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.
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 ...