The opinion of the court was delivered by: Randolph F. Treece U.S. Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Ronald Jenkins, also known as Fred Jenkins, brings the instant civil rights action pursuant to 42 U.S.C. § 1983. Dkt. Nos. 1, Compl.; 34, Am. Compl. In his Amended Complaint, Jenkins claims that while incarcerated at Franklin Correctional Facility, he fell while attempting to descend from his assigned top bunk in his cell. Am. Compl. at ¶ 14. Jenkins claims to have suffered physical injury from the fall and attributes fault to the Defendants who allow a purportedly unsafe and inhuman condition to continue by their refusal to provide an alternate, safer means of ascending to and descending from the top bunk. See generally id. In this regard, Plaintiff asserts that Defendants failed to provide reasonably safe living conditions in violation of the Eighth Amendment.
Defendants Brian Fischer, Commissioner of the New York State Department of Correctional Services (DOCS), Lawrence Sears, Former-Superintendent of Franklin Correctional Facility, and Marc Dutil, Franklin Correction Officer, move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Dkt. No. 50. Plaintiff opposes Defendants' Motion. Dkt. Nos. 54-55. For the reasons that follow, this Court recommends granting Defendants' Motion and dismissing this action in its entirety.
I. MATERIAL FACTS NOT IN DISPUTE*fn3
At all times relevant to the matters complained of in the instant action, Plaintiff was in the custody of the New York State Department of Correctional Services (DOCS) and was housed at Franklin Correctional Facility.*fn4 Certain cubicles at Franklin contain double-bunk beds, along with two large lockers, two small lockers, and at least one chair. Dkt. No. 50-3, Defs.' Statement of Material Facts (hereinafter "Defs.' 7.1 Statement") at ¶ 2. The distance from the floor to the top bunk mattress is approximately 592. Id. At least one of the large lockers is located adjacent to the bunk bed. Id. The height of the adjacent large locker is approximately 422 and the height of the chair is approximately 182. Id. Ladders were not provided and the Defendants assert that Franklin provided no "official" policy as to how inmates assigned to the top bunks would access their beds. Id. Nevertheless, they inform the Court that an inmate seeking to descend from the top bunk typically climbs from the top bunk bed to the adjacent large locker (approximately 172 away) and then, from the locker, climbs onto the seat of the chair (approximately 242 away). Id. To ascend to the top bunk, the process is reversed.
When an inmate is first received into Franklin, he is evaluated by the medical staff as to whether he qualifies for a medical excuse permit, which would enable him to be housed in the bottom bunk only. Id. at ¶¶ 8 & 15. Also, certain qualified inmates can request low bunk placements, including inmates who are over sixty years of age, and/or who weigh over 300 pounds, and/or who believe a medical condition or physical disability precludes placement in the top bunk. Id. at ¶ 3. There appears to be an unspoken rule of seniority when it comes to bunk assignments. Such seniority is measured by the date the inmate started housing in a particular dorm. Id. at ¶ 10. Those who have the least seniority in the dorm and are without bottom bunk passes are assigned to a top bunk and systematically assigned to a bottom bunk once it becomes available. Id. at ¶¶ 11-12. It could take between two to three months to be assigned to a bottom bunk. Id at ¶ 12.
In July 2007, Plaintiff was incarcerated in Franklin's B2 Dormitory. Id. at ¶ 13. At that time,he was assigned to a top bunk bed. Id. at ¶ 14. Upon arrival at Franklin, Plaintiff asserts he received instructions from Dutil regarding the process of accessing his top bunk; Dutil asserts that, while he has no independent recollection of such conversation, it was not his habit to inform inmates on how to access the top bunk. Compare Dkt. No. 50-5, Megan M. Brown, Esq., Affirm., dated Nov. 13, 2009, Ex. A, Ronald Jenkins Dep., dated June 26, 2009, at p. 12, with Dkt. No. 50-10, Marc Dutil Decl., dated Nov. 5, 2009, at ¶ 8. Nevertheless, during his ten years assigned to the B2 Dorm, Dutil has observed inmates climbing up to and down from the top bunk using the process described above or some variation thereto. Dutil Decl. at ¶¶ 9-10.
Prior to July 13, 2007, Jenkins did not request a lower bunk permit nor did he grieve his top bunk assignment, however, he asserts that he asked or complained to Officer Dutil about when he would be transferred to a lower bunk. Jenkins Dep. at p. 20 ("It was just a matter of saying, when am I going to get mine, and he said, you just have to wait until it's your turn on the list, and I basically left it alone at that."); Defs.' 7.1 Statement at ¶¶ 14-15. Also prior to that date, Jenkins maneuvered up to and from his assigned top bunk between four and seven times each day for weeks without incident, with the exception of one instance when he almost slipped but suffered no injury. Defs.' 7.1 Statement at ¶¶ 16-17. However, on the evening of July 13, 2007, while climbing down from his top bunk, Plaintiff slipped and fell. Id. at ¶ 18. During his examination before trial, Jenkins testified that the accident occurred in the evening after the lights were out in the dorm. Jenkins Dep. at pp. 29-30. He claims he woke up and attempted to crawl out of bed to use the bathroom. Id. at p. 30. After safely securing himself onto the locker located at the foot of his bed, he attempted to climb down to the chair when it slid out from under him, causing him to fall and hit the back of his head and part of his back on the locker. Id. at pp. 30-31. Upon falling to the ground, he claims to have been knocked unconscious. Id. at p. 31. Jenkins further described the injuries he sustained, both physically and mentally, some of which last to this day, including, for example, migraines, dizzy spells, and fear of heights. Id. at pp. 31-38; see also Dkt. No. 34, Am. Compl. at ¶¶ 18-21. Approximately two days after the accident, Jenkins was assigned to the lower bunk, allegedly because it was his "turn." Jenkins Dep. at p. 42.
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 forth 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 ...