The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
Siragusa, J. The case is before the Court on Defendants' motion seeking an order pursuant to Federal Rule of Civil Procedure 56 dismissing the action in its entirety. Notice of Motion, ECF No. 59 (May 6, 2011). For the reasons stated below, the application is granted in part and denied in part.
Pursuant to Western District of New York Local Rule of Civil Procedure 56, the moving party filed a Statement of Material Facts, ECF No. 59-1 (May 6, 2011). The local rule places a duty on the opposing party to file and opposing statement. The text of that rule reads in its entirely as follows:
Opposing Statement. The papers opposing a motion for summary judgment shall include a response to each numbered paragraph in the moving party's statement, in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried. Each numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.
W.D.N.Y. Loc. R. Civ. P. 56(a)(2). Plaintiff, in his opposing papers, filed what he entitled a "Statement of Material Facts," ECF No. 61-13 (Jul. 11, 2011). Plaintiff's statement repeats information provided in Defendants' statement, then, using subparagraphs, recites facts from Plaintiff's point of view, or lists areas in which Plaintiff disputes Defendants' statement. The Court will deem Defendants' statement admitted for purposes of the motion, except as indicated, below, in brackets where Plaintiff disputes the information:
1. The Plaintiff, Darryl Gilliam, was in the Chemung County Jail as a pre-trial detainee following his release from a NYS Correctional Facility for the period of September 7, 2005 to March 16, 2006, for an assault alleged to have been committed while in state custody. [Plaintiff provides information as to other inmates housed in the same area.]
2. The Plaintiff alleges in his Complaint that on December 13, 2005, that he was attacked by several inmates for "violations of rights recognized and arising under the first, fourth, fifth and Fourteenth Amendments of the United States Constitution". See page 5, paragraph a. of Plaintiff's Complaint, Document 7. [Plaintiff adds additional details, including a quote allegedly from Mark Jones.]
3. Through the course of investigation and previous Decisions and Orders of this Court, the remaining Defendants are Lt. John Hamula, Elnora VanRensselaer (former John Doe #4), Mark Jones (former John Doe #1), John Brinthaupt, Acting Sheriff (former John Doe #5) and Christopher Moss as the current Sheriff in his official capacity only. See Decision and Order of April 18, 2007.
4. The Plaintiff has never properly commenced the action against Officer Mark Jones. [Plaintiff contends he properly commenced the action against Mark Jones by giving a summons and complaint to the U.S. Marshal on April 24, 2007, and contends that Mark Jones was served on June 21, 2007.]
5. Plaintiff alleges that Mark Jones threatened him by telling him that he "would be taught a lesson" and that he should not be filing any more complaints against Department of Correctional Services staff (New York State, not affiliated with the Chemung County Jail). First factual statement on page 7 of 13 in Document 7, the Complaint. [Plaintiff includes quotes allegedly from Mark Jones.]
6. Plaintiff alleges, but there is no written evidence of, his having filed a grievance against Officer Mark Jones. Id.
7. Plaintiff alleges that Lt. John Hamula told him that he did not have time to look into the complaint, that the complaint was nonsense, and that if he filed another complaint some action would be taken against him. Id. Plaintiff then alleges on December 13, 2005, that he was assaulted by five inmates in his cell block area while Mark Jones is alleged to have observed the assault and his having not intervened until well into the assault by the several inmates. Id. at bottom paragraph. [Plaintiff adds information concerning Mark Jones.]
8. Plaintiff alleges that in the assault he was beaten "in and out of consciousness." Id. [Plaintiff adds that the treating physician in the emergency room of the hospital stated, "It sounds like more or less [Plaintiff] had some blackouts. He did bump his head."]
9. Plaintiff alleges that three of the inmates continued to stomp on his head with their feet and kick him, and was also caused to suffer multiple stab wounds and was repeatedly hit and pummeled with "blunt objects." Id.
10. Ultimately, he alleges that Officer Jones convinced the inmates to stop assaulting him and lock in their cells. Id.
11. Plaintiff then alleges that he was made to sit in his cell "for hours" before being seen by Elnora VanRensselaer, the jail nurse on duty. See page 8 of 13 of Document 7, carry over paragraph. [Plaintiff adds information from the log book and the medical record, which the Court discusses below.]
12. He indicates that the nurse visually observed him and stated that he looked fine and then left with Lt. Hamula and each stating that the Plaintiff "finally got what my hand was calling for." Id.
13. Plaintiff alleges that Lt. Hamula then moved him to a holding cell in booking where "I remained for hours." Plaintiff alleges that in spite of his pleas for medical attention he was kept there six and a half hours until he "began to choke/regirgitate (sic) on my own blood before an ambulance was called and I was then taken to the Arnot Medical Hospital." Id. [Plaintiff concedes that it was less than 61/2 before he received treatment at the hospital.]
14. A Sheriff's Deputy (Ruocco) interviewed Mr. Gilliam on December 14, 2005 at the Chemung County Jail to take the report of assault. [Plaintiff points out that Deputy Ruocco's report was not written until February 14, 2006.]
15. Plaintiff alleges that there was a lack of follow up on that initial report until early 2006. Id. The Plaintiff alleges that a District Attorney from Chemung County questioned him regarding the assault. [Plaintiff describes the steps he took to bring attention to his assault, including writing several letters.]
16. Plaintiff's Complaint regarding the presence of a "shank" taken from a mop wringer handle, sharpened and used on him (allegedly) is not directed at any individual. See pages 9-10, carry-over paragraph of Document 7. [Despite not including the names in his pro se amended complaint, Plaintiff points out that he has repeatedly "made clear that inmates Michael Scharborough, Dominic Perone, Jason Lopez, Lamont Page, and James Johnson assaulted Plaintiff." He further details acts allegedly committed by Mark Jones, which he contends facilitated the assault, and details evidence found during cell searches, including "[b]lood soaked clothing" in "Inmate Perone's cell.." ]
17. The Plaintiff's Complaint was filed on January 9, 2007. See Document 7.
18. The Plaintiff was incarcerated at the Westchester County Jail on January 9, 2007 for a parole violation in connection with his conviction for felonious assault. Gilliam deposition at 10 and 19. [Plaintiff disputes the relevance of this fact.]
19. The Plaintiff acknowledged that he was having a problem getting along at the Chemung County Jail because of the way "he carried himself" and the "way he addressed situations." Gilliam EBT, 27. ["Plaintiff describes himself as 'a pen pusher.'"]
20. Prior to December 13, 2005, when interviewed at the Chemung County Jail by the Inspector General, he made no complaint regarding his treatment at the Chemung County Jail. Id. at 28, 36. [Plaintiff disputes this assertion and states that he did complain to the Inspector General about his treatment at Chemung County Jail, but claims the inspector was not interested.]
21. Prior to December 13, 2005, he had no problems or potential problems with other inmates. Id. at 29.
22. When asked specifically the manner in which Officer Mark Jones threatened him, the first incident was where Mark Jones verbally instructed him to back off, stop creating problems for himself and relax and finish up his time because he is upsetting a lot of people. Id. at 30. A second incident occurred prior to December 13, 2005 in which Mark Jones instructed him that he needed to "cut it out" that he just wasn't getting it, to behave and to stop writing things up. Id. at 39. [Plaintiff describes words Mark Jones allegedly said to him about his lawsuit against Elmira Correctional Facility personnel.]
23. Prior to December 13, 2005, he did not consider Mark Jones or any other CO at the Chemung County Jail to be a threat to him. Id. at 40. ["However, Plaintiff 'was having problems with almost every Officer [he] encountered.' (Gilliam EBT at 29:3--4)."]
24. On December 13, 2005, the Plaintiff took upon himself to clean the shower area and while doing so was cursing at the other cell block inmates. Id. at 43.
25. Later that day, he testified that he was asleep in his cell when his door opened without any reason. Id. at 47. [Plaintiff describes how he locked himself into his cell and could hear it open, and that only the officers can unlock cell doors.]
26. Despite him testifying that there were five inmates at his cell door when he awoke, he walked to the cell door and called to Officer Jones asking why he opened his cell when he was assaulted by being punched by another inmate. Id. at 47-49.
27. The Plaintiff believes that he told the investigating deputy the following morning that he did not wish to press charges against either the inmates or Officer Jones. Id. at 76-77. [Plaintiff explains he was in fear.]
28. At the hospital emergency room (St. Joseph's Hospital) on the evening of the incident, the Plaintiff told the doctor "I am not going to rat them out." Id. at 77. [Plaintiff told hospital personnel he wanted to get help.]
29. Deputy Michael Ruocco, who responded to the jail to do the preliminary investigation on December 14, 2005 at 8:24 a.m. noted that Gilliam stated that he had been making comments that bothered people, calling the other inmates names as he cleaned the shower area, that while he was watching TV that someone struck him with a sock with bars of soap in it and that then the others on the block started to kick him. He documented that Mr. Gilliam told him that the Correction Officer Jones ordered the inmates to stop and secure into their cells. Mr. Gilliam also stated that he did not want any trouble, did not want to be seen by a doctor, but was later ordered to go to St. Joseph's Hospital by Corrections Lt. Sullivan. Officer Ruocco further reported that he informed the plaintiff that he would need to give a detailed written statement to have the subjects arrested and the Plaintiff responded that he was not a snitch and did not want any charges filed, further stating "I just want them to sweat it out and think that I am pressing charges." Deputy Ruocco then closed the case on that basis. Deputy Ruocco then closed the case on that basis. See Police Investigation Report at page 3, Narrative Section.
30. Plaintiff admitted that he the initial investigating officer's report was accurate. Gilliam EBT at 78. [Plaintiff feared retaliation.]
31. The Sheriff's Department file included a letter dated December 16, 2005 indicating that the Plaintiff did wish to pursue charges. On January 4, 2006, Investigator Sullivan interviewed the Plaintiff, continued the investigation, documents of which are included in the police investigative report exhibit and a decision was made by the District Attorney's Office not to pursue charges. Police Inv Rpt. [Plaintiff details the procedural history of the investigation and decision not to proceed ...