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CECERE v. COUNTY OF WESTCHESTER

March 4, 1993

MICHAEL J. CECERE, Plaintiff,
v.
COUNTY OF WESTCHESTER, et al., Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case involves alleged violations of the civil rights of a prisoner who claims to have been attacked by other inmates under circumstances brought about by improper prison overcrowding and inadequate safeguards against such events. Defendants have moved to dismiss the complaint. Since defendants have submitted no response to the allegations of the complaint, I must treat the factual allegations therein as true for purposes of the present motion. *fn1" For the reasons and under the conditions set forth below, I deny the motion.

 II

 Deliberate indifference to inmate safety constitutes denial of liberty without due process in violation of the Fourteenth Amendment. See Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied 489 U.S. 1034 (1989).

 The complaint in this case contains only conclusory allegations concerning inadequate safety precautions. But detailed information on that subject is not readily available to the plaintiff and hence otherwise insufficient allegations may suffice in the first instance. If a party submits all of the information available to that party without discovery, and it supports an inference that a legal standard has been violated, it may be necessary to authorize at least limited discovery to develop whether or not dismissal of the complaint at that stage would constitute a miscarriage of justice. See generally MacKnight v. Leonard Morse Hospital, 828 F.2d 48, 52 (1st Cir. 1987); Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 95 (3d Cir. 1988). *fn2"

 I have been made aware, in connection with other litigation before me, of a non-published decision involving strikingly similar facts in which the Second Circuit upheld the validity of the complaint. That decision states that it should not be cited in unrelated cases. *fn3" Nevertheless, having become aware of it, it is not realistic or appropriate for me to disregard it; nothing in any rule or in the legend attached to the ruling requires me to do so.

 Since law, as Justice Holmes indicated, consists of what the courts "do in fact," The Path of the Law, 10 Harv. L. Rev. 457 (1987), also in O.W. Holmes, Collected Legal Papers 173 (1921), fairness requires me to disclose this fact to the parties and to permit them to inspect the decision should they wish, although I honor the direction contained in that decision by not citing it.

 III

 In addition to a violation of the Fourteenth Amendment, plaintiff must establish significant harm in order to secure relief. The complaint is notably sparse in describing the precise nature of the violence allegedly suffered by plaintiff and what physical injuries, if any, resulted from it. In regard to this aspect of the case, unlike that concerning policies of the prison administration, plaintiff cannot rely on lack of personal knowledge of the critical information.

 IV

 Apart from their challenge to the substance of the complaint, defendants seek dismissal of the complaint as untimely. The applicable period of limitations is three years, borrowed from NY CPLR § 214, as set forth in Wilson v. Garcia, 471 U.S. 261, 266-67 (1984). Pursuant to CPLR § 205, the running of the limitations period is tolled during the pendency of this action, including prior complaints which were dismissed with leave to replead. See Cullen v. Margiotta, 811 F.2d 698, 727 (2d Cir.), cert. denied sub nom. Nassau County Republican Committee v. Cullen, 483 U.S. 1021 (1987); ...


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