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RUSSELL v. COUGHLIN

December 31, 1991

JEROME RUSSELL, PLAINTIFF,
v.
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.

OPINION

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.

The Parties

Russell is presently incarcerated at Green Haven Correctional Facility ("Green Haven").

Defendant Artuz is the First Deputy Superintendent at Green Haven.

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.

Discussion

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 granted.

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 ...


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