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March 12, 1998


The opinion of the court was delivered by: HURD


 Following a three day jury trial, the plaintiff was awarded One Dollar ($ 1.00) in nominal damages against one defendant on an alleged civil rights violation. The defendants now renew the motion made at the close of plaintiff's evidence and at the close of all the evidence, pursuant to Fed. R. Civ. P. 50(a). The defendant found liable by the jury, further moves post trial pursuant to Rule 50(b) for a judgment as a matter of law, or in the alternative, for a new trial pursuant to Rule 59(a). Plaintiff opposes the defendants' motions, and additionally moves for an award of attorney fees and expenses pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54(d). Oral argument was heard in Utica, New York on January 12, 1998, and decision was reserved.


 On March 29, 1990, correction officers reported that the plaintiff and two other inmates were suspiciously gathered in the main yard. Further investigation revealed that one of the inmates had been slashed along the left face and neck by a shank. After he was anonymously identified as the individual who had committed the offense, the plaintiff was issued a misbehavior report charging him with assault, fighting, and possession of a weapon. As a result, on March 30, 1990, the Auburn Correctional Facility confined the plaintiff to administrative segregation in the Special Housing Unit ("SHU") pending a disciplinary hearing.

 As required by regulation, a hearing was conducted on April 16, 1990, to assess the prior recommendation that confined plaintiff to administrative segregation in SHU. Defendant, Lieutenant T.H. Giltner ("Giltner"), responsible for conducting the hearing, denied the plaintiff's request to personally view the confidential informant's report or have certain additional witnesses testify. Relying on the prior recommendation of Richard and the assertion that the confidential information suggested that the plaintiff had been involved in extortion, Giltner recommended that the plaintiff remain in administrative segregation. Pursuant to an appeal, the acting director of special housing and inmate discipline, defendant Donald Selsky ("Selsky"), determined that Giltner failed to independently verify the reliability of the confidential information, and inappropriately denied plaintiff's request to have certain witnesses testify. Consequently, on June 18, 1990, Selsky reversed Giltner's determination and ordered a rehearing.

 On July 8, 1990, defendant Lieutenant R. Brimmer ("Brimmer") conducted a rehearing. Like Giltner, Brimmer refused the plaintiff's request to call witnesses, ultimately recommending that plaintiff remain in administrative segregation. Brimmer's recommendation that plaintiff remain in administrative segregation was based on the plaintiff's history of uncooperative behavior, continuous misbehavior charges against other inmates, and the information gleaned from the confidential informant's report. Again, plaintiff appealed the hearing officer's determination; however, on September 7, 1990, Selsky affirmed Brimmer's determination. Accordingly, on November 1, 1990, the plaintiff brought an Article 78 proceeding in the New York State Supreme Court, County of Albany. Plaintiff maintained that Brimmer failed to consider the credibility of the confidential information. Plaintiff also claimed that he was not allowed to call any witnesses to testify on his behalf. Thereafter, on January 22, 1991, Selsky reversed Brimmer's determination.

 Plaintiff spent a combined one hundred fifty-two (152) days in Auburn's SHU. Specifically, plaintiff was in SHU between March 30, 1990 and April 9, 1990, pending the results of a Tier III disciplinary hearing; between April 10, 1990 and April 15, 1990, pursuant to Richard's recommendation that the plaintiff be administratively segregated; between April 16 and July 8, 1990, pursuant to Giltner's recommendation that plaintiff remain confined to administrative segregation; and between July 8, 1990 and August 29, 1990, pursuant to Brimmer's recommendation of administrative segregation. Finally, on August 29, 1990, the Department of Correctional Services transferred the plaintiff to the Shawangunk Correctional Facility where he was released into the general population.

 On January 10, 1992, the plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that his rights were violated under the Fourteenth Amendment's Due Process Clause to the United States Constitution. Following various motions for summary judgment, plaintiff's complaint was dismissed. See Sealey v. Coughlin, 857 F. Supp. 214 (N.D.N.Y. 1994). The plaintiff appealed the decision, and the case was reversed and remanded back to the district court. See Sealey v. Giltner, 116 F.3d 47, 52-53 (2d Cir. 1997). In particular, the remand instructed the district court to allow the plaintiff to factually develop the record concerning the existence of a liberty interest. *fn1" See Sealey, 116 F.3d at 53. Therefore, the case proceeded to trial on November 25, 1997. Following the close of the plaintiff's case, the complaint against Selsky was dismissed. At the close of all the proof, the remaining defendants, Giltner and Brimmer, moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) on the grounds that the plaintiff had failed to prove that he, in fact, possessed a protected liberty interest in remaining free from administrative segregation. Decision was reserved regarding the Rule 50(a) motion, and the issues were submitted to the jury. *fn2"

 On December 1, 1997, the jury returned a verdict in favor of the plaintiff and Brimmer. Specifically, the jury found that plaintiff's confinement was administrative rather than punitive. In addition, they determined that Giltner, but not Brimmer, had violated plaintiff's procedural due process rights. *fn3" As a consequence, the jury awarded the plaintiff One Dollar ($ 1.00) in nominal damages against Giltner. The above motions followed.


 A. Rule 50(a) &(b) - Judgment as a ...

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