                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 07-2499
                                ___________

Craig Boesing,                        *
                                      *
             Plaintiff/Appellee,      *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * Eastern District of Missouri.
Julius K. Hunter; Vincent Bommarito; *
Joann Freeman Morrow; Chris           *
Goodson; Francis G. Slay,             *
                                      *
             Defendants,              *
                                      *
Lt. Joe Spiess,                       *
                                      *
             Defendant/Appellant      *
                                      *
John Doe,                             *
                                      *
             Defendant.               *
                                 ___________

                           Submitted: March 14, 2008
                              Filed: August 29, 2008
                               ___________

Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.
      Craig Boesing, a Missouri prisoner, brought this 42 U.S.C. § 1983 civil rights
action against Lieutenant Joe Spiess and other St. Louis police officers for using
excessive force during Boesing’s arrest. At trial, a jury found Spiess liable for
Boesing’s injuries and awarded him $5,000 in compensatory damages and $20,000
in punitive damages. The district court1 denied Spiess’s motion for a new trial and
awarded $37,500 in attorney’s fees. The court also ordered that $250 of Boesing’s
judgment be applied to satisfy the attorney’s fee award. Spiess brings this appeal. We
affirm.

                                           I.

       Because the jury ruled in Boesing’s favor on his claim against Spiess, “we
provide the following recitation of facts in the light most favorable to the jury verdict
and give all reasonable inferences to [Boesing], although we include certain facts
urged by [Spiess] on appeal in order to elucidate the arguments [he] presents.” Wilson
v. City of Des Moines, 442 F.3d 637, 639 (8th Cir. 2006). St. Louis police officers
arrested Boesing following a 45-minute foot chase on November 24, 2002. During
the chase, Boesing climbed over a retaining wall and fell down a dirt embankment.
When the chase ended, he immediately lay down on the ground. As he lay on his
stomach, an unidentified officer kneeled on Boesing’s back and handcuffed Boesing’s
hands behind his back. Spiess yelled and cursed at Boesing and ordered him to look
up. When Boesing looked up, Spiess sprayed Boesing in the face with mace. When
Boesing looked up again, he saw Spiess wielding a baton in his hand. Spiess then
struck Boesing on his head and back with the baton. Boesing received 15 staples for
a laceration on his head and sustained deep bruises on his back and side.




      1
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.

                                           -2-
       Spiess denied striking Boesing. Spiess and other officers testified that
Boesing’s injuries likely occurred when Boesing fell down the embankment.
However, Boesing testified that he did not sustain any major injuries during the fall.
Boesing also called an expert witness who testified that it was more likely that
Boesing’s injuries resulted from a blow with a blunt instrument rather than from
falling down the embankment.

       The district court submitted the case to the jury late in the afternoon on the
second day of trial. Spiess asked that the following instruction be given to the jury:
“The jury must consider that police officers are often forced to make judgments about
the amount of force that is necessary in circumstances that are tense, uncertain and
rapidly evolving.” The district court rejected Spiess’s proposed instruction. After
deliberating for a short time, the jury was excused for the day. The jury returned the
following morning. After a full day of deliberations, the jury sent a note to the trial
judge stating that it had not reached a unanimous verdict. The district court gave the
jury an Allen2 charge, encouraging the jury to continue its deliberations. The jury
returned the following day and reached a unanimous verdict after several hours of
additional deliberation. On appeal, Spiess argues that the district court abused its
discretion by denying his motion for a new trial, rejecting the proposed jury
instruction, and applying only one percent of Boesing’s judgment to satisfy the
attorney’s fee award.

                                           II.

        Spiess contends that the district court abused its discretion by denying his
motion for a new trial on two separate grounds. “The decision to grant a new trial is
left to the sound discretion of the trial court and this court will not disturb the trial



      2
       Allen v. United States, 164 U.S. 492, 501 (1896).

                                           -3-
court’s decision absent a clear showing of abuse of discretion.” Pullman v. Land
O’Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001).

                                           A.

        Spiess argues that the district court abused its discretion in denying his motion
for a new trial because the jury’s verdict constituted an impermissible compromise
verdict. If the district court finds that the jury reached a compromise verdict, the court
should grant a new trial. See Haug v. Grimm, 251 F.2d 523, 527-28 (8th Cir. 1958).
A compromise verdict results when the jury, unable to agree on the issue of liability,
compromises that disagreement by awarding a party inadequate damages. E.g., Carter
v. Chicago Police Officers, 165 F.3d 1071, 1082 (7th Cir. 1998); Shugart v. Cent.
Rural Elec. Coop., 110 F.3d 1501, 1505 (10th Cir. 1997); Pagan v. Shoney’s, Inc., 931
F.2d 334, 339 (5th Cir. 1991) (per curiam); Mekdeci v. Merrell Nat’l Labs., 711 F.2d
1510, 1513 (11th Cir. 1983). Spiess urges this court to consider several factors in
reviewing the district court’s decision, including the existence of a close question of
liability, a grossly inadequate award of damages, and other circumstances such as the
length of jury deliberations. While these factors may be useful, the overarching
consideration must be whether the record, viewed in its entirety, clearly demonstrates
the compromise nature of the verdict. E.g., Carter, 165 F.3d at 1083.

       Viewing the record as a whole, we cannot conclude that the jury arrived at a
compromise verdict in this case. Although some testimony supported both parties’
versions of the facts and the jury deliberated for more than a day, there is absolutely
no indication that the jury’s damage award was inconsistent with its liability
determination or otherwise grossly inadequate. Spiess claims that Boesing’s $25,000
judgment “seems odd” because plaintiffs in other excessive force cases have
recovered considerably more money. However, the damage award is consistent with
the facts of this case. Boesing testified that he experienced pain and suffering during
the two-week period it took his injuries to heal. The record contains no evidence that

                                           -4-
he incurred any medical expenses or other out-of-pocket costs, or that he suffered any
long-lasting, negative health effects as a result of his injuries. Boesing did not suggest
an amount to the jury; he merely asked for “fair and reasonable” compensatory
damages, as well as punitive damages. Under these circumstances, we cannot say that
Boesing’s damage award was so inadequate as to indicate that the jury reached an
impermissible compromise verdict. Spiess’s argument amounts to nothing more than
an expression of his dissatisfaction with the jury’s verdict, and the district court did
not abuse its discretion by denying Spiess’s motion for a new trial.

                                           B.

        Spiess also contends that the district court abused its discretion by denying his
motion for a new trial because the jury’s verdict was a miscarriage of justice. “A new
trial is appropriate when the ‘outcome is against the great weight of the evidence so
as to constitute a miscarriage of justice.’” Christensen v. Titan Distrib., Inc., 481 F.3d
1085, 1098 (8th Cir. 2007) (quoting Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 992
(8th Cir. 2007)). “When reviewing a jury verdict to decide whether it is against the
weight of the evidence, the district court conducts its own review of the evidence to
determine whether a miscarriage of justice has occurred.” Peterson v. Gen. Motors
Corp., 904 F.2d 436, 439 (8th Cir. 1990). However, the trial judge may not usurp the
functions of the jury, which weighs the evidence and credibility of witnesses. White
v. Pence, 961 F.2d 776, 780 (8th Cir. 1992).

       Spiess offers two arguments in support of his position that a miscarriage of
justice occurred. First, Spiess asserts that Boesing’s testimony was discredited on
cross-examination because Boesing testified that he was maced first and then beaten,
while his initial pro se complaint stated that he was beaten first and then maced.
Second, Spiess contends that a baton could not have caused the marks on Boesing’s
side because his arms, which were handcuffed behind his back, would also have
sustained injuries had he been struck by a baton. The resolution of these credibility

                                           -5-
issues and factual conflicts is properly the role of the jury. See McBryde v. Carey
Lumber Co., 819 F.2d 185, 189 (8th Cir. 1987). Boesing presented sufficient
evidence at trial for the district court to conclude that the outcome was not against the
great weight of the evidence so as to constitute a miscarriage of justice. Therefore, the
district court did not abuse its discretion by denying Spiess’s motion for a new trial.

                                             III.

       Spiess argues that the district court erred when it rejected one of his proposed
jury instructions. We review the district court’s jury instructions for abuse of
discretion. In re Prempro Prods. Liab. Litig., 514 F.3d 825, 829 (8th Cir. 2008). “[A]
party is entitled to an instruction on its theory of the case so long as it is legally correct
and there is factual evidence to support it.” Thornton v. First State Bank of Joplin, 4
F.3d 650, 652 (8th Cir. 1993). However, “‘[w]e afford the district court broad
discretion in choosing the form and language of the instructions’ and ‘will reverse a
jury verdict only if the erroneous instruction affected a party’s substantial rights.’”
In re Prempro Prods., 514 F.3d at 829 (quoting Slidell, Inc. v. Millennium Inorganic
Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006)). “Our review is limited to []
whether the instructions, taken as a whole and viewed in the light of the evidence and
applicable law, fairly and adequately submitted the issues [in the case] to the jury.”
Id.; accord Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254
F.3d 706, 711 (8th Cir. 2001).

       Spiess’s proposed instruction invited the jury to determine whether the amount
of force used was reasonable under the circumstances.3 However, this case is not
about whether Spiess used a reasonable amount of force when he struck Boesing; this

       3
       The proposed instruction, based on the Eighth Circuit model instructions,
reads: “The jury must consider that police officers are often forced to make
judgments about the amount of force that is necessary in circumstances that are tense,
uncertain and rapidly evolving.” See 8th Cir. Civil Jury Instr. 4.10 (emphasis added).

                                             -6-
case is about whether Spiess struck Boesing at all. Boesing testified that Spiess hit
him with a baton after he was arrested, but Spiess denied ever striking Boesing.
Spiess and the other officers testified that Boesing tumbled down an embankment and
that his injuries likely resulted from the fall. Indeed, Spiess did not offer any factual
evidence to support a jury instruction concerning the reasonableness of the amount of
force used; therefore, he was not entitled to such an instruction. See Thornton, 4 F.3d
at 652. Because the amount of force Spiess used was not at issue, the district court’s
jury instructions, taken as a whole and viewed in light of the evidence and applicable
law, fairly and adequately submitted the issues in the case to the jury. See In re
Prempro Prods., 514 F.3d at 829. The district court did not abuse its discretion by
rejecting Spiess’s proposed jury instruction.

                                          IV.

       Spiess contends that the district court erred by applying only one percent of
Boesing’s $25,000 judgment to satisfy Boesing’s attorney’s fee award because,
according to Spiess, the fee-shifting provision in the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(d)(2), requires the district court to apply 25 percent of the
judgment to pay attorney’s fees. Section 1997e(d)(2) reads in part: “Whenever a
monetary judgment is awarded in an action [brought by a prisoner], a portion of the
judgment (not to exceed 25 percent) shall be applied to satisfy the amount of
attorney’s fees awarded against the defendant.” This court has held that section
1997e(d)(2) “requires the district court to use a portion of the judgment, not to exceed
twenty-five percent, to pay attorney’s fees.” Lawrence v. Bowersox, 297 F.3d 727,
735 (8th Cir. 2002) (remanding to the district court to recalculate fees). However, this
court has not directly addressed whether the district court must automatically apply




                                           -7-
the 25-percent maximum or whether the PLRA gives the district court discretion to
apply a lower percentage.4

       The majority of courts that have directly addressed this issue have held that the
plain language of section 1997e(d)(2) does not require district courts to automatically
apply 25 percent of the judgment to pay attorney’s fees. See Siggers-El v. Barlow,
433 F. Supp. 2d 811, 822-23 (E.D. Mich. 2006) (“The statute does not provide courts
with guidance for determining the percentage to be applied. . . . [R]equiring Plaintiff
to pay $1 in attorney’s fees out of the judgment is appropriate.”); Farella v. Hockaday,
304 F. Supp. 2d 1076, 1081 (C.D. Ill. 2004) (“The section’s plain language sets forth
25% as the maximum, not the mandatory amount.”); Collins v. Algarin, No. Civ. A.
95-4220, 1998 WL 10234, at *10 (E.D. Pa. Jan. 9, 1998) (unpublished) (“The PLRA
does not impose any minimum percentage that must be applied toward the fees.”); see
also Murphy v. Gilman, Nos. 03-145, 04-103, 2008 WL 2139611, at *1-3 (W.D.
Mich. May 20, 2008) (applying $1 against the judgment); Lawrence v. Bowersox, No.
4:97-CV-1135 (E.D. Mo. Oct. 2, 2002) (unpublished) (applying one percent against
the judgment); Sutton v. Smith, No. AW-98-2111, 2001 WL 743201, at *2 (D. Md.
June 26, 2001) (unpublished) (applying $1 against the judgment); Johnson v. Daley,
117 F. Supp. 2d 889, 905 (W.D. Wis. 2000) (reversed on other grounds) (applying
$200 against a $40,000 judgment); Morrison v. Davis, 88 F. Supp. 2d 799, 811 (S.D.
Ohio 2000) (applying $1 against the judgment). A small minority of courts have held
that district courts must automatically apply 25 percent of the plaintiff’s monetary
judgment to pay attorney’s fees. See Jackson v. Austin, 267 F. Supp. 2d 1059, 1071-
72 (D. Kan. 2003); Roberson v. Brassell, 29 F. Supp. 2d 346, 355 (S.D. Tex. 1998).5

      4
       On remand, the district court in Lawrence v. Bowersox applied one percent of
the plaintiff’s judgment to pay attorney’s fees; the order was not appealed to this
court. See Lawrence v. Bowersox, No. 4:97-CV-1135 (E.D. Mo. Oct. 2, 2002)
(unpublished).
      5
       Spiess erroneously cites two additional cases as supporting the minority view:
Spruytte v. Hoffner, 197 F. Supp. 2d 931 (W.D. Mich 2001), and Walker v. Bain, 257
                                          -8-
       We agree with the majority view. The PLRA states that the district court
“shall” apply a portion of the judgment “not to exceed 25 percent.” 42 U.S.C. §
1997e(d)(2). The term “shall” indicates that the district court must apply some
percentage of the judgment to pay attorney’s fees, see Bowersox, 297 F.3d at 735, and
the phrase “not to exceed 25 percent” clearly imposes a maximum, not a mandatory,
percentage. This statute is not ambiguous. We hold that the plain language of 42
U.S.C. § 1997e(d)(2) does not require the district court to automatically apply 25
percent of the judgment to pay attorney’s fees. Instead, the PLRA gives the district
court discretion to apply a lower percentage. In the present case, the district court did
not abuse its discretion by applying one percent ($250) of the $25,000 judgment to
satisfy Boesing’s attorney’s fee award.

                                           V.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




F.3d 660 (6th Cir. 2001). In Spruytte, the district court applied 25 percent of the
plaintiff’s judgment to pay attorney’s fees; however, the court did not hold that the
PLRA prevented it from applying a lower percentage. See 197 F. Supp. 2d at 934.
Spiess interprets Walker as holding that the PLRA sets forth 25 percent as a
mandatory amount; however, the passage of the opinion Spiess relies on merely
contains the court’s recitation of Walker’s arguments, not the court’s analysis. See
257 F.3d at 669. And even if Spiess’s interpretation were accurate, the relevant
passage is, at best, dicta because it was not necessary to the court’s holding and has
not been followed (or even mentioned) by lower courts in subsequent cases. See
Siggers-El, 433 F. Supp. 2d at 822-23 (applying $1 against the judgment).
                                           -9-
