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