The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff Ennis Hightower ("Hightower" or the "plaintiff")
brought this Section 1983 action against the Nassau County
Sheriff's Department and five correction officers (collectively,
the "defendants"), alleging violation of his Eighth Amendment
constitutional rights based on excessive force while he was a
pre-trial detainee at the Nassau County Correctional Facility. In
addition, the plaintiff also alleged causes of action under New
York State law sounding in battery.
The Section 1983 excessive force and batt1ery claims involved
two incidents which occurred on October 20, 1998; one at 10:00
a.m. and the other at 12:00 noon. In addition, the plaintiff
alleged another battery claim, which occurred on November 30,
The jury returned a verdict in favor of the defendants on the
October 20, 1998 10:00 a.m. incident as to both Section 1983
excessive force and battery. Also, the jury returned a verdict in
favor of the defendants on the November 30, 1998 battery claim.
However, the jury returned a verdict in favor of the plaintiff on
his October 20, 1998, 12:00 noon, Section 1983 and battery claims
against the defendants Correction Officers Matthew Anderson, John
Lagormarsino and Gary McGuinness. In compensatory damages, the
jury awarded the plaintiff the sum of $150,000 for his physical
injuries and pain and suffering and the sum of $65,000 for his
emotional distress to December 12, 2003, the date of the verdict.
In addition, the jury awarded punitive damages against three of
the correction officers in the total sum of $65,000. The monetary
damages awarded by the jury was the total sum of $280,000.
The defendants have moved (1) to amend their answer pursuant to
Rules 15(a) and 15(b) of the Federal Rules of Civil Procedure
("Fed.R. Civ. P.") to include the affirmative defense of failure
to exhaust administrative remedies, (2) for judgment as a matter
of law pursuant to Fed.R.Civ.P. 50(a) and 50(b) for failure to
exhaust and (3) for a new trial pursuant to Fed.R.Civ.P. 59 on
the ground the award for plaintiff's injuries and pain and
suffering was excessive. On his part, the plaintiff has moved
pursuant to 42 U.S.C. § 1988(b) and Fed.R.Civ.P. 54(d) for
attorneys fees and costs.
A. The Defendants' Motion to Amend their Answer and for
Judgment as a Matter of Law for Failure to Exhaust
The defendants move to amend their answer pursuant to
Fed.R.Civ.P. 15(a) and 15(b) to add the affirmative defense of failure
to exhaust administrative remedies as required by the Prisoner
Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The
plaintiff opposes this amendment, asserting prejudice and that
the defendants waived this affirmative defense due to delay.
"It is settled that grant of leave to amend the pleadings
pursuant to Rule 15(a) is within the discretion of the trial
court." Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 330, 28 L.Ed.2d 77, 91 S.Ct. 795 (1971). A
defendant's failure to raise an affirmative defense does not
automatically result in a waiver. See Lamont v. Frank Soup Bowl,
Inc., 99 CV 12482, 2000 U.S. Dist. LEXIS 18550, at *4 (S.D.N.Y.
Dec. 20, 2000).
Leave to amend is generally granted unless the amendment (1)
has been unduly delayed; (2) is sought for dilatory purposes or
is made in bad faith; (3) would cause undue prejudice on the
opposing party; or (4) would be futile. Foman v. Davis,
371 U.S. 178, 182, 91 L.Ed.2d 222, 83 S.Ct. 227 (1962). Absent bad
faith or undue prejudice, amendment should not be denied on the
basis of delay alone. See Rachman Bag Co. v. Liberty Mut. Ins.
Co., 46 F.3d 230, 234-35 (2d Cir. 1995).
To determine whether the opposing party would suffer undue
prejudice, the Court considers whether leave to amend would: "(1)
require the opponent to expend significant additional resources
to conduct discovery and prepare for trial; (2) significantly
delay the resolution of the dispute; or (3) prevent the plaintiff
from bringing a timely action in another jurisdiction." Lamont,
2000 U.S. Dist. LEXIS 18550, at *5 (citing Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). The burden is on the
plaintiff to establish that the amendment would be prejudicial.
In arguing for an amendment to add the affirmative defense, the
defendants contend that the plaintiff's excessive force claims
are subject to the PLRA's exhaustion requirements and that his
failure to exhaust mandates dismissal of the plaintiff's
complaint. The PLRA imposes a mandatory exhaustion requirement on
prisoners prior to commencing an action with respect to prison
conditions under 42 U.S.C. § 1983 or any other federal law.
42 U.S.C. § 1997e(a). However, as described by the Supreme Court in
Porter v. Nussle, 534 U.S. 516, 152 L.Ed.2d 12,
122 S.Ct. 983 (2002), at the time this action was commenced on May 3, 1999,
the law in the Second Circuit was that the PLRA "governs only
conditions affecting prisoners generally, not single incidents
that immediately affect only particular prisoners, such as
corrections officers' use of excessive force." Nussle, 534 U.S.
In the year 2002, the Supreme Court clarified the rule in
Porter v. Nussle, stating that "the PLRA's exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong." 534 U.S. at 532. After the Nussel decision, courts in
this Circuit have held that excessive force claims fit within the
category of "inmate suits about prison life," and therefore must
be preceded by the exhaustion of state administrative remedies
that are available. See McCoy v. Goord, 255 F. Supp.2d 233,
246 (S.D.N.Y. 2003).
In this Circuit, exhaustion under the PLRA is not
jurisdictional, but rather, an affirmative defense that must be
raised and proven by a defendant. See Ziemba v. Wezner,
366 F.3d 161, 163 (2d Cir. 2004). If a defendant fails to raise the
defense, it is deemed waived. See Travellers Int'l., A.G. v.
Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994).
The plaintiff argues that the defendants' have waived the
affirmative defense by failing to raise it sooner. The Court
When the defendants filed their answer, they did not raise the
affirmative defense and were not required to do so because the
PLRA did not, at the time, apply to excessive force claims. The
law in the Circuit changed in February 2002, and this case was
tried in December 2003. For a period of approximately 23 months,
the defendants failed to move to amend their answer to add the
affirmative defense. Nor did the defendants file a motion to
dismiss or motion for summary judgment to dismiss the complaint
on the basis of failure to exhaust under the PLRA. Instead, the
defendants waited until the eleventh hour at the trial for leave
to amend their answer.
The Court finds that granting the amendment would be
prejudicial to the plaintiff. The defendants contend that the
plaintiff testified at the trial that he could not remember
whether he had filed a grievance under the procedure. The
defendants further assert that, at the close of the evidence, the
plaintiff stipulated that he never followed the required
procedure but claimed that he formally exhausted his
administrative remedies by filing a complaint with the Internal
Affairs Unit of the Nassau County Sheriff's Department and with
Deputy Sheriff Donahue of the Department.
Significantly, the Court notes that the failure to exhaust may
be excused where
(1) an inmate was led to believe by prison officials
that his alleged incident was not a "grievance
matter" and assured that his claims were otherwise
investigated . . ., (2) an inmate makes a "reasonable
attempt" to exhaust his administrative remedies,
especially where it is alleged that corrections
officers failed to file or otherwise impeded or
prevented his efforts, . . .
Williams v. United States, et al., No. 02 Civ. 6523, 2004 U.S.
Dist. LEXIS 7291, at *18-19 (S.D.N.Y. Apr. 26, 2004) (citing
O'Connor v. Featherston, No. 01 Civ. 3251, 2002 U.S. Dist.
LEXIS 7570, at *2 (S.D.N.Y. Apr. 29, 2002)). As aptly noted by
one court, "prison officials cannot have it both ways they
cannot obstruct an inmate's pursuit of administrative exhaustion
on the one hand and then claim the inmate did not properly
exhaust these remedies on the other." Arnold v. Goetz,
245 F. Supp.2d 527, 537 (S.D.N.Y. 2003).
According to Hightower, despite his request, he was never given
a formal form to file a grievance. As a result, he filed a
grievance with the Grievance Department of the jail on regular
writing paper without using the proper forms. Even after he filed
a grievance with the Grievance Department, the plaintiff still
did not receive any written response. In another attempt, the
plaintiff submitted a written complaint to the Nassau County
Sheriff's Department. A Deputy Sheriff by the name of Donahue
visited the plaintiff, but Hightower was uncertain whether his
visit was a result of his grievance.
In an affidavit, the plaintiff's counsel states that, because
of the defendants' failure to interpose the affirmative defense,
the plaintiff made no request for production of any documents
relating to the grievances filed by the plaintiff. The
plaintiff's counsel also explains that he never discussed or
researched the issue of exhaustion with Hightower because that
issue was never raised. According to counsel, the amendment
sought would be prejudicial to the plaintiff because additional
discovery would be necessary to determine "how Nassau County Jail
administrated its administrative remedies, what happened in
situations where plaintiff made numerous complaints of the same
issues through different individuals and agencies within the
County, and whether any hearings were conducted on plaintiff's
numerous complaints." In essence, it appears the plaintiff is
arguing that additional discovery would be needed to show that
Hightower made a reasonable attempt to file a grievance but due
to various failures by the defendants, he was prevented from
following the formal grievance process.
The Court finds that the plaintiff has demonstrated that he
would be deprived of the right to re-open discovery to determine
whether the plaintiff was excused from exhausting his
administrative remedies because the correctional institution
failed to provide him with sufficient information about the
grievance procedure or interfered with his ability to file a
grievance. An amendment now would deprive the plaintiff of an
indispensable right, which does constitute prejudice in the legal
sense. Accordingly, due to the defendants' delay in filing their
motion, an amendment now would cause undue prejudice to the
plaintiff, and the defendants' motion for leave to amend the
answer is denied. As such, the defendants' motion for judgment as
a matter of law for failure to exhaust is also denied.
B. The Defendants' Motion for a New Trial on Damages Pursuant
to Fed.R.Civ.P. Rule 59
The defendants move for a new trial on damages with respect to
the awards for physical injuries and emotional distress "unless
the plaintiff accepts a remittitur in the amount of $85,000."
Dft. Memorandum at p. 24.
The decision whether to grant a new trial following a jury
trial under Rule 59 is "committed to the sound discretion of the
trial judge." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d
Cir. 1992), cert. denied, 508 U.S. 952, 124 L.Ed.2d 662,
113 S.Ct. 2445 (1993). "This discretion includes overturning
verdicts for excessiveness and ordering a new trial without
qualification, or conditioned on the verdict winner's refusal to
agree to a reduction (remittitur)." Textile Deliveries, Inc. v.
Stagno, 52 F.3d 46, 49 (2d Cir. 1995). Even if substantial
evidence exists to support the jury's verdict, a court has the
power to grant a new trial under Rule 59. See Song v. Ives
Laboratories, Inc., 957 F.2d 1040, 1047 (2d Cir. 1992).
In general, a motion for a new trial should not be granted
unless the court is "convinced that the jury has reached a
seriously erroneous result or that the verdict is a miscarriage
of justice." Hugo Boss Fashions, Inc. v. Fed. Ins. Co.,
252 F.3d 608, 623 (2d Cir. 2001). In determining whether the jury
reached a "seriously erroneous" result, the district court "is
free to weigh the evidence and `need not view [the evidence] in
the light most favorable to the verdict winner.'" Farrier v.
Waterford Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002)
(quoting DCL Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
134 (2d Cir. 1998)).
The defendants argue that, because the jury was presented
jointly with both Hightower's Section 1983 claims and pendent
state law claims for battery, the Court must determine
excessiveness under both federal and state law. However, the
plaintiff asserts that a review of excessiveness under state law
is improper. The plaintiff's view is misplaced.
In cases where a jury awarded lump sum damages encompassing
both federal and pendent state claims, excessiveness is measured
under both federal and state law. See Martinez v. Gayson, No.
95 Civ. 3788, 1998 U.S. Dist. LEXIS 12281, at *14 (E.D.N.Y. June
30, 1998) (citing Mason v. City of New York, 949 F. Supp. 1068,
1075 (S.D.N.Y. 1996)). Here, the lump sum award is both for a
violation of Federal Section 1983 and the state law claims for
battery. Thus, the Court will review the award under both
Under federal law, an award will not be disturbed unless it is
"so high as to shock the judicial conscience and constitute a
denial of justice." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.
1990). In contrast, under New York law, a trial court reduces an
award when it "deviates materially" from reasonable compensation
as measured by awards in similar cases. N.Y.C.P.L.R. § 5501(c).
The "deviates materially" standard is less deferential to a jury
verdict than the "shock the conscience" standard because the
state law standard "does not permit a reviewing court to sustain
a damage award that is out of line with other awards for similar
injuries, even if the amount [sic] the jury awarded was not
shocking to the court's conscience." Fowler v. New York ...