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May 18, 2005.


The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge



The parties to this action consented to proceed before the undersigned on November 13, 2002. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 143), filed November 8, 2002. BACKGROUND

  Petitioner commenced this action on August 27, 1991, seeking relief pursuant to 42 U.S.C. § 1983, alleging deprivation of due process in connection with a prison disciplinary proceeding at Auburn Correctional Facility ("Auburn") and Eighth Amendment violations based on prison conditions in the Special Housing Unit ("SHU") at Attica Correctional Facility ("Attica") where Petitioner, after being found guilty in the challenged disciplinary proceedings, was confined for one year. The original Defendants to this action included New York State Department of Correctional Services ("DOCS") Commissioner Thomas A. Coughlin, III ("Coughlin"), SHU Program Director Donald Selsky ("Selsky"), and Attica Correctional Hearing Officers Lt. Grant ("Grant"), and LeBaron ("LeBaron"), who filed answers to the Complaint on October 22, 1991. On December 19, 1991, the parties consented to proceed before the undersigned for all purposes, including the entry of judgment, and that any appeal from the undersigned's ruling would be taken to the District Judge, as was then authorized under 28 U.S.C. § 636(c)(4).

  On January 22, 1992, Plaintiff filed an Amended Complaint (Doc. No. 21) ("Amended Complaint"), with leave of the court, adding as Defendants Auburn Superintendent Hans Walker ("Walker"), former Auburn First Deputy Superintendent Frank Irvin ("Irvin"), and Auburn Deputy Superintendent for Security Edward Dann ("Dann"). Answers to the Amended Complaint were filed on February 12, 1992 by Defendants Coughlin, Selsky, Grant and LeBaron, and on March 4, 1004 by Defendants Walker, Irvin and Dann. On September 14, 1992, Defendants Coughlin, Selsky, Grant and LeBaron filed amended answers to the Amended Complaint. On November 16, 1992, following the conclusion of discovery, Plaintiff filed a motion for partial summary judgment as to the liability of Defendants Selsky, LeBaron and Grant. On March 8, 1993, Defendants filed a motion for summary judgment to dismiss the Amended Complaint as to all Defendants as a matter of law. On August 12, 1994, the undersigned denied Plaintiff's motion for partial summary judgment and granted summary judgment in favor of Defendants. August 12, 1994 Order (Doc. No. 115). Judgment in favor of Defendants was entered on August 17, 1994 and the file was closed. On August 30, 1994, Plaintiff erroneously filed an appeal with the Second Circuit Court of Appeals which, on February 21, 1995, remanded the matter to District Judge Larimer who, at that time, had jurisdiction pursuant to 28 U.S.C. § 636(c)(4). The file was reopened on April 5, 1995 and, in a Decision and Order filed on October 5, 1998 (Doc. No. 126), Judge Larimer affirmed the August 12, 1994 Order, and the file was closed on October 19, 1998.

  On October 30, 1998, Plaintiff filed an appeal with the Second Circuit which, on May 7, 2001, affirmed the District Court on all grounds, with the exception of the Second Cause of Action asserting Eighth Amendment prison conditions claims against Defendants Grant and LeBaron, which were remanded for further proceedings. Gaston v. Coughlin, 249 F.3d 156, 166-67 (2d Cir. 2001). The file was accordingly reopened on June 15, 2001.

  On November 8, 2002, Defendants filed a motion for summary judgment directed at Plaintiff's Eighth Amendment claim (Doc. No. 143). Filed on November 8, 2002 in support of the motion were "Defendants' Memorandum of Law in Support of Motion for Summary Judgment" (Doc. No. 144) ("Defendants' Memorandum"), the Declarations of Assistant Attorney General Michael Russo ("Russo") (Doc. No. 145) ("Russo Declaration"); Grant (Doc. No. 146) ("Grant Declaration"), LeBaron (Doc. No. 148) ("LeBaron Declaration"), and Marco Hume ("Hume") (Doc. No. 149) ("Hume Declaration"), and "Defendants' Statement of Undisputed Material Facts" (Doc. No. 147) ("Defendants' Undisputed Facts Statement). Plaintiff, in opposition to summary judgment, filed on February 23, 2002, the Affidavit of Kenneth Gaston (Doc. No. 152) ("Gaston Affidavit"), a "Rule 56 Counterstatement of Facts" (Doc. No. 153) ("Plaintiff's Disputed Facts Statement"), "Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment" (Doc. No. 154) ("Plaintiff's Memorandum"), and the Declaration of Tim O'Neal Lorah, Esq.*fn1 (Doc. No. 155) ("Lorah Declaration"). On January 24, 2003, Defendants filed in further support of the summary judgment motion "Defendants' Reply Memorandum of Law in Support of Motion for Summary Judgment" (Doc. No. 157) ("Defendants' Reply"), the Reply Declaration of LeRoy Grant (Doc. No. 158) ("Grant Reply Declaration"), and the Reply Declaration of Donald LeBaron (Doc. No. 159) ("LeBaron Reply Declaration"). Oral argument was deemed unnecessary.

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

  FACTS*fn2 In May 1990, Plaintiff Kenneth Gaston ("Gaston"), while incarcerated at Auburn Correctional Facility ("Auburn"), served as vice president of Auburn's Inmate Liaison Committee ("ILC"). On May 19, 1990, a group of inmates staged a food strike at Auburn. Auburn First Deputy Superintendent Frank Irvin ("Irvin"), and Deputy Superintendent for Security Edward Dann ("Dann") met with ILC members, including Gaston, regarding the incident and Gaston stated that he was in his cell during the food strike and did not participate in the food strike. A confidential informant later reported to Dann that Gaston had organized the food strike and Dann, based on that information, on May 21, 1990, prepared a misbehavior report charging Gaston with violating DOCS Rule 104.12, prohibiting inmates from participating in activities which threaten a prison facility's order. As a result of the disciplinary charges, Gaston, on May 21, 1990, was transferred to Attica where he was placed in cell 23 on the second floor of the B-West Gallery in Attica's SHU, located in Attica's Reception Building. Following a disciplinary hearing at Attica, Gaston, on August 31, 1990, was found guilty as charged and was sentenced to confinement in SHU for two years.*fn3 Gaston filed an administrative appeal and, on November 2, 1990, the guilty disposition was affirmed, but his term of SHU confinement was reduced to one year.

  Gaston maintains that the conditions of his confinement in SHU at Attica were inhumane and violated his Eighth Amendment right to be free from cruel and unusual punishment. In particular, Gaston alleges that numerous broken windows in his cellblock were not repaired for the entire winter season of 1990-1991, when the outside temperatures were "freezing and sub-zero," that he was subjected for a prolonged period of time to freezing temperatures requiring Gaston to wear all of the clothing issued to him at all times, including while he slept, that mice were continually entering his cell and that for several days during July 1990, the area in front of his cell was filled with human feces, urine and sewage water. Amended Complaint ¶¶ 63-72. Gaston claims that he filed a grievance regarding the broken windows, to no avail, and that his complaints to DOCS sergeants assigned to his cellblock about the unsanitary conditions were ignored. Amended Complaint ¶¶ 67, 70.


  1. Summary Judgment

  Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The court is required to construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 58, 593 (2d Cir. 1999) (citing Anderson, supra, at 255). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, at 322; see Anderson, supra, at 247-48 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). In assessing a record to determine whether there is genuine issue of material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).

  "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule [FRCP 56],' and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, supra, at 323-24 (1986) (quoting Fed.R.Civ.P. 56). Thus, "as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).

  Although a summary judgment motion may be made with or without supporting affidavits, if affidavits are submitted, they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(a). Rule 56 further provides that
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e).

  "However, if the motion for summary judgment is not made and supported as provided in Rule 56, the Rule does not impose on the party opposing summary judgment an obligation to come forward with affidavits or other admissible evidence of his own." St. Pierre v. Dyer, 208 F.3d 304, 404 (2d Cir. 2000) (reversing granting of summary judgment in favor of defendant because defendant failed to allege factual basis for assertions contained in defendant's affidavit such that plaintiff, as the party opposing summary judgment, was not required to adduce evidence to defeat summary judgment and the "self-serving" nature of plaintiff's affidavit statements went to the weight of the statements, rather than to their admissibility).

  As discussed, Background, supra, at 3, this case was remanded from the Second Circuit for further proceedings only with regard to the Second Cause of Action alleging Defendants Grant and LeBaron violated Gaston's Eighth Amendment right prohibiting cruel and unusual punishment. Most of Gaston's allegations concerning Defendants Grant and LeBaron pertain to their participation in Gaston's Tier III disciplinary hearings conducted with regard to the prison disciplinary charges brought against Gaston following the food strike at Auburn. Gaston specifically alleged that Grant and LeBaron violated Gaston's due process rights during the disciplinary hearings by relying on the confidential informant's hearsay statements without independently assessing the informant's credibility. Amended Complaint ¶¶ 31-36, 42-47, 54-59. Summary judgment on the due process claims, however, was granted in favor of all Defendants, including Grant and LeBaron. Gaston, supra, at 163-64. Gaston's sole Eighth Amendment claim against Defendants Grant and LeBaron therefore is that as a result of Grant's and LeBaron's dispositions concerning the disciplinary proceedings, Gaston was forced to endure treatment and unsanitary conditions while confined to SHU in Attica in violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Amended Complaint, Second Cause of Action ¶ 85 (referencing Amended Complaint ¶¶ 63-77).

  With regard to Gaston's Eighth Amendment claim, the only factual allegation pleaded in the Amended Complaint against Grant and LeBaron states in its entirety: "[t]hroughout the time that plaintiff was confined to SHU pursuant to the dispositions of defendants LeBaron and Grant, he was subjected to intense mental anguish and excruciating emotional and psychological pain caused by conditions existing in SHU at that time."*fn4 Amended Complaint ¶ 64. Despite the dearth of factual allegations connecting Grant and LeBaron to the alleged substandard conditions in SHU, the Second Circuit remanded the matter for further proceedings, citing Gaston's assertion in his memorandum of law opposing Defendant's earlier summary judgment motion, that Grant and LeBaron had "`actual knowledge of the events that occurred in Attica's SHU because they made daily rounds and were directly responsible for placing plaintiff in [the] inhumane conditions,'" and neither Grant nor LeBaron had submitted an affidavit or other sworn evidence denying knowledge of, responsibility for, or involvement in the alleged inhumane conditions in Attica's SHU.*fn5 Gaston, supra, at 165-66 (quoting Gaston Memorandum of Law dated April 16, 1993 (Doc. No. 110), at 26).

  Defendants move for summary judgment seeking to dismiss the Eighth Amendment claims on the basis that Gaston has failed to allege, or to submit admissible evidence, that either Grant or LeBaron was personally involved in any of the conditions which allegedly violated Gaston's Eighth Amendment rights, Defendants' Memorandum at 2, and, alternatively, that none of Grant's or LeBaron's actions violated Gaston's rights under the Eighth Amendment, Defendants' Memorandum at 10. Gaston argues in opposition to summary judgment that triable issues of fact preclude granting Defendants' summary judgment motion. Plaintiff's Memorandum at 2. Specifically, Gaston points to factual issues pertaining to the broken windows and low temperature in his cell, Plaintiff's Memorandum at 4-17, and the unsanitary condition outside his cell while confined to SHU, Plaintiff's Memorandum at 17-25. Defendants argue ...

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