The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Kenneth Shuler, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, who at the time the complaint was filed was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has two defendants, Thomas Edwards and Mary Heltz, who at all relevant times were a physician's assistant and a nurse employed by DOCS, alleging that his constitutional rights were violated in connection with his treatment for a fractured fibula in November 2002, while plaintiff was confined at Attica Correctional Facility.*fn1
Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted.
I. Plaintiff's Failure to Respond to the Summary Judgment Motion
Rule 56(e) of the Federal Rules of Civil Procedure provides that: When 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).
In the instant case, defendants' notice of motion (Dkt. #18) gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. The notice of motion states, in part, that "THE CLAIMS PLAINTIFF ASSERTS IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e)," that "[i]f plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true," that [j]udgment may then be entered in defendant's favor without a trial," and that if plaintiff fails to submit a statement of material facts that he contends are in dispute, "all material facts set forth in defendants' Local Rule 56 Statement will be deemed admitted. If summary judgment is entered against you, your case against the moving parties will be dismissed."
This Court's scheduling order (Dkt. #23), which gave plaintiff until July 21, 2006 to respond to defendants' motion, and the "Irby" notice (Dkt. #24) issued on June 23, 2006, contain similar language apprising plaintiff of the necessity of responding to the motion and the consequences of not doing so. In addition, on September 11, 2006, the Court granted plaintiff's request, made by letter dated July 17, 2006, for additional time to respond to defendants' motion. The Court gave plaintiff until November 1, 2006, to file a respond, adding that "[n]o further request will be granted." Dkt. #25.
The mere fact that plaintiff has failed to respond to defendant's motion, however, does not mean that summary judgment should be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Rather, summary judgment may be granted as long as plaintiff has received notice that failure to file an opposition may result in dismissal of his case and the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law." Champion, 76 F.3d at 486 (quoting Fed. R. Civ. P. 56(c)). See, e.g., Strine v. Sodus Cent. School Dist., 403 F.Supp.2d 279, 280 (W.D.N.Y. 2005).
Here, plaintiff has been given more than adequate notice of the nature of a summary judgment motion and the consequences of his failure to respond to the motion. In spite of that, he has not responded to defendants' motion. Therefore, the Court will not simply grant defendants' motion automatically, but will accept the truth of defendants' factual allegations, and determine whether defendants are entitled to summary judgment.
The complaint alleges that on November 11, 2002, plaintiff slipped and fell in his cell, injuring his left ankle. He was taken to the Attica emergency room, where he was seen by Nurse Heltz. Heltz immobilized the joint with a splint, gave plaintiff a pair of crutches and some ibuprofen, and instructed him not to put any weight on his left leg, and to keep the leg elevated as much as possible. She also gave him a pass to return the next day for x-rays and further evaluation. Defendants' Rule 56 Statement (Dkt. #19) ¶ 4; Complaint § IV.
Plaintiff did return for x-rays the following day, where he was examined by P.A. Edwards. An x-ray revealed a fractured fibula with widening of the ankle mortise. Dkt. #19 ¶ 5; Edwards Decl. (Dkt. #20) ¶ 7; Complaint § IV. Edwards entered an orthopedic consult, and told plaintiff ...