The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On May 30, 2003, the parties to this action consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 65), filed January 19, 2005.
Plaintiff Francisco Ramos ("Plaintiff"), commenced this civil rights action pro se on April 26, 2001, while incarcerated at Southport Correctional Facility ("Southport" or "the facility"), alleging 11 violations of his Eighth Amendment rights when Defendants, employees of the New York State Department of Correctional Services ("DOCS"), subjected him to excessive force and inadequate medical attention. In an order filed August 27, 2001, Chief District Judge Richard J. Arcara dismissed the action as against Defendants Dove, Goord and McGinnis for lack of personal involvement in the alleged unlawful actions against Plaintiff.*fn1 The court's March 5, 2002 Scheduling Order (Doc. No. 27), established November 29, 2002 as the deadline for discovery, with motions to compel discovery to be filed by December 13, 2002.
Defendants initially moved for summary judgment on February 28, 2003 (Doc. No. 41), seeking dismissal of all claims based on a failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). In a Decision and Order filed December 6, 2004 ("December 6, 2004 Decision and Order) (Doc. No. 63), summary judgment was granted in favor of Defendants with regard to Plaintiff's claims pertaining to a restricted diet and fabricated misbehavior reports and such claims (Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Causes) were dismissed.*fn2 The undersigned also established January 20, 2005 as the deadline for Defendants to move for summary judgment on the merits of Plaintiff's remaining claims, December 6, 2004 Decision and Order at 15, in which Plaintiff specifically alleges that Defendants Lieutenant Richard Donahue ("Donahue"), and Correctional Officers Courtney Bennett ("Bennett"), and Donald McIntosh ("McIntosh"), assaulted Plaintiff on February 27, 2001 at the conclusion of a disciplinary hearing. (First, Second, Third Causes of Action), and further claims that, following such assault, Defendants Dr. John Alves ("Dr. Alves"), Registered Nurse Bernard Wojnarek ("Wojnarek"), and Sergeant Jodi Litwiler ("Litwiler") intentionally failed to obtain and provide medical treatment for the injuries Plaintiff sustained during the assault. (Eleventh Cause of Action).
On January 19, 2005, Defendants filed the instant motion seeking summary judgment on the merits of the remaining claims, i.e., the First, Second and Third Causes of Action. Defendants' Motion (Doc. No. 65). Also filed on January 19, 2005, in support of Defendants' Motion, are Defendants' Statement of Undisputed Facts (Doc. No. 66) ("Defendants' Undisputed Facts Statement), the Declarations of Richard Donahue ("Donahue Declaration") (Doc. No. 67), with attached exhibits A through C ("Donahue Declaration Exh(s). __"), Donald McIntosh ("McIntosh Declaration") (Doc. No. 68), Courtney Bennett ("Bennet Declaration") (Doc. No. 69), Thomas Mulhern (Doc. No. 70) ("Mulhern Declaration"), with attached exhibits A and B ("Mulhern Declaration Exh(s). __"), Dr. John Alves ("Dr. Alves Declaration") (Doc. No. 71), with attached exhibits ("Dr. Alves Declaration Exh(s). __"), Bernard Wojnarek, R.N. ("Wojnarek Declaration") (Doc. No. 72), and Jodi Litwiler ("Litwiler Declaration") (Doc. No. 73), together with a Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defendants' Memorandum") (Doc. No. 74). By Order filed January 21, 2005 (January 21, 2005 Order) (Doc. No. 75), Plaintiff's response to Defendants' motion was to be filed by February 28, 2005, with any reply filed by March 18, 2005. Plaintiff, however, never responded in opposition to summary judgment.
Rather, on February 2, 2005, Plaintiff filed a motion ("Plaintiff's Motion") (Doc. No. 76), supported by the attached affidavit of Plaintiff ("Plaintiff's Affidavit") seeking to amend the March 5, 2002 Scheduling Order to permit Plaintiff to take discovery of Defendants, explaining that his legal papers were intentionally misplaced by "some of the defendants co-workers and perhaps even one of the defendants himself . . . ," yet admitting that Plaintiff had not previously conduct any discovery within the time-frame established by the March 5, 2002 Scheduling Order. Plaintiff's Affidavit ¶ 2. On February 15, 2005, Defendants filed the Declaration of Assistant Attorney General Michael A. Siragusa in Response to Plaintiff's Motion to Amend the Scheduling Order (Doc. No. 78) ("Siragusa Declaration"), opposing Plaintiff's motion, arguing Plaintiff had sufficient time to complete discovery, one summary judgment motion had already been decided and another was pending, and Plaintiff offered no reasonable explanation as to why he chose not to engage in discovery in the four years that had elapsed since commencing the action. Siragusa Declaration ¶¶ 3-11. Defendants further objected to the additional delay that would result from the requested extension. Id. ¶ 13. On March 1, 2005, Plaintiff filed a reply affidavit in further support of the motion ("Plaintiff's Reply Affidavit") (Doc. No. 79), reiterating his desire to amend the March 5, 2002 Scheduling Order to permit Plaintiff an opportunity to conduct discovery, but without giving any reason for failing to conduct discovery to that point. By order filed March 18, 2005 ("March 18, 2005 Order") (Doc. No. 80), Plaintiff's motion was denied.
On March 28, 2005, Plaintiff moved for an extension of time in which to file objections to the March 18, 2005 Order (Doc. No. 81). By order filed June 16, 2005 (Doc. No. 82), the request was granted. Accordingly, on July 5, 2005, Plaintiff filed Objections to the March 18, 2005 Order ("Plaintiff's Objections") (Doc. No. 83).
Based on the following, Plaintiff's Objections, treated as a motion for reconsideration of the March 18, 2005 Order ("Reconsideration Motion") (Doc. No. 83), is DENIED; Defendants' motion seeking summary judgment (Doc. No. 65), is GRANTED.
On February 27, 2001, Plaintiff, then incarcerated at Southport, attended a Tier II disciplinary hearing in the hearing room conducted by Hearing Officer Donahue. It is undisputed that while Plaintiff, Donahue and McIntosh were in the hearing room, a struggle ensued after the hearing tape recorder had been turned off, although the circumstances regarding the struggle differ.
According to Plaintiff, in the middle of the hearing, Donahue turned off the tape recorder and asked Defendant C.O. McIntosh to "take this piece of shit [Plaintiff] out of here." Complaint ¶ 27. Plaintiff maintains that he was then assaulted by McIntosh and C.O. Bennett who stomped on Plaintiff's head, knocking Plaintiff unconscious. Id. ¶¶ 28 -35. According to Plaintiff, he awoke in his cell, completely naked with no one around, but that other inmates reported seeing Plaintiff laying in the shower for an hour, not moving, and that Defendant correctional officers returned to the shower, cut Plaintiff's clothing off of him, photographed plaintiff, and then carried Plaintiff, still nude, to his cell. Id. ¶¶ 36-39. After awakening in his cell, Plaintiff requested an emergency sick call for treatment of lower chest and head pain, a swollen left forehead, cut, swollen and bloody nose, numerous scratches and cuts on his left knee and right elbow, a "big cut over his enormously swollen left eye, eye sight damage and big bumps across his forehead," painful bruises below his left shoulder blade and spine, and severe chest pains, but Defendants failed to properly accommodate such request. Id. ¶¶ 40-42, 45-46.
Plaintiff alleges that despite repeated sick call requests, he never received appropriate medical treatment for the injuries until and was forced to endure pain until the injuries healed without any treatment. Complaint ¶¶ 46-58. Plaintiff maintains he continues to suffer severe head, neck and spine pain as a result of ...