20-2415
`Walker v. Schult
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`UNITED STATES COURT OF APPEALS
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`FOR THE SECOND CIRCUIT
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`- - - - - -
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`August Term, 2020
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`(Argued: May 25, 2021
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`Decided: August 16, 2022)
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`Docket No. 20-2415
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`_________________________________________________________
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`ELLIS WALKER,
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`Plaintiff-Appellee,
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`- v. -
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`DEBORAH G. SCHULT, Warden, FCI Ray Brook, JACKII
`SEPANEK, Counselor, FCI Ray Brook,
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`Defendants-Appellants,
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`RUSSELL PERDUE, Warden, FCI Ray Brook, DAVID SALAMY,
`Unit Manager, FCI Ray Brook, DAVID PORTER, Associate
`Warden, FCI Ray Brook, ANNE MARY CARTER, Associate
`Warden, FCI Ray Brook, STEVEN WAGNER, Associate Warden,
`
`
`Walker v. Schult
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`UNITED STATES COURT OF APPEALS
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`FOR THE SECOND CIRCUIT
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`- - - - - -
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`August Term, 2020
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`(Argued: May 25, 2021
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`Decided: August 16, 2022)
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`Docket No. 20-2415
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`_________________________________________________________
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`ELLIS WALKER,
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`Plaintiff-Appellee,
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`- v. -
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`DEBORAH G. SCHULT, Warden, FCI Ray Brook, JACKII
`SEPANEK, Counselor, FCI Ray Brook,
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`Defendants-Appellants,
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`RUSSELL PERDUE, Warden, FCI Ray Brook, DAVID SALAMY,
`Unit Manager, FCI Ray Brook, DAVID PORTER, Associate
`Warden, FCI Ray Brook, ANNE MARY CARTER, Associate
`Warden, FCI Ray Brook, STEVEN WAGNER, Associate Warden,
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`FCI Ray Brook, J.L. NORWOOD, Regional Director, HARLEY
`LAPPIN, Director, Bureau of Prisons,
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`Defendants.*
`_________________________________________________________
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`Before: KEARSE, LYNCH, and CHIN, Circuit Judges.
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`Appeal by defendants Deborah G. Schult and Jackii Sepanek,
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`federal prison officials, from a judgment entered in the United States
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`District Court for the Northern District of New York following a jury trial
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`before Daniel J. Stewart, Magistrate Judge, awarding former prisoner Ellis
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`Walker $20,000 for mental and emotional injury in this action requesting,
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`inter alia, damages pursuant to Bivens v. Six Unknown Named Agents of
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`Federal Bureau of Narcotics, 403 U.S. 388 (1971), for his imprisonment in
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`overcrowded conditions that posed a substantial risk of serious damage
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`to his health or safety, to which appellants were deliberately indifferent,
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`in violation of his rights under the Eighth Amendment to the Constitution.
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`On appeal, appellants contend that the district court erred in denying their
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`motions for judgment as a matter of law on the ground (a) that a Bivens
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` *
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`The Clerk of Court is instructed to amend the official caption to
`conform with the above.
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`damages remedy is not available for such claims, or (b) that even if such
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`a remedy is available, appellants are entitled to qualified immunity.
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`Without addressing the Bivens question, we conclude that appellants are
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`entitled to judgment as a matter of law on the grounds (a) that in light
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`of the jury's findings that Walker had not proven any physical injury, the
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`Prison Litigation Reform Act precluded the award of damages for mental
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`or emotional injury, see 42 U.S.C. § 1997e(e); (b) that whether or not the
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`facts found by the jury sufficed to establish a violation of Walker's Eighth
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`Amendment rights, any award of nominal damages was precluded by
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`appellants' entitlement to qualified immunity; and (c) that as Walker had
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`been released from prison prior to judgment, his claims for injunctive
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`relief were moot.
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`Judgment against appellants reversed; remanded for dismissal
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`of the complaint.
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`MEGAN BEHRMAN, New York, New York (Blake
`Denton, William O. Reckler, Latham &
`Watkins, New York, New York, on the brief),
`for Plaintiff-Appellee.
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`LOWELL V. STURGILL JR., Civil Division, United
`States Department of Justice, Washington, DC
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`(Jeffrey Bossert Clark, Acting Assistant
`Attorney General, Brian M. Boynton, Acting
`Assistant Attorney General, United States
`Department of
`Justice, Washington, DC;
`Antoinette T. Bacon, Acting United States
`Attorney for the Northern District of New
`York, Albany, New York; Barbara L. Herwig,
`Civil Division, United States Department of
`Justice, Washington, DC, on the brief), for
`Defendants-Appellants.
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`Samuel Weiss, Washington, DC (for Amicus Curiae
`Rights Behind Bars), David M. Shapiro,
`Chicago, Illinois (for Amicus Curiae Roderick
`& Solange MacArthur Justice Center), filed a
`brief in support of Plaintiff-Appellee.
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`KEARSE, Circuit Judge:
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`Defendants Deborah G. Schult
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`and
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`Jackii Sepanek
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`("Defendants"), federal prison officials, appeal from a judgment entered in
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`the United States District Court for the Northern District of New York
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`following a jury trial before Daniel J. Stewart, Magistrate Judge, awarding
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`former prisoner Ellis Walker $20,000 for mental and emotional injury in
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`this action requesting, inter alia, damages pursuant to Bivens v. Six
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`Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
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`for his imprisonment in overcrowded conditions that posed a substantial
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`risk of serious damage to his health or safety, to which Defendants were
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`deliberately indifferent, in violation of his rights under the Eighth
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`Amendment to the Constitution. On appeal, Defendants contend that the
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`district court erred in denying their motions for judgment as a matter of
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`law on the ground (a) that a Bivens damages remedy is not available for
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`such claims, or (b) that even if such a remedy is available, Defendants are
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`entitled to qualified immunity. Without regard to the Bivens question, we
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`conclude for the reasons discussed below that Defendants are entitled to
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`judgment as a matter of law on the grounds (a) that the Prison Litigation
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`Reform Act ("PLRA") precluded the award of damages to Walker for
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`mental or emotional injury because the jury found he had not proven that
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`he suffered any physical injury, see 42 U.S.C. § 1997e(e); (b) that if a
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`constitutional violation by these Defendants was proven, their entitlement
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`to qualified immunity foreclosed an award of nominal damages; and
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`(c) that as Walker had been released from prison prior to judgment, his
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`claims for injunctive relief were moot.
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`I. BACKGROUND
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`In November 2008, Walker, a federal prisoner, was sent to the
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`Federal Correctional Institution Ray Brook in New York ("FCI Ray Brook"
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`or "Ray Brook"), where he was placed in a cell (or "Cell 127") with five
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`other inmates. In March 2011, he commenced the present action pro se
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`seeking "relief and/or damages" for the conditions of his confinement at
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`Ray Brook from the start of that confinement--having made numerous
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`complaints to the warden and other prison staff, both in person and
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`through the official prison grievance system, with no success. (Complaint
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`at 1.) The conditions of which Walker complained included lack of
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`sufficient space in the 190.62-square-foot Cell 127 to accommodate six
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`prisoners, lack of ventilation, and lack of heat in winter; inadequate bed
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`size for Walker (who was 6'4" tall and weighed 255 pounds) and lack of
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`a ladder for him to access the upper bunk to which he was assigned; and
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`unsanitary cell conditions generated by his cellmates, and exacerbated by
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`the denial of sufficient cleaning supplies.
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`Walker requested damages, an uncrowded cell, and a reduction
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`of his prison term by five times the number of days of his housing in Cell
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`127. In April 2011, Walker was moved to a two-man cell, having been in
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`Cell 127 for 880 days.
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`Walker's case was eventually tried in 2020. The jury did not
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`find that Walker had suffered any physical injury. However, it found that
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`his "imprisonment in Cell 127 . . . posed a substantial risk of serious
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`damage to his health or safety," to which Schult and Sepanek had been
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`"deliberately indifferent," and it awarded him compensatory damages of
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`$20,000. (Jury Verdict Form at 2, 4.) On this appeal, Defendants do not
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`challenge the jury's factual findings or the sufficiency of the trial evidence
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`to support them. Walker's detailed allegations--which were the subject of
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`evidence at trial (see Part I.C. below)--have been described in prior
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`opinions of the district court and this Court, see Walker v. Schult, No.
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`9:11-CV-0287, 2012 WL 1037441 (N.D.N.Y. Jan. 20, 2012) (Report and
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`Recommendation of Magistrate Judge Randolph F. Treece) ("Walker I"),
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`adopted, 2012 WL 1037442 (N.D.N.Y. Mar. 27, 2012), affirmed in part, vacated
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`and remanded in part, 717 F.3d 119 (2d Cir. 2013) ("Walker II"), familiarity
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`with which is assumed.
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`A. The Motion To Dismiss for Failure To State a Claim
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`Walker's pro
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`se complaint named nine
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`individuals as
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`defendants, including Schult who was the warden at FCI Ray Brook
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`during most of Walker's confinement there; Russell Perdue, who became
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`Ray Brook's warden just weeks before Walker commenced this action; and
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`Sepanek, who was "counselor" in Walker's area at Ray Brook and who was
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`in charge of distributing cleaning supplies. The other defendants were
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`Ray Brook's former unit manager David Salamy, three Ray Brook associate
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`wardens, and two United States Bureau of Prisons ("BOP") officials who
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`were not stationed at Ray Brook. The defendants moved to dismiss the
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`complaint, contending principally that Walker had not exhausted his
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`administrative remedies and that his complaint failed to state an Eighth
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`Amendment claim.
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`The motion
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`to dismiss was
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`referred,
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`for
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`report and
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`recommendation, to Magistrate Judge Randolph F. Treece who stated that
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`the defendants' exhaustion challenge could not be resolved on the face of
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`the complaint, but recommended that the complaint be dismissed for
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`failure to state a claim. Judge Treece noted that in order to state a valid
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`claim under the Eighth Amendment based on the conditions of his
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`confinement, a plaintiff must set out facts plausibly indicating, inter alia,
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`that "the conditions were so serious that they constituted a denial of the
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`'minimal civilized measure of life's necessities,'" Walker I, 2012 WL
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`1037441, at *5 (quoting Wilson v. Seiter, 501 U.S. 294, 297-99 (1991)). The
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`magistrate judge considered each aspect of the conditions of which Walker
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`complained and found that none, singly or in combination, reached the
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`level of an Eighth Amendment violation. See Walker I, 2012 WL 1037441,
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`at *5-*8. The recommendation to grant defendants' motion to dismiss the
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`complaint for failure to state a claim was summarily accepted by the
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`district court, and the complaint was dismissed.
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`Walker filed an appeal pro se; counsel subsequently appeared
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`for him (and thereafter continued to represent him in the district court).
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`In Walker II, this Court vacated the dismissal of the complaint, except as
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`to the two BOP officials who were not alleged to have had personal
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`involvement in the claimed constitutional violation, and whose dismissal
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`was not challenged on appeal. See 717 F.3d at 123 n.4, 130. We partly
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`summarized Walker's plausible factual allegations as to the conditions
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`knowingly allowed by the other seven defendants as follows:
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`twenty-eight months, he was
`[F]or approximately
`confined in a cell with five other men, with inadequate
`space and ventilation, stifling heat in the summer and
`freezing cold
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`the winter, unsanitary conditions,
`including urine and
`feces splattered on
`the
`floor,
`insufficient cleaning supplies, a mattress too narrow for
`him to lie on flat, and noisy, crowded conditions that
`made sleep difficult and placed him at constant risk of
`violence and serious harm from cellmates.
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`Id. at 126. We noted that it was well settled that a prisoner's Eighth
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`Amendment right not to be subjected to cruel and unusual punishment
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`could be violated by,
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`inter alia, prolonged exposure
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`to extreme
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`temperatures without adequate ventilation; conditions that prevent sleep,
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`which is critical to human existence; unsanitary conditions in a prison cell;
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`and conditions that place a prisoner at a substantial risk of serious harm
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`from other inmates--as well as by overcrowding if combined with other
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`adverse conditions. See id. at 126-29. As Walker plausibly alleged those
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`conditions, as well as deliberate indifference by the seven defendants on
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`site at FCI Ray Brook, we held that he "ha[d] plausibly alleged cruel and
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`unusual punishment in violation of the Eighth Amendment." Id. at 126.
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`We noted that "further facts [we]re required" for a determination of the
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`defendants' claim of entitlement to qualified immunity. Id. at 130.
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`B. Pretrial Proceedings on Remand
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`On remand, the defendants made several motions for summary
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`judgment dismissing the complaint. First, they contended that Walker had
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`not exhausted his administrative remedies as to some of his complaints.
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`The district court denied this motion, ruling that Walker asserted a single
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`multi-faceted claim about prison conditions and that he had not asserted
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`new, unexhausted claims. See Decision and Order dated December 11,
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`2014. A year later, the defendants sought summary judgment on the
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`grounds that they were entitled to qualified immunity from Walker's
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`claims and that the relief requested by Walker was precluded by the
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`PLRA, citing 42 U.S.C. § 1997e(e). As discussed in Part II.B.2.a. below, the
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`court denied the motion in a Memorandum-Decision and Order dated
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`August 9, 2016, finding that there were genuine issues of material fact to
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`be tried. See Walker v. Schult, No. 9:11-CV-0287, 2016 WL 4203536
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`(N.D.N.Y. Aug. 9, 2016) ("Walker III"). Walker thereafter agreed to the
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`dismissal of his claims against the remaining defendants other than
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`Sepanek, Schult, and Schult's successor Perdue.
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`The defendants' third summary judgment motion argued that
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`under the Supreme Court's 2017 decision in Ziglar v. Abbasi, 137 S. Ct.
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`1843 (2017), a Bivens remedy was unavailable to Walker because his claims
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`present a new context and because special factors counsel against
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`expanding the Bivens remedy to this context. This motion was made in
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`March 2019, two months before the then-scheduled start of trial; the
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`district court summarily denied it as untimely. Thereafter, the parties
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`consented to have the trial conducted before a magistrate judge, and the
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`case was reassigned to Judge Stewart.
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`C. The Trial Evidence
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`Walker's claims against Schult, Sepanek, and Perdue were tried
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`in January 2020. The evidence included testimony from Walker and a
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`former cellmate, from Schult, Sepanek, Perdue, and other former FCI Ray
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`Brook employees, and from two experts called by Walker.
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`Walker and his former Cell 127 cellmate Furman Odom
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`described crowded, noisy, unsanitary, and unsafe conditions in the cell,
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`and threats of violence from their fellow cellmates. Walker testified that
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`because of the overcrowding, there were "numerous fights" in the cell
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`(Tr. 126, 156), as the lack of space made it easy to "bump up against"
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`cellmates or their property, and his cellmates were "just looking for a
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`reason [to fight], just being crowded in the cell like that" (id. at 120-21,
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`158; see also id. at 161-62 ("Being in the crowded space, . . . they would
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`just fight, and any little thing would trigger anybody off.")). He described
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`instances in which trivial inadvertent actions--or sensible comments such
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`as objections to urine on the cell floor--triggered violent attacks with fists
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`or makeshift knives. (See, e.g., id. at 121-26.)
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`Odom likewise testified that the "crowded," "stuffy," and
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`"noisy" conditions in Cell 127 led to arguments that turned into physical
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`fights, which were "mostly about space." (Id. at 375-76.) Because of the
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`potential for violence, Odom "slept with a weapon[,] . . . a sharpened
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`toothbrush." (Id. at 405.)
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`Walker stated that with "six of us crowded in th[e] cell," the
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`cell "was never clean"; there was always food on the floor, urine on and
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`around the one usable toilet, and pervasive offensive smells. (Tr. 138-39.)
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`Walker and Odom testified that they were not given adequate cleaning
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`supplies (Walker was once without cleaning supplies for a month (see id.
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`at 143)), and that when supplies were made available, the supplies were
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`"watered down" (id. at 390), not strong enough to actually get the cell
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`clean (see id. at 141-42).
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`Walker also testified about his persistent requests to Sepanek
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`and Schult for more cleaning supplies or for a transfer to a different cell.
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`"[T]ime after time," Walker asked Sepanek to move him out of Cell 127
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`and into a two-man cell, but Sepanek refused. (Id. at 259.) Walker said
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`he seemed to be "at the bottom" of Sepanek's list, and never moving up.
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`(Id.; see also id. at 236.) Sepanek's own testimony supported Walker's
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`observation. She testified that she had assigned Walker to a top bunk in
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`Cell 127 and had the power to move him to a lower bunk or to a two-man
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`cell (see id. at 653-55)--a two-man cell generally being "more favorable than
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`six-man cells" because in a six-man cell "one inmate could be ganged up
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`on by five different inmates" (id. at 665-67). But when "beds would open
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`up in the two-man cells," Walker was not moved because Sepanek allowed
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`the remaining occupant to choose his new cellmate (id. at 667-68).
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`Walker testified that in addition to making in-person requests
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`of and complaints to Schult and Sepanek, he filed several rounds of
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`complaints through the FCI Ray Brook grievance system, with no greater
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`success. For example, in his initial, first-level grievance, directed to
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`Sepanek during his first year in Cell 127, he complained that the cell was
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`"so crowded" that he could not "move around without saying excuse me
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`a thousand times a day"; that "because there [we]re so many gangs" and
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`no "duress buttons" to call for help when there was a fight, "someone
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`[wa]s going to be hurt very bad"; and that "[w]ith this overpopulation and
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`crowded living conditions, someone is going to get killed." (Tr. 156-57;
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`see also id. at 219 (the entire prison was crowded).) Walker testified that
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`all of his complaints "derive[d] from overcrowding the cell." (Id. at 226.)
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`Sepanek testified that she could have moved Walker to a
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`different cell in response to his grievance, but she moved other inmates
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`instead. (See, e.g., Tr. 678, 687, 700-02.) After two weeks during which
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`she "didn't take any steps to resolve Mr. Walker's concerns" (id. at 683),
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`she sent Walker a response of "'[u]nable to resolve'" (id. at 681; see also id.
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`at 158-59 (Walker testifying that "'[u]nable to resolve'" was Sepanek's only
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`response to his grievance)).
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`Thereafter, Walker pursued his grievance by appealing
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`Sepanek's non-decision first to Schult, next to the regional BOP office, and
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`then to the BOP central office--all on forms he obtained from Sepanek.
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`(See Tr. 688-94.) The only response Walker received from Schult was a
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`statement that
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`"FCI Ray Brook is able to accommodate the inmates
`currently housed here while continuing to operate a safe
`and secure institution.
` Staff effectively manage the
`institution
`through sound correctional management
`practices, and the safety and security of staff and inmates
`remain our highest priority."
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`(Id. at 163.) Schult never spoke with Walker about his grievance, and she
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`did not inspect his cell. (See id. at 164-65.)
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`Walker remained housed in Cell 127 until shortly after Schult
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`was replaced by Perdue as warden. Sepanek acknowledged that in all,
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`while Walker was in Cell 127, he had a total of 38 different cellmates,
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`only one of whom occupied that cell longer than Walker. (See id. at 698.)
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`Schult, Sepanek, and other former FCI Ray Brook employees
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`contradicted Walker's account of the conditions in Cell 127 and his
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`attempts to complain about those conditions. They testified that Cell 127
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`was not, and could not have been, as dangerous, dirty, loud, and hot as
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`Walker claimed. Schult and Sepanek also testified that they did not recall
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`Walker complaining to them about the conditions in Cell 127 or requesting
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`to move into a two-man cell. (See, e.g., Tr. 675-76, 841.)
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` Philip Hamel, Ray Brook's former safety manager, testified
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`with respect to certain requirements of the American Correctional
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`Association ("ACA"), an industry organization that set mandatory and
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`recommended standards for safe and secure confinement in prisons. The
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`BOP required prisons in the federal system to be accredited by the ACA;
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`Hamel had been Ray Brook's ACA accreditation manager. FCI Ray Brook
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`was required to comply with ACA's mandatory standards and was
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`"strongly encouraged to comply with" those that were nonmandatory.
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`(Tr. 597.)
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`One of the ACA nonmandatory standards was that a cell
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`should have a minimum of 25 square feet of unencumbered, usable space
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`per inmate (see Tr. 467). Major governmental or professional entities, such
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`as the New York Department of Corrections and the United States Public
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`Health Service, recommended that a jail or prison cell have at least 50 or
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`60 unencumbered square feet per inmate, as "the minimal amount of free
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`space that people need . . . in order to maintain normal psychological
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`functioning."
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`(Id. at 963.)
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` Of all
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`the relevant groups, ACA's
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`recommended minimum was the lowest, at 25 square feet per prisoner.
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`(See id.)
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`Hamel testified that the six-man cells were created at Ray
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`Brook in 2000 when it was receiving an influx of prisoners for whom it
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`did not have enough cells. (See Tr. 639.) He and former unit manager
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`Salamy testified that the six-man cells were improvised by combining two
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`small adjacent cells, removing the wall between them, and adding another
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`bunk bed. (See id. at 641-42, 1056 (there "were two two-man cells,
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`designed for four inmates, but they took down the center wall and simply
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`added a bunk").) The parties stipulated that the dimensions of Cell 127
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`totaled 190.62 square feet (see, e.g., id. at 470-71); and at trial it was
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`calculated
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`that Cell 127's
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`"unencumbered space"--i.e.,
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`"space not
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`encumbered by furnishings or fixtures" including beds, toilets, sinks,
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`desks, and lockers (id. at 467)--totaled 99.07 square feet (see id. at 473).
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`Thus, for six inmates (and with no space allotted for chairs) the
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`unencumbered space in Cell 127 was only some 16.51 square feet per
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`prisoner. (See id. at 473-75.)
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`One of Walker's expert witnesses was a professor who had 50
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`years' experience working in corrections, including being the warden in
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`a New York correctional facility, the chief executive officer of the
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`Pennsylvania prison system (which at the time was the fifth largest prison
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`system in the United States), and the commissioner of corrections in New
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`York City. Having reviewed, inter alia, the dimensions and photographs
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`of Cell 127, he testified that it was "one of the most severely overcrowded
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`cells or . . . multiple occupancy housing units [he had] ever observed"
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`(Tr. 482). He noted that "16.5 square feet per person is [a] four-foot
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`square. . . . We're talking about each man having a four[-]foot square.
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`That's pretty tight." (Id. at 528.)
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`Ray Brook records showed that of the 880 days when Walker
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`was housed in Cell 127, there were only 39 days when it housed four
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`prisoners; and the longest period of continuous four-man occupancy was
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`11 days. (See id. at 476-77.)
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`Walker's other expert witness was a physician and professor
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`who had been specializing in prison psychiatry and prison mental health
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`since 1967. He had been, inter alia, the director of mental health for the
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`Massachusetts prison system for a decade; for another decade he was the
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`principal investigator in an experimental program in the San Francisco
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`jails that "reduce[d] the in-house violence to zero" (Tr. 954). He opined
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`that the combination of conditions to which Walker testified--to wit,
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`"overcrowding in the cell," "grossly unsanitary conditions in the cell,"
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`"exposure to extremes of heat and lack of adequate ventilation," "chronic
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`and severe sleep deprivation," and "the ongoing constant fear and anxiety"
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`of being "assaulted or even killed by one of one's cellmates," especially
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`considering
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`the 2½-year duration--"constituted cruel,
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`inhuman, and
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`degrading treatment or punishment" amounting to "a form of torture." (Id.
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`at 958, 962; see, e.g., id. at 956-62; id. at 960 ("psychological torture" can be
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`"even more painful than . . . physical torture").)
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`After Walker rested his case and again after the close of all the
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`evidence, the defendants moved pursuant to Fed. R. Civ. P. 50 for
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`judgment as a matter of law on the grounds, inter alia, that a Bivens action
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`is not available for a conditions-of-confinement claim such as that asserted
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`by Walker, and that in any event Schult, Perdue, and Sepanek were
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`entitled to qualified immunity. The court reserved decision.
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`D. The Jury's Verdict
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`The case was submitted to the jury in two stages. First the
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`jury was given a verdict form that asked initially:
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`a
`the Plaintiff, Ellis Walker, proven by
`Has
`preponderance of the evidence, that his imprisonment in
`Cell 127 denied him the minimal civilized measure of
`life's necessities or basic human needs or that the
`conditions in Cell 127 posed a substantial risk of serious
`damage to his health or safety?
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`(Jury Verdict Form, Part I.1. (emphasis added).) The jury, instructed
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`simply to check "Yes" or "No," answered this question "Yes" (id.), which
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`did not reveal which of the presented alternatives it had found (or
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`whether it had found both).
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`In response to additional questions on that form, the jury found
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`that Walker had proven that Schult and Sepanek--but not Perdue--had
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`been "deliberately indifferent to [Walker] in violation of [Walker's] Eighth
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`Amendment rights" (id. Part I.2.), and that the "actions" of Schult and
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`Sepanek--but not Perdue--"were a proximate cause of an injury to" Walker
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`(id. Part II.1.). As to the actions of the defendants whom the jury
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`identified as deliberately indifferent and as causing Walker injury, the jury
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`was asked:
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`Do you find by a preponderance of the evidence that
`[Walker] suffered a physical injury as a result of th[at]
`conduct . . . ?
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`(Id. Part III.1. (emphasis added).) The jury answered "No." (Id.) Finally,
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`the verdict form asked:
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`Considering the elements in the Court's instructions with
`regard to compensatory damages, what amount of damages
`do you award to
`.
`.
`. Walker for violation of his
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`constitutional rights? (Note: First, that an award of
`compensatory damages may
`include damages
`to
`compensate for physical harm as well as pain, mental
`anguish, emotional distress, personal humiliation, and other
`such suffering . . . .).
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`(Id. Part III.2. (emphases added).)
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` The language following "Note"
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`reiterated the court's oral instructions to the jury (see Tr. 1157-58). The
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`jury awarded $20,000.
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`After answering the questions on the Jury Verdict Form, the
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`jury was given special interrogatories in aid of the court's ultimate
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`decision as to whether Schult or Sepanek was entitled to qualified
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`immunity. First, the jury was asked to identify which of five claimed
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`"conditions of cell 127" it had found deprived Walker "of his basic life
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`necessities or posed a substantial risk of serious damage to his health or
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`safety"; the five conditions listed were:
`
`a. overcrowding/lack of space
`b. lack of sanitation/cleaning supplies
`c. threats of violence/lack of safe living conditions
`d. inability to sleep
`e. excessive heat or lack of ventilation.
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`(Court Exhibit 6 (emphasis added).) Of these possibilities, the jury
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`responded that it had found only two: "[a.] overcrowding/lack of space"
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`and "[c.] threats of violence/lack of safe living conditions." (Special
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`Interrogatory Answer ("Int.") 1.)
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`In response to additional questions, the jury found that neither
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`Schult nor Sepanek "establish[ed] she was unaware of" either of those two
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`conditions (Ints. 2-3 (emphasis in original)), and that neither Schult nor
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`Sepanek "establish[ed] that she reasonably responded to [Walker's]
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`complaints about the conditions" of Cell 127 (Ints. 4-5).
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`E. The Court's Posttrial Rulings
`
`In a Post-Trial Decision and Order dated May 29, 2020, see
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`Walker v. Schult, 463 F.Supp.3d 323 (N.D.N.Y. 2020) ("Walker IV"), the
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`district court turned to the defendants' Rule 50 motions for judgment as
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`a matter of law, noting that the motions by Perdue were moot because the
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`jury had ruled in his favor. Schult and Sepanek pursued dismissal on the
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`grounds that a Bivens damages remedy was not available for claims such
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`as those here; that even if a Bivens damages remedy were theoretically
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`available, and if the trial evidence supported a determination that Walker
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`had been denied an Eighth Amendment right to be moved to a less
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`crowded cell--which Defendants disputed--such a right had not been
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`clearly established, and thus Defendants were entitled to qualified
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`immunity from claims for damages; and that if they did not have qualified
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`immunity, the damages awarded by the jury should be set aside and
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`judgment entered only for nominal damages of $1 because, in light of the
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`jury's finding that Walker had not proven any physical injury, an award
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`of damages for his mental and emotional injury was foreclosed by the
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`PLRA in 42 U.S.C. § 1997e(e). The court rejected each argument.
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`As relevant to our decision here, the district court, after
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`concluding that a Bivens remedy was available, see Walker IV, 463
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`F.Supp.3d at 329-32, concluded in part that neither Schult nor Sepanek was
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`entitled to qualified immunity. It found (see Part II.C. below) that a
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`prisoner's right to "living conditions that were safe and humane and did
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`not deprive him of basic human needs" had been clearly established at the
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`time of Walker's confinement in Cell 127. Id. at 337 (citing Farmer v.
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`Brennan, 511 U.S. 825 (1994), and Rhodes v. Chapman, 452 U.S. 337 (1981)).
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`And in light of the jury's findings that Schult and Sepanek "had actual
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`knowledge of the conditions which posed a serious risk to [Walker's]
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`health and safety, and that they were deliberately indifferent to that risk,"
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`id., they had not proven that their conduct was objectively reasonable, id.
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`at 337-38.
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`The court rejected Defendants' contention that if they were not
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`entitled to qualified immunity, the judgment against them should be
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`reduced to one for $1 as nominal damages because of the § 1997e(e) bar
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`of compensatory damages for emotional and mental injury in light of the
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`jury's finding of no physical injury. Walker, although apparently not
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`contesting the proposition that § 1997e(e) imposes such a bar, argued that
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`Defendants had waived that argument by failing to assert it in their
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`answers as an affirmative defense. As described in Part II.B.2. below, the
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`district court agreed that the PLRA barrier had been waived.
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`Judgment was entered in favor of Walker against Schult and
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`Sepanek for $20,000.
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` See Judgment, May 29, 2020.
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` Although the
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`complaint had also asked for various forms of injunctive relief, those
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`requests had become moot. Walker had been transferred from Cell 127 to
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`a two-man cell in 2011, a month after filing this action; and prior to trial,
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`he had been released from prison. (See Tr. 168; see also Dkt. No. 119
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`(Walker's change-of-address letter to the district court, dated March 30,
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`2016).)
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`II. DISCUSSION
`
`On this appeal, Schult and Sepanek do not challenge the factual
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`findings made by the jury or the sufficiency of the evidence to support
`
`those findings. Rather, they contend that the district court should have
`
`granted judgment as a matter of law in their favor either because a Bivens
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`damages remedy was unavailable for Walker's claim based on being
`
`housed in an overcrowded cell, or because they were entitled to qualifi
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