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September 4, 2003


The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

To the Hon. Richard M. Berman United States District Judge
Steven Gibbs, currently incarcerated at the Attica Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs and failure to protect in violation of the Eighth Amendment while he was an inmate at Green Haven Correctional Facility ("Green Haven"). The suit names as defendants Glenn S. Goord, Commissioner of the New York State Department of Correctional Services; Charles Greiner, Superintendent of Green Haven; "Thacker," Deputy Superintendent of Security; "Dashawetz," a nurse practitioner; Captain Totten; Sergeant Centanni; and Correctional Officers Huttle and Sarles (collectively "defendants"). Before the Court is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the motion should be granted.


A. Facts

Gibbs alleges that he was the victim of repeated sexual assaults and molestations while he was asleep or unconscious in his cell at Green Haven. See generally Complaint, filed June 14, Page 2 2002 ("Complaint").*fn1 In particular, he alleges that he was molested at some point during the early morning or afternoon hours of February 13, 14, 16, 23, 25 and March 1 and 5, 2002, which he determined to have occurred based on "soreness of anus and discharge from anus." Id. at 4; see also id. at 8. Although he was asleep or unconscious during each of the assaults — and thus is unable to state the exact time of the assaults or identify the perpetrators — Gibbs claims the molestations can be proven by the fact that when he awoke he experienced the physical symptoms described above and noticed that the "special locks" he had put on his cell door had been broken. See id. at 1, 4, 8.

In response to Gibbs' complaints about these events, Greiner, Thacker and Totten "denied these happenings" and Totten ignored Gibbs' request to be moved to a safer cell. Id. at 11; see Answer to Summary Judgment, undated ("Pl. Opp."), Ex. C(1). Gibbs has offered the following specifics regarding his claim that he was repeatedly raped while sleeping.

a. February 16, 2002. Gibbs took a nap between 8:00 a.m. and 10:00 a.m. and awoke to find that he had symptoms of sexual abuse and that the cell door "had been opened." Complaint at 1. Gibbs told defendant Huttle of the incident and requested to see the sergeant. Id. When the sergeant came to Gibbs' cell, Gibbs told him of the incident. Id. Gibbs demanded that he be moved to a different cell but was told there were no other cells available. Id. Upon hearing this, Gibbs became "very upset" and knocked items off the desk in his cell, after which the sergeant asked him if he wanted to go to the Psychiatric Satellite Unit ("PSU"). Id. at 1-2. Gibbs told him Page 3 "I want out of this cell, yeh I want to go downstairs." Id. at 1. The sergeant left and later returned with a nurse and took Gibbs to the PSU. Id. at 2.

The next morning Gibbs was interviewed by a doctor and sergeant "John Doe." Id. at 3. Gibbs told them of the sexual assault but they "only expressed disbelief" and told him it was not possible that someone could enter his cell. Id. Gibbs spent seven days in the PSU but was not given a medical exam or treatment. Id.

b. March 2, 2002. In the morning of March 2, 2002, Gibbs told defendant Sarles that he wanted to speak with a sergeant. Id. at 5. Sarles purportedly told Gibbs that he would notify the sergeant but the sergeant never came to Gibbs' cell. Id. Later that morning Gibbs spoke with Sarles a second time and requested an emergency sick call, claiming that he had again been the victim of an assault. Id. at 6. Sarles allegedly made "a joke of the situation" and was skeptical of Gibbs' claims due to the fact that Gibbs had recently been moved to a new cell. See id. Gibbs repeated his demand for immediate medical attention but Sarles "stood there shaking his head." Id. Sarles eventually told Gibbs that he would tell the nurse and left. Id.

Later that day defendant Centanni walked by Gibbs' cell. Id. at 7. Gibbs told him of the sexual assaults and again requested medical attention. Id. Centanni became "nervous" and "tried to change the subject." Id. Centanni then acted as if he had received a call on his radio and left Gibbs. Id. No medical staff came to Gibbs that day in response to either of his requests. Id. at 6-7.

c. March 6, 2002. Gibbs awoke on the morning of March 6, 2002 with a "sore[] anus" and an unspecified "discharge." Id. at 8. He told defendant Dashawetz of the assault when the nurse made his morning rounds in the Special Housing Unit ("SHU"). Id. Dashawetz asked him Page 4 when the assault had occurred but Gibbs told him he did not know because he had been unconscious. Id. Gibbs requested medical treatment and an exam and asked to be admitted to the hospital. Id. at 9. While expressing incredulity that someone could be raped and not know when the rape occurred, Dashawetz told Gibbs that he would have to notify the sergeant and the correctional officers; he then left. Id. at 8, 9. When no one came to take Gibbs to the hospital by the afternoon he "suspected [that he] was being ignored." Id. at 9. He saw Sarles several times during the day and requested medical attention each time. Id. Sarles told him on each occasion that the sergeant would be notified. Id.

Gibbs eventually spoke with the sergeant in the afternoon. Id. at 10. The sergeant told him that he was not going to the hospital because the doctor had refused Gibbs' request. Id. When asked why the doctor had refused, the sergeant told Gibbs that they had spoken with individuals at the PSU and other officials and decided that medical attention and an examination were not necessary. Id.

Gibbs' response to the summary judgment motion contains other facts relevant to his claim. While he appears to concede that there were no eyewitnesses to the sexual assaults, see Pl. Opp. at 6, Gibbs asserts that there are two individuals who "have knowledge of such incidents." Id. He does not provide the affidavits of these witnesses, however.

Gibbs also states that he "made exactly [the] same allegations at Elmira Correctional facility" and "was in the process of filing a lawsuit against that facility" but was transferred and lost the papers relevant to the suit. Id. at 7. He states that he made a complaint on October 11, 1999 relating to a sexual assault and was taken to Champlain Valley Hospital where a doctor told him that no blood or semen had been found. Id. Page 5

The defendants have asserted additional relevant facts, only a few of which have been disputed by Gibbs through the introduction of any competent evidence. See Defendants' Rule 56.1 Statement, dated January 22, 2003 ("Def. 56.1 Statement") (annexed to Notice of Motion for Summary Judgment, dated January 22, 2003). As an initial matter, the defendants have asserted without contradiction that Gibbs not only made allegations that he had been raped while unconscious at the Elmira Correctional ...

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