The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
This pro se prisoner civil rights action, filed pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Plaintiff Heriberto Palacio alleges that Defendant Lofton used excessive force on him and that Defendants Brian Fischer and Superintendent were responsible for a custom or policy under which officers at Greene Correctional Facility were allowed to assault prisoners with impunity. Currently pending is the motion of Defendants Fischer and Superintendent for summary judgment. (Dkt. No. 33.) Plaintiff has not opposed the motion, despite having been advised of the consequences of failing to do so and having been granted two extensions of the deadline by which to do so. (Dkt. No. 33-1; Text Order of February 22, 2010; Text Order of May 4, 2010.) For the reasons discussed below, I recommend that Defendants' motion for summary judgment be granted.
Plaintiff alleges that on July 3, 2007, he was assaulted and battered by Defendant Correction Officer Lofton in the law library. (Dkt. No. 1 ¶ 6.) Plaintiff alleges Defendant Lofton "threatened [him] with lies resulting in a new charge, a gang assault, and retaliation if [he] told anyone." Id.
Plaintiff alleges that Defendants Fischer and Superintendent "acquiesced to a pattern and unwritten policy that permitted the officer . . . to assault prisoners with impunity. They were deliberately indifferent to the rights of prisoners, and they ignored and/or covered up acts of malfeasance and did 'investigations' that were not real investigations . . . [S]upervisory staff members and officers made comments about the Administration's acquiescence to their illegal [activities]." (Dkt. No. 1 ¶ 6.)
Plaintiff claims that Defendants violated his rights under the United States Constitution and New York law. (Dkt. No. 1 ¶ 7.) He seeks compensatory and punitive damages as well as declaratory relief. Id. at 6-7.
Defendant Lofton was never served with the complaint and has not appeared in the action. (Dkt. No. 11.) According to the Inmate Records Coordinator at Greene Correctional Facility, there is no officer named Lofton at the institution, but an officer named Luft was working in the law library on the date in question. Id.
Defendants Fischer and Superintendent now move for summary judgment. (Dkt. No. 33.) Plaintiff requested, and I granted, two sixty-day extensions of time in which to file his opposition. (Dkt. Nos. 34 and 35.) Despite these extensions, Plaintiff has not opposed the motion.
II. STATUS OF DEFENDANT LOFTON
As noted above, Defendant "Lofton" has not been served, but a letter from Greene Correctional Facility indicates that an individual named "Luft" may be the correct defendant. (Dkt. No. 11.) Accordingly, the Clerk shall issue a summons and forward it, along with a copy of the complaint, to the United States Marshal for service upon Officer Luft at Greene Correctional Facility.
III. APPLICABLE LEGAL STANDARDS
A. Legal Standard Governing Unopposed Motions for Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is warranted 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." Fed. R. Civ. P. 56(c)(2). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Rather, 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material*fn1 fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008).
When a plaintiff fails to respond to a defendant's motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, practically speaking, the Court must (1) determine what material facts, if any, are disputed in the record presented on the defendants' motion, and (2) assure itself that, based on those undisputed material facts, the law indeed warrants judgment for the defendants. See ...