JOHN WHITE, Plaintiff,
v.
PATRICIA L. WILLIAMS, et al., Defendants.
Civ. No. 9:12-CV-1775 (NAM/DJS)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 22, 2016
APPEARANCES:
JOHN H. WHITE
Plaintiff, Pro Se
08-A-3366
Southport Correctional Facility
P.O. Box 2000
Pine City, New York 14871
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL:
DENISE P. BUCKLEY, ESQ.
JOHN F. MOORE, ESQ.
DANIEL J. STEWART United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff John White brings this civil rights action pursuant to 42 U.S.C. § 1983. Dkt. No. 1, Compl. After an initial review by the Honorable Norman A. Mordue, now-Senior United States District Judge, the Court allowed the following seven claims to proceed to discovery:
| Cause of Action | Defendants | |
| 1. | An Eighth Amendment claim for failure to protect Plaintiff from an assault by Plaintiff's cellmate (Francis) on January 7, 2010. | Thompson, Nichols, and Rock |
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| 2. | A claim for excessive force arising out of an incident on June 8, 2010 where Plaintiff alleges that he was hit in the mouth and slammed up against the wall. | Willett |
| 3. | A claim that certain Defendants attempted to incite inmate violence against Plaintiff. | Dishaw, Williams, King, and MacWilliams |
| 4. | A claim that Plaintiff was wrongfully denied protective custody. | Oey, Rock, Greenizen, Otis, Nason, Yaddow, Uhler, Lira, Zerniak, and DOCCS1 Director of Classification and Movement |
| 5. | An Eighth Amendment claim for failure to protect Plaintiff from an attack by Plaintiff's cellmate (Crossdale) on June 11, 2012. | Demers, C. Smith, King, and Nason |
| 6. | A medical indifference claim for failure to treat the injuries sustained in the June 11, 2012 assault. | RN Marlowe |
| 7. | A failure to supervise claim. | Rock, Uhler, Zerniak, Otis, Fischer, and Roy |
Dkt. No. 33 at pp. 6-36.
Currently pending before this Court is Defendants' Motion for Summary Judgment, filed pursuant to Federal Rule of Civil Procedure 56 (a). Dkt. Nos. 290-91 & 295. Defendants' Motion is predicated upon the following grounds: (1) Plaintiff failed to exhaust available administrative remedies for three of the remaining claims; (2) the claim of medical indifference against Defendant Marlowe is legally insufficient; (3) Plaintiff's failure to protect claims are deficient as a matter of law, as are the claims of personal involvement by the supervisors; (4) the excessive force claim against Defendant Willett is unsupportable; (5) the claims against the individual Defendants in their official capacity are barred by the Eleventh Amendment; and (6) Defendants are entitled to qualified
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immunity. Dkt. 290-3, Defs.' Mem. of Law. Plaintiff opposes the Motion. Dkt. Nos. 312-14, 316-17, 319, 321-23, & 325. For the reasons that follow, the Court recommends granting the Defendants' Motion in its entirety and that this action be dismissed.
Plaintiff commenced this lawsuit by filing a Complaint on December 4, 2012. Dkt. No. 1, Compl. The Complaint generally alleges violations of Plaintiff's First, Eighth, and Fourteenth Amendment rights. Id. On July 10, 2013, Judge Mordue issued the extensive above-referenced Decision and Order. Dkt. No. 33, Dec. & Order. Thereafter the case progressed through a protracted discovery period, which included numerous Motions seeking injunctive relief, Dkt. Nos. 5, 11, 35, 53, 79, 92, 124, 125, 159, 190, 203, 227, 234, 244, 273, & 285, all of which Motions have been denied, Dkt. Nos. 71, 118, 145, & 200.
Plaintiff was deposed on October 14, 2014 at the Upstate Correctional Facility, located in Malone, New York. Dkt. No. 290-6, Pl.'s Dep. The present Motion was filed on July 20, 2015. Plaintiff was granted multiple extensions to answer the moving papers, see Dkt. Nos. 296, 306, 309, and 320, and has submitted multiple submissions, Dkt. Nos. 312-14, 316-17, 319, 321-23, & 325, all of which the Court has reviewed.2 At the present time the Court considers the Motion fully submitted.
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as
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a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se,
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the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., LTD, 475 U.S. 574, 587 (1986).
As part of their Motion packet, and in accordance with the District's Local Rules, Defendants filed a Statement of Material Facts. Dkt. No. 290-2, Defs.' Statement of Material Facts ("SMF"). Plaintiff's Response papers, insofar as they constitute a response to Defendants' Motion and SMF, are not in proper form, do not directly respond to the factual assertions of Defendants, and do not cite to appropriate portions of the record. See Dkt Nos. 312-14, 316-17, 319, 321-23, & 325. Simply stating that "[P]laintiff denies all arguments made by defense counsel's motion in their entirety" is clearly insufficient. See Dkt. No. 317 at ¶ 55.
Under N.D.N.Y.L.R. 7.1(a)(3), any facts set forth in the SMF shall be deemed admitted unless specifically controverted by the opposing party. See also N.Y. State Teamsters Conf. Pen. & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648 (2d Cir. 2005) (deeming assertions in statement of material facts to be admitted where the non-movant supplied only conclusory denials in its response); FED. R. CIV. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the motion[.]"). Although a pro se litigant is entitled to a liberal
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construction of his filings, see Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir. 1995). However, the Second Circuit, acknowledging the court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that the court may in its discretion opt to conduct a review of the entire record even where one of the parties has failed to file a 7.1 statement. Holtz v. Rockefeller & Co., Inc., 258 F. 3d 62, 73 (2d Cir. 2001). Solely in deference to Plaintiff's pro se status, in considering Defendants' request for summary judgment the Court has opted to review the entire record.3
Plaintiff has asserted official capacity claims for money damages under 42 U.S.C. § 1983 against all of the Defendants. Compl. at p. 3. Defendants move to dismiss the official capacity claims based upon Eleventh Amendment immunity grounds. Defs.' Mem. of Law at pp. 22-23.
The immunity granted the states under "the Eleventh Amendment extends beyond the states themselves to 'state agents and state instrumentalities' that are, effectively, arms of a state." Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing, inter alia, Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). The Eleventh Amendment bars all money damages claims against state officials acting in their official capacities. Kentucky v. Graham, 473 U.S. 159, 169...
