Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Samuel J. Smolen, Jr v. Sgt. K. Berbary

November 29, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action pursuant to 42 U.S.C. § 1983 in which prison inmate Samuel Smolen ("Plaintiff") alleges that staff members at Attica Correctional Facility ("Attica") violated his federal constitutional rights in February 2005. Now before the Court is Defendants' Motion to Dismiss [#26]. For the reasons that follow the application is granted and this action is dismissed.


The Complaint [#1] alleges that on February 5, 2005, while Plaintiff was housed at Attica Correctional Facility ("Attica"), defendant Corrections Officer G. Weitz ("Weitz") and another, unnamed, corrections officer ("John Doe No. 1"), permitted two inmate porters to assault him and steal unspecified personal property from him. (Complaint, First Claim).*fn1

Plaintiff alleges that Weitz and John Doe No. 1 witnessed the assault but failed to intervene. Plaintiff also alleges that, on the same date, defendant Corrections Sergeant K. Berbary ("Berbary") and another unnamed corrections officer ("John Doe No. 2") refused to speak to him about the theft and assault. Plaintiff states that he also notified Corrections Sergeant Lavis ("Lavis") about the assault and theft, but in response Lavis and John Doe No. 2 filed a false misbehavior report against him in retaliation for his complaint to them. (Complaint, Second Claim).*fn2 Additionally, Plaintiff alleges that, on the same date, Weitz, Berbary, Lavis, John Doe No. 1, and John Doe No. 2, failed to search for his stolen property and failed to file misbehavior reports against the inmate porters. (Complaint, Third Claim). And finally, Plaintiff alleges that on February 8, 2005, defendants George Strubel ("Strubel") and Theresa Dyson ("Dyson"), both members of Attica's Inmate Grievance Resolution Committee ("IGRC"), failed to process grievances that he wrote against the other defendants. (Complaint, Fourth Claim). Specifically, the grievances that he submitted complained of events on February 5, 2005, including the assault, theft, failure by staff to protect him and his property, and failure by staff to provide him with medical attention following the assault. Along with the Complaint, Plaintiff filed a motion for permission to proceed in forma pauperis.

On July 16, 2008, the Court issued an Order [#3], granting the application to proceed in forma pauperis, and dismissing certain claims pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A. Specifically, the Court dismissed the following claims: 1) claims pertaining to the theft of Plaintiff's property; 2) claims pertaining to the denial of Plaintiff's requests for an investigation into the theft and assault; and 3) the claims against Strubel and Dyson. The Court permitted the claims to go forward against Berbary, Lavis, Weitz, and John Does 1-3. With regard to the John Does, the Court directed that Plaintiff identify them "through discovery as soon as possible, and then apply to this Court for an order directing amendment of the caption and service on these defendants as soon as they have been identified." Order [#3] at 13. However, Plaintiff never moved to amend the Complaint. Accordingly, the only defendants in this action presently are Berbary, Weitz, and Lavis.

On May 17, 2010, Defendants filed the subject "Motion to Dismiss." Despite the title of the motion, it appears to be a motion for summary judgment pursuant to Rule 56.*fn3

Defendants maintain that Plaintiff's claims are time-barred by the applicable statute of limitations, and therefore must be dismissed. Defendants also maintain that the claims against them lack merit. On June 9, 2010, the Court issued a Motion Scheduling Order [#32], directing Plaintiff to file and serve any opposing papers on or before July 14, 2010. Plaintiff, though, never filed a response.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322--23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).

The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party ." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).*fn4 The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed. R. Civ. P. 56(c). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

Here, Defendants first moved for summary judgment on the grounds that Plaintiff's claims are barred by the three-year statute of limitations that governs actions under 42 U.S.C. § 1983. In that regard, Defendants note that the Complaint in this action was filed on March 31, 2008, while the actions complained of allegedly occurred on February 5, 2005 and February 8, 2005. However, as the Court previously stated in its Decision and Order [#13] denying Plaintiff's request for a temporary restraining order, since Plaintiff is a prisoner, the actual filing date is determined by the "mailbox rule":

The complaint is dated February 1, 2008, and was filed in the Court on March 31, 2008. The exact date of filing, to be determined under the prison "mailbox rule," is unclear. See, Hicks v. LeClair, No. 9:07-CV-0613 (JKS), 2008 WL 5432217 at *3, n. 1 (N.D.N.Y. Dec. 30, 2008) ("Under the 'mailbox rule,' a[n inmate's filing] is deemed filed on the date ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.