his right, nor given the opportunity, to make a statement to Lieutenant Traverse concerning his confinement.
Liability of the Defendants
McCann maintains this action against Sheriff Phillips solely in his official capacity and against Sergeant (formerly Lieutenant) Traverse in both his official and individual capacities. (Tr. 72:5-73:15, 85:19-21)
In order to prevail on the official capacity claims, plaintiff must establish that the specific constitutional violation found was the result of a governmental custom or policy. E.g., Ricciuti v. New York City Transit Authority, 941 F.2d 119 (2d Cir. 1991). Here the evidence established that the fact that McCann was not afforded an opportunity to make a statement to Traverse concerning the keeplock was consistent with the standard policy followed in the OCCF, as set forth in the OCCF Rules and the Infraction Notice form. In consequence, the defendants are liable in their official capacities for any damages attributable to that violation.
In order to prevail on his claim against Traverse in Traverse's individual capacity, plaintiff must show that "the defendant [is] responsible for the alleged constitutional deprivation." Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). While Traverse gave the order to place McCann in keeplock, that is not what plaintiff complains of, much less the violation I have found. Rather, the deficiency was the failure to advise McCann that he had a right, and to afford him the opportunity, to make a statement to Traverse concerning the keeplock order. The Constitution did not require that Traverse, in particular, notify McCann of his right to make a statement. It did require that Traverse, as the person responsible for the keeplock order, give McCann an opportunity to make a statement to him, which Traverse failed to do.
Holding Traverse personally liable seems unfair because the defect here really was a deficiency in the rules and regulations. But the defendants' inexplicable failure to assert the defense of official immunity, even after Magistrate Judge Dollinger commented on the failure,
leaves me no choice.
Causation and Damages
Compensatory damages in Section 1983 cases are awarded to compensate for actual injury caused by the constitutional deprivation.
Here, plaintiff has not established "but for" causation. Lieutenant Traverse had sufficient cause to impose administrative keeplock and to maintain it after Ault took responsibility for the Baron incident. There is no basis sufficient for me to conclude that the result here would have been any different for McCann if he had been given an opportunity to talk to Traverse about the confinement.
Even assuming that a statement by McCann to Lieutenant Traverse would have resulted in McCann being released from keeplock earlier that he was, there is virtually no evidence of actual injury. McCann was confined to his cell, as opposed to being allowed freedom of movement within a four foot by approximately sixty foot area, for an additional fifteen hours. I accept that he was upset during at least part of that period. (McCann 18:24-19:12). But there is no evidence that he became ill, required additional medication, or sought or received attention from any mental health professional or clergy.
In the circumstances, I award plaintiff the sum of $ 50.
I see no purpose in attempting to characterize this as an award of nominal damages in the absence of any actual injury or as an award calculated with reference to actual injury; the result would be the same in either event. Nor is there any basis for an award of punitive damages.
Hearing on the Infraction Notice
As noted at the outset, plaintiff's counsel argued in his summation, for the first time, that McCann was deprived of due process because no hearing ever was held on the charge set forth in the Infraction Notice issued on November 13, 1986. While there was no hearing, there was no evidence that any determination ever was made with respect to, or any sanction imposed as a result of, the charge. While plaintiff speculated that the unresolved charge might have remained in McCann's file and affected his good time (Tr. 65:19-66:5), there was no such evidence.
In consequence, plaintiff suffered no cognizable injury as a result of the lack of a hearing on the charge set out in the Infraction Notice. I therefore reject his claim.
Accordingly, plaintiff is awarded judgment in the amount of $ 50 against both defendants in their official capacities and against Dean Traverse in his individual capacity. The individual capacity claim against Roger Phillips has been dismissed previously. The Clerk shall enter final judgment accordingly. See Fed. R. Civ. P. 58.
The foregoing constitutes my findings of fact and conclusions of law.
Dated: September 23, 1994
Lewis A. Kaplan
United State District Judge