                                 ___________

                                 No. 96-1896
                                 ___________

Estate of Jeffrey L. Davis,           *
by Mark L. Ostenfeld,           *
Public Administrator of the           *
City of St. Louis,                    *
                                      *
           Appellee,                  *
                                      *   Appeal from the United
     v.                               *   States District Court for
                                      *   the Eastern District of
Paul K. Delo, Gregory Dunn,           *   Missouri
Greg Conaway, David McPeak,           *
Billy Davis, Jim Underwood      *
and Phillip Wade,                     *
                                      *
           Appellants.                *

                                 ___________

                         Submitted: December 11, 1996

                            Filed: June 16, 1997
                                ___________

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
                               ___________

TUNHEIM, District Judge.


     Appellants, correctional officers and prison administrators, appeal
from an order2 entering judgment against them under 42 U.S.C. § 1983.   At
the conclusion of a bench trial, the district court found that appellants
had violated inmate Jeffrey Davis-El’s constitutional right to freedom from
cruel and unusual punishment




     1
      The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota, sitting by designation.
     2
      The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
by using excessive force while removing him from his prison cell.             The
court awarded plaintiff $10,000.00 in compensatory damages against seven
defendants jointly and severally, and awarded punitive damages of $5,000.00
each against two of the defendants.     We affirm.


I.   BACKGROUND


     A.    The Use of Force


     Jeffrey   L.   Davis-El    (“Davis”)   was   an   inmate   at   the   Potosi
Correctional Center (“PCC”) in Potosi, Missouri.       In November 1992, Davis
filed a complaint alleging that prison guards used excessive force against
him while removing him from his cell on October 3, 1992.          At that time,
defendant Paul Delo was the Superintendent of PCC.          Defendants Gregory
Dunn, Gregory Conaway, David McPeak, Billy Davis, Jim Underwood and Phillip
Wade were corrections officers at PCC.


     On October 3, 1992, prison officials conducted a routine search of
Davis’ housing unit.        Each inmate was required to “cuff up” before
corrections officers entered and searched his cell.             Each inmate was
required to stand with his back against the cell door and place his hands
behind his back and through the food slot in the cell door to allow
officers to handcuff him.    Davis was ordered to “cuff up,” but instead of
placing his back to the door, he faced the door and inserted his hands
through the slot.   An officer ordered Davis to turn around.         Davis slowly
removed his hands from the slot and turned his back to the officers.          The
officers construed Davis’ slow movements as a refusal to obey an order, and
shut the food slot before he had finished turning around.             Davis then
requested the presence of a higher-ranking corrections officer.




                                     -2-
     In response, defendant Dunn, a zone lieutenant, assembled a “movement
team,” the object of which is to restrain and remove an inmate from his
cell with physical force.   A movement team is comprised of five corrections
officers, each of whom is assigned a role in restraining the inmate.    One
restrains the inmate’s head and upper torso, one restrains each of the
inmate’s arms, and one restrains each of the inmate’s legs.    The officers
wear protective padding and a helmet, but do not carry weapons.


     The trial court made findings of fact regarding the PCC’s policies
with respect to the use of movement teams.    The movement team’s objective
is to gain physical control of the inmate with minimal risk of injury to
the corrections officers and the inmate.      Once the decision to employ a
movement team is made, physical force is used to restrain the inmate,
regardless of whether he resists.         The officers are not authorized,
however, to use physical force beyond that which is necessary to maintain
or regain control.    The court found that if each member of the team
competently performs his assigned task and the inmate does not resist, the
probability of injury to either the officers or the inmate is remote, and
that 200 instances of use of a movement team at PCC had resulted in only
two serious injuries to inmates.      One was the injury at issue in this
appeal; the other was an incident in which an inmate’s arm was broken.


     Missouri Department of Corrections procedures require that each
member of the movement team and any other official observing the use of
force submit a written report of the incident which should include a
description of any injuries sustained by corrections officers or inmates.
The incident is also videotaped.   There is an official process for review
of the movement team’s activity.     A “use-of-force packet” is assembled
which includes officers’ reports, the videotape, medical reports, any
allegations




                                    -3-
of abuse by the inmate, a conduct violation report issued to the inmate,
and the outcome of any internal investigation.


        The   packet   is    reviewed   by   a     series   of   supervisory   personnel,
beginning with the officer in charge of the exercise, and ending with the
prison superintendent.        The prison superintendent reviews the use-of-force
packet and makes a determination as to whether the movement team used
appropriate force.          The packet is then sent to the central office of the
Missouri Department of Corrections, where it is reviewed by the security
coordinator, the assistant director of adult institutions, and an internal
affairs officer.       The packet is also reviewed by the Missouri Department
of Public Safety and a citizens’ advisory committee which does not have the
authority to order an internal investigation.


        The trial court also made findings of fact regarding the movement
team exercise in Davis’ cell on October 3, 1992, and the aftermath of the
exercise.      Defendant Dunn was the designated supervisor of the movement
team.     The movement team was comprised of defendants McPeak, Conaway,
Davis, Underwood, and Wade.          McPeak was responsible for restraining the
inmate’s head and upper torso, Davis and Conaway were each responsible for
one of his arms, and Wade and Underwood were each responsible for one of
his legs.     Another corrections officer was responsible for videotaping the
movement team’s activities.        A licensed practical nurse (“LPN”)was present
to observe and to examine Davis following the use of force.


        Dunn chose McPeak to lead the movement team because of his stature,
agility and ability to quickly regain control of inmates.               Dunn arrived at
Davis’ cell at approximately 1:25 p.m.                Davis attempted to explain his
response to the order to “cuff up.”           Before he had finished, Dunn ordered
him to lie face down on the floor with his head opposite the cell door.
Davis immediately




                                             -4-
complied and the movement team entered his cell in a single file.         The
trial court found that McPeak lunged onto Davis as he lay unmoving on the
cell floor.    The court also found that McPeak then repeatedly struck Davis
about the head and face, and smashed Davis’ chin against the cell’s
concrete floor.     Although appellants Davis, Conaway, Wade and Underwood
were in a position to have seen or heard the assault, as they were securing
Davis’ limbs, each testified that they did not see McPeak strike him.     The
trial court specifically found that this testimony was not credible.


        After Davis was restrained, he was carried from his cell, the cell
was searched, and he was carried back into the cell.    The LPN wiped blood
from his head, face, and chest and off the floor.   Davis requested further
medical treatment, but refused to be treated while lying on the floor in
his cell in restraints.    The LPN construed Davis’ statements as a refusal
of medical care.    Davis was instructed to remain on the floor and his leg
restraints were removed.   The movement team left his cell.   The door to the
cell was locked and Davis’ hand restraints were removed.


        The movement team disbanded at approximately 1:34 p.m.          Davis
continued to complain to corrections officers that he needed medical
treatment for a cut on his chin.     He was transported to a medical center
some time after 4:00 p.m.     The cut on Davis’ chin required internal and
external sutures.     The treating physician also ordered x-rays of Davis’
head,    torso and extremities due to the existence of numerous other
contusions and lacerations.


        B.    The Institution’s Response


        Each member of the movement team submitted the required written
account of the movement team’s activities to the appropriate supervisor.
None of these reports mentioned any injury




                                     -5-
to plaintiff.      Superintendent Delo reviewed the use-of-force packet, and
observed from the videotape that Davis was bleeding immediately after the
use of force, but he did not immediately order an investigation.                      The
videotape of the incident was lost after it was forwarded to the Missouri
Department of Corrections and had not been located as of the date of trial.



       The day after the incident, Davis saw defendant McPeak.                  As Davis
passed by, McPeak pointed at him, laughed, and said, “Keep your chin up.
Next time it will be your teeth.”       Plaintiff saw McPeak again the next day.
McPeak pointed at him and laughed.


       On October 9, 1992, six days after the incident, James Bush, district
assistant for the fourth senatorial district of Missouri, visited Davis at
PCC.    Bush is responsible for investigating and responding to inmate
complaints of mistreatment by corrections officers.                 At that time, Bush
observed that Davis’ eyes and the right side of his face were bruised and
swollen and saw the sutures in his chin.          Davis told Bush that McPeak had
beaten him.


       Defendant    Delo,   as   superintendent      of    PCC,   was   responsible   for
investigating all inmate claims of excessive force.                Delo testified that
he could not recall any prior report of abuse or excessive force by an
inmate against McPeak.           PCC does not track inmate complaints against
individual corrections officers; thus, there is no official record of the
frequency of complaints of abuse against a particular corrections officer.



       The trial court found, however, that Delo had received several
complaints about McPeak in the past.       Davis had drafted letters to Delo on
behalf of other inmates on a number of occasions complaining that McPeak
had    used   excessive     force.     Delo    had        not   ordered   any   internal
investigations, but had nevertheless concluded




                                         -6-
that these claims lacked merit.    James Bush had also expressed concern to
Delo about corrections officers’ treatment of inmates at PCC on a number
of occasions prior to this incident.    Bush had specifically recommended to
Delo on one or two occasions that certain corrections officers, including
McPeak, be discharged or reassigned due to persistent complaints that the
officers used excessive force against inmates.       Delo never ordered any
investigations into these complaints or any interview with Bush.


      Defendant McPeak served as a corrections officer at PCC from May 1989
to December 1993.   During that time, he participated in a number of use-of-
force exercises.    Defendant Dunn supervised at least 10 of these exercises.
In May 1991, a corrections officer reported that McPeak used excessive
force against an inmate and conspired with other corrections officers not
to report the incident.     An investigation into the incident resulted in
McPeak’s 20-day suspension for failing to report a use of force.3         In
August 1993, after the incident at issue in this appeal, McPeak was charged
again with failing to report injuries an inmate sustained during a use of
force.   In December 1993, McPeak was discharged for using unnecessary force
against an inmate and failing to report the incident.


      On October 7, 1992, Davis filed an internal resolution request
charging the movement team with using excessive force.      Delo then




  3
   The trial court also stated in a footnote that Dunn supervised
McPeak in a use of force in which the inmate’s arm was broken and
that this was the incident for which McPeak was suspended for 20
days. The parties both acknowledge that this factual finding was
erroneous. While there is evidence in the record supporting the
fact that McPeak was suspended for 20 days for failure to report a
use of force, there is no evidence in the record indicating that
this discipline was for the incident in which an inmate’s arm was
broken. Nor is there evidence in the record indicating that McPeak
was present during that incident.

                                     -7-
began an investigation into the incident.   Delo testified that he that did
not initiate an investigation sooner because it could not “definitely be
determined” that Davis was injured during the use of force because he had
refused to be treated by the LPN immediately after the incident.      Delo,
however, admitted that, based on the LPN’s written statement that plaintiff
was bleeding from an unknown source following the movement team’s exercise,
he was “fairly certain” and did not “think there was any doubt” that Davis
was injured during the use of force.


     C.    The Trial Court’s Order


     Following a bench trial, the court entered judgment for plaintiff and
against defendants Delo, Dunn, McPeak, Conaway, Davis, Underwood and Wade,
jointly and severally, for $10,000.00 compensatory damages.       The court
concluded that McPeak maliciously and sadistically used force against
plaintiff for the purpose of causing him harm in violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment.     The court also
found that the other four members of the movement team, Conaway, Davis,
Underwood and Wade, failed to intervene or protect plaintiff from McPeak’s
use of excessive force.   The court found that they observed McPeak strike
plaintiff, but failed to take any affirmative action to protect him from
a substantial risk of serious harm.
     The court found that Dunn, the lieutenant responsible for the
movement team’s actions, had knowledge of the substantial risk of harm to
plaintiff and tacitly authorized the use of excessive force by selecting
McPeak to serve on the movement team despite his knowledge of McPeak’s
propensity to use excessive force against inmates.   The court further found
that Superintendent Delo had knowledge of and was deliberately indifferent
to the substantial risk of harm posed by McPeak’s propensity to use
excessive force.




                                     -8-
Based on its conclusion that McPeak’s use of force and Delo’s failure to
protect appellee each demonstrated a willful and wanton disregard of
plaintiff’s rights under the Eighth Amendment, the court awarded punitive
damages of $5,000.00 each against McPeak and Delo.


II.     Analysis


        A.    Standard of Review.


        In reviewing a district court’s order entering judgment after a bench
trial, we review the district court’s findings for clear error.      Fed. R.
Civ. P. 52(a).     Under this standard, we will overturn a finding of fact
only if it is not supported by substantial evidence in the record, if the
finding is based on an erroneous view of the law, or if we are left with
the definite and firm conviction that an error has been made.     Sawheny v.
Pioneer Hi-Bred Int’l, Inc., 93 F.3d 1401, 1407-08 (8th Cir. 1996).        A
district court’s choice between two permissible views of evidence cannot
be clearly erroneous.    Moody v. Proctor, 986 F.2d 239, 241 (8th Cir. 1993).
We also must give due regard to the district court’s opportunity to judge
the credibility of the witnesses.     Fed. R. Civ. P. 52(a).


        Whether the trial court erred in concluding that defendants’ actions
constituted cruel and unusual punishment is a legal issue we review de
novo.    Moody, 986 F.2d at 241.    The denial of qualified immunity is also
a legal issue we review de novo.    Cornell v. Woods, 69 F.3d 1383, 1390 (8th
Cir. 1995).


        B.    McPeak




                                      -9-
     Appellant McPeak assets that the trial court’s conclusion that he
acted maliciously and sadistically in order to cause Davis harm is not
supported by the evidence and constitutes reversible error.                 In excessive
force cases, the district court must determine whether the force was
applied “in a good faith effort to maintain or restore discipline, or
maliciously or sadistically to cause harm.”             Hudson v. McMillian, 503 U.S.
1, 6 (1992).       The Court must consider the need for the application of
physical force; the relationship between the need for physical force and
the amount of force applied; and the extent of injury suffered by the
inmate.    Id. at 7.


     Our review of the record reveals ample evidence to support the
district     court’s   conclusion       as    to    defendant    McPeak.      It    is   an
uncontroverted fact that Davis complied with the order to lie face down on
the floor and did not at any time resist the movement team’s effort to
restrain him.      Defendant McPeak acknowledged that he threw himself on top
of Davis’ head and torso.           McPeak denied striking Davis, but Davis
testified that McPeak struck him in the head and face 20 to 25 times.                    The
record substantiates the trial court’s finding that Davis suffered serious
injuries as a result of the incident, including both internal and external
sutures of a cut on his chin, and swelling and bruising to his face which
was visible almost a week later.


     The trial court found Davis’ testimony regarding the beating more
credible,    and    therefore   found    that       McPeak   repeatedly    struck   Davis.
Credibility determinations are uniquely within the province of the trier
of fact.    Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer, 470 U.S. 564
(1985).     Given that the court found Davis’ testimony to be credible, the
court’s finding that the physical force expended to control Davis vastly
exceeded the amount of force required supports its conclusion that McPeak
used force maliciously




                                             -10-
and sadistically for the purpose of causing Davis harm.                       The court’s
conclusion is also supported by evidence that McPeak taunted and threatened
Davis on the day after the incident.


        McPeak also asserts that the trial court erroneously failed to grant
him qualified immunity.           Government officials performing discretionary
functions    are   entitled   to    immunity      from   civil   damages.      Harlow   v.
Fitzgerald, 457 U.S. 800 (1982).        Officials may nevertheless be held liable
if their conduct violates clearly established rights of which a reasonable
official would have known.         Harlow, 102 S. Ct. at 2738.          The trial court
found that a reasonable prison official should have known that repeatedly
striking an inmate’s head on a concrete floor when the inmate’s limbs were
being    restrained   by   four    other   officers      and   the   inmate   offered   no
resistance would violate clearly established law.                See Whitley v. Albers,
475 U.S. 312, 321 (1986) (“inferences may be drawn as to whether the use
of force could plausibly have been thought necessary, or instead evinced
such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur”).                     Department of
Corrections policy authorizes use of only the amount of force necessary to
maintain control.     Superintendent Delo testified that any use of force,
even a single blow to the head, would have constituted excessive force
under the circumstances.      We agree that the law was well established that
striking an unresisting inmate 20 to 25 times in the head while four other
officers were restraining his limbs and two other officers were standing
by to assist if necessary, is a violation of the Eighth Amendment’s
prohibition of cruel and unusual punishment.             We find no error in the trial
court’s denial of McPeak’s claim to qualified immunity.


        C.   Conaway, Davis, Underwood and Wade




                                           -11-
     The four other members of the movement team assert that the trial
court erred in finding them liable for their actions on October 3, 1992.
A prison official may be liable for failure to protect an inmate from a use
of excessive force if he is deliberately indifferent to a substantial risk
of serious harm to an inmate.     Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.
1994); Buckner v. Hollins, 983 F.2d 119, 122 (8th Cir. 1993) (quoting
Estelle v. Gamble, 429 U.S. 97, 105 (1976)).


     The trial court found that the nature of each member of the movement
team’s duties was such that each member would have been in a position to
see or hear an assault by McPeak and that it would have been impossible for
them not to see McPeak strike Davis.         In reaching this conclusion, the
trial court considered the proximity of the movement team members to
McPeak, the nature of McPeak’s actions, the substantial risk of serious
harm to Davis, Davis’ actual injuries, and the fact that none of the
movement team members reported any injury in their use of force reports.
The court concluded that the credible evidence established that the
movement team members observed McPeak strike Davis, yet did nothing to
protect him from the substantial risk of serious harm posed by McPeak’s
blows.    We find no clear error in the district court’s factual findings,
which were based on its credibility determinations.           The trial court’s
finding of liability as to the movement team members is supported by
substantial evidence in the record.


     The movement team members also assert that the trial court erred in
denying   their   claims   of   qualified   immunity.   The   law   was   clearly
established at the time of the incident that prison officials may be liable
for failure to protect an inmate from a use of excessive force if they are
deliberately indifferent to a substantial risk of serious harm to the
inmate.   Buckner, 983 F.2d




                                      -12-
at 122 (quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)).      The trial
court found that the movement team members witnessed McPeak beating an
inmate and did nothing to intervene and therefore violated a clearly
established right of which a reasonable corrections officer would have
known.    The trial court’s conclusion that the movement team members were
deliberately indifferent to a substantial risk of serious harm to the
inmate is supported by the record.


     D.      Dunn


     Defendant Dunn asserts that the trial court erred in finding him
liable for his actions in connection with the use of force.    Dunn was the
supervisor of the movement team.    He testified he chose McPeak to lead the
movement team because of his reputation for quickly regaining control of
unruly inmates.     The court found that Dunn had supervised a minimum of 10
use-of-force exercises involving McPeak prior to the incident at issue.
The court also found that McPeak was suspended for 20 days after one of
those incidents for failure to report a use of force which resulted in
serious injuries to an inmate.      The court further found that, like the
movement team members, Dunn was present during and observed the entire use-
of-force exercise and observed that plaintiff was bleeding following the
use of force, yet failed to report plaintiff’s injury in his written
account of the incident.


     Both parties acknowledge that the trial court’s finding that Dunn was
aware that McPeak had been involved in a use of force in which an inmate’s
arm was broken was not supported by the record and was therefore clearly
erroneous.   Appellee also acknowledges that the trial court’s finding of
liability was based in large part on this erroneous finding of fact, as the
trial court found Dunn liable for his decision to choose McPeak to lead the
movement team




                                     -13-
when he was aware of the previous disciplinary action against McPeaks for
use of excessive force.


     Appellee urges the court to uphold the trial court’s judgment against
Dunn on a different theory.     Dunn, like the other four members of the
movement team, was present during the use of force and was in a position
to observe McPeak’s actions.   Dunn also failed to intervene to protect the
inmate and failed to include the injury in his report on the use of force.
We agree with appellee that there is no basis for distinguishing between
the movement team members’ liability and Dunn’s liability.    See Burgess,
39 F.3d at 218 (supervisor present during alleged use of excessive force
could be found to be deliberately indifferent for failure to intervene).
We therefore find that the court’s erroneous factual finding was harmless,
and affirm the trial court’s judgment against Dunn and its denial of Dunn’s
claim of qualified immunity.


     E.     Delo


     Superintendent Delo asserts that the trial court erred in finding
that he was on notice that McPeak had a tendency to use excessive force,
but that he failed to take appropriate action, and in concluding that this
failure constituted deliberate indifference to a substantial risk of
serious harm to Davis.     Delo testified that he could not recall any
previous complaints of abuse or excessive force regarding McPeak and that
he had no knowledge that McPeak had been reprimanded for failure to report
a use of force.     The trial court found that this testimony was not
credible.   The trial court found that Delo had knowledge that McPeak had
a propensity to use excessive force for several reasons.      The evidence
established that Delo had authorized an internal investigation into an
incident in which McPeak failed to report a




                                    -14-
use of force and received a 20-day suspension.4   There is also   evidence
in the record indicating that Delo received written complaints alleging
that McPeak used excessive force against other inmates, but that Delo
failed to order investigations of any of these complaints.    Furthermore,
there is evidence that senatorial assistant Bush informed Delo on one or
two occassions that McPeak was one of several corrections officers who
should be discharged or reassigned due to persistent complaints that the
officers used excessive force against inmates.     Delo took no action in
response to this information.


     Given Delo’s knowledge of these previous complaints, and the fact
that he was the only individual who could have ordered investigations into
these allegations of excessive force prior to the decision to choose McPeak
in a planned use of force, the trial court concluded that Delo had been
deliberately indifferent to a substantial risk of serious harm to inmates.
We find that the record adequately supports the trial court’s conclusion.
The record also supports the trial judge’s denial of Delo’s claim of
qualified immunity.




     4
      As previously noted, the parties agree that the trial court
erred in concluding that this use of force resulted in serious
injury to an inmate. The trial court erroneously concluded that
McPeak was disciplined for a different use of force in which an
inmate’s arm was broken. We find that this error was harmless.
There is evidence in the record which the trial court did not cite
which indicates that the disciplinary action against McPeak was for
an incident in which he denied hitting the inmate, but admitted to
an investigator that the fact that the inmate was “pretty banged
up” was the reason why the officers “didn’t do the paperwork.” We
find that the trial court would have reached the same result had it
considered the facts supported by the record.       See Largent v.
United States, 910 F.2d 497 (8th Cir. 1990) (error harmless where
inadmissible evidence was just one of several factors leading to
legal conclusion and court would have reached same result had it
not considered evidence).

                                   -15-
     We also affirm the trial court’s award of punitive damages against
McPeak and Delo.   An award of punitive damages is within the discretion of
the finder of fact and will not be disturbed unless it appears to be unfair
and shocking.   Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989).   Punitive
damages may be recovered in a § 1983 case when a defendant’s conduct is
shown to be motivated by malicious or evil motive or intent, or when it
involves reckless or careless disregard or indifference to an inmate’s
rights or safety.     Smith v. Wade, 461 U.S. 30 (1983).   The trial court
found evidence of malicious or evil intent in McPeak’s beating Davis about
the head and face while Davis offered no resistence, and taunting and
threatening Davis the following day.      The court found Delo acted with
reckless or careless disregard for Davis’ safety in refusing to investigate
or take remedial action after numerous complaints were made regarding
McPeak’s use of excessive force.   The trial court awarded punitive damages
against McPeak and Delo in the amount of $5,000.00 each.    We do not find
this award to be unfair or shocking; thus, we affirm.


     A true copy.


           Attest:


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