WESTERN NEEW YOKR LAW CENTER MATTHEW A. PARHAM, ESQ., OF COUNSEL, Buffalo, New York, Attorneys for Plaintiff.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK (BENJAMIN K. AHLSTROM, ESQ., ASSISTANT ATTORNEY GENERAL, OF COUNSEL), Buffalo, New York, Attorneys for Defendants.
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the alleged violation of his rights under the Eighth Amendment to the Constitution. Specifically, he alleges that he was subjected to excessive force and that the defendants failed to protect him from the use of excessive force. Currently pending before the court is the defendants' motion for summary judgment. Dkt. # 121.
Plaintiff commenced this action on June 30, 2009 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983. Dkt. # 1. By order of the court filed November 6, 2009 (Dkt. # 4), plaintiff's complaint was limited to the following five specific claims:
1) excessive force against defendant Meyers arising from an incident on January 14, 2009;
2) excessive force against defendant Meyers arising from an incident on February 8, 2009;
3) excessive force against defendants Levulis and Durand arising from an incident on February 10, 2009;
4) failure to protect against defendants Zelinski, Pustullka, and Jones arising from the incident of February 10, 2009; and
5) procedural due process against an unserved John Doe defendant hearing officer.
The defendants filed an answer to the complaint on May 6, 2010. Dkt. # 8. On October 6, 2010, the parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). Dkt. # 27. On September 27, 2011, Plaintiff secured the services of an attorney. Dkt. # 112.
On November 28, 2012, defendants filed this motion for summary judgment, arguing, inter alia, that plaintiff failed to exhaust his administrative remedies and failed to adequately state a constitutional violation. Dkt. # 121. Plaintiff conceded that he failed to exhaust his administrative remedies with respect to the incidents of January 14, 2009 and February 8, 2009 and did not oppose the motion dismissing those claims. Additionally, he did not oppose the dismissal of his procedural due process claim as against the unserved John Doe hearing officer. Dkt. #129, p. 1, n.1. Accordingly, the only claim remaining for the court's determination on the present motion is plaintiff's Eighth Amendment excessive force/failure to protect claim arising from the incident of February 10, 2009.
The court has determined that oral argument is unnecessary. For the reasons that follow, defendants' motion for summary judgment is ...