Saenz et al v. City of New York et al

Filing 279

ORDER rejecting as contrary to law nominal damages instruction requested in 277 and accepting other proposed changes to the jury charge. The attached jury charge and verdict sheet will be used at trial. Ordered by Judge Allyne R. Ross on 6/1/2017. (Attachments: # 1 Jury Charge, # 2 Verdict Sheet) (Matsumura, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ELI SAMUEL FIGUEROA,
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Plaintiff,
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-against:
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JOSEPH FAILLA and DENNIS CHAN, individually and in :
their official capacities,
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Defendants.
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ROSS, United States District Judge:

11-CV-3160 (ARR)(CLP)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

This case is set for trial to commence on June 12, 2017. The parties have submitted
objections and proposed additions to the court’s draft jury charge and verdict sheet. Letter from
Philip DePaul and Alexander Noble (May 25, 2017) (“Def.’s Letter”), ECF No. 277; Letter from
Robert Rambadadt (May 26, 2017), ECF No. 278. As provided herein, the attached jury
instructions and verdict sheet are final and ready for trial.
I have rejected the nominal damages instruction proposed by defendants as contrary to
law. If the jury believes plaintiff that he was punched repeatedly in the windpipe, this would
result in a compensable injury. An award of nominal damages would be inconsistent with
plaintiff’s theory of liability and is therefore improper. See Atkins v. New York City, 143 F.3d
100 (2d Cir. 1998) (remanding for new trial where jury award of nominal damages was
inconsistent with plaintiff’s theory of liability).
Defendants argue that the jury could conclude that plaintiff was assaulted but that any
damages resulted only from the assault and not from the failure to intervene. According to
defendants, such a finding would entitle plaintiff only to nominal damages. Def.’s Letter at 1-2.

This argument misapprehends the import of a finding of liability on a failure to intervene claim.
In order to find defendants liable, the jury will have to find that an unknown officer violated
plaintiff’s constitutional rights by assaulting him. “[P]ersonal involvement is a prerequisite to a
finding of liability under § 1983,” Wong v. Yoo, 649 F. Supp. 2d 34, 61 (E.D.N.Y. 2009)
(citations omitted), and failure to intervene is one way to establish personal involvement in the
underlying constitutional violation. Thus, a jury finding of liability on the failure to intervene
claim is a jury finding that defendants were participants in the assault. See Figueroa v. Mazza,
825 F.3d 89, 106 (2d Cir. 2016) (“Liability [for failure to intervene] attaches on the theory that
the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.”). Because all
participants in a constitutional tort are jointly and severally liable for compensatory damages, see
Alla v. Verkay, 979 F. Supp. 2d 349, 374 (E.D.N.Y. 2013), if defendants are found liable on a
failure to intervene theory, they are liable for all damages caused by the assault. Therefore, there
is no theory of liability under which nominal damage would be appropriate.
Minor additional changes to the jury charge are highlighted in the attached version, which
will be used at trial.
SO ORDERED.
_________/s/____________________
Allyne R. Ross
United States District Judge
Dated:

June 1, 2017
Brooklyn, New York

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