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Miles v. Walawender

United States District Court, Second Circuit

May 7, 2013

GREGORY SEAN MILES, 04-A-1587, Plaintiff,


JEREMIAH J. McCARTHY, Magistrate Judge.

In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge [46].[1] Before me is defendants' motion for summary judgement [81]. Oral argument was held on February 28, 2013 [94]. For the following reasons, the motion is granted.


Plaintiff, an inmate, commenced this action pro se, seeking relief under 42 U.S.C. §1983, and has since been appointed counsel. The background of this case is fully set forth in my November 5, 2012 Decision and Order [78] denying defendants' Fed.R.Civ.P. ("Rule") 12(c) motion to dismiss.


A. Summary Judgment Standard

"Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the nonmovant. Summary judgment is improper if there is any evidence in the record that could reasonably support the jury's verdict for the non-moving party.'" Ford v. Reynolds , 316 F.3d 351, 354 (2d Cir. 2003).

While the moving party must demonstrate the absence of any genuine factual dispute, the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. " Matsushita Electric Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986) (emphasis in original). "An issue is genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.... The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Rojas v. Roman Catholic Diocese of Rochester , 660 F.3d 98, 104 (2d Cir. 2011) ( quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986)) (emphasis in original). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249-50.

B. Personal Involvement of Defendant Walawender

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §1983." Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994). Relying on his attendance records from the New York State Department of Corrections and Community Supervision ("DOCCS") (Walawender Declaration [82-1], Ex. A), defendant Walawender argues that he lacks personal involvement since he was not present at Five Points on March 4 or 9, 2010. Defendants' Memorandum of Law [81-2], Point I. Plaintiff's opposing Memorandum of Law [88] does not respond to this argument, and "effectively concedes [these] arguments by his failure to respond to them". Felske v. Hirschmann, 2012 WL 716632, *3 (S.D.N.Y. 2012). See Smith v. Riccelli Brokerage Services, LLC, 2011 WL 2007209, *5 (W.D.N.Y. 2011) (Skretny, J.) ("Plaintiff does not respond to Defendants' argument in her memorandum of law, thus it appears she concedes there is no aider and abettor liability under Title VII").

In any event, even accepting plaintiff's testimony that Walawender was present for the March 4, 2010 encounter, it is undisputed that at that time plaintiff was not ordered to walk through the metal detector without his leg brace. Plaintiff's Revised Opposing Statement of Undisputed Facts [91], § Sixty-Second. There is also no indication in the record that Walawender was present for the March 9, 2010 incident. Recognizing this, plaintiff concedes that his claim against defendant Walawender arises only from his failure to make defendant McAdam aware of the March 4, 2010 encounter and meeting. Defendants' Statement of Undisputed Material Facts [81-1], §29; Plaintiff's Revised Opposing Statement of Undisputed Material Facts [91], §Twenty-Ninth. However, nothing in the record suggests that he had the obligation or opportunity to do so. Therefore, I conclude that defendant Walawender should be dismissed for lack of personal involvement.

C. Eighth Amendment Deliberate Indifference by Defendant McAdam

"The [Eighth] Amendment... imposes duties on... officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates". Farmer v. Brennan , 511 U.S. 825, 833 (1994). "[U]nder 42 U.S.C. §1983, prison officials are liable for harm incurred by an inmate if the officials acted with deliberate indifference' to the safety of the inmate". Hayes v. New York City Department of Corrections , 84 F.3d 614, 620 (2d Cir. 1996). "An Eighth Amendment claim may also be asserted where prison officials deliberately disregard the unique needs of a disabled inmate." Carlson v. Parry, 2012 WL 1067866, *7 (W.D.N.Y. 2012) (Payson, M.J.).

"The test for deliberate indifference is twofold. First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent.... The second prong of the deliberate indifference test, culpable intent, in turn, involves a two-tier inquiry. Specifically, a prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Hayes , 84 F.3d at 620-621. "[T]he subjective element of deliberate indifference entails something more than mere negligence... [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result'". Hathaway v. Coughlin , 99 F.3d 550, 553 (2d Cir. 1996) ( quoting Farmer , 511 U.S. at 835). In order to prevail, plaintiff ...

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