at *4, __ F.3d __, __ (6th Cir. July 20, 2001),
"[w]hile [plaintiff's] interpretation of § 1997e(d)(2) is consistent with the literal
language of the statute, it is inconsistent with the intent of Congress, renders the second
sentence of the provision meaningless, and must therefore be rejected."

      Finally, we agree with the majority of circuits which have confronted the equal
protection issue and have held that the PLRA's attorney's fees cap passes constitutional
muster. See, e.g., Walker v. Bain, 2001 WL 823612, at *7, __ F.3d at __; Boivin v.
Black, 225 F.3d at 41-46; Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999);



appointed in 1997, after the PLRA's enactment on April 26, 1996. Therefore, Foulk
makes no retroactivity argument vis-a-vis the PLRA's attorney's fees provision.
      17
       However, if non-monetary relief is ordered (whether with or without a
monetary award), the attorney's fees cap in 42 U.S.C. § 1997e(d)(2) does not apply.
See Walker v. Bain, Nos. 99-2001, 99-2004, 99-2349, 2001 WL 823612, at *5 n.2, __
F.3d __, __ (6th Cir. July 20, 2001); Boivin v. Black, 225 F.3d 36, 41 n.4 (1st Cir.
2000).


                                           -25-
Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 686 (3d Cir.
1999) (en banc) (per an equally divided court), cert. denied, 528 U.S. 1115 (2000).

      As the Sixth Circuit aptly explained:

              We are aware that § 1997e(d)(2) will have a strong chilling effect
      upon counsels' willingness to represent prisoners who have meritorious
      claims. We are also mindful that the "marginal or trivial" claims that
      result in a judgment for a prisoner, such as [Foulk], do in fact arise out of
      an actual, proven civil rights violation. We admit to being troubled by a
      federal statute that seeks to reduce the number of meritorious civil rights
      claims and protect the public fisc at the expense of denying a politically
      unpopular group their ability to vindicate actual, albeit "technical," civil
      rights violations. However, we are aware that we are not authorized to
      act as a superlegislature to judge the wisdom or desirability of legislative
      policy determinations made in areas that neither affect fundamental rights
      nor proceed along suspect lines. Moreover, our role is not to judge the
      wisdom, fairness, or logic of legislative choices. Accordingly, we must
      conclude that § 1997e(d)(2) survives rational review.

Walker v. Bain, 2001 WL 823612, at *7, __ F.3d at __ (internal citations and quotation
marks omitted).

      We therefore hold that the district court erred in failing to apply § 1997e(d)(2)
in awarding attorney's fees in the present case.18 Foulk is entitled to no more than
$1.50 in attorney's fees.




      18
       We need not reach Charrier's alternative argument that, even if 42 U.S.C.
§ 1997e(d)(2) does not apply in the present case, the district court's award of attorney's
fees was an abuse of discretion under 42 U.S.C. § 1988.


                                          -26-
                                      Conclusion

       For the reasons stated, we vacate the order of the district court awarding Foulk
attorney's fees and costs, and we remand the case to the district court to redetermine
the award of attorney's fees and, if necessary, costs. In all other respects, the judgment
of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -27-
