June 4, 2003
RAYMOND DANIEL MEHLENBACHER, PLAINTIFF,
RN SLAFRAD, NURSE, BARE HILL CORR. FACILITY; NURSE PIELEM, NURSE, UPSTATE CORR. FACILITY; L. RACE, NURSE, UPSTATE CORR. FACILITY; M. COH, NURSE, UPSTATE CORR. FACILITY; RN WALSH, NURSE, UPSTATE CORR. FACILITY; T. GRAY, PHARMACY AID, BARE HILL CORR. FACILITY; P. COOK, NURSE, BARE HILL CORR. FACILITY; K. MCDONALD, NURSE, BARE HILL CORR. FACILITY; P. A. MCLEAN, DOCTOR, GREEN HAVEN CORR. FACILITY; RN SUYNAIDO, NURSE, BARE HILL CORR. FACILITY; L. STEVENSON, NURSE, BARE HILL CORR. FACILITY; M. L. WARNER, NURSE, BARE HILL CORR. FACILITY; RN WAGAR, NURSE, BARE HILL CORR. FACILITY; RN, MCKINZEI, NURSE, BARE HILL CORR. FACILITY; RN KLEVEAM, NURSE, BARE HILL CORR. FACILITY; MS. WILSON, DEPUTY SUPERINTENDENT, BARE HILL CORR FACILITY; SUPERINTENDENT, UPSTATE CORR. FACILITY; GEORGE PATAKI, GOVERNOR, N.Y. STATE; G. MCKEE, NURSE, BARE HILL CORRECTIONAL FACILITY; HUNY COUNERLIN, DOCTOR, BARE HILL CORRECTIONAL FACILITY; DEFENDANTS. RAYMOND DANIEL MEHLENBACHER, PLAINTIFF, V. DANIEL HOLLOWAY, DOCTOR, BARE HILL CORR. FACILITY; MR. FERDKY, DOCTOR, BARE HILL CORR. FACILITY; AND L. RILEY, RN, BARE HILL CORRECTIONAL FACILITY, CONSOLIDATED DEFENDANTS. RAYMOND DANIEL MEHLENBACHER, PLAINTIFF, V. BARE HILL CORR. FAC.; PETER LACY, SUPERINTENDENT, BARE HILL CORR. FAC.; S. MILLER, NURSE, UPSTATE CORR. FAC.; GLENN S. GOORD, COMMISSIONER; LESTER WRIGHT, M.D., CHIEF MEDICAL OFFICER, CONSOLIDATED DEFENDANTS.
The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge
This matter was referred to the undersigned for Report-Recommendation by the Honorable Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules N.D.N.Y. 72.3(c). Plaintiff, pro se, Raymond Mehlenbacher claims that the defendants violated his civil rights when they failed to provide adequate medical care, assaulted him without cause, tampered with his food and assigned him to the top bunk. Before the court is the defendants' converted motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Dkt. Nos. 37 and 50. Mehlenbacher has failed to respond. For the following reasons, this court recommends that summary judgment be granted and the case be dismissed without prejudice.
Mehlenbacher filed the present actions on December 8, 1999. By Order filed March 7, 2000, this court consolidated his three actions*fn1 and directed service of the complaints. Dkt. No. 6. On March 12, 2001, the defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Dkt. No. 37. After this court issued a January 18, 2002, order informing Mehlenbacher of his obligation to respond (Dkt. No. 45), he failed to do so.
On June 13, 2002, this court issued an Order converting the defendants' motion to dismiss to a motion for summary judgment and granting each party an opportunity to submit additional material in support of the motion. Dkt. No. 50. Mehlenbacher was specifically ordered to address the allegation by the defendants that he had failed to exhaust all of his administrative remedies. Dkt. No. 50. He was further informed that his failure to respond could result in the court granting the motion for summary judgment. Dkt. No. 50. On July 15, 2002, the defendants submitted additional materials. Dkt. Nos. 51-53. However, despite the court's warnings, Mehlenbacher again failed to respond.
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id.
"The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Even in the absence of a response, defendants are entitled to summary judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). Since Mehlenbacher has failed to respond to the defendants' statements of material fact, the facts as set forth in the defendants' Rule 7.1 Statement (Dkt. No. 51) and affidavit (Dkt. No. 52) are accepted as true. Adirondack Cycle & Marine, Inc. v. American Honda Motor Co., Inc., No. 00-CV-1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F. Supp. 252, 256 (W.D.N.Y. 1997)).
B. Mehlenbacher's Allegations
Mehlenbacher alleges that while he was incarcerated at the Bare Hill Correctional Facility in March of 1999, he sought care for a sore neck. Mehlenbacher I, Dkt. No. 1. Mehlenbacher alleges he was given medicine that did not alleviate his pain, and that he was to see a specialist, but that consultation never occurred. Id. Although he alleges in all three complaints that he was assaulted by guards, the most detail in support of that claim is contained in the complaint in Mehlenbacher II. He alleges that the guards at Bare Hill beat him on his back and neck "in the box". Mehlenbacher II, Dkt. No. 1. Mehlenbacher further alleges that the guards spit and urinated into his food and drink.*fn2 Id. Finally, he alleges that he was placed on the top bunk at Bare Hill and Upstate Correctional Facility, and such placement aggravated his neck pain. Id.; Mehlenbacher III, Dkt. No. 1.
C. Exhaustion of Administrative Remedies
Before addressing the substance of Mehlenbacher's claims, the court must first consider whether he properly exhausted his administrative remedies. The Prison Litigation Reform Act of 1995 ("PLRA") provides that: No action shall be brought with respect to prison conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other ...
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