                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-3128
                          ___________________________

                  Angela Marie Lee, By next friend Renee B. Lee

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

            Albert Lee Borders, Individually and in his official capacity

                        lllllllllllllllllllll Defendant - Appellant

      St. Charles Habilitation Center; Missouri Department of Mental Health

                              lllllllllllllllllllll Defendants
                                      ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: April 14, 2014
                               Filed: August 25, 2014
                                   ____________

Before LOKEN, MURPHY, and KELLY, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

      Angela Marie Lee sued Albert Lee Borders in state court for battery and,
pursuant to 42 U.S.C. § 1983, for deprivation of her substantive due process right to
bodily integrity; she also brought suit against the St. Charles Habilitation Center and
the Missouri Department of Mental Health, who removed the case to federal court and
were subsequently dismissed from the case. After a three-day trial, the jury returned
a verdict against Borders on both counts and awarded Lee $1 million in compensatory
damages and $3 million in punitive damages. Borders then moved for judgment as
a matter of law or, in the alternative, a new trial. The district court1 denied his motion,
and he appeals. We affirm.2

                                     I. Background

       In November 2007, Lee was a resident of the St. Charles Habilitation Center
(St. Charles or Habilitation Center), a facility run by the Missouri Department of
Mental Health for developmentally disabled individuals. At age twenty-two, Lee had
lived in an institutional setting for several years due to mental illness, and she had a
legal guardian to make decisions for her. Nonetheless, she was doing well at St.
Charles in 2007, and her family was working with St. Charles staff to prepare her to
move into an independent living facility. Borders, who began working in the St.
Charles kitchen in March 2006, testified that Lee seemed to function well in that
environment and was friendly when she saw him on the Habilitation Center grounds.

        On November 20, 2007, Lee went to the St. Charles kitchen and asked Borders
if her friend Sheila Rice, another St. Charles employee, was available. Borders, the
only kitchen employee on duty at the time, answered that Sheila was not present. The
parties’ accounts of what followed differ sharply. Borders said Lee followed him to
the storage area of the kitchen, where they had consensual anal intercourse.



      1
       The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
      2
       We exercise appellate jurisdiction under 28 U.S.C. § 1291.

                                           -2-
According to Borders, “[S]he didn’t yell rape or none of the other things as we were
having sex.”

       Lee’s claims against Borders for battery and for the deprivation of her right to
substantive due process were tried before a jury on April 9–11, 2012. Lee did not
testify at the trial. However, the nurse who saw Lee at the hospital and took a sexual
assault report immediately following the incident testified from her notes:

      [Lee] stated that [Borders] would not let her out of the dietary kitchen
      door. . . . She tried to struggle with him. . . . He dragged her by her
      hand to the back where the canned food is kept. He asked [Lee] if [she]
      wanted to do it, and she stated to me, “I said no.” She said—this is her
      words—“pushed me to the canned food and turned me around, and I got
      scared.”

In addition, Lee’s counselor at St. Charles indicated he would describe her as
“vulnerable to someone taking advantage of her for things including sexual contact,”
and “she would not really be able to appreciate or understand what it means to consent
to engage in sexual contact.”

        For several months after the incident, Lee received sexual trauma counseling
from a private social worker, as well as weekly group therapy at St. Charles. Lee’s
counselor at St. Charles testified that her behavioral problems predated the assault and
increased thereafter; she would, for instance, leave the areas where she was allowed
to be (termed “elopement”). He also noted an increase in Lee’s threats to harm herself
in March and April, 2008, and a marked increase in elopement issues in September
2008. Her treatment team recommended in September 2008 that she be transferred
to a far more restrictive environment at the Fulton State Hospital. The record does not
detail the circumstances of her transfer, but the parties do not dispute that she moved
to Fulton in November 2008. Lee’s new social worker was not notified of the assault
or apprised of her treatment history, so any trauma therapy ceased with her move.


                                          -3-
       At the close of Lee’s case, and again when all evidence had been presented,
Borders made an oral motion for judgment as a matter of law. He focused on whether
Lee had introduced sufficient evidence for the jury to find, as she argued, that he was
acting under color of state law at the time. The court denied his motion each time.
The jury found against Borders on both claims and awarded Lee $1 million in
compensatory damages and $3 million in punitive damages. Borders then renewed
his motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, contending
the jury’s verdict against him had “no legally sufficient evidentiary basis” as Lee had
not demonstrated he was acting under color of state law. In the alternative, he moved
for a new trial pursuant to Fed. R. Civ. P. 59. The district court denied the motion,
and Borders appeals both rulings.

                                    II. Discussion

                   A. Motion for Judgment as a Matter of Law

      Borders contends there was no legally sufficient evidentiary basis for a
reasonable jury to conclude Lee had proven he was acting under color of state law, as
required for her substantive due process claim. See Fed. R. Civ. P. 50(a)(1). We
“review[] de novo a denial of a motion for judgment as a matter of law.” Weitz Co.
LLC v. MacKenzie House, LLC, 665 F.3d 970, 974 (8th Cir. 2012). “This court
makes all reasonable inferences in favor of the nonmoving party and views the facts
most favorably to that party.” Id.

        Sexual abuse by a state official may constitute a violation of the substantive
due process right to bodily integrity, provided the state official was acting under color
of state law at the time of the abuse. Rogers v. City of Little Rock, Ark., 152 F.3d
790, 795–96 (8th Cir. 1998). “‘The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised power possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the

                                          -4-
authority of state law.’” Roe v. Humke, 128 F.3d 1213, 1215–16 (8th Cir. 1997)
(quoting West v. Atkins, 487 U.S. 42, 49 (1988)). “‘[A] defendant . . . acts under
color of state law when he abuses the position given to him by the State. Thus,
generally, a public employee acts under color of state law while acting in his official
capacity or while exercising his responsibilities pursuant to state law.’” Id. (quoting
West, 487 U.S. at 49–50). “The element is satisfied if the defendant acts or purports
to act in the performance of official duties, even if he oversteps his authority and
misuses power.” Johnson v. Phillips, 664 F.3d 232, 240 (8th Cir. 2011). We look to
the “nature and circumstances of the [state employee’s] conduct and the relationship
of that conduct to the performance of his official duties.” Roe, 128 F.3d at 1216
(quotation omitted).

       Borders acknowledges that the sexual contact occurred in the St. Charles
kitchen, but he testified he was not engaged in work-related duties at the time. He
also argues there was no evidence Lee came to the kitchen seeking food, as part of his
job was to dispense snack food and supplements. At trial, he testified that after he
informed Lee that her friend, his co-worker, was not there, he asked Lee if “she
want[ed] something, like her rice cakes, and she said no.” However, she then
followed him as he went toward the back of the kitchen, where these items were
stored. Alternatively, there was evidence in the record that Borders dragged Lee to
the restricted area of the kitchen, his employment giving him access both to the
kitchen and to Lee. Borders was in charge of the kitchen at the time, so he controlled
who entered it and remained there. “[R]easonable persons could differ as to the
conclusion to be drawn from the evidence,” EEOC v. Kohler Co., 335 F.3d 766, 772
(8th Cir. 2003), but even in Borders’ version of events, Lee followed him after he had
offered food that he had the authority to provide. Since Borders “largely reargues
[his] version of the facts,” and there was “sufficient evidence to reject [Borders’]
position,” Weitz, 665 F.3d at 977, we affirm the district court’s denial of Borders’
motion for judgment as a matter of law.



                                         -5-
                             B. Motion for a New Trial

      Borders appeals the denial of his motion for a new trial based on an allegedly
erroneous jury instruction and on excessive damages awards. We address each
argument in turn.

                                 1. Jury Instruction

       Borders moved for a new trial arguing that the jury instruction on consent
improperly permitted the jury to find him liable for negligent conduct—a lesser
standard than is required for a substantive due process claim. “We review the jury
instructions given by a district court for an abuse of discretion. Our review is limited
to whether the jury instructions, taken as a whole, fairly and adequately represent the
evidence and applicable law in light of the issues presented to the jury in a particular
case.” Fuller v. Fiber Glass Sys., LP, 618 F.3d 858, 866–67 (8th Cir. 2010) (quotation
omitted). “Reversal for a new trial is appropriate only if there was an error that
affected a substantial right of the moving party.” Swipies v. Kofka, 419 F.3d 709, 716
(8th Cir. 2005).

       To return a verdict against Borders on Lee’s substantive due process claim,
Final Instruction No. 6 required the jury to find by a preponderance of the evidence,
in relevant part, that (1) “defendant had anal intercourse with plaintiff without the
consent of plaintiff,” and (2) “defendant had anal intercourse with plaintiff knowing
it was without her consent.” Final Instruction No. 8 defined consent as follows:
“Consent or lack of consent may be expressed or implied. Assent does not constitute
consent if it is given by a person who lacks the mental capacity to authorize the
conduct of sexual contact and such mental incapacity is manifest or known to the
actor.” Borders objected to the proposed Instruction No. 8, arguing that the meaning
of consent did not “merit[] a definition” and, moreover, that the use of the word
“manifest” sounded in negligence and “throws some confusion into it.” Part of

                                          -6-
Borders’ defense was that Lee had consented to the sexual contact. Consequently, the
district court found the consent instruction was necessary in this case to clarify the
difference between assent and consent when mental incapacity to consent was at issue.
In discussing the proposed consent instruction with the parties, the court defined the
word manifest to mean “obvious, or known to the actor,” such that the jury could not
find against Borders based on a negligence theory. The court then overruled Borders’
objection to the proposed instruction.

       We find the court’s consent instruction was proper, acknowledging that “[t]he
Due Process Clause is simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474
U.S. 327, 328 (1986).3 Borders’ statement that “she didn’t yell rape or none of the
other things as we were having sex” demonstrated the need to clarify what may
constitute consent, particularly when mental capacity is at issue. Moreover, to return
a verdict against Borders on the substantive due process claim, the jury was explicitly
required to find that he “had anal intercourse with plaintiff knowing it was without her
consent” (emphasis added). The court did not abuse its discretion in providing Final
Instruction No. 8 to define consent.

      Even if jurors were confused by this instruction, Borders’ substantial rights
were not affected, as the evidence presented at trial was more than sufficient to show
that Borders knew Lee had not consented to sexual contact. Borders testified, “[Lee]

      3
        Borders also invokes two provisions of the Missouri Approved Jury
Instructions for the proposition that he could have been held liable due to the jury
instructions for negligent conduct, but these provisions are not directly applicable or
persuasive. In addition, to the extent Borders’ argument concerns Lee’s state-law
battery claim—for which recovery was barred if the jury found Lee consented “by
words or conduct . . . to the acts of defendant and the reasonable consequences
thereof”—we note that the language in the consent jury instruction is identical to
Missouri’s statutory definition of consent, modified only to specify that the conduct
at issue was “sexual contact.” See Mo. Rev. Stat. § 556.061(5) (2008).

                                          -7-
wasn’t just a regular patient like you normally see at St. Charles. [She] was [] highly
functional. It’s not like she had a disability.” However, Lee’s counselor at St. Charles
testified that to live there, all residents had to meet a statutory definition of disability;
Lee had been diagnosed with an intellectual disability, as well as several
psychological conditions. Despite Borders’ testimony that Lee consented, evidence
at trial would support a jury finding that Borders dragged Lee to the back of the
kitchen, and she tried to struggle with him. Borders also frequently changed his story,
including at trial, and he acknowledged that he had twice claimed no sexual contact
occurred at all. He did not explain the inconsistencies substantively; rather, he
testified he was trying “[a]t the same time [to] protect myself, but at the same time
keep my job, too.” The jury was free to find his testimony lacked credibility.
Moreover, he worked at a facility for developmentally disabled individuals, where
sexual contact of any kind between employees and residents was strictly prohibited,
and he knew Lee was a patient there. He did not need to know all of Lee’s diagnoses
or medications to know she likely lacked the capacity to consent. He also
acknowledged that he told Lee not to tell anyone about the sexual contact, implying
he was concerned about the consequences. The jury had enough evidence to properly
find Borders liable for acting without Lee’s consent.

                                  2. Damages Awards

      Borders also contends the district court abused its discretion in denying his
motion for a new trial based on compensatory and punitive damages awards that were
“excessive and a product of passion and prejudice.” Dossett v. First State Bank, 399
F.3d 940, 946 (8th Cir. 2005). Lee requested $10 million compensatory and $20
million punitive damages; she was awarded $1 million and $3 million, respectively.




                                            -8-
                         a. Compensatory Damages Award

      The court instructed the jurors regarding compensatory damages as follows:

      If you find in favor of the plaintiff, then you must award the plaintiff
      compensatory damages in such sum as you find will fairly and justly
      compensate the plaintiff for any damages you find the plaintiff sustained
      as a direct result of the conduct of the defendant . . . . You should
      consider the following elements of damages:

      The physical pain and mental suffering the plaintiff has experienced, the
      nature and extent of the injury, and whether the injury is temporary or
      permanent;

      Remember, throughout your deliberations you must not engage in any
      speculation, guess, or conjecture and you must not award any damages
      under this Instruction by way of punishment or through sympathy.

Since the social worker who treated Lee after the assault discontinued her therapy for
sexual trauma some eight months later, Borders contends Lee recovered quickly and
suffered no financial losses. As such, he argues the compensatory damages award is
excessive.

       However, the record supports a jury finding that Lee suffered extensively from
Borders’ conduct and the ensuing move to Fulton. Borders elicited testimony from
Lee’s counselor at St. Charles that she was transferred to Fulton at least in part due to
preexisting behavioral issues, but it was undisputed that such episodes increased in
frequency and severity after November 2007. A forensic psychologist indicated that
many of Lee’s current behavioral problems—including those exhibited with
increasing frequency several months after the assault—could be attributed to the
post-traumatic stress disorder (PTSD) that he said resulted from “the sexual trauma
she incurred.” Although “prior to the incident, she was in a position of moving
towards independence,” the psychologist testified that at the time of trial Lee was “in


                                          -9-
a very severe regressive state . . . as a direct result of the sexual trauma” at St. Charles
and the restrictive treatment at Fulton. The psychologist described Lee’s extensive
medical needs, many of which were due to PTSD, and the therapies required to treat
them for the foreseeable future. He testified it would “average between [$]12 and
$15,000 a month” to meet her needs, which was the only quantitative evidence
introduced. Lee’s parents also described the profound changes they observed in their
daughter and the differences between St. Charles and Fulton. When Lee lived at St.
Charles, she had more flexibility to explore the grounds, to go home with her family
on alternate weekends, and to go on field trips; at Fulton, her family saw her only in
a visiting room. After her move to Fulton, Lee was put in mechanical restraints
multiple times each month; she made several attempts to harm herself and was placed
on suicide watch more than once. Lee’s parents testified they had brought suit in part
to be able to afford moving her from Fulton to a facility closer to their home.

        Borders cites various cases where juries awarded less in compensatory damages
to plaintiffs who he asserts sustained “injuries of the same level of seriousness or
greater.” However, these decisions, in their brevity, do not indicate the plaintiffs’
ongoing medical, psychological, or other needs and the resulting costs. Without
denigrating the trauma of the plaintiffs in these comparative cases, we find Lee’s
future needs are exceptional. Lee will require funds to support her in institutional
facilities, and—as the forensic psychologist testified—her developmental disabilities
likely exacerbated the trauma caused by Borders’ actions. Moreover, “[t]his court has
consistently held that awards for pain and suffering are highly subjective and should
be committed to the sound discretion of the jury, especially when the jury is being
asked to determine injuries not easily calculated in economic terms.” Eich v. Bd. of
Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir. 2003) (quotation
omitted). The district court did not abuse its discretion in finding the jury’s
compensatory damages award was sufficiently supported by the evidence presented.




                                           -10-
                            b. Punitive Damages Award

         Borders also argues the punitive damages award was excessive, as it greatly
exceeds the awards given in other cases. The court instructed the jurors that, if they
found “by the greater weight of the evidence” that Borders’ conduct was “outrageous
because of [his] evil motive or reckless indifference to the rights of others,” then they
could award punitive as well as compensatory damages. See Swipies, 419 F.3d at
717–18 (finding punitive damage awards appropriate in such circumstances).
Borders’ motive is a question of fact, and we accept factual findings made by the
district court assessing whether a punitive damages award is excessive unless the
findings are clearly erroneous. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 435 (2001). However, we review de novo whether a fine is
unconstitutionally excessive, id., asking whether an award “shock[s] the conscience
or . . . demonstrate[s] passion or prejudice on the part of the trier of fact.” Ondrisek
v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012) (quotation omitted).

       “‘[G]rossly excessive’ civil punishment” violates the Due Process Clause of the
Fourteenth Amendment. Id. (quoting Cooper, 532 U.S. at 434). In assessing the
constitutionality of a punitive damages award, we use the guideposts identified in
BMW of North America, Inc. v. Gore, 517 U.S. 559, 574–85 (1996), which were
incorporated into the district court’s jury instructions. We weigh “(1) the degree of
reprehensibility of the defendant’s conduct; (2) the disparity between actual or
potential harm suffered and the punitive damages award; and (3) the difference
between the punitive damages award and the civil penalties authorized in comparable
cases.” Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 602 (8th Cir.
2005) (citing Gore, 517 U.S. at 574–75).

       We first evaluate the reprehensibility of Borders’ conduct, which is “the most
important guidepost.” Ondrisek, 698 F.3d at 1028 (citing Gore, 517 U.S. at 575). To
do so, we assess “whether the reprehensible nature of [his] conduct warrants further

                                          -11-
damages to achieve punishment or deterrence of the conduct in the future.” Id. (citing
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)). We must
consider whether:

      [1] the harm caused was physical as opposed to economic; [2] the
      tortious conduct evinced an indifference to or a reckless disregard of the
      health or safety of others; [3] the target of the conduct had financial
      vulnerability; [4] the conduct involved repeated actions or was an
      isolated incident; and [5] the harm was the result of intentional malice,
      trickery, or deceit, or mere accident.

Campbell, 538 U.S. at 419 (citing Gore, 517 U.S. at 576–77). These factors
demonstrate the reprehensibility of Borders’ conduct.4 Although Borders contends
Lee “suffered minor injuries,” the evidence presented at trial showed she experienced
severe psychological harm. Borders’ behavior, as revealed by his own testimony,
demonstrated his reckless disregard of Lee’s wellbeing. Borders’ sexual misconduct
occurred once, but he persistently sought to evade responsibility for it by instructing
Lee not to report the assault immediately after it happened and providing varying
factual accounts over the following weeks. Finally, we emphasize that Borders was
an employee of a state-run institution for individuals with developmental disabilities,
where sexual contact of any kind between employees and residents was expressly
prohibited. As such, Borders abused a position of trust, which consequently increases
the reprehensibility of his actions. See Ondrisek, 698 F.3d at 1029.

      Next, we assess the ratio between Borders’ compensatory and punitive damages
awards. Borders contends this ratio demonstrates the punitive award was excessive.
“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.’” Ondrisek, 698 F.3d at 1029 (quoting Gore,


      4
      As the harm to Lee was not economic, the third factor does not apply. See
Ondrisek, 698 F.3d at 1029 n.2.

                                         -12-
517 U.S. at 582). “But, ‘in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy due
process.’” Id. (quoting Campbell, 538 U.S. at 425). Borders’ 3:1 ratio of punitive to
compensatory damages does not yet reach the 4:1 ratio that the Supreme Court has
“‘concluded . . . might be close to the line of constitutional impropriety.’” Id. (quoting
Campbell, 538 U.S. at 425). Particularly when it would be difficult for a jury to
calculate Lee’s future cost of care, and thus accurately gauge compensatory damages,
a 3:1 ratio does not indicate unconstitutionally excessive punitive damages. Id.

       Finally, we compare the damages award in this case to those in other cases. We
acknowledge that this punitive damages award is far higher than others, but again, this
case involves a particularly vulnerable victim who requires institutional care. A
simple comparison to other cases is unhelpful in this context. Moreover, a monetary
comparison with the damages awards from other cases—the focus of Borders’
argument—is only one factor we use “to ensure proper notice of the penalty associated
with [the defendant’s] conduct.” Id. at 1028 (citing Gore, 517 U.S. at 574–75). We
find the punitive damages award against Borders is not unconstitutionally excessive.

                                    III. Conclusion

      For the reasons above, we affirm the district court.
                       ______________________________




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