                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 10-3863
                         ___________________________

                                 Arthur E. Taylor, Jr.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

  Dave Dormire, in his individual and official capacity; Walter Friesen, 3rd Shift
 Sergeant, in his individual and official capacity; Chad Hovis, 2nd Shift Sergeant,
                        in his individual and official capacity

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                             Submitted: April 19, 2012
                             Filed: September 4, 2012
                                  ____________

Before WOLLMAN, BYE, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Arthur E. Taylor, Jr. sued Missouri prison officials under 42 U.S.C. § 1983
for refusing to feed him for several days while he was restrained. A jury returned
a verdict for the prison officials, which Taylor appeals. Jurisdiction being proper
under 28 U.S.C. § 1291, this court reverses and remands.
                                            I.

       Taylor was a prisoner at the Jefferson City Correctional Center, a maximum
security prison. According to Department of Corrections Policy, if a prisoner
becomes concerned about potential violence within the cell, a prisoner may declare
the cellmate an “enemy” and be removed from the cell. Prison officials then place the
removed prisoner on a restraint bench until a compatible cellmate is found, an
individual cell becomes available, or the prisoner decides to return to the original cell.
Policy provides that prisoners cannot be fed unless they are in a cell. The Policy does
allow bathroom breaks and small amounts of water and also has an exception for
medical necessity.

       After an alleged argument on the evening of Friday, September 9, 2005, Taylor
declared his cellmate an enemy and was removed from the cell. Prison officials
shackled him to a metal restraint bench. Several other prisoners used the same
procedure simultaneously, and still others were flooding their cells by tampering with
the sprinklers. On Sunday, September 11, Taylor was placed in a cell with a new
cellmate. Taylor did not eat the offered breakfast or lunch because he was sleeping.
He had been unable to sleep the previous two days while sitting upright on the
restraint bench. Later that day, after another alleged argument, Taylor declared his
new cellmate an enemy and was returned to the bench. At all points, Taylor refused
to return to a cell with either cellmate. Taylor remained on the bench or a metal stool
until the evening of Wednesday, September 14. During that time, prison officials,
following the Policy, did not feed Taylor. Taylor described having stomach pains,
lightheadedness, and headaches as well as feeling weak. He first ate again on the
morning of Thursday, September 15, after missing about twelve meals.

      Taylor sued prison officials alleging violations of his Eighth and Fourteenth
Amendment rights. His case proceeded to trial. Taylor’s counsel requested an
excessive force instruction, which the district court gave. Taylor’s counsel also

                                           -2-
requested a nominal damages instruction, which the district court refused to give.
The jury returned a verdict for the prison officials, finding “Ø” damages for Taylor.

                                           II.

       Both before and during trial, Taylor’s trial counsel requested a nominal
damages instruction. A nominal damages instruction is appropriate in excessive force
cases where there is evidence that the force, despite being excessive, did not cause
a significant injury. Foulk v. Charrier, 262 F.3d 687, 701 (8th Cir. 2001). A party
is entitled to an instruction on its theory of the case if it is legally correct and there
are facts to support it. Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008). This
court reviews jury instructions for abuse of discretion and reverses a jury verdict
when the failure to give a requested instruction misled the jury or had a probable
effect on the verdict. See Friedman & Friedman, Ltd. v. Time McCandless, Inc.,
606 F.3d 494, 500 (8th Cir. 2010).

       The district court erred in not submitting the instruction to the jury. “We
believe the jury is required to award nominal damages once it has found cruel and
unusual punishment if it has not been able to convert into dollars the injury and pain
a plaintiff has suffered.” Cowans v. Wyrick, 862 F.2d 697, 699 (8th Cir. 1988)
(emphasis added); accord Foulk v. Charrier, 262 F.3d 687, 701 (8th Cir. 2001). This
view is consistent with the Eighth Circuit Model Jury Instruction for nominal
damages, upon which Taylor based his proposed instruction. This instruction directs
the jury that if it finds in favor of a plaintiff but finds that the damages have no
monetary value, the jury “must return a verdict for the plaintiff in the nominal amount
of One Dollar ($1.00).” Eighth Circuit Model Jury Instruction 4.50B (West 2008
& 2011). The Committee Comments to this Instruction also state that “nominal
damages must still be submitted in Eighth Amendment cases if requested.” Id.
Moreover, the Notes on Use accompanying the Excessive Force Instruction that the
district court used here state: “Nominal damages will also have to be submitted under

                                           -3-
Cowans.” Eighth Circuit Model Jury Instruction 4.30, note 7 (West 2008 & 2011)
(emphasis added).

      The prison officials argue the error in not submitting the nominal damages
instruction to the jury was harmless because the jury found in their favor. The
government has the burden of proving harmless error. United States v. Pirani, 406
F.3d 543, 550 (8th Cir. 2005) (en banc). Under the instruction the district court gave,
damages are a required element of a verdict in favor of Taylor. See Eighth Circuit
Model Jury Instruction 4.30 (West 2008 & 2011) (listing damages as the third
element of the claim and stating that: “If any of the above elements has not been
proved, then your verdict must be for the defendant.”); see also, e.g., Lee v.
Anderson, 616 F.3d 803 (8th Cir. 2010) (using same elements of excessive force
instruction). That is, if the jury analyzed this element first and found no damages, it
could not find excessive force. The instructions defined damages as including:

      [t]he physical pain and emotional suffering the plaintiff has experienced
      and is reasonably certain to experience in the future; the nature and
      extent of the injury; whether the injury is temporary or permanent and
      whether any resulting disability is partial or total and any aggravation of
      a pre-existing condition.

None of the instructions mentioned nominal damages. The damages instruction also
stated: “Remember, throughout your deliberations you must not engage in any
speculations, guess, or conjecture and you must not award any damages under this
Instruction by way of punishment or through sympathy.” In the absence of a nominal
damages instruction, the instructions misled the jury.

       The prison officials rely on Holloway v. Alexander, 957 F.2d 529, 531 (8th Cir.
1992) to argue the error was harmless. The Holloway court did find that a failure to
instruct on nominal damages was harmless because “the jury did not consider
damages . . . .” In this case, although the jury found for the defendants, it also wrote

                                          -4-
“Ø” in the space for damages on the verdict form. This shows that the jury
considered the damages issue and found that Taylor had no damages under the
instructions given. The lack of a nominal damages instruction had a probable effect
on this verdict.

     The district court abused its discretion in not submitting the requested nominal
damages instruction to the jury.1

                                       *******

      The judgment of the district court is reversed, and the case remanded for
further proceedings consistent with this opinion.

BYE, Circuit Judge, concurring in part and dissenting in part.

       I concur in the majority's conclusion to reverse and remand for a new trial
because the district court failed to provide a jury instruction on nominal damages. I
believe the district court also erred when it did not provide a deliberate indifference
instruction, affecting Taylor's substantial rights and amounting to a miscarriage of
justice. Unlike the majority, I think the district court will once again confront the


      1
        Taylor also seeks (plain error) review of the district court’s failure to
give—after his failure to request—a jury instruction on deliberate indifference. This
court need not address that issue because Taylor can request a deliberate indifference
instruction if the issue arises again on remand in light of evidence at the retrial. See
Qualley v. Clo-Tex Int’l, Inc., 212 F.3d 1123, 1132 n.18 (8th Cir. 2000) (“In light of
our decision to remand the case, we decline to address whether a jury instruction on
the doctrine of in pari delicto should be given in the new trial – that determination
must be made in light of all of the admissible evidence submitted to the district court
on retrial.”).

                                          -5-
question of the proper jury instructions regarding Taylor's Eighth Amendment claim
during his new trial. I therefore respectfully dissent from the majority's decision not
to consider the matter, and I address it in this separate opinion.

       The majority believes we need not consider the deliberate indifference
instruction matter because Taylor can request such an instruction if the issue arises
again on remand. If the district court declines to provide the instruction and Taylor
appeals that issue, we will revisit the matter at that time. However, we are not
required to overlook matters that are likely to recur on remand, and in fact, we have
engaged them on many occasions. See United States v. Ochoa-Gonzalez, 598 F.3d
1033, 1038 (8th Cir. 2010); Wheeling Pittsburgh Steel Corp. v. Beelman River
Terminals, Inc., 254 F.3d 706, 719 (8th Cir. 2001); Minn. v. Kalman W. Abrams
Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998); United States v. Graham, 60 F.3d
463, 467 (8th Cir. 1995); Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 641 (1993);
Ouachita Nat'l Bank v. Tosco Corp., 686 F.2d 1291, 1299 (8th Cir. 1982), rev'd en
banc on other grounds, 716 F.2d 485 (1983). When "allegations of error concern
actions of the district court that are likely to be repeated upon remand," we may
consider those matters "in the interests of judicial economy." Ouachita Nat'l Bank,
686 F.2d at 1299. This case fits the mold. It therefore works no departure from our
custom to address the deliberate indifference matter, and I do so below.

       As the majority correctly notes, Taylor requested and received a jury
instruction on excessive force, but did not request an instruction on deliberate
indifference. When a party does not request an instruction at trial, we review the
district court's failure to give that instruction for plain error. Webber v. Strippit, Inc.,
186 F.3d 907, 915 (8th Cir. 1999). To show plain error, Taylor must demonstrate:

       (1) there is an error; (2) the error is clear or obvious, rather than subject
       to reasonable dispute; (3) the error affected the appellant’s substantial
       rights, which in the ordinary case means it affected the outcome of the


                                            -6-
      district court proceedings; and (4) the error seriously affects the fairness,
      integrity or public reputation of judicial proceedings.

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (citations, brackets, and
internal quotation marks omitted); see also Moore v. Am. Family Mut. Ins. Co., 576
F.3d 781, 786 (8th Cir. 2009) (internal citation, quotation marks, and alterations
omitted) ("[W]e may grant plain error relief when instructional error is plain, affects
a party's substantial rights, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings[.]").

        The Eighth Amendment prohibits cruel and unusual punishment of a person
convicted of a crime. U.S. Const. amend. VIII. "[T]he unnecessary and wanton
infliction of pain . . . constitutes cruel and unusual punishment forbidden by the
Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation
marks and citations omitted). This wantonness does not have a fixed meaning.
Instead, it is determined with "due regard for differences in the kind of conduct
against which an Eighth Amendment objection is lodged." Id. at 320. To
demonstrate such wantonness in the context of a claim challenging a condition of a
prisoner's confinement, a plaintiff must show two things. First, the plaintiff must
make an "objective" showing that the deprivation imposed by the condition was
"sufficiently serious" to form the basis for an Eighth Amendment claim. Wilson v.
Seiter, 501 U.S. 294, 298 (1991). Second, the plaintiff must make a "subjective"
showing that prison officials "acted with a sufficiently culpable state of mind." Id.

       The deprivation imposed by the condition of Taylor's confinement was
"sufficiently serious" to satisfy the objective component of the Eighth Amendment
inquiry. To be sufficiently serious, "a prison official's act or omission must result in
the denial of 'the minimal civilized measure of life’s necessities.'" Farmer v. Brennan,
511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
"[P]rison officials must ensure that inmates receive adequate food, clothing, shelter,


                                          -7-
and medical care, and must 'take reasonable measures to guarantee the safety of the
inmates.'" Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)). We have previously held the denial of four consecutive meals in a 36-hour
period fell below that minimal measure. Simmons v. Cook, 154 F.3d 805, 808 (8th
Cir. 1998). And the Supreme Court has agreed with the Eleventh Circuit's conclusion
shackling a prisoner to a hitching post for seven hours without food or bathroom
breaks, and with only minimal water, was likewise inadequate. See Hope v. Pelzer,
536 U.S. 730, 738 (2002). The facts in Taylor’s case are no less serious. With one
brief intermission during a six-day period, Taylor remained shackled in an upright
position to a metal restraint bench or stool and was denied food. The deprivation
imposed upon Taylor plainly meets the objective component of the Eighth
Amendment inquiry.

       The "subjective" requirement of the Eighth Amendment inquiry depends on the
nature of the constitutional violation the plaintiff alleges. When the plaintiff alleges
prison officials used excessive physical force, we inquire whether the force was
applied in a good-faith effort to maintain or restore discipline, or used maliciously
and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1,
6-7 (1992); Whitley, 475 U.S. at 320-21. The "malicious and sadistic" standard
applies when prison officials act in response to a prison disturbance. Hudson, 503
U.S. at 6; Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009) (en banc).
We employ this standard because in a disturbance, prison officials must balance the
threat the disturbance poses to prison employees, inmates, and others, against the
harm that may result from the use of force. A disturbance also requires corrections
officers to act "in haste, under pressure, and frequently without the luxury of a second
chance." Whitley, 475 U.S. at 320. The "malicious and sadistic" standard reflects the
deference we give to prison officials who respond to an emergency.

      But when exigent circumstances are not present, neither are the competing
concerns of preserving safety while preventing the harm that follows from the use of

                                          -8-
force. The state's responsibility to provide inmates with adequate food, clothing,
shelter, and medical care is not balanced against the competing penological objective
of remedying an unsafe situation. As a result, the subjective requirement of the
Eighth Amendment inquiry becomes less exacting. In such a prison-conditions case,
the plaintiff must allege prison officials acted with "deliberate indifference" to the
inmate's health or safety. Wilson, 501 U.S. at 303; Nelson, 583 F.3d at 528. A prison
official is "deliberately indifferent" if he or she "knows of and disregards an excessive
risk to inmate health or safety." Farmer, 511 U.S. at 837. This knowledge
requirement exists because "prison officials who lacked knowledge of a risk cannot
be said to have inflicted punishment." Id. at 844.

       Determining the applicable standard, and whether that standard is met, "will
depend upon how the incident . . . is characterized–whether it was a security measure
taken to quell a disturbance or merely punishment." Stenzel v. Ellis, 916 F.2d 423,
426 (8th Cir. 1990). If prison officials' actions are characterized as a response to a
disturbance, the "malicious and sadistic" standard will apply. If, on the other hand,
they are characterized as merely punishment, the "deliberate indifference" standard
will apply.

       The prison officials characterize Taylor's shackling and denial of food as part
of a response to an inmate-led disturbance. Taylor was one of twenty-six inmates
who declared their respective cellmate their enemy in a period of two-to-three hours,
and inmates attempted to flood their cells by breaking the sprinkler heads located
inside them. Appellee's Br. 9-10. Because shackling Taylor to the restraint bench
took place as part of an effort to deal with that disturbance, they say, their state of
mind should be measured by the "malicious and sadistic" standard.

      It is not altogether clear there was a significant disturbance requiring
emergency action, and if there was such a disturbance, when it ended. But even if the
shackling did arise out of an organized effort to agitate, it is highly doubtful—so

                                          -9-
much so that the prison officials do not argue—the disturbance continued for the full
six days during which Taylor was shackled without food. Once prison officials had
contained the alleged disturbance and the inmates no longer presented further danger
to prison staff, the public, or each other, prison officials were no longer required to
make split-second decisions. At that time, the state-of-mind required to show an
Eighth Amendment violation was deliberate indifference. See DeSpain v. Uphoff,
264 F.3d 965, 976 (10th Cir. 2001) (applying the "deliberate indifference" standard
once the threat to safety during an inmate-led prison flood had ended); Johnson v.
Lewis, 217 F.3d 726, 734 (9th Cir. 2000) (concluding the heightened Whitley
standard applied during a prison riot, but the deliberate indifference standard
governed prison officials' conduct once inmates were prone and handcuffed in a
prison yard). Indeed, the Supreme Court said as much in Hope, when it concluded
because "[a]ny safety concerns had long since abated by the time petitioner was
handcuffed to the hitching post," prison officials had acted with deliberate
indifference to the inmate's health and safety.2 536 U.S. at 738.

       What is more, Taylor's claim is not limited to excessive use of force. Taylor's
pleading included the condition of confinement claim and specifically mentioned
deprivation of food. Pl.'s Am. Compl. 10. The district court recognized as much.
Summ. J. Order 6 ("[I]t is not at all clear from the evidence why plaintiff could not
have been provided a minimally nutritious diet while restrained."). "[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." Farmland Indus. Inc. v. Morrison-Quirk Grain
Corp., 987 F.2d 1335, 1341 (8th Cir. 1993). And it is not open to question the
deliberate indifference standard applies to denial-of-food claims. Farmer, 511 U.S.

      2
        The prison officials cite Key v. McKinney, 176 F.3d 1083 (8th Cir. 1999) for
the proposition the "malicious and sadistic" standard governs prison disturbances.
In fact, we had no occasion to consider the applicability of the "malicious and
sadistic" standard because the parties agreed the "deliberate indifference" standard
was appropriately applied in that case. Id. at 1086.

                                          -10-
at 832; Butler, 465 F.3d at 345-46. In light of the pleadings, the summary judgment
order, and the law, it cannot reasonably be disputed the deliberate indifference
standard should have been applied to Taylor's case and Taylor was entitled to have
the jury instructed on that standard. Therefore, because the district court did not
provide a required instruction in the face of incontrovertible law, the district court
committed (1) error that is (2) clear and obvious.

      Taylor must also show the error "affected [his] substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings."
Marcus, 130 S. Ct. at 2164. An error is prejudicial if there is "'a reasonable
probability that, but for [the error claimed], the result of the proceeding would have
been different.'" United States v. Kent, 531 F.3d 642, 656 (8th Cir. 2008) (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).

      Consider the two possible instructions. First, the instruction given at trial:

      Your verdict must be for the plaintiff and against defendant Dave
      Dormire if all the following elements have been proved:

             First, the defendant caused or permitted Arthur Taylor to be held
             on a restraint bench, without food, for multiple days, and
             Second, the use of such force was excessive and applied
             maliciously and sadistically for the very purpose of causing harm,
             and not in a good faith effort to achieve a legitimate purpose; and
             Third, as a direct result, the plaintiff was damaged.

      In determining whether the force was excessive, you must consider such
      factors as the need for the application of force, the relationship between
      the need and the amount of force that was used, and the extent of the
      injury inflicted, and whether the force was used to achieve a legitimate
      purpose or wantonly for the very purpose of causing harm.
      “Maliciously” means intentionally injuring another without just cause



                                        -11-
      or reason. “Sadistically” means engaging in extreme or excessive
      cruelty or delighting in cruelty.

      If any of the above elements has not been proved, then your verdict must
      be for the defendant Dave Dormire.

Appellant's App. 177. Compare this instruction to the model Eighth Circuit jury
instruction on deliberate indifference.

      Deliberate indifference is established only if there is actual knowledge
      of a substantial risk that the plaintiff (describe serious medical problem
      or other serious harm that the defendant is expected to prevent) and if
      the defendant disregards that risk by intentionally refusing or
      intentionally failing to take reasonable measures to deal with the
      problem. Mere negligence or inadvertence does not constitute deliberate
      indifference.

Eighth Circuit Manual of Model Jury Instructions (Civil) § 4.44 (2012). The
instructions require significantly different levels of culpability. By not providing a
deliberate indifference instruction, the district court led the jury to believe Taylor had
to show the prison officials denied him food maliciously and sadistically for the very
purpose of causing harm. In fact, the jury could have found for Taylor upon a
showing the prison officials were deliberately indifferent to his need to eat during the
time he was shackled. Given the facts of the case, I believe it is reasonably probable
the jury would have concluded differently had Taylor received the deliberate
indifference instruction.

       This is especially so given the prison officials were following Department of
Corrections Policy in not providing Taylor food. The jury may have concluded
because the prison officials were simply carrying out the Policy, they were not
injuring Taylor without just cause or reason, engaging in extreme or excessive
cruelty, or delighting in cruelty–in other words, not acting maliciously and


                                          -12-
sadistically. Nevertheless, the jury could reasonably have found the prison officials
knew of the significant risk to Taylor's health that followed from not feeding him, and
disregarded that risk by adhering to the Policy. Therefore, I believe Taylor has shown
the error omitting the instruction affected his substantial rights.

       Finally, Taylor must show "the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." Marcus, 130 S. Ct. at 2164. "Jury
instructions must fairly and adequately state the law, but 'we will not find error in
instructions simply because they are technically imperfect or are not a model of
clarity.'" Quigley v. Winter, 598 F.3d 938, 950 (8th Cir. 2010) (quoting Hastings v.
Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992)). In close factual
situations, "the standard of care and burden of proof have heightened importance and
can easily affect the jury's ultimate verdict." Wheeling Pittsburgh Steel, 254 F.3d at
714; see also United States v. Herron, 97 F.3d 234, 238 (8th Cir. 1996) (internal
citation and quotation marks omitted) ("[B]ecause it is unclear whether a properly
instructed jury would have found [the defendant] guilty . . . failure to correct the
district court's error could result in a miscarriage of justice and would seriously affect
the fairness, integrity, or public reputation of judicial proceedings.").

       Here, the jury was not instructed on the proper framework for analyzing and
remedying the alleged constitutional violation. Permitting the verdict to stand when
the jury may have found differently if given the required information would be a
miscarriage of justice.

       In sum, Taylor has satisfied the standard for plain error, and I would reverse
the judgment of the district court on this basis. I concur in the majority's conclusion
to reverse on the nominal damages instruction matter, and respectfully dissent from
the majority's decision not to address the deliberate indifference instruction matter.
                       ______________________________



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