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May 28, 1999


The opinion of the court was delivered by: Cote, District Judge.


Plaintiff Melvin Wright ("Wright") brings this complaint pro se pursuant to 42 U.S.C. § 1983 ("Section 1983"). The defendants move to dismiss. For the reasons discussed below the motion is granted in part and denied in part.


The facts are set forth below as alleged in the complaint, the amended complaint, and the opposition to the motion to dismiss.*fn1 Wright was incarcerated at Sing Sing Correctional Facility ("Sing Sing") in February 1997, when his right shoulder was operated on at St. Agnes Hospital. On February 11, 1997, while recovering from surgery and still under the effects of anesthesia, Wright accidently grabbed the hand of nurse Ann Conboy ("Conboy") and injured her. The following day, Wright was discharged and returned to Sing Sing, where he was taken to the medical unit and told by Corrections Officers Bishop and D. Lavarnway*fn2 ("Lavarnway") to strip for photographs that were to be taken "due to the unusual incident that took place at St. Agnes Hospital." Wright told the officers that he could not move his right arm to remove his shirt because he was not fully healed from the surgery. Using profanity, Lavarnway said that he did not care whether Wright could move his arm because he was told by Officer Townes ("Townes") that Wright had called Townes "a bitch." Lavarnway threatened to remove Wright's clothes forcibly. With the assistance of another inmate, Wright removed his clothing.

On February 13, 1997, a misbehavior report against Wright was issued stemming from the incident at St. Agnes. On February 14, 1997, Wright was interviewed by a Mr. King ("King"), who was assigned to assist Wright with his disciplinary hearing. Wright asked King to interview another inmate who was in the hospital room with Wright when Wright grabbed Conboy's arm, the anesthesiologist who administered the anesthesia to Wright, and a doctor at Sing Sing who could testify about the effects of anesthesia. Wright also asked for general information about anesthesia. Approximately one hour later, King reported to Wright that he had not identified the witnesses. King never provided any information for Wright about anesthesia.

On February 18, 1997, the plaintiff appeared before Harold Dee ("Dee") for a disciplinary hearing, and informed Dee that King had not provided the assistance that Wright had requested. Dee refused Wright's request to call witnesses on his behalf, and instead called Conboy and the co-authors of the misbehavior report, Townes and B. Kasten. Because Conboy was unavailable, the hearing was adjourned until February 25, 1997.

On February 25, the hearing was again adjourned, and Wright's request that the reason for the adjournment be "put on the record" was denied. On the way back to his cell, Wright was kicked and punched by Officers Lavarnway, Reich, Flores, and Murphy, along with Sergeant Wisnat ("Wisnat"), while in a "secluded by-pass tunnel." Wright was then taken to the Sing Sing emergency room, and the assault continued in the back room of the nurses' station. Wright suffered severe injuries to his back, to his right shoulder — where he was still recovering from surgery — and to his thumb when Lavarnway "bent it backward to his left wrist and held it there causing severe pain." When a nurse arrived, the nurse was told by Wisnat that Wright had "no injuries." The nurse, who wrote on the medical form that Wright had "no injuries" refused to give Wright his name and ignored Wright's request to see a doctor. Later in the day Wright returned to the emergency room complaining of "extreme pain," but was denied medical treatment because his medical form indicated that he had no injuries.

On March 2, 1997, Wright was notified that he had been found guilty in a disciplinary hearing which had proceeded in his absence. Wright was given a penalty of thirty-six months in the special housing unit ("SHU"), a thirty-six month loss of good time credits, and loss of special privileges "including clothing, property, and permits." On appeal, Commissioner Glenn Goord ("Goord") reduced Wright's confinement to the SHU to twenty-four months and restored his privileges in a decision rendered on May 7, 1997. Wright challenged Goord's decision in an Article 78 proceeding, and on March 6, 1998, the disciplinary rulings against Wright were overturned. By the time of the Article 78 ruling, Wright had spent twelve months in the SHU.*fn3

Wright filed this action on February 23, 1998, claiming that Dee, Goord, and Superintendent Charles Greiner ("Greiner") had violated his rights under Section 1983. Wright submitted an amended complaint on October 23, 1998, adding Wisnat, Flores, Lavarnway, Murphy, and Reich as defendants. In both the complaint and amended complaint, Wright seeks compensatory and punitive damages and an injunction returning him to Sing Sing.*fn4 As of the date of this Opinion and Order, the United States Marshals Service — which is executing service on Wright's behalf — has not executed service on Wisnat. The defendants move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P.


A court may dismiss an action pursuant to Rule 12(b)(1), Fed.R.Civ.P., if the Court does not have subject matter jurisdiction. A complaint will be dismissed under Rule 12(b)(6) if it does not state a claim upon which relief may be granted. Under Rules 12(b)(1) and 12(b)(6), the action will not be dismissed unless "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which will entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (internal quotations omitted). In considering the motion, the court must "accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Id. An action will be dismissed under Rule 12(b)(5) for insufficiency of service of process.

When a plaintiff is proceeding pro se, the court must liberally construe the complaint. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).


The Court construes the pleadings to allege that the plaintiff was (1) subjected to excessive force, (2) denied medical treatment, and (3) denied procedural due process.*fn5 Section 1983 provides a mechanism through which a ...

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