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ATKINSON v. SELSKY

United States District Court, S.D. New York


October 15, 2004.

REGINALD ATKINSON, Plaintiff,
v.
DONALD SELSKY, et al., Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Defendants seek reconsideration of parts of this Court's order of September 24, 2004, which granted in part and denied in part their motion to dismiss the complaint.

The first point is that the Court did not pass on their contention that the action should be dismissed as to defendant Goord on the ground of qualified immunity, a point not addressed in Judge Pitman's report and recommendation. They are correct. To that extent, the motion will be recommitted to Judge Pitman for a further report and recommendation on that issue.

  Defendants next seek reconsideration of so much of the decision as denied the motion of defendant Greiner to dismiss on the ground of qualified immunity. They contend that there is a division of authority in this district on the issue whether a prison official's denial of a grievance or grievance appeal is sufficient personal involvement to render the official liable under Section 1983 and, in consequence, that defendant Greiner is immune. Defendants very substantially overstate their case.

  This Court held that Williams v. Smith, 781 F.2d 319 (2d Cir. 1986), made it sufficiently clear that a prison official's denial of a grievance or grievance appeal is sufficient personal involvement to render that official liable under Section 1983. Three of the four subsequent district court cases cited by the defendants for the proposition that such action is not sufficient did even cite, let alone consider, Williams. Foreman v. Goord, 2004 WL 1886928 (S.D.N.Y. Aug. 23, 2004); Joyner v. Greiner, 195 F. Supp.2d 500, 506 (S.D.N.Y. 2002); Gowins v. Greiner, 2002 WL 1770772 (S.D.N.Y. 2002). Only Thompson v. New York, 2001 WL 636432 (S.D.N.Y. Mar. 15, 2001), of the cases relied upon, considered Williams and nevertheless came to a conclusion that supports defendant. Moreover, as Magistrate Judge Pitman pointed out, a considerable preponderance of cases in this district hold that a prison official's denial of a grievance or grievance appeal is sufficient personal involvement to render that official liable under Section 1983.

  There is, to be sure, considerable appeal to the defendant's argument that a prison official should not be subjected to possible liability on the ground that he acted contrary to clearly established law if there is any difference of view among judges as to what the law is. Consideration of specific facts, however, often take cases outside generalities that initially seem appropriate. Here, the Court of Appeals held almost twenty years ago that liability attaches where "[a] supervisory official, after learning of the violation through a report or appeal, . . . fail[s] to remedy the wrong." Williams, 781 F.2d at 323. That holding foreshadowed the proposition that a prison official who denies or affirms denial of a grievance is personally involved in an unconstitutional act complained of, which is all that is required. See Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) ("law is considered `clearly established' so long as this `circuit's decisions "clearly foreshadow" a particular ruling on the issue'"). The fact that one district judge read Williams differently and that a few others made contrary observations without giving any indication that they even were aware of Williams, does not in this Court's view render the law less than clearly established.

  Accordingly, defendants' motion for reconsideration is granted. On reconsideration, the Court adheres to its previous decision in all respects save that so much of defendants' motion as seeks dismissal as to defendant Goord on the ground of qualified immunity is recommitted to Magistrate Judge Pitman for a report and recommendation.

  SO ORDERED.

20041015

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