Swanton v. Carpinello et al

Filing 131

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 126 ) is accepted and adopted in full; and it is further ORDERED that defendants' motion for summary judgment (Dkt. No. 116 ) is granted and the action dismissed on the merits. Signed by Judge Norman A. Mordue on 9/18/2012. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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GEORGE R. SWANTON,
Plaintiff,
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9:08-CV-1187 (NAM/DRH)

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LAWRENCE SCZERBA, S.H.T.A. Central
New York Psychiatric Center also known
as Larry Hagan; and CINDY LAW, Medical
Doctor, Central New York Psychiatric
Center,
Defendants.
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APPEARANCES:

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GEORGE R. SWANTON
04-A-3593
Attica Correctional Facility
Post Office Box 149
Attica, New York 14011
Plaintiff Pro Se
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York
CHRISTOPHER W. HALL, Esq., Assistant Attorney General
The Capitol
Albany, New York 12224-0341
Attorney for Defendants

Hon. Norman A. Mordue, U.S. District Judge:
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MEMORANDUM-DECISION AND ORDER
In this action pursuant to 42 U.S.C. § 1983, plaintiff pro se, an inmate in the custody of
the New York State Department of Corrections and Community Services (“DOCCS”), alleges
that defendants, two employees of the Central New York Psychiatric Center (“CNYPC”), violated
his Eighth Amendment rights. Defendants move (Dkt. No. 116) for summary judgment
dismissing the second amended complaint (Dkt. No. 84). Upon referral pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.3(c), Magistrate Judge Homer has prepared a ReportRecommendation and Order (Dkt. No. 126) recommending that defendants’ motion be granted.
The Court adopts Magistrate Judge Homer’s recitation of the facts, procedural background, and
applicable law, and does not repeat them here.
Plaintiff has submitted an objection (Dkt. No. 127) and a supplemental objection (Dkt.
No. 129). In view of the nature of plaintiff’s objections, the Court conducts de novo review. See
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28 U.S.C. § 636(b)(1)(C). On de novo review, the Court agrees with Magistrate Judge Homer’s
analysis and conclusions in all respects. Magistrate Judge Homer’s factual summary is supported
by the record and his discussion of the applicable law is correct. Magistrate Judge Homer
properly applied the standard for summary judgment and properly accorded plaintiff the
deference to which he is entitled as a pro se litigant. The issues plaintiff raises are either not

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supported by the record or are not material. For example, citing to page four of the ReportRecommendation and Order, plaintiff takes issue with what he contends is a finding by
Magistrate Judge Homer that plaintiff suffered no acute trauma to the shoulder from the incident.
The cited portion of the Report-Recommendation and Order, however, is a quote from the
affidavit of defendant Cindy Law relating her interpretation of the x-ray report, not a factual
finding by Magistrate Judge Homer.1 There is no merit to plaintiff’s objections.

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It is therefore
ORDERED that the Report-Recommendation and Order (Dkt. No. 126) is accepted and
adopted in full; and it is further

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The x-ray report states in full: “Three views show moderate degenerative changes at the
glenohumeral and acromioclavicular joints. There is calcification at the rotator cuff insertion consistent
with calcific tendonitis. There are multiple old healed adjacent rib fractures.”

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ORDERED that defendants’ motion for summary judgment (Dkt. No. 116) is granted and
the action dismissed on the merits; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
September 18, 2012
Syracuse, New York
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