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Ernest West v. J. Miller

August 23, 2012

ERNEST WEST, PLAINTIFF,
v.
J. MILLER, ET AL., DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #31.

Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 alleging that he was subjected to excessive force during his incarceration at the Attica Correctional Facility ("Attica"). Dkt. #1.

Currently before the Court is defendants' motion for summary judgment. Dkt. #44. For the following reasons, defendants' motion for summary judgment is granted.

BACKGROUND

Plaintiff's amended complaint alleges that on September 11, 2007, Sergeant LoVerde put plaintiff on the wall and then kicked his feet apart, causing him to bump his forehead. Dkt. #13-2, p.5. Plaintiff also alleges that C.O. Miller ran into the plaintiff, causing him to injure his shoulder, and that Sergeant LoVerde failed to intervene. Dkt. #13-2, pp.5-6. During his deposition, plaintiff reiterated his belief that the incident occurred on September 11, 2007. Dkt. #44-7, p.9. George Streubel, Supervisor of Attica's Inmate Grievance Program, declares that there is no record of any grievance filed by plaintiff with respect to an incident on September 11, 2007. Dkt. #44-5.

Plaintiff's original complaint alleges that on October 14, 2007, while he was coming from a "med run," and in retaliation for a prior complaint, Sergeant LoVerde*fn1 ordered plaintiff to place his hands on the wall and C.O. Miller ran into him from behind, slamming his body hard into the wall and causing physical injury to his left shoulder. Dkt. #1, pp.5-6.

On October 24, 2007, plaintiff filed a grievance complaining that Sergeant LoVerde retaliated against him for filing a prior grievance by ordering plaintiff to place his hands on the wall, pulling his hair and hitting him on the right side of his face. Dkt. #44-3, p.10. Plaintiff also complained that C.O. Miller ran into him from behind, causing his body to slam hard into the wall. Dkt. #44-3, p.10.

The grievance, which was assigned number A-52684-07, was denied by the Superintendent on November 14, 2007 as follows:

This grievance has been investigated by a Lieutenant and includes an interview with the grievant, along with written memorandum from staff named.

The grievance states: The grievant was assaulted by staff. Upon interview, the grievant reiterated his claims and provided no witnesses or any other pertinent information. Staff is on record denying all allegations. The Investigating Lieutenant could find no evidence to support the grievant's accusations. The Investigating Lieutenant states that the grievant was vague and seemed like he had little knowledge of the alleged incident. The grievant became agitated when interviewed and refused to answer questions. The reviewer notes that the Grievance Supervisor's memo states that he does not believe the grievant wrote this grievance and that he believes another inmate wrote it.

The evidence provided this reviewer does not warrant an affirmation of this grievance.

The grievance is without merit, and is, ...


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