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LEE v. PEREZ

November 15, 2001

FREDERICK LEE, PLAINTIFF,
V.
JOHN PEREZ, ET AL., DEFENDANTS.



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 ground.

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. 1998). A 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.

SUMMARY OF EVIDENCE

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. (Tr.78))*fn2

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." (Tr. 245)*fn3

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 ...


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