Rodriguez v. Berbary, 97-CV-0931S(Sc).
Decision Date | 20 January 1998 |
Docket Number | No. 97-CV-0931S(Sc).,97-CV-0931S(Sc). |
Parties | Candido RODRIGUEZ, Plaintiff, v. Kenneth BERBARY, Correction Officer, Raymond Hauck, Correction Officer, Wesley Spring, Correction Officer, Michael J. Verrastro, Correction Officer, Timothy J. Snyder, Correction Officer, Mark Cunningham, Sergeant, and David R. Coffey, Sergeant, in their individual capacities, Defendants. |
Court | U.S. District Court — Western District of New York |
The plaintiff has requested permission to proceed in forma pauperis (Items 2 and 3) pursuant to 28 U.S.C. § 1915(a) and has both met the statutory requirements and furnished the court with a signed authorization. Accordingly, the plaintiff's requests to proceed in this court as a poor person are hereby granted.
When the court grants in forma pauperis status, section 1915 mandates that the court also must conduct an initial screening of the action to ensure that it goes forward only if it meets certain qualifications. 28 U.S.C. § 1915(e)(2). Furthermore, Section 1915A states that when a complaint in a civil action is filed by a prisoner, the court shall review the complaint filed and dismiss any claims that are "frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1).
A review of plaintiff's complaint reveals that plaintiff's claim is that defendants punched, kicked, and forcibly beat plaintiff without provocation on the part of the plaintiff. In essence, plaintiff claims that his Eighth Amendment constitutional rights were violated when defendants used excessive force for no apparent reason.
The court is cognizant that the Prison Litigation Reform Act, 42 U.S.C. § 1997e requires a plaintiff to exhaust his administrative remedies before bringing a § 1983 action with respect to "prison conditions." While the case law on this issue is sparse, the court is also cognizant that some courts have required a plaintiff to exhaust his administrative remedies before bringing a § 1983 action with respect to prison conditions. See, e.g., Tafoya v. Simmons, 116 F.3d 489 (Table), 1997 WL 337513, at *2 (10th Cir. June 19, 1997) ( ); Midgette v. Doe, 1997 WL 634280 (S.D.N.Y. Oct.15, 1997) ( ); Mitchell v. Gomez, 1997 WL 305273 (N.D.Cal. June 2, 1997) ( ); McCoy v. Scott, 1997 WL 414185 (N.D.Cal. July 15, 1997) ( ); Morgan v. Arizona Department of Corrections, 976 F.Supp. 892, 895-896 (D.Ariz.1997) ( ).
However, the claims in the cases cited above all concern facts where corrections officers "failed to protect" an inmate from other being assaulted by other inmates. The cases cited do not concern claims alleging...
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White v. Fauver, Civil Action No. 97-5127 (D. N.J. 9/29/1998), Civil Action No. 97-5127.
...the conclusion that "assault claims are not claims that challenge the conditions of a prisoner's confinement." Rodriguez v. Berbary, 992 F. Supp. 592, 593 (W.D.N.Y. 1998); cf. Hollimon v. DeTella, 6 F. Supp.2d 968, 969 (N.D. Ill. 1998) (finding that a strip search performed by prison guards......
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White v. Fauver
...the conclusion that "assault claims are not claims that challenge the conditions of a prisoner's confinement." Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998); cf. Hollimon v. DeTella, 6 F.Supp.2d 968, 969 (N.D.Ill.1998) (finding that a strip search performed by prison guards for ......
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Beeson v. Fishkill Correctional Facility, 96 Civ. 7677(MBM).
...under § 1997e(a) for excessive force claims), White v. Fauver, 19 F.Supp.2d 305, 312-15 (D.N.J.1998) (same), Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998) (same), and Johnson v. O'Malley, No. 96 C 6598, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998) (same), with Moore v. Smith, 1......
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McGrath v. Johnson
...v. Fauver, 19 F.Supp.2d 305, 312-19 (D.N.J.1998); Johnson v. O'Malley, 1998 WL 292421, * 1 (N.D.Ill. May 19, 1998); Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998). Here, there is no claim for excessive use of force and McGrath does not argue that § 1997e(a) does not apply. I find......