The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
Defendants have moved for summary judgment . The parties have consented to jurisdiction by a United States Magistrate Judge .*fn1 Oral argument was held before me on March 31, 2011. Plaintiff failed to appear (by telephone or in person) for the oral argument and did not contact the court to request an adjournment.*fn2 For the following reasons, I order that defendants' motion be granted.
Plaintiff commenced this 42 U.S.C. §1983 action pro se alleging that his sentence was calculated incorrectly, which resulted him being imprisoned for approximately eight months in violation of his Fifth, Sixth and Ninth Amendment rights. Amended Complaint , pp. 5-6. Plaintiff's imprisonment arose from his January 2006 arrest for sexual abuse in the first degree (NY Penal Law §130.65) and unlawfully dealing with a child in the first degree (NY Penal Law §260.20). Defendants' Statement of Material Facts [54-1], ¶3. Following his arrest, he remained incarcerated on these charges from January 26, 2006 to February 3, 2006, when he was released on bail. Id.
On April 10, 2007, plaintiff pled guilty before Hon. Peter L. Broderick, Sr. in Niagara County Court to sexual abuse in the third degree (NY Penal Law §130.55) and unlawfully dealing with a child in the first degree. Id., ¶5. He was sentenced on June 14, 2007 to concurrent terms of 90 days imprisonment on the sexual abuse charge and one year imprisonment on the unlawfully dealing with a child charge. Id., ¶5. Defendants' Appendix [54-2], Ex. D. After plaintiff's sentence was reduced by the nine days he had initially served following his arrest and by 121 days of good time credits, he was released on February 1, 2008. Id., ¶6.
Before serving his sentence on these convictions, in April 2006, he violated his sentence of probation on an earlier conviction for DWI, and was sentenced to 1 to 4 years imprisonment. Id., ¶¶2, 4. He remained incarcerated on this sentence from June 6, 2006 until April 2007. ¶4.
Although the June 14, 2007 sentencing transcript is not before me, both parties appear to agree that Judge Broderick gave plaintiff credit for "time served". However, the parties dispute how plaintiff's time served was calculated. Whereas plaintiff alleges that his time served included the time he was incarcerated on his DWI conviction (defendants' appendix [54-2], Ex. H; amended complaint , pp. 5-6), defendants argue that it only encompassed the nine days he served on the sexual abuse and unlawfully dealing with a child charges. Defendants' Memorandum of Law [54-18], Point I.
A. Summary Judgment Standard
The standard to be applied on a motion for summary judgment in this Circuit is well settled. "Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Summary judgment is improper if there is any evidence in the record that could reasonably support the jury's verdict for the non-moving party." Ford v. Reynolds, 316 F. 3d 351, 354 (2d Cir. 2003).
Although defendants' motion was accompanied by a Notice to Pro Se Litigants as required by L.R. Civ. P. ("Local Rule") 56(b), which cautioned that "[i]n the absence of [a statement of disputed facts] by plaintiff, all material facts set forth in defendants' statement of material facts not in dispute will be deemed admitted" [ 54-19], p. 2. Despite having this notice, plaintiff has failed to dispute defendants' Statement of Material Facts [54-1]. Therefore, I will consider these fact as being undisputed for purposes of this motion. See Fed. R. Civ. P. ("Rule") 56(e)(2)("If a party . ...