                                                                            [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                            ________________________
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                  No. 99-10592                              06/21/00
                            ________________________                    THOMAS K. KAHN
                                                                             CLERK
                       D. C. Docket No. 97-00248-4-CV-RLV

HOWARD V. SLICKER, JR.,

                                                                               Plaintiff-
Appellant,


                                         versus


JACKSON, Officer, FULMER, Officer, et al.,
individually and in their official capacities as police officers
for the Summerville Police Department,

                                                                   Defendants-Appellees,


                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________
                                 (June 21, 2000)


Before TJOFLAT and MARCUS, Circuit Judges, and KRAVITCH, Senior Circuit
      Judge.
MARCUS, Circuit Judge.

      This is an appeal of a district court order granting judgment as a matter of

law in favor of defendants, Officers Clifford D. Jackson, Roger T. Fulmer, and

Thomas H. Kendricks, of the Summerville, Georgia Police Department, at the close

of plaintiff Howard V. Slicker, Jr.’s civil rights case prosecuted under 42 U.S.C.

§1983. In essence, Slicker alleged that the officers violated his rights under the

Fourth, Fifth, and Fourteenth Amendments of the United States Constitution by

subjecting him to an unlawful seizure when they placed him under arrest and by

using excessive force in the process of arresting him. The central issue on appeal

is whether the district court erred in entering judgment as a matter of law on the

grounds that Slicker failed to produce evidence that he suffered a monetary loss as

a result of the officers’ conduct.1 Because a §1983 plaintiff alleging excessive

force may receive compensatory damages for such things as physical pain and

suffering and mental and emotional anguish, and because a §1983 plaintiff whose

constitutional rights are violated is entitled to receive nominal damages even if he

fails to produce any evidence of compensatory damages, we hold that the district



      1
       The district court granted the officers’ motion for judgment as a matter of law
on Slicker’s unlawful arrest claim on the grounds that they were entitled to qualified
immunity because the officers had probable cause to arrest Slicker. Slicker does not
appeal this ruling.
                                          2
court erred in granting judgment as a matter of law, we vacate the judgment, and

remand for further proceedings consistent with this opinion.



                                         I.

      The procedural history and relevant facts are straightforward. Slicker

brought suit against the officers based on an incident that occurred on August 2,

1995. On this date, Slicker accompanied his friend, Patricia Snead Montgomery,

to the Summerville Police Department to inquire as to why Ray Teague, against

whom Montgomery had filed a criminal complaint, alleging he had illegally

entered her home, had been released on bond. At trial, Slicker testified that Officer

Jackson refused to tell him why Teague had been released. He also testified that

as he was leaving the police station building, Officer Kendricks arrested him for

disorderly conduct, at which time the officers slammed his head against the

pavement and knocked him unconscious. Specifically, he testified in these words:

             A: I was leaving the city building, the police station and
             Kendricks said I was under arrest for disorderly conduct.

             Q: Then what happened?

             A: He put the handcuffs on my arm and tried to put my
             arm over my head which I can’t do. I was like let me put
             them behind my back. And he grabbed ahold of my
             head and Fulmer had the cuffs on my hands and he put it
             behind my back and Kendricks grabbed ahold of the top

                                          3
of my head up here and slammed my head in the
pavement.
....

Q: What happened next?

A: They hit my head on the pavement and I was out.
Then I came to, felt like I was in la-la land and I felt two
blows to the top of my head. I was worrying about
please don’t hurt my neck and Kendricks said this is
tough shit.
....

Q: After you were down on the ground, what happened
next?

A: My hands were cuffed and they picked me up, laid me
on the hood of the car and I was having problems I
couldn’t feel my arms. So I slid off to the side of the car
so it would relax the back of my neck and that’s where I
laid handcuffed facing up.

Q: Were you kicked?

A: I was kicked in the leg and kicked in the back and I
ended up-- kicked in the back of the head too because I
had too [sic] big large knots.

Q: Were you still in handcuffs?

A: Yes, sir.

Q: When were you first placed in handcuffs?

A: When he said I was arrested for disorderly conduct.

Q: Did the handcuffs ever come off you during the time
they were beating you?

                              4
             A: No, sir.

Slicker said that after the officers dragged him inside the police station and took off

his handcuffs, he was treated at a hospital emergency room, although he did not

offer into evidence any medical bills. He also testified that he sought medical

treatment after he left the emergency room. Slicker did not claim that he missed

work or that he incurred any other direct monetary loss as a result of the officers’

conduct.

      Ms. Patricia Snead Montgomery’s trial testimony amplified the plaintiff’s

account. She said that Officer Jackson asked Slicker to leave the police station

because the matter did not involve him. She added that as Slicker left the building,

Officer Jackson went out after him and that Officers Fulmer and Kendricks were

also outside. Ms. Montgomery testified about the critical encounter in these terms:

             Q: Then what happened?

             A: That’s when Howard was placed on the hood of the patrol
             car and handcuffed.

            Q: Who placed him on the hood of the car?

             A: Officer Jackson.

             Q: How did he place him?

             A: Grabbed him from behind and pushed on the hood of the car
             and handcuffed him.


                                          5
     Q: Did Howard struggle?

     A: Not that I recall.

     Q: Could you see?

     A: Yes

     Q: Didn’t see him struggle?

     A: No.

     Q: Then what happened?

     A: Howard went limp. He kind of slithered off the hood of the
     patrol car onto the ground. That’s when I saw Officer Jackson
     grab Howard from behind, back here and what appeared to [sic]
     he was beating his head on the ground and the other two
     officers looked as though they were kicking at Howard’s ribs or
     in that general area. ....

     Q: Did it appear as if his right hand had a clump of Howard’s
     hair in his hand?

     A: I couldn’t say. I just know he had him like this. I won’t say
     clump. He had his hand in Howard’s hair holding it.

     Q: And was he using it to strike Howard’s head on the

pavement?

     A: It appeared to me that way, yes.

     ....

     Q: How many times did Officer Jackson strike Howard’s head
     to the ground that you could see?


                                   6
               A: I saw his head hit the ground approximately two to three
      times.

               Q: What were the other officers - what were the other two officers
               doing at that time?

               A: They were to the front of Howard. What appeared to me
               they were kicking at his rib cage. I was more to the back of Mr.
               Jackson and to Howard, and I was seeing it from not a clear, as
               clear a view, but it appeared they were kicking his rib cage.

               Q: Both of the officers looked to be kicking?

               A: Yes.

               Q: They looked to be kicking in the direction of Howard?

               A: Yes.

               Q: Was Howard handcuffed the whole time?

               A: Yes, he was.

Although she said that she never saw the officers beat him on the head, she

testified that she knew that they had because she saw the knots on his head that

resulted from the beating. Several minutes later, the officers brought Slicker inside

and an ambulance was called. According to Montgomery, Slicker’s eyes were

open but he had a starry-eyed look and was unresponsive. Slicker was taken off on

a stretcher to the hospital.      At the close of Slicker’s case, the officers moved

for judgment as a matter of law on the grounds that they were entitled to qualified

immunity and, in the alternative, because Slicker failed to present any evidence of

                                           7
damages. The district court found that the officers were not entitled to qualified

immunity because Slicker presented enough evidence to raise a question of fact as

to whether the officers used excessive force in arresting Slicker. However, the

court entered judgment as a matter of law in favor of the officers because it found

that Slicker had failed to present any evidence in support of his claim for damages.

Specifically, the district court held that under Carey v. Piphus, 435 U.S. 247, 98

S.Ct. 1042, 55 L.Ed 2d 252 (1978), Slicker was required to prove actual injury in

order to be entitled to compensatory damages. Moreover, the court observed that

under Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct.

2537, 91 L.Ed 2d 249 (1986), compensatory damages may not be awarded based

on the “abstract value” or “importance” of constitutional rights. Finally, the court

noted that punitive damages may be awarded only where a plaintiff shows that

there are aggravating circumstances such as reckless indifference, ill will, or

malice. The district court concluded that because Slicker did not present any

evidence that he suffered a monetary loss in the form of “medical bills,” “missed

work,” or “lost wages,” and because he did not present any evidence of

aggravating circumstances permitting the award of punitive damages, the officers

were entitled to judgment as a matter of law.

                                          II.


                                          8
      We review de novo a district court’s grant of judgment as a matter of law

under Fed.R.Civ.P. 50, applying the same standards as the district court. Morris v.

Crow, 117 F.3d 449, 455 (11th Cir. 1997). In evaluating a defendant's Rule 50

motion, made at the close of the plaintiff's case, we consider all of the evidence in a

light most favorable to the plaintiff and grant the plaintiff the benefit of all

reasonable inferences. We may affirm a judgment as a matter of law only if the

facts and inferences “‘point so overwhelmingly in favor of the movant ... that

reasonable people could not arrive at a contrary verdict.’” Bogle v. Orange County

Board of County Commissioners, 162 F.3d 653, 656 (11th Cir. 1998)(quoting

Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir.1995)).

      In finding that Slicker was required to present evidence of monetary loss in

the form of medical bills, missed work, or lost income, we think the district court

misapprehended the “actual injury” requirement set forth in Carey v. Piphus and

Memphis Community School District v. Stachura. In both of these cases the

Supreme Court held that compensatory damages under §1983 may be awarded

only based on actual injuries caused by the defendant and cannot be presumed or

based on the abstract value of the constitutional rights that the defendant violated.

Carey, 435 U.S. at 264, 98 S.Ct. at 1052, Stachura, 477 U.S. at 309-10, 106 S.Ct. at

2544. The Court did not hold, however, that a §1983 plaintiff can only satisfy the


                                            9
“actual injury” requirement through evidence of direct monetary loss. In fact, the

Court specifically found that compensatory damages may include more than out-

of-pocket loss and other monetary harms. Carey, 435 U.S. at 264, 98 S.Ct. at

1052; Stachura, 477 U.S. at 307, 106 S.Ct. at 2543. Moreover, the Supreme Court

has held that in the absence of actual injury entitling the plaintiff to compensatory

damages, a §1983 plaintiff whose constitutional rights are violated by the

defendant is entitled to nominal damages. Carey, 435 U.S. at 266-67, 98 S.Ct. at

1054, Stachura, 477 U.S. at 308, n.11, 106 S.Ct. at 2543, n.11.

       We explicate the facts and holdings surrounding Carey and Stachura to

illustrate the point. Carey involved two consolidated suits by students seeking

damages and other relief against school board members who allegedly violated

their procedural due process rights. One of the students had been suspended for

smoking marijuana on school property and the other was suspended for violating a

school rule prohibiting male students from wearing earrings. The district court

held that the students were not entitled to damages because the students failed to

offer any evidence “to quantify their damages, and the record is completely devoid

of any evidence which could even form the basis of a speculative inference

measuring the extent of their injuries.” Carey, 435 U.S. at 251-52, 106 S.Ct. at

1046. On appeal, the Seventh Circuit reversed, holding that even if the


                                          10
suspensions were ultimately justified, the plaintiffs would be entitled to recover

substantial nonpunitive damages for the denial of procedural due process, even

though they failed to present proof of actual injury.

      The Supreme Court reversed the Circuit Court, holding that a plaintiff

alleging that his procedural due process rights were violated is only entitled to

compensatory damages based on actual injury caused by the defendant and that

damages cannot be presumed based on the inherent value of the right that was

violated. The Court explained that the basic purpose of §1983 damages is “to

compensate persons for injuries that are caused by the deprivation of constitutional

rights” and that our conception of damages drawn from tort law is often helpful in

awarding damages in §1983 cases. Carey, 435 U.S. at 253-54, 98 S.Ct. at 1047. It

rejected the plaintiffs’ argument that because the denial of a “feeling of just

treatment” inherently gives rise to mental and emotional distress, they should not

have to show actual damages. Id. at 260-61, 98 S.Ct. at 1051. The Court noted,

however, that damages may be based on demonstrable mental and emotional

distress resulting from the deprivation of due process. Id. at 264, 98 S.Ct. at 1052.

Finally, the Supreme Court found that in the absence of evidence of actual injury,

the plaintiffs were entitled to nominal damages. 435 U.S. at 266-67, 98 S.Ct. at

1053-54.


                                          11
      In Stachura, a tenured seventh-grade school teacher brought suit under

§1983 against the school district alleging that his First and Fourteenth Amendment

rights were violated when he was suspended for teaching a unit on human

reproduction. At the close of trial, the district court instructed the jury that if it

found the defendants liable, it should award sufficient damages to compensate

Stachura for his injuries and that it could also award punitive damages. In

addition, the court charged that damages could be awarded based on the value or

importance of the constitutional rights that were violated. The Supreme Court held

that the district court’s instruction was erroneous under the rule it had set forth in

Carey that §1983 damages should be based on actual injuries suffered and that the

abstract value of a constitutional right may not form the basis for §1983 damages.

Stachura, 477 U.S. at 310, 106 S.Ct. at 2544-45. The Court explained that if juries

were allowed to award damages based on the “value” of constitutional rights,

“[s]uch damages would be too uncertain to be of any great value to plaintiffs, and

would inject caprice into determinations of damages in §1983 cases.” Stachura,

477 U.S. at 310, 106 S.Ct. at 2544-45.

      Carey and Stachura plainly require that compensatory damages in a §1983

suit be based on actual injury caused by the defendant rather than on the “abstract

value” of the constitutional rights that may have been violated. Simply put, this


                                            12
means that if Slicker prevails on his claim that the officers violated his

constitutional rights, he may receive compensatory damages only for actual

injuries that were caused by the defendants’ illegal conduct and not based on the

abstract value of his right under the Fourth and Fourteenth Amendments to be free

from the use of excessive force. Contrary to the district court’s order, however,

neither Carey nor Stachura limits proof of actual injury, and compensatory

damages based on actual injury, to such things as medical expenses, missed work,

and lost income. Instead, the Supreme Court expressly recognized that

compensatory damages may be awarded once actual injury is shown despite the

fact that the monetary value of the injury is difficult to calculate. Stachura, 477

U.S. at 307, 106 S.Ct. at 2543.

      Indeed, it is by now well settled that compensatory damages may be

awarded based on physical pain and suffering caused by a defendant’s use of

excessive force, apart from any damages based on monetary loss. See Atkins v.

New York City, 143 F.3d 100, 104 (2d Cir. 1998)(holding that “[a] beating severe

enough to leave marks is sufficient proof of a compensable injury.”); Haywood v.

Koehler, 78 F.3d 101, 105 n. 2 (2d Cir. 1996)(holding that if prisoner was

assaulted in his cell in an excessive use of force, such an assault could warrant

some compensatory damages, at least for pain and suffering, even if no laceration


                                          13
or other observable injuries resulted). Slicker presented evidence, if credited, that

he was kicked in the ribs and beaten on his head by the officers, that he received

two knots on his head, was knocked unconscious, and sought medical attention as a

result of excessive force. From this evidence, a jury could have awarded Slicker

compensatory damages for pain and suffering without proof of medical bills,

missed work, or lost income.

      In addition to damages based on monetary loss or physical pain and

suffering, under the law a §1983 plaintiff also may be awarded compensatory

damages based on demonstrated mental and emotional distress, impairment of

reputation, and personal humiliation. See Carey, 435 U.S. at 264, 98 S.Ct. at 1052;

Stachura, 477 U.S. at 307, 106 S.Ct. at 2543. See also, Wright v. Shepard, 919

F.2d 665, 669 (11th Cir. 1990)(holding that non-physical injuries such as

humiliation, emotional distress, and mental anguish and suffering are all within the

ambit of §1983 compensatory damages); O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d

Cir. 1988)(holding that §1983 plaintiff alleging excessive force by a police officer

was entitled to full compensation for his physical and emotional pain, in addition

to any lost wages, suffered as a result of the defendant’s conduct). We think

Slicker was entitled to present evidence and seek damages based on any monetary

loss, as well as any physical pain and suffering or mental and emotional anguish


                                         14
that he may have incurred as a result of the officers’ alleged misconduct. The

district court therefore erred in entering judgment in favor of the officers simply on

the grounds that Slicker failed to present evidence of medical expenses, missed

work, or lost income.

      We add, however, that even if Slicker were unable to demonstrate that he

suffered any actual injury, under controlling case law the district court erred in not

allowing Slicker to seek nominal damages. We have held unambiguously that a

plaintiff whose constitutional rights are violated is entitled to nominal damages

even if he suffered no compensable injury. See Kelly v. Curtis, 21 F.3d 1544,

1557 (11th Cir. 1994)(holding that a §1983 plaintiff alleging false arrest, malicious

prosecution, and illegal detention is entitled to receive nominal damages if he

demonstrates that the defendants violated his constitutional rights even if he is

unable to prove that he suffered a specific, actual injury as a result of the

defendants’ conduct); see also Carey, 435 U.S. at 266, 98 S.Ct. at 1054.

      Although we have never addressed the appropriateness of nominal damages

in the context of an excessive force claim, we agree with the reasoning of our sister

circuits which have held that a §1983 plaintiff alleging excessive use of force is

entitled to nominal damages even if he fails to present evidence of compensable

injury. See e.g., Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994); Butler v. Dowd,


                                           15
979 F.2d 661, 669 (8th Cir. 1992)(en banc); Briggs v. Marshall, 93 F.3d 355, 360

(7th Cir. 1996). These cases acknowledge that the typical §1983 plaintiff alleging

excessive force may be entitled to compensatory damages. They identify, however,

several circumstances under which a §1983 plaintiff alleging excessive use of force

may be entitled to receive only nominal damages.

      First, the jury may award nominal damages where there is evidence that both

justifiable and unjustifiable force might have been used and the injury may have

resulted from the use of justifiable force. See Gibeau v. Nellis, 18 F.3d 107, 110-

11 (2d Cir. 1994)(holding that the district court erred in not instructing jury that it

must award nominal damages if it were to find that the plaintiff’s Eighth

Amendment rights were violated by the defendants’ use of excessive force but that

plaintiff did not prove his injuries were proximately caused by the excessive force).

Second, nominal damages may be appropriate where a jury reasonably concludes

that the plaintiff’s evidence of injury is not credible. See Butler v. Dowd, 979 F.2d

661, 669 (8th Cir. 1992)(en banc)(holding that award of nominal damages to

inmates who brought suit against prison officials for permitting them to be raped

by other inmates in violation of their Eighth Amendment rights was not inadequate

as a matter of law because the jury could have believed that plaintiffs’ actions were

the cause in fact of most of their injuries or the jury could have disbelieved the


                                           16
plaintiffs’ testimony regarding the extent of their injuries). Finally, an award of

nominal damages may be appropriate when the plaintiff’s injuries have no

monetary value or when they are not quantifiable with reasonable certainty. See

Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996)(holding that award of

nominal damages was not error where nearly all of the damages evidence consisted

of the plaintiffs’ testimony, the plaintiffs failed to produce medical testimony

regarding their physical injuries, and there was evidence in the record from which

the jury could have disbelieved the extent of the plaintiffs’ physical and emotional

injuries). Therefore, if on remand the jury does indeed find that the officers used

excessive force in violation of Slicker’s constitutional rights but that he failed to

present any evidence of a compensable injury, Slicker must be awarded nominal

damages.

      The officers argue, however, that even if the district court erred in granting

their motion for judgment as a matter of law on the grounds that Slicker failed to

present any evidence of damages, the judgment still should be affirmed because

they are entitled to qualified immunity since Slicker failed to present any evidence

that the officers’ conduct was not objectively reasonable under the circumstances.

Notably, the district court held that the officers were not entitled to qualified

immunity because Slicker presented enough evidence to raise a question of fact as


                                           17
to whether the officers used excessive force. The district court did not err in

finding that the officers were not entitled to qualified immunity.

      “Qualified immunity protects from civil liability government officials who

perform discretionary functions if the conduct of the officials does not violate

‘clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir.

2000)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982)). Moreover, in an excessive force case, “qualified immunity

applies unless application of the standard would inevitably lead every reasonable

officer ... to conclude the force was unlawful.” Post v. City of Fort Lauderdale, 7

F.3d 1552, 1559 (11th Cir. 1993), modified 14 F.3d 583 (11th Cir. 1994). In

determining whether an officer’s use of force was objectively reasonable, thereby

entitling the officer to qualified immunity, we consider a variety of factors

including “(1) the need for the application of force, (2) the relationship between the

need and the amount of force used, (3) the extent of the injury inflicted and, (4)

whether the force was applied in good faith or maliciously and sadistically.”

Moore v. Gwinett County, 967 F.2d 1495, 1498 (11th Cir. 1992)(quoting Leslie v.

Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)). A court should also consider “the

severity of the crime, whether the suspect pose[d] an immediate threat, and


                                          18
whether the suspect [was] resisting or fleeing.” Post, 7 F.3d at 1559 (citation

omitted). We also have had occasion to observe recently that “this Circuit has

established the principle that the application of de minimis force, without more,

will not support a claim for excessive force in violation of the Fourth

Amendment.” Nolin, 207 F.3d at 1257.

      As we’ve noted, Slicker presented two witnesses, himself and Patricia Snead

Montgomery, who provided ample testimony, if credited, in support of Slicker’s

claim that the police used excessive force. Ms. Montgomery testified that once

Slicker was arrested and handcuffed, he did not struggle or resist the officers in

any way. In addition, she testified that it appeared to her that the officers kicked

him in the ribs and beat his head on the ground. And Slicker testified,

unambiguously, that after he was handcuffed, the officers repeatedly hit his head

on the pavement, kicked him, and knocked him unconscious. If credited by the

fact finder, this evidence suggests the officers used excessive force in beating

Slicker even though he was handcuffed and did not resist, attempt to flee, or

struggle with the officers in any way. This evidential foundation is sufficient to

raise a question of fact as to whether the officers’ actions constituted excessive and

not de minimis force. On this record, we think the district court properly

concluded that the officers were not entitled to qualified immunity.


                                          19
      In sum, if the jury were to find that the officers did indeed use excessive

force, Slicker may be entitled to compensatory damages based on any injuries he

incurred as a result of their misconduct, including damages based on monetary

loss, physical pain and suffering, or demonstrable mental and emotional distress.

Moreover, if the jury were to find excessive force but that Slicker suffered no

compensable damages, Slicker still would be entitled to an award of nominal

damages.

      REVERSED AND REMANDED.




                                         20
