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May 20, 1997

IAN DAWES, Plaintiff, against THOMAS A. COUGHLIN, Commissioner; Security Deputy DUFFANY; Sgt. J. MILTEER; SgT. R. BUTLER; C.O. DELGAIZO; C.O. MALONEY; C.O. SOUTHARD; C.O. HOLLINGSHEAD; P.A. CYNTHIA ZEEB; C.O. MINUCK; C.O. SCHALLER; in their individual and official capacities, Defendants.

The opinion of the court was delivered by: MCAVOY


 The Court conducted a two day bench trial in the above captioned case which commenced on February 18, 1997. The plaintiff, Ian Dawes, pursuant to 42 U.S.C. § 1983, alleges that the defendant violated his constitutional rights by subjecting him to malicious prosecution, to excessive force on more than one occasion, by failing to provide medical treatment, and by improperly issuing restraint orders ("RO") and deprivation orders ("DO"). The defendants deny any unconstitutional conduct, and claim that they are qualifiedly immune from prosecution with respect to the RO's and DO's.

 The defendants made a motion pursuant to Fed. R. Civ. P. 50 for judgment as a matter of law as to all claims. The Court granted the defendants' motion as to the malicious prosecution claim and as to all claims asserted against the defendant Coughlin. The motion was in all other respects denied.

 The Court notes that during the trial, the plaintiff testified and called a single witness, who contradicted much of the plaintiff's testimony relating to a November 6, 1991 incident. The defendants called a number of witnesses who corroborated each others' testimony.


 1. The plaintiff, Ian Dawes, was an inmate at the Eastern Correctional Facility, housed in the Special Housing Unit ("SHU"), at all times relevant to this case. The defendants, with the exception of Cynthia Zeeb, a nurse, were corrections officers at Eastern at all times relevant to this case.

 2. The plaintiff was involved in an incident on November 6, 1991. On that date, the plaintiff was directed by defendants Butler and Delgaizo, corrections officers at Eastern, to proceed to the library of the SHU. While being escorted to the Library, and while in the hallway of SHU, the plaintiff spat on defendant Butler and uttered insults and threatening words directed at Butler. The plaintiff, who was in full restraints, also attempted to kick defendant Delgaizo. With the assistance of defendants Southard and Maloney, two other corrections officers who heard the disturbance, the defendants brought the plaintiff to the ground and secured him on the floor until the he calmed down. During the disturbance, the plaintiff received a cut over his left eye, redness over his right eye, and a swollen lip. After the plaintiff calmed down, he was escorted back to his cell.

 3. The plaintiff claims that as he was leaving a hearing at which he had testified, and while in the hallway of the SHU, defendants Butler and Delgaizo said intimidating statements to him, prompting the plaintiff to respond violently to show that he could not be intimidated. Other officers arrived. The plaintiff then claims that he was kicked and punched in the face and mid-section by the officers. The plaintiff's only witness, Timothy Dunston, a fellow inmate at Eastern, stated that the plaintiff, prior to testifying at a hearing, was beaten by the defendant Butler in the hearing room, while Dunston was present. The witness' testimony is inconsistent with the testimony of any other witness, and is deemed by the Court as incredible. The plaintiff's testimony is completely uncorroborated.

 4. After the incident, and on the same day, the plaintiff was examined by a nurse, Ms. Bluestone. The nurse observed a one inch cut over the plaintiff's left eye, an inside cut to the plaintiff's lower lip, swelling of the lower lip, and redness over the right eye. The nurse also recalled that the plaintiff complained of rib pain, although there were no outward signs of injury. The cut over the plaintiff's left eye did not require stitches. The cut was dressed with a bandage, and the plaintiff was given ice for his lip. The nurse requested a precautionary X-ray for the plaintiff's ribs, and scheduled a doctor's visit for the next day.

 5. Just after being examined, and in the presence of the nurse, the plaintiff requested removal of his leg restraints. When one leg shackle was removed, the plaintiff attempted to kick the officer removing the shackles, an officer Smith, and spit on him. The plaintiff claimed that the officer attempted to injure the plaintiff while removing the shackles by twisting them and gouging them into the plaintiff's ankles. It the plaintiff's contention that this twisting prompted his violent outburst. Again, the plaintiff's testimony is completely uncorroborated.

 6. The plaintiff's X-ray was not performed for nearly two months. On the day following the incident, the plaintiff was reported as belligerent, assaultive, and combative, and was denied a visit to the doctor. However, it was noted in the plaintiff's file that he would be brought to the doctor for an examination if the plaintiff made a specific complaint about his health. On four subsequent occasions, the plaintiff failed to show up for X-rays. No reason was given to the nurse. However, the defendant officers testified that the plaintiff was denied access to the nurse because he continued to pose a threat to the Eastern staff. The X-rays that were finally taken did not reveal any damage to the rib cage area.

 7. The plaintiff's cell was fitted with a "feeder box" which limits inmate/officer contact. For example, a tray is placed into the box, rather than directly into the hands of an inmate. The box is used in connection with violent or abusive inmates.

 8. On November 7, 1991, while the defendant Hollingshead was attempting to retrieve a meal tray, after dinner, from the plaintiff's feeder box, the plaintiff grabbed Hollingshead's left arm and pulled it through the opening in the cell door. As Hollingshead struggled with the plaintiff and attempted to remove his arm, the plaintiff removed Hollingshead's watch. Hollingshead slammed the door to the feeder box shut. The plaintiff claimed that his fingers were scraped during the incident, and that he was ...

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