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September 14, 1993

JERRY YOUNG, a/k/a RAMADAN, Plaintiff,
TERRY L. PATRICE, Correction Officer at Green Haven Correctional Facility, Defendant.

The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Robert Abrams, the Attorney General of the State of New York and the attorney for the sole named Defendant, Terry L. Patrice ("Patrice"), a former correction officer at the Green Haven Correctional Facility ("Green Haven"), has moved for summary judgment on the grounds that the action abates upon the death of Patrice and is now moot. Pro se plaintiff Jerry Y. Young, a/k/a Ramadan ("Young") has cross-moved for an order requiring Defendant's attorney to produce Patrice's death certificate for in camera inspection, and that any failure to do so should be sanctionable in addition to sanctions for the filing of a frivolous motion. For the reasons given below, the Defendant's attorney's motion is denied, and Defendant's attorney is directed to submit a new statement to suggest the death on the record in conformity with Rule 25(a)(1) of the Federal Rules of Civil Procedure. Young's cross-motions for production of the death certificate and for sanctions are denied as well.


 Young is and was an inmate in the custody of the New York Department of Correctional Services ("DOCS") who was incarcerated at Green Haven on April 3, 1990. Defendant Patrice was employed by DOCS and was serving as a correctional officer at Green Haven on that date. Young alleged that Patrice assaulted him and used excessive force on April 3, 1990 in the Special Housing Unit at Green Haven, allegedly fracturing his right hand and causing injuries to his head which Young claims have resulted in chronic headaches and eye pain.

 Young filed a complaint against Patrice pursuant to 42 U.S.C. § 1983 on January 10, 1991, alleging that the assault was in violation of his rights under the 4th, 8th, and 14th Amendments of the U.S. Constitution, and requesting, inter alia, $ 150,000 in compensatory damages, $ 150,000 in punitive damages, and a transfer to another prison where his life "would not be in danger." Young was granted leave to file his complaint in forma pauperis on January 10, 1991.

 The parties filed a final pretrial order in June, 1992. On April 9, 1993, the office of the Attorney General was notified that this case was scheduled for trial commencing on May 3, 1993. Defendant's attorney apparently attempted to contact Patrice that same day, and was advised that Patrice had died on March 29, 1993.

Patrice was sued in this action in his official capacity, and as a public officer. Therefore, there is no successor, as such, to his position, and accordingly no party may be substituted in his stead. In addition, since in this action plaintiff pro se alleges that [Correction officer] Patrice had assaulted him and/or used excessive force on April 3, 1990, there is no conduct for which appointment of a substituted party or successor is appropriate.

 Because the Defendant's attorney in the moving papers has referred only to this affidavit, the Court will consider the Artuz Affidavit to be the statement suggesting the death of Patrice upon the record pursuant to Rule 25(a).

 However, Young's original petition filed in 1991 stated Young sought compensatory damages against Patrice in his "individual personal capacity." Young has consistently adhered to this position: in an affidavit filed on June 26, 1992, Young states that the government's defense based upon the 11th Amendment is "inapplicable to the defendant Patrice in his individual capacity." Young reiterates this contention in his response to the Defendant's attorney's motion and his own cross-motions, although Young adds that because his action is against Patrice in his individual capacity, "therefore the state is his [Patrice's] successor for punitive and compensatory damages."


 Defendant's attorney has alleged that this action should be dismissed as moot, either because it abates upon the death of the defendant or because the plaintiff has failed to name a substitute within 90 days of the statement of death upon the record. The action is not moot, first because Young's § 1983 action is brought against Patrice in his personal capacity and therefore survives against his estate, and second because for reasons given below the Artuz Affidavit is insufficient to suggest death upon the record under Rule 25(a).

 I. Young's Suit is Brought Against Patrice in his Personal Capacity

 Young's lawsuit is brought pursuant to the Civil Rights Act of 1871, 28 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

 An action pursuant to § 1983 against a public official may allege that the official was acting either in his private individual capacity (in which case the death of the defendant requires a motion for substitution under (a) (1)) or in his public capacity (in which case the automatic substitution provided for in (d) (1) applies). Young alleges that his action is the first; Defendant's attorney characterizes it as the second, and states that there is no appropriate successor to Patrice's position as "simply one of hundreds of correction officers at Green Haven."

 The Supreme Court clarified the distinction between such suits in Kentucky v. Graham, 473 U.S. 159, 166, & n.11, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985):

An official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. . . . Should the official die pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the decedent's estate.

 In order to sue an official in his public capacity, a plaintiff must allege that the unconstitutional action represents an official policy of the entity:

[A] government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy of custom, whether made by its lawmakers of by those whose edicts or acts may fairly be said to represent official policy, inflicts ...

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