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March 17, 1992

JUAN CANDELARIA, Plaintiff, against THOMAS COUGHLIN, III, Commissioner, CHARLES SCULLY, Superintendent, T. PISCO, Correctional Officer, and LT. ROBERTSON, Defendants. JUAN CANDELARIA, Plaintiff, -against- THOMAS COUGHLIN, III, Commissioner, et al., Defendants.

The opinion of the court was delivered by: LEONARD B. SAND


 These two actions are brought under 42 U.S.C. § 1983 by Juan Candelaria, pro se, a former inmate of Green Haven Correctional Facility (hereinafter "Green Haven") who is currently incarcerated at Clinton Correctional Facility (hereinafter "Clinton"). Plaintiff's claims in the first action (hereinafter "Action I") arise out of an alleged assault on plaintiff by a correction officer at Green Haven, and a subsequent hearing. Plaintiff alleges violations of his rights under the First, Eighth, and Fourteenth Amendments. In the second action (hereinafter "Action II"), plaintiff makes a number of allegations, but his claims center on inadequate medical treatment in violation of his Eighth Amendment rights.

 Defendants in Action I, Thomas A. Coughlin, III, New York State Commissioner of the Department of Correctional Services, Charles Scully, Superintendent of Green Haven, and Correction Officer Thomas Pisco, have moved to dismiss the amended complaint or in the alternative, for summary judgment. *fn1" In Action II, plaintiff has named as defendants Commissioner Coughlin, Superintendent Scully, and several other prison officials and officers, and members of Green Haven's medical staff. *fn2" Defendants have moved to dismiss the complaint. Plaintiff has filed two motions for preliminary injunction in Action II. For the reasons stated below, defendants' motion in Action I is granted in its entirety. Defendants' motion to dismiss in Action II, as well as plaintiff's motions for a preliminary injunction, are denied.


 At the time of the incident at issue in Action I, plaintiff was incarcerated at Green Haven. Plaintiff alleges that on April 4, 1990, he was assaulted by Correction Officer Thomas Pisco when Pisco used a pocket knife to cut a string around plaintiff's neck, on which his identification card hung. Plaintiff claims that this string had religious significance to him, and he alleges that when he tried to remove the identification card himself, Officer Pisco pushed his fist against plaintiff's neck, causing plaintiff to have difficulty breathing.

 According to plaintiff, immediately after the alleged assault occurred, he filed a grievance against Officer Pisco as well as two formal requests regarding the incident. Shortly after the incident, Officer Pisco filed a disciplinary report charging plaintiff with the violation of four prison rules. On April 9, 1990, a hearing was conducted before hearing officer Lt. Robertson, at which plaintiff was found guilty of each of the four violations. He was sentenced to 30 days in keeplock, and 30 days loss of other privileges. Plaintiff alleges that he remained in keeplock confinement from April 9, 1990 until May 27, 1990, a period of 48 days. Plaintiff claims that he was confined for the additional 18 days pursuant to the instructions of Officer Pisco and Lt. Robertson, and with the knowledge of defendants Coughlin and Scully.

 Plaintiff alleges that defendants abridged his Fourteenth Amendment rights, claiming that the procedures regarding the hearing failed to meet the requirements of due process. Plaintiff also alleges that defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment through use of excessive physical force. Plaintiff further claims that the destruction of the string was intentional deprivation of religious property in violation of the free exercise clause of the First Amendment. Finally, plaintiff claims that the disciplinary action and punishment was taken in retaliation for his filing of a grievance, thus violating his First and Fourteenth Amendment rights of freedom of speech and due process.

 Plaintiff first filed a complaint in this action on November 13, 1990 against Commissioner Coughlin, Superintendent Scully, and Officer Pisco. On May 1, 1991 defendants Coughlin and Scully moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). In an opinion issued June 18, 1991, this Court granted the motion to dismiss. However, we also granted plaintiff leave to file an amended complaint which attempted to state a claim against Coughlin and Scully. On July 8, 1991, plaintiff filed an amended complaint, and on September 27, 1991, all defendants moved to dismiss the amended complaint, or in the alternative, for summary judgment.

 On April 9, 1991, plaintiff commenced Action II, which focuses on inadequate medical treatment. On September 3, 1991, plaintiff filed a motion for a preliminary injunction which requests that defendants be ordered to provide various items for plaintiff's medical needs. On September 27, 1991, defendants filed a motion to dismiss the complaint in its entirety. On January 15, 1992, plaintiff was transferred from Green Haven to Clinton and on January 30, 1992 plaintiff filed a second motion for a preliminary injunction alleging inadequate medical facilities at Clinton, and requesting that defendants be ordered to transfer him back to Green Haven.


 Standard of Review

 In deciding a motion to dismiss, the court must look to the four corners of the complaint and accept plaintiff's allegations as true, construing them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Ass'n, 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970). The court will dismiss the complaint only if plaintiff can prove no set of facts that would entitle him to relief.

 Section 1983 imposes liability for conduct carried out under the color of state law which deprives a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. In order to prevail on a section 1983 claim, a plaintiff must prove that the defendant: (1) acted; (2) under color of state law; (3) in a manner that caused plaintiff to suffer a constitutional deprivation. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Kaswan v. Mannings, 1991 U.S. Dist. LEXIS 3357, *6 (S.D.N.Y. March 20, 1991).

 Summary judgment is appropriate where the moving papers and affidavits submitted by the parties "show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and the court must view the evidence in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 The court's role in such a context is not to resolve disputed factual issues, but rather to determine whether the record, taken as a whole, supports any issues that require a trial. See Matshushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Nevertheless, the very language of the summary judgment standard provides that "the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original). Materiality is determined by reference to the substantive law applicable to the case at hand, and factual disputes irrelevant to its outcome "will not be counted." Id. at 248.


 The Allegations against Defendants Coughlin and Scully

 As we noted in our previous opinion, it is clear that the authority of defendants Coughlin and Scully, employees and officials within the state prison system, arises under color of state law. The issue remains whether these defendants acted ...

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