The opinion of the court was delivered by: Sweet, Judge.
Defendants Westchester County Jail (the "County")*fn1 and the
individual defendants (the "Individual Defendants"), Correctional
Officer Angel Casablanca ("Casablanca"), Correctional Officer
Sergeant Orlando ("Orlando"), and Correctional Officer
Pietranico, Badge 1133 ("Pietranico") (collectively, the
"Defendants") move for an order of summary judgment pursuant to
Federal Rule of Procedure 56 dismissing the complaint in this
action in its entirety. This motion is opposed by plaintiff Troy
Warren ("Warren"). Warren moves for an order permitting him to
file a third amended complaint and for an order compelling
discovery, which motions are opposed by the Defendants, and for
an order appointing counsel. For the reasons set forth below, the
motion by the Defendants is granted, and the motions by Warren
Casablanca, Orlando, and Pietranico were at all relevant times
Correctional Officers employed by the County at the Westchester
The County is a municipality within New York State.
Warren was at all relevant times a federal inmate in the
custody of the Westchester County Jail.
Warren brought this action in forma pauperis and pro se under
42 U.S.C. § 1983 alleging violations of his constitutional
rights. Specifically, Warren alleges that: (1) the Individual
Defendants violated his rights under the Eighth and Fourteenth
Amendments of the Constitution by subjecting him to excessive
force, (2) this violation of his constitutional rights was the
result of a policy or practice of the County, (3) as a result of
the Defendants' conduct he suffered both physical and
psychological injury, and (4) the Defendants inflicted mental
distress on his wife. Warren
seeks compensatory and punitive damages.
Warren filed the first amended complaint in this action on
November 8, 1998 and the second amended complaint on September
22, 1999. Discovery was conducted, including production of
documents and responses to interrogatories by the Defendants and
a deposition of Warren. Discovery closed on March 15, 2000.
The Defendants filed their motion for summary judgment on March
15, 2000 and sent a Notice to Pro se Litigant Opposing Motion for
Summary Judgment, pursuant to Local Civil Rule 56.2, to Warren by
overnight mail on March 16, 2000.*fn2 In accordance with Rule 56.2,
this notice advised Warren of the procedures for responding to a
motion for summary judgment, including the requirement that he
submit a response to Defendants Rule 56.1 Statement and
counter-evidence such as witness statements and documents. Warren
thereafter submitted a timely response to the motion entitled
"Affidavit In Opposition To Defendants Motion For Summary
Judgment." This document identifies the facts Warren contends are
material and undisputed as well as the facts he contends are
material and disputed, and includes a memorandum of law as well
as numerous exhibits.*fn3 This matter was deemed fully submitted on
April 19, 2000.
By motion dated December 18, 1999 and letter dated February 1,
2000, Warren sought appointment of counsel. These requests were
denied with leave to renew. By motion dated February 7, 2000
Warren again seeks an order appointing counsel. This matter was
deemed fully submitted on that date.
By motion dated February 14, 2000 Warren seeks an order to
compel discovery, which motion he amended by letter dated March
13, 2000. By motion dated March 13, 2000 Warren seeks an order
permitting him to file a third amended complaint to add
Correctional Officer Joseph Downey ("Downey") as a defendant.
These matters were deemed fully submitted on March 31, 2000.
The facts set forth below are drawn from the second amended
complaint, the Rule 56.1 statements, exhibits, and other
submissions by the parties. What follows is gleaned from these
submissions, with any factual inferences drawn in Warren's favor.
On January 14, 1998 at approximately 7:30 p.m., Warren, who was
in custody at the Westchester County Jail, received a visit from
his wife in the jail's visiting room (the "Visiting Room").
Casablanca was on duty in the Visiting Room at that time. Orlando
and Pietranico were on duty in the search area outside the
Visiting Room (the "Search Area").
Warren and his wife were conversing when she pushed his hand
away from hers and accidentally knocked her locker key to the
floor. She stood up to retrieve the key, at which point
Casablanca approached, pointed his finger at her, and told her
not to get up out of her seat during a visit. Warren apologized
for his wife, but Casablanca told him to shut up. Warren then
terminated the visit with his wife, and she left, followed by
Casablanca then punched Warren with his right fist on the left
side of Warren's face. Immediately after the altercation between
Casablanca and Warren began, Orlando, who had been standing
behind the clothing counter in the Search Area, intervened by
grabbing Warren's in a "bear hug" and holding his arms. In
Warren's view, Orlando was trying to get the situation under
control. Soon thereafter, Doe, who had been standing by Orlando,
also intervened by pulling Warren to the floor and handcuffing
him. During the altercation Casablanca punched Warren once or
twice more, including at least once while Warren was being
restrained by one of the other officers.*fn4 At some point prior to
being handcuffed Warren punched back, hitting Casablanca once and
missing him once.*fn5
Shortly after Doe had handcuffed Warren, the jail's Emergency
Response Team arrived. They cuffed Warren's ankles and dragged
him to the booking area to a "bull pen" where he waited to be
strip-searched. He was made to strip in front of both male and
female prison officers.
Pietranico tried to get the other inmates in the Search Area
dressed and out of the vicinity while the altercation ensued.
Later, after Warren had been strip-searched, Pietranico brought
Warren his clothes. On top of the pile of clothes was a paper
towel on which were written the words, "Happy Birthday Troy
Warren, now sleep with the fishes." There is no evidence as to
who wrote the note, and by Warren's own account he does not know
who authored it.
Warren was seen by a nurse in the Booking area at or about 9:25
p.m. As a result of the altercation Warren sustained abrasions to
his face and neck — described as "two superficial
scratches" in the examining nurse's notes and by Warren himself
as "little scratches" — and a cut inside his mouth in the
lower lip area. There is no reference in the nurse's notes to a
cut in Warren's mouth or any other injury. The nurse treated him
by cleansing the abrasions with an antiseptic ointment but did
not apply a Band-Aid or other type of dressing. This was the
extent of the treatment rendered.
On February 24, 1998 Warren sought medical attention for an
unrelated rash on his arm, and on March 6 and 17, 1998 he sought
medical attention for checks of his blood pressure. He did not
seek medical or dental attention regarding any injury to his
mouth. According to Warren, any such injury wasn't "a major
concern" because he "wasn't thinking about a lawsuit or anything
like that to go," he was in keep-lock, and he was under emotional
stress because of being denied permission to go to his
grandfather's funeral and due to the January 14 incident.
On March 16, 1998 Warren requested a teeth cleaning and
check-up. In April 1998 he saw the Westchester County Jail dentist, who
informed him that he had periodontal disease and would probably
need to have several teeth removed. The dentist's notes reflect
that Warren stated to the dentist, "I was in a fight and my front
teeth are loose." They also reflect that the dentist diagnosed
Warren as suffering from periodontal disease, with 60-70% bone
loss, and that there was a possibility he would need to have his
front teeth removed. The dentist informed Warren of the
periodontal disease and told Warren the dentist couldn't do
anything for him, but that he should see a periodontist if he was
released from jail.
Some two years later, on January 24, 2000 Warren saw a dentist
at the Federal Correctional Institution in Otisville, New York
for a check-up. This dentist confirmed the diagnosis of severe
periodontal disease and bone loss in his front teeth area and
told Warren he needed to have several teeth removed. The
dentist's notes reflect a statement by Warren that "I need some
x-rays for my lawyer." The notes also refer to a "Hx of trauma to
face"*fn6 but do not indicate the basis for that notation.
Warren has compiled a "Brutality List" consisting of the names
of other inmates whom Warren asserts were subjected to excessive
force at the hands of prison officers at the Westchester County
Jail. Warren based his list on conversations he had with the
inmates listed or with ...