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April 13, 1976

Ralph MIGNONE, Plaintiff,
Leon J. VINCENT, Superintendent, Green Haven Correctional Facility, Two Unknown Officers of Green Haven Correctional Facility, and Officer Reese, Matteawan State Hospital, Defendants

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 Plaintiff, a state prisoner, brings this action pursuant to 42 U.S.C. § 1983 to redress alleged deprivations of his constitutional rights. The defendants, the superintendent of the Green Haven Correctional Facility and officers of both that facility and the Matteawan State Hospital, have moved for summary judgment in their favor on each of the claims set forth in the complaint. For the reasons which appear hereafter, partial summary judgment is granted in favor of defendants dismissing several of the asserted claims; the motion for judgment on the remainder is denied on the ground that triable issues are involved therein.

 Plaintiff was sentenced to consecutive terms of from thirty to sixty years for robbery and from five to seven years (later reduced to three and one-half) for escape. A petition for habeas corpus, raising contentions distinct from those in the instant suit, was denied by this Court on February 27, 1975.

 Plaintiff's claims herein arise out of events surrounding his transfer from Green Haven Correctional Facility to the Matteawan State Hospital in the fall of 1973 and winter of 1974. Mignone claims that on the drive from Green Haven to the Fishkill Diagnostic and Examination Center at Matteawan he was beaten by the two correctional officers-defendants; that he was again beaten at Fishkill and was forced to take medication by needle and orally; that, once back at Green Haven, he was denied medical attention for the injuries caused by the beatings; and that he was improperly denied privileges available to other inmates at Green Haven. These claims are disputed by the defendants.

 Plaintiff's final claim arises from the facts -- not controverted by the defendants -- that he was committed to Matteawan State Hospital on January 28, 1974 without a prior hearing, and was released back to Green Haven after a court hearing on May 24, 1974 determined that commitment was unwarranted.

 The two categories of plaintiff's claims, the allegations of physical abuse and of legally improper commitment, are best analyzed separately.


 The defendants have submitted a number of affidavits from the relevant personnel at Green Haven and Matteawan which traverse the plaintiff's claims regarding beatings, refusal of medical attention and denial of privileges. The affidavits also deny the underlying facts of some of the claims, and supply facts which provide legal justification for such conduct as to the remainder.

 While a summary judgment motion may not constitute a trial by affidavit, see Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317 (2d Cir. 1975), the law is clear that "[when] the movant comes forward with facts showing that his adversary's case is baseless, the opponent cannot rest on the allegations of the complaint but must adduce factual material which raises a substantial question of the veracity or completeness of the movant's showing or presents countervailing facts." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972); Fed.R.Civ.P. 56(e).

 The plaintiff has made no response to the defendants' motion and the factual data submitted thereon, despite the special effort made by the defendants' counsel, at the Court's direction, to notify the plaintiff that he had the opportunity to respond. Thus, although the pleadings of a pro se complainant are entitled to a liberal construction, see Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Frankos v. LaVallee, 535 F.2d 1346 (2d Cir. 1976), the absence of any response by the plaintiff at all to the factual showing adverse to the plaintiff's pleading, renders summary judgment appropriate on these claims. Cf. Williams v. Halperin, 360 F. Supp. 554, (S.D.N.Y. 1973) (liberality afforded pro se complaint "is not without limits").


 The defendants' statement of uncontroverted fact submitted in accordance with local general rule 9(g) admits that

Plaintiff was committed to Matteawan without a hearing or jury trial on January 28, 1974. Plaintiff was subsequently given a Court hearing where formal commitment was denied by the Court on May 24, 1974.

 Since the facts are undisputed, defendants are entitled to summary judgment only if, "as a matter of law," Mignone was not entitled to a hearing prior to the date one was provided for him. Fed.R.Civ.P. 56(c). The defendants rely solely on their alleged compliance with § 408(7) of the ...

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