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September 30, 2002


The opinion of the court was delivered by: David G. Larimer, Chief Judge


Plaintiff, Detroy Livingston, appearing pro se, commenced this action under 42 U.S.C. § 1983 on April 21, 1999. Plaintiff filed an amended complaint on September 24, 1999.

Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges a host of violations of his constitutional rights by DOCS officials and employees, all arising from events that took place at Attica Correctional Facility ("Attica"). The complaint names twenty-one defendants*fn1 in fourteen separate causes of action. Defendants have moved for summary judgment on all claims except for plaintiff's allegation of excessive force on February 25, 1997.


I. Claims Raised in Plaintiff's Action in the Court of Claims

Defendants move for summary judgment on a number of claims on the ground that they are barred under principles of res judicata and collateral estoppel, due to plaintiff's successful prosecution of an action in the New York Court of Claims. On August 12, 1996, plaintiff filed an action against New York State in the Court of Claims, asserting a claim "for negligence of the State for allowing correction officers Fial, Bennis, and Justinger to assault" plaintiff on July 10 and 11, 1996, and a claim for "negligent medical treatment by Sergeant Cunningham, R.N. B. Schmidt, and R.N. S. Stewart for denying [plaintiff] proper medical treatment" following these assaults. Affirmation of James L. Gelormini, Esq. (Docket #93), Ex. A.

On October 16, 2000, Judge Edgar C. Nemoyer of the Court of Claims rendered a decision finding "that more force than was necessary was used against" plaintiff, and awarding him a total of $3151.38 in damages, including $3000 "for all past and future pain, suffering, lack of proper medical attention, and any and all other damages he sustained as a result of the incidents on July 10 and 11, 1996." Gelormini Aff. Ex. B. On appeal by plaintiff challenging the adequacy of the award, the Appellate Division affirmed. Livingston v. State, 289 A.D.2d 973 (4th Dep't 2001).

In the case at bar, plaintiff has alleged Eighth Amendment claims based on the same incidents, the same factual allegations, and the same actors. See Complaint, headings C-G. Defendants Bennis, Fial, Kauffman, Justinger, Cunningham, Schmitz, and Stewart are named in these claims.

Plaintiff argues that his Court of Claims proceeding should not operate as a bar to this action because in this action he seeks an award of punitive damages, a form of relief that was not available to him in the Court of Claims.*fn2 I am not persuaded by this argument.

A similar situation was presented in Ramsey v. Busch, 19 F. Supp.2d 73 (W.D.N.Y. 1998). In Ramsey, the inmate plaintiff had filed a claim in the Court of Claims, which found for plaintiff and awarded him $200 in damages. The plaintiff then brought a § 1983 action in federal court against the individual officers involved in the underlying incident, based on the same set of facts. After an extensive analysis of the issue, the court held that "Ramsey's Eighth Amendment claim is barred by the doctrine of res judicata." Id. at 82. In so holding, the court noted that

[t]he Court of Claims conclusively resolved the same set of facts on which both claims exist, i.e., that Defendants acted improperly and violated Ramsey's legal rights. . . . The evidence necessary for Ramsey to prevail on his § 1983 claim is the same as the evidence he presented to prevail in the Court of Claims action based on the same incident. Both actions involve the same parties or their privies and the Court of Claims judgment was on the merits. Granting the Court of Claims' decision the finality which was intended in accordance with New York law, the court finds that permitting Ramsey's § 1983 action to proceed would destroy or impair the rights or interests afforded the parties by the first action, including the Defendants' rights to avoid being vexed by further litigation involving the identical facts and issues as those resolved in the prior case.

Id. at 85 (citation omitted).

The court also stated that its conclusion was not affected by the fact that the plaintiff sought punitive damages in his § 1983 action, a remedy not available in a New York Court of Claims action. Id. at 86. Noting that the purpose of punitive damages is to punish and deter wrongful conduct, not to compensate the victim for his injury, the court stated that "[a]n award of punitive damages to one who has already been made whole by compensatory damages is essentially a windfall to a plaintiff." Id. at 87 (citing O'Neill v. Yield House, Inc., 964 F. Supp. 806, 810 (S.D.N.Y. 1997)). The court also reasoned that "[t]he objectives of res judicata will not be advanced if the instant action is permitted to proceed to trial solely to determine if punitive damages may be awarded," since: the plaintiff had already been made whole by the compensatory damages awarded him by the Court of Claims; the Court of Claims award had "some deterrent effect," since individual officers would presumably not wish to be viewed by their employer as tortfeasors for whose conduct the employer could be liable; and, if a jury decided that punitive damages were warranted, such an award would indicate that the defendants' actions constituted a willful violation of the law, suggesting that they had acted outside the scope of their employment. Such a result could cast doubt upon whether New York State should have been liable for the award of compensatory damages (since the state in the Court of Claims is liable only if its employees act within the scope of their employment), thereby calling into question the correctness of the Court of Claims' decision. Id. at 87.

Finally, the court in Ramsey noted that the state had already incurred the costs associated with the plaintiff's Court of Claims action, in addition to the payment of the compensatory damages, and stated that "[r]equiring further expenditure of taxpayers' money to support relitigation of claims simply to recover punitive damages, an uncertain enterprise even in a strong case, which could have been recovered in the same action along with compensatory damages had Ramsey first pursued his § 1983 action," violates New York's rule against "claim splitting," pursuant to which a final judgment rendered in an action which extinguishes the plaintiff's claim also extinguishes all rights of the plaintiff to further remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Id. at 86-87. See, e.g., Charles E. S. McLeod, Inc. v. R. B. Hamilton Moving and Storage, 89 A.D.2d 863, 864 (2d Dep't 1982).

Defendant Robert Kauffman, a sergeant at Attica, was not named in plaintiff's claim filed with the Court of Claims.*fn4 In the instant action, plaintiff alleges that Sgt. Kauffman was standing nearby when plaintiff was assaulted in an elevator by two corrections officers on July 10, 1996. Plaintiff alleges that Kauffman was standing at the front of the elevator with his back to plaintiff and the officers when the assault occurred, and that when plaintiff cried out, Kauffman did not intervene, but only said, "Stop struggling, why [are] you struggling?," or words to that effect. Transcript, Pt. 1 ("T-1"), Defendant's Motion (Docket #77) Ex. A, at 29.

Although Kauffman was not mentioned by name in the Court of Claims complaint (in which, by law, only the state could be named as a defendant, see N.Y. Ct. Cl. Act, § 9(2)), he did testify at the trial before Judge Nemoyer concerning his recollection of what happened in the elevator with plaintiff on July 10. Kauffman was also cross-examined by plaintiff during the trial. Gelormini Aff. Ex. E. Thus, plaintiff had a full and fair opportunity to litigate his claims concerning Kauffman's alleged involvement in these events, and I find that plaintiff's claims against him are barred by res judicata as well.

II. Alleged Taking of Plaintiff's Pain Relief Medicine

Plaintiff alleges that on March 13, 1997, when he was leaving the correctional facility to travel to a court appearance, he handed defendant Baker a bag containing some legal papers as well as some pain medication*fn5 that plaintiff had been given for pain from injuries that he sustained during a February 25, 1997 incident. Apparently plaintiff did this because both he and his possessions had to be searched before plaintiff went to court.

Plaintiff alleges that after he was searched and when he was about to leave for court, his legal work was returned to him, but not the pain medicine. Plaintiff alleges that Baker discarded the medicine or otherwise prevented it from being returned to plaintiff.

The precise nature of this claim is unclear. Plaintiff may be alleging that he was deprived of property without due process of law in violation of his rights under the Fourteenth Amendment. If that is his claim, however, it must fail.

"[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984). "New York in fact affords an adequate post-deprivation remedy in the form of, inter alia, a Court of Claims action." Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Accordingly, plaintiff's allegations fail to state a claim under this theory.

Plaintiff may also be alleging that the deprivation of his pain relievers amounted to cruel and unusual punishment in violation of the Eighth Amendment. In order to make out such a claim, plaintiff must prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The standard of deliberate indifference includes both subjective and objective components. "First, the alleged deprivation must be, in objective terms, `sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted), cert. denied, 513 U.S. 1154 (1995); Ramos v. O'Connell, 28 F. Supp.2d 796, 802 (W.D.N.Y. 1998). Second, the defendant "must act with a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66. An official acts with the requisite deliberate indifference when that official "knows of and disregards an excessive risk to ...

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