Document Type


Publication Date



Plaintiff-appellant Akil Al-Jundi appeals from a judgment entered in the United States District Court for the Western District of New York (Elfvin, J.) dismissing the section 1983 claims, see 42 U.S.C. § 1983, asserted against the Estate of Nelson A. Rockefeller ("Estate") by the class of which Al-Jundi is a member.[1] See Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, 1988 WL 103346 (W.D.N.Y. Sept. 28, 1988). Al-Jundi, along with other parties named in the amended complaint, had instituted a class action against Governor Rockefeller, in his official and individual capacities, and other New York State officials and correctional personnel, based on defendants' roles in the quelling of the 1971 Attica prison uprising. The section 1983 claims were premised on violations of the cruel and unusual punishment clause of the eighth amendment and the due process and equal protection clauses of the fourteenth amendment. During the pendency of the action, the Estate was substituted "in the place and stead of defendant Rockefeller." Al-Jundi v. Rockefeller, 88 F.R.D. 244, 245 (W.D.N.Y.1980).

The district court granted summary judgment for the Estate, holding, inter alia, that, based on his limited participation in the retaking of the prison, Rockefeller had not violated plaintiffs' constitutional rights, and that, in any event, the Governor, and derivatively, the Estate, were immune from suit under the doctrine of qualified immunity. The court thereafter entered a final judgment, pursuant to Fed.R. Civ.P. 54(b), permitting plaintiffs to appeal the dismissal of the claims against the Estate. See Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, 1988 WL 128567 (W.D.N.Y. Nov. 30, 1988).

On appeal, Al-Jundi argues that summary judgment was improper, contending that material questions of fact exist concerning principally (1) the failure of the Governor to control and supervise the officers who conducted the armed assault of the prison; (2) information allegedly possessed by Rockefeller prior to the assault, which, he claims, indicates that a significant degree of danger would attend the use of force to rescue the hostages and retake the prison; and (3) a supposed nexus between the decision to retake the prison by force and Rockefeller's political aspirations. We conclude that Rockefeller did not violate the civil rights of any member of the plaintiff class, and, accordingly, we affirm.


885 F.2d 1060 (1989)

Akil AL-JUNDI, a/k/a Herbert Scott Deane; Big Black, a/k/a Frank Smith; Elizabeth Durham, Mother and Legal Representative of Allen Durham, deceased; Litho Lundy, Mother and Legal Representative of Charles Lundy, deceased; Theresa Hicks, Widow and Legal Representative of Thomas Hicks, deceased; Alice McNeil, Mother and Legal Representative of Lorenzo McNeil, deceased; Maria Santos, Mother and Legal Representative of Santiago Santos, deceased; Jomo Sekou Omowali, a/k/a Eric Thompson; Vernon LaFranque; Alfred Plummer; Herbert X. Blyden; Joseph Little; Robin Palmer; George "Che" Nieves; James B. "Red" Murphy; Thomas Louk; Peter Butler; Charles "Flip" Crowley; William A. Maynard, Jr.; Calvin Hudson; Kimanthi-Mpingo, a/k/a Edward Dingle; and Ken-Du, a/k/a Willie Stokes, on behalf of themselves and all others similarly situated, Plaintiffs, Akil Al-Jundi, Plaintiff-Appellant,


The ESTATE OF Nelson ROCKEFELLER, Defendant-Appellee. No. 1067, Docket 88-2527. United States Court of Appeals, Second Circuit.

Argued June 2, 1989. Decided September 15, 1989.

New York Law School location: File #795, Box #123