In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1375

V ERNON A. H ENDRICKSON,
                                                   Plaintiff-Appellee,
                                  v.

S COTT C OOPER,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
               No. 05 C 268—Larry J. McKinney, Judge.



  A RGUED S EPTEMBER 10, 2009—D ECIDED D ECEMBER 21, 2009




  Before M ANION, S YKES, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Prison is rough. Violent prisoners
can pose a serious threat, requiring prison officers to
use force to maintain order. Sometimes, though, the
only real threat comes from a rogue officer who attacks
a prisoner for no good reason. When such abuse occurs
in a facility operated by a State, the prisoner can sue the
officer under the civil rights statute, 42 U.S.C. § 1983, for
excessive force. Still, a § 1983 suit is not always a perfect
2                                               No. 09-1375

remedy, as the prisoner faces many challenges in
proving his case. He must pit his story against the con-
flicting story of the defendant officer, who often boasts
an impressive law enforcement résumé and calls a cadre
of fellow officers to support his side. Yet this case proves
that these challenges are not insurmountable, and that
§ 1983 plays a pivotal role in the cause against prison
brutality.
   Vernon Hendrickson, an inmate at Indiana’s Wabash
Valley Correctional Facility, brought a § 1983 action
against Sergeant Scott Cooper, an officer at the facility,
claiming that Cooper attacked him without justification.
The case went to trial before a jury, which found Cooper
liable for using excessive force against Hendrickson in
violation of the Eighth Amendment’s ban on cruel and
unusual punishment, awarding both compensatory and
punitive damages. Cooper appeals, arguing that the
jury’s liability finding and damages awards were unsup-
ported by the evidence. We recount that evidence in the
light most favorable to the jury’s verdict. Woodward v.
Corr. Med. Servs. of Ill., Inc., 

, 920, 926 (7th
Cir. 2004).
  On April 21, 2005, Hendrickson was walking back from
the prison’s dining hall to his housing unit. He passed
Cooper, who, for no apparent reason, called him a “son of
a bitch.” Hendrickson stayed quiet and kept walking.
Cooper persisted. “Mother fucker” was Cooper’s next
insult at Hendrickson. Hendrickson, no longer able to
bite his tongue, turned back toward Cooper and told him
to “keep his mother off the streets.”
No. 09-1375                                              3

  Hendrickson’s verbal insult was unaccompanied by
any physical aggression. Hendrickson, along with two
of his fellow inmates who witnessed the encounter,
testified that he never made any threatening movements
towards Cooper. Indeed, Hendrickson was hardly capable
of challenging Cooper physically, as two prior car acci-
dents rendered Hendrickson partially crippled. The first
accident damaged the right side of Hendrickson’s brain
along with the left side of his body, affecting his ability
to walk. The second resulted in a herniated disk in
Hendrickson’s neck. These injuries left Hendrickson
with serious pain in his neck and upper back, as well
as some pain in his lower back.
  So while Hendrickson was never any physical threat,
his insult gave Cooper all the excuse he needed. “You son
of a bitch, you’ve had it now,” Cooper threatened as he
walked into the housing unit ahead of Hendrickson. After
stalling for a few minutes, Hendrickson entered the
building, only to find Cooper there waiting for him.
Hendrickson tried to avoid eye contact and quietly walk
to his room, but Cooper was honed in. “Now, bitch,”
Cooper demanded as he threw his equipment belt out
of the way, grabbed Hendrickson, threw him against a
wall, slammed him onto the concrete floor, and pressed
his knees into Hendrickson’s back while another officer
cuffed Hendrickson.
  Hendrickson testified that all of that “hurt pretty bad,”
especially in light of his preexisting back and neck prob-
lems. After Cooper’s attack, officers took Hendrickson to
a segregation unit, where he initially refused a nurse’s
4                                              No. 09-1375

offer to examine him because he was agitated and didn’t
want to deal with prison officials. After about an hour,
however, Hendrickson told a nurse that he was feeling
“pain all over” and requested treatment. About a month
later, Hendrickson followed up with multiple requests
for a transfer to a hospital for an MRI scan and addi-
tional care, as the Tylenol and ibuprofen that he was
receiving in prison were not providing sufficient
pain relief. Hendrickson also described for the jury how
Cooper’s attack increased his back pain. Before Cooper’s
assault, Hendrickson had a “little bit of lower back pain,”
but this pain became much worse afterwards.
  The jury found Cooper liable for using excessive force
against Hendrickson, in violation of his Eighth Amend-
ment rights. The jury awarded Hendrickson $75,000 in
compensatory damages for pain and suffering and
tacked on a punitive damages award of $125,000. The
district court denied Cooper’s motion under Fed. R. Civ. P.
50 for judgment as a matter of law or a new trial. Cooper
appeals, arguing that the jury’s liability finding was
unsupported by the evidence and that the damages
awards were excessive.
  Beginning with Cooper’s attack on the jury’s liability
finding, Cooper faces an uphill battle, for we will over-
turn a jury verdict only if “no legally sufficient
evidentiary basis” exists “for a reasonable jury to find
for the non-moving party.” 

(quotation omitted). To determine if this verdict was
supported by sufficient evidence, we must consider
what Hendrickson had to prove to make out his Eighth
No. 09-1375                                                5

Amendment excessive force claim. The core requirement
for such a claim is that Cooper used force not “in a good-
faith effort to maintain or restore discipline,” but “mali-
ciously and sadistically to cause harm.” Hudson v.
McMillian, 

, 7 (1992). Several factors guide
the inquiry of whether an officer’s use of force was legiti-
mate or malicious, including “the need for an application
of force, the relationship between that need and the
force applied, the threat reasonably perceived by the
responsible officers, the efforts made to temper the
severity of the force employed, and the extent of the
injury suffered by the prisoner.” Outlaw v. Newkirk, 

, 837 (7th Cir. 2001) (quotation omitted). Even if
an officer’s use of force serves no good-faith disciplinary
purpose, the force may be so “de minimis” that it does not
violate the Eighth Amendment. 

(quoting Whitley v. Albers, 

, 327 (1986)). Still,
while de minimis uses of force are non-actionable, a
prisoner need not suffer “serious injury” in order to
bring an Eighth Amendment claim. 

  The evidence in this case amply supports the jury’s
verdict that Cooper attacked Hendrickson for the
malicious purpose of causing harm. Hendrickson and
his fellow inmates testified that he made no threatening
movements towards Cooper, or anyone else, but simply
responded to Cooper’s repeated cussings with an insult
of his own. Accepting Hendrickson’s version of events,
as we must, Cooper did not reasonably perceive any
threat from Hendrickson and had no need to use any
force. Nevertheless, Cooper waited for Hendrickson to
enter the housing unit and then grabbed him, slammed
6                                              No. 09-1375

him into the wall and concrete floor, and pressed his
knees into Hendrickson’s bad back. The jury could rea-
sonably find that this use of force was gratuitous and
intended solely to cause pain. (It is interesting that al-
though Hendrickson’s testimony was corroborated by
two other inmates, none of the other correctional
officers present during the events provided any evidence
at trial.)
  Cooper’s attack was also not the type of de minimis force
that cannot, as a matter of law, constitute an Eighth
Amendment violation. Cooper offered more than a mere
“malevolent touch,” 

, or “simple act
of shoving,” DeWalt v. Carter, 

, 620 (7th Cir.
2000). Cooper took Hendrickson to the concrete ground
and kneed him in the back. This force was severe and,
though perhaps justified under other circumstances to
restrain a dangerous inmate, uncalled-for here. Cf. Lewis
v. Downey, 

, 475-76 (7th Cir. 2009) (finding
that the use of a taser gun was a more than de minimis
use of force, triggering the inquiry of whether the
tasering served a legitimate disciplinary purpose).
Hendrickson was no threat, yet Cooper attacked him
for the malicious purpose of causing pain. Or so the jury
could reasonably find.
  Cooper argues that Hendrickson failed to prove that
the attack caused any injury severe enough to violate the
Eighth Amendment, stressing that Hendrickson offered
no expert medical evidence showing that the attack
exacerbated his preexisting back pain. This argument
assigns to Hendrickson a burden that he did not have,
No. 09-1375                                              7

namely, proof that he suffered any serious injury or long-
term pain. It is “pain, not injury,” that is the touchstone
of an Eighth Amendment claim. 

Hendrickson
testified that he felt a lot of pain when Cooper threw
him to the ground. It got worse when Cooper gave
him the knee treatment, causing what Hendrickson
described as a sharp, needle-like pain in his lower back.
Hendrickson’s testimony about the pain that he suffered
from the assault, if believed by the jury, was enough to
show an Eighth Amendment violation. The jury was
not required to find that Hendrickson suffered a more
debilitating, longer-term injury.
  True, if an officer’s use of force causes only minor
injury, that factor tends to show that the force served a
proper disciplinary purpose. See 

.
So in cases where it’s debatable whether the use of force
was legitimate or malicious, the lack of serious injury
may tip the scales against the prisoner. See 

(relying in part on the minor nature of the inmate’s
injuries to conclude that the officer’s use of force served
a legitimate security objective); Lunsford v. Bennett, 

, 1582 (7th Cir. 1994) (“This type of minor
injury further supports our conclusion that at most this
incident was a de minimis use of force not intended to
cause pain or injury to the inmate.”). The jurors in this
case didn’t need the extent-of-injury factor to make up
their minds; they could rely on other factors such as the
lack of any reasonably perceived threat or need for
force, see 

, to find that Cooper
acted with malice.
8                                               No. 09-1375

   And in any event, Hendrickson did offer evidence that
he incurred serious, long-term injury from the attack. He
testified that, before the incident, he had a “little bit of
lower back pain, but it wasn’t nothing like it was after
I got slammed on the concrete. . . . There’s no comparison.”
Shortly after the incident, Hendrickson told a nurse that
he was experiencing pain throughout his body. A month
later, he reported pain in his “lower back” and “insides”
and requested a transfer to a hospital for an MRI scan.
He followed up with a second request for an MRI,
stating that the non-prescription pain medications that
he received in prison were ineffective at alleviating his
back pain. In yet a third health care request, Hendrickson
repeated his complaints of continuous, severe back pain.
This evidence allowed the jury to conclude that Cooper’s
attack caused Hendrickson severe, recurring pain.
  We also disagree with Cooper’s suggestion that
Hendrickson had to support his claims of increased back
pain with expert medical evidence. No expert testimony
is required to assist jurors in determining the cause of
injuries that are within their common experiences or
observations. See United States v. Christian, 

,
750 (7th Cir. 2003). Here, the cause of Hendrickson’s
pain was perfectly clear: Cooper beat him. Had
Hendrickson claimed that Cooper never touched him
but merely denied him access to medical care for
several days, and that this delay in treatment exacerbated
his back problems, we might require Hendrickson to
support his theory of causation with some objective
medical evidence. See Williams v. Liefer, 

, 716
(7th Cir. 2007) (concluding that a prisoner’s medical
No. 09-1375                                                9

records were sufficient to find that a delay in responding
to complaints of chest pain caused unnecessary pain
and elevated blood pressure); Walker v. Peters, 

, 502 (7th Cir. 2000) (rejecting an Eighth Amendment
claim against prison doctors who refused certain
requests for medication on the ground that the prisoner
could only speculate that the refusal caused injury).
This case presents no such complicated question of
medical causation. Hendrickson testified that Cooper
beat him up and that it hurt really bad. The jury
believed him. No further proof was required for the jury
to find Cooper liable for violating Hendrickson’s
Eighth Amendment rights.
   So much for the issue of Cooper’s liability; on to dam-
ages. The district court refused to grant a new trial based
on Cooper’s claim that the jury’s compensatory and
punitive damages awards were excessive, a decision
that we review for an abuse of discretion. Harvey v. Office
of Banks & Real Estate, 

, 713 (7th Cir. 2004). As
for the $75,000 in compensatory damages awarded to
Hendrickson, we consider whether that award is “mon-
strously excessive” or lacks any rational connection to
the evidence. See Thomas v. Cook County Sheriff’s Dep’t,
No. 08-2232, 

, at *15 (7th Cir. Dec. 1,
2009). We may also compare the award with other com-
pensatory damages awards upheld in similar cases,
although such comparisons are rarely dispositive given
the fact-specific nature of damages claims. See 

. The required “rational connection” be-
tween the evidence and the award does not imply mathe-
matical exactitude, especially where the compensatory
10                                                No. 09-1375

damages are for pain and suffering. Such damages are
very difficult to quantify, leaving it to the jury to select a
dollar amount that it believes will fairly compensate the
plaintiff. Fenolio v. Smith, 

, 259-60 (7th Cir.
1986).
  The jury’s award of $75,000 was rationally connected
to Hendrickson’s evidence of pain and suffering.
Hendrickson described how much pain Cooper inflicted
by throwing him to the ground and kneeing him in the
back. Following the attack, Hendrickson continued to
feel back pain that was significantly worse than before,
prompting several requests for medical treatment. The
jury heard this evidence and then received instructions,
without objection by Cooper, that properly guided the
jurors with the often-used language that is standard in
damages instructions. Specifically, the jurors were told
that, among other things:
     Compensatory damages can also cover damages
     that are less specific [than out-of-pocket monetary
     harm], such as pain and suffering, inconvenience,
     mental anguish, shock and discomfort, and loss
     of enjoyment of life.
       ....
       . . . No evidence of the dollar value of physical or
     mental or emotional pain and suffering or disabil-
     ity has been or needs to be introduced. There is no
     exact standard for setting the damages to be
     awarded on account of pain and suffering. You
     are to determine an amount that will fairly com-
     pensate the Plaintiff for the injury he has sustained.
No. 09-1375                                                 11

The amount that the jury came up with was $75,000, which
was not a monstrously excessive estimate of the pain that
Hendrickson experienced, and continues to experience,
from his ordeal. A different jury may have chosen a
lower number, but this uncertainty is unavoidable when
making difficult estimates of pain and suffering.
  Additionally, the jury’s award of $75,000 for pain and
suffering is not out of line with similar awards upheld in
the past. See Reising v. United States, 

, 1244
(7th Cir. 1995) (upholding $150,000 in pain and suffering
damages for acceleration of back problems resulting from
a car accident); Hagge v. Bauer, 

, 109-10 (7th Cir.
1987) (affirming a compensatory damages award of
$75,000, exclusive of medical bills, for pain from a
broken leg caused by a police officer’s assault). We
might have a different case if the jury came back with a
compensatory damages award in the millions, or even
the $350,000 in total damages requested by Hendrickson’s
trial counsel. In this case, though, we cannot say that
$75,000 was an excessive valuation of Hendrickson’s
pain and suffering.
  Echoing his challenge to the jury’s liability finding,
Cooper argues that the compensatory damages award
is excessive absent objective medical evidence showing
that Cooper caused Hendrickson’s increase in back pain.
Again, we disagree. Given the uniquely subjective
nature of pain, see Cooper v. Casey, 

, 917 (7th
Cir. 1996), it is understandable that Hendrickson relied
primarily on his own testimony to prove his pain and
suffering. He described how much worse his back felt as
12                                              No. 09-1375

a result of Cooper’s assault, and the verdict shows that
the jury believed him. At that point, the jury had the
duty to fairly compensate Hendrickson, a task that the
jury could perform without objective medical evidence
attempting to quantify Hendrickson’s pain and suffering.
Cf. Greeno v. Daley, 

, 655 (7th Cir. 2005) (ob-
serving that a prisoner did not need to offer “ ‘objective’
evidence of his pain and suffering” in order to recover
for prison doctors’ deliberate indifference to a serious
medical condition).
   Satisfied that the $75,000 compensatory damages
award is supported by the evidence, we close by con-
sidering the $125,000 punitive damages award. Cooper
raises no constitutional challenge to the size of the
punitive damages award, which we would consider de
novo. Kunz v. DeFelice, 

, 678 (7th Cir. 2008).
Instead, Cooper simply argues that the award is
excessive in light of the evidence, so we review only for
an abuse of discretion. 

set aside a jury’s
award of punitive damages only if we are certain that
it exceeds what is necessary to serve the objectives of
deterrence and punishment.” EEOC v. AIC Sec. Investiga-
tions, Ltd., 

, 1287 (7th Cir. 1995). As with our
review of a compensatory damages award, it is useful
to compare the challenged punitive damages award
with other awards upheld in the past. See 

not find $125,000 excessive. “Punitive damages
are appropriate when the defendant acted wantonly and
willfully, or was motivated in his actions by ill will or a
desire to injure.” 

. The jury in this
No. 09-1375                                                 13

case heard ample evidence that Cooper acted with the
malicious desire to cause Hendrickson harm. It is
difficult to determine the exact amount required to deter
and punish such misconduct, see 

cannot say
with certainty that $125,000 is too much.
  True, $125,000 is larger than the punitive damages
awards that we have upheld in similar, though less recent,
excessive force cases. See Bogan v. Stroud, 

, 182,
186 (7th Cir. 1992) ($7000 in total punitive damages
against three prison officers who beat and stabbed an
inmate after subduing him); 

, 110
($25,000 against a police officer who kicked an arrestee
and broke her leg); Taliferro v. Augle, 

, 159, 162
(7th Cir. 1985) ($25,000 against two police officers who
beat an arrestee). More recently, we have upheld awards
approaching the $125,000 imposed here, but these
cases involved multiple officers who used force that was
probably more severe than Cooper’s attack. See 

, 679 ($90,000 in total punitive damages where
multiple police officers beat an arrestee after he was
subdued and, later at the station, beat out a false confes-
sion); Marshall ex rel. Gossens v. Teske, 

, 768-69,
772-73 (7th Cir. 2002) ($100,000 against three officers
who chased a minor at gunpoint, arrested him, and
detained him for several hours without probable cause);

, 920 ($120,000 against seven prison
guards who beat inmates and then refused requests for
medical treatment). Drawing comparisons to these cases,
perhaps $125,000 approaches the upper end of what was
necessary to punish Cooper’s lone act of attacking a
prisoner for no good reason.
14                                              No. 09-1375

  Still, we think that the substantial evidence of malice
in this case brings the $125,000 punitive damages award
within the bounds of reasonableness. In the distinct
but related context of a constitutional challenge to a
punitive damages award, the Supreme Court has
observed that the most important factor is “the degree of
reprehensibility of the defendant’s conduct.” State Farm
Mut. Auto. Ins. Co. v. Campbell, 

, 419
(2003) (quotation omitted). Cooper’s use of force was
reprehensible because it was completely unjustified. It
was not as though Cooper was initially compelled to
use some force against Hendrickson, but the jury found
that he simply went too far. Cf. 

(recounting the plaintiff’s actions of delivering drugs,
driving a stolen vehicle while drunk, and fleeing the
police, all of which necessitated the plaintiff’s arrest).
Cooper’s actions were deliberate and calculated to
create a violent confrontation with Hendrickson. Cooper
goaded Hendrickson into leveling an insult, which
Cooper used as an excuse to attack. Cooper then lay in
wait for Hendrickson to enter the housing unit. When
Hendrickson finally appeared, Cooper grabbed, shoved,
floored, and kneed him. Hendrickson’s disability
made him especially vulnerable to such severe force,
increasing the likelihood that Cooper’s attack would
achieve his purpose of causing pain. Cf. 

(observ-
ing that the plaintiff “was shackled and defenseless
while he was being punched and thus vulnerable to the
injury inflicted”). Cooper also perpetrated this attack
right in the presence of other inmates, as if Cooper in-
tended to vividly demonstrate who was the boss. The
No. 09-1375                                                      15

jury could find that $125,000 was necessary to punish
and deter this malicious use of force.
  The evidence supported the jury’s finding that
Cooper violated Hendrickson’s Eighth Amendment
rights, as well as the jury’s compensatory and punitive
damages awards.Œ
                                                       A FFIRMED.




Œ
   It should be noted that Hendrickson proceeded pro se through
the early stages of this case, including the summary judgment
process, right up to the brink of trial. At that point, the district
judge requested that counsel appear on Hendrickson’s behalf
pursuant to 28 U.S.C. § 1915(e)(1). The law firm that complied
with that request very ably represented Hendrickson through
trial and this appeal, thereby upholding the longstanding and
greatly appreciated tradition of volunteering to represent the
indigent.



                              12-21-09