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July 19, 2004.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


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, 1998.

  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. Id.

  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. at 520.

  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 agrees.

  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 standards.

  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 ...

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