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HORNE v. COUGHLIN

No. 301, Docket No. 97-2047.

191 F.3d 244 (1999)

Willie HORNE, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services; Philip Coombe, former Superintendent, Eastern Correctional Facility; Donald Selsky, Coordinator, Inmate Discipline; Arthur Kracke, Lieutenant, Eastern Correctional Facility; and Joseph A. Demskie, Captain, Sullivan Correctional Facility, in their individual and official capacities, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided May 21, 1999.

Amended August 25, 1999.

Attorney(s) appearing for the Case

Deborah Schneer, Poughkeepsie, N.Y. (Kenneth R. Stephens, Prisoners' Legal Services of New York, Poughkeepsie, N.Y., Of Counsel) for Plaintiff-Appellant.

Katharine Demgen, New York, N.Y. (Dennis C. Vacco, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte and Belina Anderson, Assistant Attorneys General, New York, N.Y., Of Counsel) for Defendants-Appellees.

Before: CARDAMONE, WALKER, and LEVAL, Circuit Judges.

Judge CARDAMONE dissents by separate opinion.

LEVAL, Circuit Judge:

On consideration of the application for rehearing and rehearing in banc, the question was raised whether, under County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), we should have first declared whether plaintiff stated a claim for violation of a constitutional right, and only if he did so, decided whether defendants were...

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