West v. Conway et al
Filing
50
ORDER granting 44 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr on 8/23/2012. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERNEST WEST,
Plaintiff,
08-CV-604A(Sr)
v.
J. MILLER, et al.,
Defendant.
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #31.
Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C.
§ 1983 alleging that he was subjected to excessive force during his incarceration at the
Attica Correctional Facility (“Attica”). Dkt. #1.
Currently before the Court is defendants’ motion for summary judgment.
Dkt. #44. For the following reasons, defendants’ motion for summary judgment is
granted.
BACKGROUND
Plaintiff’s amended complaint alleges that on September 11, 2007,
Sergeant LoVerde put plaintiff on the wall and then kicked his feet apart, causing him to
bump his forehead. Dkt. #13-2, p.5. Plaintiff also alleges that C.O. Miller ran into the
plaintiff, causing him to injure his shoulder, and that Sergeant LoVerde failed to
intervene. Dkt. #13-2, pp.5-6. During his deposition, plaintiff reiterated his belief that
the incident occurred on September 11, 2007. Dkt. #44-7, p.9. George Streubel,
Supervisor of Attica’s Inmate Grievance Program, declares that there is no record of
any grievance filed by plaintiff with respect to an incident on September 11, 2007. Dkt.
#44-5.
Plaintiff’s original complaint alleges that on October 14, 2007, while he
was coming from a “med run,” and in retaliation for a prior complaint, Sergeant
LoVerde1 ordered plaintiff to place his hands on the wall and C.O. Miller ran into him
from behind, slamming his body hard into the wall and causing physical injury to his left
shoulder. Dkt. #1, pp.5-6.
On October 24, 2007, plaintiff filed a grievance complaining that Sergeant
LoVerde retaliated against him for filing a prior grievance by ordering plaintiff to place
his hands on the wall, pulling his hair and hitting him on the right side of his face. Dkt.
#44-3, p.10. Plaintiff also complained that C.O. Miller ran into him from behind, causing
his body to slam hard into the wall. Dkt. #44-3, p.10.
The grievance, which was assigned number A-52684-07, was denied by
the Superintendent on November 14, 2007 as follows:
1
Although plaintiff sued defendant as Sergeant Lavardy, the Court will utilize the correct
spelling of her name in this Decision and Order.
-2-
This grievance has been investigated by a Lieutenant and
includes an interview with the grievant, along with written
memorandum from staff named.
The grievance states: The grievant was assaulted by staff.
Upon interview, the grievant reiterated his claims and
provided no witnesses or any other pertinent information.
Staff is on record denying all allegations. The Investigating
Lieutenant could find no evidence to support the grievant’s
accusations. The Investigating Lieutenant states that the
grievant was vague and seemed like he had little knowledge
of the alleged incident. The grievant became agitated when
interviewed and refused to answer questions. The reviewer
notes that the Grievance Supervisor’s memo states that he
does not believe the grievant wrote this grievance and that
he believes another inmate wrote it.
The evidence provided this reviewer does not warrant an
affirmation of this grievance.
The grievance is without merit, and is, therefore, denied.
Dkt. #44-3, p.5.
Supervisor Streubel declares that there is no record of plaintiff appealing
this decision to the Central Office Review Committee (“CORC”). Dkt. #44-5. Karen
Bellamy, Director of the Inmate Grievance Program, which is the custodian of records
maintained by CORC, submitted a printout listing approximately 40 grievances
appealed to CORC by plaintiff during the course of his incarceration at multiple
facilities, including Attica, and declares that Grievance No. A-52684-07 was not
appealed to CORC. Dkt. #44-6.
Plaintiff was released from custody on or about July 31, 2009 and
appeared by teleconference for a preliminary pretrial conference with the Court. Dkt.
-3-
#27. In it’s Order of Preliminary Pretrial Conference, the Court warned plaintiff that
failure to respond to this order or to otherwise comply with
the Federal Rules of Civil Procedure or any other order of
this court may result in a dismissal of this action on the
merits. It is the plaintiff’s responsibility to keep the court
informed of his/her current address.
Dkt. #25.
In support of her motion for summary judgment, now Lieutenant LoVerde
declares that she has no recollection of any contact with plaintiff and did not assault
plaintiff or witness anyone else assault plaintiff. Dkt. #44-3. Similarly, C.O. Miller
declares that he has no recollection of having any contact or involvement with plaintiff
on either date and denies assaulting, harassing or retaliating against plaintiff at any
time. Dkt. #44-4.
Notwithstanding notification by counsel for the defendants as required
under Irby v. N.Y. City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001), concerning the
requirements of Rule 56 of the Federal Rules of Civil Procedure and the perils of failing
to respond to a motion for summary judgment, including that such failure may result in
the granting of judgment in favor of defendants (Dkt. #44, pp.2-3), plaintiff has not filed
a response to the instant motion. Instead, plaintiff wrote the Court a letter claiming that
he suffers from his injuries and requesting a settlement conference. Plaintiff also
copied the Court on a subsequent letter to defense counsel seeking settlement of this
matter and attaching a copy of defendants’ statement of undisputed facts.
-4-
DISCUSSION AND ANALYSIS
Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). “In reaching this determination, the
court must assess whether there are any material factual issues to be tried while
resolving ambiguities and drawing reasonable inferences against the moving party, and
must give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F. Supp. 794, 798
(W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,
502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence
of a genuine issue of material fact, the nonmoving party must come forward with
enough evidence to support a jury verdict in its favor, and the motion will not be
defeated merely upon a
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