The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, Chief Judge.
The matter was brought to trial on the issue of damages on February 7, 1972.
Before trial, the defendants argued a motion to vacate the default judgment. Since the basis for the motion was an assertion of mistake, inadvertence or excusable neglect on the part of the defendants, it was denied as not being timely filed within one year after the judgment as required by F.R. Civ. P. 60(b). See Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538 (C.A. 2, 1963).
Plaintiff alleged in his complaint that he was working in Graterford's weave shop at the rate of 69 cents ($.69) a day in May of 1966. At that time, by court order, he was transferred temporarily to the Eastern Correctional Institution in Philadelphia so that he might be held at a location closer to the Philadelphia courts, where he was scheduled for a hearing on a habeas corpus petition which he had pending there. When plaintiff was brought back to Graterford some unspecified time later, rather than being returned to the weave shop position he had held, he alleges that he was placed on the "run", which pays 15 cents ($.15) a day.
It is claimed that plaintiff has suffered the financial injury caused by his demotion because of racially discriminatory treatment by prison authorities. As a black inmate he was subject to one rule, which resulted in the loss of his position at 69 cents a day, while white inmates who were forced to leave the institution temporarily in similar circumstances maintained their jobs. Plaintiff refers in his complaint to one white inmate in particular who it is alleged was twice transferred to Eastern Correctional Institution in 1965, and each time upon his return to Graterford received his former job in the weave shop back at 69 cents a day.
By virtue of the default, the truth of these well-pleaded allegations is admitted. They may not be contested on the merits, and have the same effect as if established by proof. Thomson v. Wooster, 114 U.S. 104, 5 S. Ct. 788, 29 L. Ed. 105 (1885); Trans World Airlines, Inc. v. Hughes, 38 F.R.D. 499 (S.D.N.Y. 1965). Thus, our starting point in assessing damages in this case is necessarily the assumption that the defendants did conduct a racially discriminatory policy of employment within the prison to the detriment of the plaintiff.
This Circuit has recognized three types of damages which may be recovered under appropriate circumstances for a violation of 42 U.S.C. § 1983. Besides actual compensatory damages, the successful plaintiff may recover nominal damages which flow from the deprivation of valuable constitutional rights, as well as punitive damages. Basista v. Weir, 340 F.2d 74 (C.A. 3, 1965); Washington v. Official Court Stenographer, 251 F. Supp. 945 (E.D. Pa. 1966).
Defendants contend that damages should run only until September 12, 1966 because prison records indicate that he was called for assignment to the weave shop on that date but turned it down. They argue that the notation in the record must mean that plaintiff was offered his old job at 69 cents a day and refused it. In light of the fact that this offer followed plaintiff's initiation of this action by just a few weeks, we accept his testimony that the offer was for a position as janitor in the weave shop at 20 cents a day. His refusal of the position is understandable since he felt that he should have been earning more than three times that amount if employed in the weave shop,
and he was not required to accept the job because it would have further mitigated damages some 5 cents each day.
The court further finds that had plaintiff retained his 69 cents a day job, as a "preferred" job within the prison, he would have lost it as of December 15, 1969, when he was put in punitive segregation for infractions of prison rules.
Standard prison procedure governing at the time dictated that an inmate be punished by being demoted to a 15 cents a day job after such segregation.
Therefore, the plaintiff is entitled to compensatory damages for loss of wages for the period between July 26, 1966 and December 15, 1969, computed on the basis of the difference between 69 cents a day and 15 cents a day for a five-day work week. Since the evidence revealed that inmates only get paid for those days actually worked, the plaintiff may not recover for approximately five weeks of time during this period which his records reveal he spent in the hospital or court. Thus, plaintiff's recovery for loss of wages in this action will be $461.70.
Compensatory damages may also include a reasonable sum in addition to the amount of lost wages, because of collateral deprivations suffered because of plaintiff's drastically reduced income. See Urbano v. McCorkle, 334 F. Supp. 161, 169 (D.N.J. 1971). Plaintiff's uncontradicted testimony was that as a result of his losing his job in the weave shop he could not afford eyeglasses, dental plates and law books which he needed. He is entitled to a recovery for the delay caused in being able to obtain these items. Indeed, he may never have been able to obtain them.
Whether or not actual compensatory damage is present, a plaintiff in an action under 42 U.S.C. § 1983 may also recover nominal damages because the constitutional rights of a citizen are so valuable to him that an injury is presumed to flow from the deprivation itself. See Basista v. Weir, 340 F.2d 74 (C.A. 3, 1965); Wayne v. Venable, 260 F. 64, 66 (C.A. 8, 1919). In most cases when a public official denies rights that the citizen felt were secure under our Constitution, the result is hurt feelings, outrage, embarrassment or humiliation and nominal damages may be awarded for these natural consequences of lawless action by state officials. See Sexton v. Gibbs, 327 F. Supp. 134 (N.D. Tex. 1970), aff'd. 446 F.2d 904 (C.A. 5, 1971) (per curiam). Here, because of the existence of the default judgment, the court must consider plaintiff's right to equal protection under the law as provided in the Fourteenth Amendment to have been violated because ...