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Parker v. Peek-Co

December 29, 2008

MICHAEL PARKER, PLAINTIFF,
v.
PEEK-CO, CORRECTIONS OFFICER, COXSACKIE CORRECTIONAL FACILITY, DEFENDANT.



The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Michael Parker, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983 alleging deprivation of his civil rights. In his complaint, inter alia, plaintiff alleges that Corrections Officer Peek-co, the sole remaining defendant in the action, unlawfully placed him in keeplock confinement for one day and denied him two meals in the process, and on a separate occasion permitted another inmate to attack Parker, thereby failing to satisfy his constitutional obligation to protect the plaintiff from harm.*fn1 To remedy the violations, plaintiff's complaint seeks a variety of relief including an award of compensatory damages and an order directing that he be transferred to another prison facility.

Currently pending before the court is a motion by the defendant seeking the entry of summary judgment dismissing plaintiff's complaint. In his motion, defendant asserts that based upon the record now before the court no reasonable factfinder could conclude that plaintiff's constitutional rights were abridged. Having carefully reviewed the record now before the court in light of the arguments set forth in defendants' motion, which plaintiff has not opposed, I agree, and accordingly recommend that the relief now sought be granted.

I. BACKGROUND*fn2

Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services ("DOCS"). See generally Complaint (Dkt. No. 1). At the times relevant to his claims, plaintiff was designated to the Coxsackie Correctional Facility, located in Coxsackie, New York. Id.

Plaintiff's complaint recounts two separate incidents. The first is said to have occurred on April 26, 2006, when the defendant is alleged to have placed Parker under keeplock confinement prior to receiving his midday meal and informed another corrections officer that the plaintiff had already received his food. Complaint (Dkt. No. 1) § 6. As a result of those circumstances, plaintiff went without his lunch.*fn3 Id. Plaintiff was released from keeplock confinement the following morning. Cochran Aff. (Dkt. No. 35-3) Exh. A at pp. 28-29.

The primary focus of plaintiff's complaint is on a second incident, which occurred on May 2, 2006. Complaint (Dkt. No. 1) § 6. On that occasion, while a group of approximately thirty inmates including the plaintiff was being escorted by defendant Peek-co, another inmate asked the corrections officer whether he could fight Parker. Id.; see also Cochran Aff. (Dkt. No. 35-3) Exh. A at p. 13. Prior to the incident Parker had experienced no problems with the second inmate, and accordingly had not complained to defendant Peek-co or any other prison official that there was a problem between the two. Cochran Aff. (Dkt. No. 35-3) Exh. A at p. 14. After defendant Peek-co responded "go ahead", the inmate attacked Parker, and the defendant stood by for approximately one minute before breaking up the altercation. Id. at pp. 16-20. As a result of the incident, plaintiff sustained a bruise to his left ring finger, requiring medical attention which included administering ointment and a band-aid. Id. at pp. 23-24.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on October 19, 2006. Dkt. No. 1. Originally named as defendants in plaintiff's complaint were Corrections Officer Peek-co; Israel Rivera, the Superintendent at Coxsackie; and an additional defendant identified only as "John Does" and described as a fellow inmate assigned to cell number eight.*fn4 Plaintiff's complaint sets forth a claim under the Eighth Amendment to the United States Constitution, and seeks a variety of relief including compensatory damages in the amount of $50,000. See generally Complaint (Dkt. No. 1).

Following the joinder of issue and completion of pretrial discovery, the defendant moved on May 30, 2008 for summary judgment dismissing plaintiff's claims, arguing that based upon the facts alleged and the record now before the court no reasonable factfinder could conclude that plaintiff's constitutional rights were violated. Despite the passage of the deadline for doing so, plaintiff has failed to offer any submissions in opposition to defendant's motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Plaintiff's Failure to Oppose Defendants' Motion

Defendants' summary judgment motion includes within it a declaration of service reflecting that on May 30, 2008 it was sent to the plaintiff at the Central New York Psychiatric Center, the address on file with the court at the time for the plaintiff. See Dkt. No. 35-9. Accompanying defendant's motion papers, in conformance with Northern District of New York Local Rule 56.2, was a notice advising plaintiff of the potential consequences associated with his failure to respond to the motion. Dkt. No. 35-2. Despite that admonition, plaintiff has failed to properly respond to defendant's motion. Before turning to the merits of plaintiff's claims, the court must therefore address, as a threshold ...


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