BENJAMIN BROWNLEE, Plaintiff Pro Se, 10-A-1145, Marcy Correctional Facility, Marcy, New York.
C. HARRIS DAGUE, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for Defendants.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro se Benjamin Brownlee ("Brownlee"), an inmate currently in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, eleven DOCCS employees, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1 at 1-11). Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 53. Brownlee does not oppose the motion. For the following reasons, it is recommended that defendants' motion be granted.
I. Failure to Respond
Brownlee did not oppose defendants' motion even though the Court notified him of his response deadline. Dkt. No. 54. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz , 76 F.3d 483, 486 (2d Cir. 1996). Defendants provided notice in their motion papers as required by the Second Circuit and as normally done by the office of defendants' counsel. Id .; Dkt. No. 53-1. Further, because Brownlee's custodian, Marcy Correctional Facility ("Marcy"), accepted responsibility for causing delay in Brownlee's legal work, the Court granted Brownlee an extension to file a response in opposition. Text Order dated 5/29/2013. Upon Brownlee's letter motion received on June 14, 2013 requesting an extension of time to file a response, the Court granted Brownlee an extension of July 29, 2013. Dkt. Nos. 61, 62. Despite these notices and extensions, Brownlee failed to respond.
"The fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Champion , 76 F.3d at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id .; FED. R. CIV. P. 56(c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted); see also Patterson v. Cnty. of Oneida , 375 F.3d 206, 219 (2d Cir. 2004) (same). The facts set forth in defendants' Rule 7.1 Statement of Material Facts (Dkt. No. 53-2) [hereinafter "Defs.' Statement"] are accepted as true as to those facts that are not disputed in Brownlee's complaint. N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.") (emphasis in original).
At all relevant times, Brownlee was incarcerated at Auburn Correctional Facility ("Auburn").
On July 5, 2011, Brownlee was stabbed by another inmate and Brownlee sustained multiple wounds. Compl. at 7; Defs.' Statement ¶ 4; Dkt. No. 1 at 31, 35-36. While being escorted to receive medical treatment, Brownlee was slapped by defendant Walts and assaulted by defendant Zehr. Compl. at 8. After this altercation, defendant Sergeant Parry authored a misbehavior report against Brownlee for fighting, failing to follow a direct order, engaging in violent conduct, and creating a disturbance. Dkt. No. 1 at 32. A disciplinary hearing was conducted from July 22, 2011 through July 26, 2011 and Brownlee was found guilty of all rule violations except for creating a disturbance. Id . at 33. On September 19, 2011, the July 26, 2011 hearing disposition was affirmed. Dkt. No. 1 at 43.
On August 1, 2011, Brownlee filed a grievance concerning the July 5, 2011 inmate altercation to the inmate grievance resolution committee ("IGRC"). Compl. at 31; Dkt. Nos. 1 at 31, 53-5 at 10. Brownlee complained that defendants Hesse, Hutchings, and Parry "failed to properly secure the scene...." Id . Brownlee contends that this grievance, "affirmed" on September 19, 2011, was taken out of his institutional record. Compl. at 4.
Non-party Parmiter, Auburn's inmate grievance program supervisor, attested that a search of Brownlee's grievance records shows Brownlee had filed only one grievance pertaining to the July 5, 2011 altercation, which is dated August 1, 2011. Defs.' Statement ¶¶ 6, 12-14; Parmiter Decl. (Dkt. No. 53-5) ¶¶ 1, 8-10. That grievance is the same one attached to Brownlee's complaint. Parmiter Decl. ¶ 10; Dkt. No. 53-5 at 10. The grievance was investigated and the superintendent denied it on September 23, 2011 because the investigation showed no evidence existed to support Brownlee's allegations. Defs.' Statement ¶ 15; Dkt. No. 53-5 at 5. Parmiter attested there are no grievances in Brownlee's records showing that he complained about grievances not being processed, not receiving responses to grievances, or having grievances removed from his files. Defs.' Statement ¶ 17; Parmiter Decl. ¶ 13.
Non-party Hale, assistant director of the Inmate Grievance Program ("IGP"), who maintains the Central Office Review Committee's ("CORC") records, attested that a search of the appeals received by CORC from Brownlee indicates Brownlee never appealed the grievance dated August 1, 2011. Defs.' Statement ¶ 24; Dkt. No. 53-4 at 4. Furthermore, Hale attested that Brownlee never appealed any grievance dispositions involving (1) excessive force, (2) Auburn employees failing to protect Brownlee from an inmate assault, or (3) being ...