The opinion of the court was delivered by: THOMAS J. MCAVOY
Plaintiff Martin Banks brought this suit against the above captioned defendants under title 42 U.S.C. section 1983, alleging violations of his First, Eighth, and Fourteenth Amendment constitutional rights. Specifically, Plaintiff alleges that the defendants 1) violated his constitutional rights by denying him a safe environment in which to enjoy conjugal visits with his family, 2) exhibited deliberate indifference to his medical needs during this visit, and 3) violated his constitutional rights by transferring him to another correctional facility in retaliation for filing a negligence suit in the State Court of Claims.
This matter was referred to Magistrate Judge Gustave DiBianco pursuant to a Standing Order dated August 2, 1985. Plaintiff seeks injunctive, compensatory, and punitive damages. Defendants filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and for summary judgment pursuant to Fed. R. Civ. P. 56.
Under Fed. R. of Civ. P. 56 (e), Summary Judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Under Rule 56, summary judgment provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried. Wright, Miller, & Kane, Federal Practice and Procedure, Civil 2d section 2712, p. 569. Thus, the rule may be utilized to separate formal from substantial issues, eliminate improper assertions, determine what, if any, issues of fact are present for the jury to determine, and make it possible for the court to render a judgment on the law when no disputed facts are found to exist. Id.
A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. Id; see also, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See, Id. at 250-251, 106 S. Ct. 2505, 2510. Once the movant for summary judgment has established a prima facie case demonstrating the absence of a genuine issue of material fact, the non-moving party must come forward with enough evidence so as to allow a rational trier of fact to find for the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who offers only conjecture or surmise. Id.
Furthermore, the non-moving party who seeks additional time for discovery in aid of his opposition to the motion for summary judgment must file an affidavit detailing such a request. Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414 (2d Cir. 1989). In order for this affidavit for more discovery time to be sufficient, it: 1) must include the nature of the uncompleted discovery, 2) show how the facts sought are reasonably expected to create genuine issues of material fact, 3) detail what efforts the affiant has made to obtain those facts, and 4) explain why those efforts were unsuccessful. Fed. R. Civ. Proc. 56 (f), 28 U.S.C.; Paddington Partners v. Bouchard, 34 F.3d 1132 (2d Cir. 1994); and Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985). Since plaintiff has not submitted any affidavits for additional discovery and has, in fact, produced only conclusory allegations as to his need for further discovery, his objection may not serve to defeat summary judgment. Although Rule 56 allows courts to consider depositions, answers to interrogatories, and admissions on file in ruling on summary judgment motions, it does not require that discovery take place before a motion for summary judgment may be considered. Fed. R. Civ. Proc. 56 (c), 28 U.S.C.; and Mills v. Damson Oil Corp., 931 F.2d 346, 350 (5th Cir. 1991); Paul Kadair, Inc. v. Sony Corp., 694 F.2d 1017 (5th Cir. 1983); Walker v. United States Environmental Protection Agency, 802 F. Supp. 1568 (D.C.Tex. 1992). Indeed, summary judgment can and often should be granted without discovery. Id.
B. The Civil Rights Claims under section 1983.
1. Medical Assistance Negligence Claim
To state a claim under Title 42, section 1983, plaintiff must show that officials were 1) acting under color of state law, 2) that their actions deprived plaintiff of a right guaranteed by the constitution or the laws of the united States (see, Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908, (1980), and 3) that the defendants' acts were the proximate cause of the injuries and consequent damages sustained by the plaintiff. Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553, (1980). Thus, an allegation of a wrong which might prove sufficient to state a cause of action under state law does not automatically rise to the level of a constitutional deprivation simply because a defendant is the state or an agent of the state. Daniels v. Williams, 474 U.S. 327, 333, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) (due process protections are not triggered by lack of due care by state officials); Davidson v. Cannon, 474 U.S. 344, 347-348, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986) (although negligence of a prison official led to prisoner's injury, constitution requires no procedure to compensate injury arising from negligence); Estelle v. Gamble, 429 U.S. 97, 105-106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (medical malpractice does not become a constitutional violation merely because the victim is a prisoner).
Under section 1983, the standard for determining if there has been an unconstitutional denial of medical care is whether there has been a deliberate indifference to prisoner's serious medical need, illness, injury, or right to privacy. Estelle v. Gamble, 429 U.S. at 97; and Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991); Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988). Deliberate indifference to serious medical needs of prisoners was defined by the Supreme Court as that which "constitutes the unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976), citing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 ...