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May 30, 1995



The opinion of the court was delivered by: ROBERT W. SWEET


Sweet, D.J.

 Both the plaintiff Christopher Hynes ("Hynes"), an inmate in the state correctional facilities, and the defendants Michael Cobb ("Cobb") and James Shope ("Shope"), state corrections officers, have moved under Rules 50(b) and 59(a) for judgment as a matter of law, or in the alternative, for a new trial. For the reasons set forth below, both motions are denied.

 Prior Proceedings

 This action was commenced by Hynes on December 24, 1991 under 42 U.S.C. § 1983 against seven corrections officers. Hynes sought damages for two incidents of excessive use of force against him while incarcerated in the Southport Correctional Facility ("Southport") and Green Haven Correctional Facility ("Green Haven"), facilities of New York State. He also sought damages under 42 U.S.C. § 1983 seeking damages for infringement of his First Amendment rights. Defendant Correction Officer John Zemken ("Zemken") sought by counterclaim damages against Hynes for battery.

 From October 3 to October 17, 1994 the issues raised by the pleadings were tried to a court and jury. Hynes testified on his own behalf and presented testimony from three inmates, a physician, one of the defendants, and an inspector general for the Department of Correctional Services ("DOCS") of New York. Defendants Sergeant Bobbie Jo Gladding (sued as LaBoy) ("Gladding"), Cobb, Shope, Zemken, Correction Officer Michael Rhynders ("Rhynders"), Sergeant Edward Doyle ("Doyle") and Correction Officer Michael Capra ("Capra") testified on their own behalf and presented the testimony of a nurse and physician assistant and deposition testimony.

 At the conclusion of the trial, the jury was presented with a Special Verdict Form consisting of twenty-five questions, annexed hereto as Appendix A. The jury returned a verdict of $ 1,250 in favor of Hynes against defendants Cobb and Shope in connection with the events at Southport. No punitive damages were assessed.

 The jury found that Hynes failed to establish the liability of Capra, Doyle, Gladding, Rhynders, and Zemken in connection with the events at Green Haven. Zemken was awarded $ 1,500 on his battery counterclaim against Hynes.

 At the close of the trial, time to make motions directed to the verdict was extended and the instant motion was heard and considered fully submitted on February 15, 1995.

 The Facts

 The Events at Southport

 During May of 1991 Hynes was incarcerated at Southport to which inmates with unsatisfactory disciplinary records had been assigned. On May 28 and 29, 1991 a group of inmates took over the yard. The morning after the incident, May 30, 1991, Hynes was taken from his cell for transfer because he had been in the yard during the takeover. He was hand-cuffed behind the back, taken to a room and was told to sit. Other inmates were in the room, including Michael Leggette and Carlos Garcia.

 Hynes began talking with Garcia. An unknown officer came up to Hynes, directed him to discontinue any conversation and an exchange of obscenities ensued. Cobb and Shope were part of the Corrections Emergency Response Team ("CERT") and had been assigned to Southport to regain control of the facility. They grabbed Hynes' arm pits and walked him at a quick pace out of the room towards the draft room. As they approached the draft room, Hynes' head hit the door frame and he was also hit in the eye. He dropped to the ground and temporarily lost consciousness. Another officer came along, a further exchange occurred, and Hynes was taken into the draft room.

 Hynes was then taken to the Southport infirmary. He received two stitches for an abrasion above his right eye. He also received a "running stitch" *fn1" for a five centimeter jagged laceration on the top of his head. There was bruising and swelling under his right eye.

 Shortly after being treated, Hynes was transferred to Green Haven. The ride took five to six hours.

 The Events at Green Haven

 Upon arrival at Green Haven, Hynes was examined by Nurse Coloni. She arranged to have him admitted to the infirmary that day where he stayed until June 7, 1991. Photos were taken of Hynes on May 31, 1991 which showed Hynes had a laceration on the top of his head and a swollen black eye.

 Hynes was assigned a cell located in the front of the gallery, near the guards, at the Special Housing Unit ("SHU") at Green Haven. He had a number of exchanges with the guards and complained about many conditions within the SHU. Gladding and Rhynders were familiar with Hynes and aware that Hynes had been at Southport during the takeover.

  Testimony was presented by inmate Danny Hearns that he heard Rhynders tell Doyle that he was going to shut Hynes' mouth up. Before time for Hynes' shower on July 3, 1991, most of the inmates on his gallery were let out into the yard and Capra and Zemken escorted him to the shower.

 Hynes wore shackles around his ankles, a waist chain, and handcuffs. At the shower, the restraints were removed, an altercation ensued, Zemken was kicked in the testicles and Hynes was forced to the floor. Doyle, Rhynders, Capra, and Gladding subdued Hynes.

 Gladding directed the officers to replace the handcuffs and the shackles, and Nurse Fowler examined Hynes. The ambulatory health record for the examination that occurred on July 3, 1991 indicated that Hynes had pain in his left eye, back and left foot, a sclera inject in his left eye, his upper eye lid was down, his vision was reported as being blurry and he had abrasions to the lower back part of Hynes' head and his back.

 Hynes was examined again on July 3, 1991 by Physician Assistant McCue. The records of that visit indicted that Hynes' left eye had now developed ecchymosis (a black eye) and edema (swelling), as well as erythema (redness) in his left ear. Under the "subjective" or patient's complaint portion of the report were references to Hynes' elbow, shoulder, foot, and lower back, without any explanation.

 On July 5, 1991 Hynes was examined again. The ambulatory health records indicated that his left eye was bruised, with a "subjunctival hemorrhage." Two of Hynes' toes on his right foot were ecchymotic or bruised and x-rays and a photo were taken on July 10, 1991.

 According to Hynes' testimony, he could not move his arm for a week to two weeks after the incident and it was six months before he could fully extend his arm again.

 Weight of the Evidence Supported the Jury's Verdict Against Shope and Cobb

 The standard for judgment as a matter of law, after judgment is entered (previously, a judgment n.o.v.) is similar to the standard applicable for a judgment at the close of the opposition's case (previously, a directed verdict). Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962); Diebold v. Moore McCormack Bulk Transport Lines, Inc., 805 F.2d 55, 57 (2d Cir. 1986). Explaining the standard, the Court of Appeals has stated that the guiding principle is whether,


viewed in the light most favorable to the non-moving party, the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.

 Sir Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir. 1992).

 Rule 59, Fed. R. Civ. P., permits the granting of a new trial after an earlier trial by jury. A motion for a new trial may be joined with a motion for judgment as a matter of law. Rule 50(b), Fed. R. Civ. P. The Court is empowered to grant both motions, for a judgment as a matter of law and a new trial, simultaneously in the same action. See Gehrhardt v. General Motors Corporation, 434 F. Supp. 981, 986 (S.D.N.Y. 1977), aff'd, 581 F.2d 7 (2d Cir. 1978).

 A trial judge reviewing a jury verdict and judgment pursuant to a motion for a new trial has greater judicial discretion to grant such a motion than a motion for judgment as a matter of law. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251-52, 85 L. Ed. 147, 61 S. Ct. 189 (1940); Bevevino v. M.S. Saydjari, 574 F.2d 676, 683-84 (2d Cir. 1978). Where the court is convinced "that the jury has reached a 'seriously erroneous result' or that the verdict is . . . against the weight of the evidence . . .", the court may order a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983); Purnell v. Lord, 952 F.2d 679, 686 (2d Cir. 1992). The Court may weigh the evidence and need not view it in the light most favorable to the non-moving party. Bevevino, 574 F.2d at 684.

 Here the jury found in its answers to Questions 1-4 of the Special Verdict, annexed hereto as Appendix A, that Cobb and Shope maliciously and sadistically harmed Hynes during the incident at Southport, and awarded damages in the amount of $ 1,250. (Answer to Question 7, Appendix A).

 This jury verdict is supported by the weight of evidence and is not seriously erroneous. Evidence was presented that as a result of the Southport incident Hynes suffered a 5 centimeter jagged laceration on the top of his head, an abrasion above his right eye, which required two stitches, and bruising and swelling under his right eye. These injuries were established through expert testimony, medical exhibits, and photographic evidence.

 Evidence was also presented that Hynes is 5'5" and 145 pounds and much smaller than Cobb at 6' and 220 pounds and Shope at 6'2", approximately 235-40 pounds. The incident occurred the day after a prison takeover at Southport. Both Cobb and Shope as CERT members have lengthy experience as correctional officers and have undergone training in the proper use of force and defensive tactics.

 In light of all the evidence presented at trial, the most likely explanation for Hynes' injuries was his version of the events. It was the day after a takeover at Southport and the atmosphere was tense. According to Hynes, he got into a verbal exchange with Cobb and Shope. As a result, they took him out of the draft room and rammed his head first into a doorway, hit him in the eye with an object, and then he was kicked in the stomach and testicles while on the floor.

 Dr. Zeller testified that she was an expert in emergency medicine, a member of the College of Emergency Medicine, and for three years worked full time at Our Lady of Mercy Medical Center in the emergency room. She is in charge of the emergency room when she works there. She concluded that it was "highly unlikely" that the 5 centimeter laceration to the top of Hynes' head was self-inflicted.

 Cobb and Shope gave a version of the events which conflicted with Hynes'. In reaching its conclusions, the jury choose to credit Hynes, and there was evidence to support that finding from Hynes, Zeller and the objective evidence.

 The Weight of the Evidence Supported the Jury's Verdict in Favor of Gladding, Rhynders, Zemken and Doyle

 The jury answered to Questions 9-12 in the negative as to each of the defendant officers involved in the Green Haven incident. In so doing, it credited the testimony of the officers, Nurse Coloni, and Investigator Seyfert which was in direct conflict with that of Hynes and inmate Hearns. The testimony submitted by the defendants, if credible as the jury must have concluded it was, far outweighed that of Hynes and was not seriously erroneous.

 There was conflicting evidence as to the motivation behind the alleged assault. Hynes undertook to establish that the alleged assault was premeditated and Hearns testified that he heard Rhynders tell Doyle that Rhynders was going to, "shut Hynes' mouth up" the next time he came out for his shower, and that he, Hearns, passed this warning on to Hynes. However, defendants presented unrefuted evidence that Doyle was not on duty from June 27 through July 2, and, therefore, Rhynders could not have made any such remark to him. The jury no doubt found Hearns' testimony of the alleged threat to be unworthy of belief.

 After the defendants' evidence rebutting premeditation, Hynes was recalled to testify later in the trial on October 12, and for the first time recalled an argument with Rhynders on July 2, although he had not so testified in his case on October 3 and 4.

 Hynes' testimony that four officers, including Capra and Zemken, escorted him to the shower was disputed and made much of the fact that neither Capra nor Zemken wore their glasses during the escort and Capra, alleged to be part of the escort, did not work on SHU as a regular job but served as an escort officer to accompany inmates on and off the unit.

 Hynes testified that after his cuffs were removed, Zemken made an unprovoked attack on him. Investigator Seyfert concluded that Hynes kicked Zemken in the groin before any force was used on Hynes. Hynes' medical expert conceded on cross-examination that had Hynes been picked up bodily and thrown back onto a tile floor, with his head hitting the floor, as Hynes testified had happened, she would expect to find evidence of severe head trauma as a concussion.

 Hynes' testimony was directly contradicted by the defendants' with respect to the alleged assault itself.

 The SHU Log Book which contains the dates Hynes went to the yard and the medical records contradict Hynes' testimony with respect to the effects of the alleged assault and the objective medical records also did not support his testimony.

 The weight of the evidence established that Hynes was being subdued during the struggle he initiated and that Hynes' eye came into contact with the lip of the shower.

 The jury's determination weighed the credibility of plaintiff's own testimony and that of Danny Hearns, and his medical expert, Dr. Zeller, who had not examined or spoken to Hynes before her testimony. The preponderance of the credible evidence demonstrated that there was no threat made to Hynes, that Hynes was the aggressor in this incident, and that defendants Gladding, Doyle, Capra and Rhynders used only that amount of force that was reasonable and necessary under the circumstances to restrain Hynes following the incident which he provoked.

 The Weight of the Evidence Supported the Jury's Verdict in Favor of Rhynders

 Rhynders' claim for damages, arising out of the assault upon him by Hynes, was supported by his testimony, the investigation and report of Investigator Seyfert and the medical evidence. It was contradicted by Hynes, and the jury in its answers to Question 23-25 determined the credibility issue in favor of Rhynders. That determination was not seriously erroneous.

 The Weight of the Evidence Supported the Jury Verdict with Respect to the Claim of Supervisory Liability Against Gladding and Bystander Liability Against Capra

 The jury found by answering question 15 and 19 in the negative that Capra was not liable as a bystander, nor was Gladding liable as a supervisor, both being present at the incident at Green Haven.

 The jury determined in the first instance that no force at an unconstitutional level was used on Hynes. Even if Hynes had been able to prevail on his underlying claim, there was insufficient evidence to find Sergeants Gladding or Capra liable for failing to intervene on Hynes' behalf.

 The first knowledge of Sergeant Gladding of anything unusual came from Zemken's scream. She saw Zemken fall in toward the shower and saw Hynes on his back. She ordered that Hynes be flipped to his stomach and supervised while the officers applied the defensive holds and then the restraints, and she applied the leg restraints. She directed that Hynes receive the appropriate medical attention, and be returned to his cell. There was no evidence that Gladding directed the officers to take any inappropriate action. There is no evidence of any action taken by Capra, who was simply present, nor any evidence of an opportunity to intervene within the time span of the incident, given its character as he observed it.

 "This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator." O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988). Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989), cited by Hynes, is inapposite, involving, as it did, the abuse at three different facilities over a period of more than two weeks. Id. at 1040. Similarly, Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994), also cited by Hynes, presented a different factual pattern in view of the nature of the assault at issue and the opportunity of the supervisor to intervene multiple times. Id. at 557-558.

 Here, the incident in the shower lasted between two and five minutes. By the time the altercation started, neither Gladding nor Capra could determine its cause or conclude that any impropriety was occurring for which either had any responsibility. In fact, the jury concluded that no impropriety or constitutional tort did occur.

 The Damages Assessed Were Neither Excessive Nor Inadequate Nor the Result of Compromise

 By its answer to Question 7, the jury awarded $ 1,250 to Hynes for injuries incurred during the Southport incident and by its answer to Question 25 awarded $ 1,500 damages to Zemken arising out of the Green Haven incident. The determinations are particularly within the jury's competence and were neither excessive nor inadequate.

 The same standards governing a claim that a jury's award is excessive should also apply when reviewing a claim that a jury awarded inadequate damages. Caskey v. Village of Wayland, 375 F.2d 1004, 1008 (2d Cir. 1967). When faced with a claim that a jury awarded excessive damages, a reviewing court is "constrained to give due deference to the fact-finding role of the jury . . . Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990). Thus, the jury's award must be upheld unless "the damages awarded are so excessive 'as to shock the judicial conscience.'" Raucci, 902 F.2d at 1058; Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir. 1993).

 Consistent with the tenet that:


in determining whether a particular award is excessive, courts have reviewed awards in other cases involving similar injuries, "bearing in mind that any given judgment depends on a unique set of facts and circumstances."

 Scala, 985 F.2d at 684 (quoting Nairn v. National R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)); See Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990), Hynes has cited authorities to demonstrate that his award is inadequate.

 However, only one of the cases cited arose in the context of a claim that an award was inadequate and that claim was rejected. Green v. Johnson, 977 F.2d 1383 (10th Cir. 1992). Each of the other cases concerned either a claim that the award was excessive, Bogan v. Stroud, 958 F.2d 180 (7th Cir. 1992) (Court of Appeals upheld damage award to inmate who in fight with officers, resulting in multiple superficial stab wounds to inmate) loss of consciousness, received no compensatory damages and $ 7,000 in punitive damages); O'Neill, 839 F.2d 9 (Court upheld compensatory damages of 85,000 and punitive damages of $ 135,000 for jail detainee, who was assaulted by two police officers while in handcuffs. Plaintiff received a fractured nose, lacerations to the face and head and no permanent injuries. Lost wages were a factor in the award.); Wheatley, 679 F.2d 1037; or a use of force beyond that which allegedly occurred at Southport and/or resulting in more substantial injuries than Hynes suffered, Flowers v. Phelps, 956 F.2d 488 (5th Cir. 1992); Giroux v. Sherman, 807 F. Supp. 1182 (E.D. Pa. 1992); Jones v. Huff, 789 F. Supp. 526 (N.D.N.Y. 1992) (repeated use of force to inmate who was first stripped by officers, resulting in fracture of bone around eye was awarded $ 10,000); Blissett v. Coughlin, (W.D.N.Y. October 8, 1992) (Civ. 84-1049A) (Court, according to a newspaper account of the case, upheld jury award of $ 120,000 to an inmate who claimed he had been beaten by officers, insulted with racial slurs and left in a cell soiled with human excrement for nine days).

 Sackett v. Dylag, (W.D.N.Y. May 10, 1993) (Civ. 86-0644) involved an inmate who had been beaten in retaliation for assisting Prisoners Legal Services in an investigation of another inmate's death. The jury awarded $ 65,000 damages against the seven officers for what defendants described as a cut lip, tooth trauma, facial contusion and emotional trauma.

 The jury could reasonably have concluded that $ 250 per day would adequately compensate Hynes for his pain and suffering for the five days from when Hynes was injured, May 30, 1991, until he was medically cleared for discharge from the infirmary, June 3, 1991, given the nature of his injuries, two cuts and a black eye. While the awards cited by Hynes are higher than his, they represent a broad range of awards. His $ 1,250 award does not shock the judicial conscience and thus shall stand.

 As to the injury to Zemken resulting from Hynes' kick to the testicles, Zemken testified to excruciating pain, lost days of work, embarrassment, and the restraint on his relationship with his wife, all of which provide support for the jury's determination as to the appropriate damages to award him.

 The award to Hynes for the Southport incident was not inadequate for the reasons set forth nor does it establish an improper compromise in relation to the award to Rhynders. Further,


an inadequate damages award, standing alone, does not indicate a compromise among jurors . . . Besides inadequate damages, there must be other indicia of compromise, such as difficulty in jury deliberations or close questions of liability.

 Diamond D. Enterprises USA, Inc. v. Steinsvaag, 979 F.2d 14, 17 (2d Cir. 1992) (citations omitted), cert. denied, 124 L. Ed. 2d 660, U.S. , 113 S. Ct. 2442 (1993). There is no such indicia here.

 Hynes has referred to the course of jury deliberations as evidencing compromise of the question posed by the jury during its deliberations. Court Exhibit 25, "we need punitive damages defined as it relates to this case." The jury deliberations began on October 13, 1994 at approximately 1:35 PM. The jury deliberated all day on October 14, 1994 and did not meet again until October 17, 1994 when they delivered their verdict at approximately 12:05 PM, following the receipt of the following exhibits: Court Exhibit Number Date Time Comment 2A 10/13/94 1:40 PM Final special verdict form 4 10/13/94 3:00 PM Jury: 1. Medical records from South Port. 2. Nurse Colonie (sic) testimony when he arrived at Green Haven. Shope & Cobb testimony. 5 10/13/94 3:35 PM Court: Answer to Exhibit 4. 6 10/13/94 3:50 PM Court: Error in verdict form. 7 10/13/94 4:00 PM Jury: Is there any testimony from Nurse Coloni regarding C. Hynes eye from Southport. 8 10/13/94 4:05 PM Court: Corrected verdict form. 9 10/13/94 4:55 PM Jury: Decided to go home. 10 10/14/94 10:40 AM Jury: Testimony of Cobb & Shope when they stated they first physically touched Hynes. (Plaintiff's and Defendant's). 11 10/14/94 11:55 AM Jury: Did Shope/Cobb complete a "use of force" form or other paperwork on the Southport incident? If there is an exhibit, we would like to review it. (We don't need to listen to testimony). 12 10/14/94 11:30 AM Court: Answer to 11. 13 10/14/94 11:50 AM Jury: We would like to review the photographs of Hynes showing Southport injuries (or showing his appearance after the Southport incident). 14 10/14/94 12:30 PM Jury: Is there any exhibit that states whether or not Hynes was in leg restraints during the Southport incident? If so, we would like to review that exhibit. 15 10/14/94 12:40 PM Court: Answer to 14. 16 10/14/94 12:42 PM Jury: We'd like to listen to Hynes' testimony regarding the eye injury at Southport (after head injury happened). 17 10/14/94 12:50 PM Jury: We'd like to listen to any testimony regarding whether Hynes was in leg restraints during Southport incident. 18 10/14/94 2:05 PM Jury: We'd like to review the Inspector General's report on the Green Haven incident. 19 10/14/94 3:00 PM Jury: We'd like to review the photographs of the shower in Green Haven. 20 10/14/94 3:35 PM Jury: We'd like the photograph of Hynes after Green Haven incident. 21 10/14/94 3:45 PM Jury: We'd like any of these documents that are in evidence "relating to Green Haven): 1. unusual incident report; 2. use of force report, 3. ambulatory health record, 4. Employee injury report, 5. Misbehavior report. 22 10/14/94 4:30 PM Court: Recess until Monday. 23 10/17/94 10:50 AM Jury: If we answer "no" on questions 12, 17, and 19, do we still answer question 21? 24 10/17/94 11:05 AM Court: Answer to 23; proceed to question 23. 25 10/17/94 11:20 AM Jury: We need punitive damage defined as it relates to this case.


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