By: Daily Record Staff//November 1, 2010
By: Daily Record Staff//November 1, 2010//
U.S. District Court, Western District of New York
Prisoner Civil Rights
Fernandez v. Callens
Background: The plaintiff commenced this pro se action on or about July 27, 2006 pursuant to 42 U.S.C. §1983. The plaintiff’s amended complaint alleges various violations of the Eighth and 14th Amendments to the U.S. Constitution. The plaintiff was incarcerated at Wende Correctional Facility and the defendants all were employed by the state Department of Correctional Services. The plaintiff asserted four causes of action, sub-divided into the following claims: Correctional Officers Callens and Czarnecki assaulted plaintiff without provocation in violation of the Eighth Amendment; Callens and Czarnecki deprived petitioner of his due process rights when they denied plaintiff recreation and withheld his property; Sgt. Lambert failed to supervise Callens and Czarnecki; Dr. Levitt and R.N. Stachowski failed to provide the plaintiff with adequate and appropriate medical treatment in violation of the Eighth Amendment; Schoellkopf violated the plaintiff’s due process rights at a disciplinary hearing; and Selsky violated the plaintiff’s due process rights by refusing to reverse the disciplinary hearing disposition.
Ruling: The defendants’ motion for summary judgment is granted, except insofar as the plaintiff claims defendants Callens and Czarnecki used excessive force against him in violation of the Eighth Amendment. A trial date is to be set on the first cause of action alleging excessive force.
Francisco Fernandez, pro se; Michael A. Siragusa, assistant U.S. attorney, for the defendants