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April 26, 1996

Duat Abdut Duamutef, Plaintiff,
Thomas Fial, D. Montgomery, D. Spinks, S. Lambert, Gregory Foster, P. Foley and Dennis Smith, Defendants.

The opinion of the court was delivered by: FELDMAN


 This civil rights action was commenced by plaintiff Duat Abdut Duamutef (Duamutef) against defendants, all present or former employees the New York State Department of Corrections ("DOCS") Duamutef alleges that while he was incarcerated at the Attica Correctional Facility Attica) the defendants savagely beat him without justification causing serious physical injury. Invoking the prohibition against "cruel and unusual punishments" found in the Eighth Amendment to the United States Constitution, Duamutef brought this action in federal court pursuant to 42 U.S.C. § 1983.

 Plaintiff commenced this action pro se. Prior to trial, the Court assigned Michael R. Mendola, Esq. of the law firm Chamberlain, D'Amanda, Oppenheimer and Greenfield to represent Duamutef. *fn1" The matter was tried to the Court on April 1 and April 2, 1996. During the trial, the Court took testimony from plaintiff and eleven defense witnesses. In addition, numerous documents and photographs were stipulated into evidence by the parties, including medical records and photographs. This decision constitutes my findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


 On February 10, 1990 a disturbance occurred at the Attica Correctional Facility. By the time the disturbance ended, Duamutef and several guards were rushed to nearby hospitals with serious injuries. Aside from the date and time of the relevant incident, the testimony of plaintiff and the defendants as to what provoked the melee and how the injuries were sustained could not have been more divergent. Because the plaintiff and defendants version of what occurred on February 10th differ so substantially, my findings of fact are necessarily dependent on issues of credibility. Therefore, it is necessary to recite in some detail the testimony offered by both Duamutef and the defendants.

 Plaintiff's Evidence: In February, 1990 Plaintiff Duamutef was incarcerated at Attica serving a sentence of fifteen years to life after a felony conviction he sustained in 1984. On February 10, 1990 Duamutef was housed in the "keeplock area" of the prison which required him to be confined to his cell for 23 hours each day. The "keeplock" unit of Attica was part of a larger "block" known as the "B" block area. While confined in "keeplock" Duamutef was permitted, upon request, to spend one hour each day out of his cell for recreation.

 On February 10, 1990 Duamutef signed up to participate in the morning recreation period. The recreation yard used that morning for "keeplock" inmates was the "D" block yard. According to Duamutef, he spent most of his hour of recreation that morning walking around the yard with another inmate.

 At the conclusion of the recreation period, prison procedure required a guard to open an outside door and bring the inmates back into the prison area in groups of five. The five inmates would re-enter the prison from the recreation yard and stand, single file, in an interior hallway known as the "B" corridor where they were to line up behind a designated yellow line and wait to be escorted back to their cells. Once the five inmates had left the "B" corridor, five more inmates would be called in by the guards. This procedure was repeated until all the inmates in the recreation yard had been safely returned to their cells.

 Duamutef testified that on the morning of February 10th, defendant Thomas Fial (Fial), a prison guard stationed at the door to the D Block yard, opened the yard door and announced that the recreation period was ending. Fial requested five inmates to enter the "B" corridor. Duamutef testified that he and four other inmates walked into the corridor to line up behind the yellow line. Inside the corridor along with Fial were defendants Scott Lambert (Lambert), David Montgomery (Montgomery) and Lon Midkiff, Jr. (Midkiff), all guards employed at Attica.

 Duamutef testified that as he approached the yellow line, he heard a commotion behind him. Duamutef stated that he remembers another inmate in the corridor, identified only as Price, "said something", although Duamutef was unable to hear exactly what was said. As Duamutef started to turn to see what was happening, he claims that Lambert engaged him in an unprovoked attack and struck him in the back of the head with a baton. After being struck, Duamutef turned and saw Price pinned against the corridor's wall by Fial and two other guards. As he fell to the ground from the blows to his head, Duamutef claims that Montgomery struck him in the face. Thereafter, other guards joined in a savage assault of Duamutef, repeatedly hitting, punching and striking his body and face. Duamutef testified he was struck by defendants Fial, Midkiff, Patrick Foley (Foley) and Dennis Smith (Smith). As he was turned over on his stomach to be handcuffed, Duamutef claims defendants continued to beat him. Once restrained, Duamutef claims to have lost consciousness. The next event he remembers was waking up in the Attica Correctional Facility Infirmary.

 According to Duamutef, the assault that began in the "B" corridor continued in the Attica infirmary. Duamutef's testimony accused defendant David Spinks (Spinks) of deliberately over-tightening leg restraints which had been placed on both his ankles, causing him extreme pain. Duamutef also testified that while he was in the Attica infirmary Spinks hit him, held a baton to his neck, choked him, and stated that "we are going to murder you". Duamutef stated that he lost consciousness again in the infirmary and did not awake until he had arrived at the Erie County Medical Center in Buffalo, New York. Duamutef claims to have no recollection of being transported by ambulance from Attica to the Erie County Medical Center.

 Duamutef remained hospitalized for several days. He testified that the actions of the various defendants caused him to suffer broken bones in his face and injuries to his legs. Photographs were introduced by Plaintiff depicting injuries to his face, his head and legs. (plaintiff exhibits 4-8). Medical records were also introduced by Duamutef (plaintiff exhibit 3) indicating that he suffered lacerations of his scalp, his eyebrow and fractures through his anterior and lateral maxillary antrum facial bones. Duamutef testified that he has suffered vision problems and headaches from the blows to the head and face he sustained.

 As to a possible motive for the defendants unprovoked beating, Duamutef testified that he believed he was the victim of a "conspiracy" among the defendants to punish him for a class action lawsuit he intended to file against Attica seeking legal redress for what he perceived to be inhumane living conditions for Attica's "keeplock" inmates. Duamutef denied ever striking, hitting, kicking or intentionally using any force on any guard on the morning of February 10, 1990. During cross-examination, Duamutef stated he had a black belt in three forms of martial arts.

 Defendants Evidence: Through its eleven witnesses, the defense presented an entirely different version of the events of February 10, 1990. A summary of the testimony of each defense witness is set forth below.

 1. Scott Lambert: Defendant Lambert has been a "DOCS" employees for fifteen years and was assigned to the "B" block of Attica on February 10, 1990. Lambert testified that on the morning of February 10th he looked into the "D" yard recreation area from his Position in "B" block and observed a group of about twenty inmates standing near a weight lifting area. The gathered inmates were being addressed by a lone inmate who was standing on a weight bench. Lambert testified that such a gathering was a cause for concern because Attica policy forbids the assembly of more than six inmates at a time. Lambert immediately notified another guard of the inmate gathering and then continued to observe the events taking place in the recreation yard.

 Lambert immediately ran to assist Fial. According to Lambert, Fial was wrestling with inmate Price. As Fial was wrestling with Price, Duamutef was standing to the side swinging a baton and repeatedly striking Fial in the head. Lambert testified he heard and saw Fial getting hit in the head by plaintiff's blows. Lambert stated that Duamutef was intense in his desire to strike Fial and described Duamutef as acting like he was "trying to take his [Fial's] head off with that stick". Lambert described the sound of the baton hitting Fial's head as "sickening".

 As Lambert approached Fial, he told Duamutef to drop the baton. Duamutef refused. Lambert testified that he repeated this order at least twice more and Duamutef continued to ignore his command. Duamutef then began swinging the baton at Lambert and Lambert responded by swinging his own baton at Duamutef. According to Lambert, Duamutef got into a fighting stance described as a "bladed position" and began swinging the baton adeptly. Lambert described plaintiff as a "skilled fighter". Lambert tried to disarm Duamutef by striking him ...

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