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Smolen v. Dildine

United States District Court, W.D. New York

July 9, 2014

SAMUEL J. SMOLEN, JR., [1] Plaintiff,
C.O. ROBERT K. DILDINE, et al., Defendants.


CHARLES J. SIRAGUSA, District Judge.


This is an action pursuant to 42 U.S.C. ยง 1983 in which prison inmate Samuel Smolen ("Plaintiff") alleges that staff members at Southport Correctional Facility ("Southport") violated his federal constitutional rights in August 2008. Now before the Court is Defendants' motion for summary judgment (Docket No. [#8]). The application is granted and this action is dismissed.


On or about August 31, 2011, Plaintiff commenced the instant action.[2] The Complaint [#1] alleges that on August 27, 2008, at Southport, Corrections Officers Robert Dildine ("Dildine"), Eric Jaynes ("Jaynes") and Jason Hayes ("Hayes") assaulted Plaintiff in his cell while he was handcuffed behind his back, in retaliation for grievances that he had filed. Curiously, though, only six days after the alleged assault, on September 2, 2008, Plaintiff filed an inmate grievance in which he claimed that he was assaulted by only two corrections officers, not three.[3]

In any event, the Complaint [#1] alleges that other corrections officers failed to intervene in the assault, and that immediately following the assault, Angela Gorg, R.N. ("Gorg") failed to accurately record or treat his injuries. On that point, however, the Complaint [#1] alludes to "injuries, " but does not indicate that Plaintiff sustained any particular injury.[4] Plaintiff further alleges that while Gorg was examining him, Corrections Sergeant D. Holton ("Holton"), Corrections Officer R. Lovejoy ("Lovejoy"), Corrections Officer S. Davis ("Davis") and Corrections Officer M. Labar ("Labar") used excessive force against him, "in the way they held [his] restraints and [the way they] pushed and pulled [his] body, " and "verbally abused" him by calling him "foul names" and telling him to "shut up" when he yelled in pain.[5] Plaintiff maintains that Lovejoy, Davis and Labar mistreated him in that manner in retaliation for him filing grievances. Additionally, Plaintiff contends that Holton, as well as Corrections Officer R. Held ("Held") and Corrections Officer J. Little ("Little") failed to protect him from the physical and verbal abused by Lovejoy, Davis and Labar.

The Complaint further blames Southport's Superintendent, David Napoli ("Napoli"), and Deputy Superintendent for Security, J. Colvin ("Colvin"), for failing to prevent the attack. Specifically, the Complaint indicates that prior to August 27, 2008, Plaintiff sent letters to Napoli and Colvin, indicating that he was "being threatened by staff for filing complaints and grievances."[6] However, the Complaint [#1] does not indicate that such letters indicated that he was in imminent danger of physical harm, or that the threats were made by any defendant in this action.[7] To the contrary, a grievance form that is attached to the Complaint [#1] indicates that Plaintiff previously complained of "abuse and threats" from Corrections Officer "J. Robinson, " who is not a party to this action.[8]

Following the alleged attack, Plaintiff was issued a misbehavior report, which accused him of having attempted to spit on staff.[9] In that regard, Defendants maintain that it was necessary to use physical force to restrain Plaintiff because he attempted to spit on the Corrections Officers. Plaintiff was found guilty of the charge at a disciplinary hearing. Plaintiff contends that Hearing Officer J. Esgrow ("Esgrow") violated his due process rights at the hearing by failing to request a "timely extension" of the hearing, by failing to allow him to call witnesses, by "choosing to ignore the contradictory evidence" and by convicting him without proof.[10] Plaintiff further contends that the New York State Department of Corrections and Community Supervision's ("DOCCS") Director of Special Housing, Norman Bezio ("Bezio"), violated his rights by granting an extension to continue the disciplinary hearing, and by later affirming Esgrow's determination.

The Complaint indicates that Plaintiff is suing Dildine, Jaynes, Hayes, Gorg, Holton, Jovejoy, Davis, Labar, Napoli, Colvin, Bezio, Esgrow, [11] Held and Little in their individual and official capacities. The Complaint [#1] demands both money damages and injunctive relief. As for injunctive relief, the Complaint demands that Plaintiff be transferred out of Southport, and that DOCCS "install color recording video cameras in all inside and outside areas of [Southport]."[12]

Plaintiff signed the pro se Complaint on August 20, 2011, just one week before the three-year statute of limitations expired as to most of his claims.

On February 6, 2012, Defendants filed the subject motion for summary judgment [#8].[13] The motion is supported by an affidavit from Hayes, a medical report from Gorg, and the transcript of the prison disciplinary hearing. The affidavit from Hayes indicates that while he was transporting Plaintiff to the showers on August 27, 2008, Plaintiff turned and attempted to spit on him, whereupon he applied a body hold and put Plaintiff back in his cell. Hayes admits that he placed Plaintiff face down on his bunk, because Plaintiff was struggling. However, Hayes denies striking Plaintiff or otherwise using excessive force, and indicates that he did not see any other staff strike Plaintiff or use excessive force.

Gorg's medical report indicates that she examined Plaintiff after the incident, and saw only a "large red area [on his] mid to upper back crossing his shoulder blades, " for which he did not require treatment.

The transcript of the disciplinary hearing indicates, in pertinent part, the following: 1) Esgrow advised Plaintiff of his rights at the hearing, including the right to offer evidence and request witnesses; 2) Esgrow adjourned the hearing for a week, because he needed to line up witnesses that Plaintiff had requested, and because he was away from work for a week; 3) Esgrow provided Plaintiff with reports and photographs from the incident; 4) corrections officers testified that they used force to place Plaintiff back in his cell after he attempted to spit, and that they did not use their fists to hit him; 5) Plaintiff testified that the officers may have thought he was going to spit because his mouth was open, because he had been to the dentist earlier that day;[14] 6) Esgrow permitted testimony by inmate witnesses, but only one inmate agreed to testify, and that inmate indicated that he did not see what happened, but only heard Plaintiff say, "What did I do to deserve this?"; 7) Esgrow showed Plaintiff documents that other inmates had signed, indicating that they did not wish to testify; 8) Plaintiff commented during the hearing that Esgrow had initially been "very fair" to him, but later stated that he thought Esgrow's "tone" had changed, and that he was not being impartial;[15] and 9) at the close of the evidence, Esgrow found Plaintiff guilty of the charges and explained why.[16]

After Defendants filed their motion, the Court extended the pro se inmate Plaintiff's time to respond to Defendants' motion, at least twice. On August 16, 2012, the Court issued an Order [#16] responding, in part, to a request by Plaintiff that he be permitted to conduct discovery before responding to the summary judgment motion. On that point, the Court advised Plaintiff that he could make an application pursuant to "Rule 56(d), formerly 56(f), " and that he would need to submit an affidavit explaining what discovery he needed and how it would be likely to create a triable issue of fact. However, Plaintiff never made such an application.

On October 19, 2012, the Court issued a "Final Amended Scheduling Order" [#23], which directed Plaintiff to file and serve a response to the summary judgment motion by November 9, 2012. By that time, Plaintiff had been in possession of Defendants' motion papers for ten months. Nevertheless, and despite the subsequent passage of eighteen months since that deadline, Plaintiff never responded to the summary judgment motion or filed any additional papers in this action.


Rule 56

Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

A party cannot demonstrate a triable issue of fact based on mere speculation or conjecture. See, e.g., U.S. v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982) ("[I]n order to defeat a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Such an issue is not created by a mere allegation in the pleadings, nor by surmise or conjecture on the part of the litigants.") (emphasis added; citations and internal quotation marks omitted); see also, D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) ("The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.") (emphasis added); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) ("In determining whether a genuine issue of material fact exists for trial, we are obliged carefully to distinguish between evidence that allows for a reasonable inference... and evidence that gives rise to mere speculation and conjecture.") (citation and internal quotation marks omitted).

"The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact. However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP ...

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