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PIZZUTO v. COUNTY OF NASSAU

January 16, 2003

VIRGINIA PIZZUTO, ADMINISTRATRIX OF THE ESTATE OF HER HUSBAND THOMAS PIZZUTO, AND ON HER OWN BEHALF; TOMMY PIZZUTO, BY HIS MOTHER AND NATURAL GUARDIAN VIRGINIA PIZZUTO; CAROL PIZZUTO; ROSARIO PIZZUTO; JOSEPH PIZZUTO; RUSSELL PIZZUTO; AND ANTHONY PIZZUTO, PLAINTIFFS,
v.
COUNTY OF NASSAU ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM AND ORDER

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.

FACTUAL BACKGROUND

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." (Id.)

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 that followed:

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 Thomas Pizzuto.

DISCUSSION

I. Legal Standards

A. Summary Judgment

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 Lobby. Inc., 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. 1986).

II. Federal Law Claims

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; ...


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