The opinion of the court was delivered by: Siragusa, J.
Before the Court is Defendant's motion (Docket No. 23) for summary judgment. Defendant raises two bases for granting summary judgment against Plaintiff:
(1) failure to name a defendant eligible for suit pursuant to 42 U.S.C. § 1983 and the Eleventh Amendment; and (2) failure to state a cause of action for deprivation of his rights under the Eighth Amendment. For the reasons below, the Court grants defendant's application.
Plaintiff was incarcerated at Wende Correctional Facility ("Wende") from November 15, 2004, until December 1, 2005. He claims that in March 2005, he informed Dr. Levitt and Nurse Administrator Bella Aiello-Howe ("Aiello-Howe") that he needed new eyeglasses. In that regard, Defendant submitted Plaintiff's medical records which indicate that he lost his glasses in March 2004, that he had an eye exam on March 13, 2004 at Great Meadow Correctional Facility, and that he received a new pair of eyeglasses on March 26, 2004. Plaintiff's medical records also indicate that on July 22, 2004, he requested that his eyeglasses be repaired, that he had an ophthalmology consult on July 27, 2004, and his glasses were repaired on October 9, 2004. Defendant states that on April 18, 2005, Larry Rodriguez advised Aiello-Howe that he had lost his glasses and she directed that replacement glasses be ordered for him. In July 2005, Plaintiff asked for an ophthalmology consult, which he received on July 27, 2005. The parties agree that on September 19, 2005, Plaintiff received a new pair of glasses. Plaintiff claims he waited more than five months to receive them, and Defendant has shown that he waited from April 18 to September 19, 2005, a period of five months and two days. Thus, despite the specific details of the chronology of events, with Plaintiff asserting that he first complained in March, and Defendant countering that it was April, both parties agree that Plaintiff waited more than five months for new glasses.
On July 14, 2006, the Court appointed David R. Mowry, Esq., and John J. Field, Esq., to represent Plaintiff pro bono. On January 18, 2008, Kevin T. Saunders, Esq., entered his appearance on behalf of Plaintiff. The pending summary judgment motion was filed on July 20, 2007, by Defendant. Plaintiff filed a response in opposition on January 25, 2008, along with appears to be a pro se memorandum from Plaintiff, and Defendant replied on February 1, 2008. The Court has heard oral argument and now renders its decision.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
As indicated above, Defendant has moved for summary judgment on two grounds-failure of Plaintiff to name a defendant amenable to suit, and failure to set forth a cause of action.
State defendants are protected by the Eleventh Amendment from legal or equitable claims brought by private parties for alleged constitutional violations. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Yoonessi v. State University of New York, 862 F. Supp. 1005, 1012 (W.D.N.Y. 1994). "[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). For the purpose of the Eleventh Amendment analysis, it is irrelevant whether Plaintiff's claim is made against Defendants in their official capacities, DOCS, or the State of New York. Pietraszewski v. Buffalo State College, No. No. 97-CV-0129E(F), 1997 WL 436763, at *1 n. 2 (New York State is the real party in interest when a state college or university is sued).Therefore, Plaintiff's Eighth Amendment claim against Defendant is barred by the Eleventh Amendment. In response to the Eleventh Amendment ...