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holding that the plaintiff's Eighth Amendment "prison condition case" did not present a new Bivens context
Summary of this case from Mammana v. DoesOpinion
9:11-CV-287 (DJS)
2020-05-29
Ellis WALKER, Plaintiff, v. Deborah SCHULT, Russell Perdue, and Jackii Sepanek, Defendants.
OF COUNSEL: LEAH FRIEDMAN, ESQ., WILLIAM O. RECKLER, ESQ., BLAKE T. DENTON, ESQ., SHARON M. CASOLA, ESQ., GREGORY S. MORTENSON, ESQ., MEGAN A. BEHRMAN, ESQ., SINDHU BODDU, ESQ., AMANDA C. MEINHOLD, ESQ., LATHAM & WATKINS, LLP, Attorneys for Plaintiff, 885 Third Avenue, Suite 1000, New York, NY 10022. OF COUNSEL: JAMES G. BARTOLOTTO, ESQ., KELLY E. HEIDRICH, ESQ., U.S. DEPARTMENT OF JUSTICE, Specialized Tort Litigation, Attorneys for Defendants, 1425 New York Avenue NW, Washington, DC 20005. OF COUNSEL: JEAN M. CUNNINGHAM, ESQ., U.S. DEPARTMENT OF JUSTICE, Civil Division, Attorneys for Defendants, P.O. Box 7146, Ben Franklin Station, Washington, DC 20044.
OF COUNSEL: LEAH FRIEDMAN, ESQ., WILLIAM O. RECKLER, ESQ., BLAKE T. DENTON, ESQ., SHARON M. CASOLA, ESQ., GREGORY S. MORTENSON, ESQ., MEGAN A. BEHRMAN, ESQ., SINDHU BODDU, ESQ., AMANDA C. MEINHOLD, ESQ., LATHAM & WATKINS, LLP, Attorneys for Plaintiff, 885 Third Avenue, Suite 1000, New York, NY 10022.
OF COUNSEL: JAMES G. BARTOLOTTO, ESQ., KELLY E. HEIDRICH, ESQ., U.S. DEPARTMENT OF JUSTICE, Specialized Tort Litigation, Attorneys for Defendants, 1425 New York Avenue NW, Washington, DC 20005.
OF COUNSEL: JEAN M. CUNNINGHAM, ESQ., U.S. DEPARTMENT OF JUSTICE, Civil Division, Attorneys for Defendants, P.O. Box 7146, Ben Franklin Station, Washington, DC 20044.
POST-TRIAL DECISION AND ORDER
Daniel J. Stewart, U.S. Magistrate Judge
This Bivens action was tried before the Court in January 2020. On January 29, 2020, the Jury returned a verdict in favor of Plaintiff and against two of the Defendants, Dr. Deborah Schult and Jackii Sepanek, who were, respectively, the Warden and a Counselor at the Federal Correctional Institution located at Ray Brook, New York, where Plaintiff was confined as an inmate. Dkt. No. 271. The Jury concluded that Plaintiff's conditions of confinement in Cell 127 at the Mohawk B Housing Unit, where Plaintiff was housed for 880 days, posed a substantial risk of serious damage to Plaintiff's health or safety, or that these conditions denied him the minimal civilized measure of life's necessities or basic human needs. Id. The Jury further concluded that Plaintiff had established that both Warden Schult and Counselor Sepanek were deliberately indifferent to the conditions that Plaintiff faced in his cell, and that their deliberate indifference was a proximate cause of injuries to Plaintiff. Id. Plaintiff was awarded $20,000 in compensatory damages. Id.
A third Defendant, former Ray Brook Warden Russell Purdue, was found not responsible by the Jury. Dkt. No. 271. Defendant Purdue's Rule 50 Motion is therefore denied as moot. See Velez v. Bell , 2006 WL 1738076, at *1 (S.D.N.Y. June 22, 2006). This Decision and Order is hereinafter limited to Defendants Sepanek and Schult ("Defendants").
At the close of Plaintiff's proof, counsel for Defendants made a Motion to Dismiss Plaintiff's claim pursuant to FED. R. CIV. P. 50. Dkt. Nos. 273 through 273-6, Trial Transcript ("Tr."), at pp. 994-1002. Consistent with accepted practice in the Second Circuit, the Court reserved decision and permitted the case to go to the Jury. See , e.g. , Vasquez v. New York City Dep't of Educ. , 2015 WL 3619432, at *3 (S.D.N.Y. June 10, 2015) ("District courts generally reserve judgment and submit the case to the jury so that, in the event the court of appeals reverses the judgment as a matter of law, the need for a second trial will be avoided.") (internal quotation omitted); Tr. at p. 1002. That Motion was then renewed by Defendants at the close of all the proof and the Court once again reserved. Tr. at pp. 1096-1099. The case then went to verdict with the Jury.
Reference in this Decision to the Trial Transcript is made to the page number found in the top right of the transcript itself, rather than the CM/ECF designation.
Defendants’ Rule 50 Motion has three components. First, Defendants maintain that a Bivens prison condition case such as this is not recognized by the Supreme Court as actionable. Second, even if such a Bivens claim may proceed, Defendants maintain that an Eighth Amendment violation was not established by the facts presented at trial by Plaintiff. Finally, Defendants argue that, based upon the facts and the law, both Warden Schult and Counselor Sepanek are entitled to the defense of qualified immunity. See generally , Dkt. No. 200, Defs.’ Trial Brief; Dkt. No. 216, Defs.’ Renewed Mot. For S.J.; Tr. at pp. 994-1002, 1096-1099; & Dkt. No. 275, Defs.’ Post-Trial Letter Brief at pp. 1-17. In the event that the Court rules that Plaintiff's claim should stand, and that one or both of the Defendants are denied qualified immunity, Defendants move under Rule 59(e) to reduce the $20,000 award of the Jury to $1.00, based upon Plaintiff's failure to prove any physical injury as a result of the unconstitutional conduct. Defs.’ Post-Trial Letter Brief at pp. 17-19.
Plaintiff opposes these Motions. Dkt. No. 111, Pl.’s Mem. of Law in Opp. to Defs.’ Renewed Mot. for S.J.; Dkt. No. 228, Pl.’s Trial Brief; Tr. at pp. 997-1002; & Dkt. No. 276, Pl.’s Post-Trial Letter Brief at pp. 1-11. His position is that the Jury's verdict finding an Eighth Amendment violation was fully supported by competent and admissible evidence; that a Bivens action is properly stated under the authority of Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ; and that qualified immunity would not apply as each Defendant was found to have acted with deliberate indifference and, as such, they could not have acted with objective reasonableness. Id. Plaintiff also opposes any reduction in the Jury verdict award and maintains that any claimed limitation under the Prison Litigation Reform Act ("PLRA") has been waived by Defendants’ failure to raise this issue as an affirmative defense in their Answer. Id.
For the reasons that follow, Defendants’ Motions are denied.
I. THE RULE 50 STANDARD
A district court may set aside a jury's verdict pursuant to Rule 50 only where there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Bucalo v. Shelter Island Union Free Sch. Dist. , 691 F.3d 119, 127-28 (2d Cir. 2012) (internal quotations omitted). When evaluating a motion under Rule 50, courts are required to "consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Tolbert v. Queens Coll. , 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bolt Prods., Inc. , 861 F.2d 363, 367 (2d Cir. 1988) ). "The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Id. In addition, the Court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "In assessing defendants’ sufficiency challenge, we review the trial evidence not only in the light most favorable to [Plaintiff], but also mindful that defendants operated under an affirmative duty to protect those held in their custody." Cash v. Cty. of Erie , 654 F.3d 324, 335 (2d Cir. 2011) (internal quotations and citations omitted).
II. BIVENS EIGHTH AMENDMENT PRISON CONDITION CLAIMS
In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights are violated by state officials. No such statutory remedy was provided for constitutional claims against federal officials acting under color of federal law. Nevertheless, in 1971 in Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. In the following decade, the Supreme Court expressly allowed Bivens -type remedies twice more, in a Fifth Amendment gender discrimination case, Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and in an Eighth Amendment Cruel and Unusual Punishment Clause case, Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In the forty years since Carlson , the Supreme Court has sharply limited other types of implied damages remedies under the Constitution. See Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1855, 198 L.Ed.2d 290 (2017). Any effort to extend Bivens , Davis , or Carlson , is now considered a "disfavored" judicial activity. Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The Supreme Court has articulated a two-part test for determining whether a Bivens remedy should be extended: "We first inquire whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants.’ " Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020) (quoting Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ). "When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any special factors [that] counse[l] hesitation about granting the extension." Id. (internal quotations and citations omitted). "If there are - that is, if we have reason to pause before applying Bivens in a new context or to a new class of defendants - we reject the request." Id.
In Abbasi , the Supreme Court addressed the threshold question, holding that the "proper test" to determine whether the claim is asserting a Bivens remedy in a new context is to ask whether "the case is different in a meaningful way from previous Bivens cases." Ziglar v. Abbasi , 137 S. Ct. at 1859. The Court then provided a non-exhaustive list of "differences that are meaningful enough to make a given context a new one":
A case might differ in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the official action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or [7] the presence of potential special factors that previous Bivens cases did not consider.
Id. Applying the Abbasi analysis, the Court concludes that the present prison condition case does not present a "new context," when considered against both Carlson v. Green , and importantly, the Supreme Court's later decision in Farmer v. Brennan . In Farmer v. Brennan , the Supreme Court specifically allowed a Bivens action to proceed against federal prison officials, upon the ground that they violated the Eighth Amendment by being deliberately indifferent to an inmate's safety. 511 U.S. 825, 829, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "Though the majority in Abbasi did not acknowledge that the Court had explicitly ‘approved of an implied damages remedy’ in Farmer , neither did it reject that it had recognized the availability of a Bivens remedy in the context presented by Farmer . " Garraway v. Cuifo , 2020 WL 860028, at *2 (E.D. Cal. Feb. 21, 2020). This Court is not empowered to presume that simply because Abbasi does not reference Farmer that the case has been somehow impliedly overruled. Agostini v. Felton , 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (expressly rejecting notion that other courts should presume that "more recent cases have, by implication, overruled an earlier precedent."). Indeed the Supreme Court has instructed "the lower courts to ‘follow the case which directly controls,’ even if that precedent ‘appears to rest on reasons rejected in some other line of decisions.’ " Garraway v. Cuifo , 2020 WL 860028, at *2 (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ).
As noted hereafter, the Second Circuit considered whether Plaintiff's allegations set forth a plausible Bivens action, and it ruled that it did, citing to both Bivens and Farmer v. Brennan . Walker v. Schult , 717 F.3d 119, 123 (2d Cir. 2013). While this decision was rendered after Iqbal , it was issued years prior to Abbasi , and therefore a discussion as to whether this case presents a "new context" is appropriate.
This case involves the same constitutional right at issue in Carlson and Farmer ; the same rank of some of the officials involved in Farmer ; the same extensive judicial guidance regarding the Eighth Amendment's cruel and unusual punishment clause; the same potential for intrusion by the courts into custody issues; and the same special factors already considered by Green and Farmer , to wit, the existence of a potential remedy under the Federal Tort Claims Act as well as the ability of a particular officer to respond to a situation within the limitations of his or her position. Cf. Ziglar v. Abbasi , 137 S. Ct. at 1864 (alleged prisoner abuse by warden in violation of the Fifth Amendment, and not the Eighth Amendment, was a small but meaningful difference that required the district court to conduct a special factors analysis); Widi v. Hudson , 2019 WL 3491250 (N.D.N.Y. August 1, 2019) (finding First Amendment claim by an inmate was a new context and therefore barred). In light of this conclusion, a further consideration of factors counseling hesitation is not required.
Defendants argue that Carlson dealt specifically with medical neglect and was not a prison condition case such as the one at bar, and that this difference in circumstance creates a new context that should not be allowed. Dkt. No. 275 at p. 1. There is certainly some support for this position. See , e.g. , Schwarz v. Meinberg , 761 Fed. Appx. 732, 734 (9th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 468, 205 L.Ed.2d 278 (2019) (Schwarz's Eighth Amendment claim regarding unsanitary cell conditions presents a new Bivens context because Schwarz does not allege a failure to treat a serious medical condition); Gonzalez v. Hasty , 269 F. Supp. 3d 45, 64 (E.D.N.Y. 2017) ("Looking at the context of the nonmedical claims, we are very far from the facts of Carlson "). Nevertheless, a review of Supreme Court precedent leads this Court to a contrary conclusion.
In Carlson , the Supreme Court recognized a Bivens action in circumstances where the allegation was that federal prison officials withheld proper medical attention, resulting in the death of an inmate. 446 U.S. 14, 17, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The constitutional standard imposed by Carlson , referencing Estelle v. Gamble , was one of deliberate indifference, as such conduct constitutes the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Id. (citing Estelle v. Gamble 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). The purpose of the Bivens claim in Carlson was to deter individual federal officers from committing constitutional violations. Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Therefore, the existence of a Federal Tort Claims Act action against the United States was not a factor counseling hesitation. Carlson v. Green , 446 U.S. at 20, 100 S.Ct. 1468.
The Supreme Court was later asked to apply a different constitutional standard in a Section 1983 Eighth Amendment conditions of confinement case than that which it articulated in Carlson , on the basis that the nature of the claims were different. Wilson v. Seiter , 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). However, the Supreme Court refused to recognize any such dichotomy because it could not identify any material difference, in the prison context, between conditions of confinement and medical care. As stated in Wilson :
Indeed, the medical care a prisoner receives is just as much a "condition" of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates. There is no indication that, as a general matter, the actions of prison officials with respect to these nonmedical conditions are taken under materially different constraints than their actions with respect to medical conditions.
Id. at 303, 111 S.Ct. 2321.
Three years later, Farmer was decided. Although Farmer is discussed at length later in this decision, the significance of the Supreme Court considering and approving, impliedly or otherwise, of an Eighth Amendment Bivens action based on prison conditions, cannot be understated. Abbasi ’s reference to three types of Bivens cases recognized by the Court can, therefore, be reconciled with the Farmer decision by recognizing that the conditions of confinement actions under the Eighth Amendment includes both medical care and safety, and they are not distinct claims. And while the Court in Abbasi did remand its particular prisoner abuse claim back to the district court for a special factors analysis, it did so because there was a different constitutional violation involved: the Fifth Amendment, and because the judicial guidance on a Fifth Amendment claim was less developed, especially with regard to a supervisory claim against the warden. Ziglar v. Abbasi , 137 S. Ct. at 1864-1865. Here, the constitutional violation proven at trial was the same as that in Carlson and Farmer , for which there was a substantial amount of judicial guidance, and while Plaintiff had asserted a supervisory liability claim against Warden Schult, he discontinued it prior to the conclusion of trial.
It is crystal clear that the Supreme Court does not desire any extension of Bivens , and where a proposed constitutional claim is presented in a context not previously recognized by the Court, a whole host of reasons will now counsel hesitation and, indeed, a full stop. Nevertheless, the Supreme Court has not overturned its prior Bivens cases, including Carlson and Farmer , despite suggestions that it do so. See Corr. Servs. Corp. v. Malesko , 534 U.S. at 75, 122 S.Ct. 515. (Scalia, J. concurring) (" Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action ..."). That leaves trial courts to decipher those few cases which are covered by prior Supreme Court precedent. This case is one of them.
III. SUFFICIENCY OF THE EVIDENCE AT TRIAL
Prior to trial in this case, the factual allegations of this matter had been considered on appeal by the Second Circuit, and therefore this Court has the substantial benefit of that prior ruling. The Second Circuit noted that to state an Eighth Amendment claim based upon conditions of confinement the inmate must show that: "(1) objectively, the deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the defendant official acted with a sufficiently culpable state of mind ..., such as deliberate indifference to inmate health or safety." Walker v. Schult , 717 F.3d 119, 125 (2d Cir. 2013) (internal citations omitted).
The Second Circuit noted that it was Mr. Walker's responsibility to show that the conditions of his confinement, considered "either alone or in combination, pose[d] an unreasonable risk of serious damage to his health." Id. The Circuit further noted that "prison officials violate the Constitution when they deprive an inmate of his basic human needs, such as food, clothing, medical care, sleep, and safe and sanitary living conditions." Id. In order to make a claim, however, Mr. Walker must also show that each Defendant was aware of, and disregarded, an excessive risk to his health or safety or, stated another way, that the prison official acted with deliberate indifference. See id. In the case of Mr. Walker, who at the time was six foot four and weighed 255 pounds, the Second Circuit concluded that his allegations that he was assigned to a six-man cell for twenty-eight months, during which time he had less than six square feet of moving space, was subjected to poor ventilation and sanitation, was unable to sleep, and was at constant risk of harm from his cellmates, sufficiently alleged cruel and unusual punishment to withstand a Rule 12(b)(6) dismissal motion. Id. at 126-30.
At trial, Plaintiff presented testimony about each of these allegations, including their duration and their damaging effect on him and, in particular, that Cell 127 was severely overcrowded, violent, unsanitary, loud, and poorly ventilated. See generally Tr. at pp. 109-370. The parties stipulated to the actual dimensions of this six-man cell which, when fully occupied, left an unencumbered space per inmate of slightly over 16 feet or, stated in other terms, slightly more than a four-by-four-foot square. Pl. Tr. Ex. 110. Plaintiff testified in detail regarding the unique overcrowding and sanitary issues that were presented by the cell, and the danger of physical violence that resulted. See , e.g. , Tr. at pp. 110 & 121-126. Plaintiff's testimony was that, because of these overcrowded conditions and the resulting complications, he did not feel safe during his entire time within the cell. Tr. at pp. 120 & 123. He had trouble sleeping, averaging only three and a half hours per night. Tr. at pp. 145 & 148. The other inmates slept with weapons. Tr. at p. 121. There were numerous fights within the cell and, in one circumstance, an inmate attempted to stab Plaintiff in the head while he was in the recreation yard because of a dispute regarding urine on the floor in Cell 127. Tr. at pp. 121-126.
Plaintiff is correct that his conditions of confinement are to be considered in the aggregate and not in separation, and accordingly, specific conditions that may not themselves rise to the level of a constitutional violation, may nevertheless be considered by the Jury in making the ultimate decision of whether Plaintiff was denied basic life necessities.
The testimony of fellow inmate Furman Odom was generally consistent with Plaintiff's description of the cell, and the cell's dangerous and objectionable conditions were obvious to him from the onset. Indeed, when he was first presented with the prospect of going in the cell, he was determined not to do so. Tr. at p. 373 ("I wasn't going in. I didn't want to go in there. It was too many people in there for that cell."). Mr. Odom later testified "I did my crime, but to go through that, I'm not a softy, but to go through that, I should never have had to go through that .... That cell was crazy." Tr. at pp. 395-396. Mr. Odom testified that he only went in the cell after Defendant Sepanek made a promise to him that he would only have to endure the conditions for thirty to forty-five days. Tr. at p. 393. Mr. Odom confirmed that the inmates, including himself, slept with weapons; that there were fights within the cell; and that Mr. Walker, in particular, was at a heightened risk in the cell due to his size. Tr. at pp. 377-378 & 405.
Plaintiff also presented expert proof to the Jury. Martin Horn, a professor at John Jay College with 50 years of experience in corrections, and a former member of the American Correctional Association ("ACA"), testified that the cell did not comply with ACA standards and in fact represented one of the most severely overcrowded housing units that he had ever seen. Tr. at pp. 482, 491, & 528. In short, Professor Horn's opinion was that the conditions of Cell 127 during Mr. Walker's confinement were unacceptable, inhumane, and were detrimental to the safety and wellbeing of the people that were housed there. Tr. at pp. 491 & 519.
Dr. James Gilligan, a Harvard-trained doctor and the former Director of Mental Health for the Massachusetts prison system, testified that after reviewing the evidence provided to him, it was his opinion that Plaintiff was held in Cell 127 under cruel, degrading, and inhumane conditions. Tr. at pp. 952-958. His conclusion was based upon what he characterized as the "grossly inadequate amount of floor space" in the cell, and that this fact, among others, led to both violence and the fear of violence on a constant basis. Tr. at pp. 965-967. He testified further that these conditions had a significant damaging effect upon Plaintiff, including causing symptoms of PTSD, sleep deprivation, psychological symptoms, and flashbacks. Tr. at pp. 958-959. Dr. Gilligan noted that the fact that Plaintiff was subjected to these conditions for multiple years is a significant and important factor because, over time, the cumulative effect of these conditions amounted to psychological torture. Tr. at p. 961. In other words, the duration of the conditions induces a feeling of "learned helplessness," and the belief that "I am nothing." Tr. at p. 973.
On the issue of notice, Plaintiff testified that he specifically complained to each Defendant about the overcrowded, unsanitary, and unsafe conditions in his cell, both orally and in writing. See Tr. at pp. 146, 149-153, & 167-168. Plaintiff's BP-8 and BP-9 forms, which were admitted into evidence, also establish that Defendants Sepanek and Schult received written notice of at least some of the complaints about which he testified at trial. Joint Trial Exs. 4 & 5. While Defendants each denied that they received such repeated direct notice and denied that the conditions of Cell 127 were as Plaintiff alleged, that presented a credibility issue for the Jury to determine, and it is evident that it was resolved in Plaintiff's favor.
On the issue of causation, Plaintiff presented proof that after he notified Defendants of the conditions of his cell, no investigation was conducted, and no relief was provided for over two years. Tr. at pp. 149-153, 164-165, & 583; see also Joint Trial Ex. 4, (Plaintiff's BP-8 which does not detail any substantive response) & Joint Trial Ex. 5 (Plaintiff's BP-9 which is similarly lacking any investigative detail). The expert proof was that Defendants’ responses to Plaintiff's complaints did not comply with good practice, and were simply pro forma responses, and that Warden Schult's response was inaccurate and misleading. Tr. at pp. 496-499.
According to Plaintiff, he began to complain in early 2009, and was not moved out of the cell until April 2011. Tr. at pp. 152 & 769; Joint Trial Ex. 11.
Most importantly, the proof at trial could fairly be read to establish that both Defendants had it within their power to remedy the situation by moving Plaintiff out of the cell but chose not to do so. Tr. at pp. 168, 239, 470, 512, 655, 702, 767, & 916. In one telling response at trial, Plaintiff's counsel confirmed that Defendant Sepanek had the ability to remedy the situation, and did not do so because she felt that Plaintiff had not asked in a proper fashion:
Q. Ms. Sepanek, you just testified there was absolutely nothing you could do?
A. That's correct.
Q. But it was within your power to move Mr. Walker to another cell, correct?
A. Correct, but that wasn't what was stated in the BP8.
Tr. at p. 767.
This evidence was therefore sufficient to support a causal connection. See , e.g. , Rodriguez v. Sec'y for Dep't of Corr. , 508 F.3d 611, 622 (11th Cir. 2007) ("a plaintiff demonstrates the ‘necessary causal link’ in this context where he is able to show that the prison official (1) ‘had the means substantially to improve’ the inmate's safety, (2) ‘knew that the actions he undertook would be insufficient to provide the inmate with reasonable protection from violence,’ and (3) had other means [ ] available to him which he nevertheless disregarded.") (quoting LaMarca v. Turner , 995 F.2d 1526, 1539 (11th Cir. 1993) ).
Defendants advanced two other arguments on the issue of liability which require additional comment. First, Defendants argue that they could not have violated Plaintiff's rights under the Eighth Amendment because they were not the ones who constructed the six-man cells in Ray Brook FCI, and they were also not responsible for the number of inmates that the Federal Bureau of Prisons sent to the Ray Brook Facility. Defs.’ Post-Trial Letter Brief at pp. 11-12. Second, they have argued repeatedly that any liability is precluded because Plaintiff failed to make a specific request to transfer out of the cell. See Tr. at p. 1218.
The testimony at trial was that the six-man cells were created in 2000 by "renovating" two two-man cells by taking out the wall in-between. Tr. at pp. 639 & 641-642. The result was that a space that was originally designed for four people, with bunks and fixtures, now housed six inmates with two additional bunks. Calculations at trial established that, when fully occupied, the six-man cell provided for 16.5 feet of unencumbered space per person, which was below the ACA non-mandatory standard 4-4132. Tr. at pp. 467 & 474.
Again, the Court considers the evidence in the light most favorable to Plaintiff. As to the first argument, the fact that Ray Brook, consistent with other federal facilities, was overcrowded and that Defendants did not create the six person cells were facts not disputed by Plaintiff at trial. As noted by Plaintiff's own expert Martin Horn: "Sometimes you've got overcrowded -- as I say, the court sends inmates. You can't say sorry, Judge, we're not taking them today. We did a variety of things, but ultimately, you have to hold the inmates ... So you have to come up with temporary solutions." Tr. at p. 489. The critical question at trial, therefore, was how Defendants responded to the situation. The testimony at trial was that Defendant Sepanek oversaw the placement of Plaintiff in this particular six-man cell from the onset, and that both Defendants Sepanek and Warden Schult had the ability to move Plaintiff out of that cell at any point in time, but never did so.
The Jury could have concluded that the reason why Mr. Walker was not moved, despite the dangerous and inhumane conditions of Cell 127, was that Defendants were simply indifferent to his situation because, for example, Mr. Walker was a large inmate who they perceived could take care of himself, Tr. at p. 686 ("I probably spoke to Mr. Walker about this and space that was in the room. I don't have any knowledge of anyone being beat. Like I told you, he's a huge, huge inmate."), or because they deferred completely to the system where inmates themselves find a new bunkmate with available space, a procedure that was less problematic for the staff than having to make independent housing decisions. Tr. at pp. 667-669.
Simply because corrections officials are faced with a difficult situation not of their own making, does not relieve them of their constitutional duty to act reasonably to alleviate the unconstitutional conditions of which they have knowledge. Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Farmer , the Warden and the individual corrections officials may not have been responsible for the fact that Dee Farmer, a transsexual with female characteristics, was assigned to their facility. Nevertheless, they did have a constitutional duty to not be deliberately indifferent to inmate Farmer's serious safety needs once they became aware of his situation and the risk that placing him in general population posed to him. So too, in the present case, once the Defendants became aware of, as the jury found, the circumstances of Mr. Walker's confinement, it was their constitutional duty to intervene insofar as they were reasonably able to do so. The Jury was specifically instructed that if a Defendant acted reasonably in the situation, even if the dire consequences were not averted, that Defendant would not have violated the Eighth Amendment. Tr. at p. 1155. The Jury considered that question and determined that Defendants did not act reasonably. The evidence is sufficient to support a finding that each Defendant had the practical ability to remove Mr. Walker from Cell 127 but was deliberately indifferent to his serious health and safety concerns by failing to do so. This is particularly the case where the proof was the harm would have been aggravated by the length of time that he was subjected to the conditions in Cell 127, and yet Mr. Walker was left in that cell for almost two and a half years.
Next, Defendants make the argument that they did not violate Plaintiff's constitutional rights because Plaintiff never specifically asked to be relocated out of the cell. That argument is also misguided. In Farmer , the defendants maintained that they had no constitutional duty to the plaintiff, in part, because he did not specifically request to be placed in protective custody when he came to the facility. The Supreme Court rejected that categorical defense. Farmer v. Brennan , 511 U.S. at 848, 114 S.Ct. 1970 ("[T]he failure to give advance notice is not dispositive. [Plaintiff] may establish [Defendants’] awareness by reliance on any relevant evidence."). As the Supreme Court further noted:
Under the test we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. We doubt that a subjective approach will present prison officials with any serious motivation "to take refuge in the zone between ‘ignorance of obvious risks’ and ‘actual knowledge of risks.’ " Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.
Farmer v. Brennan , 511 U.S. at 842, 114 S.Ct. 1970 (internal citations omitted).
In the present case Mr. Walker testified that he made repeated complaints concerning the condition of his cell to the Defendants, and that the Defendants took no action to correct the conditions or to move him. When Plaintiff pressed Warden Schult regarding this, she denied his grievance, and when he continued to complain, she rebuffed him and told him to refer to her as "doctor." Tr. at p. 150. Counselor Sepanek, who worked just feet away from the offending cell and who met with Plaintiff on a regular basis and processed his grievances, maintained she had no idea that Plaintiff wished to be moved out of the cell. This testimony runs counter to the repeated claims of Plaintiff, and the Jury was entitled to disbelieve her testimony. Beyond that, the Jury could have also concluded that, even without a specific request, the content of the grievances together with a reasonable inquiry, would have put Defendants on notice of constitutionally deficient cell conditions that required reasonable remedial action.
The evidence before the Jury, viewed in Plaintiff's favor, was sufficient for a reasonable juror to conclude that an Eighth Amendment violation took place. The Motion based on lack of evidence is, therefore, denied.
IV. QUALIFIED IMMUNITY
The doctrine of qualified immunity has been developed and applied by the Supreme Court to shield governmental officials from personal liability for damages arising out of their conduct, where their actions could reasonably have been thought to have been consistent with the rights that they are alleged to have violated. Pierson v. Ray , 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Anderson v. Creighton , 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A government official's entitlement to such a defense generally turns on the objective legal reasonableness of the action taken, assessed in light of the existing legal landscape and, in particular, what was clearly established at the time of the alleged constitutional violation. Anderson v. Creighton , 483 U.S. at 638, 107 S.Ct. 3034. While this defense can be raised in a myriad of circumstances, typically qualified immunity contains two fundamental questions: (1) was the right clearly established at the time of the disputed events, and (2) were the on-the-ground facts that the official faced of such a nature that a reasonable official would have understood that their conduct would violate this right? Anderson v. Creighton , 483 U.S. at 640, 107 S.Ct. 3034. This test ensures that "fair warning" is given to an official before he or she is held financially responsible for a constitutional violation. Hope v. Pelzer , 536 U.S. 730, 740-41, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citing United States v. Lanier , 520 U.S. 259, 270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ). In general, the defense has been applied in a manner to protect all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs , 475 U.S. 335, 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
The underlying constitutional violation may well make a difference in this qualified immunity analysis. In the Fourth Amendment context, for example, the constitutional standard is one of reasonableness and/or probable cause, and law enforcement officers who make reasonable mistakes at the hazy border between permissible and impermissible conduct are protected from being "mulcted" in damages by this doctrine. See Amore v. Novarro , 624 F.3d 522, 531 (2d Cir. 2010) (citing Pierson v. Ray , 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ). However, where the underlying constitutional violation has a more demanding state of mind requirement, such as an equal protection claim requiring intentionally discriminatory animus, or an Eighth Amendment claim requiring a showing of deliberate indifference, the entitlement to qualified immunity, though not impossible, will require much more of a showing.
In Hope v. Pelzer , the Supreme Court was presented with a case of an inmate who was alleged to have disrupted a prison work detail and, as a penalty, was then handcuffed to a hitching post for seven hours, in the sun; during that time he was given water only twice and was not provided with a bathroom break. The lower court had granted qualified immunity to the corrections officers due to the lack of a materially similar case on the issue. 536 U.S. at 736, 122 S.Ct. 2508. The Supreme Court reversed, noting that officials still can be on notice that their conduct violates established law "even in novel factual circumstances." Id. at 741, 122 S.Ct. 2508. Indeed, the Court noted that, arguably, the violation was so obvious in nature that basic Eighth Amendment precepts gave the defendants fair warning. Id. "The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope's constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity...." Id. at 745, 122 S.Ct. 2508.
In the present case, the Court finds that qualified immunity is not appropriate. It was clearly established in 2008 that Plaintiff had a constitutional right to prison living conditions that were safe and humane and did not deprive him of basic human needs. Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970 ; Rhodes v. Chapman , 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Despite a strong presentation to the contrary by Defendants, the Jury unanimously concluded not only that the conditions of confinement faced by Plaintiff, as measured by their intensity and duration, deprived him of life's basic necessities and constituted cruel and unusual punishment, but also that each Defendant had actual knowledge of the conditions which posed a serious risk to Plaintiff's health and safety, and that they were deliberately indifferent to that risk. As noted above, the Jury was also instructed that a Defendant cannot be held responsible under the Eighth Amendment if they reasonably responded to the risk at hand, even if they were ultimately not able to prevent the injury to Plaintiff. Therefore, the Jury necessarily concluded that neither of the Defendants took reasonable steps within their power to alleviate the harm that Plaintiff faced. The standard of objective reasonableness has not been met.
Ordinarily, "[w]here an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action" and in such circumstances "the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald , 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court did add the following: "[n]evertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained." Id. at 819, 102 S.Ct. 2727. As a final argument, Defendants assert that they are entitled to qualified immunity under this "extraordinary circumstances" exception.
As noted by the Fourth Circuit, extraordinary circumstances is, in essence, based on a finding that a violation has occurred and that a reasonable official would have known that their actions were unconstitutional, but that there exists some extraordinary reason why this particular defendant did not know that which all others in his position should have known. Pritchett v. Alford , 973 F.2d 307, 316 (4th Cir. 1992). Such a defense is extremely difficult to establish and is generally predicated upon the defendant relying upon advice of legal counsel. Halley v. Huckaby , 902 F.3d 1136, 1144 (10th Cir. 2018) ("If a plaintiff demonstrates the officials violated a clearly established right, we consider a third question: ‘whether extraordinary circumstances - such as reliance on the advice of counsel or on a statute - so prevented the official from knowing that his or her actions were unconstitutional that he or she should not be imputed with knowledge of a clearly established right.’ "); V-1 Oil Co. v. State of Wyo., Dep't of Envtl. Quality , 902 F.2d 1482, 1488 (10th Cir. 1990) ("As its name suggests, the extraordinary circumstances exception ... applies only rarely.").
In the present case Defendants have not established extraordinary circumstances. They do not assert that they were relying on legal advice when they failed to take action to relieve Plaintiff of his conditions. Insofar as there was a reference to any statute or regulation in the proof at trial, that reference was to the ACA nonmandatory standards, and the proof was that the conditions of Mr. Walker's cell violated those standards. Defendants rely on the fact that the prison was accredited by the ACA during Mr. Walker's incarceration, but again, the proof also was that the Ray Brook Facility never self-reported the unencumbered space violation to the ACA, and had they done so, they would have had to propose some remediation to solve the issue in order to receive approval, such as rotating inmates such as Mr. Walker out of the six-man cells. This they never did.
To some extent, Defendants’ argument seems to be that since overcrowding was prevalent throughout the facility, the de facto prison policy was that the conditions Plaintiff faced were somehow appropriate. Insofar as there has been a finding that the conditions violated the Eighth Amendment standard against cruel and unusual punishment, the fact that there may have been a policy that promoted or allowed such conditions does not constitute exceptional circumstances. Sampson v. City of Schenectady , 160 F. Supp. 2d 336, 350 (N.D.N.Y. 2001) ("claims of negligent training and unlawful policy do not create the type of ‘extraordinary circumstances’ needed to invoke the exception to the general Harlow rule ... the Court will not allow their city policy and negligent training claims to cloak [defendants’] unlawful conduct with the veil of objective reasonableness.").
Defendants’ reliance on a 1991 Fifth Circuit case is misplaced. McCord v. Maggio was a prison conditions case wherein the plaintiff sued the warden as a result of his housing conditions, which included an unlit cell into which ran water and sewage. 927 F.2d 844, 846 (5th Cir. 1991). In reversing the trial court's opinion and finding an Eighth Amendment violation, the Circuit Court nevertheless held open the possibility that the defendant could be immune if he could show extraordinary circumstances, such as budgetary or other issues, which prevented him from satisfying his normal professional standards. McCord relied upon the Supreme Court case of Youngberg v. Romeo . Id. at 848 (citing Youngberg v. Romeo , 457 U.S. 307, 323, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) ). The Youngberg decision, however, dealt with a departure from accepted medical standards under the Fourteenth Amendment, and not with the deliberate indifference standard employed in Eighth Amendment cases; the latter is a fact intensive standard which is very different from the Youngberg professional judgment standard. See Scott v. Benson , 742 F. 3d 335, 339 (8th Cir. 2014). This distinction is critical because in order to find a violation of the Eighth Amendment, as interpreted by the Supreme Court in decisions handed down after McCloud , there must be a finding that an individual defendant was sufficiently culpable because that defendant both knew of a serious risk to the health or safety of the inmate and was deliberately indifferent to that condition, in part by not reasonably responding insofar as he or she had the ability to do so. Farmer v. Brennan , 511 U.S. at 847, 114 S.Ct. 1970 ; Wilson v. Seiter , 501 U.S. at 303, 111 S.Ct. 2321. In this case, the exceptional circumstance test is only reached after a finding of liability, and therefore after the Jury has already concluded that Defendants were deliberately indifferent, and that their conduct caused Plaintiff's damages. Defendants’ attempt to escape liability by pointing to an overcrowded prison system in general merely is an attempt to avoid this finding of individual liability. It is a defense that is not supported on this record and runs contrary to the purpose of the Eighth Amendment. As noted by Justice Blackmun, the deliberate indifference standard "sends a clear message to prison officials that their affirmative duty under the Constitution to provide for the safety of inmates is not to be taken lightly," Farmer v. Brennan , 511 U.S. at 852, 114 S.Ct. 1970 (Blackmun, J. concurring), and in doing so "the Court seeks to ensure that the conditions in our Nation's prisons in fact comport with the ‘contemporary standard of decency’ required by the Eighth Amendment." Id. at 858, 114 S.Ct. 1970.
V. RULE 59(e) MOTION REGARDING DAMAGES
Finally, in the event that their Rule 50 Motion is denied, Defendants move under Rule 59(e) to modify the Jury's damages award to a nominal damage amount in light of Plaintiff's failure to demonstrate that he suffered a physical injury. Defs.’ Post-Trial Letter Brief at pp. 17-19.
The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury ..." 42 U.S.C. § 1997e(e). The Second Circuit has recognized that this provision is not a bar to all claims in which a physical injury has not been established, but is a bar to anything more than nominal damages and potentially punitive damages. Toliver v. City of New York , 530 Fed. Appx. 90, 93 n.2 (2d Cir. 2013) ; Thompson v. Carter , 284 F.3d 411, 416 (2d Cir. 2002) ; Robinson v. Cattaraugus Cty. , 147 F.3d 153, 162 (2d Cir. 1998) ; Lopez v. Zouvelos , 2015 WL 5657361, at *21 n. 18 (E.D.N.Y. Sept. 23, 2015).
Defendants contend that given the Jury's finding that Plaintiff suffered no physical injury as a result of their actions, the Jury's award of damages must be reduced to a nominal damages award of one dollar. Defs.’ Post-Trial Letter Brief at pp. 17-19. Plaintiff, in turn, argues that by failing to raise the physical injury requirement as an affirmative defense in their Answers, Defendants have waived the argument. Pl.’s Post-Trial Letter Brief at pp. 9-10 (citing Dkt. Nos. 50 & 62).
Under well established precedent, the failure to raise an affirmative defense does constitute a waiver. Travellers Int'l, A.G. v. Trans World Airlines, Inc. , 41 F.3d 1570, 1580 (2d Cir. 1994) ; Satchell v. Dilworth , 745 F.2d 781, 784 (2d Cir. 1984) ; Wilkins v. Time Warner Cable, Inc. , 10 F. Supp. 3d 299, 312 (N.D.N.Y. 2014) ("It is a frequently stated proposition of virtually universal acceptance by the federal courts that a failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion from the case....") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed.2013) ). Defendants take the position that section 1997e(e) is merely a limitation on recovery, not a defense to liability and, therefore, that need not have been raised in their Answers. Defs.’ Post-Trial Letter Brief at p. 18 n. 13. The stronger argument, however, is contrary to Defendants’ position.
Defendants rely principally on a decision from the Eastern District of New York, In re Nassau Cty. Strip Search Cases , which found that "[a]s § 1997e(e) is a limitation on recovery and not an affirmative defense to liability, it need not be pled." 2010 WL 3781563, at *2 (E.D.N.Y. Sept. 22, 2010). Viewed as merely a limitation on recovery, Defendants argue they need not have pled section 1997e(e) as a defense. Having reviewed the state of the law the Court agrees with Plaintiff that this decision is an outlier.
Plaintiff relies most heavily on the Second Circuit's decision in Jenkins v. Haubert where the Court, albeit in dicta , stated that "a defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements" that the prisoner exhaust administrative remedies and demonstrate a physical injury. 179 F.3d 19, 28-29 (2d Cir. 1999). Other courts have also deemed failure to comply with this requirement an affirmative defense. Douglas v. Yates , 535 F.3d 1316, 1320-21 (11th Cir. 2008) ; Ford v. Bender , 2012 WL 262532, at *12 (D. Mass. Jan. 27, 2012), vacated as moot , 768 F.3d 15 (1st Cir. 2014). The Court finds the rationale of these cases more persuasive than In re Nassau Cty. Strip Search Cases .
Plaintiff cites a number of cases from this District which in his view recognize that section 1997e(e) is an affirmative defense. Pl.’s Post-Trial Letter Brief at pp. 9-10. Those cases generally do no more than quote Jenkins , offer no independent analysis on the question, and are thus of limited persuasive authority. It is instructive, however, that defendants have frequently treated section 1997e(e) as an affirmative defense. See Kelsey v. Cty. of Schoharie , 2005 WL 1972557, at *1 (N.D.N.Y. Aug. 5, 2005) (addressing motion to amend answer to include section 1997e(e) as affirmative defense); Washington v. Schuler , 2018 WL 4603270, at *1 (W.D. Wis. Sept. 25, 2018) (motion to strike affirmative defense based on section 1997e(e) ); Hernandez v. Kokor , 2017 WL 4004165, at *1 (E.D. Cal. Sept. 12, 2017) (same).
The PLRA's exhaustion requirement is an affirmative defense that must be pled or is waived. Jones v. Bock , 549 U.S. 199, 212, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The text of the exhaustion requirement closely mirrors that of the physical injury requirement, strongly suggesting that the two should be treated the same for purposes of classifying them. Compare 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted") with 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18))." The PLRA's three strikes provision on which In re Nassau Cty. Strip Search Cases relied in reaching its decision, 2010 WL 3781563, at *2, is readily distinguishable, however, because it applies to both district court and court of appeals proceedings and the latter does not involve pleadings or affirmative defenses. See 28 U.S.C. § 1915(g).
Concluding that this PLRA requirement is an affirmative defense is also most consistent with our traditional understanding of such defenses. FED. R. CIV. P. 8(c) states that "a party must affirmatively state any avoidance or affirmative defense." "One of the core purposes of Rule 8(c) is to place the opposing parties on notice that a particular defense will be pursued so as to prevent surprise or unfair prejudice." Saks v. Franklin Covey Co. , 316 F.3d 337, 350 (2d Cir. 2003). Providing notice of an affirmative defense provides a plaintiff with "the opportunity to rebut it." Carnley v. Aid to Hosps., Inc. , 975 F. Supp. 252, 254 (W.D.N.Y. 1997). This action was initially filed in 2011 and has been litigated throughout without assertion of that defense. There clearly was ample time for Defendants to have asserted the defense and the failure to do so until the end stage of this litigation clearly prejudices Plaintiff.
Moreover, merely labelling something a limitation on recovery does not, as Defendants appear to suggest, remove it from the realm of affirmative defenses. Several well-established affirmative defenses serve only to limit a plaintiff's ultimate recovery, not to entirely bar their claim. FED. R. CIV. P. 8(c), for example, specifically identifies contributory negligence as an affirmative defense that must be pled. Contributory negligence is not a complete bar to recovery, just a limitation on the amount potentially recoverable. See , e.g. , Valyou v. CSX Transp., Inc. , 2019 WL 2491906, at *4 (N.D.N.Y. June 14, 2019). Likewise, the equitable doctrine of laches, which must be pled under Rule 8(c), often serves only to limit, not bar, recovery. See , e.g. , Petrella v. Metro-Goldwyn-Mayer, Inc. , 572 U.S. 663, 678, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014).
Finally, the Court also rejects the implicit argument made by Defendants that they were not obligated to raise the defense because Plaintiff had not pled physical injury. See Defs.’ Post-Trial Letter Brief at p. 18. A plaintiff need not anticipate every possible affirmative defense that may be raised. See , e.g. , Chillemi v. Town of Southampton , 943 F. Supp. 2d 365, 378 (E.D.N.Y. 2013) ("a plaintiff has no obligation to anticipate and refute potential affirmative defenses.") (citing cases). Plaintiff's failure to plead certain information, therefore, does not excuse Defendants’ failure to properly assert defenses. Accordingly, the Court concludes that Defendants waived their affirmative defense regarding the limitations on recovery in section 1997e(e). Defendants’ Motion under Rule 59 is denied.
VI. CONCLUSION
ACCORDINGLY , for the reasons set forth above, it is
ORDERED , that Defendants’ Motion under Federal Rule of Civil Procedure 50 is DENIED ; and it is further
ORDERED , that the Clerk shall enter Judgment against Defendants Sepanek and Schult consistent with the Jury's verdict; and it is further
ORDERED , that the Clerk shall enter Judgment in favor of Defendant Perdue consistent with the Jury's verdict; and it is further
ORDERED , that Defendants’ Motion under Federal Rule of Civil Procedure 59 is DENIED .