The opinion of the court was delivered by: Hon. John T. Curtin. United States District Judge
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking damages for the alleged violation of his rights under the First and Eighth Amendments.*fn1 Currently pending before the court is the defendants' motion for summary judgment (Item 56).
Plaintiff commenced this action on March 3, 2008 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983 (Item 1). He filed an amended complaint on September 22, 2008 (Item 6). Plaintiff seeks damages for alleged failure to protect, denial of medical treatment, and retaliation in violation of his rights under the First and Eighth Amendments to the United States Constitution. Specifically, plaintiff alleges that the defendants failed to protect him from an assault by another inmate on March 4, 2005 at Wende Correctional Facility ("Wende"). Following the assault, plaintiff alleges that he was subjected to unsanitary conditions in an infirmary cell and was denied medical treatment for his wounds. Plaintiff also alleges that defendants allowed his wedding ring to be stolen from his cell and that defendants falsified misbehavior reports in retaliation for his grievances. On his form complaint, plaintiff acknowledged that he had instituted a lawsuit in the New York State Court of Claims dealing with the same facts (Item 1). At the time of the filing of this complaint, the state court action was still pending. Id. In an order filed August 26, 2008, plaintiff was granted permission to proceed in forma pauperis (Item 5).
On September 18, 2009, the parties consented to the referral of this matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636
(c) for all further proceedings including the entry of judgment (Item 14). Defendants filed answers to the complaint on November 19, 2009 (Items 21 -29). Following the parties' exchange of discovery materials and pursuant to a case management order (Item 55), on August, 29, 2012, the defendants moved for summary judgment (Item 56). The notice of motion contained a "Notice to Pro Se Litigants Opposing Summary Judgment" in which plaintiff was advised that he may not oppose summary judgment simply by relying on the allegations in the complaint. Additionally, plaintiff was warned that if he failed to respond to the motion for summary judgment "on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true" and enter judgment in favor of defendant. Id.
The plaintiff has not filed a response to the motion. On November 7, 2012, the case was transferred to the docket of the undersigned (Item 63). The court has determined that oral argument is unnecessary. For the reasons that follow, the defendants' motion for summary judgment is granted and the complaint is dismissed.
In support of the motion, the defendants have submitted a decision after trial (Item 57) and a trail transcript of plaintiff's state court case (Items 58 - 61). The case, Ishmail v. State of New York, was tried before Judge Michael Hudson in the New York State Court of Claims on June 6, 2011. In his decision after trial, Judge Hudson found that, on March 4, 2005, plaintiff was released from his cell at Wende for a library visit. Defendant Reeves was the Corrections Officer ("CO") providing security in the library that morning. Plaintiff sat at a table that was beyond the direct view of CO Reeves. After reading for about 40 minutes, plaintiff felt a sharp thump to the back of his neck. He reached back and discovered that he was bleeding. Plaintiff struggled with his assailant, who was behind him, and sustained stab wounds to his back, throat, arms, and chest. Several COs responded to the commotion and defendant Reeves observed another inmate, Eric Thomas, punching plaintiff. Plaintiff denied that Thomas was the assailant, however, as Thomas's skin was darker than that of the assailant. Eventually, plaintiff was transported to the Erie County Medical Center ("ECMC") where he remained for three days. Plaintiff asked defendant Lucas to call the cell block and make sure that his wedding ring was secured. Lt. Lucas testified that he made the call, but the ring was lost. Plaintiff was transferred back to the medical unit at Wende, and complained that the room had not been cleaned and contained soiled clothing and bedding. The next day, plaintiff's room was thoroughly cleaned (Item 57, Exh. B, pp. 2-7).
In further support of the motion, defendants have submitted several declarations. Defendant William Smith, a retired librarian, stated that he was working in the library at Wende on March 4, 2005, but did not witness the assault on plaintiff nor was he involved in security or restraint of any inmate following the incident (Item 56, att. 4, ¶¶ 4, 6-7). He stated that he was not aware of any grievances filed by the plaintiff and did not retaliate against the plaintiff for any such grievances. Id., ¶¶ 8-9.
Defendant Sandra Green, a retired CO, stated that she was not involved in any capacity in the incident of March 4, 2005 (Item 56, att. 6, ¶ 5). She was not aware of any grievances or other actions taken by the plaintiff against any staff at Wende. Id., ¶
6. She never retaliated against the plaintiff or acted maliciously or sadistically to cause plaintiff harm. Id., ¶¶ 7-8.
Defendant Tracey Sillaway (formerly Tedesco), stated that she saw plaintiff on March 10, 2005 in her capacity as a registered nurse in the Inpatient Care Unit ("IPC") at Wende (Item 56, att. 7, ¶ 5). She took plaintiff's vital signs at 12:30 AM and again at 4:30 AM. Id., ¶¶ 8-9. His vital signs were normal and he denied any pain, numbness, or distress. Id., ¶ 8. Defendant Sillaway instructed the plaintiff to ice his left arm which was bruised and swollen from the injury of March 4, 2005. Id. Plaintiff's records indicate that he was to be given aspirin and Tylenol as needed for pain, but that he did not ask for any. Id., ¶ 10. Defendant Sillaway did not see plaintiff after his discharge from the IPC on the morning of March 10, 2005. Id., ¶ 11.
Dr. Paula Bozer, Medical Director at Wende, stated that defendants Earl Harrison and Willie Jerinagin were employed at Wende as Nursing Assistants ("NA"), not registered nurses, as plaintiff has identified them in his complaint (Item 56, att.5, ¶ 5). As such, they would have assisted the registered nurses, but would not have provided any direct medical treatment to the plaintiff. Id., ¶ 6. Moreover, personnel records indicate that defendant Jerinagin retired in October 2003 and thus would have had no contact with plaintiff at the time of the incident of March 2004. Id., ¶ 7. Dr. Bozer also stated that ...