UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

----------------------------------------------------------------------- x 

SAMUEL MONTERO, 

Plaintiff, 

-againstNICHOLAS GIANIKOS, CORR. OFFICER, WORK AT 

A.M.K.C. FACILITY C-95 HOURS 4AM/1PM IN 

INTAKE; CHRIS MAZZELA, CORR OFFICER, WORK 

AT A.M.K.C. FACILITY C-95 HOURS 4AM/1PM IN 

INTAKE; EDWARD ALVAREZ, CORR OFFICER 

WORK AT A.M.K.C. FACILITY C-95, HOURS 

4AM/1PM IN INTAKE, 

Defendants. 

----------------------------------------------------------------------- x 

ANSWER TO THE 

AMENDED COMPLAINT ON

BEHALF OF OFFICERS 

MAZZELA AND ALVAREZ 

07 CV 3228 (VM)(GWG) 

Jury Trial Demanded 

Defendants Correction Officer Mazzela and Correction Officer Alvarez, by their 

attorney, Michael A. Cardozo, Corporation Counsel of the City of New York, for their answer to 

the amended complaint, respectfully allege, upon information and belief, as follows:1

1. Deny the allegations set forth in paragraph “I” of the amended complaint 

and all of its subparts, except admit that plaintiff purports to name the parties as stated therein. 

2. Deny the allegations set forth in paragraph “II.A.” of the amended 

complaint, except admit that plaintiff was incarcerated at the Anna M. Kross Center on or about 

March 7, 2007. 

 1

 On information and belief, the individual identified in the caption of the amended complaint 

as “Nicholas Gianikos” has not been served with a copy of the summons and amended complaint 

and is therefore not a defendant in this action. 

 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 1 of 7
3. Deny the allegations set forth in paragraph “II.B.” of the amended 

complaint, except admit that plaintiff was present in the intake area of the Anna M. Kross Center 

on or about March 7, 2007. 

4. Deny the allegations set forth in paragraph “II.C.” of the amended 

complaint, except admit that an incident involving plaintiff occurred on or about March 7, 2007 

at approximately 6:00 a.m. in the Anna M. Kross Center. 

5. Deny the allegations set forth in paragraph “II.D.” of the amended 

complaint, except deny knowledge or information sufficient to form a belief as to the number of 

inmates that may have witnessed the incident alleged in the amended complaint. 

6. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “III” of the complaint, except admit that plaintiff visited 

the clinic on or about March 7, 2007. 

7. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “IV” of the complaint and all of its subparts. 

8. Deny the allegations set forth in paragraph “V” of the complaint, except 

admit that plaintiff purports to seek relief as stated therein. 

9. Deny knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “VI” of the complaint and all of its subparts. 

AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 

10. The amended complaint fails to state a claim upon which relief can be 

granted. 

- 2 - 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 2 of 7
AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 

11. Defendants Officer Mazzela and Officer Alvarez have not violated any 

clearly established constitutional or statutory right of which a reasonable person would have 

known and therefore are protected by qualified immunity. 

AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 

12. At all times relevant to the acts alleged in the amended complaint, 

defendants acted reasonably in the proper and lawful exercise of their discretion. 

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 

13. Any injury alleged to have been sustained resulted from plaintiff’s own 

culpable or negligent conduct and/or the intervening conduct of third parties and was not the 

proximate result of any act of the defendants. 

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 

14. Plaintiff’s claims may be barred, in whole or in part, by his failure to 

exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 

1997e. 

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: 

15. Plaintiff’s claims may be barred, in whole or in part, because plaintiff 

failed to comply with all conditions precedent to suit. 

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: 

16. Plaintiff’s claims may be barred, in whole or in part, by the doctrines of 

res judicata and/or collateral estoppel. 

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: 

17. Plaintiff’s claims may be barred, in whole or in part, by the applicable 

statute of limitations period. 

- 3 - 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 3 of 7
AS AND FOR A NINTH AFFIRMATIVE DEFENSE: 

18. Plaintiff provoked any incident. 

- 4 - 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 4 of 7
WHEREFORE, defendants Correction Officer Mazzela and Correction Officer 

Alvarez request judgment dismissing the amended complaint in its entirety, together with the 

costs and disbursements of this action, and such other and further relief as the Court may deem 

just and proper. 

Dated: New York, New York 

August 22, 2008 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

 City of New York 

Attorney for Defendants Mazzela and Alvarez 

100 Church Street 

New York, New York 10007 

(212) 788-1575 

By: /s/ 

Bradford C. Patrick 

Assistant Corporation Counsel 

Special Federal Litigation Division 

To: BY MAIL

 Samuel Montero, 

 Plaintiff Pro Se

 George R. Vierno Center 

 09-09 Hazen St. 

 E. Elmhurst, NY 11370

- 5 - 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 5 of 7
DECLARATION OF SERVICE BY FIRST CLASS MAIL 

I, Bradford C. Patrick declare, pursuant to 28 U.S.C. § 1746, under the penalty of 

perjury that on August 22, 2008 I served the annexed Answer to the Amended Complaint on 

Behalf of Officers Mazzela and Alvarez upon the following individual by depositing a copy of 

the same, enclosed in a first class postpaid properly addressed wrapper, in a post office/official 

depository under the exclusive care and custody of the United States Postal Service, within the 

State of New York, directed to the said plaintiff pro se at the address set forth herein, being the 

address designated by said plaintiff for that purpose, to wit: 

 Samuel Montero,

 Plaintiff Pro Se

 George R. Vierno Center 

 09-09 Hazen St. 

 E. Elmhurst, NY 11370 

Dated: New York, NY 

 August 22, 2008 

 /s/ 

Bradford C. Patrick 

Assistant Corporation Counsel 

Special Federal Litigation 

 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 6 of 7
Index No. 07 CV 3228 (VM)(GWG) 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

SAMUEL MONTERO, 

Plaintiff, 

-againstNICHOLAS GIANIKOS, CORR. OFFICER, WORK 

AT A.M.K.C. FACILITY C-95 HOURS 4AM/1PM IN 

INTAKE; CHRIS MAZZELA, CORR OFFICER, 

WORK AT A.M.K.C. FACILITY C-95 HOURS 

4AM/1PM IN INTAKE; EDWARD ALVAREZ, CORR 

OFFICER WORK AT A.M.K.C. FACILITY C-95, 

HOURS 4AM/1PM IN INTAKE, 

Defendants. 

ANSWER TO THE AMENDED COMPLAINT 

ON BEHALF OF OFFICERS MAZZELA AND 

ALVAREZ

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York 

Attorney for Defendants Mazzela and Alvarez 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Bradford C. Patrick 

Tel: (212) 788-1575 

NYCLIS No.2008-00296 

Due and timely service is hereby admitted. 

New York, N.Y. ................................................, 200...... 

................................................................................. Esq. 

Attorney for..................................................................... 

 

Case 1:07-cv-03228-VM-GWG Document 13 Filed 08/22/2008 Page 7 of 7