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
"[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
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 ...