UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 26, 2009
DIALLO R. MADISON, PLAINTIFF,
M. HOEY, SERGEANT, AUBURN CORRECTIONAL FACILITY; HANS WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY; EDWARD DANN, DEPUTY SUPERINTENDENT OF SECURITY; M. MURRAY, CORRECTIONS OFFICER, AUBURN CORRECTIONAL FACILITY; E. FRANK,CORRECTIONS OFFICER, AUBURN CORRECTIONAL FACILITY; J. EDWARD, CORRECTIONS OFFICER, AUBURN CORRECTIONAL FACILITY; AND CAPTAIN GUMMERSON, DEFENDANTS.
The opinion of the court was delivered by: Scullin, Senior Judge
ORDER In a Report-Recommendation dated September 15, 2008, Magistrate Judge DiBianco recommended that this Court grant Defendants' motion for summary judgment. See Dkt. No. 102. Plaintiff filed objections to those recommendations. See Dkt. No. 104.*fn1
Plaintiff objects to Magistrate Judge DiBianco's findings on the issue of exhaustion of administrative remedies. Although Magistrate Judge DiBianco found that Plaintiff's claims could be dismissed based on his failure to exhaust administrative remedies; due to a conflict in authority regarding this issue, he declined to base his recommendation on this ground. See Dkt. No. 102 at 13. The Court will assume, for the purposes of this motion, that Plaintiff exhausted his administrative remedies; and, therefore, it will not address Plaintiff's objections to this part of the Report-Recommendation.
Plaintiff appears to reiterate his original arguments in his objections to the parts of the Report-Recommendation that discuss his membership in an "identifiable group of prisoners" and the effect of Post Traumatic Stress Disorder on his failure, following the incident, to discuss gangs and to refuse Defendants' offer to investigate the matter. The Court's review of Magistrate Judge DiBianco's Report-Recommendation, in light of Plaintiff's objections, demonstrates that Magistrate Judge DiBianco correctly applied the appropriate law and that Plaintiff's objections are without merit.
Finally, Plaintiff objects on the ground that Magistrate Judge DiBianco failed to address the affidavits of Thomas Mann*fn2 and Kirk Stevenson.*fn3 A review of these affidavits indicates that they describe the incident where Plaintiff was injured as well as the fact that certain guard posts were usually unmanned. However, these affidavits raise no issues of material fact regarding Plaintiff's failure-to-protect claim because they do not affect Magistrate Judge DiBianco's finding that Plaintiff has failed to produce any evidence that Defendants were deliberately indifferent to a risk to Plaintiff's safety. Accordingly, the Court finds that this objection is without merit.
Accordingly, after carefully considering Magistrate Judge DiBianco's Report-Recommendation, Plaintiff's objections thereto, as well as the applicable law, and for the reasons stated herein and in Magistrate Judge DiBianco's Report-Recommendation, the Court hereby
ORDERS that Magistrate Judge DiBianco's September 15, 2008 Report-Recommendation is ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for summary judgment is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment for Defendants and close this case.
IT IS SO ORDERED.
Syracuse, New York