Sorto
v.
McDonald

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISIONAug 20, 2018
5:15-CT-3131-D (E.D.N.C. Aug. 20, 2018)

5:15-CT-3131-D

08-20-2018

JULIO ZELAYA SORTO, Plaintiff, v. D. McDONALD, et al., Defendants.


MEMORANDUM AND RECOMMENDATION

This case comes before the court pursuant to the 7 June 2018 Order (D.E. 126) of the presiding district judge referring to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B), the conduct of a damages hearing and issuance of a memorandum and recommendation the amount of damages to be awarded plaintiff Julio Zelaya Sorto ("Sorto") arising from the court's allowance of default judgment against defendant Domonique McDonald ("McDonald"), the sole remaining defendant. The hearing was held on 9 August 2018. See 9 Aug. 2018 Min. Entry (D.E. 140). For the reasons set forth below, it will be recommended that Sorto be awarded $25,000 in compensatory damages and $5,000 in punitive damages, for total damages in the amount of $30,000.

BACKGROUND

I. CASE HISTORY

Sorto is a North Carolina inmate who has proceeded pro se in this case, except at a settlement conference and the damages hearing. In his original complaint, filed 15 June 2015, Sorto alleges that on 6 July 2014, 8 July 2014, and 3 August 2014 McDonald, a former corrections officer of the North Carolina Department of Public Safety ("DPS") at Polk Correctional Institution ("PCI"), assaulted him while he was housed at that facility and various other DPS defendants failed to come to his aid. See Compl. (D.E. 1) ¶¶ 19, 27, 39. He asserted claims against Sorto and six other defendants, pursuant to 42 U.S.C. § 1983 ("§ 1983"), for violation of the First, Eighth, and Fourteenth Amendments. See id. ¶¶ 48-86. The complaint sought, in part, declaratory and injunctive relief, and compensatory and punitive damages of $415,000 against all defendants. Id., Prayer for Relief 40-45. This total included $200,000 in compensatory damages and $20,000 in punitive damages for a total of $220,000 against McDonald.

Pursuant to the frivolity review under 28 U.S.C. § 1915A, the court dismissed Sorto's claims for injunctive and declaratory relief, as well as his Fourteenth Amendment Due Process claims against defendants Shawn D. Bruton, Monica Bond, and Erica L. Hargrove. See 19 Apr. 2016 Order (D.E. 12). The four defendants named in Sorto's surviving claims, McDonald and defendants Irvin Ryan, Jr. ("Ryan"), Joseph Lightsey ("Lightsey"), and Tarsha P. Crosson ("Crosson"), either waived service or were properly served. See Lightsey Waiver (D.E. 14); Crosson Waiver (D.E. 21); Ryan Summons (D.E. 24); McDonald Summons (D.E. 31).

After service, Ryan, Lightsey, and Crosson answered the complaint, denying any wrongdoing. See Ryan Ans. (D.E. 26); Lightsey Ans. (D.E. 30); Crosson Ans. (D.E. 35). McDonald did not file a timely answer, although he later filed a document the court liberally construed as his answer. McDonald Ans. (D.E. 82). McDonald's answer largely denies wrongdoing, but admits he assaulted Sorto in August 2014. McDonald Ans. 3.

Lightsey and Crosson were represented by counsel throughout the proceedings. Ryan initially proceeded pro se, and his initial answer was not prepared by counsel. The North Carolina Attorney General later entered a notice of appearance (D.E. 66) as his counsel and filed an answer on his behalf (D.E. 100).

The court partially allowed Sorto's subsequent motion to amend his claims. See 22 Dec. 2016 Order (D.E. 84) 11. The court deemed significant portions of Sorto's proposed amended complaint either moot or futile. Id. The amendments allowed included only allegations that elaborated on the three assaults detailed in the original complaint. Id. Sorto also amended his prayer for relief to request compensatory and punitive damages totaling $500,000, an award of costs, and attorney's fees. Am. Compl. (D.E. 76-3); Prayer for Relief 33-34.

Lightsey filed a motion for judgment on the pleadings. Lightsey Mot. (D.E. 40). The court allowed Lightsey's motion and dismissed Sorto's deliberate indifference claim against Lightsey. See 28 Mar. 2017 Order (D.E. 95). After Lightsey's dismissal, Ryan and Crosson filed an answer to Sorto's amended complaint, again denying wrongdoing. Ryan & Crosson Ans. (D.E. 100). McDonald did not respond to the amended complaint. Ryan and Crosson moved for summary judgment. Ryan & Crosson Sum. J. Mot. (D.E. 103). Sorto's claims against Ryan and Crosson partially survived summary judgment, but the parties reached a mutual agreement on the surviving claims. See 28 Feb. 2018 Order (D.E. 120); 9 Aug. 2018 Minute Entry re: settlement proceedings (D.E. 135). The only remaining claims in the case are those by Sorto against McDonald under § 1983 for violation of his rights under the Eighth Amendment.

As indicated, Ryan filed his amended answer with the benefit of counsel. Am. Ans. (D.E. 100).

II. DEFAULT PROCEEDINGS AGAINST MCDONALD

As noted, McDonald was personally served with process on 5 August 2016. See McDonald Summons (D.E. 31). On 16 September 2016, Sorto moved for entry of default against McDonald. Mot. for Entry of Default (D.E. 50). On 20 October 2016, the court held a hearing on Sorto's motion for entry of default against McDonald. 20 Oct. 2016 Minute Entry (D.E. 63). The motion was denied without prejudice on 20 October 2016. 20 Oct. 2016 Order (D.E. 64).

On 10 November 2016, Sorto filed a second motion for entry of default. 2d Mot. for Entry of Default (D.E. 74). Sorto's second motion was denied on 22 December 2016 in light of McDonald's submission that the court construed as his answer. 22 Dec. 2016 Order (D.E. 84) 3.

Following McDonald's failure to respond to Sorto's amended complaint, on 19 July 2017, Sorto filed a third motion for entry of default. 3d Mot. for Entry of Default (D.E. 113). That motion was allowed on 25 January 2018. 25 Jan. 2018 Order (D.E. 116) 15. A Clerk's entry of default was entered against McDonald on 26 February 2018, pursuant to Fed. R. Civ. P. 55(a). Entry of Default (D.E. 119).

On 9 April 2018, Sorto filed a motion for default judgment against McDonald. Mot. for Default J. (D.E. 125). As indicated, the court allowed the motion by order entered 7 June 2018 ((D.E. 126) 2-3) and referred the case to the undersigned for a hearing, and memorandum and recommendation on the issue of damages due Sorto from McDonald. To facilitate the effective administration of the damages hearing, the court appointed North Carolina Prisoner Legal Services ("NCPLS") to represent plaintiff for the limited purpose of providing representation at the damages hearing. See 20 July 2018 Order (D.E. 136).

Pursuant to the terms of the order appointing counsel, the representation was limited to providing representation at the damages hearing. Accordingly, NCPLS's representation of plaintiff has now ceased and any further proceedings in this case on plaintiff's behalf, including any objections to this Memorandum and Recommendation, must be handled by plaintiff himself or any counsel he retains, unless otherwise ordered by the court.

The undersigned held the hearing on 9 August 2018. See 9 Aug. 2018 Min. Entry (D.E. 140). At the hearing, Sorto was the only witness. He offered 19 exhibits: a DPS memorandum indicating that McDonald resigned while under disciplinary investigation, Pl.'s Ex. 1 (D.E. 141-1); a list of the essential job functions of a DPS correctional officer, Pl.'s Ex. 2 (D.E. 141-2); materials documenting McDonald's 6 July 2014 assault on Sorto and DPS's response, Pl.'s Ex. 3 (D.E. 141-3); materials documenting McDonald's 8 July 2014 assault on Sorto and DPS's response, Pl.'s Ex. 4 (D.E. 141-4); materials documenting McDonald's 3 August 2014 assault on Sorto and DPS's response, Pl.'s Ex. 5 (D.E. 141-5); McDonald's pro se answer, Pl.'s Ex. 6 (D.E. 141-6); Ryan's pro se answer, Pl.'s Ex. 7 (D.E. 141-7); Crosson's and Ryan's answer to Sorto's amended complaint, Pl.'s Ex. 8 (D.E. 141-8); an affidavit prepared by Ryan in support of his motion for summary judgment, Pl.'s Ex. 9 (D.E. 141-9); Crosson's and Ryan's statement of undisputed material facts in support of their motion for summary judgment, Pl.'s Ex. 10 (D.E. 141-10); an affidavit prepared by Crosson in support of her motion for summary judgment, Pl.'s Ex. 11 (D.E. 141-11); Crosson's answer to Sorto's original complaint, Pl.'s Ex. 12 (D.E. 141-12); Crosson's and Ryan's responses to Sorto's request for admissions, Pl.'s Ex. 13 (D.E. 141-13); administrative remedy grievances filed by Sorto with DPS, Pl.'s Ex. 14 (D.E. 141-14); records from Duke Medicine detailing the care Sorto received after the 3 August 2014 assault, Pl.'s Ex. 15 (D.E. 141-15); DPS medical records detailing the care Sorto received after the 3 August 2014 assault, Pl.'s Ex. 16 (D.E. 141-16); the results of an MRI performed on Sorto's lumbar spine on 27 March 2015, Pl.'s Ex. 17 (D.E. 141-17); a 30 October 2014 forensic psychiatric assessment of Sorto, Pl.'s Ex. 18 (D.E. 141-18); and photographs of Sorto a few days after the 3 August 2014 assault, Pl. Ex. 19 (D.E. 141-19).

Sorto authenticated these exhibits during his testimony by identifying them as his own records or as documents he received from defendants during discovery. In addition, the summary judgment record already contains several of these exhibits or they appear elsewhere in the court record. The court reserved ruling on the admission of the exhibits. In light of the apparent trustworthiness of the exhibits and lack of objection to their admission, the court admits each of them.

The undersigned takes notice that, to the extent these materials are already of record, they are accurate copies of the previously filed documents.

FINDINGS OF FACT

The court makes the following findings of fact based on the record before it:

On 6 July 2014, McDonald verbally abused and threatened Sorto as Sorto attempted to throw trash away through his food passage door. Am. Compl. ¶¶ 13-16. Sorto called McDonald a "faggot" and spit on McDonald. See, e.g., Pl. Ex. 3 (D.E. 141-3) 7. McDonald left, returned shortly thereafter, and then assaulted Sorto. Am. Compl. ¶¶ 18-19. Specifically, McDonald pepper sprayed Sorto in the face, chest, and arms; struck him on the arms; and kicked him. Id. ¶ 19. Sorto was left in the cell for four hours in full restraints without treatment. Id. ¶ 24. He suffered burning of his eyes and skin; painful bruises and swelling to his left wrist; a headache and dizziness; and mental distress (e.g., mental or emotional anguish, psychological trauma). Id. ¶ 24. After investigation, DPS determined McDonald's use of force was unnecessary. Pl. Ex. 3 (D.E. 141-3) 2. Sorto received a disciplinary conviction for his behavior. Id. at 4.

On 8 July 2014, prison officials escorted Sorto in full restraints to the visitation area. Am. Compl. ¶¶ 28-31; Pl. Ex. 4 (D.E. 141-4) 1. In the visitation area, Sorto spit on McDonald. Pl. Ex. 4 (D.E. 141-4) 1. Prison officials responded by placing Sorto on the floor to prevent further spitting. Id. While Sorto was on the floor, McDonald responded by verbally abusing Sorto and "smashing [Sorto's] head against the concrete floor." Am. Compl. ¶ 30. Other prison officials intervened to stop the assault. Pl. Ex. 4 (D.E. 141-4) 1. Sorto suffered bruises to the back of his head; pain in his left hand; and mental distress. Am. Compl. ¶ 32. After investigation, DPS recommended corrective action against McDonald. Pl. Ex. 4 (D.E. 141-4) 3.

On 3 August 2014, Sorto threw feces on McDonald. Pl. Ex. 5 (D.E. 141-5) 7. McDonald left the area to decontaminate. Id. Later that day, Sorto was escorted to an unrelated medical appointment. Am. Compl. ¶ 38. Sorto testified at the hearing that the trip to his medical appointment was video recorded and occurred without incident. See id. ¶ 51. But as prison officials returned Sorto to his cell, in full restraints and without video recording, McDonald waited in ambush in an area that was not covered by surveillance cameras. Id. ¶¶ 47, 49, 51. Surprising both Sorto and his escort, McDonald charged Sorto from behind, punched him in the right eye, and slammed him onto the concrete floor by pulling him backwards by his t-shirt. Id. ¶ 47. McDonald then dragged Sorto back from those escorting him; stomped on his forehead with his boots; struck him about the head and neck; and smashed his head against the concrete floor. Id. ¶ 48; McDonald Ans. 3. The assault knocked Sorto unconscious. Am. Compl. ¶ 50. The escorting officers were eventually able to subdue McDonald and end the assault. See, e.g., Pl. Ex. 5 (D.E. 141-5) 3. DPS investigated the matter, and deemed McDonald's actions unjustified and unwarranted. Id. at 12. McDonald resigned before he could face discipline for this incident. Pl. Ex. 1 (D.E. 141-1).

The answer reads:

Once again I was upset and in rage. I decide to handle matters in my own hands by waiting for the other officers' escort Inmate Sorto to medical which was protocol. Once I saw inmate Sorto been escort out of the medical, I speed walk behind inmate Sorto, begin to forcedly pulling inmate Sorto back shirt by taking inmate Sorto down and striking with two close fist towards the facially area. After the two strike, I refrain myself out of the unit.

McDonald Ans. 3.


After the incident, Sorto was medically screened by prison officials. Pl. Ex. 5 (D.E. 141-5) 9-10. Shortly after this initial medical evaluation, Sorto was taken to the emergency room by ambulance. Id. The emergency room medical records confirmed that Sorto was struck in the head. Pl. Ex. 15 (D.E. 141-15) 1. Sorto was treated for hand, head, neck, and shoulder pain. Id. at 1, 4. McDonald's assault also exacerbated Sorto's pre-existing back pain. Id. at 2; Pl. Ex. 17 (D.E. 141-17). Sorto had abrasions on and swelling of his left hand. Pl. Ex. 15 (D.E. 141-15) 4. In addition, he had an abrasion on his right earlobe and several cuts on his head. Id. at 3. X-rays and CT examinations did not reveal any fractures. Id. at 4-9. The photographs submitted by Sorto substantiate that he was physically injured on 3 August 2014. Pl. Ex. 9 (D.E. 141-9). Sorto also suffered mental distress from the attack. Am. Compl. ¶ 57.

The 30 October 2014 forensic psychiatric assessment of Sorto establishes that prior to the assaults by McDonald, he suffered from anxiety, depression, and post-traumatic stress disorder ("PTSD"). Pl. Ex. 18 (D.E. 141-18) 6-7. The assessment also shows that McDonald's assaults worsened these conditions. Id. at 8.

At the hearing, Sorto, through counsel, argued for an award of $200,000 in compensatory damages and $300,000 in punitive damages, for total damages against McDonald of $500,000.

In making its findings of fact, the court credited Sorto's testimony as credible on the material facts. It was internally consistent, and he testified forthrightly and with conviction. His demeanor was otherwise indicative of truthfulness. In addition, the exhibits generally corroborate his testimony.

The court does note one instance in which it finds Sorto embellished. He testified that the 3 August 2014 assault lasted for 12 to 15 minutes. The record does not otherwise show that the assault lasted this long, including Sorto's own amended complaint in which, as referenced above, he alleged that McDonald beat him "for several minutes" while he lay on the floor. Am. Compl. ¶ 49. The court recognizes, of course, that the assault may have seemed to Sorto to last longer than it actually did and that he lost consciousness during it. Particularly in light of these circumstances, the court does not believe that this instance of embellishment significantly detracts from the credibility Sorto otherwise demonstrated in his testimony on the material facts.

DETERMINATION OF DAMAGES DUE SORTO

I. PROCEDURE FOR DETERMINING DEFAULT DAMAGES

As noted, Sorto's claims arise pursuant to the Eighth Amendment. The Eighth Amendment to the Constitution, made applicable to the states through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660 (1962), prohibits the infliction of "cruel and unusual punishments . . .," U.S. Const. amend. VIII, and protects prisoners from the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (1986). The Supreme Court has interpreted this language to prohibit correctional officers from using "excessive physical force against prisoners." Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates this provision when he "maliciously and sadistically use[s] force to cause harm." Hudson v. McMillian, 503 U.S. 1, 9 (1992). To establish an Eighth Amendment claim, an inmate must satisfy both an objective component—that the harm inflicted was serious enough—and a subjective component-that the prison official acted with a sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). In adjudicating an excessive force claim, the court must consider such factors as the need for the use of force, the relationship between that need and the amount of force used, the extent of the injury inflicted, and, ultimately, whether the force was "applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm." Albers, 475 U.S. at 320-21.

After a court determines, as here, that a judgment by default should be entered, it must determine the amount and character of the recovery that should be awarded. See Hewitt v. Morris, No. 0:12-666-MGL-PJG, 2012 WL 6864598, at *1 (D.S.C. 20 Dec. 2012) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688 at 63 (3d ed. 1998)). "The court must make an independent determination regarding damages, and cannot accept as true factual allegations of damages." J & J Sports Prods., Inc. v. Waters, No. 3:12-cv-267-RJC-DCK, 2012 WL 5930167, at *2 (W.D.N.C. 27 Nov. 2012). The court may, as in this case, conduct a hearing to determine the amount of damages. Fed. R. Civ. P. 55 (b)(2)(B). The damages "must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c).

In contrast, when making the initial determination whether to award a default judgment, "the Court takes as true the well-pleaded factual allegations in the complaint, other than those pertaining to damages." Clancy v. Skyline Grill, LLC, No. ELH-12-1598, 2012 WL 5409733, at *2 (D. Md. 5 Nov. 2012).

II. COMPENSATORY DAMAGES DUE SORTO

A. Satisfaction of Physical Injury Requirement under the Prison Litigation Reform Act ("PLRA")

The Prison Litigation Reform Act ("PLRA") establishes limitations on recovery of compensatory damages by prisoners in civil lawsuits by providing that "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e; see also Miller v. Clark, No. 3:11-cv-00557, 2011 WL 6955512, at *3 (S.D.W. Va. 9 Dec. 2011) ("Moreover, to maintain a plausible claim for compensatory damages, the prisoner must assert and prove that a physical injury resulted from the violation. Allegations of an emotional injury without an underlying physical injury are insufficient to support an award of compensatory damages."). Each of the assaults by McDonald on Sorto resulted in physical injuries satisfying the PLRA requirement. Sorto is therefore entitled to recover compensatory damages in such amount as the record establishes.

B. Amount

Section 1983 creates "a species of tort liability," Carey v. Piphus, 435 U.S. 247, 253 (1978), and, therefore, "when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." Memphis Cnty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986). "To that end, compensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as 'impairment of reputation . . . , personal humiliation, and mental anguish and suffering.'" Id. at 307 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)). Factors considered by the court in assessing a plaintiff's damages for emotional distress include: "the factual context in which the emotional distress arose; evidence corroborating the testimony of the plaintiff; the nexus between the conduct of the defendant and the emotional distress; the degree of such mental distress; mitigating circumstances, if any; physical injuries suffered due to the emotional distress; medical attention resulting from the emotional duress; psychiatric or psychological treatment; and the loss of income, if any." Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 503 (4th Cir. 2007). The court must "scrupulously analyze" the award of compensatory damages for emotional distress when predicated exclusively on the plaintiff's testimony. Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996).

Here, the court has undertaken the requisite scrupulous analysis of any award to Sorto for emotional distress. It has also conducted a careful analysis of the compensatory damages due for Sorto's physical injuries. The court's analysis has included review of the case law cited by Sorto's counsel at the hearing.

Murphy v. Smith, 844 F.3d 653, 656 (7th Cir. 2016) (noting jury awarded $241,001 in compensatory and punitive damages against one defendant and $168,750 against another, court reduced combined award to $307,733.82); Hendrickson v. Cooper, 589 F.3d 887, 893-95 (7th Cir. 2009) (upholding jury award of $75,000 in compensatory damages and $125,000 in punitive damages); Johnson v. Breeden, 280 F.3d 1308, 1312 (11th Cir. 2002) (noting jury verdict of $25,000 in compensatory damages and $45,000 in punitive damages); Blissett v. Coughlin, 66 F.3d 531, 535 (2d Cir. 1995) (upholding jury award of $75,000 in compensatory damages and $10,000 in punitive damages); Jackson v. Austin, 241 F. Supp. 2d 1313, 1323 (2003) (awarding $15,000 in compensatory damages and $30,000 in punitive damages).

In evaluating Sorto's physical injuries, the court has considered for each assault, among other factors, the parts of the body injured, the severity of the injuries (e.g., loss of consciousness), whether the injuries required hospitalization, and any proven long-term effects of the injuries. The 6 July 2014 attack resulted in the least severe injuries (e.g., there was no head trauma or loss of consciousness). The 8 July 2014 assault produced the next most severe injuries (e.g., there was head trauma, but no loss of consciousness or hospitalization), and the 3 August 2014 assault the most (e.g., there was head trauma, loss of consciousness, hospitalization, and exacerbation of a pre-existing condition).

As the October 2014 forensic psychiatric assessment of Sorto substantiates, he suffered mental distress in each of the assaults in addition to the physical injuries. Consistent with his testimony, the mental distress was undoubtedly accentuated by his being in full restraints preventing him from defending himself, as he was in the 8 July 2014 and 3 August 2014 assaults.

As noted, the assaults exacerbated Sorto's longstanding PTSD symptoms. Pl. Ex. 18 (D.E. 141-18) 8. The examining psychiatrist stated in relevant part:

Mr. Sorto's seemingly accurate perception that he has been in an unsafe environment (in comparison to other typical correctional environments) has intensified the severity of symptoms he has experienced as a result of his underlying [PTSD].
. . . .
Mr. Sorto is constantly worried that he is at risk and perceives himself as being in dangerous situations more readily than other similarly situated individuals would.

Id
. at 8. Sorto himself testified McDonald's assaults exacerbated his preexisting psychological problems. He stated that McDonald's attacks made him feel scared and unable to defend himself. He now suffers from anxiety and panic attacks.

The court concludes that the sum of $25,000 is an amount sufficient, without being excessive, to compensate Sorto for the physical injuries and emotional distress McDonald caused him. See Richardson v. Bostick, No. 5:11-CT-3045-FL, 2014 WL 3508916, at *7 (E.D.N.C. 14 July 2014) (awarding $10,000 in compensatory damages in default judgment proceeding where plaintiff was assaulted, and required emergency medical and psychological treatment afterwards); Barnard v. Piedmont Reg'l Jail Auth., No. 3:07-CV566, 2009 WL 2872510, at *6 (E.D. Va. 3 Sept. 2009) (awarding plaintiff $250 from each of three defendants for compensatory damages in default judgment proceeding where plaintiff was subjected to unnecessary excessive force by prison guards); see also Monclova-Chavez v. McEachern, No. 1:08-CV-76 AWI BAM, 2015 WL 75084, at *7 (E.D. Cal. 6 Jan. 2015) (awarding $7,000 in compensatory damages to inmate assaulted by prison guards while restrained); Thomson v. Jones, 619 F. Supp. 745, 754 (N.D. Ill. 1985) (awarding $25,000 in compensatory damages at bench trial on excessive force claim for permanent hearing loss, pain and suffering, and other physical injuries).

III. PUNITIVE DAMAGES DUE SORTO

The purpose of punitive damages is "deterrence and retribution." Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). "Punitive damages are available in an action under § 1983 'when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'" Carrington, 2011 WL 2132850, at * 4 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Punitive damages are discretionary. Id.

Here, the record clearly shows that McDonald's assaults on Sorto were motivated by evil motive. McDonald assaulted Sorto on three occasions, and on each occasion, DPS concedes the use of force was unreasonable. McDonald resigned from his position before DPS could discipline him after the 3 August 2014 assault. McDonald concedes in his answer that the 3 August 2014 assault was ill motivated. See McDonald Ans. 3 (quoted in n.5 above). That assault was, of course, the most egregious. McDonald ambushed Sorto from behind, starting with a sucker punch to Sorto's head, while he was fully restrained and therefore defenseless in an area beyond surveillance camera coverage.

Sorto took action against McDonald that helped provoke each of the assaults by McDonald against him. Sorto spit on McDonald shortly prior to the 6 July 2014 and 8 July 2014 assaults. He threw feces on McDonald prior to the 3 August 2014 assault. In that instance, though, McDonald had a significant period of time to collect himself prior to the assault. The assault is all the more aggravated for his apparent use of the time to formulate the ambush.

Nonetheless, the fact that Sorto did play a significant role in prompting the assaults on him must be considered in determining the amount of punitive damages due. Specifically, Sorto's conduct discounts the punitive damages otherwise due. Failure to discount the punitive damages based on Sorto's misconduct would reward it and encourage other inmates to behave in a similar fashion. The result would be to undermine, rather than promote, law and order.

The court concludes that an award of $5,000 in punitive damages is an amount sufficient, without being excessive, to serve the ends of retribution and deterrence. See Richardson, 2014 WL 3508916, at *7 (awarding $22,000 in punitive damages in default judgment proceeding where plaintiff was assaulted, and required emergency medical and psychological treatment afterwards); Barnard, 2009 WL 2872510, at *6 (awarding plaintiff $5,500 in punitive damages in default judgment proceeding where plaintiff was subjected to unnecessary excessive force by prison guards); Monclova-Chavez, 2015 WL 75084, at *7 (awarding $5,000 in punitive damages to inmate assaulted by prison guards while restrained). In reaching this conclusion, the court has carefully considered not only the evidence of record, but also the case law cited by plaintiff at the damages hearing. See n.7 above.

CONCLUSION

For the reasons set forth above, IT IS RECOMMENDED that judgment be entered providing that Sorto have and recover from McDonald $25,000 in compensatory damages and $5,000 in punitive damages, for total damages of $30,000.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 3 September 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

As indicated in n.3 above, Sorto's representation by the NCPLS has ended, and he is again proceeding pro se. --------

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).

Any response to objections shall be filed within 14 days after filing of the objections.

The Clerk is DIRECTED to today serve a copy of this Memorandum and Recommendation on Sorto by first-class mail at Tabor Correctional Institution and on McDonald by first-class mail at the most current address the court has for him: 600 Bear Creek Path, Apt. 607, Morrisville, NC 27560. The Clerk shall also make an appropriate record of such service on the docket sheet of this case.

This 20th day of August 2018.

/s/_________


James E. Gates


United States Magistrate Judge