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May 16, 1995

SHANE ATKINS, Plaintiff,

The opinion of the court was delivered by: HECKMAN



 The parties have consented pursuant to 28 U.S.C. § 636(c) to have the undersigned conduct all proceedings in this case, including entry of judgment. A four-day non-jury trial was held before the undersigned, concluding on February 10, 1995. On that date the court issued its oral decision after trial, finding that plaintiff had failed to sustain his burden of proof on his claim under 42 U.S.C. § 1983 for use of excessive force in violation of the eighth amendment, based on the conduct of certain prison employees at the Wende Correctional Facility on two separate occasions in January, 1988 (Item 85).

 Also on February 10, 1995, plaintiff orally moved to amend his complaint to assert two additional claims under the due process clause of the fourteenth amendment, based on trial evidence related to the January, 1988 incidents (id., pp. 10-22). The court adjourned the matter until May 8, 1995 to allow for briefing and argument of this motion.

 The proposed amendment alleges that Corrections Officer Timothy Kerr violated plaintiff's substantive due process rights by filing a criminal complaint against plaintiff based on an altercation at Wende on January 20, 1988, in which Kerr stated that he witnessed plaintiff bite Corrections Officer Francis Gagliardi. According to plaintiff, this information led to a guilty plea on criminal charges before the Alden Town Court and one additional year of incarceration. Plaintiff asserts that Kerr's affidavit in support of his criminal complaint was false, as demonstrated by Kerr's deposition and trial testimony in this case in which he stated that he did not see plaintiff bite Gagliardi.

 The proposed amendment also alleges that plaintiff's procedural due process rights were violated when he was handcuffed and removed from his cell on January 18 and 20, 1988, even though the proof at trial showed that the prison order authorizing this type of restraint had expired on January 13, 1987.

 Defendants argue that these claims were not tried by consent as required by Rule 15(b), that they do not relate back to the claims in the original pleadings, that they are barred by the doctrine of qualified immunity, and that they fail on their merits.

 The factual background of these claims is incorporated herein by reference to the court's February 10, 1995 decision after trial (Item 85), and will be restated here only as necessary to the following discussion of the legal issues presented on this motion.


 1. Amendment of Pleadings to Conform to the Evidence Under Rule 15(b).

 Rule 15(b) of the Federal Rules of Civil Procedure provides, in relevant part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the trial of these issues.

 In this case, the parties did not expressly consent to try the issues now sought to be raised on this belated motion to amend. The question thus presented is whether these issues were tried by implied consent.

 Upon review of the record, I find that the "substantive due process" issue pertaining to the veracity of Officer Kerr's statements in support of the criminal charges filed against plaintiff stemming from the January 20, 1988 incident was fully litigated by the parties. Not only was this issue raised at trial by plaintiff's counsel during Officer Kerr's cross examination, but it was also the subject of pretrial motions in limine, during which plaintiff vigorously contested the admission of evidence supporting his April, 1988 conviction and additional one-year sentence (see Item 63). This evidence was likewise the subject of two pretrial summary judgment motions by defendants in this case, as reflected in Judge Telesca's March 25, 1991 and February 12, 1993 decisions (Items 25 and 42). *fn1"

 With regard to the claim of denial of procedural due process because the plaintiff's handcuff restraint order had expired, I find that this issue was tried by implied consent as well. At trial, Sgt. Albert Scott testified that he was the supervising officer in charge of the SHU where plaintiff was housed at the time of the incidents complained of. He was questioned on direct, cross and redirect examination regarding his personal knowledge of the circumstances surrounding plaintiff's handcuff restraint order. He was also directly questioned by the court as to whether there was a restraint order in effect at the time of the alleged incidents. Finally, the "expired" restraint order was received by the court as evidence (Plaintiff's Ex. OO).

 Accordingly, based on the record before the court, I find that the due process claims subject to this motion have been tried by the implied consent of the parties. The court must therefore treat these issues "in all respects as if ...

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