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COLON v. MACK

September 5, 1997

JOSE COLON, Plaintiff, against CORRECTION OFFICER D. MACK, ET AL., Defendants.


The opinion of the court was delivered by: DUFFY

 KEVIN THOMAS DUFFY, U.S.D.J.:

 On April 23, 1993, Plaintiff filed a complaint, pursuant to 42 U.S.C. §§ 1983, 1988, alleging that five correction officers *fn1" "acted with malice in battering the Plaintiff" while he was an inmate at New York's Green Haven Correctional Facility. As a consequence of the battery, Plaintiff alleged that he "suffered a concussion, numerous bruises and permanent injury, including the dislocation of his left elbow." (Compl. at 4.) Plaintiff demanded compensatory damages in the sum of one million dollars and punitive damages in the sum of one million dollars. The case was initially assigned to Judge Charles L. Brieant, who dismissed Plaintiff's suit for failure to prosecute on May 18, 1994, pursuant to Fed. R. Civ. P. 41(b). The Court of Appeals reversed Judge Brieant's decision, 56 F.3d 5 (1995), and the case was reassigned to my docket.

 On March 18 and March 19 of 1997, I presided over a jury trial at which Plaintiff was present throughout. Trial counsel for Plaintiff was Loren I. Glassman, who also signed the complaint and other documents submitted to the Court. Defendants were represented by Vincent Leong, an Assistant Attorney General for the State of New York.

 During the afternoon session of the trial's second day, I charged the jury with instructions on how to apply the law to the facts of the case. The jury then retired to deliberate and, a very short time thereafter, returned with a verdict.

 THE COURT: Court Exhibit number 1. A note was delivered to the court security officer within a minute and a half of the time the jury went back there. "We have a verdict." So we'll hear the verdict. . . .

 DEPUTY CLERK: Do you find in favor of the plaintiff or the defendants?

 FOREPERSON: Defendants.

 (Tr. 116.) (Emphasis added.) After excusing the jury, I made my routine trip to the jury room to extend my personal gratitude to the women and men of the jury for taking the time to fulfill their civic duty and to answer any questions.

 Upon my return to chambers, I realized that the discussion in the jury charge regarding 42 U.S.C. § 1983 contained an additional factor. This oversight also was brought to my attention in the robing room by counsel.

 MR. GLASSMAN: Your Honor, I have only one possible problem in that charge. You said that one of the elements was that the plaintiff had to be a United States citizen. I believe courts have held --

 THE COURT: United States v. Gaggi [, 811 F.2d 47, 58 (1987) ("United States citizenship is a necessary element of proof under 18 U.S.C. § 241.")].

 Mr. GLASSMAN: Well, he is a citizen and there is evidence on the case in the defendants' exhibits that he was born in Puerto Rico, and that is before the jury, but I don't ...


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