                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-2757
                                 ___________

Charles Askew, also known as           *
Raheem Muhammad,                       *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Sgt. Keith Millerd, Cummins Unit, ADC, *
CO-I Edward Malone, Cummins Unit,      *
ADC; CO-I Tim Austin, Cummins Unit, * Appeal from the United States
ADC; Jeff Ladd, Cummins Unit, ADC; * District Court for the
CO-I R.D. Brown, Cummins Unit, ADC; * Eastern District of Arkansas
CO-I Chad Hall, Cummins Unit, ADC; *
CO-I James Morris, Cummins Unit,       *
ADC; CO-I Loren Burrer, Cummins        *
Unit, ADC,                             *
                                       *
            Appellees.                 *
                                 ___________

                            Submitted: March 12, 1999

                                Filed: September 15, 1999
                                 ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      NANGLE,1 District Judge.
                               ___________


      1
       The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
McMILLIAN, Circuit Judge.

       Charles Askew, an Arkansas inmate, appeals from a final judgment entered in
the United States District Court2 for the Eastern District of Arkansas after the district
court granted judgment as a matter of law in favor of employees of the Arkansas
Department of Corrections (collectively defendants) sued by Askew pursuant to 42
U.S.C. § 1983. See Askew v. Austin, No. PB-C-94-772 (E.D. Ark. May 28, 1997)
(order granting motion) (hereinafter "slip op."). For reversal, Askew argues that the
district court erred in holding that there was insufficient evidence as a matter of law
to support his claims and that he is not entitled to attorney's fees. See id. (June 4,
1997) (denying attorney's fees and granting costs). For the reasons stated below, we
affirm.

      Jurisdiction was proper in the district court under 28 U.S.C. § 1343, 42 U.S.C.
§ 1983. Jurisdiction is proper in this court under 28 U.S.C. § 1291. The notice of
appeal was timely filed pursuant to Fed. R. App. P. 4(a).

                                    Background

       In his first amended complaint, Askew alleged that defendants violated his
constitutional rights by beating him with excessive force and denying him adequate
medical care following the beating. Askew further alleged that defendant Sergeant
Keith D. Millerd was liable as the officer in charge at the time of the beating and that
defendants individually or collectively conspired to deprive him of his constitutional
rights in violation of § 1983.3

      2
       The Honorable Bill Wilson, United States District Judge for the Eastern
District of Arkansas.
      3
        In his amended complaint, Askew alleged that defendants, individually or
collectively, conspired to: (a) deprive him of proper medical attention; (b) use
excessive force against him; (c) deny him a proper appeal process through the

                                          -2-
        At trial, Askew and other inmates testified that defendants beat Askew in a
hallway while he was being escorted to the “quiet cell” in the north wing of the
prison's isolation area. According to Askew, Millerd watched as each of the other
defendants took a turn at beating him until, finally, Millerd signaled for them to stop.
Askew further testified that, despite having serious injuries from the beating, he was
denied medical care for approximately sixty hours. Defendants denied having
participated in the alleged beating. They also introduced evidence to show that
Askew himself engaged in uncooperative, aggressive, and violent behavior. Prison
medical staff and guards who were on duty around the time of the alleged incident
testified that Askew never asked for or showed signs of needing medical care during
the time he was allegedly neglected.

       The jury was instructed on four claims: excessive use of force, denial of proper
medical care, liability of a superior officer (i.e., Millerd) or supervisory liability, and
conspiracy to interfere with civil rights. The jury returned verdicts against Askew on
the claims of excessive use of force and denial of proper medical care and returned
verdicts for Askew on the supervisory liability claim against Millerd and the
conspiracy claim against all eight defendants. The jury awarded nominal damages
of $1.00 on each of the two verdicts returned in Askew's favor.

      At the end of the trial, defense counsel moved for judgment as a matter of law
on the verdict against Millerd. The district court denied the motion. Defendants
thereafter filed a timely post-trial motion for judgment as a matter of law on both
counts resolved by the jury in Askew's favor. Upon consideration, the district court
granted defendants' motion for judgment as a matter of law and set aside the jury


Department of Corrections and deprive him use of the appeal process; (d) inflict
unauthorized cruel and unusual punishment on him; (e) commit an assault upon him;
(f) commit a battery upon him; and (g) obstruct justice by covering up these matters
and preventing a proper resolution of his complaints within the Department of
Corrections.

                                           -3-
verdicts that were favorable to Askew. See slip op. at 5.4 The district court
subsequently held that Askew could not recover attorney’s fees (but did award costs).
Askew appealed.

                                      Discussion

       Askew first argues on appeal that the district court erred in granting judgment
as a matter of law on his claim that defendants conspired to interfere with his civil
rights. He contends that, notwithstanding the jury's failure to find that defendants
used excessive force or denied him proper medical care in violation of his
constitutional rights, the jury could have determined that defendants were liable for
conspiring to commit a different constitutional violation. Citing Banc One Capital
Partners Corp. v. Kneipper, 67 F.3d 1187 (5th Cir. 1995), he maintains that he was
merely required to plead and prove the deprivation of a constitutional right,
regardless of whether that alleged deprivation was submitted to the jury for
consideration as a separate count. Askew argues that he pled and proved
constitutional violations not specifically mentioned in the jury instructions. In
support of this assertion, he points to evidence introduced at trial purportedly to prove
his claims of assault, battery, and denial of access to the administrative appellate
process. See Reply Brief for Appellant at 1-7.




      4
        The district court interchangeably referred to defendants' motion as a motion
for judgment as a matter of law and a motion for judgment notwithstanding the
verdict (JNOV). Motions for JNOV (as well as motions for a directed verdict) are
treated as motions for judgment as a matter of law under Rule 50 of the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 50, subd. (a), cmt. to 1991 amend. The
standard for granting a motion for judgment as a matter of law is the same as the
JNOV standard, and cases discussing the JNOV standard equally apply to motions for
judgment as a matter of law. See Larson v. Miller, 76 F.3d 1446, 1452 n.3 (8th Cir.
1996) (en banc).

                                          -4-
       Askew also argues that the jury's verdict was entirely consistent with the
instructions as they were delivered by the district court,5 and, to the extent defendants
now attempt to dispute the legal accuracy of those instructions, defendants have
waived their objections. Finally, Askew suggests that the district court, in reality,
granted defendants' motion for judgment as a matter of law because the court
perceived the jury's verdicts to be inconsistent. If the verdicts were inconsistent, he
argues, then the district court had the duty to seek an interpretation which reconciles
the verdicts and, barring that, was required to order a new trial, not set aside only a
portion of the verdicts. Moreover, he argues, it was incumbent upon defendants to


      5
       Regarding Askew's conspiracy claim, the district court gave the following jury
instructions, among others:

             Plaintiff brings claims for conspiracy to interfere with his civil
      rights. The statute under which plaintiff brings this claim provides that
      if two or more persons conspire for the purpose of depriving any person
      or class of persons of the equal protection of the laws, or of equal
      privileges and immunities under the laws, and if one or more of those
      persons does an act in furtherance of the conspiracy, a person injured by
      the conspiracy may have a claim for money damages.

             The plaintiff's claim under the conspiracy statute has four
      essential elements which are as follows: First, two or more persons
      must have conspired; second, the purpose of the conspiracy must be to
      deprive, either directly or indirectly, any person or class of persons of
      the equal protection of the laws or of equal privileges and immunities
      under the laws; third, that one or more of the conspirators did or caused
      to be done an act in furtherance of the object of the conspiracy; and,
      fourth, the plaintiff must show that he has suffered some injury as a
      result of the conspiracy.


Appellant's Appendix, Vol. IV at 960-61 (trial transcript; court's instructions to the
jury).

                                          -5-
raise the issue of inconsistent verdicts before the jury was discharged so as to allow
the district court an opportunity to send the jury back to reconcile the verdicts.
Because defendants failed to make such a timely objection, he argues, the contention
has been waived.

       Defendants have consistently maintained that the evidence at trial was
insufficient as a matter of law to support a verdict for Askew on his conspiracy claim
against all eight defendants and his supervisory liability claim against Millerd. That
argument was not waived below. Upon careful review of the record in the present
case and the parties' arguments on appeal, we agree with the district court's
determination that defendants are entitled to judgment as a matter of law.

             We review the district court's entry of judgment as a matter of law
      in the light most favorable to the party who prevailed before the jury.
      This standard requires this court to:

             (1) resolve direct factual conflicts in favor of the
             nonmovant, (2) assume as true all facts supporting the
             nonmovant which the evidence tended to prove, (3) give
             the nonmovant the benefit of all reasonable inferences,
             (4) deny the motion if the evidence so viewed would allow
             reasonable jurors to differ as to the conclusions that could
             be drawn.

      We are not, however, entitled to give a party the benefit of unreasonable
      inferences, or those at war with the undisputed facts. A mere scintilla
      of evidence is inadequate to support a verdict, and judgment as a matter
      of law is proper when the record contains no proof beyond speculation
      to support the verdict.


Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996) (en banc) (citations and
quotation marks omitted).


                                         -6-
       To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff
must show: that the defendant conspired with others to deprive him or her of a
constitutional right; that at least one of the alleged co-conspirators engaged in an
overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.
See, e.g., Simpson v. Weeks, 570 F.2d 240, 242-43 (8th Cir. 1978), cert. denied, 443
U.S. 911 (1979), cited in Putman v. Gerloff, 701 F.2d 63, 65 (8th Cir. 1983).
Moreover, as Askew acknowledges, the plaintiff is additionally required to prove a
deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil
conspiracy claim. See Villanueva v. McInnis, 723 F.2d 414, 416 (5th Cir. 1984) ("it
remains necessary to prove an actual deprivation of a constitutional right; a
conspiracy to deprive is insufficient . . . [w]ithout a deprivation of a constitutional
right or privilege, [the defendant] has no liability under § 1983") (quoted in Brief for
Appellant at 8-9).

        We agree with Askew that he could base his conspiracy claim at trial upon an
alleged constitutional violation that was not submitted to the jury in a separate claim
for relief, so long as that constitutional violation was pled and proven at trial. In the
present case, however, no constitutional deprivation has been proven. The evidence
at trial was insufficient as a matter of law to support a finding that plaintiff suffered
a constitutional deprivation as a result of the alleged conspiracy.6


      6
        In our opinion, a constitutional claim cannot be deemed "proven" in this
context unless the jury expressly or implicitly makes a finding to that effect. To make
such a finding, the jury has to be instructed as to what constitutional claims are being
asserted and what are their elements. The plaintiff has the burden to request such
instructions because it is the plaintiff's burden to prove the constitutional violation
and because only the plaintiff knows exactly what his or her theory of liability is. In
the present case, Askew failed to request any instructions regarding the constitutional
violations which he now claims to have successfully pled and proven in support of
his conspiracy claim (i.e., assault, battery, and denial of access to the administrative
appellate process). Because no such instructions were requested or given, we
disagree with his conclusion that the jury must have found that a constitutional

                                          -7-
       We begin with Askew's assertion that he proved assault and battery rising to
the level of constitutional violations, notwithstanding his failure on the excessive use
of force claim. "Section 1983 is intended to remedy egregious conduct, and not every
assault or battery which violates state law will create liability under it." Haberthur
v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997) (citing Burton v. Livingston,
791 F.2d 97, 99 (8th Cir. 1986)). Askew cites Ladnier v. Murray, 769 F.2d 195, 199
n.4 (4th Cir. 1985), for the proposition that "[a]llegations of assault and battery can
be elevated to constitutional torts by proof of malice, or by proof of other factors."
Reply Brief for Appellant at 4. Askew then concludes that, "[s]ince [he] offered
sufficient proof of assault and battery as a constitutional violation, the jury could have
based the finding of conspiracy on either of these allegations." Id. Askew fails,
however, to explain what "other factors" were proven, or where in the record there
is "sufficient proof of assault and battery as a constitutional violation." Indeed,
Askew has done nothing more than highlight the evidence on which he based his
excessive use of force claim. While we recognize that there may be instances where
an assault or battery rises to the level of a constitutional violation notwithstanding the
fact that it may not constitute an excessive use of force under Fourteenth Amendment
or Eighth Amendment standards,7 Askew has identified no basis for drawing such a
distinction in the present case, and we perceive none.




violation or violations occurred. For purposes of this appeal, however, it makes no
difference if we assume that the jury found a constitutional violation because we hold
that there was insufficient evidence as a matter of law to support such a finding.
      7
        See, e.g., Haberthur v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997)
(plaintiff's allegations of unwanted, non-forceful sexual fondling by police officer
were sufficient to state a due process claim); Burton v. Livingston, 791 F.2d 97, 99
(8th Cir. 1986) (prisoner's allegations that guard pointed gun at him, threatened to
shoot him, and used racial epithets against him because he had testified against
another guard were sufficient to state claims of due process, equal protection, and
First Amendment violations).

                                           -8-
       We now turn to Askew's remaining constitutional claim – that he was denied
meaningful access to the appellate process within the Department of Corrections. The
evidence in the record suggests that Askew's grievances were handled properly and
that he was treated in the same manner as other similarly situated inmates. In any
event, the evidence at trial upon which he relies refers only to actions of individuals
who are not defendants in the present case, and there is no evidence suggesting that
any of those individuals were acting in concert with, or under the supervision or
control of, any of the defendants. See Reply Brief for Appellant at 6-7. Therefore,
even if we assume for the sake of argument that Askew was denied meaningful access
to the prison' s administrative grievance procedures, the evidence is insufficient as a
matter of law to hold any of the defendants in this case liable under § 1983 for
conspiring to deprive him of his right to pursue his administrative grievances. See,
e.g., Simpson v. Weeks, 570 F.2d at 243 ("The charge of conspiracy in a civil action
is merely the string whereby the plaintiff seeks to tie together those who, acting in
concert, may be held responsible for any overt act or acts.") (emphasis added)
(quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844
(1956)).

       In sum, we hold that the district court did not err in granting defendants' motion
for judgment as a matter of law on Askew's § 1983 civil conspiracy claim because the
"record contains no proof beyond speculation to support the verdict," Larson v.
Miller, 76 F.3d at 1452. For the same reason, we hold that the district court did not
err in granting judgment as a matter of law to defendant Millerd on Askew's § 1983
claim for supervisory liability. "[A] supervisor may be held individually liable under
§ 1983 if he [or she] directly participates in a constitutional violation or if a failure
to properly supervise and train the offending employee caused a deprivation of
constitutional rights." Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (citing
Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir. 1994), cert. denied, 514
U.S. 1004 (1995)). For the reasons stated above, there is insufficient proof as a
matter of law to establish that Millerd directly participated in a constitutional

                                          -9-
violation or failed to properly supervise or train any employee who caused a
constitutional violation.8

     Having affirmed the district court's disposition on the merits, we also hold that
Askew is not a prevailing party and is not entitled to attorney's fees.

                                    Conclusion

      The judgment of the district court is affirmed.



      A true copy.

             Attest:

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




      8
       Because we hold that the evidence was insufficient as a matter of law to prove
Askew's conspiracy and supervisory liability claims, we need not address Askew's
arguments which assume that defendants are appealing on the grounds that the jury
instructions were erroneous or that the jury verdicts were inconsistent, neither of
which has been asserted by defendants.

                                        -10-
