Nolley v. County of Erie
Decision Date | 20 August 1992 |
Docket Number | No. CIV-88-1170C.,CIV-88-1170C. |
Citation | 802 F. Supp. 898 |
Parties | Louise K. NOLLEY, Plaintiff, v. COUNTY OF ERIE; Thomas Higgins, Sheriff; John Dray, Superintendent; and Jane O'Malley, Nurse, Defendants. |
Court | U.S. District Court — Western District of New York |
COPYRIGHT MATERIAL OMITTED
Damon & Morey, Buffalo, N.Y. (Jennifer Coleman, of counsel), for plaintiff.
Patrick H. NeMoyer, Erie County Atty., Buffalo, N.Y. (James L. Tuppen, Asst. Erie County Atty., of counsel), for defendants.
BACKGROUND
In this court's detailed decision of October 31, 1991, Nolley v. County of Erie, 776 F.Supp. 715 (W.D.N.Y.1991), the court found that four defendants violated a number of plaintiff Louise K. Nolley's statutory and constitutional rights. The defendants named were Erie County, Sheriff Thomas Higgins, Superintendent John Dray, and Nurse Jane O'Malley. Id. at 717. The court's findings were set forth in abbreviated form at the end of its decision, as follows:
I. Red Sticker Policy
II. Segregation
III. Conditions of Confinement
The conditions of confinement which plaintiff was subjected to in Female Delta, although deplorable, did not violate plaintiff's Eighth Amendment rights.
IV. Law Library and Religious Services
There was no violation of the Rehabilitation Act because ECHC did not receive "Federal financial assistance" under the Act.
Id. at 743. Despite these findings, the court at that time declined to award either monetary or injunctive relief as sought by the plaintiff. Id. at 743-44. The court will now take up those issues.
Given the court's detailed findings of fact in its prior order, id. at 717-25, there is no need to repeat those findings here.
Plaintiff has sought injunctive relief to eliminate the Erie County Holding Center's ("ECHC") red sticker and automatic segregation policies. This relief, however, is unnecessary at this time. The court is very pleased with the immediate response made by defendants to change the challenged policies. Not only were the red sticker and automatic segregation policies dropped at once by the County, see Item 67, but Sheriff Higgins has now informed the court that all departmental employees have received training in "Infectious/Contagious Disease Control." Item 75. All employees in 1992 will receive ongoing classroom instruction in universal precautions and the new Erie County Sheriff's Department policy and procedure to control infectious and/or contagious diseases. See Items 75-78. This is an excellent first step and appears to meet the court's major concerns as expressed in Nolley. The court very much appreciates this prompt response.
The issue of damages for plaintiff is considerably more complicated. In my prior order, I left unresolved whether any of the defendants might be entitled to qualified immunity, and the appropriate measure for damages. Nolley, 776 F.Supp. at 744. By letter of December 18, 1991, defendants informed the court that they would "not attempt to argue that defendants are immune from an award of monetary damages in this action." Item 68 at 2. Thus, there remain no issues of immunity to be disposed of prior to determining damages on each of plaintiff's claims.
The court has found that defendants' red sticker and automatic segregation policies violated plaintiff's constitutional right of privacy under 42 U.S.C. § 1983, Nolley, 776 F.Supp. at 743, as well as plaintiff's statutory right of privacy under article 27-F of New York State's Public Health Law. Id. at 725-28, 733-34. The statutory violations, however, merely parallel the injury to plaintiff's constitutional privacy interests.
Plaintiff seeks to recover presumed damages for the injury to her privacy. Defendants argue that presumed damages may not be awarded for the violations proved by plaintiff. Plaintiff must show actual injury, defendants contend; and since plaintiff has been unable to show such injury for her privacy claims, only nominal damages should be awarded.
To determine an appropriate measure of damages, the court must first decide whether presumed damages are proper in these circumstances. In arguing for presumed damages, plaintiff relies chiefly on language from the case of Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). In Stachura, the Supreme Court reviewed the question whether damages under § 1983 could be awarded based on the perceived value of the constitutional right that had been abridged. The Court held that they could not. Id. at 310, 106 S.Ct. at 2544. Damages under § 1983 are to be decided based on the principles of common law tort. Id. at 306, 106 S.Ct. at 2542. Such damages, aside from those that are punitive, are designed to compensate the plaintiff for the injury caused by defendants' breach of duty. Id. Where no injury is present, no compensatory damages may be awarded. Id. at 308, 106 S.Ct. at 2543.
Although there must be an "actual injury" to recover under § 1983, the Court found that this requirement was not at odds with the doctrine of presumed damages, because presumed damages are compensatory, even if the injury they are designed to compensate for can only be presumed to have occurred.
When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. See Carey v. Piphus, 435 U.S. 247, 262 98 S.Ct. 1042, 1051, 55 L.Ed.2d 252 (1978); cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 760-761 105 S.Ct. 2939, 2946, 86 L.Ed.2d 593 (1985) (opinion of Powell, J.); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974). In those circumstances, presumed damages may roughly approximate the harm that plaintiff suffered and thereby compensate for harms that may be impossible to measure.
Stachura, 477 U.S. at 310-11, 106 S.Ct. at 2545. Based on this language, plaintiff argues that the injuries to plaintiff's privacy are of the kind that are "likely to have occurred but difficult to establish...." Id. at 311, 106 S.Ct. at 2545.
Carey, 435 U.S. at 262, 98 S.Ct. at 1051-52.
Plaintiff argues that the reasons supporting an award of presumed damages in defamation per se cases are equally valid with respect to the privacy tort proven here. Several commentators have urged this result. See, e.g., Jean C. Love, Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective Justice Perspective, 49 Wash. & Lee L.Rev. 67, 67, 70-71 (1992); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Cal.L.Rev. 957, 964-66 (1989). Indeed, in one of the most influential law review articles written on the right to privacy, Messrs. Warren and Brandeis argued that "the remedies for an invasion of the right of privacy are ... suggested by those administered in the law of defamation...." Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 219 (1890).
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