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EVANS v. NASSAU COUNTY

February 13, 2002

LAMONT D. EVANS, PLAINTIFF,
V.
NASSAU COUNTY, HEMPSTEAD POLICE DEPARTMENT, CHRIS DEVANE, ESQ., DETECTIVE VALDEZ, C.I.U., P.O. JAMES MORRIS, JR., P.O. CUNNINGHAM, AND NASSAU COUNTY JAIL MEDICAL DEPT., DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

On February 26, 2001, the pro se plaintiff, Lamont Evans ("Evans" or the "plaintiff") commenced this action by filing a complaint, alleging that the Hemptsead Police Department ("Hempstead Police Department" or a "defendant"), Detective Valdez, C.I.U. ("Valdez" or a "defendant"), P.O. James Morris, Jr. ("Morris" or a "defendant"), P.O. Cunningham ("Cunningham" or a "defendant") (collectively, the "police defendants"), the Nassau County ("Nassau County" or a "defendant"), Nassau County Jail Medical Department ("Nassau County Jail Medical Department" or a "defendant") (collectively, the "County defendants"), and Chris Devane, Esq. ("Devane" or a "defendant") (collectively, the "defendants") violated 42 U.S.C. § 1983 in that he was falsely arrested, denied appropriate medical attention, and denied the effective assistance of counsel. Presently before the Court are: (1) a motion by Evans for the entry of a default judgment; (2) a motion by Devane for summary judgment; and (3) a motion by the County defendants to dismiss the complaint.

I. BACKGROUND

A. The Complaint

The complaint also alleges that since June 30, 2000, Evans has been "subjected to the bad conditions of the Nassau County Jail and its unruly guards, living conditions, medical attention, nurses with bad attitudes talking to me wrongly. Corrupt and abusive jail guards, and its incompetent administration, cells and mattresses that smell of urine. Being transported in dirty buses with my hands tightly handcuffed as if I committed murder."

Evans is HIV-positive and has been prescribed medication that he should take every eight hours. Evans alleges that the Nassau County Correctional Facility distributes his medication every nine hours, which he claims has had a negative effect on his health.

Lastly, Evans claims that defendant Devane, Evans' court-appointed attorney, deprived him of the effective assistance of counsel by attempting to persuade him to plead guilty "to a charge I didn't commit[]."

The complaint does not list any specific causes of action. It is a standard prisoner complaint, entitled "Form To Be Used By a Prisoner Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983." Next to the question, "Did you present the facts relating to your complaint in the state prisoner grievance procedure?" Evans checked the box, "No". Next to the question, "If you[r] answer is NO, explain why not," Evans wrote, "My complaint is not with the jail center, for they are only holding me for the outcome of this case." Evans also indicated that he did not complain to the prison authorities.

B. Devane's Rule 56.1 Statement

The following facts are derived from Devane's Rule 56.1 statement. Evans did not file a counter-statement or an opposition to Devane's motion for summary judgment. In addition, Devane filed a Rule 56.2 notice to a pro se litigant opposing summary judgment in which Devane writes the following in capital letters, "THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION." Given that Evans received the Rule 56.2 notice and does not dispute the allegations in Devane's Rule 56.1 statement, the Court considers the allegations in the Rule 56.1 statement to be undisputed.

On June 30, 2000, Evans was arrested and charged with Burglary in the Third Degree (Penal Law § 140.20). On July 20, 2000, a grand jury indicted Evans and charged him with Burglary in the Third Degree and Criminal Mischief in the Third Degree (Penal Law § 145.05).

On December 21, 2000, Evans pled guilty to Burglary in the Third Degree and Criminal Mischief in the Fourth Degree (Penal Law § 145.00). During the plea allocution, Evans admitted that on June 30, 2000, at approximately 2:41 a.m., he threw a rock through the window of Love's Cleaners and entered the store without permission to do so. Evans also stated that when he broke the window and entered the store he intended to take money from the store and, in fact, took money from the store. As a condition of the plea agreement, Evans waived his right to appeal the judgment of conviction.

II. DISCUSSION

A. The Motion by Evans for the Entry of a Default ...

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