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
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
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
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 ...