Plaintiff contends that issue preclusion does not apply here because
the federal claims raised in this action could not have been raised in
the Court of Claims. However, as the New York Court of Appeals made clear
in its decision in Ryan v. New York Telephone Co., when determining
whether issue preclusion applies, "[w]hat is controlling is the identity
of the issue which has necessarily been decided in the prior action or
proceeding . . ." not the way the cause of action is framed, the nature of
the relief sought, or the availability of the relief in the prior forum.
Ryan v. New York Telephone Co., supra, 62 N.Y.2d at 500, 478 N.Y.S.2d 823,
467 N.E.2d 487. Rather, in assessing identicality, the court must
determine whether the material, dispositive issues raised in the action
before it were necessarily resolved by the prior action. Id. at 502-03,
478 N.Y.S.2d 823, 467 N.E.2d 487; see also Wright v. Coughlin, 1987 WL
19633, at *2 (S.D.N.Y. 1987) (New York Court of Claims decision given
collateral estoppel effect in subsequent federal civil rights action,
even though claim was not barred by res judicata principles since
plaintiff could not have litigated civil rights claim against individual
corrections officers in Court of Claims), aff'd, 868 F.2d 1268 (2d Cir.
The central issues raised by plaintiff in this federal civil rights
action are whether the corrections officers applied excessive force
during the August 6, 1994 incident, and whether the officers conspired
with the other defendants to cover up their use of excessive force. The
core inquiry for the court in assessing an inmate's claim that prison
officials used excessive force is "whether force was applied in a
good-faith effort to maintain or restore prison discipline, or
maliciously and sadistically to cause harm." Hudson v. McMillian,
503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). An inmate claiming
that prison officials subjected him to cruel and unusual punishment by
the use of excessive force has the burden of establishing both an
objective and a subjective component. Romano v. Howarth, 998 F.2d 101,
105 (2d Cir. 1993). Objectively, the plaintiff must establish that the
deprivation alleged is sufficiently serious or harmful enough to reach
constitutional dimensions. Id.; see also Wilson v. Seiter, 501 U.S. 294,
297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The objective components of
a claim may include allegations of the type and extent of the force
used, the nature and seriousness of any injury that may have occurred,
and other objective indicia of the "excessiveness" of the force. See
Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996); Mitchell v. Keane,
974 F. Supp. 332, 340 (S.D.N.Y. 1997), aff'd, 175 F.3d 1008 (2d Cir.
1999) (Table; text at 1999 WL 159896).
The subjective component relates to whether the defendant possessed a
"wanton" state of mind while applying force. Branham v. Meachum, supra,
77 F.3d at 630. To determine whether the defendants acted wantonly or
maliciously, the trier of fact should consider the following factors: the
extent of the plaintiff's injuries, the need for the application of
force, the correlation between the need for force and the amount of force
used, the threat reasonably perceived by the defendants, and any efforts
made by the defendants to temper the severity of a forceful response.
Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d 251
(1986). As stated by the Second Circuit:
If an evaluation of these factors leads the [trier of
fact] to conclude that the defendants acted
maliciously, wantonness has been established. And an
Eighth Amendment violation has occurred. If, on the
other hand, reflection upon these factors leads the
[trier of fact] to find that the defendants acted in a
good-faith effort to maintain and restore discipline,
no constitutional violation has occurred because the
subjective component of the claim has not been
Romano v. Howarth, supra, 998 F.2d at 105.
In addition, in order to establish a conspiracy claim under
42 U.S.C. § 1983,*fn1 plaintiff must show that defendants "acted in
a willful manner, culminating in an agreement . . . that violated
plaintiff's rights, privileges, or immunities secured by the
Constitution." Duff v. Coughlin, 794 F. Supp. 521, 525 (S.D.N.Y. 1992)
(quoting Katz v. Morgenthau, 709 F. Supp. 1219, 1231 (S.D.N.Y. 1989),
aff'd in relevant part, 892 F.2d 20 (2d Cir. 1989)). Plaintiff must
demonstrate that defendants "agreed" or "reached an understanding" to
violate his constitutional rights. Duff, supra, 794 F. Supp. at 525; see
also Ahlers v. Carrillo, 1997 WL 167049, at *4 (S.D.N.Y. April 9, 1997).
A careful review of Judge Lane's decision shows that the material,
dispositive issues raised by these claims were necessarily resolved by
the prior trial on the merits in the Court of Claims. As the trier of
fact, Judge Lane engaged in a thorough review of the evidence presented
during trial. Judge Lane found that the injuries alleged by plaintiff to
have resulted from the August 6, 1994 incident actually preceded
plaintiff's entry into state custody. Judge Lane also concluded that the
medical records had not been altered in any way, and that the documentary
evidence was consistent with the officers' testimony regarding the
incident. In short, the preponderance of the evidence established that no
unnecessary force was used during the incident, and that plaintiff's
medical records had not been altered.
This result finds support in other cases decided within the Second
Circuit. For example, in Wright v. Coughlin, supra, a pro se inmate
commenced a civil rights action in federal court based on the same issues
— assault by correction officers and loss of property — which
the inmate had previously litigated in the New York Court of Claims. The
state judge issued a decision finding that the inmate had failed to
establish "by the fair preponderance of the evidence" either assault or
loss of property. The district court dismissed the federal action on
collateral estoppel grounds, and the Second Circuit affirmed. In
assessing whether the same issues which were decided in the prior Court
of Claims action were decisive of the issues raised in the federal
action, the district court stated as follows:
Although the Court of Claims never considered the
action as a civil rights issue, nor as one against the
individual officers, the Court of Claims did
conclusively resolve the same set of facts on which
both claims exist. Whether or not the claim is
characterized as negligence or as a violation of civil
rights, the issues are the same — did the
officers assault [the plaintiff] and may [the
plaintiff] recover for the alleged property loss?
These issues were decided by the Court of Claims and
are dispositive of the action before us today. The
Court of Claims determined that the evidence was
insufficient to prove that an assault had occurred and
that no award could be made for property loss.
Wright v. Coughlin, supra, 1987 WL 19633, at *2; see also Ramsey v.
Busch, 19 F. Supp.2d 73, 82-88 (W.D.N.Y. 1998) (Foschio, M.J.; applying
principles of res judicata to find federal § 1983 action for damages
based on assault barred by prior successful N.Y. Court of Claims
negligence action); Cox v. Colgane, supra, 1998 WL 148424, at *5
(collateral estoppel barred relitigation in federal § 1983 action of
correction officers' liability based on actions which had been
characterized as negligent in prior Court of Claims action); Arce v.
Scully, 1998 WL 103181, at *2 (S.D.N.Y. March 9, 1998) (res judicata
§ 1983 action brought subsequent to Court of Claims action);
McChesney v. Colfield, 1989 WL 49375, *1 (S.D.N.Y. May 3, 1989) (had
Court of Claims action been dismissed on the merits, subsequent federal
§ 1983 action would have been barred by res judicata).
Similarly, the issues decided by Judge Lane after a full trial on the
merits in the Court of Claims are the same issues to be determined by the
trier of fact in this federal civil rights action — did the
officers assault plaintiff, and were plaintiff's medical records altered
to cover up the assault? Judge Lane's findings, based on the
preponderance of the credible evidence presented at trial, are dispositive
of the issues to be determined in this action such that a different
judgment in this case would destroy or impair rights or interests already
established on behalf of the defendants in the prior action. Therefore, I
find that defendants have met their burden of establishing the identity
of the issues.
The only remaining question is whether plaintiff had a full and fair
opportunity to litigate the claims in the prior action. Plaintiff was
represented by counsel at the Court of Claims and at the Fourth
Department, and there is nothing in the record to suggest that the case
was not competently and aggressively pursued through the state courts. No
new evidence has been presented. As to the foreseeability of future
litigation, plaintiff's counsel specifically advised this court during a
telephone conference on December 15, 1998 that the Fourth Department's
decision would be dispositive of plaintiff's federal claims.
Based on this analysis, I find that the claims raised by this action
have necessarily been decided by Judge Lane's decision in the prior
action in the New York Court of Claims, and that plaintiff had a full and
fair opportunity to contest the decision. Accordingly, the claims are
barred by the principles of collateral estoppel.
For the foregoing reasons, it is recommended that defendants' motion
for summary judgment (Item 20) be granted, and the case dismissed.
The application of Andrew F. Plasse, Esq. for admission to this court
pro hac vice (Item 23) is GRANTED, subject to payment of applicable
admission fees in accordance with Rule 83.1(I) of the Local Rules of
Civil Procedure for the Western District of New York.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of this Court within ten (10) days after receipt of a copy of this
Report and Recommendation in accordance with the above statute,
Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district court will ordinarily refuse to consider on de novo review
arguments, case law and/or evidentiary material which could have been,
but was not presented to the magistrate judge in the first instance.
See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale
Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's
Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local
Rules for the Western District of New York, "written objections shall
specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for such
objection and shall be supported by legal authority." Failure
to comply with the provisions of Rule 72.3(a)(3), or with the similar
provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate
Judge's Decision and Order), may result in the District Court's refusal
to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and
Recommendation to the attorneys for the parties.