Plaintiff was not suffering from acute symptoms of withdrawal at the time that he was examined on April 4, 1992. As shown by plaintiff's medical records on April 4, 1992, his blood pressure was normal, he was not dehydrated, his temperature was normal, he was not salivating or sweating excessively and his pupils were not dilated. He complained of diarrhea. Further, a test of plaintiff's urine revealed no sugar or ketones in plaintiff's urine, which would have been present had plaintiff *123 been severely dehydrated due to acute withdrawal. These physical findings are inconsistent with a diagnosis of acute withdrawal from heroin or methadone. Had plaintiff been suffering from acute withdrawal symptoms, he would have evidenced at least some of the following symptoms: an elevated pulse rate and blood pressure, hyperglycemia (high blood sugar), severe dehydration, an elevated temperature, dilated pupils, excessive sweating, yawning, running of the nose and tearing of the eyes, shortness of breath, goose flesh, nausea and vomiting, bone pain, insomnia, and liver tenderness.
Although the caption of appellants' complaint names as defendants Benjamin Ward, Police Commissioner of the City of New York, and Anthony Savarese, a sergeant in the New York City Police Department, the complaint is entirely devoid of any allegations of their personal involvement in denying appellants either a prompt hearing or the additional medallions sought. Having failed to allege, as they must, that these defendants were directly and personally responsible for the purported unlawful conduct, their complaint is “fatally defective” on its face. Black v. United States, 534 F.2d 524, 527–28 (2d Cir.1976); accord Owens v. Coughlin, 561 F.Supp. 426, 428 (S.D.N.Y.1983).
While the complaint does not specify which defendant took which specific action, it does put all the defendants on notice as to those actions in which they are all accused of participation.... The complaint does not simply set forth conclusory allegations that plaintiff was denied first amendment rights without stating how he was so deprived.... In this case, personal involvement on the part of all defendants has been alleged.... Under the federal notice pleading, this complaint is sufficient. Defendants will have ample opportunity to develop by deposition or interrogatories, or both, whatever fuller exposition of plaintiff's claim they require for their defense.
Not every tort creates a § 1983 claim for remedy. While an assault by a law enforcement officer upon an inmate may be a serious deprivation of that inmate's rights, it is necessary to determine if there was a need for the use of force, the amount of force used, and the extent of injury. Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Plaintiff has offered no evidence as to the extent or existence of any injury he received from Officer Westervelt. Neither side has alleged any circumstances which would have required the use of force against plaintiff. However, applying the standard of Johnson, it does not appear that Officer Westervelt's conduct “crossed the constitutional line” so as to have deprived plaintiff of his constitutional rights. Fowler v. Vincent, 452 F.Supp. 449 (S.D.N.Y.1978).
Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Taking this view, and reading the complaint with the generosity required in pro se civil rights actions ... we think it stated a claim against Officer Fuller.
While Robison did not seek medical treatment for her injuries, and this fact may ultimately weigh against her in the minds of the jury in assessing whether the force used was excessive, this failure is not fatal to her claim. If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe. See Norris v. District of Columbia, 737 F.2d 1148, 1150–52 (D.C.Cir.1984); Bowman v. Casler, 622 F.Supp. 836, 838 (N.D.N.Y.1985); see also Bellows v. Dainack, [555 F.2d 1105 (2nd Cir.1977) ] in which the description of the events did not suggest that plaintiff had been seriously or permanently injured.
Plaintiff's test results, physical examination and intake interview revealed no abnormalities in his physical condition, and no recent trauma of any type. His pulse, temperature and blood pressure were normal. Plaintiff complained of generalized pain over his body.
Nonetheless, though the instructions on the excessive-force claim were flawed, the evidence of record sufficed to warrant submission of his claim to the jury and to warrant denial of Sutton's motion for judgment n.o.v. The record showed that as soon as Calamia answered Sutton's knock at his door, Sutton shoved him to the floor and immediately cuffed his hands behind his back. There was evidence that the handcuffs were unduly tight, and though Sutton argues to us that Calamia's discomfort was “momentary,” Calamia testified that he was kept in this painful condition for five or six hours before being taken to the police station. It was for the jury to *134 determine whether Sutton's conduct in connection with the arrest, pushing Calamia to the floor and causing him to remain there in a painful posture without circulation in his hands for many hours while officers collected the property was, as an objective matter, reasonable. The denial of judgment n.o.v. on this claim was proper.
Although a pretrial detainee's due process rights to adequate medical treatment are at least as great as the Eighth Amendment protections available to prison inmates, see Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983), the Supreme Court has left unresolved what standard applies. It remains unsettled, in other words, whether a pretrial detainee must meet the “deliberate indifference” standard of Estelle or show “gross negligence” or “recklessness” or prove conduct not amounting to intentional acts, but that is more than simple negligence to state a claim of a constitutional deprivation under the Due Process Clause.
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
*143 (1) whether the right in question was defined with ‘reasonable specificity’; (2) whether the decisional law of the Supreme Court and applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
In any case founded upon tort where a notice of claim is required by law as a condition precedent to commencement of an action or special proceeding against ... any officer, appointee or employee [of a public corporation], the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises ...
No action or special proceeding shall be prosecuted or maintained against ... any officer, agent or employee [of a public corporation] ... unless, (a) a notice of claim shall have been made and served upon the [public corporation] ... in compliance with section fifty-e of this chapter....
The notice shall be in writing, sworn to by or on behalf of the claimant and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable....
the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied21 and, ... the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
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