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June 19, 2000


The opinion of the court was delivered by: Larimer, Chief Judge.



Plaintiff, Gregory Richardson ("Richardson"), commenced this civil rights action pursuant to 42 U.S.C. § 1983 against Thomas A. Coughlin, III ("Coughlin"), Commissioner of Correctional Services; Robert J. McClellan ("McClellan"), Superintendent of Southport Correctional Facility; Colonel George Duncan ("Duncan"), Director of the Corrections Emergency Response Team; and four individual officers. All defendants are sued in their individual capacities. Defendants Coughlin, McClellan, and Duncan (collectively "the supervisory defendants") have moved for summary judgment. For the reasons that follow, the supervisory defendants' motion is granted.


In his complaint, plaintiff alleges that before the search began, he was forcefully handcuffed, causing injury to his wrists and forearms and that the handcuffs were unnecessarily tightened, causing pain and injury. Plaintiff also alleges that the officers then physically assaulted him, using their fists, boots, and batons. According to plaintiff, three or four other CERT officers arrived and joined in the assault. Plaintiff claims that his personal property was unlawfully destroyed and that following the alleged assault, he was denied medical care.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." McKelvie v. Cooper, 190 F.3d 58, 61 (2d Cir. 1999).

A deprivation of a constitutional right made under color of state law is actionable pursuant to 42 U.S.C. § 1983. The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments."*fn1 U.S. CONST. amend. VIII. Plaintiff has alleged that the individual supervisory defendants are liable for the alleged conduct of the CERT officers.

"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield 950 F.2d 880, 885 (2d Cir. 1991)). There are several ways in which a supervisory defendant may be considered personally involved in such a deprivation. First, "[t]he defendant may have directly participated in the infraction." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Second, "[a] supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong." Id. Third, a supervisory official may have "created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue." Id. Fourth a supervisory official who "was grossly negligent in managing subordinates who caused the unlawful condition or event" may be held personally liable. Id. at 323-24. Finally, "supervisory liability may be imposed where an official demonstrates `gross negligence' or `deliberate indifference' to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place." Wright 21 F.3d at 501 (quoting McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983)).

A. CERT Director George Duncan

On May 30, 1991, the day before plaintiff was allegedly assaulted, Southport inmate Christopher Hynes was injured after an altercation with two members of the CERT team. Duncan learned that force had been used against inmate Hynes soon after it occurred, although his deposition testimony does not indicate whether he knew if force was applied appropriately. See Affirmation in Opposition,*fn2 Ex. I. A jury later found that the two officers had "maliciously and sadistically" caused Hynes's injuries. Hynes v. LaBoy, 887 F. Supp. 618, 624 (S.D.N.Y. 1995).

On that same day, May 30, force was also used against another inmate, Joseph Pope, by CERT Officers Bivins and Minuck. See Affirmation in Opposition, Ex. K, Minuck Deposition, p. 104-07. According to Bivins, Minuck filled out a misbehavior report about the incident. See Id. at 67. Pope brought a section 1983 claim against the two CERT officers, and a jury trial was held in December of 1996. See VanGraafeiland Affidavit, ¶¶ 4-5. The jury returned a verdict in favor of the defendants. See Id. at ¶ 6; Ex. 3.

Plaintiff does not allege that Duncan improperly trained or managed the officers under his command. Instead, plaintiff suggests that Duncan condoned assaults against prisoners. However, plaintiff has not established that Duncan knew or suspected that the prior two uses of force were improper. Although it is arguably difficult for a supervisory employee to deny knowledge of widespread violent retaliations following a prison riot, such large-scale violence is not alleged here. See Al-Jundi v. Mancusi, 926 F.2d 235, 240 (2d Cir. 1991) (The allegation that Corrections Commissioner touring ...

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