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July 9, 1996

ERIC CRUZ, Plaintiff,
SERGEANT ROOT, VICTOR DUCOT, Correction Officer and KERRY HURTER, Correction Officer, Defendants.

The opinion of the court was delivered by: LARIMER


 Plaintiff Eric Cruz ("Cruz") contends that on August 4, 1990, while he was an inmate at Elmira Correctional Facility, he was beaten by corrections officers in violation of his Eighth Amendment rights. In September 1990, Cruz filed suit against the state in the New York Court of Claims. Shortly thereafter, he commenced this action in federal court pursuant to 42 U.S.C. § 1983. In March 1991, defendants Harold Root, Victor Ducot and Kenneth Hunter answered the complaint.

 On August 25, 1992, after his request for the appointment of counsel was denied, Cruz appeared pro se at his Court of Claims hearing. The trial lasted one day, and on December 10, 1992, the Court of Claims dismissed Cruz's claim finding that Cruz precipitated the altercation by making threatening gestures with his hands, that he disobeyed the officer's orders to put his hands behind his back, and that the officers did not use excessive force in subduing him.

 On August 23, 1993, this Court appointed counsel to represent Cruz in his federal action. *fn1" Apparently, substantial discovery ensued, most notably, Cruz noticed the depositions of two inmates, and defendants noticed Cruz's deposition. On May 1, 1996, defendants moved for summary judgment alleging that Cruz is collaterally estopped from relitigating the issues previously determined in the New York Court of Claims action. *fn2" Cruz opposes the motion noting defendants' failure to plead collateral estoppel as an affirmative defense in their answers and their failure to explain the more than three year delay (following the Court of Claims decision in December 1992) in bringing the instant motion. More importantly, he contends collateral estoppel should not be applied in this case because he was denied a "full and fair opportunity to litigate" his claim in the state proceeding. See Allen v. McCurry, 449 U.S. 90, 95, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980).

 As set forth below, because I believe that Cruz was not able adequately to represent himself at his Court of Claims trial and suffered prejudice as a result, the invocation of the doctrine of collateral estoppel is not justified here.


 As a preliminary matter, defendants have failed to provide any explanation for their more than three year delay in seeking to amend their answers to add the affirmative defense of collateral estoppel. *fn3" This alone provides a sufficient basis to deny the motion. See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (Cir. 1990). But, I need not rely on this procedural basis. On the merits, a review of the facts presented reveals the application of the doctrine of collateral estoppel is inappropriate here.

 As a basic principle, "state court judgments are to be given the same preclusive effect in federal court as they would be given in the courts of the state itself." West v. Ruff, 961 F.2d 1064, 1065 (2d Cir. 1992) (citing Allen v. McCurry, 449 U.S. at 96). Thus, if Cruz is barred from relitigating his claims in a New York state court, he will also be barred here. See West, supra, 961 F.2d at 1065; Genova v. Town of South Hampton, 776 F.2d 1560, 1561 (2d Cir. 1985).

 The first requirement under New York law for the invocation of collateral estoppel is that "there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action. . . ." Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); see also Smith v. Russell Sage College, 54 N.Y.2d 24 (1978) (for collateral estoppel to apply, claim must have emerged from the "same nucleus of facts" as that asserted in prior action). Here, the parties do not dispute that this first requirement is met. Both the Court of Claims action and this action arise from the incident that allegedly occurred at the Elmira Correctional Facility on August 4, 1990. The issues presented in both actions concerning the alleged violation of Cruz's constitutional rights are identical, and were decided in defendants' favor. The only question is whether the second requirement -- that "there must have been a full and fair opportunity to contest the decision now said to be controlling" -- has been satisfied. See Schwartz, 24 N.Y.2d at 71. I am not convinced that Cruz had such an opportunity.

 There is no simple test for determining whether a party has had a "full and fair opportunity" to litigate the claim or issue sought to be precluded. See Conte v. Justice, 996 F.2d 1398, 1400 (2d Cir. 1993). Rather, the basic concern is one of fairness. Id. (the doctrine of collateral estoppel is "premised on notions of due process and fairness," and the "rigid or mechanical application of the doctrine runs counter to [these] principles . . ."); See also Schwartz, 24 N.Y.2d at 73 (cautioning against the rigid application of collateral estoppel).

 While Cruz's status as a pro se litigant is not by itself dispositive (see Clark v. Department of Correctional Services, 564 F. Supp. 787, 789 (S.D.N.Y. 1983)), it is certainly important to any determination of the fairness of his prior opportunity to be heard. See West, 961 F.2d at 1065-66; Clark, 564 F. Supp. at 788-89. In West, the plaintiff, an inmate at Great Meadows Correctional Facility, filed a pro se negligence action against the State of New York in the Court of Claims seeking damages for injuries sustained in a fight in a prison yard. He also filed an action in Federal District Court under 42 U.S.C. § 1983. Trial was held first in the Court of Claims and judgment was entered against the plaintiff. Summary judgment was later entered against the plaintiff in the district court on the grounds of res judicata/collateral estoppel. West, 961 F.2d at 1065.

 In reversing, the Second Circuit noted that the district court's appointment of counsel in the federal action "reflected the ... court's assessment that West's claim had colorable substance and that counsel was needed to present the claim in an adequate fashion." Id. The court also found that the plaintiff had only one day's notice of his Court of Claims trial, his appointed counsel in the federal action was never notified of the parallel state action, the Court of Claims judge was not aware of the existence of the appointed counsel, and that the plaintiff was prejudiced in that he was unable to produce an alleged eyewitness due to the lack of discovery and advance notice of the trial. Id. at 1066. The court concluded that the totality of ...

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