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Terry Cicio v. B. Kourofsky

December 9, 2010

TERRY CICIO, PLAINTIFF
v.
B. KOUROFSKY, SGT., UPSTATE CORRECTIONAL FACILITY; DISHAW, C.O., UPSTATE CORRECTIONAL FACILITY; RAMSDALL, C.O. UPSTATE CORRECTIONAL FACILITY; BILOWARD, C.O., UPSTATE CORRECTIONAL FACILITY; C.O. GOKEY, R DEFENDANTS.



SYLLABUS BY THE COURT

Pro se Plaintiff Terry Cicio filed a civil rights Complaint, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Eighth Amendment rights by using excessive force and failing to protect him. Dkt. No. 1, Compl. Defendants now move for summary judgment, pursuant to FED. R. CIV. P. 56(c), which Motion Plaintiff opposes. Dkt. Nos. 23-24. For the reasons that follow, it is recommended that the Defendants' Motion be GRANTED.

The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

I. FACTS

The following facts were derived mainly from the Defendants' Statement of Material Facts, submitted in accordance with N.D.N.Y.L.R. 7.1, which were not, in their entirety, specifically countered by Plaintiff. See N.D.N.Y.L.R. 7.1(a)(3) ("Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." (emphasis in original)). However, where Plaintiff has contradicted Defendants' 7.1 Statement, either in his Complaint, Deposition, or Response in Opposition to Defendants' Motion, we make note of such divergences.

On March 21, 2008, at Upstate Correctional Facility ("Upstate"), Plaintiff Terry Cicio was escorted to his cell by Defendants Sergeant (Sgt.) B. Kourofsky and Corrections Officers (C.O.'s) T. Ramsdall and P. Gokey, who were later assisted by C.O.'s Dishaw and Biloward. Dkt. No. 23-1, Defs.' 7.1 Statement at ¶¶ 6 & 8-9. Before Plaintiff entered the cell, one of the Officers attached a retention strap to Plaintiff's handcuffs. Id. at ¶ 11; Compl. at ¶ 2 (asserting that Defendant Kourofsky applied the retention strap). Once the cell door closed, Plaintiff told the Officers he was not going to give up the handcuffs until he spoke with a block sergeant. Dkt. No. 24, Pl.'s Aff. in Opp'n to Defs.' Mot., dated July 6, 2009, at ¶ 2; Dkt. No. 23-3, Pl.'s Dep. Tr., dated Apr. 28, 2009, at pp. 9, 12, & 19-20. Thereafter, two officers began pulling on the retention strap in order to force Plaintiff's hands through the "feed-up slot" in the door. Defs.' 7.1 Statement at ¶ 16; Compl. at ¶ 4. Plaintiff, whose back was facing the door in accordance with the standard procedure, was forced up against the door and his hands became trapped between his body and the door. Defs.' 7.1 Statement at ¶¶ 13 & 17; Compl. at ¶ 5. At the direction of Defendant Sgt. Kourofsky, all four Defendant Officers began pulling on the retention strap. Defs.' 7.1 Statement at ¶ 19; Compl. at ¶¶ 6-7. Plaintiff tried to tell the Officers that his hands were pinned against the door, but they continued to pull on the strap, possibly because they could not hear what he was saying. Defs.' 7.1 Statement at ¶¶ 20-21; Pl.'s Aff. at ¶ 4. After no more than a few minutes, Plaintiff was able to guide his hands through the slot and the handcuffs were removed. Defs.' 7.1 Statement at ¶¶ 24-27; Compl. at ¶ 8; Pl.'s Dep. Tr. at pp. 15 (stating it took him "a second" to push his hands through the slot) & 18 (stating it took him "a few minutes" to get his hands through the slot).

Plaintiff alleges that he suffered the following injuries as a result of the above incident: lacerations, swelling, and abrasions on his wrists, and tingling and partial loss of feeling in his right thumb. Compl. at ¶ 11; Pl.'s Dep. Tr. at pp. 18-19.

II. DISCUSSION

A. Standard of Review

Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and [the moving party] is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "'pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any,'" that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

To defeat a motion for summary judgment, the non-movant must "set out specific facts showing [that there is ] a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).

B. Eighth Amendment ...


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