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April 28, 1982

KEVIN McKENNA Plaintiff,

The opinion of the court was delivered by: PRATT


In the early evening of March 1, 1981, 18 year old Kevin McKenna was stopped for a traffic violation. A routine computer check revealed that a bench warrant had been issued several months earlier because he had failed to pay a $ 150 fine which had been levied in an unrelated proceeding. McKenna was taken into custody, first to the local precinct and finally, at about 9:30 p.m., he was placed in the Nassau County Correctional Center (NCCC) at East Meadow.

 During his initial processing at the NCCC, one of the corrections officers told him that he had better be prepared to fight for his life because the other inmates would harm him. McKenna was assigned for the night to "tier B-1, front", a celled portion of the facility set aside for male, new arrivals who were under 21 years of age, a classification required by state regulation. Tier B-1, front consisted of a row of cells, each of which opened onto an eight foot wide corridor-like area that ran the entire length of the row of cells. When McKenna was placed in the tier, all the cells were occupied with two prisoners in each. He was given a mattress and told to use it for sleeping on the floor in the corridor-like area. Approximately 20 other inmates were also assigned to the same area.

 Soon after the entrance gate to tier B-1 was locked behind him, McKenna was set upon by a number of the prisoners who took property and his mattress from him and beat him continuously for a period of 45 minutes to an hour. McKenna testified that he cried out a number of times. All four guards on duty denied that any cries for help had been heard from tier B-1 that evening. They further testified, without challenge, that only bars and 20 to 30 feet of open space separated tier B-1 from the area where at least one, and as many as four, guards were stationed. Every half hour one of the guards walked an inspection tour of all of B floor, including tier B-1.

 The next morning, March 2, 1981, McKenna was taken before a Nassau County district judge who was conducting arraignments. When his parents appeared and paid his $ 150 fine, McKenna was released. Immediately following his release, McKenna went with his parents and lawyer to the district attorney's office where he filed a formal complaint about the severe beating he had received.

 An investigation was conducted by the district attorney's office. There was no record at the NCCC of any incident on the night in question; there was no record of any complaint having been made by McKenna to any of the guards or to anyone else prior to his being released from custody; McKenna was unable to identify from a photo spread of 59 pictures any of the people who had beaten him. For lack of evidence, therefore, the investigation was discontinued.

 McKenna, however, brought this suit against the warden of the NCCC and the County of Nassau, pursuant to 42 USC § 1983, seeking damages for the deprivation of his constitutional right to be safe and free from assaults and beatings by fellow inmates while he was in custody at the NCCC.

 During the trial, plaintiff withdrew his claim against the warden, apparently in an attempt to block defendants' presentation of evidence showing good faith on the part of the individual defendant. Without the individual defendant, good faith became irrelevant. Owen v. City of Independence, 445 US 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980).

 With Nassau County, a municipal corporation, as the only remaining defendant, the action was submitted to the jury on the liability portion of the bifurcated trial on three special verdicts by which the jury found:

 1. that plaintiff Kevin McKenna was assaulted and beaten on tier B-1 in substantially the manner he described;

 2. that the policy and practice of defendant County of Nassau for housing prisoners on tier B-1 was a proximate cause of plaintiff's injuries; and

 3. that deliberate indifference by defendant County of Nassau was a proximate cause of plaintiff's injuries. *fn1"

 The jury was instructed to approach special verdicts #2 and #3 separately, as presenting different views of the same circumstances. They were told to decide each of the two questions as if the other question had not been asked. In this way, the jury's findings were obtained based on two entirely different sources of potential liability, municipal policy and deliberate indifference.

 After the jury's special verdicts were returned, the parties stipulated that if a damage trial were held the total amount of damages, costs and attorney's fees that plaintiff would recover would be the sum of $ 25,000. It was further stipulated that if a new trial were to be required because the liability determinations were reversed on appeal, the $ 25,000 figure for damages, costs and attorney's fees ...

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