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Gssime v. Cadian

April 28, 2009


The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court



This matter is before the Court on defendants Kadien*fn1 and Pizzuto's*fn2 motion for summary judgment (Filing No. 28).*fn3 Upon review of the motion, the memoranda and evidentiary submissions of the parties, and the applicable law, the Court finds that the motion should be granted in part and denied in part.


Plaintiff Said Gssime ("Gssime") was incarcerated at Mid-State Correctional Facility ("Mid-State") and held in the custody of the New York State Department of Correctional Services from April 30, 2004, to June 21, 2006 (Filing No. 28-3, ¶ 1; Filing No. 35 at 9, ¶ 1). At all times relevant to the complaint, Kadien was the Deputy Superintendent of Security at Mid-State, and Pizzuto was a correction officer at Mid-State (Filing No. 28-3, ¶ 2; Filing No. 35 at 10, ¶ 2).

Gssime brings this action pursuant to 42 U.S.C. § 1983, alleging Kadien and Pizzuto violated Gssime's constitutional rights while he was incarcerated at Mid-State (See Filing No. 1). The complaint generally asserts three claims: (1) a claim for inadequate medical care against Pizzuto, (2) a claim against both defendants for failing to protect Gssime from an inmate attack, and (3) a claim for retaliation against Pizzuto (See id.; Filing No. 28-3, ¶ 3; Filing No. 35 at 11, ¶ 3).

1. Facts Relating to Gssime's Claim for Inadequate Medical Care

Gssime claims that in April of 2006,*fn4 he "was extrem[e]ly sick suffering from lung infection and pneumonia" and went to Pizzuto to request emergency medical care (Filing No. 1 at 4). According to Gssime, Pizzuto laughed at Gssime's request, told Gssime to go to his bed, and refused to call the medical department (Id. at 4, 7). On April 6, 2006, which Gssime alleges was a few days after he initially requested emergency medical care, Pizzuto called the medical department and spoke with a nurse about Gssime's condition (Id. at 7; Filing No. 28-4 at 4). Pizzuto told the nurse he had an inmate who was coughing but did not say the condition was emergent (Filing No. 1 at 5, 7). Pursuant to the nurse's instructions, Pizzuto gave Gssime Tylenol (Filing No. 1 at 7; Filing No. 28-3, ¶ 4).

Later that night, three inmates carried Gssime to the "Mental Health Unit" (Filing No. 1 at 5; Filing No. 35 at 3). A nurse at the Mental Health Unit examined Gssime, reported that he was experiencing cold and flu symptoms, and admitted him to the infirmary overnight to rule out pneumonia (Filing No. 28-5 at 5, 6). The next day, Gssime was given a chest x-ray, which did not reveal any "acute disease" (Filing No. 28-5, ¶ 6). Gssime received medication and was discharged from the infirmary on April 12, 2006 (Filing No. 28-5, ¶ 9).

2. Facts Relating to Gssime's Failure to Protect and Retaliation Claims

On June 9, 2006, Gssime filed a grievance against Pizzuto for an alleged denial of emergency medical care on June 6, 2006 (Filing No. 28-3, ¶ 11; Filing No. 35 at 13, ¶ 11). On June 19, 2006, Gssime told a correction officer that he slipped in the shower area while cleaning it (Filing No. 28-3, ¶ 16; Filing No. 35 at 16, ¶ 16). The correction officer believed Gssime's injuries looked suspicious and sent Gssime to the medical department (Filing No. 28-4 at 25). According to the injury inmate report, Gssime had red raised areas on his head and neck, and abrasions on his arms and back (Filing No. 28-4 at 29). A nurse determined that Gssime's injuries were consistent with those normally sustained in a fight, and prison staff filed an inmate misbehavior report against Gssime (Filing No. 28-4 at 31). On June 19, 2006, Gssime signed a protection waiver form that stated he did not believe there was a threat to his life by remaining in general population (Filing No. 28-4 at 32).

While Gssime initially claimed he sustained injuries from a slip and fall, Gssime later maintained that the injuries were the result of an attack by an inmate named Nixon and other inmates (Filing No. 1 at 5). After June 19th, Gssime allegedly received information that the attack was a retaliation against him for filing the inadequate medical care grievance against Pizzuto (Id.; Filing No. 35 at 17, ¶ 18). According to Gssime, Gssime received information that Pizzuto promised Nixon that Nixon would be moved to a one-man room if he attacked Gssime (Filing No. 35 at 17, ¶ 18).


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A fact is material when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could ...

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