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Ortiz-Rodriguez v. New York State Dep't of Correctional Services

June 13, 2007

LUIS ORTIZ-RODRIGUEZ, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, Luis Ortiz-Rodriguez ("Rodriguez"), appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, who at the time this action was commenced, was an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that defendants Dr. Joseph Tan, MD and Superintendent James Berbary, who were at all relevant times employed by DOCS, violated his constitutional rights in connection with plaintiff's medical care and treatment in 2005, while plaintiff was incarcerated at Collins Correctional Facility.

Defendants have moved for summary judgment (Dkt.#22). 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 denial 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 of 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, by their notice of motion (Dkt. #13), and Court, by its scheduling order (Dkt. #17), attempted to give plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion of summary judgment. The notice of motion states, in part, that: "If 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. Judgment may then be entered in defendant's favor without a trial."

Likewise, the scheduling order (Dkt. #17) states, in part, that: "If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendants, the Court may accept defendants' factual assertions as true. Judgment may then be entered in defendants' favor without a trial."

Clearly, the scheduling order and notice of motion would have provided plaintiff with adequate notice of his obligation to respond to the defendants' motion, but it appears that, as a result of plaintiff's own failure to keep the Court and defendants apprised of his current mailing address, plaintiff never received either of them.

Defendants' notice of motion (Dkt. #13) was filed, and the scheduling order (Dkt. #17) was issued, on February 15 and 16, 2007 respectively. According to the DOCS internet inmate lookup service, http://nysdocslookup.docs.state.ny.us, plaintiff was released on January 17, 2007. Plaintiff never provided the Court with an updated, post-release mailing address, however, and the scheduling order, which was mailed to Collins Correctional Facility, was returned as undeliverable.

Parties appearing pro se are required to furnish the Court with a current address at all times pursuant to rule 5.2(d) of the Local Rules of Civil Procedure for the Western District of New York. Due only to plaintiff's noncompliance with Local Rule 5.2(d) has he failed to receive notice of the consequences of failing to respond to the motion. Accordingly, the Court will accept the truth of defendants' factual allegations, and determine whether defendants are entitled to summary judgment.

II. Defendants' Motion for Summary Judgment

A. Claim Against Dr. Tan

Plaintiff alleges that Dr. Tan violated his Eighth Amendment rights by intentionally denying him medical treatment for his arthritis, ulcers and hepatitis. ...


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