White v. Clement et al

Filing 26

-CLERK TO FOLLOW UP-ORDER granting defendant Jeremy Clement's 24 Motion for Summary Judgment and dismissing the complaint. A copy of this decision was mailed to plaintiff at his last known address. Signed by Hon. David G. Larimer on 10/5/16. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEQUANA WHITE,
Plaintiff,
DECISION AND ORDER
-vs14-CV-6100L
JEREMY CLEMENT,
Defendant.
___________________________________________

Plaintiff, Dequana White, appearing pro se, commenced this action under 42 U.S.C. '
1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (ADOCCS@), alleges that defendants violated his rights under the United
States Constitution in a number of respects.
On July 22, 2015, the Court issued a Decision and Order, 116 F.Supp.3d 183, granting
summary judgment in favor of five of the six defendants, and dismissing plaintiff=s claims against
those five defendants. In doing so, I noted that plaintiff had not responded to defendants= motion
for summary judgment. Id. at 185.
The Court denied the motion as to one defendant, Jeremy Clement. The Court found that
despite plaintiff=s failure to respond to the motion, defendants had not, at that point, demonstrated
Clement=s entitlement to judgment as a matter of law. Id. at 187.
The Court added, however, that this result was A[b]ased on the record before me, ...
drawing all reasonable inferences in favor of plaintiff.@ Id. at 189. I added, AThat is not to say
that the Court finds plaintiff=s allegations against Clement credible, or that his claims against
Clement have merit.@ Id. Rather, the Court left open the possibility that on a more complete

record, or a better-supported motion, Clement might be entitled to judgment as a matter of law.
Clement has now filed a second motion for summary judgment, with additional supporting
evidence. As before, plaintiff has failed to respond.
Clement=s motion is granted. The Court will not recite here again the consequences of a
plaintiff=s failure to respond to a summary judgment motion, which were set forth in my July 2015
decision, see id. at 185-86.

I note, however, that plaintiff was again apprised of those

consequences, both in Clement=s motion itself and in the Court=s scheduling order, see Dkt. #24-2,
25. I also note that the DOCCS Inmate Lookup Service, http://nysdoccslookup.doccs.ny.gov,
indicates that plaintiff is currently being held at Southport Correctional Facility, which is the
mailing address listed on the docket sheet for this case.
Based on the materials submitted by Clement in support of his motion, which include his
own declaration, a statement of undisputed facts, and supporting exhibits, I find that Clement is
entitled to judgment as a matter of law. With respect to plaintiff=s Eighth Amendment claim, the
record reflects that Clement did address and document plaintiff=s medical complaints. Since
plaintiff has not rebutted Clement=s allegations in that regard, the Court may accept them as true.
See Crenshaw v. Syed, 686 F.Supp.2d 234, 235-36 (W.D.N.Y. 2010). Having done so, I conclude
that at most, plaintiff has shown no more than his subjective dissatisfaction with the care that he
received from Clement. That is not enough to support an Eighth Amendment claim. See
Lawrence v. Evans, 136 F.Supp.3d 486, 490 (W.D.N.Y.), appeal filed, 15-3286 (2d Cir. Oct. 16,
2015).
I also find that Clement is entitled to summary judgment on plaintiff=s First Amendment
retaliation claim. Again, the evidence before me, including Clement=s own account of the
relevant events, stands unrebutted that Clement did document plaintiff=s complaints. There is no
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showing that Clement did anything improper in the first place. To the extent that plaintiff may not
have been satisfied with Clement=s treatment of him, there is also no indication that Clement acted
out of retaliatory motives. Absent such a showing, there is no basis here for a First Amendment
claim. See White, 116 F.Supp.3d at 187-88, and cases cited therein.
Under well established law, a plaintiff faced with a well-supported motion for summary
judgment cannot simply rest on the allegations in his complaint; Ahe must come forward with
>concrete evidence from which a reasonable juror could return a verdict in his favor.=@ Houston v.
Zen Zen, 388 F.Supp.2d 172, 175 (W.D.N.Y. 2005) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 256 (1986)). Plaintiff has failed to do so, and by all appearances has lost interest in
prosecuting this action. Clement=s motion is therefore granted.

CONCLUSION
The motion for summary judgment filed by defendant Jeremy Clement (Dkt. #24) is
granted, and the complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 5, 2016.

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