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:
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
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
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
20 10/14/94 3:35 PM Jury: We'd like the photograph
of Hynes after Green Haven
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
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
25 10/17/94 11:20 AM Jury: We need punitive damage
defined as it relates to this
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