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NOLLEY v. COUNTY OF ERIE

August 20, 1992

LOUISE K. NOLLEY, Plaintiff, -vs- COUNTY OF ERIE; THOMAS HIGGINS, Sheriff; JOHN DRAY, Superintendent; and JANE O'MALLEY, Nurse, Defendants.

CURTIN


The opinion of the court was delivered by: JOHN T. CURTIN

BACKGROUND

In this court's detailed decision of October 31, 1991, Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991), the court found that four defendants violated a number of plaintiff Louise K. Nolley's statutory and constitutional rights. The defendants named were Erie County, Sheriff Thomas Higgins, Superintendent John Dray, and Nurse Jane O'Malley. Id. at 717. The court's findings were set forth in abbreviated form at the end of its decision, as follows:

 I. Red Sticker Policy

 A. Defendants' Red Sticker policy violated plaintiff's privacy rights under article 27-F of New York's Public Health Law and [Commission of Correction] [("]CoC[")] regulations.

 B. Defendants' red sticker policy also violated plaintiff's constitutional right to privacy. The policy was not reasonably related to legitimate penological interests.

 II. Segregation

 A. Defendants' policy under which plaintiff was automatically segregated in Female Delta violated plaintiff's privacy rights under article 27-F of the Public Health Law and CoC regulations.

 B. This policy decision also violated plaintiff's constitutional right to privacy. The policy was not reasonably related to legitimate penological interests.

 C. This policy also violated plaintiff's rights under the due process clause.

 D. Defendants' segregation policy did not violate plaintiff's equal protection rights.

 III. Conditions of Confinement

 The conditions of confinement which plaintiff was subjected to in Female Delta, although deplorable, did not violate plaintiff's Eighth Amendment rights.

 IV. Law Library and Religious Services

 Plaintiff was deprived of her constitutional right of access to courts. This deprivation was based on an ad hoc policy implemented by Superintendent Dray and was not reasonably related to legitimate penological interests.

 Plaintiff was also deprived of her First Amendment right to access congregate religious services. This deprivation was also based on an ad hoc policy implemented by Superintendent Dray and was not reasonably related to legitimate penological interests.

 V. Rehabilitation Act

 There was no violation of the Rehabilitation Act because ECHC did not receive "Federal financial assistance" under the Act.

 Id. at 743. Despite these findings, the court at that time declined to award either monetary or injunctive relief as sought by the plaintiff. Id. at 743-44. The court will now take up those issues.

 Given the court's detailed findings of fact in its prior order, id. at 717-25, there is no need to repeat those findings here.

 DISCUSSION

 I. INJUNCTIVE RELIEF

 Plaintiff has sought injunctive relief to eliminate the Eric County Holding Center's ("ECHC") red sticker and automatic segregation policies. This relief, however, is unnecessary at this time. The court is very pleased with the immediate response made by defendants to change the challenged policies. Not only were the red sticker and automatic segregation policies dropped at once by the County, see Item 67, but Sheriff Higgins has now informed the court that all departmental employees have received training in "Infectious/Contagious Disease Control." Item 75. All employees in 1992 will receive ongoing classroom instruction in universal precautions and the new Erie County Sheriff's Department policy and procedure to control infectious and/or contagious diseases. See Items 75-78. This is an excellent first step and appears to meet the court's major concerns as expressed in Nolley. The court very much appreciates this prompt response.

 II. DAMAGES

 The issue of damages for plaintiff is considerably more complicated. In my prior order, I left unresolved whether any of the defendants might be entitled to qualified immunity, and the appropriate measure for damages. Nolley, 776 F. Supp. at 744. By letter of December 18, 1991, defendants informed the court that they would "not attempt to argue that defendants are immune from an award of monetary damages in this action." Item 68 at 2. Thus, there remain no issues of immunity to be disposed of prior to determining damages on each of plaintiff's claims.

 A. Compensatory Damages

 1. Privacy

 Plaintiff seeks to recover presumed damages for the injury to her privacy. Defendants argue that presumed damages may not be awarded for the violations proved by plaintiff. Plaintiff must show actual injury, defendants contend; and since plaintiff has been unable to show such injury for her privacy claims, only nominal damages should be awarded.

 To determine an appropriate measure of damages, the court must first decide whether presumed damages are proper in these circumstances. In arguing for presumed damages, plaintiff relies chiefly on language from the case of Memphis Community School District v. Stachura, 477 U.S. 299 (1986). In Stachura, the Supreme Court reviewed the question whether damages under § 1983 could be awarded based on the perceived value of the constitutional right that had been abridged. The Court held that they could not. Id. at 310. Damages under § 1983 are to be decided based on the principles of common law tort. Id. at 306. Such damages, aside from those that are punitive, are designed to compensate the plaintiff for the injury caused by defendants' breach of duty. Id. where no injury is present, no compensatory damages may be awarded. Id. at 308.

 Although there must be an "actual injury" to recover under § 1983, the Court found that this requirement was not at odds with the doctrine of presumed damages, because presumed damages are compensatory, even if the injury they are designed to compensate for can only be presumed to have occurred.

 When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. See Carey [v. Piphus], 435 U.S. [247,] 262 [(1978)]; cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 760-761 (1985) (opinion of Powell, J.); Gertz v. Robert Welch, Inc., [418 U.S. 323,] 349 [(1974)]. In those circumstances, presumed damages may roughly approximate the harm that plaintiff suffered and thereby compensate for harms that may be impossible to measure.

 Stachura, 477 U.S. at 310-11. Based on this language, plaintiff argues that the injuries to plaintiff's privacy are of the kind that are "likely to have occurred but difficult to establish . . . ." Id. at 311.

 There is an initial difficulty with plaintiff's argument. The cases cited by the Court in the just-quoted passage from Stachura--Carey, Dun & Bradstreet, and Gertz --discussed presumed damages only for the tort of defamation per se. In Gertz, the Court, weighing countervailing interests under the First Amendment, disallowed presumed damages in defamation cases when liability was not "based on a showing of knowledge of falsity or reckless disregard for the truth," i.e., actual malice. Gertz, 418 U.S. at 349. This holding was modified, however, in Dun & Bradstreet, where the Court held that presumed damages are permitted in defamation cases, even without a showing of actual malice, when the defamatory statements do not involve matters of public concern. Dun & Bradstreet, 472 U.S. at 763. See Davis v. Ross, 107 F.R.D. 326, 329-30 (S.D.N.Y. 1985) (discussing changes in New York law stemming from Gertz and Dun & Bradstreet). Cf. Dalbec v. Gentleman's Companion, Inc., 828 F.2d 921, 926-27 (2d Cir. 1987). Presumed damages have been permitted for the tort of defamation per se because

 those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and . . . this kind of injury is extremely difficult to prove. . . . Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress; as well as injury to reputation, ...


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