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Darin B. Poole v. Nyc. Dept. of Correctional Services

September 27, 2011

DARIN B. POOLE, PLAINTIFF,
v.
NYC. DEPT. OF CORRECTIONAL SERVICES, OFFICER FIGEURO,
OFFICER JOHN DOE, DR. MCGIBBONS, CAPT. RIVERA, DEFENDANTS.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiff Darin B. Poole ("Poole" or "plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against the City of New York Department of Correction ("D.O.C."), Dr. McGibbons ("McGibbons"), Captain Rivera ("Rivera"), Officer Figeuro ("Figeuro"), and an unknown D.O.C. officer, alleging that his constitutional rights were violated. Presently before us is defendants' unopposed motion for summary judgment.

For the reasons stated herein, defendants' motion for summary judgment is granted.

BACKGROUND

I. Allegations in the Complaint

The substance of plaintiff's allegations is as follows. Plaintiff was incarcerated in the Vernon C. Bain Center ("V.C.B.C."). While in court and away from V.C.B.C. on January 5, 2007, plaintiff's cell was left unlocked by Figeuro and plaintiff's personal property was stolen. Figeuro became angry when plaintiff later asked to speak to a captain about the incident, and he solicited a gang of inmates to assault plaintiff. Figeuro and an unnamed officer stood by idly during the attack, until plaintiff was rendered "delirious and unable to move." Despite several subsequent attempts to receive medical attention, both at V.C.B.C. and other facilities, plaintiff was never treated by medical personnel.

Plaintiff sought and was granted an order to place him in protective custody. Nevertheless, he was never put in protective custody, and in fact was placed in holding pens with the same inmates who had assaulted him.

II. Procedural History*fn1

Plaintiff filed his initial complaint on August 27, 2008. A second complaint, similar to the first, was filed on September 5, 2008. Plaintiff filed a final, amended complaint on December 8, 2008. D.O.C. was served with the amended complaint on January 27, 2009, and Rivera and McGibbons were served on February 9, 2009. Figeuro and the John Doe defendant were never served.*fn2

The Court's initial discovery order anticipated completion of the discovery process by August 24, 2009. Plaintiff's failure to respond to defendants' discovery requests, however, necessitated multiple extensions of the discovery period.

The investigation conducted by defendants by December 11, 2009 revealed that plaintiff had not been in the custody of D.O.C. on the alleged date of the incident. Nevertheless, defendants asked for and were granted an extension of the discovery period until February 28, 2010, in order to investigate plaintiff's periods of incarceration in 2006 and 2007 to determine if the incident may have occurred on a date other than that alleged. To effectuate this investigation, the Court ordered that plaintiff execute releases for records pertaining to these periods of incarceration by December 28, 2009, and warned that failure to do so could result in dismissal.

By January 11, 2010, plaintiff had not provided the ordered releases, and defendants requested that the complaint be dismissed. The Court, however, twice extended plaintiff's time to comply with its order. On March 20, 2010, plaintiff had still not executed the releases, and the Court set a telephone conference to discuss plaintiff's failure to follow the Court's order. At that conference, plaintiff acknowledged that he did not know the exact date of the incident, which defendant stressed was why it needed the releases. Plaintiff suggested by letter three days later that the incident may have occurred on or about April 1, 2008, not January 5, 2007, and defendants expanded their search for relevant documents accordingly.

By late May, defendants believed they had determined the date of the incident to be July 12, 2008. Their records showed a fight amongst several inmates on that day at the George Motchan Detention Center ("G.M.D.C."), where plaintiff had been incarcerated and seen for a medical emergency. Through further examination of their records, however, defendants determined that plaintiff was not involved in the incident at G.M.D.C. Defendants restarted their inquiry, expanding the scope of their search to include records matching plaintiff's description of the day of the incident from November 29, 2007 through September 16, 2008 at the three facilities at which plaintiff had been housed during that period. The search did not turn up a single incident in which plaintiff had been involved.

In light of defendants' exhaustive search, the Court asked plaintiff to provide affidavits of witnesses establishing the date of the incident by August 25, 2010. On September 7, 2010, having received no such affidavits from plaintiff, the ...


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