                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     No. 09-14977                          JUNE 24, 2011
                               ________________________                     JOHN LEY
                                                                             CLERK
                      D. C. Docket No. 01-00011-CV-1-SPM-WCS

JOSE ELIAS SEPULVEDA,


                                                                           Plaintiff-Appellee,

                                            versus

RALPH W. BURNSIDE, et al.,

                                                                                   Defendants,

FLOYD GIPSON,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            _________________________
                                    (June 24, 2011)

Before CARNES, KRAVITCH and FARRIS,* Circuit Judges.

       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

       Jose Sepulveda, a former inmate at the Alachua County Correctional Center

(ACCC), sued Detention Officer Floyd Gipson under 42 U.S.C. § 1983 for

retaliation under the First Amendment and deliberate indifference under the Eighth

Amendment after he was attacked by another inmate. A jury found in favor of

Sepulveda and awarded $1 in compensatory damages and $99,999 in punitive

damages. In this appeal, we must determine whether the district court properly

denied Gipson’s motion to set aside or reduce the punitive damages award issued

against him. Because we conclude that the district court did not sufficiently

explain its reasoning under State Farm Mutual Auto Insurance Co. v. Campbell,

538 U.S. 408 (2003), in denying Gipson’s motion, we vacate and remand.

       In 2001, Sepulveda filed a pro se amended complaint against Gipson for

deliberate indifference under the Eighth Amendment, harassment and retaliation

under the First Amendment, and various state law claims for the injuries he

sustained in February 2000 during an attack by fellow inmate Donald Small.2


       2
          Sepulveda also named as defendants ACCC Detention Officers Allen and Eliott, U.S.
Marshal Ralph Burnside, Alachua County Sheriff Stephen Oelrich, and ACCC inspector Alan
Morrow, raising claims under 42 U.S.C. §§ 1983, 1985 and 1986, Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1991), and state law. The district
court granted summary judgment to all defendants on all claims except one claim of retaliation
against Eliott. After a trial, the jury returned a verdict for Eliott. Sepulveda appealed. This
court affirmed in part and reversed in part, concluding that summary judgment in Gipson’s favor
on the First and Eighth Amendment claims was not warranted. A full recitation of the
allegations against Gipson can be found in our earlier decision. Sepulveda v. Burnside, 170 Fed.

                                               2
       At trial, Sepulveda testified that from the time he first entered ACCC in

1997, he encountered racist comments and discrimination. Although he was a

federal prisoner housed at ACCC temporarily, he was placed in a special

management unit. He stated that he was denied access to the law library, left in

shackles for over 24 hours, denied access to medical care, and retaliated against

because he filed grievances about the manner in which he was treated. He

eventually filed suit against eight detention officers at ACCC in connection with

these incidents. After that, Gipson, who knew of Sepulveda’s grievances and

lawsuits, began to call him a snitch, knowing it was a very dangerous label in

custody.

       Sepulveda further testified that in November 2000, Gipson arranged for

Sepulveda to be attacked by fellow special management inmate Donald Small

when he permitted both Small and Sepulveda to be in the common area with two

metal chairs at the same time. Once Small attacked Sepulveda, Gipson did not stop

it or try to intervene until another officer arrived on the scene. As a result of the

attack, Sepulveda stated that he now wears a hearing aid.

       Sepulveda’s ex-wife and parents testified that they had called prison officials

to complain that Sepulveda was denied access to medical care and had been left



Appx. 119 (11th Cir. 2006) (unpublished).

                                            3
shackled overnight. They alleged that prison officials had called Sepulveda

“snitch” and “taco boy.” They stated that Sepulveda did not wear a hearing aid

prior to the attack.

       Frank Merold, a former inmate who had been placed in the special

management unit around the time of the attack, explained that the unit housed

violent inmates and that he had overheard Gipson and others in the unit refer to

Sepulveda as a snitch for suing various detention officers. Merold explained that

calling an inmate a snitch could be very dangerous. Merold also stated that it was

common knowledge that Sepulveda had filed a lawsuit against a number of ACCC

corrections officers.

       Gipson testified that he had been an officer at ACCC for about fifteen years

and had worked the special management unit for about a year. He explained that

Sepulveda and Small had requested haircuts and because there were two barbers on

duty on the day of the attack, he permitted both inmates to be released from their

cells at the same time to expedite the process. The inmates were not handcuffed or

shackled at the time because an inmate would not usually be shackled while getting

a haircut. He admitted that he had violated ACCC policy by releasing two inmates

simultaneously, but stated that he had no malicious intent. Gipson testified that

only Small, Sepulveda, and he were in the common area when he observed Small



                                          4
strike Sepulveda with his fist. He called a Code Red and positioned himself

between the inmates until Officer Mavin arrived and removed Small from the

common area. According to Gipson, he tried to protect Sepulveda. Gipson

admitted that he had a duty of care and that he breached that duty, but he denied

acting in retaliation for the grievances and lawsuits Sepulveda had filed. He

explained that it was fairly common for inmates to write up or sue officers. When

asked about labeling Sepulveda as a snitch, Gipson stated that the term did not

have the meaning or connotation it would have in a state prison environment; in

ACCC it had no real significance. Nevertheless, Gipson denied calling Sepulveda

a snitch. He also denied talking to Small about Sepulveda or having any

knowledge of Small’s mental health status. Gipson further testified that he had

observed Sepulveda and Small interact in the unit and had not seen any issues. He

stated that Sepulveda never complained that Small threatened him and he had no

information to believe that Small posed a threat to Sepulveda.

      Sepulveda submitted ACCC’s policies and procedures to establish Gipson’s

violations. Under ACCC’s policies and procedures, special management inmates

were to be shackled and handcuffed whenever removed from their cells. Only one

inmate was to be removed at a time, and the inmate was to be accompanied by two

officers while out of his cell. Generally, ACCC would bring in only one barber at



                                          5
a time to attend to inmate haircuts on the special management unit, and only one

inmate could be released from his cell at a time to receive a haircut.

       Sepulveda also submitted the incident report for the February 2, 2000 attack.

According to the report, Small struck Sepulveda with a chair, once on Sepulveda’s

back right shoulder and once on his right upper arm. Small also struck Sepulveda

in the head with his fist before Gipson was able to subdue Small. Sepulveda was

given medical attention for bruises and lacerations on his back and right bicep.

Sepulveda also complained of hearing loss in his left ear.3 During a subsequent

investigation, Sepulveda informed the investigating officer that Small had been

making racial comments in the week preceding the attack. Following the attack,

Gipson was disciplined for violating prison policies; he received a one-day

suspension without pay.

       After the parties rested their cases, the court instructed the jury, inter alia,

that, to prevail on his Eighth Amendment claim, Sepulveda had to prove that

Gipson intentionally violated Sepulveda’s constitutional rights under the Eighth

Amendment, which prohibits cruel and unusual punishment. The court explained

that there had to be deliberate or intentional conduct by Gipson and not mere


       3
          Other than his own testimony and that of his family, Sepulveda did not submit any
medical evidence. In the documents attached to the amended complaint, there was a medical
consultation from November 2000 showing some hearing loss and a notation from January 2001
recommending a hearing aid. But Sepulveda did not seek to admit these documents at trial.

                                             6
negligence. Addressing damages, the court explained that the jury

      should assess the amount you find to be justified by a preponderance
      of the evidence as full, just, and reasonable compensation for all of the
      plaintiff’s damages. Compensatory damages are not allowed as a
      punishment and must not be imposed or increased to penalize the
      defendant. Also compensatory damages must not be based on
      speculation or guesswork because it is only actual damages that are
      recoverable. On the other hand, compensatory damages are not
      restricted to actual loss of time or money; they cover both the mental
      and physical aspects of injury – tangible and intangible . . . . You
      should consider the following elements of damage to the extent you
      find them by a preponderance of the evidence, and no others. (a)
      emotional pain and mental anguish; (b) punitive damages, if any; (c)
      nominal damages. The plaintiff also claims that the defendant’s acts
      were done with malice or reckless indifference . . . so as to entitle the
      plaintiff to an award of punitive damages in addition to compensatory
      damages. In some cases punitive damages may be awarded for the
      purpose of punishing the defendant for its wrongful conduct. So an
      award of punitive damages would be appropriate only if you find for
      the plaintiff and then further find from a preponderance of the
      evidence that defendant personally acted with malice or reckless
      indifference to the plaintiff’s federally protected rights. If you return
      a verdict for the plaintiff . . . but find that he has failed to prove by a
      preponderance of the evidence that he suffered any actual damages,
      then you may return an award of nominal damages not to exceed one
      dollar. Nominal damages may be awarded when a plaintiff has been
      deprived by the defendant of a constitutional right but has suffered no
      actual damages. . . .

      The jury found in favor of Sepulveda and awarded $1 in compensatory

damages and $99,999 in punitive damages.

      Following the verdict, Gipson moved to set aside or reduce the punitive

damages award, which is the subject of the instant appeal. Gipson argued that the



                                           7
punitive damage award was unconstitutionally excessive and violated due process.

Citing the three BMW guideposts, the district court denied the motion, explaining

that (1) the jury had found that Gipson had engaged in “very serious and

reprehensible conduct” that violated Sepulveda’s rights and caused him physical

harm; (2) there was no mathematical formula to evaluate the reasonableness of

awards and “it was reasonable for the jury to have awarded $99,999 as punishment

for the Defendant’s decidedly reprehensible actions”; and (3) the amount was not

excessive compared to amounts awarded in other personal injury, tort, or

negligence cases. Gipson now appeals.

      We review the constitutionality of a punitive damages award de novo and

factual findings for clear error. Cooper Indus. v. Leatherman Tool Grp., 532 U.S.

424, 436 (2001).

      Federal due process prohibits a state from imposing a “grossly excessive”

punishment on a tortfeasor. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574

(1996); TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 454 (1993). In

determining whether a punitive damage award is unconstitutionally excessive, this

court must consider three guideposts: “(1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the actual or potential harm

suffered by the plaintiff and the punitive damages award; and (3) the difference



                                          8
between the punitive damages awarded by the jury and the civil penalties

authorized or imposed in comparable cases.” State Farm Mut. Auto Ins. Co. v.

Campbell, 538 U.S. 408, 418 (2003).4 We consider each of these guideposts in

turn.

               a. Degree of Reprehensibility

        This guidepost is considered to be the “most important” indicator of the

reasonableness of the damage award. State Farm, 538 U.S. at 419. There are five

specific factors that courts consider when determining the degree of

reprehensibility:

        the harm caused was physical as opposed to economic; the tortious
        conduct evinced an indifference to or a reckless disregard of the health
        or safety of others; the target of the conduct had financial
        vulnerability; the conduct involved repeated actions or was an isolated
        incident; and the harm was the result of intentional malice, trickery, or
        deceit, or mere accident.



        4
           In this circuit, the “[p]roper due process analysis of a punitive award . . . requires first
that we identify the state’s interest in deterring the relevant conduct and the strength of that
interest. Next, we review the district court’s findings regarding the three BMW guideposts.”
Myers v. Cent. Fla. Inv., Inc., 592 F.3d 1201, 1218 (11th Cir.) (citation and quotation marks
omitted), cert. denied, 131 S.Ct. 299 (2010). The district court made no findings concerning the
state’s interest. Nevertheless, it seems obvious that the state has a strong interest in deterring
abuse of prison inmates by prison officers. See Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir.
1984) (explaining that prisoners have a constitutional right to be free from violence while in
custody); cf. Kunz v. DeFelice, 538 F.3d 667, 679 (7th Cir. 2008) (“This court takes police
brutality very seriously as grounds for punitive damages . . . . The need to deter such behavior is
plain: police brutality is a longstanding problem with which many cities are still coming to
grips.”). The state also has a “legitimate interest[] in punishing unlawful conduct and deterring
its repetition.” BMW, 517 U.S. at 568.


                                                   9
538 U.S. at 419; see also Goldsmith v. Bagby, 513 F.3d 1261, 1283 (11th Cir.

2008) (citation omitted). Although there is no requirement that a certain number of

the five State Farm factors be present to support a finding of reprehensibility,

reprehensibility grows more likely as more factors are present. See State Farm,

538 U.S. at 419.

      In this case, the district court did not specifically analyze the five factors, but

considering the factors and in light of the jury’s verdict, it appears that this

reprehensibility guidepost weighs in favor of Sepulveda. First, there can be no

dispute that the harm caused was physical as opposed to economic. Second, the

jury was instructed that to find in Sepulveda’s favor, it had to conclude that Gipson

acted with indifference to or a reckless disregard of the health or safety of others.

Third, although Sepulveda was not financially vulnerable, he was vulnerable as an

inmate housed in the special management unit and he relied on ACCC policies to

protect him from other inmates. Finally, although the attack was an isolated

incident, the harm that could have occurred was great. And although Gipson

testified that he simply made a mistake, the jury necessarily disbelieved him when

it awarded damages, indicating that his conduct was more than mere accident or

negligence.

              b. Ratio



                                            10
      The second guidepost considers the “ratio” between compensatory and

punitive damages, which requires that the punitive damages award be “both

reasonable and proportionate to the amount of harm to the plaintiff and to the

general damages recovered.” Bogle v. McClure, 332 F.3d 1347, 1362 (11th Cir.

2003) (quotation marks omitted). The “proper inquiry is whether there is a

reasonable relationship between the punitive damages award and the harm likely to

result from the defendant’s conduct as well as the harm that actually has occurred.”

BMW, 517 U.S. at 58 (citation and quotation marks omitted) (emphasis in

original). “[C]omparison between the compensatory award and the punitive award

is significant.” Id. at 581 (citations omitted). In particular, the ratio of punitive to

compensatory damages is instructive. See State Farm, 538 U.S. at 425.

Nevertheless, the Supreme Court has “consistently rejected the notion that the

constitutional line is marked by a simple mathematical formula, even one that

compares actual and potential damages to the punitive award.” BMW, 517 U.S. at

582 (citation omitted); see also State Farm, 538 U.S. at 425; Goldsmith, 513 F.3d

at 1283. And although the Supreme Court has held that “in practice, few awards

exceeding a single-digit ratio between punitive and compensatory damages, to a

significant degree, will satisfy due process,” State Farm, 538 U.S. at 425, the Court

also has recognized that “low awards of compensatory damages may properly



                                            11
support a higher ratio than high compensatory awards, if, for example, a

particularly egregious act has resulted in only a small amount of economic

damages.” BMW, 517 U.S. at 582; see also State Farm, 538 U.S. at 425.

       Here, the jury awarded $1 in compensatory damages and $99,999 in punitive

damages.5 In denying Gipson’s motion to reduce the award, the district court made

no factual findings to support its conclusion that the amount was reasonable. Nor

did the court discuss any of the relevant cases. See BMW, 517 U.S. at 583 (finding

an award 500 times the amount of compensatory damages “breathtaking” and

striking the award); Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354, 1365 (11th Cir.

2004) (reducing a punitive damage award from $1,000,000 to $250,000 when

compensatory damages amounted to $115.05); Goldsmith, 513 F.3d at 1283

(upholding a punitive damages award in a Title VII case where the award was 9.2

times the compensatory damages); Johansen v. Combustion Eng’g, Inc., 170 F.3d

1320, 1334 (11th Cir. 1999) (upholding district court’s decision to reduce punitive

damages award in a case involving nuisance and trespassing in which the jury

awarded $47,000 in compensatory damages and $45 million in punitive damages,

and agreeing with the district court that the defendant’s conduct was not severe and

a ratio of 1500:1 was disproportionate); Glover v. Ala. Dep’t of Corr., 734 F.2d


       5
         We note that, in light of the jury’s instructions, the award of $1 could have been
nominal rather than compensatory damages.

                                                12
691 (11th Cir. 1984) (upholding punitive damages of $25,000 and compensatory

damages of $1 in a case involving the stabbing of an inmate after a corrections

officer commented that the inmate’s life was worth only five or six packs of

cigarettes), overruled on other grounds, 474 U.S. 806 (1985), opinion reinstated in

relevant part, 776 F.2d 964 (11th Cir. 1985).

       Here, the court stated only that there was no mathematical formula to be

applied and the award was reasonable. In light of the relevant case law and the

district court’s statement, we cannot say that the district court properly evaluated

the 99,999:1 ratio. In fact, that ratio far exceeds any that this court has upheld as

reasonable.

              c. Comparable Civil and Criminal Penalties for Similar Misconduct

       The third guidepost is the disparity between the punitive damages award and

the “civil penalties authorized or imposed in comparable cases.” BMW, 517 U.S. at

575.

       Here, the parties dispute which Florida statute presents a comparator. The

district court did not identify the relevant statute or otherwise specify on what

statute or case law it relied when it concluded that the amount was not excessive.

This leaves us with no basis to evaluate this guidepost.

       Accordingly, because the district court’s order denying Gipson’s motion to



                                           13
reduce or set aside the punitive award does not provide sufficient reasoning for us

to conduct a review, we vacate and remand for further proceedings. On remand,

once the district court makes the requisite findings under the BMW guideposts, it

should then address whether the amount of the award was constitutionally

excessive in light of these findings and our precedent.

      VACATED and REMANDED.




                                          14
