The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
The parties have consented, pursuant to 28 U.S.C. § 636(c), to have the undersigned conduct all further proceedings in this case, including entry of judgment. Dkt. #13.
In a prior Decision and Order (Dkt. #36), this Court determined that plaintiff had presented the same claims, to wit, assault by corrections officers during the course of a pat frisk on April 9, 2001, before this Court and the New York State Court of Claims ("Court of Claims"), but denied defendants' motion for summary judgment dismissing the case as barred by the doctrine of collateral estoppel because it was impossible to determine on the record before the Court whether the plaintiff had received a full and fair opportunity to litigate his claim before the Court of Claims. Dkt. #37.
Currently before the Court is defendants' motion to vacate that Decision and Order pursuant to Fed. R. Civ. P. 60(b). Dkt. #37. However, this Court chooses to consider defendants' motion pursuant to Fed. R. Civ. P. 54(b), which affords the Court discretion to reconsider and revise an interlocutory order such as the prior order denying summary judgment, at any time prior to the entry of final judgment. See Kliszak v. Pyramid Mgmt Group, Inc., 1998 WL 268839 (W.D.N.Y. April 30, 1998) (collecting cases).
In support of their motion for reconsideration, defendants submit a copy of the transcript of the proceedings before the Court of Claims on September 9, 2003 ("T1"), which defense counsel obtained subsequent to the filing of the prior motion. Dkt. #38, ¶ 3. That transcript reveals that despite plaintiff's claimed difficulty with the English language, he was able to clearly present his claim to the Hon. Renee Forgensi Minarik at the Court of Claims. T4-5. He read into the record a factual statement previously prepared on his behalf by Prisoners' Legal Services of New York ("PLS"), for use on appeal of his disciplinary proceedings,*fn1 which plaintiff said "states exactly what happened that day." T7-11, 16.
Plaintiff also testified that he believed he was called out of the line for the pat frisk as retaliation for a 1992 incident at Southport Correctional Facility when he was charged with assaulting a corrections officer. T16-17, 24-27. In support of that contention, he claimed that when he arrived as porter to 35 and 36 company on C Block, approximately twelve days prior to the incident, he was told by a corrections officer not to get too comfortable, because he wasn't going to be there too long. T37. He also testified that his company was the first to go out for recreation, but that on April 9, 2001, he was the last one to go out to the yard, so that there wouldn't be any witnesses. T38.
During the course of the pat frisk, plaintiff testified that the corrections officers pulled plaintiff's left leg onto his shoulder at a 45° angle and then ran his hands up "the crack of my bottom" and "then squeezed my groin," while asking the other corrections officers, "you like [sic] to assault this boy." T39-40. When he asked the officer what was going on, plaintiff informed Judge Minarik that the corrections officer pulled me out . . . of the wall . . . grabbed me by my neck and hit my . . . head against the wall. That's where I got my eyes cut up.
Then I fall down -- He pulled my leg out, I went down on the floor and they beat me up right there.
T41. On cross-examination, plaintiff admitted that he kicked Officer Valentino as he was being assaulted on the floor. T41-44.
Plaintiff provided Judge Minarik with a copy of materials submitted by PLS in support of his appeal of the disciplinary proceedings arising from this incident and specifically noted to Judge Mianrik that one of the reports prepared by the New York State Department of Corrections ("DOCS"), indicates that plaintiff's injuries "were inconsistent with the injuries that I would have received or got in the incident." T23.
Plaintiff also provided Judge Minarik with photographs of his injuries taken by DOCS on the day of the incident and by PLS on April 13, 2001. T7-11.
In contrast to plaintiff's testimony, Officer Heltz testified that C Block, 35 Company, has never been called first to recreation. T72. Sergeant Bartella testified that he randomly picked plaintiff out to be pat frisked as he was walking through the C Block lobby on his way to recreation and both he and Officer Gebler testified that they had no prior contact with the plaintiff and were unaware of his disciplinary history at that time. T47-48, 66, 98-99. Officer Heltz also testified that he had no prior knowledge of plaintiff or his disciplinary history. T74.
Officer Gebler testified that he was performing the pat frisk in the usual manner when plaintiff's left elbow struck him in the left side of his face. T51-52. Sergeant Bartella and Officer Heltz each testified that they observed Officer Gebler performing the pat frisk according to standard protocol when plaintiff removed his left hand from the wall and forcefully struck Officer Gebler with his left elbow on the left side of Officer Gebler's face. T74-75, 101-02.
Officer Gebler stepped back and pushed plaintiff into the wall in an attempt to pin him against the wall, causing plaintiff's face and body to strike the wall. T54, 76, 103. Sergeant Bartella and Officer Heltz then observed plaintiff spin around to face Officer Gebler, at which point Officer Gebler grabbed plaintiff's right arm and Officer Heltz grabbed his left shoulder and right arm and pushed him face first to the concrete floor, with the officers falling on top of his back. T54-55, 76-77, 103-04. Officer Valentino heard the commotion as he was completing a pat frisk of another inmate and came to assist. T86. Plaintiff continued to struggle and turned himself over in an attempt to get up from the concrete floor before ...