Appeal from a judgment of the United States District Court for the Eastern District of New York, Wexler, J., dismissing a portion of appellant's section 1983 complaint as time barred and for failure to state a claim, granting summary judgment on the remainder of the federal claim and dismissing appellant's pendent state claim for lack of subject matter jurisdiction. Affirmed in part, reversed in part and remanded for further proceedings.
Before MESKILL and PRATT, Circuit Judges, and MACMAHON,*fn* District Judge.*fn**
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Wexler, J. The judgment was based on two orders. The first dismissed a portion of appellant's section 1983 complaint as time barred and for failure to state a claim upon which relief could be granted. The second granted summary judgment in favor of appellees on the balance of appellant's federal claim and dismissed his pendent state claim for lack of subject matter jurisdiction.
We affirm in part, reverse in part and remand for further proceedings.
Appellant Dean Villante is a former inmate of appellee Queens House of Detention for Men (QHD), a facility operated by appellee Department of Correction of the City of New York. Villante alleges that while he was incarcerated at the QHD he was first threatened with sexual abuse by others inmate, the latter acts occurring while Villante was being held in a "protective custody" area of the QHD. Villante also claims that he was forced by his attacker to hide weapons in his cell and then was wrongfully punished when the weapons were discovered by prison officials.
Although Villante alleged a series of sexual assaults continuing over a period of about one months, his amended complaint focused on attacks allegedly occurring on November 22, 24 and 27, 1980. In a later deposition, Villante said that several inmates saw him being dragged from the prison dayroom to the cell where the attacks occurred and that certain inmates saw the forced acts of sodomy as well. He said that he had made repeated complaints about the assaulting inmate to a corrections officer he identified as Marcelly and that he had asked Marcelly to lock the door of his cell to prevent the attacks, but that Marcelly only laughed and opened the cell door. On November 28, 1980, shortly after Villante lodged a formal complaint with a deputy warden of the QHD about the sexual assaults, the assaulting inmate was moved to another part of the prison and the assaults stopped. According to Villante, he worked up the courage to lodge this complaint in part as a result of his anger over the punishment he received upon the discovery in his cell of weapons he had been forced to hide there by that inmate.
Villante filed a pro se complaint alleging claims under 42 U.S.C. § 1983 in the district court on December 29, 1980. After an exchange of papers, including a motion for default by Villante and a motion to dismiss on the pleadings by appellees, counsel was appointed for Villante on September 20, 1983. An amended complaint, filed by counsel for Villante on July 19, 1984, alleged violations of Villante's rights under the federal Constitution and New York law.
On October 30, 1984, appellees renewed their motion for judgment on the pleadings, seeking dismissal pursuant to Fed. R. Civ. P. 12(c) on the grounds that Villante's amended complaint failed to state a claim and that part of the amended complaint was time barred.
Appellees deposed Villante on November 14, 1984. Despite several requests, Villante was never permitted to depose any of the appellees' officials or guards.
On December 10, 1984, Judge Wexler dismissed the claims relating to wrongful punishment for the hidden weapons as time barred and for failure to state a claim on which relief could be granted. He ordered Villante within two weeks to submit a statement setting forth the basis for his assertion that he had made "numerous complaints" to corrections employees prior to the formal complaint on November 28, 1980. In response to that order, Villante submitted an affidavit in which, inter alia, he claimed that five corrections officers had witnessed "several occasions" when the assaulting inmate had "choked me and grabbed me and forced me into a cell" and described complaints made about other, earlier incidents of sexual harassment.
In a memorandum and order dated January 28, 1985, Judge Wexler found that the allegations in the affidavit contradicted Villante's deposition statement that he had not reported the sexual assaults to anyone but Officer Marcelly prior to lodging the formal complaint. Finding that such a contradiction did not create a factual dispute under the rule of Perma Research & Development Co. v. Singer co., 410 F.2d 572, 577-78 (2d Cir. 1969), and apparently finding that the alleged reports to Marcelly did not supply a basis for believing that appellees had acted with gross negligence or willful ...