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Vensel Hardy v. Sergeant Christina Loverde

March 11, 2013


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge



Plaintiff, proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Eighth Amendment rights while he was incarcerated at Attica Correctional Facility. Pending before this Court is Defendants' motion for summary judgment dismissing the complaint. This Court finds the matter fully briefed and oral argument unnecessary and, for the reasons discussed below, concludes that Defendants' motion should be granted.


Plaintiff's claims of excessive force, failure to protect, and medical indifference arise from three alleged incidents occurring on October 7, 2008, November 5, 2008, and November 29, 2008. He originally filed the instant action in the Southern District of New York on December 16, 2008. The matter was then transferred to this Court by order dated February 23, 2009. (Docket No. 1.)

Plaintiff filed an Amended Complaint and Supplement to the Amended Complaint, which were deemed to constitute the operative pleading in this action by the April 2010 order of Magistrate Judge Foschio. (Docket Nos. 27, 29, 30.) Defendants now move for summary judgment dismissing the Amended Complaint in its entirety. (Docket No. 82.)*fn1


"A motion for summary judgment may properly be granted . . . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248), cert denied, 540 U.S. 811 (2003). A court must also "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).

Further, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.' " Triestman v. Federal Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)(emphasis in original) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). "A pro se plaintiff, however, cannot defeat a motion for summary judgment by simply relying on the allegations of his complaint; he must present admissible evidence from which a reasonable jury could find in his favor." Belpasso v. Port Auth. of New York & New Jersey, 400 Fed. Appx. 600, 601 (2d Cir. 2010); see Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (summary judgment properly entered against pro se plaintiff who failed to oppose motion with admissible evidence after receiving plainly worded warning of the consequences of such failure). "[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.

A. Failure to Exhaust Administrative Remedies

Defendants first contend that they are entitled to summary judgment on all of Plaintiff's claims because he failed to exhaust the administrative remedies available to him through the Inmate Grievance Program. (Def's Mem of Law at 3-7.) Pursuant to the Prison Litigation Reform Act of 1995 ("PRLA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §] 1983 . . ., or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e (a); see Espinal v Goord, 558 F.3d 119, 123-24 (2d Cir. 2009). "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). "[T]he scope of proper exhaustion under the PRLA is determined by reference to the state grievance system's procedural rules." Espinal, 558 F.3d at 126 (citing Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007)). Plaintiff was therefore required to have utilized all steps in the Inmate Grievance Program prior to commencing this action. Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009); Espinal, 558 F.3d at 125-126; see generally 7 NYCRR § 701.1 et seq. (Inmate Grievance Program regulations).

In support of their contention, Defendants submitted the declaration of Mark Janes, the Inmate Grievance Coordinator at Attica Correctional Facility. (Docket No. 88.) Janes asserts that he searched DOCCS' grievance records and found no grievances filed by Plaintiff concerning the alleged October and November 2008 incidents. (Janes Decl. ¶¶ 6-7.) Plaintiff, however, alleges that he did grieve both the October and November allegations, but he "was not call out for the grieve [sic]." (Am. Compl. at 4-5; Pl's Dep at 30, Ex A to Decl. of Kathleen M. Kaczor, Esq., Docket No. 85.) The strongest argument this allegation suggests is that Defendants impermissibly ignored his grievance. See Hemphill v. New York, 380 F.3d 680, 687 n. 6 (2d Cir. 2004) (failure to respond to a grievance within the time limits contained in the grievance regulations renders the administrative remedy unavailable).

Plaintiff offers no evidence to support this assertion. Notably, Plaintiff's failure to produce copies of his allegedly filed grievances is suspect where he submitted copies of his numerous grievances from 2003 and 2007 with his original complaint. (Docket No. 9.)

More importantly, Plaintiff fails to allege specifically when he filed the grievance or grievances related to his current claims. This is relevant because the Inmate Grievance Resolution Committee has sixteen days from the filing of a grievance to either resolve the issue informally or schedule a hearing. 7 N.Y.C.R.R. ยง 701.5(b)(1),(2)(ii). Here, Plaintiff's original complaint was received by the Southern District's pro se office on December 16, 2008, barely seventeen days after the alleged November 29, 2008 incident. Because Plaintiff fails to offer evidence, or even more specific allegations, regarding the date that he filed his grievance or grievances, there is not even a scintilla of evidence to support the conclusion that Defendant failed to timely respond to any grievance on Plaintiff's allegations. Anderson, 477 U.S. at 252; see Mitchell v. Senkowski, 158 Fed. Appx. 346, 350 (2d Cir. 2005) (conclusory assertion that prison officials obstructed grievance process insufficient to ...

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