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March 20, 2003


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



Plaintiff, Raphael Durran, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services, alleges that defendants violated his constitutional rights in a number of respects, ranging from assault, denial of medical care, due process violations in connection with a disciplinary hearing, and other acts, all of which occurred while plaintiff was confined at Southport Correctional Facility ("Southport").

The original complaint named fourteen officials and employees of DOCS as defendants. On August 3, 2000, the Court issued a Decision and Order that, inter alia, sua sponte dismissed plaintiff's claims against six of those defendants, as well as plaintiff's claims against all defendants regarding false misbehavior reports and denial of adequate medical treatment. That left the following defendants remaining: Donald Selsky, Director of the DOCS Inmate Disciplinary Program; Southport Superintendent Michael McGinnis; Senior Correctional Counselor Richard Cerio; Lieutenant Alan Hager; and Correction Officers James Coleman, Dana Gridley, Daniel Morgan, and Herbert Williams.

On August 7, 2002, defendants Selsky, McGinnis, Hager and Cerio moved for summary judgment on all remaining claims against them, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The notice of motion (Docket #32), the Court's scheduling order setting the return date (Docket #40), and the so-called "Irby notice" sent by the Court to plaintiff (Docket #41) informed plaintiff of the nature of a summary judgment motion, the requirements of Rule 56, and the consequences of failing adequately to respond to the motion. See Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001).

In a letter to the Court dated August 30, 2002, plaintiff requested that he be allowed "to conform the Complaint to the proof adduced at the Plaintiff's deposition," or in the alternative "to amend the Complaint in order to amplify the pleading as to defendant Richard Cerio." Docket #42. In a Decision and Order entered on October 15, 2002, the Court advised plaintiff that he had not adequately responded to the summary judgment motion, and again informed him of the requirements of Rule 56. Docket #43. The Court extended plaintiff's time to respond to the motion to November 12, 2002.

On November 2, 2002, the Court issued another Decision and Order, "recogniz[ing] that plaintiff may have been seeking an opportunity to amend his complaint" in his August 30 letter, and giving him until December 30, 2002 to file a motion to amend, along with a proposed amended complaint. Docket #44.

On January 3, 2003, plaintiff filed a document captioned "Memorandum of Law in Support of 42 U.S.C. § 1983/Plaintiff's Amended Complaint."*fn1 Docket #45. This comprises an exact copy of the original complaint (including plaintiff's previously-dismissed claims), plus a five-page addendum setting forth additional allegations concerning Cerio, together with several exhibits. In addition, although the body of the amended complaint lists all fourteen original defendants, the caption on the cover sheet lists only five: Cerio, Coleman, Gridley, Morgan, and Williams. It thus omits not only the defendants dismissed in the Court's August 3, 2000 Decision and Order, but also defendants Selsky, McGinnis, and Hager. No explanation for this omission is given.


It is undisputed that on March 7, 1997, plaintiff was removed from his cell and temporarily taken to a shower room, while a search was conducted of his cell. A correction officer ("C.O.") had allegedly been assaulted with a knife or similar object by another inmate the day before, and a search was ordered of all cells in the area.

After his cell was searched, plaintiff was removed from the shower by C.O.s Gridley and Coleman to be escorted back to his cell, which was located on the floor below the shower room. Plaintiff alleges that while they were in the stairwell, Gridley and Coleman grabbed plaintiff and banged his head into the wall. They then pushed him down the stairs, where several other officers, including Morgan and Williams, were waiting. All the officers then proceeded to punch and kick plaintiff for some time. The officers then picked plaintiff up and carried him to a different shower room. Plaintiff subsequently received medical treatment for his injuries.

Plaintiff alleges that the reason for this assault was that he was friends with the inmate who had allegedly slashed a C.O. on March 6. He claims that the assault was in retaliation for the incident involving the other inmate.

Defendants admit that there was an altercation involving plaintiff and some of these officers, but they contend that plaintiff initiated it. Defendants allege that as Gridley and Coleman were escorting plaintiff back to his cell, plaintiff attempted to kick Coleman. The C.O.s then grabbed plaintiff's arms, but plaintiff began to struggle. The officers were eventually able to place leg irons on plaintiff, but he continued to struggle. They then picked him up and carried him to the other shower room, where he was placed without further incident.

Following this incident, plaintiff was issued a misbehavior ticket. A hearing was conducted by defendant Cerio, who found plaintiff guilty of assault on a staff member. Plaintiff was sentenced to 150 days in the Special Housing Unit ("SHU"), 60 days suspended, deferred for 180 days, meaning that plaintiff had to spend at least 90 days in SHU. ...

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