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March 14, 2000


The opinion of the court was delivered by: Feldman, United States Magistrate Judge.



On February 23, 1999, after a two week trial, the jury returned a verdict finding liability and awarding damages against four of the defendants in the above captioned case. Specifically, defendant Hall was found liable in the amount of $10,000 to plaintiff and defendants Irvin, Branning and Coughlin were found liable in the amount of $650,000 to plaintiff. Presently before the Court are motions filed by the liable defendants seeking judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) or, in the alternative, a new trial pursuant to Fed.R.Civ.P. 59. (Docket 112, 113).*fn1 For the reasons that follow, defendants' motion for judgment as a matter of law is denied. Defendants' motion for a new trial is granted in part.

Standard of Review and Relevant Factual Background

In ruling on defendants' Rule 50(b) motion for judgment as a matter of law (JMOL), this Court "is required to deny the motion unless, viewed in the light most favorable to the nonmoving party, the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached." Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir. 1992) (internal citations and quotations omitted). See Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir. 1993) (because the trial judge cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses or substitute its judgment for that of the jury, nonmoving party must be given the benefit of all reasonable inferences in Rule 50(b) motion determinations). With this legal standard firmly in mind, for purposes of defendants' motion for judgment as a matter of law, the facts viewed in the light most favorable to the plaintiff can be briefly summarized as follows.

The verdict in this case was the culmination of protracted litigation between plaintiff and employees of the New York State Department of Correctional Services ("DOCS") extending over the course of almost a decade. On June 28, 1989, plaintiff, David McClary ("McClary") was sentenced to a term of imprisonment of 25 years to life after being found guilty by a jury of the crimes of murder in the second degree and criminal possession of a weapon in the second degree. The victim of McClary's crime was New York City Police Officer Edward Byrne. While McClary was the so-called "triggerman" in the murder of Officer Byrne, Howard "Pappy" Mason, an alleged New York City drug "kingpin," was separately charged in a federal prosecution with ordering McClary to "hit" Officer Byrne. The brutal and senseless murder of Officer Byrne and McClary's subsequent trial and conviction garnered substantial media attention at the time, particularly in the New York City area.

After sentencing, McClary was initially assigned to the Downstate Correctional Facility, but was soon transferred to Attica Correctional Facility ("Attica"). McClary arrived at Attica on July 11, 1989, and after administrative processing, was placed in the prison's general population. McClary was assigned the job of porter and was responsible for assisting in the maintenance of the building which housed the prison's school.

Although Attica is a maximum security facility, the disparities between a general population inmate and an inmate housed in the Special Housing Unit ("SHU"), the most restrictive and punitive prison housing classification used within DOCS, were described at length during the trial. While those differences will not be repeated in detail herein,*fn2 it is important to note that inmates assigned to a prison's general population openly interact with other general population inmates for a substantial portion of each day, including not only meals but also a variety of recreational, educational, vocational and religious activities. During the period of time McClary was at Attica, the prison housed over 2000 inmates, the vast majority of whom were in the prison's general population. It was undisputed at trial that during the time when McClary was part of Attica's general population, he never presented any disciplinary or security problems to prison officials.

On September 29, 1989, McClary was removed from Attica and transported to the Metropolitan Correctional Center ("MCC"), a federal detention center in New York City. According to McClary, he had no advance notice of the move or the reasons he was being placed into federal custody. On September 30, 1989, the day after McClary was removed from Attica, defendant Albert Hall, then the Deputy Superintendent of Security at Attica, received a written memorandum from a Lieutenant Malenski. (Trial Exhibit 1A). The Malenski memorandum informed Hall that Glenn Goord, the Deputy Commissioner of DOCS, had ordered that McClary be placed into administrative segregation when he returned to Attica from "court." The memorandum described McClary as the "triggerman" who "assassinated a New York City Police Officer" and was "tied in with the New York City drug trade." The memorandum referred to a "major arrest involving some family members that has resulted in inmate McClary and some other inmates volunteering to testify in court against other drug dealers."

On November 29, 1989, McClary was finally returned to Attica. He was not, however, returned to the prison's general population. Instead, McClary was immediately placed in administrative segregation in Attica's SHU, where he was confined to his cell alone for twenty-three hours per day, the only exception being a single hour when McClary was permitted outside to engage in solitary exercise in an SHU cage, or pen. For the next four years, three months and 19 days, and while confined in three different prisons, McClary remained in solitary confinement. In March 1994, almost four years after he commenced the present lawsuit, McClary was released from the SHU.

Much of the trial focused on the reasons for McClary's long-term assignment to SHU. Unlike most inmates confined in SHU, McClary's solitary confinement was not in response to any prison disciplinary infraction or punishment, but was classified as "Administrative Segregation." The jury heard testimony regarding New York State regulations which permitted administrative segregation only upon "a determination by the facility that the inmate's presence in general population would pose a threat to the safety and security of the facility." 7 N.Y.C.R.R. § 301.4(b). The relevant regulations, which were admitted in evidence, set forth the mandatory due process rights inmates have with respect to being placed and maintained in administrative segregation.*fn4

Defendant Hall testified that until the Goord memo arrived in September 1989, he had never heard of David McClary or the circumstances of his crime. (Trial Transcript, Volume II, at page 513-514). However, upon his return to Attica, McClary was served with a DOCS notice officially advising him of the basis for his recommended placement in administrative segregation. The notice, dated November 20, 1989, read: "Due to the inmates (sic) notoriety/crime his presence in general population would pose a threat to the safety/security of the facility at this time." (Trial Exhibit 3). At the conclusion of McClary's initial hearing at Attica, the hearing officer confirmed the administrative segregation recommendation and informed McClary that he would "pose a danger to the facility and your presence in general population would adversely effect the facility by your influence on other inmates in general population." (Trial Exhibit 2).

On July 31, 1990, McClary was transferred to the Southport Correctional Facility ("Southport"). Again, he was immediately placed in administrative segregation and afforded an initial due process hearing. At the conclusion of the hearing, the hearing officer informed McClary that "due to the notoriety of your crime that your presence in population would create a threat to the safety and security of this facility." (Trial Exhibit 5). McClary remained at Southport until March 19, 1991. During that time and pursuant to DOCS regulations, the Southport ASRC met sixteen times. After each meeting, the committee issued the following recommendation to Southport's Superintendent: "Continue Administrative Segregation. Recommend Transfer." (Trial Exhibit 7). A member of the ASRC during the time McClary was confined at Southport testified that the committee recommended transfer so that McClary could be placed in general population.*fn5 (Trial Transcript Vol. III at page 1323). McClary remained in administrative segregation at Southport until he was transferred to the Wende Correctional Facility ("Wende").

McClary arrived at Wende on March 19, 1991, and again was immediately placed in administrative segregation. At the conclusion of his initial due process hearing, the Hearing Officer ruled: "It is felt that this inmate's presence in general population poses a threat to the safety and security of this facility due to the notoriety of the crime for which inmate was convicted." (Trial Exhibit 8).

McClary remained at Wende for almost three years. He spent the entire time in solitary confinement in Wende's administrative segregation unit. Paul Mecca, McClary's correction counselor during the time McClary was at Wende, testified that on three separate occasions during McClary's first eight months at Wende, he recommended that McClary be transferred to a facility where he could be placed in general population and be able to participate in prison programming. (Trial Transcript, Volume III at pages 1396-1400). Each request was denied. Mecca testified that he could recall no other inmate who spent four years in administrative segregation. (Trial Transcript, Volume III at page 1416).

During the three year period McClary was confined at Wende, the need for his continued administrative segregation status was reviewed by the Wende ASRC. Defendant Branning, the Deputy Superintendent for Security at Wende, was the Chairperson of the Wende ASRC. Branning testified that McClary's administrative segregation status was reviewed every seven days for the entire time McClary was at Wende. (Trial Transcript, Volume III at page 1349). Defendant Irvin, the Superintendent of Wende, testified that after McClary had been in administrative segregation for 60 days, he reviewed McClary's status on a monthly basis. (Trial Transcript, Volume III, at pages 1379-1381). The Wende ASRC review forms, signed by both Branning and Irvin, however, profess weekly reviews of McClary's status. (Trial Exhibit 10). On March 12, 1994, McClary was transferred to the Shawangunk Correctional Facility and placed in the prison's general population.

Trial testimony also focused on the effect that administrative segregation had on McClary. For the entire period McClary was designated for administrative segregation, he was housed in SHU. Trial testimony confirmed that SHU is the most restrictive and punitive form of housing used by DOCS and that the SHU environment varies little from prison to prison. The vast majority of inmates who are in SHU are placed there for defined time periods as part of prison punishment. However, testimony also indicated that SHU houses a high percentage of actively mentally-ill inmates. (Trial Transcript, Volume II at page 692).

Because it is primarily a punitive housing environment, inmates residing in SHU are by regulation and practice given few options in their daily lives. Twenty-three hours a day are spent in their cells. All meals are eaten alone in their cells. SHU inmates are permitted one hour outside to exercise alone in a fenced cage or pen. SHU inmates are not allowed to use a telephone unless it is an emergency. Visitation, mail, personal property, clothing, educational, religious and recreational programming are all severely restricted for SHU inmates. The differences between SHU housing and general population housing in a maximum security prison were extensively discussed in this Court's prior Sandin decision, McClary v. Kelly, 4 F. Supp.2d 195, 203-06 (W.D.N Y 1998), and the trial testimony was fully consistent with those factual findings. Despite the fact that McClary was not assigned to SHU for disciplinary reasons, the conditions of his SHU confinement were identical to inmates housed in SHU as part of a prison disciplinary sentence meted out for punitive purposes.

The effects of prolonged isolation in SHU were described at length during the trial testimony of Dr. Stuart Grassian. (Trial Transcript, Volume II at pages 675-774). Grassian, a board certified psychiatrist and faculty member at the Harvard Medical School, had conducted research and published articles on the topic of "psychiatric effects of solitary confinement" and was familiar with SHU housing in New York State prisons. Grassian, who also testified at the Sandin hearing, believed that the toxic effects normally associated with prolonged solitary confinement in SHU were enhanced in McClary's situation because, unlike inmates sent to SHU for punitive purposes, McClary's confinement was unrelated to any affirmative prison misbehavior and was potentially limitless in duration. Id. at 701-02, 756-57. The details of Grassian's trial testimony regarding the psychological and physiological effects of spending over four years in solitary confinement need not be repeated in detail here, but his trial testimony was consistent with the testimony he gave in the earlier Sandin hearing. McClary v. Kelly, 4 F. Supp.2d at 205-07.

After two weeks of trial, the case was submitted to the jury on the morning of February 22, 1999. The jury deliberated until 8:30 p.m. The following day, the jury returned a verdict finding defendants Hall, Branning, Irvin and Coughlin liable for their personal involvement in the continued administrative segregation of McClary at Attica and Wende. After making a determination as to liability, the jury heard summations of counsel and instructions from the Court on the issue of damages. That evening, the jury returned its verdict as to damages, finding defendant Hall liable in the amount of $10,000 for his role in denying McClary procedural due process at Attica and finding defendants Branning, Irvin and Coughlin ...

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