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Snyder v. McGinnis

November 2, 2007

WILLIAM A. SNYDER, PLAINTIFF,
v.
SUPERINTENDENT M. MCGINNIS, CAPTAIN W. WILCOX, DEPUTY SUPERINTENDENT (CONSENT) T.H. GILTNEA, LT. DONAHUE, DEPUTY SUPERINTENDENT WEINGARTNER, LT. HAZELTEN, LT. STRONG, SGT. CUTLER, SGT. HETRICK, SGT. INMAN, SGT. LITWILER, SGT. MANOS, SGT. SEPIO, SGT. OSBORN, SGT. JOHN DOE 1, C.O. BRISTOL, C.O. COLLINS, C.O. KAMAS, C.O. SHELLY, I.G.R.C. REP. W. CIANCIO, PSYCHOLOGIST B. VERTOSKE, AND RN DYAL, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

On March 10, 2005, the parties to this action consented to proceed before the undersigned. The matter is presently before the court on Defendants' motion for partial summary judgment (Doc. No. 33), filed November 30, 2005.

BACKGROUND

On December 1, 2003, Plaintiff William A. Snyder ("Plaintiff" or "Snyder"), an inmate formerly housed at Southport Correctional Facility ("Southport" or "the correctional facility"), commenced this civil action pro se, pursuant to 42 U.S.C. § 1983, alleging numerous violations of his Eighth Amendment rights civil rights by numerous Defendants, all Southport employees, including both supervisory and non-supervisory personnel, based on a failure to protect Plaintiff from another inmate, denial of medical care, and retaliation. By order filed March 18, 2004 (Doc. No. 4), all claims against several Defendants named in the original complaint, including T. H. Giltnea, Deputy Superintendent Weingartner, Sgt. Hetrick, Sgt. Inman, Sgt. Litwiler, Sgt. Manos, Sgt. Sepio, Sgt. John Doe 1, and RN Dyal were dismissed and such Defendants were terminated as parties to this action. An Amended Complaint was filed on April 12, 2004, against Defendants Superintendent M. McGinnis ("McGinnis"), Captain W. Wilcox ("Wilcox"), Lt. Donahue ("Donahue"), Lt. Hazelten ("Hazelten"), Lt. Strong ("Strong"), Sgt. Cutler ("Cutler"), Sgt. Osborn ("Osborn"), C.O. Bristol ("Bristol"), C.O. Collins ("Collins"), C.O. Kamas ("Kamas"), C.O. Shelly ("Shelly"), I.G.R.C. Rep. W. Ciancio ("Ciancio"), and Psychologist B. Vertoske ("Vertoske"). By Decision and Order filed September 2, 2004 (Doc. No. 6), all claims were dismissed as against Defendants Strong, Vertoske, Wilcox, Donahue, and Hazelton. The claims remaining in this action allege:

(1) on January 10, 2002, Defendant Osborne, at the behest of Defendant McGinnis, issued a misbehavior report to retaliate against Plaintiff for exercising his constitution right to file an inmate grievance ("Claim 1");

(2) on April 1, 2002, Defendant Collins issued a misbehavior report to retaliation against Plaintiff for filing an inmate grievance ("Claim 2");

(3) Defendants McGinnis and Ciancio failed to protect Plaintiff from being cut by another inmate, Lawrence, on January 4, 2002 ("Claim 3");

(4) Defendants Collins and Bristol used excessive force against Plaintiff on February 22, 2002 ("Claim 4");

(5) Defendants Collins and Bristol used excessive force against Plaintiff on April 1, 2002 ("Claim 5");

(6) deliberate indifference by Defendants Cutler, Collins, and Kamas with regard to Plaintiff's serious medical needs by ignoring Plaintiff's request for medical attention after the February 22, 2002 excessive force incident ("Claim 6");

(7) retaliation by Defendants McGinnis and Osborne who filed a false misbehavior report against Plaintiff on January 4, 2002 ("Claim 7");

(8) retaliation by Defendants McGinnis and Ciancio by failing to protect Plaintiff from inmate Lawrence on January 4, 2002 ("Claim 8");

(9) use of excessive force by Defendants Collins and Shelly on February 22, 2002, and by Defendants Collins and Bristol on April 1, 2002, to retaliate against Plaintiff ("Claim 9"); and

(10) denial of medical care on February 22, 2002, by Defendants Cutler and Collins to retaliate against Plaintiff ("Claim 10").*fn1

On November 30, 20005, Defendants filed a motion seeking partial summary judgment as to above Claims 1, 3, 6, 7, 8, and 10 (Doc. No. 33) ("Defendants' Motion"), which, essentially, allege Defendants retaliated against Plaintiff for filing inmate grievances against Defendants by issuing false misbehavior reports against Plaintiff, failing to protect Plaintiff from other inmates, and acting with deliberate indifference to Plaintiff's various asserted serious medical needs.*fn2 Also filed on November 30, 2005 in support of Defendants' motion are a Memorandum of Law (Doc. No. 34) ("Defendants' Memorandum"), a Statement of Facts Not in Dispute (Doc. No. 35) ("Defendants' Statement of Facts"), the Declaration of Assistant Attorney General Stephen Gawlik ("Gawlik") (Doc. No. 36) ("Gawlik Declaration"), attached to which as Exhibit A are portions of Plaintiff's deposition testimony ("Plaintiff's Dep. Tr. at __"), the Declaration of Michael McGinnis ("McGinnis") (Doc. No. 37) ("McGinnis Declaration") with attached exhibits A and B ("McGinnis Declaration Exh(s). __"), and the Declaration of John Osborne ("Osborne") (Doc. No. 38) ("Osborne Declaration") with attached exhibits A through D ("Osborne Declaration Exh(s). __").

In light of Plaintiff's pro se status, on December 2, 2005, a notice to Plaintiff pursuant to Local Rule of Civil Procedures 56.2 and Irby v. New York City Transit Authority, 262 F.3d 412, 413 (2d Cir. 2001) (Doc. No. 39) ("IRBY notice"), was mailed to Plaintiff, and was not returned as undeliverable. The IRBY notice advised Plaintiff that Defendants had moved for the court to decide some of Plaintiff's claims against Plaintiff, without a trial and based only on written materials submitted in support of the motion. The IRBY notice further advised Plaintiff that to avoid summary judgment being granted in Defendants' favor, it was necessary to file papers, including sworn affidavits, establishing the existence of a material issue of fact, and that any material issue of undisputed fact set forth in Defendants' Statement of Facts would be deemed admitted if not controverted by Plaintiff.

A December 2, 2005 Order (Doc. No. 40) established January 31, 2006 as Plaintiff's deadline for filing a response opposing Defendants' motion, and February 17, 2006 as Defendants' deadline for filing any reply in further support of the motion. To date, Plaintiff has not filed ...


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