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July 28, 2000


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 are denied.


Casablanca, Orlando, and Pietranico were at all relevant times Correctional Officers employed by the County at the Westchester County Jail.

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.

Prior Proceedings

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.

Warren got up to leave the Visiting Room. Before an inmate can leave the Visiting Room he has to be searched. There were two or three inmates ahead of Warren waiting to be searched, however, and Warren waited in the Search Area. While he was waiting, Casablanca approached him and told him, "Don't ever tell me how to do my job." Warren responded that it was wrong to disrespect Warren or Warren's wife and that was not Casablanca's job. Casablanca told Warren to "Get the fuck out of here" and pushed him in the arm with one hand towards the area where prisoners are strip-searched. According to Warren, this push was not violent but seemed intended more to move him along. Warren told Casablanca, "Please don't put your hand on me."

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.

Warren was transferred to the Keep-Lock Housing Unit subsequent to the incident. He requested a grievance form but did not receive one for several days. He never filed a grievance regarding the January 14 incident.

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 ...

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