     Case: 11-41121     Document: 00512036256         Page: 1     Date Filed: 10/29/2012




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

                                                                            FILED
                                                                         October 29, 2012

                                       No. 11-41121                        Lyle W. Cayce
                                                                                Clerk

ANTHONY BOYD,

                                                  Plaintiff - Appellant
v.

JOE D. DRIVER, Warden, Federal Correctional Institution Three Rivers;
PHILLIP CHILDS, Associate Warden, Federal Correctional Institution Three
Rivers; MIKE DUNGAN, Associate Warden, Federal Correctional Institution
Three Rivers; D. MAUNE, Captain; THOMAS WATSON, Lieutenant; E.
THOMPSON, Lieutenant; JOHNNY C. PONCE, Corrections Officer; J.
SHIPMAN, Corrections Officer; C. SCHMALE, Corrections Officer;
RICHARD CASTILLO, Corrections Officer; R. E. TUTTLE, Corrections
Officer; ELLIE ANZALDUA, Special Investigations Technician,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 6:06-cv-22


Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        This is the second appeal in this action under Bivens v. Six Unknown
Named Agents of Fed. Bur. of Narcs., 403 U.S. 388 (1971), in which plaintiff-


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-41121

appellant Anthony Boyd, a federal prisoner, alleges that prison employees
violated his due process rights in connection with an assault prosecution that
arose from an altercation between Boyd and prison guards and that resulted in
Boyd’s acquittal.
      In a published opinion, we previously reversed the district court’s
dismissal of Boyd’s suit and held that “Boyd’s handwritten pro se complaint
includes allegations supporting a direct due process claim[] . . . that prison
employees gave perjured testimony at his criminal trial and destroyed and
tampered with video evidence of the alleged assaults[,] . . . allegations . . . that
support a Bivens action” under this court’s decision in Castellano v. Fragozo, 352
F.3d 939 (5th Cir. 2003) (en banc). Boyd v. Driver, 579 F.3d 513, 515 (5th Cir.
2009) (per curiam). Nevertheless, on remand, the district court again dismissed
the suit, reasoning that Boyd’s allegations did not state a due process claim
because he “failed to allege that he served any time pursuant to a conviction
obtained through the use of perjured testimony.” On appeal, the Government
defends this decision, arguing that Castellano requires a plaintiff to allege a
wrongful conviction in order to state a due process claim for the state’s knowing
use of false evidence or perjured testimony. However, because this court has
already held that Boyd’s complaint states a claim under Castellano,
notwithstanding his acquittal, we must again reverse the district court’s
judgment of dismissal.       Moreover, although the district court correctly
determined that Boyd’s claim for compensatory damages for mental suffering is
barred by the Prison Litigation Reform Act (PLRA), on remand Boyd should be
permitted to seek nominal and punitive damages for the alleged constitutional
violations.
                                BACKGROUND
      Boyd filed a pro-se Bivens suit in forma pauperis against thirteen Bureau
of Prisons employees alleging that they conspired to have him maliciously

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prosecuted for assault in federal court after he filed administrative complaints
that he was physically abused on two occasions in August 2004 at the Three
Rivers Federal Correctional Institution in Three Rivers, Texas. Boyd alleged
that certain of the defendants tampered with videotape evidence which showed
that he was the handcuffed victim during the incidents in question rather than
the aggressor and that certain of the defendants perjured themselves during his
federal trial. More specifically, Boyd’s complaint states as follows:
      A malicious prosecution conspiracy was initiated against Plaintiff
      by the [prison] [a]dministration. Warden Driver, Associate Wardens
      Childs and Dungan, Captain Maune and Special Investigations
      Technician Anzaldua were responsible for investigating the assault
      allegations which led to Plaintiff’s criminal indictment. All of the
      above named defendants either conspired to deprive Plaintiff of
      freedom, failed to prevent this conspiracy or aided in preventing the
      discovery of this conspiracy.
            After the Bureau of Prisons Regional Office received Plaintiff’s
      allegations of two separate assaults by staff, Special Investigations
      Technician Ellie Anzaldua faxed F.B.I. Special Agent Bill Cassidy
      statements by staff members alleging that Plaintiff assaulted Lt.
      Watson on 8-24-04 and Officers Ponce and Castillo on 8-30-04.
      Although video footage clearly showed Plaintiff was the handcuffed
      victim, Plaintiff was indicted for assault on October 21, 2004 in
      Criminal No. V-04-107. Trial commenced on February 14, 2005 and
      Plaintiff was acquitted on February 16, 2005. The destruction and
      tampering with the video evidence form the basis of Plaintiff’s claim.
           In furtherance of the malicious prosecution conspiracy, Lt.
      Thomas Watson (one of the ringleaders)[,] Lt. E. Thompson, C.O.
      Johnny C. Ponce, C.O. Shipman, C.O. David Charo, C.O. C.
      Schmale, C.O. Richard Castillo and C.O. R.E. Tuttle perjured
      themselves at trial.
Boyd requested “[r]edress for [his] mental suffering and deprivation of rights,”
in the form of “punitive and compensatory damages [that] total $2,150,000.00.”
      The district court dismissed the suit as frivolous, holding that it did not
need to resolve whether Boyd had sufficiently exhausted his administrative


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remedies because, even assuming that he did so, his complaint failed to state a
claim. On appeal, this court held that Boyd was not required to exhaust
administrative remedies and that dismissal of his claim for malicious
prosecution was appropriate. Boyd, 579 F.3d at 514-15 & n.2. We continued:
      However, Boyd’s handwritten pro se complaint includes allegations
      supporting a direct due process claim. Boyd claims that prison
      employees gave perjured testimony at his criminal trial and
      destroyed and tampered with video evidence of the alleged assaults.
      While a malicious prosecution claim does not inevitably entail
      constitutional deprivation, the government’s “manufacturing of
      evidence and knowing use of that evidence along with perjured
      testimony to obtain a wrongful conviction deprives a defendant of
      his long recognized right to a fair trial secured by the Due Process
      Clause.” The allegations in Boyd’s complaint give rise to claims of
      direct constitutional deprivation that support a Bivens action. We
      express no view on the validity of any of Boyd’s claims, on the
      accuracy of his factual allegations, or on what decisions the district
      court should make on remand.
Id. at 515 (quoting Castellano, 352 F.3d at 942 (footnotes omitted)). We thus
affirmed the judgment of the district court in part, reversed in part, and
remanded for further proceedings. Id. The Government filed a petition for
rehearing, arguing that Boyd could not state a valid due process claim because
he had failed to allege that he was deprived of a liberty interest. We denied the
petition.
      On remand to the district court, the Government once again moved to
dismiss. The district court again granted the Government’s motion, concluding
this time that Boyd had failed to state a due process claim because, although
“[t]he knowing use of false testimony by a government official is a denial of due
process if it is used to obtain a conviction[,] . . . Boyd . . . failed to allege that he
served any time pursuant to a conviction obtained through the use of perjured
testimony.” Additionally, the district court concluded that “Boyd’s alleged facts
concerning the so-called tampering of the tape are so generalized that the court


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cannot speculate as to the grounds for relief to the extent that Boyd’s complaint
is subject to dismissal.” Finally, the district court also concluded that because
Boyd had not suffered any physical injury as a result of the defendants’ alleged
evidence tampering and perjury, the PLRA barred him from recovering
compensatory damages for mental and emotional injuries; and that he failed to
allege “reckless indifference” to his rights so as to entitle him to seek punitive
damages.
      The district court entered judgment dismissing Boyd’s suit pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief could be granted. Boyd timely appealed.
                          STANDARD OF REVIEW
      “We review de novo a district court’s dismissal for failure to state a claim
under Rule 12(b)(6). The ultimate question in a Rule 12(b)(6) motion is whether
the complaint states a valid claim when all well-pleaded facts are assumed true
and are viewed in the light most favorable to the plaintiff. The court’s task is to
determine whether the plaintiff has stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood of success.”      Shandong
Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th
Cir. 2010) (citations omitted).
                                  DISCUSSION
      We are compelled to once again reverse. This court has already held that
Boyd’s complaint adequately alleges a claim under Castellano, despite his
acquittal in the underlying criminal proceedings, Boyd, 579 F.3d at 515, and
both we and the district court are bound by that holding. Additionally, while the
district court correctly held that the PLRA bars Boyd from seeking compensatory
damages, Boyd may pursue nominal and punitive damages for the alleged
violation of his due process rights under Castellano.



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                                               I.
       In Castellano, the en banc court “decide[d] that ‘malicious prosecution’
standing alone is no violation of the United States Constitution, and that to
proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights
secured under federal and not state law.” Castellano, 352 F.3d at 942. However,
Castellano also held that allegations of “the manufacturing of evidence and
knowing use of perjured testimony attributable to the state” can form the basis
for a due process claim actionable under § 1983. Id. at 958.
       Castellano involved a situation in which the officers’ alleged
manufacturing of evidence and perjured testimony led to a conviction, albeit one
that was later set aside. Thus, Castellano did not address whether the new
species of due process claim it recognized could be raised by allegations that
similar alleged conduct led to a criminal prosecution that terminated in
acquittal. Compare, e.g., id. at 942 (“[A] state’s manufacturing of evidence and
knowing use of that evidence along with perjured testimony to obtain a wrongful
conviction deprives a defendant of his long recognized right to a fair trial secured
by the Due Process Clause[] . . . .” (emphasis added)), with id. at 959 (“We have
no occasion here to consider afresh the federal common law footing of our
insistence that a state criminal proceeding terminate in favor of a federal
plaintiff complaining of constitutional deprivations suffered in a state court
prosecution, a rule reflecting powerful governmental interests in finality of
judgments.” (emphases added)).1


       1
         In our earlier malicious prosecution cases, we had “adopted the common law element
that the plaintiff show proof of favorable termination of the prosecution” because of a “concern
that plaintiffs would relitigate state convictions in federal court.” Castellano, 352 F.3d at 948
(citing Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir. 1991)). This generally required that
the criminal case must have resulted in an acquittal. See Brummett, 946 F.2d at 1183
(“Absent a . . . requirement of ‘favorable termination’ for the constitutional tort of malicious
prosecution, a plaintiff could state a § 1983 claim even in cases in which he was ultimately
convicted.”). In Castellano, the en banc court explained that this favorable termination

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      However, our earlier decision in this case held that Boyd’s complaint
stated a claim under Castellano, despite the fact that he was acquitted in the
criminal proceeding he alleges resulted from the defendants’ unlawful conduct.
In introducing Boyd’s claims, this court specifically noted that “[Boyd] was tried
and acquitted in federal court.” Boyd, 579 F.3d at 514 (emphasis added). While
the court rejected Boyd’s freestanding “malicious prosecution” claim as foreclosed
by Castellano, it held that “Boyd’s handwritten pro se complaint includes
allegations supporting a direct due process claim,” and further stated that “[t]he
allegations in Boyd’s complaint give rise to claims of direct constitutional
deprivation that support a Bivens action.” Id. at 515.
      In light of this previous holding that Boyd’s complaint states a claim under
Castellano, despite the fact that Boyd was acquitted of the assault charges
related to his claim, the district court’s conclusion that Boyd nevertheless failed
to state a cognizable due process claim because he was not convicted was error.
We have been emphatic that district courts must faithfully apply the mandates
of our opinions on remand:
      “The mandate rule requires a district court on remand to effect our
      mandate and to do nothing else.” Further, on remand the district
      court “must implement both the letter and the spirit of the appellate
      court’s mandate and may not disregard the explicit directives of that
      court.” “In implementing the mandate, the district court must ‘take
      into account the appellate court’s opinion and the circumstances it
      embraces.’” Because the mandate rule is a corollary of the law of
      the case doctrine, it “compels compliance on remand with the
      dictates of a superior court and forecloses relitigation of issues
      expressly or impliedly decided by the appellate court.”
Gen. Universal Systems, Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007)
(citations omitted). By expressly recognizing that Boyd had been acquitted of
the assault charges but nonetheless concluding that he stated a claim under


requirement was satisfied because the state courts had ultimately set aside Castellano’s
conviction. See id. at 959 & n.111.

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Castellano, the 2009 Boyd panel at least “implicitly decided” the question of
whether Castellano requires a wrongful conviction in the underlying criminal
case. See id.2
       Therefore, the district court erred in concluding that Boyd’s complaint fails
to state a claim under Castellano because Boyd was not convicted of the assault
charges.
                                               II.
       In addition to concluding that the absence of a wrongful conviction was
fatal to his claim, the district court also reasoned that Boyd’s allegations did not
entitle him to either the compensatory or punitive damages he sought. First, the
district court determined that Boyd did not allege “actual injury” resulting from
the defendants’ alleged conduct, precluding compensatory damages, because the
PLRA “bars prisoners from recovering compensatory damages for mental and
emotional injuries where no physical injury has been shown.” See 42 U.S.C.
§ 1997e(e). Second, the district court held that Boyd failed to allege “that the
defendants acted with reckless indifference to [his] constitutional rights,”
precluding entitlement to punitive damages. We conclude that the district court
correctly held that the PLRA bars Boyd from seeking compensatory damages
based on mental or emotional suffering, but erred in concluding that Boyd
cannot seek nominal or punitive damages.
       First, as the district court held, Boyd failed to allege any actionable, actual
injury resulting from the defendants’ alleged evidence tampering and perjury.
Boyd’s complaint, and its construction by this court in our earlier opinion, both


       2
         The related law-of-the case doctrine likewise forecloses us from reaching a different
answer to this question than that reached by the prior panel. This court recently reiterated
that “[u]nder [the law-of-the-case] doctrine, the district court on remand, or the appellate court
on a subsequent appeal, abstains from reexamining an issue of fact or law that has already
been decided on appeal.” United States v. Teel, 691 F.3d 578, 582 (5th Cir. 2012) (citing United
States v. Carales–Villalta, 617 F.3d 342, 344 (5th Cir. 2010)).

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centered on his allegations that the defendants “gave perjured testimony at his
criminal trial and destroyed and tampered with video evidence of the alleged
assaults,” and the constitutional deprivation he alleged did not arise from the
alleged physical abuse in the underlying incident. See Boyd, 579 F.3d at 515.
The PLRA provides that “[n]o federal civil action may be brought by a prisoner
confined to a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” 42
U.S.C. § 1997e(e) (emphasis added). This court has read the expressly broad
language of this provision to apply not only to Eighth Amendment claims but
also to other constitutional violations not usually accompanied by physical
injury. See Hutchins v. McDaniels, 512 F.3d 193, 196 (5th Cir. 2007) (per
curiam); Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (per curiam). Thus,
the district court was correct to hold that the PLRA precludes Boyd from seeking
compensatory damages for the mental suffering he alleged resulted from
defendants’ conduct.
      However, in Hutchins, this court “recognize[d] that § 1997e(e) does not bar
[a prisoner]’s recovery of nominal or punitive damages.” Hutchins, 512 F.3d at
198. Moreover, both nominal and punitive damages are recoverable in a civil
rights action notwithstanding the absence of any entitlement to compensatory
damages. See id. at 197 (“[P]unitive damages ‘may stand in the absence of
actual damages where there has been a constitutional violation.’” (quoting
Williams v. Kaufman Cnty., 352 F.3d 994, 1015 (5th Cir. 2003)); Williams, 352
F.3d at 1014 (“The law is well-established in this Circuit that plaintiffs may
recover nominal damages when their constitutional rights have been violated
but they are unable to prove actual injury.”).
      The district court also reasoned that Boyd failed to state a claim of
entitlement to punitive damages because his allegations did not indicate that the



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defendants acted with a sufficient level of “reckless indifference to [his]
constitutional rights.” We disagree.
      Under our precedent, “punitive damages may be awarded [to a civil rights
plaintiff] only when the defendant’s conduct is motivated by evil intent or
demonstrates reckless or callous indifference to a person’s constitutional rights.”
Williams, 352 F.3d at 1015 (internal quotation marks omitted) (quoting La.
ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 303 (5th Cir. 2000)). “The latter
standard requires recklessness in its subjective form, i.e. a subjective
consciousness of a risk of injury or illegality and a criminal indifference to civil
obligations.” Id. (internal quotation marks omitted) (quoting Sockwell v. Phelps,
20 F.3d 187, 192 (5th Cir. 1994)).         In Williams, we held the “reckless
indifference” standard easily satisfied where the evidence indicated that the
defendant sheriff conducted strip searches of numerous individuals in
contravention of precedent holding “that [the sheriff] needed individualized
probable cause to search each of the plaintiffs.” Id.
      Here, the district court erred in concluding that Boyd failed to adequately
allege an entitlement to relief in the form of punitive damages sufficient to
survive a 12(b)(6) motion.      First, Boyd’s allegations satisfy the reckless
indifference standard. At the time of the defendants’ alleged conduct, which
occurred in or after August 2004, this court had already held in Castellano that
the “manufacturing of evidence and knowing use of that evidence along with
perjured testimony . . . deprives a defendant of his long recognized right to a fair
trial secured by the Due Process Clause.” Castellano, 352 F.3d at 942. The
conduct alleged here is almost precisely that held to constitute a constitutional
violation in Castellano. See Boyd, 579 F.3d at 515. Boyd’s allegations of a
conspiracy by prison guards to maliciously fabricate evidence and engage in
perjury also satisfy the alternative “evil intent” standard, as those allegations



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are plainly inconsistent with an innocent or merely negligent mindset. See
Williams, 352 F3d at 1015.
      Accordingly, the district court erred in concluding that Boyd failed to
adequately allege a plausible entitlement to relief.
                               CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s dismissal of
Boyd’s complaint for failure to state a claim under Rule 12(b)(6) and REMAND
for proceedings consistent with this opinion.




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