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August 24, 1998

MARK BUSCH, POSS, C.O., and JOHN DOE, SGT., Defendants.

The opinion of the court was delivered by: FOSCHIO



 The parties to this action filed a consent to proceed before the undersigned on June 10, 1994. The matter is currently before the court on Defendants' motion for summary judgment (Doc. # 55), filed November 12, 1997.


 Plaintiff commenced this 42 U.S.C. § 1983 action pro se on September 10, 1993, while incarcerated at the Clinton Correctional Facility in Dannemora, New York. Plaintiff claims that Defendants Busch and Poss, corrections officers at Attica Correctional Facility violated his rights under the First, Fifth, Eighth and Fourteenth Amendments on September 26, 1992 when, while Plaintiff was incarcerated at Attica, Defendants "set up" Plaintiff by exposing him to an assault by another inmate. Plaintiff also alleges that the Defendant corrections officers' actions were authorized by Defendant Doe, a supervisor who conspired with Busch and Poss to "cover up" evidence of the inmate's earlier assault on Plaintiff. Plaintiff further alleges that Defendant Busch retaliated against him for filing complaints with regard to the second assault. Defendants Busch and Poss answered the complaint on March 21, 1994.

 Defendants moved ex parte on November 12, 1996 for leave to amend their answer to add an affirmative defense based on estoppel. On November 18, 1996, Plaintiff moved ex parte for leave to file an amended complaint. Plaintiff's affidavit in opposition to Defendants' motion for leave to file an amended answer was filed on November 20, 1996. An order filed December 3, 1996, established December 16, 1996 as the deadline for Defendants to respond to Plaintiffs' motion to amend his complaint and for Plaintiff to respond to Defendants' motion to amend their answer. Defendants responded to Plaintiff's motion to amend his complaint with a letter to the court dated December 16, 1996, indicating that Defendants did not object to Plaintiffs' amendment of his complaint, but requesting that following such amendment both sides be permitted to file dispositive motions.

 By order dated January 15, 1997 the undersigned granted Plaintiff's motion for leave to file an amended complaint and directed Plaintiff to file the amended complaint by February 3, 1997. Defendants' request for leave to file dispositive motions was also granted and such motions were directed to be filed by February 17, 1997.

 Defendants moved for summary judgment on February 18, 1997. Plaintiff opposed that motion and filed his amended complaint on February 26, 1997.

 Defendants Busch and Poss answered the amended complaint on July 1, 1997. By letter to the court dated September 29, 1997, Defendants explained that they moved for summary judgment on February 18, 1997, under the assumption that Plaintiff had not filed his amended complaint as Defendants were never served with a copy of the filed amended complaint. As such, the additional allegations contained in Plaintiff's amended complaint were not addressed in Defendants' summary judgment motion. Defendants therefore withdrew their pending summary judgment motion and requested the court issue a new scheduling order setting a new deadline for the filing of dispositive motions. That request was granted on September 30, 1997 and Defendants were given until November 7, 1997 to file dispositive motions. That deadline was later extended to November 10, 1997, and again to November 14, 1997.

 Defendants filed their summary judgment motion on November 12, 1997. Although Defendants acknowledge that Ramsey asserts his claims under the First, Fifth, Eighth and Fourteenth Amendments, Defendants' Memorandum of Law, filed November 12, 1997 (Doc. # 57)("Defendants' Memorandum of Law"), at 1, their motion as for summary judgment specifically addresses only the Eighth Amendment and retaliation claims. Plaintiff's response, filed December 22, 1997, does not respond to many of the substantive arguments advanced by Defendants in support of summary judgment. Instead, Ramsey contends that he was never advised of the new scheduling order permitting Defendants to file another motion for summary judgment and that Defendants' counsel and the undersigned have conducted private conferences from which Ramsey has been excluded. Defendants did not file any reply. The court finds Ramsey's Fifth and Fourteenth Amendment claims were pleaded as the basis for assertion of the Eighth Amendment claim and that his First and Fourteenth Amendment claims were pleaded as the basis for his retaliation claim. Accordingly, summary judgment is considered as to those claims as well.

 Based on the following, Defendants' motion for summary judgment is GRANTED.


 On September 26, 1992, Plaintiff, Michael F. Ramsey, while incarcerated in the Special Housing Unit ("SHU") at Attica Correctional Facility was escorted to the showers by Defendant correctional officers Busch and Poss at approximately 7:00 P.M. The most direct route from Ramsey's cell to the showers led past the cell of another inmate, William Hernandez. As they passed Hernandez's cell, Hernandez assaulted Ramsey by throwing some liquid containing human feces and body fluids at him. Neither Busch nor Poss was hit by these substances at that time. Busch and Poss directed Ramsey to continue toward the showers where, upon his arrival, Ramsey was interviewed by Defendant Sargent John Doe, the area supervisor.

 Ramsey was permitted to shower after speaking with Doe and was given clean clothing. After a nurse from Attica's medical staff examined Ramsey, he was escorted back to his cell by Busch and Poss. As Ramsey, Busch and Poss passed Hernandez's cell, Hernandez again threw some more liquid containing human feces at the men, this time hitting all three. Ramsey, Busch and Poss were examined by medical personnel and given the opportunity to shower. Ramsey was then returned to his cell and Busch and Poss were relieved from duty for the remainder of their shifts.

 A misbehavior report charging Hernandez with committing an assault was issued and Hernandez was then moved to a plexiglass fronted cell. The misbehavior report, however, describes only the assault during which Hernandez managed to hit Ramsey, Busch and Poss with the fecal substances, and does not set forth the facts of the first assault which hit Ramsey alone. Hernandez's history of committing both unhygenic and violent acts is documented in prison records. For example, earlier in the day of the assaults at issue, Hernandez was disciplined for flooding the prison gallery floor with soapy water, creating a safety hazard and delaying the shower program pending cleanup of the gallery floor. Additionally, prison records indicate Hernandez had been throwing things out of his cell for three days prior to the incident and that he had to be disciplined for refusing to turn in his empty food containers following meals. Hernandez used those containers to prepare and hold the feces mixture involved in this matter. There is, however, no indication in either Defendants' or Plaintiff's papers that Defendants were aware of these prior incidents by Hernandez.

 Ramsey maintains that Hernandez should have been placed in a plexiglass fronted cell following the soapy water throwing incident, but was not. Defendants state that they would have earlier moved Hernandez to a plexiglass fronted cell, but none was available at that time. Ramsey further alleges that Defendants did not have to take the same route in escorting him back to his cell after his first shower as other routes were available that did not lead past Hernandez's cell or that Defendants could have left Ramsey at the shower until they moved Hernandez to another location before taking Ramsey back to his cell. Defendants contend that to either take Ramsey back to his cell via a different route, which would have required escorting Ramsey through another company, i.e., a group of cells within the prison or to move Hernandez from his cell would have disturbed prison order and created other security risks.

 Ramsey filed administrative grievances regarding the incident, specifically arguing that Hernandez had assaulted him twice that day, not once as indicated in the misbehavior report. According to Ramsey, Defendant Busch had informed the other inmates prior to the incidents that Ramsey was "snitching" on inmate Hernandez, causing the other inmates to threaten and harass Ramsey. On November 25, 1992, Busch searched Ramsey's cell allegedly looking for contraband, although Ramsey maintains that the search was intended to discourage Ramsey from writing letters and filing further complaints regarding the matter.

 Ramsey subsequently commenced an action in the New York Court of Claims based on negligence regarding the incident at issue. On August 12, 1993, that court ruled Defendants' action in escorting Ramsey past Hernandez's cell such that Ramsey was again hit with excrement was negligent and awarded Ramsey $ 200 as damages.


 Summary judgment will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The moving party for summary judgment bears the burden of establishing the nonexistence of genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331.

 The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255; Rattner, supra, at 209.

 Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, supra, 477 U.S. at 247-48. See also Lipton v. The Nature Company, 71 F.3d 464, 469 (2d Cir. 1995). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex, supra, 477 U.S. at 322-23. A material issue of fact is "genuine" if it provides a basis for "a rational trier of fact to find for the non-moving party." Matsushita, supra, at 587. "Mere conclusory allegations or denials" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton, supra, at 469.

 Ramsey alleges Defendants violated his civil rights under 42 U.S.C. § 1983. Pursuant to § 1983, an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or ...

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