United States District Court, Southern District of New York
December 31, 1991
JEROME RUSSELL, PLAINTIFF,
THOMAS A. COUGHLIN, III, DONALD SELSKY, CHARLES J. SCULLY, J.A. DEMPSKIE, C. ARTUZ, WILBUR WRIGHT, WILLIAM MCGINNISS, L. CAREY AND BOBBIE JO LABOY, JOINTLY, SEVERALLY AND INDIVIDUALLY, RESPECTIVELY, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Defendants Christopher Artuz ("Artuz") and Captain Wilbur
Wright ("Captain Wright") have moved pursuant to Rule 3(j) of
the Local Rules for the Southern District of New York for
reargument of this
court's opinion and order of September 25, 1991, Russell v.
Coughlin, 774 F. Supp. 189 (S.D.N.Y. 1991) (the "Opinion"),
denying as to them the motion made by them and various other
defendants (collectively the "Defendants") for summary judgment
dismissing the complaint of pro se plaintiff Jerome Russell
("Russell"), and, upon reargument, for an order granting them
summary judgment. For the following reasons, the motion for
reargument is granted.*fn1 Upon reargument, Artuz's motion for
summary judgment is granted. Captain Wright's motion for
summary judgment is granted in part and denied in part.
Russell is presently incarcerated at Green Haven Correctional
Facility ("Green Haven").
Defendant Artuz is the First Deputy Superintendent at Green
Defendant Captain Wright is a Captain at Green Haven.
Facts and Prior Proceedings
The facts underlying the present motion are discussed in
detail in the Opinion, familiarity with which is assumed. In
brief, pursuant to 42 U.S.C. § 1983, in his Amended Complaint,
Russell charged Captain Wright, Artuz, and their co-defendants
Coughlin, Selsky, Scully, Demskie, McGinnis, Carey and LaBoy
with due process violations in his Tier III hearings. Pursuant
to the Opinion, the court granted summary judgment dismissing
the claims against all of the Defendants except for Artuz,
Wright and Carey.*fn2
Artuz and Wright filed the present motion on October 16,
1991. The matter was taken on submission and considered fully
submitted as of November 7, 1991.
1. Motion for Reargument
To be entitled to reargument under Local Rule 3(j), the
moving party must demonstrate that the court overlooked
controlling decisions or factual matters that were put before
the court on the underlying motion. Ashley Meadows Farm, Inc.
v. Am. Horse Shows Ass'n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985).
Artuz argues that in declining to dispose of the claims
against him on the ground that he did not participate in the
motion for summary judgment, Opinion at 191 n. 2, the court
overlooked the fact that Artuz was in fact a party to the
motion. Indeed, reinspection of the signature page of the
Notice of Motion establishes that Artuz did join in the motion,
although his participation was obscured by the absence of any
reference to him as a moving party elsewhere in the documents.
See, e.g., Def. Memo. at 1 ("Defendants Thomas A. Coughlin III,
Donald Selsky, Charles J. Scully, Joseph A. Demskie, Wilbur
Wright, Michael McGinnis and Bobbie Jo LaBoy submit this
memorandum of law in support of their motion for summary
judgment. . . ."). Thus, Artuz's motion for reargument is
Wright claims that he is entitled to reargument because, in
declining to grant defendants' summary judgment motion as
unopposed, the court overlooked the Second Circuit case of
Graham v. Lewinski, 848 F.2d 342 (2d Cir. 1988), and because
the court erroneously concluded that Wright was not entitled to
In Graham, the pro se plaintiff bringing a § 1983 action
against prison officials, failed, as did Russell here, to
submit any papers in opposition to the defendants' summary
judgment motion. Id. at 343. The district court granted the
motion because defendants' affidavits in support of the motion
were "uncontradicted." Id.
Presented with the issue of whether summary judgment should
be granted against a pro se litigant who does not know that he
is expected to respond to a summary
judgment motion or else risk suffering a judgment against him,
the Second Circuit found that:
it does seem inequitable, without a more explicit
warning, to expect an incarcerated pro se to know
that in response to the State's motion for summary
judgment he cannot rely upon the papers already
filed. This court has recently stated that special
solicitude should be afforded pro se litigants
generally, when confronted with motions for
summary judgment. Sellers v. M.C. Floor Crafters,
Inc., 842 F.2d 639, 642 (2d Cir. 1988). . . . Pro
se prisoners are, of course, entitled to at least
the same solicitude. . . .
. . . . The state has represented to us that in
the future, whenever it moves for summary judgment
in a suit in which the opposing party is an
incarcerated pro se litigant, it will include an
easily comprehensible notice of the possible
consequences of not replying.
Id. at 344-45 (emphasis added). Artuz and Captain Wright
properly point out that their motion papers contained an
admonition consistent with Graham and thus that Russell had
fair warning of the need to make further submissions.
Artuz and Wright are incorrect, however, in their contention
that Graham, or any other rule cited by Defendants, warrants
the automatic grant of their summary judgment motion on the
ground that Russell failed to contest the motion or the facts
set forth in their 3(g) statement and supporting affidavits.
Rule 3(g) provides in relevant part that:
All material facts set forth in the statement
required to be served by the moving party will be
deemed admitted unless controverted by the
statement required to be served by the opposing
Rule 56(e) provides in relevant part that:
an adverse party may not rest upon the mere
allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided
in this rule, must set forth specific facts
showing that there is a genuine issue for trial.
If he does not so respond, summary judgment if
appropriate, shall be entered against him.
Fed.R.Civ.P. 56(e) (emphasis added). These rules thus establish
that, in the absence of opposition, all of the facts set forth
in the 3(g) statement of the party moving for summary judgment
must be deemed admitted. The court must then determine whether
those facts are sufficient to warrant the grant of summary
judgment. Schneider v. OG & C Corp., 684 F. Supp. 1269, 1270-71
(S.D.N.Y. 1988). Graham holds that the consequences of failing
to submit opposition apply equally against a pro se plaintiff
on notice of the rules. Thus, upon reargument, consistent with
Graham, Rule 3(g) and Fed.R.Civ.P. 56(e), the facts asserted in
the Defendants' uncontested 3(g) statement and affidavits will
be treated as admitted.
2. Summary Judgment
The Second Circuit has recently written that:
[s]ummary judgment may be granted only when there
is no genuine issue of material fact remaining for
trial and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). "As a
general rule, all ambiguities and inferences to be
drawn from the underlying facts should be resolved
in favor of the party opposing the motion, and all
doubts as to the existence of a genuine issue for
trial should be resolved against the moving
Bay v. Times Mirror Magazines, Inc., 936 F.2d 112
, 116 (2d Cir.
1991) (citations omitted). As is often stated, "[v]iewing the
evidence produced in the light most favorable to the nonmovant,
if a rational trier could not find for the nonmovant, then
there is no genuine issue of material fact and entry of summary
judgment is appropriate." Binder v. Long Island Lighting Co.,
933 F.2d 187
, 191 (2d Cir. 1991); see also Bay, 936 F.2d at
Russell's Amended Complaint charges that Artuz "designated
the defendant WRIGHT as the Hearing Officer ['HO']", Amended
Comp. ¶ 3; "designated the defendant McGinnis as the HO", id. ¶
8; and conspired with the other Defendants in
their alleged violations of Russell's constitutional rights.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
prove that, acting under color of state law, the defendant
acted with deliberate indifference to deprive him of due
process of law. See Davidson v. Cannon, 474 U.S. 344, 347, 106
S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Moreover, the plaintiff
must prove that the individual defendant charged was personally
involved in the wrongful conduct that deprived him of his
constitutional rights. Gill v. Mooney, 824 F.2d 192, 196 (2d
Cir. 1987). Supervisory personnel may be held accountable for
the constitutional violations of their subordinates only upon
proof that they (1) were directly involved in the wrongdoing;
(2) failed to remedy a wrong after learning of it through
report or appeal; (3) created or allowed a policy under which
the violation occurred; or (4) were grossly negligent in
managing the subordinates who caused the wrongdoing. Williams
v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).
Accepting the facts contained in Defendants' affidavits
supporting their motion for summary judgment as true, the
claims against Artuz must be dismissed because Russell has
failed to establish personal involvement by Artuz. See Eggers
Aff. ¶ 6 (Captains Wright and McGinnis were assigned to act as
hearing officers by Tier III office). Moreover, even if Artuz
did designate Captains Wright and McGinnis as hearing officers,
Russell has presented no facts establishing that he was in any
way involved in or aware of any wrongful conduct by Wright or
that he was aware that McGinnis had previous involvement in
Russell's case. Mere negligence does not constitute a
constitutional injury. See Davidson, 474 U.S. at 347, 106 S.Ct.
at 670. Finally, the joint and several liability claim against
Artuz cannot withstand Artuz's summary judgment motion because
Russell has not raised facts indicating that Artuz participated
in any meaningful respect in the actions of the others. For
these reasons, Artuz's motion for summary judgment is granted.
This court originally denied Captain Wright's motion for
summary judgment because it found that genuine issues of fact
existed as to (1) his failure to provide on the record an
explanation for refusing to call two corrections officers as
witnesses requested by Russell at his first Tier III hearing
and (2) his failure to conduct an independent assessment of the
credibility of three confidential informants who provided
information upon which he relied in finding Russell guilty.
With respect to the first issue, Defendants' 3(g) statement
Captain Wright refused to call inmates Fisher
and Chavez, despite plaintiff's request, since
plaintiff had stated on the record that Fisher's
testimony would merely be cumulative and that
Chavez's testimony had no probative value. . . .
Captain Wright discussed with plaintiff off the
record his request that the two correction
officers be called as witnesses, and they agreed
that their testimony was not necessary.
Def. 3(g) Statement ¶ 5; see also Wright Aff. ¶ 7.
Treating Wright's explanation for his exclusion of these
witness as true in the absence of any contest by Russell,
Wright has provided a logical reason for his decision, leaving
no genuine issue for trial as to this fact. See Ponte v. Real,
471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553 (1985)
(prison officials must explain denial of request for witnesses
either as part of written record of disciplinary proceedings or
when hearing is challenged). Therefore, summary judgment is
granted dismissing this claim against Captain Wright.
Nevertheless, even accepting all of the facts in Defendants'
3(g) statement as true, a genuine issue for trial remains with
respect to Wright's failure to assess independently the
credibility of the confidential informants and the reliability
of their information. The Defendants' 3(g) statement provides
The final witness was Sergeant LaBoy, who
testified in plaintiff's presence that
she investigated the alleged assault upon inmate
Monroe and was given information by three
confidential sources who identified plaintiff as
one of the participants in the incident. . . .
Sergeant LaBoy stated that she had dealt with one
of the informants for nine years, one for two
years and the other for one year and that she had
found all three of the informants to be reliable.
She also stated that she believed the informants
would be placed in danger of harm if their
identities were revealed to plaintiff and others
involved in the incident. Captain Wright knew from
previous experience that Sergeant LaBoy
consistently obtained information from
confidential sources that was reliable and
Def.'s 3(g) Statement ¶ 4; see also Wright Aff. ¶ 6.
Accepting this as a true account of the facts, however, the
court must reiterate its original holding that a reasonable
jury could find that the procedure followed by Captain Wright
did not satisfy the mandates of due process. It was not enough
for Captain Wright simply to rely on Sergeant LaBoy's
conclusion that the confidential sources were credible and
their information reliable; Captain Wright must have
ascertained some facts from which he might draw these
conclusions for himself. See Wolff v. McDonnell, 418 U.S. 539,
94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Kyle v. Hanberry,
677 F.2d 1386 (11th Cir. 1982); Helms v. Hewitt, 655 F.2d 487, 502
(3d Cir. 1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct.
864, 74 L.Ed.2d 675 (1983); Smith v. Rabalais, 659 F.2d 539,
540-42 (5th Cir. 1981), cert. denied, 455 U.S. 992, 102 S.Ct.
1619, 71 L.Ed.2d 853 (1982); Vasquez v. Coughlin, 726 F. Supp. 466,
470-71 (S.D.N.Y. 1989); Gittens v. Sullivan, 720 F. Supp. 40,
43 (S.D.N.Y. 1989); Wolfe v. Carlson, 583 F. Supp. 977
(S.D.N.Y. 1984). Captain Wright's motion for summary judgment
dismissing this claim is thus denied.
Captain Wright also argues that the court improperly held
that he was not entitled to qualified immunity. This claim is
without merit, and the court adheres to its holding that Wright
is not qualifiedly immune from damages for his failure to
assess the credibility of the confidential informants.
For the foregoing reasons, the motion by Artuz and Captain
Wright for reargument is granted. Upon reconsideration, Artuz's
motion for summary judgment dismissing all of the claims
against him in the Amended Complaint is granted. Captain
Wright's motion for summary judgment dismissing the claim
regarding his failure to call witnesses is granted; summary
judgement is denied with respect to the claim that he failed to
conduct an independent assessment of the credibility of the
It is so ordered.