The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
According to the claim for injury Marshall filed with the MCC, the
incident that gave rise to this action occurred at approximately 9:35
p.m. on October 21, 1996, while Marshall was in custody at the MCC
awaiting trial. On that occasion Marshall was using the MCC'S public
telephone. (Declaration of Danielle Ginten, dated July 30, 2002 ("Ginten
Decl.") Ex. C, attached to Memorandum of Law in Support of Defendants'
Motion for Summary Judgment, dated July 30, 2002). He was approached by
Bryan Thompson, another MCC inmate who was unknown to Marshall, who told
Marshall to get off the phone so he could use it. Marshall responded that
he would do so when he finished his call, and continued talking. Marshall
alleges that at that time one of the MCC correction officers was walking
up the steps nearby and heard the exchange and continued to walk away.
Thompson left, returned later and again asked Marshall to get off the
phone. Marshall repeated he would do so when he finished his call. He
asserts that he was then struck over the back of the head, allegedly with
an metal pipe that he contends was taken from a piece of the iron parts
used to hold the bunk beds together at the MCC.
Marshall was examined at the MCC health services shortly after the
assault. The medical care report of the incident indicates that Marshall
was alert, ambulatory and not in acute distress. (Id. Ex. D) He was given
an ice pack and Tylenol. On three subsequent examinations by MCC health
services staff during the following three weeks, Marshall reported
suffering from headaches, but showed no apparent sign of distress or
contusion. (Id. Ex. A.) In response to the instant motion, Marshall
[t]he Government should have foreseen that Plaintiff was
or could have become victim to intentional tort conduct
arising from other Inmates [sic] actions and the
negligent failure by Defendant to protect or prevent such
action and or injury to plaintiff, is a breach of that
duty. . . .
(Memorandum of Law in Support of Plaintiff's Response to Motion for
Summary Judgment, dated December 8, 2002, at 5.)
A. SUMMARY JUDGMENT STANDARD
In considering a motion for summary judgment, a court may grant the
motion only if, on the basis of the record of the pleadings,
depositions, answers to interrogatories and admissions, together with any
affidavits filed, it concludes that there is no genuine dispute as to any
material fact and, that, based on the undisputed facts, the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68 (2d Cir.
2000). The role of the court in ruling on such a motion "is not to
resolve disputed issues of fact but to assess whether there are any
factual issues to be tried, while resolving ambiguities and drawing
reasonable inferences against the moving party." Knight v. U.S. Fire
Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932
The moving party bears the initial burden of establishing the basis for
the motion and identifying those portions of the materials on the record
that demonstrate the absence of a genuine issue of material fact. See
Celotex v. Catrett, 477 U.S. 317, 322 (1986); Koch v. Town of
Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). In this regard, "[o]nly
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In weighing
whether the movant has satisfied this threshold, the court must view the
record as a whole in the light most favorable to the opponent of the
motion. See id. at 255. The movant may meet this initial burden by
demonstrating the absence of evidence sufficient to support an essential
element of the opponent's underlying claim. See LaBounty v. Coughlin,
137 F.3d 68, 73 (2d. Cir. 1998).
If the court finds that the moving party has satisfied his initial
burden of persuasion, the opponent must then "do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To this end, the opponent "may not rely on conclusory allegations
or unsubstantiated speculation." Scotto v. Alemas, 143 F.3d 105, 114 (2d
Cir. 1998). Rather, he must support with specific evidence his assertion
that a genuine dispute as to material fact does exist. See Celotex, 477
U.S. at 324.
The opposing party's showing of a genuine dispute must be grounded on
concrete evidence sufficient to support a reasonable jury's rendering a
verdict in his favor. See Anderson, 477 U.S. at 248, 252 ("The mere
existence of a scintilla of evidence in support of the ...