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Graham v. Correctional Sergeant Lewinski

decided and filed: May 25, 1988.


Appeal from judgment of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, granting defendants' motion for summary judgment and dismissing plaintiff's amended complaint. Vacated and remanded.

Author: Feinberg



Frank Graham, an incarcerated state prisoner, appeals from an order of the United States District Court for the Western District of New York, dismissing his complaint brought under 42 U.S.C. § 1983 and granting summary judgment to defendant correction officers. Appellant contends that the district court erred in granting summary judgment because appellant's papers in the district court raised material issues of fact. For the reasons set forth below, we vacate the judgment of the district court and remand the case for further proceedings.

I. Background

In August 1986, Graham filed a pro se action under 42 U.S.C. § 1983, alleging that he was an inmate at the Attica Correctional Facility and that a number of officials of the institution had violated his constitutional rights by assaulting him in the prison metal shop, subjecting him to racial slurs and denying him medical care. Attached to the complaint were statements from four inmates supporting some of Graham's claims. In September 1986, the district court dismissed the complaint as against four supervisory officials on the ground that it did not sufficiently allege any claim against those individuals. However, the court did grant Graham leave to file an amended complaint against three other prison employees, Correctional Sergeant Richard J. Lewinski and Officers Michael J. Piechoki and Richard J. Schimley (hereafter, the State or defendants).

In November 1986, Graham filed an amended complaint, accompanied by the same four inmate statements in support of his claims. The amended complaint was on a form, supplied by the district court, to be used by prisoners for § 1983 actions. At the end of the form, directly under the signature line, appeared the legend "I declare under penalty of perjury that the foregoing is true and correct." The complaint again alleged that Graham had been assaulted and removed from the metal shop with undue force by defendants on October 2, 1985, that plaintiff was denied medical care for injuries sustained during the incident and that he was subjected to racial slurs by defendants. In December 1986, the district court dismissed the claim based on racial slurs on the ground that it did not rise to the level of a constitutional violation. However, the court found the remaining two claims of assault and denial of medical care sufficient to state a section 1983 claim.

In February 1987, following receipt of the State's answer, the court directed it to file a motion for summary judgment in order to try to narrow the issues in the case. In March 1987, the State complied with the court's order and supported its motion for summary judgment with affidavits from the named defendants and the Assistant Attorney General for the State of New York assigned to the case.

In May 1987, the district court extended plaintiff's time to respond to the State's motion. Thereafter, however, plaintiff did not submit any additional papers. In September 1987, the district court granted the State's summary judgment motion because defendants' affidavits in support of the motion were "uncontradicted." This appeal followed.


In this court, the case now rests in an unusual posture. We appointed counsel for appellant, who thereafter argued in his brief that the district court erred in finding that defendants' affidavits were uncontradicted because it had failed to consider plaintiff's amended complaint, which had the force of an affidavit under 28 U.S.C. § 1746.*fn1 Therefore, according to appellant's counsel, even though Graham acting pro se had failed to submit further papers after the district court's May 1987 order, the court could not properly hold that there were no issues of fact because the papers already filed by Graham created such issues.

In a surprising response, the State submitted a letter advising us that it did not intend to file a brief. However, the letter noted that the record did "not show that plaintiff received notice of the requirements of the summary judgment rule." Accordingly, the State suggested that "the interests of justice" would be served by vacating the judgment of the district court and remanding the matter so that plaintiff could receive "fair notice" of the summary judgment requirements before the district court acted upon the State's motion for that relief.

In an even more surprising rejoinder, counsel for Graham vigorously opposed this suggested disposition of the appeal, characterizing it as an attempt to "sweep this mess under the rug." Apparently, counsel believed that the State's proposal was a ploy designed to eliminate the possibility of an opinion that might create a favorable precedent available to all inmates. Counsel asks us instead to establish a rule that, because of 28 U.S.C. § 1746, a prisoner's complaint on the form routinely distributed in the Western District has the effect of an affidavit for purposes of a summary judgment motion brought by the State.

We admire both the zeal of counsel appointed for Graham and the candor of counsel for the State. Appellant contends that there is authority for according the amended complaint the force of an affidavit because it was incorporated by reference into a form used by prisoners which was signed, dated and declared to be true under the penalties of perjury. Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985), cert. denied, 475 U.S. 1107, 89 L. Ed. 2d 912, 106 S. Ct. 1513 (1986). The State points out in its letter that whether the complaint ...

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