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RODRIGUEZ v. MCGINNIS

February 10, 1998

DAMAR RODRIGUEZ, Plaintiff,
v.
JOHN MCGINNIS, Superintendent, C.O. COOK, LT. SIMMONS, Defendants.



The opinion of the court was delivered by: GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF

 SHARON E. GRUBIN, United States Magistrate Judge:

 Plaintiff brings this action pro se pursuant to 42 U.S.C. § 1983 against a correction officer, a lieutenant and the Superintendent at the Downstate Correctional Facility. Pending are defendant's motions to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the following reasons, the motions of defendants McGinnis and Simmons should be granted and the motion of defendant Cook should be granted in part and denied in part.

 FACTS

 The Complaint

 Construed liberally, see Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28-29 (2d Cir. 1986), the complaint claims (a) denial of due process in violation of the Fourteenth Amendment by all three defendants, in that plaintiff incorrectly was accused of disciplinary violations and was subjected to seventeen days of keeplock, including loss of package, commissary and telephone privileges *fn1" and (b) cruel and unusual punishment in violation of the Eighth Amendment by defendant Cook, in that plaintiff was the victim of excessive physical force.

 Plaintiff has filed the Clerk's Office form complaint alleging as follows for his Statement of Claim:

 
I was not involved in the fight of Feb. 12, 1996 & Officer Cook lock me down for 17 days & violated all my rights, my phone, packages & commissary & they try to take my good time but after they denied it & after 17 days the superintendent reverse the verdict. I was affected mentally & Physically. The officer had use force on me, he put a handcuff to the back & step on back of me, now I have back pain because of that. . . .

 Although material outside a complaint generally is not to be taken into consideration on a motion to dismiss, the policy reasons favoring liberal construction of pro se complaints permit a court to consider allegations of a pro se plaintiff in opposition papers on a motion where, as here, those allegations are consistent with the complaint. Donahue v. United States Dept. of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990). See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987); Shen v. Japan Airlines, 918 F. Supp. 686, 690 (S.D.N.Y.), aff'd, 43 F.3d 1459 (2d Cir. 1994); Lucas v. New York City, 842 F. Supp. 101, 104 & n.2 (S.D.N.Y. 1994). I accordingly find it appropriate to consider the following additional allegations by plaintiff contained in plaintiff's "Support of Motion Not to Dismiss Case" ("Pl. Opp."), submitted in opposition to defendants' motions to dismiss the complaint. Plaintiff identifies defendant Simmons as "the person that conducts the misbehavior report" and alleges that Simmons "just convicted me without giving me a chance to defend myself" (Pl. Opp. p. 2). Defendant McGinnis is identified as responsible for releasing plaintiff from keeplock after determining that plaintiff was not guilty of the alleged disciplinary violation (id.). As to defendant Cook, plaintiff states:

 
C.O. Cook pick me out and lock me down with out a explanation, he wrote me a misbehavior report saying that he believes that plaintiff was involved in a fight, he was not sure, he pick the wrong person . . . . He found out that it wasn't me the person fighting after he & his co-workers force me to go to the hospital for injury report about the fight, and I didn't have no injury because I wasn't fighting, so they handcuff me behind my back and used force kicking me on my back & putting they foot on my back, from that day I've have back pain and it's worse I can hardly walk, my back is weak, my spine not straight, and it hurts.

 (Id. p. 1). Finally, in a further document also in opposition to defendants' motions ("Pl. Supp. Opp.") plaintiff states:

 
When I was taken out of my cell to be taken to the hospital, the two officers that were escorting me with my hands cuffed behind my back, began to kick me numerous times on my lower back; and they also stepped on my lower back, since then, I have been unable to perform any of my normal work duties . . . . I am still suffering from the injuries that was sustained by said officers.

 (Pl. Supp. Opp. p. 1). Attached to this submission are an Inmate Misbehavior Report, dated February 13, 1996; an Appeal to the Superintendent, dated February 21, 1996; and what appear to be copies of medical records concerning ...


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