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January 30, 2003


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff Ellis Marshall ("Marshall") brought this action against the United States of America (the "Government") under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. (the "FTCA" or the "Act") in connection with certain injuries he suffered following an assault by another inmate at the federal Metropolitan Correctional Center (the "MCC") in New York. Before the Court is the Government's motion for summary judgment. For the reasons discussed below, the motion is granted.


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 contends that:

[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.)



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 (1987).

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 ...

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