Meriwether v. Coughlin

MAHONEY, Circuit Judge,

concurring in part and dissenting in part:

I join the majority in its determination that defendants’ Rule 50 motion was timely, its affirmance of the judgment n.o.v. on plaintiffs’ fourteenth amendment claim, and its reversal of the judgment n.o.v. on plaintiffs’ first amendment claim. I would, however, grant a new trial on plaintiffs’ first amendment claim, and would reverse the denial of judgment n.o.v. on plaintiffs’ eighth amendment claim, and therefore respectfully dissent to this extent. As a result, I would not reach any damages issues, but agree with the majority that the district court properly set aside the jury’s award of punitive damages.

A. First Amendment Claim.

I agree with the majority that defendants were not entitled to judgment n.o.v. on this claim, in view of the provision in Fed.R.Civ.P. 50(b) that a motion for judgment n.o.v. seeks “to have judgment entered in accordance with the party’s motion for a directed verdict,” and the construction that has been placed upon this rule by this and other courts that judgment n.o.v. is not properly awarded on a ground not advanced in the prior motion for a directed verdict. Baskin v. Hawley, 807 F.2d 1120, 1129-30 (2d Cir.1986).

I would, however, remand for a new trial on this claim. As mandated by Fed.R. Civ.P. 50(c)(1), the district court denied defendants’ motion for a new trial on this claim while granting its motion for judgment n.o.v. thereon. Under these circumstances, it is appropriate for us to consider “after reversing the grant of judgment, ... whether judgment should be entered on the verdict or whether there should be subse *1050 quent proceedings.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2540, at 620 (1971) (footnotes omitted).

Although not explicitly addressing the question of a new trial, the majority concludes that while “[t]he district court accepted the jury’s rejection of the asserted link between the plaintiffs and the insurrection plans, ... it should also have accepted the jury’s more general determination that the defendant’s witnesses were not credible [in asserting that any such plans existed].”

The district court summarized the evidence on this point, prior to a detailed consideration of it, as follows:

Eight corrections officials, all of whom were employed at Green Haven in the first half of 1980, testified that they had been told by informants in the facility that a violent insurrection was planned by inmates for some time in June or July 1980. Several of these witnesses testified that they had been told that the insurrection would take place on July 28, 1980_ These officers relayed this information to their superiors orally and in some instances in written memoranda, some of which were admitted into evidence. A number of these supervisors confirmed at trial that they received this information before plaintiffs were transferred.

The district court further determined that “[p]laintiffs offered nothing contradicting this evidence,” and that any jury verdict that prison officials “concocted the alleged planned insurrection in order to justify the transfer, or that Coughlin 1 knew of such a scheme if it existed,” would rest on impermissible speculation.

Because of the procedural posture in which this case reaches us, I need not consider whether the standard for judgment n.o.v. was met. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987) (judgment n.o.v. appropriate where jury verdict “ ‘could only have been the result of sheer surmise and conjecture’ ”) (quoting Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 168 (2d Cir.1980)). At a minimum, however, I would defer to the district court’s determination by concluding that the less stringent standard for granting a new trial, that “the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice,” Katara, 835 F.2d at 970 (citing cases), was met. I am fortified in this conclusion not only by the experienced district judge’s opportunity to assess the credibility of the witnesses who testified on this issue, but also by the Supreme Court’s recent reaffirmation that:

Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the Legislative and Executive Branches of Government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in [Procunier v. Martinez, 416 U.S. 396 [ 94 S.Ct. 1800 , 40 L.Ed.2d 224 ] (1974) ], additional reason to accord deference to the appropriate prison authorities. See id., at 405 [ 94 S.Ct. at 1807 ].

Turner v. Safley, 482 U.S. 78, 84-85 , 107 S.Ct. 2254, 2259 , 96 L.Ed.2d 64 (1987).

B. Eighth Amendment Claim.

The district court concluded that Scully and Coughlin could be found liable on this claim for the physical violence inflicted upon certain of the plaintiffs in the course of their transfers at the Green Haven, Downstate and Great Meadow correctional facilities because its infliction “was so foreseeable that defendants’ inaction during the transfer rose to the level of deliberate indifference or reckless failure to supervise.” This determination was based primarily upon the occurrence of physical abuse “in three correctional facilities within three weeks by different groups of cor- *1051 reetions officers;” the court deemed this “pervasive misconduct” to provide a reasonable basis for a jury inference of recklessness by defendants “in ignoring the risk that plaintiffs would be physically abused during the course of their transfer.” In addition, the district court specifically asserted that "Coughlin’s press secretary issued press releases that stated that the transferees had been planning a violent overthrow of Green Haven,” 2 which “information was reported in the print and electronic media.” The court concluded that the assaults in question should be considered “egregious not because they resulted in serious physical injuries, but because they were so widespread.” 3

The majority, in affirming, cites McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir.1983), as establishing that “supervisory liability may be imposed when an official has actual or constructive notice of unconstitutional practices and demonstrates 'gross negligence’ or 'deliberate indifference’ by failing to act.” The majority also notes that physical abuse occurred at three locations, satisfying the requirement expressed in City of Oklahoma City v. Tuttle, 471 U.S. 808 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985), that more than one incident occur.

McCann , however, involved challenged procedures at inmate disciplinary hearings, as to which we imposed liability because of the defendants’ knowledge that unconstitutional practices were taking place, and their failure to act on the basis of this information.” 698 F.2d at 125 (emphasis added). Here, on the contrary, the majority opinion and the district court premise liability upon defendants’ reliance upon subordinates and established procedures to preclude the infliction of retaliatory physical abuse, and failure to anticipate the problems that in fact occurred.

In my view, the application of the concept of “constructive notice" to the facts of this case to impose liability for a failure to predict and prevent eighth amendment violations undercuts the long established rule that: “Respondeat superior or vicarious liability will not attach under § 1983.” City of Canton, Ohio v. Harris, — U.S. -, 109 S.Ct. 1197, 1203 , 103 L.Ed.2d 412 (1989) (citing Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 694-95 , 98 S.Ct. 2018, 2037-38 , 56 L.Ed.2d 611 (1978)). In McCann , we rejected the defendants invocation of respondeat superior “because [defendants] had a sufficient degree of personal involvement in the unlawful practices” at issue. 698 F.2d at 125 . Here, by contrast, there is no assertion that defendants knew anything about the physical abuse of the transferred prisoners until after it happened, or that prior such incidents had occurred which should have alerted defendants to the necessity of closer supervision or better training of their subordinates.

I note also that, in the admittedly different context of a claimed failure to train police officers to recognize when a person in custody requires medical treatment, City of Canton explicitly rejected a standard of gross negligence or recklessness in favor of the stricter standard of deliberate indifference. See 109 S.Ct. at 1201, 1206-07 . This may indicate that the basic standards of liability applied both here and below are subject to question.

In any event, the district court imposed liability (while setting aside the award of punitive damages) on plaintiffs’ eighth amendment claim because the defendants “erred by not anticipating the repercussions that would follow their decision to single out the plaintiffs for transfer.” This strikes me as exactly the sort of 20-20 judicial hindsight which Turner v. Safley, echoing such prior Supreme Court admonitions as Bell v. Wolfish, 441 U.S. 520 , 548- *1052 49, 99 S.Ct. 1861, 1879 , 60 L.Ed.2d 447 (1979) (citing cases), enjoins federal courts to avoid in reviewing the actions of prison authorities. I therefore respectfully dissent from the majority’s affirmance of the district court’s denial of judgment n.o.v. dismissing plaintiffs’ eighth amendment claim.

. The jury found for Scully on the first amendment claim on the basis of qualified immunity, so only Coughlin contests the jury verdict on this claim.

. The transcript reference to which the district court cites appears to establish that Coughlin’s press secretary made oral statements to the press on the day that the transfer from Green Haven was initiated, but does not indicate that any press releases were issued.

. The evidence of "widespread" violations is somewhat ambiguous, in view of the fact that these transfers involved four other locations as to which no evidence of physical abuse was presented. Further, as the district court indicated, there was no medical evidence of injury at any location.