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Riley Jerome v. C.O. Banaszak

December 17, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott



Before the Court is defendants'*fn1 motion for summary judgment (Docket No. 32) to dismiss the pro se plaintiff's Complaint. The parties consented to proceed before the undersigned as Magistrate Judge on October 28, 2011 (Docket No. 15).

In support of this motion, defendants filed their Memorandum of Law, Statement of Undisputed Facts (Docket No. 32), the declaration of defense counsel (with exhibits) (Docket Nos. 32, 42), and the declarations of defendants and other Department of Corrections and Community Supervision ("DOCCS") employees (Docket Nos. 32-41), with exhibits (e.g., Docket No. 36). Included among these declarations are those of DOCCS employees Vance Hawley (Docket No. 32, with exhibits), Jeffrey Hale (id., with exhibits), Nicholas Paternostro (Docket No. 37, with exhibit), and Robert Dunbar (Docket No. 38, with exhibits).

Several of defendants' declarations were refiled due to electronic filing issues; these include

Declarant's Last Name Original Docket No. New Docket No. Hulton 32 44 Bartz (misidentified as Bantz) 34 45 Borawski 35, 36 (exhibits) 48, 49 (exhibits) Kobierecki 39 46 Burns (misidentified as Buriki) 40 47 Defense Counsel 32 42 This Court will cite to the refiled versions of these papers.

Responses to this motion were due by October 3, 2012, with any reply due by October 17, 2012, and the motion deemed submitted as of October 17, 2012, without oral argument (Docket No. 43).

Plaintiff did not submit a response. Rather, he wrote a letter, dated October 17, 2012, but received by the Court by November 6, 2012 (which this Court docketed, Docket No. 50). There, the plaintiff noted his apparent confusion about the defendants' submissions, although he did not enclose a copy of the papers he was concerned about or clearly copy defense counsel on this letter. By the electronic filing of this letter, defense counsel has presumably received it. Defense counsel has not filed a response to plaintiff's letter.


Pleadings and Defendants

Plaintiff sued seven corrections officers or lieutenants at the Attica Correctional Facility ("Attica") alleging that, on March 26, 2010, he was taken out of his cell, walked down some steps where he was beaten by officers (Docket No. 5, Am. Compl.; see also Docket No. 1, Compl.). He was granted leave to proceed as a poor person (Docket No. 4 (Order); see Docket No. 2 (motion for poor person status)). Plaintiff then filed his Amended Complaint (Docket No. 5). Defendants answered the Amended Complaint on September 14, 2011 (Docket No. 14). Defense Summary Judgment Motion

According to defendants' uncontested statement of facts (Docket No. 32), plaintiff was an inmate at Attica (Docket No. 32, Defs. Statement ¶ 4). Officer Paternostro was also a corrections officer at Attica at the time of this incident; he assisted officer Hulton during the use of force incident of March 26, 2010, involving plaintiff (id. ¶ 13*fn2 ). Sergeant Dunbar was assigned to Attica and responded to plaintiff's use of force incident (id. ¶ 14). Vance Hawley was a nurse at Attica and he examined plaintiff following the incident (id. ¶ 15). Jeffrey Hale was employed by DOCCS at the Central Office Review Committee ("CORC") as assistant director of the Inmate Grievance Program (id. ¶ 16).

On March 26, 2010, plaintiff attended Muslim lunch when he found water on his seat, so he refused to sit there and asked to see a sergeant (id. ¶¶ 17-19). Plaintiff was escorted from the mess hall for creating a disturbance and a ticket was written for the violation (id. ¶ 20). Sergeant Dunbar instructed to have plaintiff come to speak with him (id. ¶ 21).

Plaintiff claims that defendants took him to a stairway where they assaulted him (cf. Docket No. 44, Hulton Decl. ¶ 3). Officer Hulton states that he was escorting plaintiff from the mess hall to a sergeant when (unprovoked) plaintiff struck Hulton in the jaw (id. ¶ 6, Exs. A, B; see also Docket No. 37, Paternostro Decl. ¶ 5; Docket No. 38, Dunbar Decl. ¶ 7, Ex. B). Hulton and officer Paternostro then used force to subdue the plaintiff (Docket No. 44, Hulton Decl. ¶¶ 7-8; Docket No. 37, Paternostro Decl. ¶¶ 6-7), with both officers suffering injuries from the incident (Docket No. 44, Hulton Decl. ¶ 10, Ex. C; Docket No. 37, Paternostro Decl. ¶ 8). Plaintiff was moved to cell CE-2 without further incident (Docket No. 44, Hulton Decl. ¶ 9). Plaintiff later testified that he did not recall having any interactions with defendant officers prior to this incident (Docket No. 32, Defs. Statement ¶ 26; Docket No. 42, Defs. Atty. Aff. Ex. A, Pl. EBT Tr. at 10-12).

Hawley later examined plaintiff and noted swelling to his right eye brow, superficial abrasions to his right shoulder but no swelling, a 4" by 3" reddening patch between his shoulder blades. Plaintiff complained of pain in his right hip but no swelling or redness noted. (Docket No. 32, Defs. Statement ¶ 23.) Plaintiff was not given any medication but was instructed to keep the abrasion clean (id. ¶ ...

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