The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiffs bring this action under 42 U.S.C. § 1983, alleging that
Defendants are liable under federal and state law for the murder of
Thomas Pizzuto by corrections officers of the Nassau County Correctional
Center ("NCCC"). Now before the court, Plaintiff Virginia Pizzuto, the
decedent's surviving wife, moves for partial summary judgment against
defendants Edward Velazquez, Patrick Regnier, Ivano Bavaro, Joseph
Bergen, Gary Pincus and Nassau County.
For the reasons set forth below, Plaintiff's motion for summary
judgment is granted with respect to defendants Velazquez, Regnier,
Bavaro, Bergen and Nassau County. Plaintiff's motion for summary judgment
against defendant Pincus is granted in part and denied in part.
The facts underlying Plaintiff's claims are set out at length in this
court's decision of November 19, 2002. Following is a brief recitation of
the facts relevant to Plaintiff's motion for summary judgment. All facts
are undisputed unless otherwise noted.
On January 7, 1999. Thomas Pizzuto, age 38, was sentenced to ninety
days in jail on the misdemeanor charge of driving under the influence of
methadone. (Second Am. Compl., ¶ 16.) Later that day, Pizzuto was
incarcerated at the NCCC and assigned to a one-person cell in the NCCC's
Observation Tier. Pizzuto's assignment to this unit was based on his
status as an inmate receiving methadone treatment. (Plaintiff's
Rule 56.1 Statement ("Pl. Stmt"), ¶ 1.)
On January 8, his first full day in jail, Pizzuto began yelling from
the inmate shower area that he needed his court-ordered methadone
treatment. (Id.) Defendant Edward Velazquez, a guard assigned to
Pizzuto's cell block, told Pizzuto to "shut the fuck up" and to return to
his cell. See U.S. v. Velazquez, 246 F.3d 204, 206 (2d Cir. 2001).
Pizzuto refused, responding: "Fuck you, you are not going to tell me what
to do." Id. In response, Velazquez and another guard, Ivano Bavaro,
ordered all Observation Tier inmates to "lock in" to their cells. (Pl.
Stmt, ¶ 2.) At this time, Pizzuto obeyed the order and entered his
cell. (Id.) After ordering the lock in, defendants Velazquez, Bavaro, and
Patrick Regnier consulted with defendant Gary Pincus, the supervising
officer on duty. (Id.) Velazquez reported to Pincus that Pizzuto had not
immediately heeded an order to return to his cell. Pincus then instructed
Velazquez, Regnier and Bavaro to confront Pizzuto and "quiet him down."
The three corrections officers donned surgical gloves, opened the
security gate and entered the inmate walkway, proceeding toward Pizzuto's
cell with the admitted intention of using "unreasonable force," if
necessary, to quiet him down. (Id.) Velazquez and Regnier stated in their
plea allocutions that they had initially anticipated yelling at Pizzuto
through the bars of his cell. (Id., Ex. C.) However, as soon as the
officers reached Pizzuto's cell, Pincus opened the cell door, prompting
Velazquez and Regnier to enter. Bavaro remained outside standing guard.
(Id. ¶ 3.) In his plea allocution, Velazquez described the events
Mr. Pizzuto was a large man of approximately 270
pounds, your Honor. I shouted at him to shut his
mouth. However, he continued to scream that he wanted
his methadone and wanted to go to medical. Without
provocation, your Honor, I pushed him back to his bed
and slapped him with an open hand and punched him. At
that point, Officer Regnier and myself struggled with
Mr. Pizzuto which resulted in the three of us landing
on the floor of the cell. During this entire time I
was yelling at Mr. Pizzuto to keep quiet and stop
resisting and disrupting the tier.
(Id., Ex. C.)
The officers viciously beat Pizzuto for approximately one minute.
Velazquez, 246 F.3d at 208. Velazquez punched Pizzuto in the eye with a
closed fist, pushed him into a prone position, and continued punching
him. Id. At the same time, Regnier punched Pizzuto in the lower part of
his back and kneed him on his lower back and legs. Id. Pizzuto never
fought back. Id. According to his deposition testimony, defendant Pincus
heard thuds, banging, crying and moaning from Pizzuto's cell, and felt
vibrations from the walls. (Pl. Stmt, ¶ 10.) Pincus testified that
he believed the
officers were using excessive force against Pizzuto, but
he nonetheless failed to intercede. (Id.) Once the officers had beaten
Pizzuto into submission, they left him lying in his cell with extensive
visible injuries, including a swollen and blackened left eye, a swollen
left cheek, abrasions to his left cheek, bruises and contusions on his
chest, shoulder, torso and back, and a contusion on his leg. (Id. ¶
12.) In addition, it was later discovered that his spleen was lacerated
by the force of the punches or kicks to his torso. (Id. ¶ 13.) The
officers reported back to Pincus that no "injury report" or "use of force
report" was needed. (Id. ¶ 11.) As a result, Pizzuto received no
immediate medical care.
When defendant Joseph Bergen replaced Pincus as the on-duty supervisor
over an hour later, Pincus informed Bergen that "[m]y guys smacked D-3
around a little." (Id. ¶ 11.) Bergen replied that he would prepare
an accident report claiming that Pizzuto had slipped and fallen in the
shower. (Second Am. Compl. ¶ 33.) Shortly thereafter, Bergen sent
just such an accident report to a medical technician who escorted Pizzuto
to the Medical Unit. (Id. ¶¶ 33, 34.) The only treatment Pizzuto
received, despite his extensive visible injuries, was a bag of ice. (Pl.
Stint, ¶ 26.) Pizzuto was returned to his cell later that evening.
(Second Am. Compl., ¶ 34.)
Three days later, on January 11th, Thomas Pizzuto collapsed in his cell
and was subsequently taken to the Nassau County Medical Center ("NCMC").
(Id. ¶ 36.) Pizzuto died two days later. (Pl. Stmt, ¶ 27.) The
County Deputy Medical Examiner attributed the death to a ruptured spleen
and declared his death a homicide. (Id., Ex. T.)
Defendants Velazquez, Regnier, Bavaro, Bergen and Pincus were all
indicted in the Eastern District of New York for federal civil rights
crimes in connection with the death of Thomas Pizzuto. Pincus entered
into a cooperation agreement and pled guilty to the lesser charge of
misprision of a felony for failing to report Velazquez and Regnier's
criminal assault on Pizzuto. (Id. ¶ 29.) Bavaro pled guilty to
violating 18 U.S.C. § 371 by conspiring to deprive Thomas Pizzuto of
his right to be free from cruel and usual punishment resulting in death,
and also to witness tampering. (Id. ¶ 31.) Defendants Velazquez and
Regnier pled guilty to violating 18 U.S.C. § 241 and 242 for
conspiring to deprive, and in fact, depriving Thomas Pizzuto of his right
to be free from cruel and usual punishment resulting in bodily injury and
death. (Id. ¶ 33.) A jury convicted Bergen for being an accessory
after the fact to the conspiracy, and for depriving Pizzuto of his Eighth
Amendment right to be free from cruel and unusual punishment, in
violation of 18 U.S.C. § 241 and 242. (Id. ¶ 38.)
Following the convictions of the five corrections officers, Plaintiff
filed this civil action for damages on her own behalf and on behalf of
A grant of summary judgment is appropriate when "there is no genuine
issue as to any material fact and. . . the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party
carries the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
deciding a motion for summary judgment, the court must construe the facts
in the light most favorable to the nonmoving party, Anderson v. Liberty
477 U.S. 242, 255 (1986), and all reasonable inferences and
ambiguities must be resolved against the moving party. Flanigan v. Gen.
Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
B. Collateral Estoppel Against The Individual Defendants
Plaintiff moves for summary judgment against defendants Velazquez,
Regnier, Bavaro, Pincus and Bergen on the grounds that (1) their
convictions collaterally estop them from disputing their acts and the
legal consequences thereof, and (2) their own sworn testimony in the
criminal proceedings and this civil action eliminates any material
question of fact regarding their civil liability. The individual
defendants have not replied to Plaintiff's motion for summary judgment.
It is well-settled that a criminal conviction, whether by jury verdict
or guilty plea. constitutes estoppel in favor of a private party in a
subsequent civil action with regard to any issue of fact or law (t) that
is identical to the issue raised in the prior proceeding: (2) that was
actually litigated and decided in the prior proceeding; (3) that the
defendants had a full and fair opportunity to litigate; and (4) that
needed to be determined in order to reach a valid and final judgment on
the merits. See Central Hudson Gas & Elec. Corp. v. Empresa Naviera
Santa SA., 56 F.3d 359, 368 (2d Cir. 1995). A guilty plea qualifies as
actual litigation for purposes of collateral estoppel in a subsequent
civil trial. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d Cir.
A. Count I: Conspiracy to Violate Pizzuto's Eighth Amendment Rights
Plaintiff claims that the convictions and sworn deposition testimony of
Velazquez. Regnier, Bavaro and Bergen conclusively establish that
Defendants conspired to deprive Pizzuto of his constitutional rights,
including the right (1) to be free from the intentional use of
unreasonable force; (2) to be free from cruel and unusual punishment as
an incarcerated inmate; (3) to have access to and seek redress in the
courts; (4) to be free from the delay and denial of medical attention;
(5) to be free from unnecessary and wanton infliction of pain; and (6)
not to be deprived of life without due process of law.
Defendants Velazquez and Regnier each pled guilty to violating
18 U.S.C. § 241 by conspiring to deprive Thomas Pizzuto of his right
to be free from cruel and usual punishment under the Eighth Amendment.
(Pl. Stmt, ¶ 33.) To determine whether these guilty pleas
collaterally estop Defendants from disputing their civil liability under
Count I of Plaintiff's complaint, I apply the standards set out in
Central Hudson, 56 F.3d at 368.
The court first considers whether the convictions of Velazquez and
Regnier "settled issues of fact and law that are identical to those
raised in this case." See Id. To establish a civil conspiracy under
§ 1983, Plaintiff has the burden of showing (1) that two or more
people entered into an agreement to violate the victim's civil rights, (2)
that the alleged co-conspirators shared in the general conspiratorial
objective, and (3) that an overt act was committed in furtherance of the
conspiracy that caused injury to him. See Beck v. Prupis, 529 U.S. 494,
503 (2000) (requiring overt tortious act in ...