UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

 

________________________________________________x   JOSEPH MARTINEZ, Plaintiff, -against- MR. ROBERT ORTIZ (WARDEN), PETE CURCIO (SHIELD # 1077 A.D.W.), LAHRUZZO (CORR. CAPTAIN), P. MISTRETTA (CORR. CAPTAIN), JOSEPH SAGLIMBENE (SHIELD # 606 CORR. CAPTAIN), BRUCE BOYD (SHIELD # 14356 C.O.), ROBERT GREEN (SHIELD # 13038 C.O.), DARREN HILL (SHIELD # 12299 CO.), KEVIN SMALL (SHIELD # 8411 C.O.), MARK CARNEY (SHIELD # 14137 C.O.), MARK WYNTER (SHIELD # 13548 C.O.), ELVIN ALVARADO (SHIELD # 10217 C.O.) and DR. HOLCOMB in their individual and official capacities. Defendants. ________________________________________________x

SECOND AMENDED COMPLAINT   00 CV 1919 (WHP) (HBP)   JURY TRIAL DEMANDED

Plaintiff, JOSEPH MARTINEZ, by the undersigned attorneys, alleges ___ follows for his Second Amended Complaint:

PRELIMINARY STATEMENT

1.                  This is a civil rights action in which the plaintiff seeks relief for the defendants’ violation of his rights secured by 42 U.S.C. §§ 1983 and 1985(3), and the First, Eighth and Fourteenth Amendments to the United States Constitution.  The claims arise from a February 25, 1997 incident in which defendants, among other things, applied unreasonable and unnecessary force to plaintiff and denied plaintiff adequate medical care.  Plaintiff seeks compensatory and punitive damages, declaratory and injunctive relief, an award of costs and attorneys’ fees, and such other and further relief as the court deems just and proper.

JURISDICTION & VENUE

2.                  This action is brought pursuant to 42 U.S.C. §§ 1983 and 1985(3), and the First, Eighth and Fourteenth Amendments to the United States Constitution.  Jurisdiction is conferred upon this Court by the aforesaid statutes and 28 U.S.C. §§ 1331 and 1343.

3.                  Venue is proper in this district pursuant to 28 U.S.C. § 1391.

PARTIES

4.                  Plaintiff is a resident of the State of New York, County of Erie.

5.                  The defendants are members of the New York City Department of Correction (“DOC”) who were employed at Otis Bantum Correctional Center on Rikers Island located at 16-00 Hazen Street, East Elmhurst, New York 11370 (“OBCC”) on February 25, 1997.  The individual defendants are sued in their individual and official capacities.

STATEMENT OF FACTS

6.                  On February 25, 1997, plaintiff, a New York State prisoner, was incarcerated at the OBCC in cell-16 in Housing Area 2 Southwest.

7.                  On the above date, several inmates, including plaintiff, complained that the Housing Area was too cold.

8.                  At approximately 11:45 a.m., defendants Curcio, Mistretta, Labruzzo and Alvarado came into the Housing Area to videotape and supervise plaintiff being extracted from his cell by an extraction team. An extraction team was used because defendants falsely claimed that plaintiff had, among other things, damaged cell property, possessed a knife and refused to leave his cell.

9.                  Approximately two minutes later, defendant Saglimbene came into the housing area with an extraction team composed of defendants Boyd, Green, Hill, Small, Carney and Wynter.

10.              Defendants Saglimbene, Boyd, Carney and Wynter subjected plaintiff to unnecessary physical force by assaulting, battering and striking him; thereby causing him serious physical injury.

11.              Defendants Labruzzo, Mistretta, Curcio, Green, Hill, Small and Alvarado did not intervene or prevent defendants Boyd, Saglimbene, Carney and Wynter from subjecting plaintiff to unnecessary physical force.

12.              Thereafter, plaintiff sought medical treatment from defendant Holcomb, a facility physician.  Holcomb, however, refused to treat plaintiff’s injuries.  Specifically, he failed to treat plaintiff’s fractured ribs and cheek.  In addition, Holcomb failed to send plaintiff for outside medical treatment, and as a result, plaintiff was not sent to an outside hospital for treatment until February 27, 1997, when another Rikers Island physician sent plaintiff to Bellevue Hospital for emergency treatment and x-rays.

13.              In carrying out the aforesaid unlawful acts, defendants were motivated, at least in part, by the fact that plaintiff had complained about the temperature of his Housing Area.

14.              As a result of defendants’ actions, plaintiff experienced, among other things, various physical injuries, fear, embarrassment, humiliation, emotional distress, and pain and suffering.

FIRST CLAIM

EXCESSIVE FORCE

15.              Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 14 as if fully set forth herein.

16.              Defendants’ conduct in using force upon plaintiff for the purpose of causing him injury, and not as part of a good faith effort to maintain order or restore discipline, violated plaintiffs rights under the Eighth and Fourteenth Amendments to the United States Constitution.

SECOND CLAIM

DENIAL OF MEDICAL CARE

17.              Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 16 as if fully set forth herein.

18.              Defendant Holcomb’s conduct in deliberately refusing to attend to plaintiff s medical serious medical needs and in not sending plaintiff to an outside hospital for emergency care violated plaintiff’s rights under the Eighth and Fourteenth Amendments to the United States Constitution.

THIRD CLAIM

CONSPIRACY AND RETALIATION FOR
THE EXERCISE OF CONSTITUTIONAL
RIGHTS

19.              Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 18 as if fully set forth herein.

20.              Defendants’ conduct as described herein violated plaintiffs rights under the First, and Fourteenth Amendments to the United States Constitution, and under 42 U.S.C. § 1985(3), because such conduct was the product of a conspiracy designed to punish plaintiff for exercising his First Amendment right to complain about prison conditions.

WHEREFORE, plaintiff demands a jury trial and the following relief jointly and severally against the defendants:

a.         Compensatory damages in an amount to be determined by a jury;

b.         Punitive damages in an amount to be determined by a jury;

c.         Costs, interest and attorney’s fees;

d.         Such other and further relief as this court may deem just and proper, including injunctive and declaratory relief.

DATED:           June 15, 2001

                        Brooklyn, New York

RICHARD J. CARDINALE

MICHAEL HUESTON

Attorneys for Plaintiff

285 Fifth Avenue, No. 487

Brooklyn, New York 11215-2425

Tele. no. (718) 922-3105

26 Court Street, Suite 600

Brooklyn, New York 11242

By:

                                                                       

MICHAEL HUESTON (MH-0931)