The opinion of the court was delivered by: William M. Skretny United States District Judge
In this action, pro se Plaintiff Michael S. Johnson alleges pursuant to 42 U.S.C. § 1983 that Defendants violated his Eighth Amendment rights by physically assaulting him and denying him adequate medical treatment while he was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). Presently before this Court is Defendants' unopposed Motion for Summary Judgment.*fn2 This Court has reviewed and considered Defendants' motion papers and finds that oral argument is unnecessary. For the following reasons, Defendants' motion is granted in its entirety.
Plaintiff's Complaint was transferred to this district from the Northern District of New York on May 1, 2003. Because Plaintiff was granted in forma pauperis status, his Complaint was screened pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). Two claims remain from Plaintiff's Complaint. First, Plaintiff alleges that Defendants Kachelmeyer, Buth, Pistner, Odachowski, Pritchard and Hirsch assaulted him in violation of his Eighth Amendment rights. Second, Plaintiff alleges that Defendants Laskowski, Takos, Magee, Edwards and Higley denied him medical treatment in violation of the Eighth Amendment.
Defendants filed the instant Motion for Summary Judgment on April 6, 2005. Accompanying the motion was the required IRBY notice, which warned Plaintiff that his failure to respond to the motion could result in dismissal of his case. See Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001)(per curiam). Plaintiff subsequently moved for an extension of time to file his response. This Court granted that request, explicitly warned Plaintiff that his failure to file a response could lead to Defendants' motion being granted, and sent Plaintiff another IRBY notice. This Court twice more extended Plaintiff's time to file a response sua sponte after Plaintiff failed to file his response as directed. Each time Plaintiff was warned of the consequences for his failure to act. To date, Plaintiff has not responded to Defendants' Motion for Summary Judgment.*fn3
"When a party has moved for summary judgment on the basis of asserted facts supported as required by Fed.R.Civ.P. 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). Here, despite two IRBY notices, four Scheduling Orders and five warnings of the consequences for his failure to respond, Plaintiff has filed nothing. Because Plaintiff has failed to file a response to Defendants' Motion for Summary Judgment, this Court assumes the truth of the following facts asserted by Defendants, all of which are supported in the record. See Local Rule 56.1(c) (statements of undisputed fact that are not controverted by the non-moving party are deemed admitted); Cassidy v. Nicolo, No. 03-CV-6603, 2005 WL 3334523, at *2 (W.D.N.Y. Dec. 7, 2005) (facts asserted by the defendants deemed admitted where Plaintiff failed to file a response).
1. Plaintiff's Assault Claim
a. Allegations in Plaintiff's Complaint
Plaintiff alleges that on or about May 2, 2001, he and another inmate were speaking in sexually explicit terms about Defendant Kachelmeyer, a female corrections officer who was patrolling the yard at the time. (Complaint, p. 8-9.) Plaintiff further alleges that a John Doe male corrections officer who was searching cells on the company overheard the conversation and said to Plaintiff, "I'll see to it that you pay for it later." (Complaint, p. 9.)
Five days later, on May 7, 2001, Plaintiff was allegedly isolated in a corridor by several corrections officers. (Complaint, p. 10.) Plaintiff was approached by Defendant Kachelmeyer, who referenced Plaintiff's prior derogatory comments and then allegedly struck Plaintiff with her hand on the left side of his face. (Complaint, p. 11.) Plaintiff alleges that he was then punched in the back of his head multiple times and kicked in the back by Defendants. (Complaint, p. 11.) Plaintiff contends that Defendants continued to beat him, and at one point Defendant Buth kicked him in the face while Plaintiff's hands were cuffed behind his back. (Complaint, p. 12.) Plaintiff alleges that Defendants Kachelmeyer, Odachowski, Pistner, Buth and Prichard all took part in the beating. (Complaint, p. 12.) Plaintiff further alleges that Defendant Hirsch was present during the assault, but did nothing to stop it. (Complaint, p. 12.) Plaintiff alleges that after the assault, he was further threatened by Defendants and placed in the Special Housing Unit ("SHU"). (Complaint, p. 12.)
b. Defendants' Undisputed Facts
The grievance process is started when an inmate files a grievance with the Grievance Clerk at the inmate's facility. (Defendants' Statement of Undisputed Facts ("Defendants' Statement"), ¶ 10.) The grievance must generally be filed within 14 calendar days of the alleged occurrence. (Defendants' Statement, ¶ 11.) After the grievance is filed, the Inmate Grievance Review Committee ("IGRC") reviews the grievance and resolves it or prepares a recommended resolution. (Defendants' Statement, ¶ 12.)
If the inmate does not agree with the IGRC's resolution of his grievance, he can appeal to the Superintendent, and from there, to the Central Office Review Committee ("CORC"). (Defendants' Statement, ¶ 14.) Appeals must be filed with the Grievance Clerk within 4 working days after receipt of the written decision. (Defendants' Statement, ¶ 15.)
Inmates may file grievances for any allegations of harassment or employee misconduct meant to annoy, intimidate or harm an inmate, such as assault. (Defendants' Statement, ¶ 16.) On July 30, 2001, Plaintiff filed a grievance under grievance number 21573-01, alleging that he had been assaulted by staff on May 2, 2001. (Defendants' Statement, ¶ 22.) Plaintiff's grievance was dismissed by the Superintendent as untimely. (Defendants' Statement, ¶ 23.)
2. Plaintiff's Inadequate Medical Treatment Claim
a. Allegations in Plaintiff's Complaint
Plaintiff alleges that he was injured as a result of being beaten by Defendants. (Complaint. p. 12-13.) Specifically, Plaintiff asserts that the day after the beating, May 8, 2001, his whole body hurt, especially his left leg and foot, which had been twisted badly by Defendants. (Complaint, p. 13.) He alleges that he had multiple lacerations, abrasions and contusions on his face that were swollen. (Complaint, p. 13.) He further contends that his head and back hurt. (Complaint, p. 13.) Plaintiff alleges that he requested a sick call and brought his injuries to the attention of Defendants Laskowski, Takos, Magee, Edwards and Higly, but they did not provide him treatment. (Complaint, p. 13.)
b. Defendants' Undisputed Facts
Defendants Laskowski and Takos were employed by the DOCS as medical doctors. (Defendants' Statement, ¶ 7.) Defendants Edwards and Magee were employed by the DOCS as physician's assistants. (Defendants' Statement, ¶ 8.) Defendant Higley was employed as a nurse. (Defendants' Statement, ¶ 9.)
According to prison records, Plaintiff was admitted to SHU on May 7, 2001, after a use of force incident. (Defendants' Statement, ¶ 24.) He was seen that day by Nurse Stewart,*fn4 who found that Plaintiff had three visible contusions and noted that Plaintiff limped on his left side. (Defendants' Statement, ¶¶ 25, 27.) Plaintiff also complained of decreased range of motion in his left arm, pain in his left ankle and numbness in his left ribs and side. (Defendants' Statement, ¶ 26.) Nurse Stewart gave Plaintiff 10 packets of Tylenol for pain and scheduled Plaintiff for a follow-up visit. (Defendants' Statement, ¶ 27.)
Plaintiff was next seen two days later by Defendant Magee on May 9, 2001. (Defendants' Statement, ¶ 28.) At that time, Plaintiff complained of a sore back. (Defendants' Statement, ¶ 29.) Defendant Magee noted the existence of contusions, but found that Plaintiff was in no acute distress and was pacing the cell normally. (Defendants' Statement, ¶¶ 29, 30.) Defendant Magee ...