through a report or appeal; (3) have created or allowed to
continue a policy under which the violation occurred; or (4) have
been grossly negligent in managing subordinates who caused the
unlawful condition. 781 F.2d at 323-24.
With respect to the latter two prongs of liability, a prison
superintendent is not held responsible for an isolated incident
about which he had no advance notice. See Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791
(1985). In Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974),
the dismissal of a prisoner's complaint against the prison
superintendent was upheld where the plaintiff had failed to
allege either that the superintendent authorized the officer's
objectionable conduct or that there had been a history of similar
incidents. See also Johnson v. Glick, 481 F.2d 1028, 1034 (2d
Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324
(1973) (warden not liable for a correction officer's single
spontaneous beating of inmate); Bowman v. Casler, 622 F. Supp. 836,
838-39 (N.D.N.Y. 1985) (sheriff's summary judgment motion
granted where plaintiff failed to submit evidence that the
sheriff authorized the assault or that a policy existed allowing
Here, Murray claims that Hopkins was aware of a past history of
beatings under similar circumstances and that Hopkins had notice
of the hallway fracas and of Murray's involvement in that fracas
prior to the alleged retributive assault upon Murray by officers.
These allegations, which must be taken as true for present
purposes, distinguish this case from the authorities cited above
and suffice to state a cause of action. Murray's cognizable claim
is that Warden Hopkins had a strong basis to believe, before the
fact, that Murray would suffer punitive physical abuse at the
hands of his officers if the Warden did not intervene, and thus,
by failing to act, the Warden was grossly negligent or
"deliberately indifferent to known risks of danger." Al-Jundi,
885 F.2d at 1066.*fn1
Murray's allegations, if proven, would permit a reasonable
person to conclude that Hopkins had "actual or constructive
notice" of foreseeable unconstitutional practices and
"demonstrate[d] `gross negligence' or `deliberate indifference'
by failing to act." Meriwether v. Coughlin, 879 F.2d 1037, 1048
(2d Cir. 1989). See also Morales v. New York State Dept. of
Corrections, 842 F.2d 27, 30 (2d Cir. 1988); Haynesworth v.
Miller, 820 F.2d 1245, 1261 (D.C.Cir. 1987); Gill v. Mooney,
824 F.2d 192, 195-96 (2d Cir. 1987); Villante v. Department of
Corrections, 786 F.2d 516, 522 (2d Cir. 1986); McCann v.
Coughlin, 698 F.2d 112, 125 (2d Cir. 1983); Wright v. McMann,
460 F.2d 126, 134-35 (2d Cir.), cert. denied, 409 U.S. 885, 93 S.Ct.
115, 34 L.Ed.2d 141 (1972). City of Canton, Ohio v. Harris,
489 U.S. 378, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989)
(discussing "deliberate indifference" standard of municipal
liability based upon failure to train). While defendants note
that the exhibits plaintiff has attached to his amended complaint
fail fully to support the allegation that Warden Hopkins had
notice of the incident at a time that would permit his
intervention, at this stage of the proceeding Murray is not
required to prove the allegations made within his complaint.*fn2 Nor
can it be assumed, in view of the court's obligation to make
inferences favorable to Murray, see Morales v. New York State
Dept. of Corrections, 842 F.2d 27, 30 (2d Cir. 1988), that since
Hopkins was not physically present when Murray was allegedly
beaten, he had no opportunity to intervene in the officers'
conduct. The complaint alleges that the beating by the officers
followed the hallway incident, notice of which was "immediately"
given to the Warden, by more than fifteen minutes. It is
conceivable therefore that Warden Hopkins could have taken some
action, assuming he had been given good reason to act. For all of
these reasons, the amended complaint states a claim against the
Murray's motion to amend the complaint is granted and the
amended complaint that was submitted with his motion is deemed
filed. Murray shall serve copies of the amended complaint upon
the newly-named defendants Cole and Velez within 45 days. Service
upon Hopkins is deemed accomplished by virtue of the prior
service of the original complaint upon Hopkins and service of
this motion on Hopkins' counsel, the Corporation Counsel for the
City of New York.
It is so ordered.