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Amaker v. Coombe

United States District Court, S.D. New York
Mar 29, 2002
No. 96 Civ. 1622 (JGK) (S.D.N.Y. Mar. 29, 2002)

Summary

finding that an actionable "delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment"

Summary of this case from Rivera v. Goord

Opinion

No. 96 Civ. 1622 (JGK).

March 29, 2002


OPINION AND ORDER


The plaintiff, Anthony D. Amaker, an inmate who was previously incarcerated at the Green Haven Correctional Facility ("Green Haven"), brings this action pro se pursuant to 42 U.S.C. § 1983, 1985(3) and 1986 against current and former prison officials, in both their individual and official capacities, and one investigator at the New York state police department. In his Fourth Amended Complaint, the plaintiff alleges that the defendants violated his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and analogous state law provisions, by, among other things, failing to investigate claims of racism and harassment by a number of corrections officers at Green Haven, failing to protect him from an alleged assault and the use of excessive force by corrections officers in an incident on November 3, 1995, assaulting him and using excessive force against him during that same incident in alleged retaliation for his prior complaints, denying him adequate medical treatment for injuries sustained in the incident, raising false charges against him in a disciplinary proceeding and subsequent state court criminal action arising out of the events on November 3, 1995, denying him due process protections in this disciplinary proceeding and interfering with his right to access the courts. The plaintiff alleges, more generally, that the defendants conspired against him to deprive him of his constitutional rights and to cover up the deprivations because of his race and in retaliation for his complaints and related grievance and litigation activities, including pursuit of the present action.

The defendants move for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing all of the plaintiff's pending claims except a claim for the use of excessive force by the defendants Sergeant Thomas Woliver, Corrections Officer ("C.O.") Douglas Decker and C.O. Michael Rhynders in the November 3, 1995 incident. These latter defendants concededly used force against the plaintiff in the incident and acknowledge that there is a material issue of fact as to whether this force was excessive.

The plaintiff moves pursuant to Rule 56(f) for additional discovery to oppose the defendants' summary judgment motion. The plaintiff also moves for partial summary judgment pursuant to Rule 56 on the claim that the defendants Lieutenant (now Captain) Daniel Connolly, Sergeant Coleman Wilson, Christopher P. Artuz, the Superintendent of Green Haven from 1993 to 2000, and Philip Coombe, Jr., the Acting Commissioner of the New York State Department of Correctional Services ("DOCS") from 1994 to 1996, violated his right to due process during the disciplinary proceeding that followed the November 3, 1995 incident. Finally, the plaintiff moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate this Court's previous Orders granting summary judgment to the defendants Justice Robert Ferris and Assistant District Attorney Gary Kropowski.

I.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224.

The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold. Inc., 369 U.S. 654, 655 (1962); see also Gallo, 22 F.3d at 1223.

If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ. p. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment, unless the plaintiff's papers establish that the pro se litigant understood the nature and consequences of summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999)Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated May 8, 2001, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence. The plaintiff also has a number of actions pending before this Court and has demonstrated that he understands the procedures for summary judgment.See Amaker v. Haponik, 98 Civ. 2663; Amaker v. Goord, 98 Civ. 3634. The plaintiff has submitted an appropriate response to the defendants' motion in this case, together with supporting affirmations.

II.

The Court has already set forth a number of the relevant facts in this case in several prior Opinions and Orders, familiarity with which is assumed. See, e.g., Amaker v. Coombe, No. 96 Civ. 1622, 1999 WL 970424 (S.D.N.Y. Oct. 25, 1999); Amaker v. Coombe, No. 96 Civ. 1622, 1998 WL 637178 (S.D.N.Y. Sept. 16, 1998). The following facts are either undisputed or are matters of public record, unless otherwise indicated.

At all times relevant to the present motions, the plaintiff was an inmate at Green Haven. By letters dated September 29, 1995 and October 15, 1995, the plaintiff filed grievances addressed to the defendant Coombe, the Acting Commissioner of DOCS at the time, which alleged that the defendants Rhynders and Woliver had been harassing the plaintiff, subjecting him to racially discriminatory treatment and preventing him from proper access to legal materials. See Exs. A B to Declaration of Philip Coombe, Jr. dated May 3, 2001 ("Coombe Decl.").

Shortly thereafter, on November 3, 1995, an altercation erupted between the plaintiff and Woliver, Rhynders and Decker, while the plaintiff was being escorted to his cell at Green Haven. See Unusual Incident Report, attached as Ex. B to Declaration of Ellen M. Fitzgerald dated May 8, 2001 ("Fitzgerald Decl."). During the incident, these defendants forcibly restrained the plaintiff. See Use of Force Report, attached as Ex. C to Fitzgerald Aff. The plaintiff was then examined by a nurse and by Dr. Malvarosa, who sutured a cut that the plaintiff received under his chin during the incident and prescribed antibiotics for the plaintiff. See Affidavit of Mario Malvarosa, M.D., dated April 9, 2001, at ¶¶ 4-7 ("Malvarosa Aff.").

The plaintiff alleges that he was the victim of an assault in the November 3, 1995 incident. However, on or about November 4, 1995, the plaintiff was served with misbehavior reports charging him with assault on staff, violent conduct and possession and attempted use of a weapon in that same altercation. See generally Misbehavior Reports of Decker, Rhynders and Woliver dated November 3, 1995, attached as Ex. A to Declaration of Daniel Connolly dated May 2001 ("Connolly Decl.") These reports resulted in a disciplinary proceeding at which the plaintiff was found guilty of those charges and was sentenced to 60 months in the Special Housing United ("SHU") and 60 months of loss of privileges, later commuted to 30 months in the SHT and 30 months of loss of privileges.See Amaker v. Haponik, 98 Civ. 2663. On or about November 11, 1995, the plaintiff was also charged in New York State court with criminal assault of the defendant C.O. Decker during the November 3, 1995 incident. The plaintiff was ultimately convicted by a jury of Assault in the Third Degree on the basis of these charges; he was sentenced to six months incarceration to be served concurrently with the sentence he was already serving and fined $500. See Fitzgerald Decl. Ex. D. The plaintiff's appeal from that conviction was dismissed. See People v. Amaker, 98-842 D CR (N.Y.App. Term Oct. 26, 1998).

The plaintiff filed the present action on March 6, 1996. After his conviction in state court, the plaintiff added the state court judge who presided over his criminal trial as a defendant, but the plaintiff's claims against that defendant were dismissed on September 16, 1998. See Amaker v. Coombe, 1998 WL 637177, at *13. The Court also dismissed the plaintiff's claims against two other defendants, Director Donald Selsky and Nurse Wocel, as well as a number of claims against the defendant Gary Kropkowski, the Assistant District Attorney who prosecuted the charges against the plaintiff in state court. See id. The Court dismissed the remaining claims against Kropowski on October 25, 1999. See Amaker v. Coombe, 1999 WL 970424, at *4 The plaintiff has twelve pending claims directed at some or all of the remaining defendants.

III.

The first issue is whether to postpone decision of the defendants' summary judgment motion and grant the plaintiff's Rule 56(f) motion for additional discovery for his opposition. It is well-established that a party resisting summary judgment on the ground that the party needs discovery in order to defeat the summary judgment motion must submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. See Gurary v. Winehouse, 190 F.3d 137, 43 (2d Cir. 1999) (collecting cases). In his Rule 56(f) affidavit, the plaintiff renews a request for documents that he has sought but was unable to obtain in discovery, namely, the medical records of Decker following the November 3, 1995 event and all incident reports and grievances involving Woliver, Rhynders and Decker in cases not involving the plaintiff. See Pl.'s Rule 56(f) Aff. ¶¶ 2-6. However, the plaintiff has not explained how the information in these documents could reasonably be expected to be either admissible or relevant to the issues in this motion, which, as discussed below, do not depend on any injuries Decker may have sustained in the November 3, 1995 incident or these three defendants' activities in unrelated cases. The plaintiff's claim against Woliver, Rhynders and Decker for use of excessive force is not being dismissed but is proceeding to trial. The plaintiff has also been given ample time for discovery in this six year old case, and discovery is now complete. Hence, the plaintiff has failed to meet his burden for a Rule 56(f) motion, and the motion is denied.

IV.

The defendants move for summary judgment dismissing the plaintiff's Eighth Amendment claims for cruel and unusual punishment based on alleged indifference to medical problems caused by the November 3, 1995 incident at Green Haven. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. U.S. Const. amend. VIII; see also Wilson v. Seiter, 501 U.S. 294, 297 (1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 102-03 (1976), inadequate medical treatment for a prisoner can constitute cruel and unusual punishment. See. e.g., Estelle, 429 U.S. at 103.

In order to succeed on an Eighth Amendment claim for inadequate medical treatment, an inmate must show that a prison official acted with (i) "deliberate indifference" to (ii) an inmate's "serious medical needs."See. e.g., Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle, 429 U.S. at 104-05. "Objectively, the deprivation must be `sufficiently serious' in the sense that `a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1988)). Subjectively, the charged official must have a mental state "equivalent to criminal recklessness," in that the official must know of and disregard an excessive risk to the inmate's health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the official must also draw the inference. Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam) (quoting Hathaway, 99 F.3d at 553)).

The plaintiff complains that Dr. Mamis, Dr. Silver, P.A. Carbone, P.A. Zaken and Nurse Skies, and Lawrence Zwilliger, the Regional Health Services Administrator at Green Haven, (collectively, the "medical provider defendants") violated his Eighth Amendment rights by providing him with inadequate medical treatment for neck, back and knee pain, and post-traumatic stress disorder, allegedly caused by the November 3, 1995 incident. However, even when the submissions of the parties are viewed in a light most favorable to the plaintiff, no reasonable juror could conclude that the defendants were deliberately indifferent to any serious medical needs of the plaintiff. The record does not support the plaintiff's claims that his injuries were as objectively serious as he alleges. However, it is undisputed that the plaintiff received some injuries in the November 3, 1995 incident and was thereafter treated with, among other things, pain killing medications. It is unnecessary to determine whether these injuries constituted sufficiently serious medical needs to raise an Eighth Amendment claim for inadequate medical care because, for the reasons discussed in more detail below, it is clear that the defendants treated the plaintiff's actual medical needs both within Green Haven and with outside medical specialists and that the defendants did not disregard any excessive risks to the plaintiff's health or safety.

Just after the November 3, 1995 incident, Nurse Nancy Conroy noted that the plaintiff complained about various pains including neck pain, back pain, shoulder pain and right knee pain and about an open wound under his chin. See Declaration of Carl Koenigsmann dated May 8, 2001 ("Koenigsmann Decl.") Ex. A, at 1-2. Nurse Conroy observed that the plaintiff was "moving all extremities well," was "able to dress and undress himself without difficulty," and "stands without difficulty." Id. The cut under the plaintiff's chin measured approximately 1/2" in length and 1/4" in depth. See id. The plaintiff was given Tylenol and ice for his injuries.

Dr. Malvarosa also examined the plaintiff just after the incident, placed two sutures in the open area under the plaintiff's chin and prescribed an antibiotic to be taken prophylactically. See id. at 3-4. Dr. Malvarosa determined that the plaintiff's injuries did not appear sufficiently serious to require an immediate or emergency radiological examination, however, and requested that X-rays be performed of the plaintiff's face, skull, cervical spine and right knee on a nonemergency basis. See id. at 4; see also Malvarosa Aff. at ¶¶ 7-11. The plaintiff was then X-rayed on November 6, 1995, and these X-rays confirmed that there were no fractures, misalignments or other abnormalities in those areas. See Koenigsmann Decl. Ex. C at 210-12. Further X-rays were performed on November 28, 1995 and October 17, 1996 of the plaintiff's left knee and spine, respectively, and these X-rays also showed no fractures and a normal spine alignment and curvature. Id. at 213, 215.

The medical notes from November 3, 1995 indicate that the plaintiff's left front tooth was loose and that he was missing one tooth.See Koenigsmann Decl. Ex. A at 1. Dr. Malvarosa recommended a dental consult for evaluation as soon as possible. See id. at 3. There is no indication in the record of what happened to that recommendation. The defendant has not complained in any of his papers in this case or on this motion about any deficiencies in dental care and has instead focused on alleged failures to treat neck, back and knee pain, and post-traumatic stress disorder. The plaintiff did receive X-rays for his jaw on November 6, 1995 and those X-rays came back negative. See id. at 210-12.

There is also substantial evidence in the record establishing that the plaintiff's actions during this period were inconsistent with his having a condition of extreme medical emergency. For example, Dr. Malvarosa tried to send the plaintiff to the emergency room at St. Francis Hospital on November 4, 1995, the very next day after force was used against the plaintiff, but the records reflect that the plaintiff forewent the treatment in order to receive a visit from his family. See Koenigsmann Decl. Ex. A at 4-7, 9. The plaintiff also alleges that his injuries prevented him from moving his neck or being able to walk or stand easily just after the events, but numerous reports from medical personnel observing the plaintiff in the weeks subsequent to the November 3, 1995 incident indicate that he was able, among other things, to lift his neck to allow a nurse to see the open area under his chin, look up and down (using his neck) without apparent difficulty, extend his neck to allow the sutures to be removed, stand without difficulty, walk with a steady gate, extend his leg with ease, clothe and unclothe himself and travel from the SHU to the Visiting Room without assistance or apparent difficulty. See id. at 1-2, 8-10.

The plaintiff argues that he has nevertheless had continuing knee, back and neck pains since November 3, 1995, and that an MRI performed on him on November 14, 1997, approximately two years after the incident, reveals that he in fact has a herniated disc. See Koenigsmann Decl. Ex. B at 201-02. Prior to this MRI, the plaintiff had received medications for pain, muscle relaxants and anti-inflammatory medications. He was also prescribed physical therapy. There is nothing in the record to indicate that the plaintiff's herniated disc was caused by the events on November 3, 1995, or that the plaintiff's herniated disc was even trauma related, as opposed to being a degenerative condition that began and progressed with age. There was no recommendation for surgery as a result of the MRI and Dr. Shanta David, a consulting neurologist, increased the defendant's dosage of medications but recommended no change in the basic treatment plan. See id. at ¶¶ 33-36. There is no evidence that the herniated disc called for any treatments other than those the plaintiff actually received. See id. at ¶ 33 (the anterior disc herniation C4-5 level "would not affect the conservative course of treatment already being followed").

On January 21, 1997, the plaintiff was also given a psychiatric evaluation. See Id. Ex. B at 190. The plaintiff's medical record indicates that the plaintiff denied having any mental health issues or problems at that time and refused mental health services. See id. The mental health examiner indicated that the plaintiff was coherent and showed no signs or symptoms of psychosis or major depression. See id. The plaintiff has not produced any evidence to undermine these findings, and there is nothing in the record to suggest that the plaintiff suffers from post-traumatic stress disorder.

The plaintiff also complains that he has recently learned that he is losing fluid in one of his eyes. See Pl.'s Aff. dated July 2, 2001 ¶ 2(E). However, the plaintiff has not produced any evidence that this condition existed on November 3, 1995. The medical notes indicate that the plaintiff was examined for a complaint about his left eye on November 5, 1995, but the complaint was found to be unsubstantiated. See Koenigsmann Decl. Ex. A at 10. The Complaint in this case also does not raise any complaints about the plaintiff's eyes. The plaintiff has raised a number of complaints about his vision in another case, based on allegedly inadequate lighting in the SHU, and the Court has addressed those claims in that case. See Amaker v. Goord, 98 Civ. 3634.

It is plain that the plaintiff's medical conditions were not as severe as the plaintiff has characterized them. However, it is also clear that he did have medical conditions that were treated with, among other things, pain killing medications. Prison officials could not have simply ignored the plaintiff's initial injuries and continuing complaints without violating the plaintiff's Eighth Amendment rights. The medical provider defendants in this case are nevertheless entitled to summary judgment on the plaintiff's Eighth Amendment claims for medical indifference because, as discussed more fully below, there is extensive evidence in the record establishing that they cannot be found to have been deliberately indifferent to the plaintiff's medical needs.

For example, just after the November 3, 1995 incident, the plaintiff was examined by two medical experts, one of whom closed the plaintiff's cut with two sutures and prescribed antibiotics for him. See Koenigsmann Decl. Ex. A at 2-4. The plaintiff also received Tylenol and ice for his injuries. In the weeks subsequent to the November 3, 1995 incident, the plaintiff was seen by medical personnel on an almost daily basis. See id. at 10-26. Beginning on November 5, 1995, the plaintiff went on a hunger strike and refused medical contact on a number of occasions, but the plaintiff's medical record contains numerous entries documenting that he was monitored during this period for signs of physical and mental distress and was encouraged to break his fast. See id.

Over the next several years, the plaintiff was examined on numerous occasions by both Green Haven and outside medical experts in response to complaints of neck, back and knee pains, which, as discussed above, did not rise to the level of medical emergencies. See id. Exs. A-C. For example, the plaintiff was given a brain MRI on January 25, 1996, which came back normal. See id. Ex. C at 214. The plaintiff was also seen by an outside neurologist, Dr. David, on multiple occasions, and was treated with anti-inflammatory medication, muscle relaxants and other medication for chronic pain; Dr. David also performed further X-rays of the plaintiff's spine during this period. See, e.g., id. Ex. B, at 181, 182, 185, 192, 196. A consulting physiatrist, Dr. Sreedharan, examined the plaintiff on several occasions and placed him on a program of physical therapy. See id. at 193, 195, 200.

With regard to the plaintiff's knee pains, the plaintiff was examined on numerous occasions by Dr. Holder, an orthopedist, who recommended non-steroidal anti-inflammatories and isometric instruction. See, e.g.,id. at 184, 187, 191, 194, 197. On September 23, 1996, another orthopedist, Dr. Walsh, diagnosed for the first time a mild patella crepitation and recommended elastic knee braces, Tylenol for pain, and quadricep exercises. See id. at 186. There is nothing in the record to suggest that this condition existed any earlier or was caused by the events on November 3, 1995.

The plaintiff argues that the medical provider defendants nevertheless displayed deliberate indifference to his medical conditions by failing to provide him with an MRI shortly after the November 3, 1995 incident rather than approximately two years later, on November 14, 1997. A delay in medical treatment does not by itself violate an inmate's Eighth Amendment rights unless the delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment. See, e.g., Spies v. Brown, No. 98-CV-4708, 2002 WL 441991, at *4 (E.D.N.Y. Mar. 13, 2002);Espinal v. Goord, No. 00 Civ. 2242, 2001 WL 476070, at *10 (S.D.N.Y. May 7, 2001); Smith v. Montefiore Med. Ctr.-Health Servs. Div., 22 F. Supp.2d 275, 280 (S.D.N.Y. 1998); see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) (noting that some delays in receiving medical treatment are common even outside the prison context). In this case, the plaintiff has not presented any evidence suggesting that an MRI was even indicated given the plaintiff's objective medical symptoms and conditions prior to November 14, 1997. Moreover, the doctors who examined the plaintiff after discovery of his herniated disc recommended a course of conservative treatment that was substantially the same as what the plaintiff had been receiving prior to that time on the basis of his subjective complaints of pain. See Ex. Koenigsmann Decl. Ex. B at 204-07. Hence, there is nothing in the record to indicate that the allegedly improper delay in conducting an MRI changed his course of treatment in any way or reflected any kind of deliberate indifference to a serious medical condition.

Finally, the record contains two sworn affidavits by medical experts who have reviewed the plaintiff's entire history of medical complaints and treatments, and who have testified that the plaintiff has received treatment that is equal to or in excess of generally accepted medical standards given his actual medical conditions. See Koenigsmann Decl. ¶¶ 76; Declaration of Michael Katz dated May 7, 2001, at ¶ 5. The plaintiff's only evidence to the contrary are his own conclusory statements that his conditions warranted further medical treatment. Statements of this kind do not create a material issue of fact concerning an Eighth Amendment violation. See, e.g., Estelle, 429 U.S. at 107 ("[T]he question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment."); Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622, at *6 (S.D.N.Y. Oct. 15, 1999) ("[A] prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim."); Muhammad v. Francis, No. 94 Civ. 2244, 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) ("It is well established that mere differences in opinion regarding medical treatment do not give rise to an Eighth Amendment violation.") The medical provider defendants are therefore entitled to summary judgment dismissing the plaintiff's Eighth Amendment claims for inadequate medical treatment.

The plaintiff also claims that his medical treatment was inadequate under the consent decree in Milburn v. Coughlin, 79 Civ. 5077 (S.D.N.Y. Aug. 1, 1991). The plaintiff has other cases pending before this Court in which he cites the Milburn decree for particularized obligations that are relevant to the facts alleged in those cases. In the present case, however, the plaintiff does not allege or produce evidence of any inadequate medical treatment that would be actionable under the Milburn decree and not under the Eighth Amendment. Thus, insofar as the plaintiff's claims are based on the Milburn consent decree, the plaintiff's claims must also be dismissed. In any event, if there were a violation of the Milburn consent decree, the appropriate action for the plaintiff would be to raise a claim in the Milburn case, before Judge Ward, who issued the decree and retains jurisdiction over that case.See, e.g., Vasquez v. Artuz, No. 97 Civ. 8427, 1999 WL 440631, at *1 n. 1 (S.D.N.Y. June 28, 1999) ("Vasquez's Milburn consent decree violation claim is also not properly before this Court, and should be filed with Judge Ward in this district, who retains supervision over the decree");Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1317 n. 6 (S.D.N.Y. 1990) (holding that the issue of whether the Milburn consent decree was violated "is not, and cannot be, before this Court" and that "[v]iolations of the Milburn decree can be remedied only by bringing the alleged violations to the attention of the able District Judge [Ward] who retains supervision over that decree").

V.

The defendants argue that they are entitled to summary judgment on the plaintiff's due process claims arising out of the prison disciplinary proceedings following the November 3, 1995 incident, which ended in a sentence placing the plaintiff in the SHU for 30 months. Inmates facing disciplinary proceedings are entitled to certain due process protections, where, as here, they are charged with major misconduct and face sanctions that impose atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974); see also Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (noting that the longest confinement in normal SHU conditions that the Court of Appeals for the Second Circuit has found not to entail a requirement of due process protections was 101 days and finding that confinement in the SHU for 305 days met the Sandin standard). The Supreme Court has nevertheless made it clear that prison disciplinary proceedings are not adversarial trials, with the full panoply of due process guarantees, and that due process in this context requires a mutual accommodation between an inmate's liberty interests and the specific correctional and institutional goals that disciplinary proceedings serve. See Wolff, 418 U.S. at 562-72.

In striking this balance, the Supreme Court has held that an inmate should ordinarily receive (1) advance written notice of the charges against him to enable him to marshal the facts and prepare a defense; (2) the opportunity to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals; and (3) a short written statement presenting the reasons and evidence supporting any disciplinary action ultimately taken. See id. at 563-67.

In this case, it is undisputed that the plaintiff was notified in writing of the disciplinary charges against him for assaulting a staff member, violent conduct and possession and attempted use of a weapon.See Connolly Decl. ¶ 10. It is also undisputed that the plaintiff made extensive statements in his defense to the hearing officer during the hearing, called three witnesses on his own behalf, presented documentary evidence and received a written decision by the hearing officer. See Connolly Decl. ¶¶ 14-36 Ex. C. Lieutenant Connolly, the hearing officer, called three additional witnesses — Sergeant Woliver, C.O. Rhynders and Nurse Wocel — but the plaintiff chose not to be present during the testimony of the officers or to write down any questions to be posed to the officers. See id. at ¶¶ 31-33. The plaintiff received legal assistance in preparing his case from Sergeant Wilson, who interviewed a number of witnesses on the plaintiff's behalf and retrieved a number of documents for the plaintiff. See generally Wolff, 418 U.S. at 569-70 (holding that due process in the prison disciplinary context does not extend to a right to counsel but can require that the inmate remain free to seek aid of a fellow inmate, or, if that is forbidden, to have adequate substitute aid in the form of help from prison staff).

The plaintiff argues that he was nevertheless denied his right to due process because he requested twenty-five documents for his defense, and Wilson did not obtain all of them, at least in the form requested. However, an inmate's right to present documentary evidence in his defense does not entail an obligation on the part of prison officials to retrieve every document that an inmate requests for his case. Even when documents are relevant and obtainable, "[p]rison officials must have the necessary discretion to keep [a prison disciplinary] hearing within reasonable limits and . . . to limit access to other inmates to collect statements or to compile other documentary evidence." Wolff, 418 U.S. at 566.

In this case, Sergeant Wilson assisted the plaintiff in obtaining almost all of the documents that the plaintiff requested and that were relevant to the central issue in the proceeding, which was whether the plaintiff was the victim of a retaliatory assault or had instead assaulted a staff member in the November 3, 1995 incident. Sergeant Wilson obtained the unusual incident report pertaining to the events of November 3, 1995; the use of force report that had been completed on that same day; a copy of DOCS Directive 4910 and the Green Haven policies on pat frisk procedures; a copy of Corrections Law 138 and 139; a copy of the law library call out for 1:00 p.m. and 5:30 p.m. for November 3, 1995; a copy of the package room list for 5:30 p.m. on that day; names of all E-Block, A-B officers on that day; the name of the Watch Commander on duty; the names of the E F Block Corridor Officer and an inmate who was escorted to the clinic at approximately 5:30 p.m. to 5:45 p.m.; the E-Block log book entry for 5:30 to 6:30 p.m. on that day; the DOCS Directive and policies on video taping the use of force and escorts to the SHU; and up-to-date copies of Chapter 5 of 7 N YC.R.R. See Declaration of Coleman Wilson dated May 7, 2001 ("Wilson Decl.") Exs. E G, at ¶¶ 1, 2, 5, 7, 8, 10, 11, 14, 15, 16, 20, 22, 25. The plaintiff was also presented with many of the other documents and evidence he requested, or with evidentiary substitutes, at the disciplinary proceeding itself, including a copy of the plaintiff's own injury report, the videotape of his admission to the SHU and testimony from the inmate grievance representative at Green Haven regarding the status of the plaintiff's pending complaint against Rhynders. See id. at Exs. E G ¶¶ 9, 12; Wilson Decl. ¶¶ 24. During the disciplinary hearing, the plaintiff also received copies of his complaints to Commissioner Coombe regarding Woliver and Rhynders and the report of the subsequent investigation by Lieutenant Quackenbush at Green Haven. See Connolly Decl. ¶ 21 Ex. E, Tape 3 of 4 at 3-6; Wilson Decl. ¶ 22.

With regard to the remaining requests on the plaintiff's list, Wilson provided the plaintiff with reasonable explanations for why Wilson was unable to obtain the documents. In response to the plaintiff's request for certain medical documents relating to Decker, Wilson correctly explained that these records were confidential. See id. Exs. E G, at ¶¶ 3, 13. In response to the plaintiff's requests for certain court documents and complaints made to the DOCS Central Office, Wilson explained that he did not have the authority to obtain the documents.See id. Exs. E G, at ¶¶ 6, 17, 23. The plaintiff could have requested these documents himself. Similarly, in response to the plaintiff's requests for a number of grievances in other cases, Wilson explained that he could not obtain them without the plaintiff's provision of Grievance numbers. Finally, Wilson explained that he could not give him copies of the DOCS Directive pertaining to the use of force by corrections officers and the reporting of unusual incidents at the DOCS facilities because inmates are prohibited from having this information.See id. Exs. E G, at ¶¶ 18, 19, 24. Wilson has testified that this latter document is unavailable to inmates for security reasons. See Wilson Decl. ¶ 25. These explanations are reasonable, and the plaintiff has not indicated how any of the materials that he did not obtain would have been critical to the issue whether he assaulted prison staff or engaged in violent conduct on November 3, 1995.

In sum, the plaintiff has not pointed to any evidence from which a reasonable juror could infer that the plaintiff was denied his due process rights in his disciplinary proceeding. Therefore, the defendants' motion for summary judgment on these claims should be granted, and the plaintiff's motion for summary judgment should be denied.

VI.

The defendant Stephen Steutzle correctly argues that the plaintiff's claim against him for malicious prosecution should be dismissed. An essential element of a section 1983 claim for malicious prosecution is that the "the prosecution terminated in some manner indicating that the person was not guilty of the offense charged." Singleton v. City of New York, 632 F.2d 185, 194-95 (2d Cir. 1980). In this case, the plaintiff was found guilty on December 11, 1996, of Assault in the Third Degree for injuries he allegedly inflicted on Decker. On October 26, 1998, the plaintiff's appeal was dismissed as untimely. See People v. Amaker, 98-842 D. CR. (N.Y.App. Term Oct. 26, 1998) The plaintiff's subsequent motion to vacate that dismissal was also denied, apparently in March or April 1999. See People v. Amaker, 98-842 D. Cr. (N.Y.App. Term. n.d.); Amaker v. Coombe, 1999 WL 970424, at *1. Because these criminal proceedings ended in a finding of guilt, the plaintiff cannot establish a claim for malicious prosecution against Steutzle.

The plaintiff's claim for false arrest should be dismissed for similar reasons. The Fourth Amended Complaint is unclear as to whether the plaintiff is raising a false arrest claim under federal law, New York state law, or both. However, "[t]he existence of probable cause to arrest . . ." is a complete defense to an action for false arrest, "whether that action is brought under state law or under § 1983."Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quotingBernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citation omitted)). In this case, the plaintiff's conviction established that there was probable cause to arrest him, and this arrest may not be challenged in this § 1983 proceeding. See Amaker v. Coombe, 1999 WL 970424, at *3 (collecting cases).

Finally, the plaintiff alleges that Steutzle engaged in a RICO conspiracy against him to arrest him falsely and prosecute him maliciously, in retaliation for his lawful complaints to Coombe. For the reasons discussed above, however, there was no false arrest or malicious prosecution in this case, and the plaintiff supports the contention that Steutzle conspired to commit such acts with either no facts or with only his own conclusory allegations. Allegations of this kind are insufficient to raise a material issue of fact concerning the existence of a RICO conspiracy. See Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (per curiam) (dismissing RICO claim when supported only by "conclusory, vague, and general allegations" that the defendants participated in a "pattern of racketeering activity" as prohibited by RICO). Because the plaintiff has come forward with no evidence to support these allegations, they must be dismissed on this motion for summary judgment. See. e.g.,Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).

In sum, all of the claims against the defendant Steutzle must be dismissed.

VII.

The defendants argue that the plaintiff's claims for retaliation should also be dismissed. In order to establish a claim for retaliation in the prison context, the plaintiff bears the burden of showing that: (1) he was engaging in "conduct. [that] was constitutionally protected"; and (2) "the protected conduct was a substantial or motivating factor in the prison officials" action against the plaintiff. See Davidson v. Chestnut, 193 F.3d 144, 148 (2d Cir. 1999) (per curiam) (quotation marks omitted). If the plaintiff can carry this burden, prison officials can still defeat a claim of retaliation if they can establish by a preponderance of the evidence that they would have acted in the same way absent the protected conduct. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Court of Appeals for the Second Circuit has warned, however, that retaliation claims by prisoners are prone to abuse because retaliation can be alleged for almost any decision an inmate dislikes. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994). In this case, discovery is complete, and the issue is whether there is sufficient evidence from which a reasonable jury could conclude that there was retaliatory conduct against the plaintiff. With one exception discussed below, there is not.

The plaintiff is correct when he argues that he engaged in protected activity by filing his grievances concerning Woliver and Rhynders and his subsequent lawsuits. See Bounds v. Smith, 430 U.S. 817, 821-32 (1977) (lawsuits); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (grievances). However, the plaintiff's claims of retaliation are premised on allegations that he was assaulted, provided with inadequate medical treatment, and then falsely charged with assaulting an officer because of this protected activity, all of which claims, as discussed above, cannot be established on the basis of the evidence in this case. There is also no evidence that the defendants' actions in this case, with the exception of the alleged use of excessive force by Woliver, Rhynders, and Decker, were anything other than justifiable responses to the assault that the plaintiff was convicted of in state court. The plaintiff has presented only conclusory allegations in support of the contention that any of the defendants other than Woliver and Rhynders acted with any retaliatory intent towards him. See Flaherty, 713 F.2d at 13 (allegations, suspicions and adverse actions are insufficient to establish retaliation absent evidence that gives substance to the claim of intent).

However, as the defendants correctly concede, there is a material question of fact remaining as to whether the defendants Woliver, Rhynders and Decker used excessive force against the plaintiff when responding to the plaintiff's assault. The use of force occurred shortly after the plaintiff filed complaints directed specifically against both Rhynders and Woliver. The plaintiff has also presented some personal testimony indicating that he observed Rhynders and Woliver pointing him out shortly after he filed his complaints, referring to him as a ringleader and acting hostilely towards him. See Pl.'s Ex. E, at 3-5. In light of this personal testimony, which might be found credible by a jury, along with the timing of the November 3, 1995 incident relative to the complaints against Woliver and Rhynders, it cannot be determined as a matter of law that Woliver and Rhynders did not use excessive force against the plaintiff out of retaliation.

In sum, the plaintiff's claim for retaliation should be dismissed with respect to all of the defendants except Woliver and Rhynders. The claim survives with respect to these defendants insofar as it alleges that they used excessive force against him on November 3, 1995 in retaliation for his prior grievances against them.

VIII.

The defendant Coombe, the Acting Commissioner of DOCS from 1994 to 1996, argues that he is entitled to summary judgment on all the claims against him because the plaintiff has failed to produce any evidence of personal involvement on the part of Coombe in any of the alleged constitutional violations. In order to establish that the supervisor of a prison system is liable for a constitutional violation, an inmate must establish that the supervisor was personally involved in the violation.See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). A supervisory defendant was personally involved if: (i) the defendant participated directly in the alleged constitutional violation; (ii) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (iii) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (iv) the defendant was grossly negligent in supervising subordinates who committed the wrongful act; or (v) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Colon, 58 F.3d at 873.

In this case, the plaintiff has not presented any evidence that Coombe ever participated directly in any of the events of November 3, 1995 or thereafter, or that Coombe created any unconstitutional policies or customs at Green Haven. The plaintiff argues instead that Coombe is liable for the constitutional violations that allegedly occurred in this case because the plaintiff made complaints about Woliver and Rhynders before November 3, 1995, and Coombe did not prevent Woliver, Rhynders or Decker from assaulting him and using excessive force against him, or from any of the other alleged constitutional violations that occurred thereafter.

However, the defendants have produced evidence indicating that Coombe never received these complaints and that they were instead handled by the Deputy Commissioner for Correctional Facilities as a matter of procedure. See Coombe Decl. ¶ 7. The plaintiff has presented no evidence to the contrary and no evidence that Coombe ever knew about any of the plaintiff's complaints. Hence, there is no evidence that Coombe ever displayed deliberate indifference to any known risk or was grossly negligent in supervising officials at Green Haven in the face of any known risk to the plaintiff. See, e.g., Greenwaldt v. Coughlin, 93 Civ. 6551, 1995 WL 232736, at *4 (S.D.N.Y. April 19, 1995) (numerous letters sent by pro se inmate to DOCS Commissioner, where complaints were delegated to other prison officials, were insufficient to establish Commissioner's personal liability); Cepeda v. Coughlin, 91 Civ. 2469, 1995 WL 23566 (S.D.N.Y. Jan. 19, 1995) (letter sent by inmate to Commissioner of DOCS did not establish Commissioner's personal involvement) Garrido v. Coughlin, 716 F. Supp. 98 (S.D.N.Y. 1989) (Commissioner of DOCS not personally liable for ignoring plaintiff's letter of protest and request for an investigation). The claims against Coombe should also be dismissed.

IX.

The defendants Coombe, Artuz, Connolly, Quackenbush, Schneider and Cook argue that the plaintiff has produced insufficient evidence to support his claim that they violated his Eighth Amendment rights by failing to assure prison conditions that would reasonably protect him from being assaulted with the use of excessive force in the November 3, 1995 incident. The plaintiff correctly argues that with regard to such prison conditions, prison officials are required "to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). In order to establish that a defendant has failed in this regard, an inmate must show both that the plaintiff inmate was incarcerated under conditions posing a substantial risk of serious harm to the inmate and that the defendant had a sufficiently culpable mental state in relation to these risks, namely, one of deliberate indifference. See id. see also Farmer, 511 U.S. at 832.

In this case, the record does not support an inference that the plaintiff was injured due to any such unsafe prison conditions. Force was used against the plaintiff on November 3, 1995 in response to an assault by the plaintiff, but prison officials are entitled to use reasonable force to respond to such assaults and restore order. See Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir. 1996). The plaintiff has not pointed to any credible evidence supporting the contention that his conditions of confinement at Green Haven have been unconstitutionally hazardous to his safety.

Moreover, the Deputy Commissioner of Correctional Facilities began an investigation into Woliver's and Rhynder's conduct after learning c)f the plaintiff's complaints. See Coombe Decl. ¶ 8. This investigation concluded in a finding that the plaintiff's claims were unsubstantiated, a finding that is consistent with the evidence in this case. see id. at Ex. C. An investigation of this kind demonstrates that prison officials were not deliberately indifferent to the plaintiff's claims. Ultimately, the plaintiff has offered no evidence that the defendants were deliberately indifferent to substantial risks of serious harm to him.

X.

The defendants argue that the plaintiff's claim that they have interfered with the plaintiff's First Amendment right to access the courts by delaying and inspecting some of his legal mail should be dismissed. In order to establish that such activities violate an inmate's First Amendment rights, a plaintiff must show not only that the defendants' alleged conduct was deliberate and malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as inability to meet a filing deadline or present an otherwise meritorious legal claim. See Lewis v. Casey, 518 U.S. 343, 348-51 (1996); Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001). The First Amendment does not give prisoners a right to litigate effectively once in court. See Lewis, 518 U.S. at 354.

In this case, there is nothing in the record to suggest that the defendants' alleged conduct has frustrated the plaintiff's ability to prosecute any of his claims. The plaintiff has a number of cases pending before this Court, and he has always been given ample time, including extensions when needed, to develop his legal cases and present his arguments to the Court. In any event, the plaintiff does not persist in his claim for violation of a right to access the courts in his opposition papers in this case, and these claims appear to be at least partly duplicative of claims he is pursuing squarely in a separate case before this Court, and which the Court has dismissed. See Amaker v. Haponik, 98 Civ. 2663. For the foregoing reasons, this claim should be dismissed.

XI.

The defendants correctly argue that the plaintiff has produced insufficient evidence to support his conspiracy claims, which allege that (i) the defendants Rhynders, Woliver, Decker, Stephens, Buday and Guarracino conspired to deny him access to the courts; (ii) the defendants Coombe, Artuz and Connolly conspired to "aid trumped up charges" against him; and (iii) the medical provider defendants, Zwilliger and Connolly conspired to deny him adequate medical care. To state a claim for conspiracy pursuant to § 1985(3), a plaintiff must allege and ultimately prove:

(1) a conspiracy; (2) that the conspiracy was for the purpose of depriving a person or class of persons of equal protection of the laws or equal privileges or immunities under the law; (3) that the defendants acted in furtherance of the conspiracy; (4) that plaintiff was either injured in his person or property or deprived of a right as a result of these actions; and (5) that defendants acted with class-based discriminatory animus.
Shabazz v. Vacco, No. 97 Civ. 3761, 1998 WL 901737, at *3 (S.D.N.Y. Dec. 28, 1998). However, for the reasons discussed above, the submissions on record in this case do not support the inference that any of the defendants engaged in activities that deprived the plaintiff of any rights, other than the right to be free of uses of excessive force.

The plaintiff has also alleged the other elements of a § 1985(3) conspiracy in conclusory terms. He has produced no evidence of any implicit or explicit agreements or meetings of the minds to deprive him of his constitutional rights. See Whitfield v. Forest Elec. Corp., 772 F. Supp. 1350, 1352-53 (S.D.N.Y. 1991) (noting that a conspiracy requires the existence of an agreement between two or more persons). In these circumstances, the plaintiff's claims for conspiracy must be dismissed. See. e.g., Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (affirming summary judgment dismissing conspiracy claim based only on conclusory allegations); see also Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990).

Because the plaintiff has presented no evidence of a violation of § 1985(3), he has also presented no evidence of a violation of § 1986, which requires knowledge of the wrongs conspired to be done in violation of § 1985(3). The plaintiff's claims under § 1986 must. therefore also be dismissed. See, e.g., Amaker v. Goord, 98 Civ. 3634, 1999 WL 511990, at *11 (S.D.N Y July 20, 1999) (collecting cases).

XII.

The defendants concede that there is a material question of fact with regard to the plaintiff's claim that the defendants Woliver, Rhynders and Decker used excessive force against the plaintiff during the November 3, 1995 incident, thus precluding summary judgment on this issue. The defendants argue that this is the only claim that survives this motion for summary judgment. However, as the plaintiff correctly observes, law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other officers in their presence. See e.g., Anderson v. Branen, 17 F.3d 552, 556-57 (2d Cir. 1994); O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). In this case, the plaintiff has presented evidence based on his own personal observations that the defendant Cook was present during some or all of the November 3, 1995 incident, and that Cook did not intervene. If the plaintiff can establish that excessive force was used against him in this incident, and that Cook was present and knew or should have known of the violation in time to intervene, then the plaintiff may also be able to establish that Cook was liable for the violation. Hence, the plaintiff's claim against Cook based on this particular theory cannot be dismissed on this motion.

XIII.

The defendants argue that the plaintiff's remaining state law claims against the medical provider defendants along with the federal claims. The plaintiff does not argue that he has any surviving state law claims against these defendants that would survive dismissal of his federal claims against them, and there is no evidence to rebut the testimony that the plaintiff's medical care was consistent with accepted medical standards given the plaintiff's actual medical conditions. These claims should therefore also be dismissed.

XIV.

The defendants have not explicitly moved for summary judgment dismissing the plaintiff's eighth cause of action against Nurse Wocel and Lieutenant Connolly for allegedly violating the plaintiff's rights to privacy and confidentiality in his medical records by revealing them. Any claim against Nurse Wocel has already been dismissed in view of her death. See Amaker v. Coombe, 1999 WL 637177, at *13. The basis for the remaining claim against Lieutenant Connolly is not wholly clear, but the parties do not present any explicit arguments addressing this claim, and, therefore, it cannot be dismissed on the present motions.

Nevertheless, there are several claims in this case that will proceed to trial, and it will take some time for the parties to make their pre-trial filings. In light of these facts, Lieutenant Connolly may, if he chooses, still move promptly to dismiss the remaining claim against him before trial. Any such motion must be made within three weeks of receiving this decision. The plaintiff may then respond within three weeks of receiving such a motion, and the defendant may reply within ten days of receiving that response.

This is also not a case in which the defendants have moved for summary judgment or previously moved to dismiss on the grounds that the plaintiff's claims are barred because he failed to exhaust the prison grievance mechanism. See 42 U.S.C. § 1997e(a); see also generally, Porter v. Nussle, 122 S.Ct. 983, 987-92 (2002).

XV.

The plaintiff also moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate this Court's Orders granting summary judgment to the defendant Ferris, the state trial court judge in the plaintiff's assault case, and defendant Kropowski, the state prosecutor in that case. See Amaker v. Coombe, 1998 WL 637177; Amaker v. Coombe, 1999 WL 970424. While the plaintiff terms this motion as a motion for relief from a judgment, the docket does not reflect that any judgment was actually entered with respect to these defendants because the plaintiff had other claims against other defendants remaining after those Orders were issued. In any event, whether viewed as a motion for relief from a judgment or a motion for reconsideration, the motion has no merit.

The plaintiff argues that the decisions by the Court of Appeals for the Second Circuit in Jenkins v. Haubert, 179 F.3d 19 (1999), and Leather v. Eyck, 180 F.3d 420 (1999), undercut the Court's prior Orders dismissing the claims against Ferris and Kropowski. This argument is incorrect. InJenkins, the Court of Appeals held that a prisoner can challenge the validity of a disciplinary or administrative sanction that does not affect the overall length of the prisoner's confinement. See Jenkins, 179 F.3d at 25. In Leather, the Court of Appeals held that a § 1983 plaintiff could challenge his conviction for driving while impaired on the basis of selective prosecution. The Court of Appeals held that the plaintiff could challenge this conviction in a § 1983 action in part because the plaintiff was not and never had been in the custody of the state and, hence, had no remedy in habeas corpus. See Leather, 180 F.3d at 424. In particular, the plaintiff in Leather had only been sentenced to a $300 fine, a $25 surcharge and a license suspension for 90 days.

However, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court had held that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for any other harm caused by actions the unlawfulness of which would render a conviction or sentence invalid, a § 1983 plaintiff must generally prove that the conviction or sentence had been reversed, expunged, declared invalid, or called into question in a federal habeas corpus proceeding. See id. at 486-87. In both Jenkins and Leather, the Court of Appeals for the Second Circuit held that theHeck rule did not apply to those particular cases because of the particular facts in the cases and because of the precise claims that were being raised.

Neither Jenkins nor Leather undercuts this Court's prior decisions relating to the defendants Ferris and Kropowski in this case. The decision with respect to Judge Ferris was based on absolute judicial immunity, and nothing in the recent decisions by the Court of Appeals affects that issue. Part of the decision relating to the defendant Kropowski was based on absolute prosecutorial immunity, and, as to that issue, neither of the recent decisions has any relevance either. See Amaker v. Coombe, 1998 WL 637177, at *6. The remaining claims against Kropowski related to charges of false arrest and were dismissed on the basis of Heck and a number of subsequent decisions of the Court of Appeals for the Second Circuit, which stand for the proposition that where a conviction has not been overturned on direct appeal or on a collateral attack, the conviction itself establishes that there was probable cause to arrest the person. See id. at *3 The plaintiff's false arrest claims against Kropowski necessarily implied the invalidity of the plaintiff's conviction, and were thus squarely barred by Heck.

Nothing in Jenkins or Leather undercuts this conclusion. Jenkins is not on point because it concerned the ability to challenge a prison disciplinary proceeding and not an underlying conviction. Leather is not on point because, unlike the plaintiff in Leather, the plaintiff here was sentenced to incarceration — a term of six months incarceration to be served concurrently with the state court sentence he was already serving. The plaintiff suggests no reason why he could not have attempted to vacate his state court conviction by bringing a federal petition for a writ of habeas corpus rather than raising his original claims against Kropowski and Ferris in this § 1983 action. Thus, the plaintiff cannot use a § 1983 action to challenge the validity of his state conviction.

However, the Court of Appeals has also made it clear that a dismissal on Heck grounds is to be without prejudice because of the possibility that at some future time the state conviction may be invalidated. See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999). Therefore, to the extent that any claims against Kropowski were dismissed solely on Heck grounds, the dismissal was without prejudice. Because final judgment has not yet been entered in this case and several claims have yet to be tried, Kropowski could, if he chose, seek to make any dismissal with prejudice if there is any basis for such a motion.

The motion to vacate the prior order of summary judgment or for reconsideration is therefore denied, except to the extent noted above.

CONCLUSION

For the foregoing reasons:

1. The plaintiff's Rule 56(f) motion is denied.

2. The defendants' motion for partial summary judgment is granted, except with regard to:
a. the claim that the defendant Cook is liable for failing to intervene in the alleged use of excessive force against the plaintiff; and
b. the claim that the defendants Woliver and Rhynders used excessive force against the plaintiff out of retaliation for the grievances he had recently filed against them.
3. As the defendants concede, the claim concerning the alleged use of excessive force against Woliver, Rhynders and Decker is not dismissed.
4. The plaintiff's claim that Lieutenant Connolly violated the plaintiff's right to privacy in his medical records is not covered in the pending motions and is therefore not dismissed, without prejudice to a motion by Lieutenant Connolly for summary judgment with respect set to that claim in accordance with the time table set forth above.
5. The plaintiff's cross-motion for summary judgment be is against the defendants Connolly, Wilson and Coombe denied.
6. The plaintiff's motion pursuant to Rule 60(b) orders Federal Rules of Civil Procedure to vacate the granting summary judgments in favor of the defendants Ferris and Kropowski is denied, except that the dismissal of any claim against Kropowski based solely on Heck grounds is without prejudice.
SO ORDERED.


Summaries of

Amaker v. Coombe

United States District Court, S.D. New York
Mar 29, 2002
No. 96 Civ. 1622 (JGK) (S.D.N.Y. Mar. 29, 2002)

finding that an actionable "delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment"

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Summary of this case from Rigano v. County of Sullivan

noting that "[s]ubjectively, the charged official must have a mental state `equivalent to criminal recklessness'"

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dismissing section 1983 claim for alleged deliberate indifference because plaintiff produced no evidence refuting medical experts' affidavits opining that plaintiff had received adequate care

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Case details for

Amaker v. Coombe

Case Details

Full title:ANTHONY D. AMAKER, Plaintiff, v. PHILIP COOMBE, JR., et al., Defendants

Court:United States District Court, S.D. New York

Date published: Mar 29, 2002

Citations

No. 96 Civ. 1622 (JGK) (S.D.N.Y. Mar. 29, 2002)

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