As members of the ASRC, defendants Hall and Branning were
integral parts of the decision making process which the jury
ultimately found to be unconstitutional. For this reason, their
motions to dismiss the judgments against them for lack of
personal involvement must be denied.*fn8
3. Justifiable Liberty Deprivation: Relying on Carey v.
Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) and
Patterson v. Coughlin, 905 F.2d 564 (2d Cir. 1990), defendants
argue that even assuming arguendo that they violated McClary's
procedural due process rights by denying him meaningful review of
his administrative segregation status, McClary is only entitled
to nominal damages because "plaintiff would unquestionably have
remained in such segregation had a meaningful review of his
circumstances been conducted." Defendants' Memorandum of Law
(Docket # 112) at page 10.
Carey and Patterson stand for the proposition that a jury
finding of liability against a defendant for a violation of a
plaintiff's constitutional right to procedural due process
requires an award of nominal damages in an amount not to exceed
one dollar. "Because the right to procedural due process is
`absolute' in the sense that it does not depend upon the merits
of a claimant's substantive assertions, and because of the
importance to organized society that procedural due process be
observed (citations omitted), we believe that the denial of
procedural due process should be actionable for nominal damages
without proof of actual injury." Carey v. Piphus, 435 U.S. at
267, 98 S.Ct. 1042. See also Gibeau v. Nellis, 18 F.3d 107,
110-111 (2d Cir. 1994) (a plaintiff in a § 1983 action must be
awarded nominal damages upon proof of a violation of a
constitutional right). The requirement of awarding nominal
damages without actual injury has been held to apply to the
limited procedural due process protections afforded prison
inmates. See Patterson v. Coughlin, 905 F.2d at 568 ("It is
clear that where there has been a denial of due process, the
victim is entitled at least to nominal damages").
In addition, the Carey and Patterson decisions also dealt
with "justifiable" liberty deprivations. That is, if a jury finds
that a defendant denied an inmate procedural due process, but
that despite the improper procedure, plaintiff's confinement in
administrative segregation was nonetheless justified, the jury
may not award damages resulting from the liberty deprivation.
"[I]njury caused by a justified deprivation, including
distress, is not properly compensable under § 1983." Carey v.
Piphus, 435 U.S. at 263, 98 S.Ct. 1042. (emphasis supplied).
See Patterson v. Coughlin, 905 F.2d at 568. ("Carey also made
it clear that even where a denial of due process has been
followed by a liberty deprivation, unless the deprivation was
caused by the violation the plaintiff is limited to nominal
damages") (emphasis supplied). Notwithstanding the foregoing,
Carey v. Piphus also made clear that even where the procedure
causing the liberty deprivation was flawed but the resulting
deprivation was nonetheless justified, a plaintiff may properly
seek damages for "mental and emotional distress actually 
caused by the denial of procedural due process itself." 435 U.S.
at 263, 98 S.Ct. 1042 (emphasis supplied).
Defense counsel requested that the Court include in its
instructions the "justifiable deprivation" holdings of Carey
and Patterson. See Transcript of Charge Conference (Docket #
125) at page 22. The Court granted the defendants' request to
charge. Trial Transcript, Volume IV at page 1444. After a lengthy
discussion, defense counsel ultimately objected to that portion
of the damage charge which instructed the jury that it could
award compensatory damages actually caused by the
denial of due process itself. Id. at 1635-54. Thereafter, the
Court instructed the jury on the law of damages, including the
holdings of Carey and Patterson. Id. at 1703-06. Relying on
the Court's charge, defense counsel repeatedly argued to the jury
in his summation that even if McClary had been given meaningful
due process, he still would have been maintained in
administrative segregation. Id. at 1663, 1664, 1666, 1670,
In their post-trial motions, the defendants simply argue, as
they did in summation, that assuming a denial of procedural due
process, McClary's confinement in administrative segregation was
nevertheless justified. The jury, after weighing the evidence and
evaluating the credibility of the witnesses, disagreed with the
defendants' view of the proof. Given the restrictive standards
for granting judgment as a matter of law or a new trial, this
Court has not been presented with adequate grounds to grant
either form of relief. Accordingly, defendants' motions to limit
the judgment to nominal damages must be denied.
4. Inconsistent Verdicts: Defendant Hall argues that the
verdict of liability against him is inconsistent with the verdict
in favor of defendant Kelly. The Second Circuit recently
When confronted with a potentially inconsistent jury
verdict, the court must adopt a view of the case, if
there is one, that resolves any seeming
inconsistency. Before a court may set aside a special
verdict as inconsistent and remand the case for a new
trial, it must make every attempt to reconcile the
jury's findings, by exegesis if necessary.
Turley v. Police Department of City of New York, 167 F.3d 757,
760 (2d Cir. 1999) (internal quotations and citations omitted).
Given the foregoing standard, Hall's motion must be denied
because he has failed to demonstrate how his verdict is even
"potentially inconsistent" with Kelly's verdict. Kelly's
liability in the case was tenuous from the start as he was on
medical leave for much of the time that McClary was confined in
administrative segregation at Attica. Kelly testified that he was
on leave beginning November 11, 1989 and did not fully resume his
duties until April 16, 1990. During that period, Kelly testified
that he "had nothing to do with the operation of the facility."
Trial Transcript, Volume III at page 1285. Indeed, Kelly
testified that it was not until April or May, 1990 that he even
knew that David McClary was confined at Attica. Trial Transcript,
Volume I at page 418. While he was on leave, Charles
Brunelle,*fn9 as Deputy Superintendent for Security, was
responsible for reviewing the recommendations of the ASRC. Trial
Transcript, Volume III at page 1277. While there was a period of
time that Kelly testified that he was reviewing the ASRC reports,
it was relatively brief, as in July 1990, McClary was transferred
to the Southport Correctional Facility. By contrast, during the
entire time McClary was housed in SHU at Attica, defendant Hall
served as chairman of the ASRC committee and signed each of the
ASRC recommendation forms. During closing argument, Kelly's
attorney (who also served as Hall's attorney) argued to the jury
that "Walter Kelly wasn't at the facility during most of the time
that Mr. McClary was at ad seg." Trial Transcript, Volume IV at
In light of the differences in both the degree and the scope of
their involvement with McClary's confinement in administrative
segregation at Attica, the verdict of liability against defendant
Hall is not irreconcilably inconsistent with the verdict in favor
of defendant Kelly. Accordingly, Hall's motion to set aside the
verdict must be denied.
5. Excessiveness of the Verdict: This Court has the authority
to enter a conditional order of remittitur, compelling a
plaintiff to choose between reduction of
an excessive verdict and a new trial, in two situations: (1)
"where the court can identify an error that caused the jury to
include in the verdict a quantifiable amount that should be
stricken" and (2) "more generally, where the award is
intrinsically excessive in the sense of being greater than the
amount a reasonable jury could have awarded, although the surplus
cannot be ascribed to a particular, quantifiable error." Kirsch
v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998)
(internal quotations and citations omitted). Where, as here, the
defendants' point to no particular discernable trial error, the
Second Circuit has instructed that the "jury's damage award may
not be set aside as excessive unless the award is so high as to
shock the judicial conscience and constitute a denial of
justice." Id. (internal citations and quotations omitted). In
evaluating excessiveness, "[r]eference to other awards in similar
cases is proper." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.
Evaluating excessiveness in the context of an individual
spending four, uninterrupted years in SHU solitary confinement is
no easy task. McClary himself testified to the conditions of SHU
confinement and the resulting devastation such isolation had on
his mental and physical health. Unlike inmates sentenced to SHU
as punishment for prison misbehavior, McClary's term in SHU was
potentially limitless, a fact that exacerbated the damages he
suffered. The expert testimony of Dr. Stuart Grassian as to the
damage caused by years of isolation in a toxic environment such
as SHU was compelling and certainly supported a substantial
Nevertheless, this Court is convinced that the jury's verdict
on damages was excessive. In reaching this determination, the
Court takes into account several factors. First, the amount of
damages the jury awarded exceeded by a substantial margin damages
awarded in other cases involving improper (albeit less lengthy)
placement in SHU. See, e.g., Lowrance v. Coughlin, 862 F. Supp. 1090,
1120 (S.D.N.Y. 1994) ($100 per day damages for unlawful
segregated confinement); Nolley v. County of Erie, 802 F. Supp. 898,
908 (W.D.N.Y. 1992) ($125 per day damages for unlawful
segregated confinement). Second, in his supplemental complaint,
filed on March 12, 1997, (after McClary had been released from
SHU) McClary sought damages "in the amount of one hundred fifty
dollars ($150.00) per day for each day of his confinement in
SHU." See Supplemental Complaint (Docket # 70). Finally, at the
Court's final pretrial conference held just days before the
commencement of the trial, plaintiff was required to submit an
itemization of damages claimed. In his pretrial statement,
McClary sought a total of $237,500 dollars, representing $125
dollars per day "due to illegal confinement in SHU" and $50,000
dollars attributable to "mental and emotional distress."
After the jury found for plaintiff on the issue of liability,
counsel gave supplementary closing arguments and the Court gave
supplemental instructions as to damages. The jury was not asked
by defense counsel, plaintiff's counsel or the Court to measure
plaintiff's damages on a per diem basis. Nevertheless, the
$660,000 verdict translates into a per diem equivalent of almost
$500 per day. Given the range of damages previously awarded to
inmates who suffered unlawful SHU confinement cases, and after
considering the amount of damages itemized and sought by McClary
just prior to trial, the damages awarded by the jury appear to
this Court to be excessive.
Upon a finding that a verdict is excessive, the Court "may
order a new trial, a new trial limited to damages, or, under the
practice of remittitur, may condition a denial of a motion for a
new trial on the plaintiff's accepting damages in a reduced
amount." Tingley Systems, Inc. v. Norse Systems, Inc.,
49 F.3d 93, 96 (2d Cir. 1995). While the jury's award was excessive,
there is nothing to suggest that their finding of liability was
insupportable or that it
was infected by passion, prejudice or other error. Accordingly,
the Court finds that the remedy of remittitur is proper and fair
in this case. For these reasons, the Court will deny defendants'
motions for a new trial conditioned upon plaintiff's consent to a
remittitur and damages in the amount of $237,500.*fn10
6. Verdict Against the Weight of The Evidence: At the close
of the plaintiff's case, defendants' made a motion for judgment
as a matter of law pursuant to Rule 50 of the Federal Rules of
Civil Procedure. Trial Transcript, Volume III at page 1055.
Defense counsel articulated three specific bases for Rule 50
relief: (1) Eleventh Amendment (Id. at 1057); (2) lack of
personal involvement (Id. at 1058); and (3) qualified immunity
(Id. at 1063). Extended argument was heard by the Court,
particularly as to the issues pertaining to lack of personal
involvement and qualified immunity. (Id. at 1063-1087).
However, absent from the defendants' Rule 50 motion was any claim
regarding the sufficiency of the evidence. The Second Circuit has
instructed on the consequences of failing to particularize the
grounds for a Rule 50 motion:
A Rule 50(a) motion "shall specify the judgment
sought and the law and the facts on which the moving
party is entitled to the judgment." Fed.R.Civ.P.
50(a)(2). It must be made "before the submission of
the case to the jury," id., and, if rejected, may be
renewed after the jury verdict.
Rule 50(b) governs the procedure for renewing such a
motion for judgment as a matter of law. A Rule 50(b)
motion can be made after the jury verdict, but only
if a Rule 50(a) motion was made prior to the close of
the evidence. Together, Rules 50(a) and (b) "limit
the grounds for judgment n.o.v. to those specifically
raised in the prior motion for a directed verdict."
Lambert v. Genesee Hosp., 10 F.3d 46, 54 (2d Cir.
1993) (quoting Samuels v. Air Transp. Local 504,
992 F.2d 12, 14 (2d Cir. 1993)), cert. denied,
511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994).
See also Fed. R.Civ.P. 50(b), Notes of Advisory
Committee to 1991 Amendment ("A posttrial motion for
judgment can be granted only on grounds advanced in
the preverdict motion.").
We have previously stated that "the specificity
requirement is obligatory" and that its purpose is to
"ensure that the other party is made aware of any
deficiencies in proof that may have been overlooked."
Lambert, 10 F.3d at 54 (citing Fed.R.Civ.P.
50(b), Notes of Advisory Committee to 1991
Amendment). Requiring a party to state specific
grounds for its Rule 50(a) motion "put[s] a party on
notice of potential deficiencies in its proof before
the case is submitted to the jury." Id.
Holmes v. United States, 85 F.3d 956, 961-62 (2d Cir. 1996).
Where, as here, the defendants have not included sufficiency of
the evidence as a ground for their initial motion for judgment as
a matter of law, this Court may not consider the omitted ground
in any post-trial motion pursuant to Rule 50(b). Gierlinger v.