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February 10, 2000


The opinion of the court was delivered by: Block, District Judge.


The Court must decide whether to let stand a $900,000 jury verdict for the plaintiff, Steven W. Arnold ("Arnold"), against the municipal defendants, The County of Nassau and The Sheriff of Nassau County (collectively "County"), for failing to protect him from being assaulted and severely beaten by fellow inmates while being held as a pre-trial detainee at the Nassau County Correctional Center ("jail") on a rape charge.*fn1 The jury determined that liability was warranted against the County, but not against any of the individual correction officer defendants, as a matter of federal constitutional significance under the concept of "deliberate indifference," as well as by reason of negligence under New York State law. The Court reserved decision in this bifurcated trial on defendants' motions to dismiss these claims pursuant to Rule 50(a) of the Federal Rules of Civil Procedure ("FRCP" or "Rule") at the close of plaintiff's liability case and, again, at the close of all the evidence during that phase of the trial. It has yet to decide the motions, but the Clerk of the Court, at the conclusion of the damage phase of the trial, inadvertently entered judgment. Defendants thereafter moved pursuant to Rule 50(b), contending that they are entitled to judgment as a matter of law because: (1) on the issue of constitutional municipal liability, there was a failure of proof that the County had adopted policies or practices that were deliberately indifferent to a known substantial risk of harm that pre-trial detainees charged with sex offenses faced from other inmates and, in any event, there was insufficient evidence of a direct causal link between any such policies or practices and Arnold's injuries; and (2) on the issue of negligence, there was insufficient proof that the attack on Arnold was foreseeable and the proximate cause of his injuries. The County has alternatively moved, under Rule 59(a), for a new trial or, further in the alternative, for a conditional remittitur on damages. The motions are denied in their entirety.


1. Arnold's Placement in Protective Custody

On July 24, 1992, Arnold was booked by correction officer Thomas Taranto ("Taranto") at the jail. See Trial Transcript ("Tr.") at 523-24. Because Arnold was charged with a sex offense, and feared for his life, Taranto recommended that he be placed in "administrative segregation." Exhibit 3 (Administrative Segregation Report). As stated in this report, Taranto's recommendation was made pursuant to "Warden's Order Sex Crimes." Id. This order had been in effect since 1987, see Tr. at 93, and provided that "inmates admitted to the [c]orrectional [c]enter on a sex-related crime will be placed in protective custody and reviewed within 10 days." Exhibit 4. As explained by Captain Harold Dane ("Captain Dane"), who was in charge of security and booking operations at the jail, the rationale for the warden's order was "the belief on the part of our administration that those people who commit sex crimes are sometimes subject to assault by other inmates." Tr. at 78. As he elaborated:

[P]eople who do these kinds of crimes are looked down on and [other prisoners] mete out punishment whenever and if ever they can. For argument's sake, a cop murderer may be considered in high esteem by the inmate population. But this level of crime seems to bring out a much more violent reaction on the part of the general inmate housing population.

Tr. at 804. Consequently, in recognition that "inmates who are charged with sex-related crimes [are] more likely to be the victims of violence on the part of other inmates," the order was issued, as Warden Stenzel testified, "so it [wouldn't] happen." Tr. at 669-70.

In addition to sex crimes detainees, those in need of mental observation were also placed in protective custody. Generally, they were housed in a separate tier, but, as Deputy Undersheriff Weber testified, mental observation inmates could be commingled with sex offense inmates. See Tr. at 782. Because Arnold failed a suicide screening test, he was placed by Taranto in a mental observation tier. See Tr. at 538. He was never told the type of protection that he would be afforded, since it was not the facility's practice or policy to do so, see Tr. at 538-39, but he was given the option to be "locked in his cell 22 hours a day." Exhibit 3. Arnold declined to be so confined. See id.

The protective custody tiers were located on the fourth floor of Building B. See Tr. at 264. There were four tiers on the floor, each containing twenty cells. See Tr. at 61. The cells could house twenty five inmates because five of them were double bunked. See Tr. at 95. Each tier was approximately 200 feet long. See Tr. at 62-63. The configuration of the tiers is depicted in a diagram reproduced as an Appendix to this decision. A large visual display of this diagram, together with various markings made by witnesses and shown to the jury during the course of the trial, was received in evidence. See Exhibit 1. It was frequently referred to by a number of prison officials during their testimony to explain the physical layout of the tiers and the nature of the security. See, e.g., Tr. at 59-62. As shown in the Appendix reproduction of this Exhibit (without witness markings), each tier was a self-contained unit with its own set of locked doors. Inside each tier, in addition to the cells, was a common area, alphabetically marked "A," "B," "C" and "D", respectively, corresponding to the tiers' designations, where inmates congregated when not locked in their cells. See Tr. at 275. The cells were unlocked after breakfast, and remained unlocked until the evening, except during meal periods. See Tr. at 94. When unlocked, the cell bars were "rolled back." Tr. at 344. Outside each tier was a "lock box," which served as a "security post." Tr. at 61. A perimeter catwalk encircled all the tiers. See Appendix. In addition, there was a lobby entrance to the tier floor, with its own security post. See id.; Tr. at 61.

Tiers C and D were mental observation tiers. See Tr. at 119. Arnold was placed in Tier C. See Tr. at 59. There were then 24 inmates in this tier, including Steven Harget, known to Arnold as "Crazy Steve," Tr. at 464, who had been disciplined three times for "fighting, yelling and disobedience, and fighting again." Tr. at 99. The fights were with "another prisoner." Id. The population of the mental observation tiers was not restricted to those charged with sex crimes; rather, all types of inmates were eligible, whether they were awaiting trial or had been convicted, and regardless of the crime charged or committed, unless they were extremely violent or an escape risk. See Tr. at 266, 332. As correction officer Brian Kenny ("Kenny") testified, it did not matter whether the inmates were "good or bad." Tr. at 272.

2. The General Supervision

On January 3, 1992, as Captain Dane explained, "[b]ecause of the huge expense that we had incurred running the jail, the Sheriff opted to take the sitting posts and drop them down from one tier per officer to two, two tiers." Tr. at 127. Consequently, there was now only "one [tier sitter] who would cover the two mental observation tiers." Tr. at 120. Captain Dane candidly admitted that the use of just a single tier sitter for two protective custody tiers "detracted, or took away, from a safeguard to prisoners." Tr. at 133. When asked for the rationale for the "old rule," he focused particularly on the mental observation tiers, commenting that "it was important that we watch the inmates that may in fact have problems, mental observation inmates." Tr. at 128.

Using the large diagram, Exhibit 1, Captain Dane showed the jury where the correction officers would normally be subsequent to January 3, 1992: In addition to the one tier sitter per two tiers, and the officer patrolling the entire perimeter, there would be an officer in the lock box, and there could be two officers in the lobby area, one of whom would be stationed in the officer's house. See Tr. at 142-43, 156-57. Also using this visual aid, correction officer defendant Michael Feldon ("Feldon") showed the jury that the only way in which a guard could enter the common area was through one of two gates. See Tr. at 161-62. Thus, as fellow correction officer Kenny explained, the jail security was structured in such a fashion that the only physical means for an officer to intervene in an assault would be to go down a corridor, open up two separate locked doors, and then go into the common area. See Tr. at 260. He testified that it would only take "[f]ive to seven seconds" to walk the 200 feet "[f]rom one end of the tier to the other." Tr. at 262.

Warden Stenzel, Captain Dane and correction officer Frank Parisi ("Parisi") each testified that "each tier is a separate housing area." Tr. at 520; see Tr. at 66, 68, 663-64. Captain Dane, as head of security, while recognizing the need for "active supervision" of all inmates, never knew of any rule or regulation that required, as part of active supervision, the stationing of a guard in a housing area where there were twenty or more prisoners not locked in their individual cells. See Tr. at 151-52. No guard was ever posted inside the tiers because it was thought to be too dangerous. See Tr. at 345, 359, 816.

3. The Incident

Arnold testified on direct examination as follows (see Tr. at 383-404): After he opted not to be placed in 22 hour lockup when he was being processed on the day of his arrest, he was given a uniform that was "extremely too large." Tr. at 389. He was then taken to a clinic, where some blood was taken, and thereafter escorted to his cell. It was a double bunk cell, and he was placed on the top bunk. After he made his bed, he went out to a table directly across his cell, and had a casual conversation with some inmates.

After the inmate trial was concluded, nothing happened, and Arnold returned to his cell. About five or ten minutes later, "they all came to the cell," Tr. at 395, asked him to come out, which he did, and asked him the same questions. As they were debating, "should we or shouldn't we," one of the inmates "plastered [his] head." Tr. at 396. He "saw nothing but stars," but went back into his cell as "they were still punching [him]," and crawled into his bunk. Tr. at 396-97. Still, there were no correction officers in sight. About "a couple of minutes later," these inmates came into his cell, threw him down to the bottom bunk, and were "punching [him] and kicking [him] all over the place." Tr. at 397. He thought he was "going to die," "screamed out for help," and then heard officer Feldon, who he had not seen during either beating, say "[t]hat's enough." Tr. at 398. The beating then stopped.

Approximately "an hour or two hours later," he was brought to the officers' office and asked what had occurred. Tr. at 398. He was afraid to give the inmates' names because he thought there would be "greater problems." Tr. at 399. He was then moved to the next tier, "right next door." Id. Soon he heard a lot of commotion at the end of that tier and saw an inmate with a gold tooth talking to people on the other side of the tier. This inmate then came over to him, asked him a question, and hit him "in the head with the back of his hand." Tr. at 400. Under cross examination, Arnold described this occurrence as a "slap" and not a "punch". Tr. at 468. There were no correction officers in the vicinity of that new tier when this third altercation occurred.

"About an hour or two hours, maybe three hours later," he was taken to the jail's medical clinic in a wheelchair. Tr. at 401. He was told by a correction officer to tell the doctor that he "slipped on a bar of soap," otherwise he would have "more problems." Tr. at 401. He did as he was told. Although he was bleeding from his left eye, nose and mouth, he was eventually returned to his new cell. Soon thereafter an inmate alerted an officer that "[t]here's something wrong with him." Tr. at 402. He next remembered being back in a medical clinic in the jail, with IVs in his arms, and then being taken by ambulance to the hospital. "Sometime later," he was returned to the jail, but "[f]our or five days later" he was brought back to the hospital. Tr. at 404-05.

Under cross examination (Tr. 411-95), Arnold testified that the inmate trial took approximately five or ten minutes, see Tr. at 448; that the first beating lasted from ten to fifteen seconds, and that the second beating lasted from 45 seconds to a minute. See Tr. at 461-63. One of the attackers during the second beating was "Crazy Steve." Tr. at 464.

Defense counsel sought to establish during cross examination the date and times when the assaults occurred. Arnold acknowledged that he was admitted Friday night, July 24th, at approximately 9:18 p.m., the date and time on the jail's admission record, see Exhibit B, p. 1; see also Tr. at 414, 433, and that he went to bed that night without incident. See Tr. at 438. He believed that the assaults took place on the next day, Saturday, July 25th, see Tr. at 442, 447, but he wasn't sure of the date or the times because it was a "traumatic event," and he didn't "know what was going on." Tr. at 465.

The facility's medical records contain a report of injury to Arnold at 1400 (2:00 p.m.) on Sunday, July 26th that resulted in bringing him to the jail's medical unit. See Exhibit 11, p. 1. It was prepared and signed by correction officer Kenny, and states: "[Inmate] apparently slipped in his cell injuring his head. [Inmate] is not responsive to any questions." Id.; see Tr. at 247. The report also states that no correction personnel witnessed the injury. See Exhibit 11, p. 2. Kenny had no recollection of the incident, but opined that Arnold must have been conscious; otherwise medical personnel would have come to his cell. See Tr. at 249-50.

The medical portion of this report, prepared by an emergency medical technician, Candice Turner ("Turner"), states, in abbreviated format: "[N]osebleed and contusion to [left] side of forehead. No [loss of consciousness], pressure applied to nose, bleeding controlled; ice applied to head." Exhibit 11, p. 1; see Tr. at 731. Turner estimated that since the injury was reported to have occurred at 2:00 p.m., she would have seen Arnold "shortly after." Tr. at 732. She testified that she would not consider someone who had been given an ice pack to have been seriously injured, and that she would not have allowed Arnold to have been returned to his cell if she believed his injuries were severe. See id.

A further report of injury was prepared by officer Parisi the next day, Monday, July 27th, reporting what he observed that morning while making his rounds in the D Tier, where Arnold had been relocated. It states in full:

While performing the 1100 count I came upon B4 [Tier] D05 cell and instructed inmate Arnold, Steven to stand for the [c]ount. After several orders to this inmate to stand, the inmate located in the same cell said, "he can't he is bleeding." With the tier locked in I proceeded to D05, and noticed that inmate Arnold was bleeding from the mouth, and breathing shallow. Inmate Arnold would not respond to me. I instructed Officer Michelsen, Scott # 909 to call medical and notify Sgt. Mott, [m]edical personnel and Sgt. Mott arrived a short time after this incident. I was informed by the inmates that this incident happened on the previous 8-4 tour, and on C-block.

Exhibit 13, p. 1 (emphasis added).

Parisi testified that Arnold did not respond to him "because his medical condition was such that he couldn't respond." Tr. at 509. Attached to his report was an Inter-Departmental Memo from Correction Sergeant Edward Mott ("Mott"), dated July 27th, stating, inter alia, that Mott responded to the scene, observed medical attendants placing Arnold into a wheelchair, and that Arnold "was taken to the medical unit and then sent to [Nassau County Medical Center] for evaluation and or treatment." Exhibit 13, p. 2.

Introduced into evidence was the logbook of the officers who were the combined Tier C and D tier sitters from July 24th through July 27th. See Exhibit 7; Tr. at 120. Reading from the July 26th entries, Captain Dane confirmed that four officers were to share the tier sitter duties that day on the 8 a.m. to 4 p.m. shift, as follows: 8-9, Hill; 9-10, Feldon; 10-11, Kenny; 11-noon, Farrington; noon-1, Feldon; 1-2, split between Kenny and Farrington; 2-4, Farrington. See Tr. at 122. These four officers were also to handle the 15 minute perimeter patrols. See Tr. 158-61.

Q. 1340, what does that say?

A. CO Feldon to meals.

Q. Would that be you?

A. Yes.

Q. 1345, what does that say?

A. No patrol officer meals.

Q. And I believe it says CO Farrington?

A. Yes.

Q. So that is a second entry for the hour of 1300 that an officer ...

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