The opinion of the court was delivered by: McMAHON, District Judge.
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR NEW TRIAL
Plaintiff Frederick Lee, having lost before a jury on claims
arising out of alleged constitutional violations in connection
with his November 20, 1998 arrest, brings a motion pursuant to
Fed.R.Civ.P. 50(b) for a new trial. Lee seeks a new trial
against one defendant, Corrections Officer ("CO") Gerald C.
Kehlenbeck. CO Kehlenbeck was the officer who conducted a strip
search of plaintiff at the Orange County Correctional Facility
("OCCF") on November 21, 1998, the morning after his arrest.
Plaintiff alleged that the strip search was unconstitutional,
both because prisoners at OCCF were routinely strip searched and
because there was no particularized probable cause to subject
him to such a search. Defendants countered that strip searches
were not routinely conducted on all prisoners at OCCF in 1998,
and urge that there was sufficient evidence for a jury to
conclude that CO Kehlenbeck had probable cause to conduct the
strip search. The jury found for Kehlenbeck on the latter
Motions for new trial should be granted when, in the opinion
of the District Court, the jury has reached a seriously
erroneous result, or if the verdict was a miscarriage of
justice. Atkins v. City of New York, 143 F.3d 100 (2d Cir.
trial court may find a miscarriage of justice if the jury's
verdict was seriously erroneous or against the weight of the
evidence. Stratton v. Dept. for the Aging for the City of New
York, 922 F. Supp. 857 (S.D.N.Y. 1996). A new trial may be
granted even if there is substantial evidence supporting the
jury's verdict. Moreover, the district court is free to weigh
the evidence and need not view it in the light most favorable to
the prevailing party. United States v. Landau, 155 F.3d 93,
104 (2d Cir. 1998). Nonetheless, a trial judge should only grant
such a motion when the jury's verdict is "egregious," such that
enforcement of the judgment would constitute a miscarriage of
justice. DLC Mgt. Corp. v. Town of Hyde Park, 163 F.3d 124,
134 (2d Cir. 1998).
In this case, the Court concludes that the jury's verdict was
seriously erroneous, and could not be sustained by any view of
the evidence. Indeed, no evidence whatever supports the verdict.
Therefore, the motion is granted.
The facts pertinent to the motion are as follows:
Frederick Lee was arrested on November 20, 1998, as a result
of an altercation with the police at the apartment of his
cousin, Ms. Ayesha Fulford. Ms. Fulford had been evicted from
the apartment by order of the City Court of the City of
Newburgh, New York. She asked Mr. Lee to remove some food items
from the apartment that had not been taken out the night before,
and to "secure" the apartment. (Tr. 28-31) When Mr. Rios, the
landlord, refused to let Mr. Lee into the apartment, plaintiff
refused to take no for an answer, and the two men got into a
fight. Mr. Lee called the Newburgh Police on his cell phone (Tr.
32-33), but he was the one who ended up under arrest, after he
tried to leave the area when instructed not to do so. He was
taken to the City of Newburgh Police Department, where he was
booked on charges of obstructing governmental administration,
disorderly conduct and criminal mischief. (Stip. Fact. No. 1;
County DX 10) Disorderly conduct is a violation (N.Y. Penal Law
§ 240.20) and the other two charges are Class A misdemeanors.
(N.Y. Penal Law §§ 145, 195.05)
At the time he was processed for his arrest, Lee had on his
person approximately $1200 in cash, a cell phone and a beeper.
(County DX 8)*fn1 He had a prior conviction for grand larceny
(Tr. 64 and was unemployed at the time of his arrest.
Lee spent the night in the holding cell adjacent to the City
Court in Newburgh. The next morning, Lee appeared for
arraignment in the Newburgh City Court. Bail was set at $250.
(Tr. 50) Lee asked if he could make his bail then and there,
using the money that had been taken from him upon his arrest. He
was told that bail could be paid only at the OCCF. (Tr. 50-51)
Lee was transported to OCCF later that morning by two Newburgh
police officers (Tr. 52-53). He arrived at approximately 11 AM.
(Tr. 247) When he arrived, he was in-processed at a desk, and
then returned to a cell. (Tr. 53-54)
Shortly thereafter, Mr. Lee was taken to another room, where
he was left alone with a corrections officer (whom Lee could not
identify). The Orange County defendants (including Kehlenbeck)
stipulated that Kehlenbeck had in-processed plaintiff, and that
this process included a "personal hygiene check/visual body
search." (Stipulated Fact No. 6) Thus, Orange County did not
dispute that Kehlenbeck conducted whatever inspection of
plaintiffs person occurred on November 21, 1998, even though Lee
could not identify the officer involved.
At trial Kehlenbeck testified that a "personal hygiene check"
is required of all prisoners arriving at OCCF. (Tr. 252) This
inspection, according to Kehlenbeck, consists of an inmate's
removal of his clothes, followed by a visual inspection of his
body. (Tr. 242) The prisoner must "strip" for the CO to conduct
the "personal hygiene check." The prisoner is issued a prison
uniform at the time he strips for the "personal hygiene check."
According to Kehlenbeck, a personal hygiene check is not the
same thing as a strip search. He described the difference as
follows: "Hygiene check would not consist of the inmate opening
his mouth or bending over and spreading his buttocks or looking
under his genitals. A strip search would. . . ." (Tr. 244).
According to Kehlenbeck, however, a "personal hygiene check" did
involve the inmate's removing all his clothing. (Tr. 242)
While Kehlenbeck routinely performed a "personal hygiene
check" on all incoming prisoners, he did not routinely conduct a
visual body cavity inspection. (Tr. 252) However, he might
determine that such an inspection was necessary, based on
information that came to his attention, or observations made,
while he was performing the personal hygiene check. (Tr. 245).
Circumstances indicating the need for a body cavity inspection —
a "strip search," in CO Kehlenbeck's parlance — included, "If an
inmate is acting peculiar, nervous, jittery, it may lead me to
believe that he is hiding something on his person, contraband,
drugs, weapons, and then I would go further with my search of
the inmate."*fn4 (Tr. 246) Kehlenbeck specifically denied
relying on the circumstances of the ...