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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.

 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. ...

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