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October 16, 1978

Valentine A. NEGRON et al., Plaintiffs,
Benjamin WARD etc., et al., Defendants

The opinion of the court was delivered by: WARD

Defendant Vito Ternullo, at the time of the acts complained of, was Superintendent of Fishkill Correctional Facility, which included Matteawan State Hospital for the Criminally Insane ("Matteawan"). *fn1" Following a jury trial, Ternullo moves pursuant to Rule 50(b), Fed.R.Civ.P., for judgment notwithstanding the verdict or, in the alternative, for a new trial, on that portion of the verdict finding that plaintiffs Valentine A. Negron, George Dunleavy, Edward Carvalho and Peter Perez, who at the time of the acts complained of were state prisoners confined at Matteawan, were denied due process, and consequently suffered mental anguish, suffering or outrage, by being retained on Ward 3, the "jail ward" at Matteawan, solely for punitive or disciplinary reasons, after being transferred, without any medical, psychiatric or protective justification, from Ward 6, an "open ward" at Matteawan, without ever being afforded a hearing. For the reasons hereinafter stated, the motion is denied.


On June 10, 1975, plaintiffs were confined on Ward 6. Ward 6 was an open dormitory ward consisting of a common room for sleeping, a day room and a porch. Patients assigned to this ward were permitted to leave the ward to work at jobs in the institution in exchange for small wages, to make purchases at the commissary, to engage in various institutional programs such as school and occupational therapy, and to attend psychological counselling. They also were permitted to engage in recreation and associate with the general inmate population in the gymnasium, in the institution's large yard, and in the mess hall during meals. *fn2"

 At approximately 4:30 P.M. on June 10, 1975, there was a disruption on Ward 6, leading to a confrontation between corrections officers and prisoners and ending in plaintiffs' being removed from Ward 6 and placed in seclusion on Ward 3. The incident began when one of the inmates on Ward 6, Robert O'Connor, became upset and began overturning chairs because he had not been given his medication. One of the officers on the ward "dropped the phone," a procedure which triggered an alarm to all officers assigned to emergency duty. Within a few minutes, defendant Leander McCall, a corrections officer, entered Ward 6 in response to the alarm. When McCall entered the ward, O'Connor had been calmed down by other patients. McCall began escorting O'Connor off the ward to get his medication. A dispute ensued when Negron, who was ward president, insisted on accompanying McCall, whom he distrusted because of his bad reputation among inmates. McCall told Negron to mind his business. Negron retorted that as ward president it was his business. Shouting escalated into physical contact between McCall and Negron, and other patients began crowding around. Additional officers responding to the alarm arrived to find McCall and Negron shouting and struggling and patients gathering in the doorway. These officers then became involved in a skirmish in which other inmates on the ward joined. The upshot of it all was that plaintiffs Negron, Dunleavy and Carvalho were forcibly removed from Ward 6 to Ward 3 and placed in seclusion. *fn3" A couple of hours later, plaintiff Perez, who was still upset and was thought to have been causing unrest amongst other inmates on Ward 6, was also taken to Ward 3 and placed in seclusion.

 Ward 3 consisted of two long corridors, one upper and one lower, laid out identically. The corridors were lined on either side with solid doors which locked from the outside and which led into a cell six feet by nine feet two inches.

 Patients housed on Ward 3 fell into two categories. "Census patients" were assigned to the ward on a residential basis and generally were not secluded. "Visiting patients" were assigned to another ward but were housed temporarily on Ward 3, usually in seclusion. A patient who was secluded was placed in a cell with the door locked from the outside.

 From June 10 to June 12, 1975, plaintiffs were "visiting patients" on Ward 3 and were secluded. Essentially, without going into the particular facts regarding the conditions of each plaintiff's confinement, seclusion was like solitary confinement in a strip cell. Each of the plaintiffs was stripped to his underwear and locked in a cell containing minimal accommodations such as a mattress and a toilet. Each plaintiff was thus physically and socially secluded from June 10, 1975 to June 12, 1975. *fn4"

 At trial there was extensive testimony as to the procedure followed in ordering seclusion, the purpose of using seclusion and possible adverse effects of seclusion. The procedure for ordering it was governed by General Order 21, which provided that patients could be secluded only for appropriate medical or surgical reasons or to prevent a patient from injuring himself or others. It further provided that seclusion could be authorized only by an order signed by a physician. According to internal rules of the institution, a seclusion order could be signed by a physician only upon a personal examination either before or immediately after the patient was taken to the seclusion ward, and a seclusion order would run only until 9:30 A.M. the next morning, at which time another written order of a physician would be required to extend seclusion. The maximum period of continuous seclusion could not exceed three hours in the daytime, and the patient had to be visited every hour, day and night.

 Dr. Frank L. Rundle, plaintiffs' expert psychiatrist, testified that the kind of behavior justifying seclusion would be conduct posing an immediate threat of serious harm to others or significant destruction of property. He explained that the secluded patient should be re-evaluated and spoken to immediately, and if the patient does not respond, then he should be treated with medication. No patient should be secluded for more than two hours because other methods of treatment are more effective *fn5" and seclusion can actually impede treatment and have other deleterious effects. For example, secluding a patient because of a violent outburst caused by a delusion that he was going to be hurt or might hurt someone else could intensify the delusions and hallucinations and make it more difficult to treat that patient. Or secluding a depressive, cutting him off from other people and activities, could make him more depressed and withdrawn, more involved with his ruminations, and more difficult to treat. Another patient might become frightened of being locked up and act in an aimless, violent or destructive manner. Dr. Rundle saw no justification for removing the clothes of a patient in seclusion. In response to the argument that the clothes must be removed to prevent their being used as a means for committing suicide, he stated that seclusion is absolutely contraindicated for a suicidal patient because isolation intensifies suicidal tendencies.

 In this case, an order secluding plaintiffs was signed on June 10, 1975 by Dr. Ruhiye Seyhun, an unlicensed physician who was not a psychiatrist, and was working as a clinical physician in the elderly and handicapped department at Fishkill Correctional Facility, of which Matteawan was a part. Dr. Seyhun testified that the standard procedure was for the corrections officers to ask her if it would be all right to seclude or strait-jacket a patient. She would examine the patient and if there were no physical or psychological reason not to, she would give her approval. *fn6" She explained that she would not give the corrections officers instructions, she would ask them for instructions. For example, she would ask the corrections officers what items should be put in the seclusion cell and whether the patient should be put in a restraining sheet. If she agreed with what the corrections officers wanted to do, she would fill out and sign the order. In fact, sometimes the corrections officers would fill out the order and she would simply sign it, if she agreed. In Dunleavy's case, Dr. Seyhun ordered seclusion for the stated reasons that he had been assaultive to officers and attempted to incite a riot events which she did not see and that he was aggressive although he had not been aggressive toward her. She wrote "strip cell," meaning no metal bed, sheets or blankets. She explained that the latter items are withheld to prevent a suicidal patient from hurting himself. In Dunleavy's case she took this precaution even though he appeared to her to be "normal," not suicidal, because she relied on the emotional status perceived by the officers.

 Seclusion was extended on June 11, 1975 by order of Dr. Atilla Cakir, an unlicensed psychiatrist assigned to Ward 3. He testified that he ordered continued seclusion on June 11 to calm plaintiffs and to permit continued observation so that he could make a more informed judgment as to whether they needed to be secluded. *fn7" Then on June 12 he had a conversation with Ternullo in which he told Ternullo "I cannot keep them in seclusion or anything else, I cannot do it."

 On the basis of the foregoing testimony, as well as the testimony of plaintiffs and corroboration from other witnesses and documents, the jury found that the seclusion of plaintiffs in strip cells from June 10, 1975 to June 12, 1975 was without medical, psychiatric or protective (I. e. to prevent the patient from injuring himself or others) justification, and that the seclusion of these patients without such justification constituted cruel and unusual punishment. The jury also found that the conditions and circumstances of the seclusion were repugnant to the conscience of mankind or violated evolving standards of human decency or involved unnecessary and wanton infliction of pain or suffering. *fn8" However, the jury found that defendant Ternullo was not responsible for the placement of plaintiffs in seclusion on June 10, 1975. *fn9"

 When plaintiffs were released from seclusion on June 12, 1975 they were confined on the upper level of Ward 3, the "jail ward," as "census patients" until late September. *fn10" There were approximately 15 people confined on this level at any given time. Although permitted out of their cells during the day, plaintiffs were isolated from important and normal institutional associations and activities, including all of the activities enumerated in note 2, Supra. For a period of several months they were prevented from associating with any inmates in the general population and prohibited from moving anywhere within the institution. As a result, they were not permitted to work at any institutional jobs, they were denied access to the institutional yard, they were prohibited from going to the gymnasium or to the auditorium for movies and institutional functions and they were denied the opportunity to go to the library, the commissary or any other institutional activity. Thus, they were forced to remain idle most of the time. Although they were eventually given access to certain activities, such opportunities were made available only gradually and on a limited basis. Defendants' own witness, Thomas L. Malnic, the corrections officer in charge of Ward 3 from 6:00 A.M. to 2:30 P.M., testified that plaintiffs were on the ward about four weeks before they began getting their programs back, and the programs they were given use of the small yard, television, ping pong, interviews with the psychiatrist were minimal in comparison with those provided to inmates in the rest of the institution.

 Dr. Rundle testified that involvement in institutional activities, such as those described in footnote 2, Supra, was a vital part of treating psychiatric patients. In addition, he asserted that when a patient is disciplined he should be told why he is being disciplined, and allowed to give his side of the story. If the patient is not given an opportunity to explain, the discipline cannot have a constructive effect and may have a destructive effect such as resentment, anger and a negative feeling toward the treatment staff.

 Dunleavy testified that in August he was asked if he would like to leave Ward 3, and he replied that he did not want to leave until they were all given a hearing justifying what had been done to them. In September his social worker asked him to send Mr. Ternullo a list of the programs he wanted, but he declined to do so because he believed that his attorneys had already informed Mr. Ternullo of what he wanted.

 Negron testified that he and Dunleavy tried to obtain a hearing and that he communicated with defendants Metz and Ternullo asking if he could get his programs back. Metz did not answer. Ternullo, by letter dated June 20, 1975, replied in part: "Because of your actions on June 10, your program in the general population has been restricted."

 Defendant Paul Metz, who was Deputy Superintendent of Security on June 12, 1975, testified that the decision to confine plaintiffs as census patients was an administrative decision to which he was a party and which involved the Chief of Psychiatric Services (Dr. Sweeney), the representative of the program area, and "of course conversations with Superintendent Ternullo." He did not recall plaintiffs' communicating with him about their programs and disclaimed responsibility over the programs, contending that those decisions were made by Ward Teams made up of a psychiatrist, a psychiatric nurse, a social worker, and the program coordinator, with input from the corrections officers working on the unit. He stated that there was such a team on Ward 3 and "to the best of his knowledge" that team made program decisions.

 Vito Ternullo testified that he was aware that plaintiffs had been made census patients, but that he did not know who made the decision. The standard operating procedure would have been for a team to make the decision, but he did not believe he was part of the team that made the decision. He was informed of the decision, but testified that he did not know the reason for it. He explained that a transfer from one ward to another would be made by a team for a programmatic or psychiatric reason. An inmate dissatisfied with his program could contact any number of people, including Ternullo, to whom the program director reported directly.

 In view of Metz' admission that he and Ternullo had been involved in the decision to retain plaintiffs on Ward 3 as census patients, and Ternullo's reply to Negron's inquiry as to why he was being retained on Ward 3, and the fact that Ternullo was Superintendent, and the program director reported directly to him, the jury could have rejected as incredible Ternullo's testimony that he did not know who made the decision to classify plaintiffs as census patients. In addition, the jury could have taken into account Ternullo's failure to specifically pinpoint which individuals were responsible for the decision to transfer plaintiffs and eliminate their programs. The jury also could have considered the failure to call as witnesses the Chief of Psychiatric Services (Dr. Sweeney), who was available, the Program Director, and members of the so-called Ward Team.

 The jury found that when the overall conditions of each plaintiff's confinement as a census patient on Ward 3 were compared to the conditions of his previous confinement on Ward 6, each plaintiff had suffered a substantial deprivation or a major negative change in the conditions of his confinement by being confined as a census patient on Ward 3 after June 12, 1975. The jury also found that plaintiffs were retained on the jail ward after June 12, 1975 solely for punitive or disciplinary reasons, that Ternullo was personally responsible for their being kept on the jail ward, and that Ternullo did not act in the good faith, reasonable belief that his actions did not violate plaintiffs' rights. *fn11" In addition, the jury found that plaintiffs would not have been punitively confined as census patients if they had had a hearing, and that, consequently, each of the plaintiffs suffered mental anguish, suffering or outrage as a result of being denied a hearing. *fn12" In compensation therefor, the jury awarded each plaintiff $ 125.00. Ternullo was not found liable for punitive damages.


 Ternullo asserts as alternative bases for the relief ...

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