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.
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.
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 speaking with the inmates, he went back into the cell,
"talked to the inmate that was there for a while, and went back
out on the table." Tr. at 392. He then noticed Feldon at the end
of the tier talking to three inmates as Feldon handed them an
"article." Id. Arnold later surmised that this was a newspaper
account of his arrest for rape, see Tr. at 442, although no
such newspaper article was ever located. See Tr. at 446. One
looked like a "bodybuilder," one looked "crazy," and the other
was "a small fellow." Tr. at 392. They "were looking at [him]."
Id. About five minutes later they came up to the table and
asked him: "what am I in there for[?]" "what do I do for a
living[?]" and "where do I come from?" Tr. at 393. Apparently
fearing repercussions if he told them the truth, he said that he
"was in for drugs or attempted murder, or something like that."
Id. He eventually returned to his cell, but about ten minutes
later, one of the inmates came to the cell and asked him to go to
the end of the tier. He agreed, and was taken to a cell where
there were "about five or six inmates." Tr. at 394. There were no
guards in the area at that time. Once inside the cell, he was
again questioned about "[w]hat [he's] in there for; what do[es he
do] for a living; where do[es he] come from." Id. One of the
inmates "was wagging the article" and said, "I know what you're
in here for." Id. Another said, "[T]his is an inmate trial."
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
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?
Q. 1345, what does that say?
A. No patrol officer meals.
Q. And I believe it says CO Farrington?
Q. So that is a second entry for the hour of 1300
that an officer ...