Plaintiff's suit involves an assault he allegedly suffered
while in pre-trial detention at the New York Supreme Court, Bronx
County Courthouse in June 1996. According to plaintiff, on June
17 he asked Corrections Officer Louis Campisi if he could use a
different bathroom, as the inmates' toilet was broken. In
response, Campisi allegedly reached a hand through a prison gate
that separated him from plaintiff and "brushed underneath
[plaintiff's] eyes to near [his] nose." Santiago Dep. at 129-30.
According to plaintiff, Campisi's action was intended to jab both
of his eyes. Plaintiff alleges that defendant remarked to another
corrections officer that he would "take care of [Santiago]
later," Compl. at 3, and that, subsequently, on June 18,
defendant Campisi sought him out and assaulted him without
provocation. In this second alleged incident, plaintiff maintains
that Campisi slapped him on the jaw, near his goatee, with the
open palm of his right hand.
On June 17, within hours after the first alleged incident,
plaintiff underwent a routine medical examination at the
Montefiore Hospital Rikers Island Health Services Unit. See
Brauner Decl, Exh. D. According to the record of that
examination, plaintiff said nothing of the alleged assault by
Campisi, nor did he report any injury or infirmity to the area of
his body involved in the assault. See id. The only medical
problem indicated in the report is plaintiff's depression, which
was manifested in a suicide attempt two months earlier while
plaintiff was in federal custody, and for which plaintiff was
receiving treatment with antidepressant drugs. See id.
On June 21, plaintiff requested a mental health evaluation and
was examined by a registered nurse. See Brauner Decl., Exh. E.
The record of this evaluation describes plaintiff's history of
depression, suicide attempts, and insomnia. See id. Plaintiff
complained to the nurse that he was having difficulty sleeping,
but plaintiff otherwise was described as in a "[p]leasant mood
tonight." Id. The record makes no mention of either assault
alleged by plaintiff, and there is no indication that plaintiff's
treatment was modified. See id.
It is undisputed that plaintiff did not report any incident or
injury to prison officials until ten days after the second
assault allegedly occurred. On June 28, Santiago reported the
alleged assaults to the Department of Corrections, which that day
generated an "Injury to Inmate" report and sent plaintiff for a
medical examination. During the examination, plaintiff reported
the injuries alleged in his complaint to the examining clinician,
who noted them in his report. See Brauner Decl., Exh. F. The
clinician found "no swelling or tenderness" and "no evidence of
other injuries." See id.
On July 1, investigating supervisor Captain Frank Squillante
issued his report. See Brauner Decl., Exh. M. Plaintiff told
Squillante that Campisi had committed these assaults, and that
two other corrections officers, Darryl Chisholm and Benjamin
Benitez, had witnessed them.*fn1 See id. Squillante determined
that Chisholm was off-duty and had signed out when the assault
allegedly occurred, and that Benitez was confirmed to have taken
the entire day off. See id. Although Campisi was on duty, he
was not assigned to the area where plaintiff was being held, nor
did his duties require him to go there. See id. This is
corroborated by the assignment schedule for corrections officers
at the Bronx Supreme Courthouse, see Brauner Decl., Exh. B, and
by the facility's inmate registers. See Brauner Decl., Exh. C.
After interviewing the Campisi and the two alleged witnesses and
obtaining their signed statements that they knew nothing of the
incidents alleged, Squillante concluded that:
1. Inmate Santiago, Sammy fabricated this claim for
personal reasons or reasons unknown by this
2. No records indicate any incident of this inmate
being in the alleged area on said date and time.
3. Staff who was identified was not working at the
time or day of this claim other than C.O. Campisi.
4. Medical review confirmed no injuries of the
Brauner Decl., Exh. M. On July 1, Tour Commander Luis Velez
reviewed the investigation report and concurred with Squillante's
findings, concluding that plaintiff "fabricated this allegation"
and that there were "no medical findings nor tangible evidence to
support subject inmate's allegation." Brauner Decl., Exh. H.
On January 21, 1997, plaintiff filed the instant action,
claiming defendant Campisi had violated his civil rights by
perpetrating the alleged assault, and that the Department of
Corrections is likewise liable for its failure to supervise and
train defendant Campisi in an adequate manner.
On June 9, 1999, defendants moved for summary judgment. On June
28, 1999, the Court granted summary judgment in favor of
defendants, citing plaintiff's failure to oppose defendants'
motion. On June 29, the Court learned that plaintiff had sent a
letter requesting additional time to file his opposition, but had
mistakenly mailed the letter to Judge Eaton's chambers rather
than to the Court. Citing plaintiff's pro se status, the Court
vacated the award of summary judgment, agreed to accept belatedly
plaintiff's opposition papers, and directed defendants to submit
their reply by September 3, 1999.
On September 9, defendants' motion was fully submitted to the
Court. Plaintiff has on three subsequent occasions made further
submissions to the Court, which the Court has considered despite
the procedural impropriety of these filings.*fn2 In these
submissions, plaintiff draws the Court's attention to the fact
that he is illiterate and relies on fellow prisoners to assist
him in these proceedings, in addition to the dozen unrelated
civil suits he has filed since incarcerated. Plaintiff requests
that the Court provide him with counsel to assist him in
prosecuting his case, and requests that the Court appoint a
guardian ad litem because of his illiteracy.
I. STANDARD FOR SUMMARY JUDGMENT
A moving party is entitled to summary judgment if the Court
determines that there exists no genuine issue of material fact to
be tried and the party is entitled to judgment as a matter of
law. See Fed. R.Civ.P. 56; see also Holt v. KMI-Continental,
Inc., 95 F.3d 123, 128 (2d Cir. 1996); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The moving party bears the burden of showing that no
genuine issue of material fact exists. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
"In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant's burden will be
satisfied if he can point to an absence of evidence to support an
essential element of the non-moving party's claim." Goenaga v.
March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
1995) (citation omitted); see also Scottish Air Int'l, Inc. v.
British Caledonian Group, PLC, 81 F.3d 1224, 1231 (2d Cir.
The Court's function in adjudicating a summary judgment motion
is not to try issues of fact, but instead to determine whether
there is such an issue. See Sutera
v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In
determining whether genuine issues of material fact exist, the
Court must resolve all ambiguities and draw all justifiable
inferences in favor of the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129.
II. LIBERAL CONSTRUCTION OF PLEADINGS BY PRO SE LITIGANT
The Supreme Court and the Second Circuit have made abundantly
clear that the courts must "construe pro se pleadings broadly,
and interpret them to raise the strongest arguments that they
suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)
(internal quotes omitted); see also Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Ruotolo v.
Internal Revenue Serv., 28 F.3d 6, 8-9 (2d Cir. 1994);
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
III. DEFENDANTS' PROCEDURAL ARGUMENTS FOR DISMISSAL
Although the instant motion is formally one for summary
judgment, defendants repeatedly urge the Court to dismiss
plaintiff's complaint for his failure to comply with the Federal
Rules of Civil Procedure and the rules of this Court. While
plaintiff's manner of conducting this litigation has been far
from exemplary, the Second Circuit has made it amply clear that
district courts "`should be especially hesitant to dismiss for
procedural deficiencies where . . . the failure is by a pro se
litigant.'" Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)
(quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
As defendants argue, and as the Second Circuit noted in
Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994), a less
solicitous approach may be warranted with respect to a litigious
inmate who is unarguably acquainted with the procedural
requirements of our legal system. In Davidson, the Second
Circuit held that, while "[u]nder other circumstances, such
sparse pleadings by a pro se litigant unfamiliar with the
requirements of the legal system may be sufficient at least to
permit the plaintiff to amend his complaint to state a cause of
action. . . . [t]he plaintiff in the case at bar . . . is an
extremely litigious inmate who is quite familiar with the legal
system and with pleading requirements." Id. at 31. Plaintiff at
bar has at least ten civil suits pending in the Southern District
alone. Thus, while the Court must treat plaintiff's procedural
missteps with some measure of leniency, plaintiff's demonstrated
familiarity with the judicial system tempers the Court's need to
be solicitous. Against this backdrop, the Court considers
defendants' procedural arguments in turn.
A. Incomplete Service of Process on Defendants
Defendants contend that plaintiff's service of process on
defendants was incomplete and imperfect. Although proper service
of process is integral to the Court's jurisdiction, the Court is
satisfied that defendant Campisi and the City of New York have
had adequate notice of plaintiff's action against them.
Defendants argue that the Department of Corrections (DOC) is
not an entity subject to suit. To bring an action against DOC,
defendants suggest, plaintiff must amend his complaint to name
the City of New York as a defendant, and properly serve the City
with process. Because such a procedure would serve only to delay
the resolution of this case, and because the appearance of
Corporation Counsel in this case leaves no question that the City
is aware of the claims against it, the Court will deem
plaintiff's claims directed improperly at DOC as claims against
the City of New York.
Defendant Campisi is also unquestionably aware that he is a
defendant in this suit, and what the claims against him entail.
The parties differ as to whether
Campisi was properly served with a copy of plaintiff's complaint.
Notwithstanding defendants' assertion that Corporation Counsel
never made an appearance for defendant Campisi, the Court's
records indicate that both Campisi and the City were properly
served, and that Corporation Counsel has been engaged in
defending these claims in the name of all defendants. Pursuant to
Fed.R.Civ.P. 12(h), a defendant must raise the defense of lack of
personal jurisdiction or improper service "at the time he makes
his first significant defensive move." Transaero, Inc. v. La
Fuerza Aerea Boliviana, 162 F.3d 724, 730 (2d Cir. 1998).
Although defendants raise these considerations in the instant
motion, Corporation Counsel's earlier answer to the complaint
appears to speak for both Campisi and the City, and fails to
raise the issue of improper service.*fn3 For these reasons, the
Court finds that defendant Campisi is properly a defendant to
B. Plaintiff's Filing of Unsigned Papers Prepared by
Defendants correctly argue that 28 U.S.C. § 1654 only permits
parties to plead their cases "personally or by counsel."
Accordingly, defendants urge the Court to disregard opposition
papers prepared for plaintiff by fellow inmate Michael Shabazz
and submitted without plaintiff's signature, and grant their
motion on default. While defendants are correct that Mr. Shabazz
is not an attorney and may not in any sense serve as plaintiff's
counsel, the Court recognizes that prisoners routinely rely on
the assistance of "jailhouse lawyers" — fellow inmates with some
education — to aid them in preparing papers for the Court.