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December 10, 1991


The opinion of the court was delivered by: Larimer, District Judge.


This case was referred to Magistrate Judge Kenneth R. Fisher pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). On September 12, 1991, Magistrate Judge Fisher filed a Report and Recommendation that the parties' cross-motions for summary judgment be denied. No objections were filed by either party to the Report and Recommendation.

I agree with Magistrate Judge Fisher that there does appear to be material facts in issue which preclude the granting of summary judgment at this time.

Therefore, Magistrate Judge Fisher's Report and Recommendation is accepted and adopted pursuant to Title 28 U.S.C. § 636(b)(1)(B). The parties' cross-motions for summary judgment are denied.


     DECISION AND ORDER (on motion to amend) AND REPORT AND
        RECOMMENDATION (on motions for summary judgment)

KENNETH R. FISHER, United States Magistrate Judge.

Before the court are plaintiff's motion for summary judgment (originally filed as a motion for a directed verdict and later converted by order dated January 14, summary judgment. Also pending before the court is plaintiff's motion to amend the complaint, originally filed December 1, 1989, which has not been addressed by defendants. This case has had a somewhat tortured legal history which stems in part from defense counsel's inattention to the case and in part from confusion within the district court concerning the judicial officer to whom these motions were assigned for disposition. The original referral order to the undersigned limited the referral to a discovery motion and the motion to amend the complaint. The docket sheet, however, reflected that the entire matter had been referred to me.*fn1 Defense counsel did not respond to either motion (although defendants made a prior motion for an order directing plaintiff to serve and file an amended complaint with numbered paragraphs — docket entry # 6). In view of defense counsel's failure to respond to the motion for an order compelling discovery, I issued an order March 26, 1991, granting the motion. Defense counsel (Assistant County Attorney Kelly Anne Brinkworth) corresponded with the court to confirm that compliance with the order would occur forthwith.

The trail followed by plaintiff's motion to amend is more complex. Again, however, defendant has not responded to the motion to amend. Indeed, presumably in view of defendant's motion for an order directing plaintiff to serve and file an amended complaint with separately numbered paragraphs in compliance with the federal rules, an answer has not been filed in the action and issue has not been joined. Defendant's latter motion was not referred to me and it has languished. On the other hand, plaintiff's motion to amend the complaint, which was referred to me and which sought to add a claim against the County under Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), included as an attachment an "Amended Complaint" which contained separately numbered paragraphs as requested in defendant's original motion. Because defense counsel had not been served with the motion to amend, which attached the Amended Complaint filed in response to defendant's motion seeking an amended complaint with numbered paragraphs, I ordered the Clerk to make copies and send the motion to amend and Amended Complaint to defense counsel. Order of May 31, 1990 (docket entry # 17). As indicated, defendants have not answered the Amended Complaint. Accordingly, defendants' motion for an order directing plaintiff to serve an Amended Complaint with separately numbered paragraphs (docket entry # 6) and plaintiff's motion to file an amended complaint (docket entry # 11), are both granted and defendants must respond thereto (i.e., to docket entry # 11) within 20 days of service of this order upon defendants.*fn2

While these motions were pending, other motions were filed by the parties seeking dispositive relief. First, plaintiff filed a motion for a directed verdict (docket entry # 18), which upon request was converted to a motion for summary judgment by my order dated January 14, 1991 (docket entry # 20). Defendant Moehrle responded by filing an affidavit in opposition to the motion for summary judgment and he cross moved for summary judgment on the basis of the same affidavit and an affidavit of defense counsel (docket entry ## 23-26). Plaintiff has not responded to defendants' motion for summary judgment.

The following is my Report and Recommendation that the motion for summary judgment and the cross motion for summary judgment be denied.*fn3 Plaintiff's Amended Complaint alleges that "in early 1988" while he was confined at the Erie County Correctional Facility, he was physically forced to endure physical and medical restraints for several days, during which he was injected with anti-psychotic and tranquilizer medications by force in violation of his Eighth Amendment right to be free from cruel and unusual punishment and his Fifth and Fourteenth Amendment right to procedural Due Process. Plaintiff alleges that, while in the segregation unit, Lt. Pawlczak directed plaintiff to submit, through the food slot in his cell door, to a buttock injected application of medication. Plaintiff alleges that he refused, but was told that he had "no choice in the matter." Plaintiff alleges that, when he made a vulgar remark, the door opened and between six and ten officers entered his cell, "in full riot gear, [where] they threw me on the floor, removed all my clothing, handcuffed me in the back placed me face down on the bed and (someone) then injected a[n] unknown substance into my buttock area, [t]wice." Amended Complaint ¶ (2). Plaintiff further alleges that, [t]hey left [him] handcuffed for approximately 10 hours." According to plaintiff, as the officers left the cell, someone remarked to the effect: "that should shut him up for a few hours." Plaintiff alleges that the effect of the medication was to induce hallucinations and a restriction of his physical capacity to "lie down or use a toilet." Amended Complaint ¶ (2).

Plaintiff described one other specific occasion, not placed in time however, in which he was told by a correction or jail officer to take an injection "because it's sleepy-time" and "because we[']re sick of your mouth." Amended complaint ¶ (3). Plaintiff alleges that, when he called the officers names, that they "came pouring into my cell" with a can of tear gas pointed at his face and forced him to submit to another injection which caused hallucinations within 30 minutes and other mental trauma. Amended Complaint ¶ (3). Plaintiff alleges that he protested the injections without his consent and that "there were approximately 6 incidents where I was involuntarily medicated, which the details of I am unable to recall." Amended Complaint ¶¶ (6)-(7).

Finally, plaintiff contends that Chief Moehrle was the direct supervisor of the Erie County Correctional Facility and that he had supervisory liability for the actions complained of. Plaintiff also contends that the County of Erie "has unconstitutional policies regarding the involuntary medicating of prisoners in their custody, and the County is responsible for ordering the officers in their employ to commit unconstitutional acts and/or having a policy so vague that it could be misinterpreted to allow forced medicating for punitive or anti-therapeutic purposes." Amended Complaint ¶¶ (4)-(5).

Chief Moehrle filed an affidavit in opposition to plaintiff's motion and in support of defendant's cross motion. He concedes that he is the commanding officer of all security personnel at the Erie County Correctional Facility. Defendant states that plaintiff was incarcerated at the Erie County Correctional Facility between September 29, 1987 and December 12, 1987. Moehrle alleges that "plaintiff was an extreme disciplinary problem," who was "reported for disciplinary action thirty-two (32) times on ninety (90) charges of violating Erie County Correctional Facility rules and regulations during his three month incarceration period." Moehrle affidavit at ¶ 5-7. Moehrle contends that plaintiff was afforded due process in regard to each of his disciplinary hearings and sanctions, and "that plaintiff was assigned to punitive segregation, administrative segregation, and special housing after various disciplinary hearings." Moehrle affidavit at ¶ 9. In regard to the administration of medication by injection, Moehrle alleges that plaintiff had "a propensity for violent behavior and an extensive mental health history," which caused "continual referral[s] to the Facility's Forensic Mental Health Services throughout his incarceration." Moehrle affidavit at ¶ 10. Moehrle alleges that a psychiatrist at the facility, who is unnamed, placed plaintiff on "psychotropic drug therapy . . . to control outbursts of violent behavior," and that, "on one occasion in October of 1987, during a violent behavioral episode which included threats of death and physical harm to security personnel, it was necessary to restrain and administer prescribed medication to the plaintiff." Moehrle affidavit at ¶ 11-12. Moehrle contends that this was the only incident in which ...

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