United States District Court, W.D. New York
Clyde Gerbrick, Southport Correctional Facility, Pine City, NY, For Plaintiff.
Bernard F. Sheehan, A.A.G., NY State Attorney General's Office, Rochester, NY, For Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This prisoner civil rights case is before the Court on a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5), or in the alternative, for summary judgment, pursuant to Rule 56. The motion was filed on July 21, 2014, by defendant Dr. Ben Oakes, ECF No. 12. Included in the motion papers was a detailed Irby  notice directing plaintiff Clyde Gerbrick ("Gerbrick") to respond to the motion, and a certificate of service showing that the motion papers were sent to Gerbrick both at Sullivan Correctional Facility, and at Southport Correctional Facility ("Southport"). The Court issued an Order directing Gerbrick's to file his response by August 25, 2014. To date, Gerbrick has not responded, and the Court has not received any notice that its Order was undeliverable to Gerbrick at the address he had provided to the Court. For the reasons stated below, the Court grants the unopposed application and grants summary judgment to Dr. Oakes.
Gerbrick filed an amended complaint on April 2, 2014 after the Court administratively terminated this action in January 2014 as a result of his failure to submit an in forma pauperis application that included a completed and signed prison certification. In the amended complaint, ECF No. 7, Gerbrick that while at Southport, on December 15, 2013, he was assaulted and suffered two broken bones. He claims that he was seen by Dr. Oakes, but that the doctor failed to treat him for broken bones.
In his motion papers, Dr. Oakes included the following statement, as required by local rule:
RULE 56.2 NOTICE TO PRO SE LITIGANTS OPPOSING SUMMARY JUDGMENT
Any party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a "Notice to Pro Se Litigant Opposing Motion For Summary Judgment: in the form indicated below. Where the pro se party is not the plaintiff, the movant shall amend the form notice as necessary to reflect that fact.
Notice to Pro Se Litigant Opposing Motion For Summary Judgment
Plaintiff is hereby advised that the defendant has asked the Court to decide this case without a trial based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF AS-SERTS IN HIS/HER COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS MOTION by filing his/her own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements which may include plaintiff's own statements, must be in the form of affidavits. Plaintiff may file and serve affidavits that were prepared specifically in response to defendant's motion for summary judgment.
Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendant. If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true. Judgment may then be entered in defendant's favor without a trial.
Pursuant to Rule 7.1(e) and 56.1 of the Local Rules of Civil Procedure for the Western District of New York, plaintiff is required to file and serve the following papers in opposition to the motion: (1) a memorandum of law containing relevant factual and legal argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short, and concise statement of the material facts as to which plaintiff contends there exists a genuine issue to be tried followed by citation to admissible evidence. In the absence of such a statement by plaintiff, all material facts set forth in defendant's statement of material facts not in dispute will be deemed admitted. A copy of the Local Rules to which reference has been made may be obtained from the Clerk's Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office.
Plaintiff must file and serve any supplemental affidavits or materials in opposition to defendant's motion no later than the date they are due as provided in Rule 56.1(e) of the Local Rules of Civil Procedure for the Western District of New York.
Notice to Pro Se Litigant Opposing Motion for Summary Judgment, Jul. 21, 2014, ECF No. 12-1.
Dr. Oakes also filed a statement of facts pursuant to Western District of New York Local Rule of Civil Procedure 56(a)(1). Because Gerbrick has not contested Dr. Oakes statement, the Court adopts it in its entirety. L.R. 56(a)(2) ("Each numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.") Dr. Oakes' Rule 56 statement provides as follows:
1. Defendant Benjamin Oakes, RPA-C, is a registered and certified physician's assistant, licensed to practice as a physician's assistant in New York State. Declaration of Benjamin Oakes, RPA-C, dated July 18, 2014 ("Oakes Decl.") ¶ 2.
2. Defendant Oakes has been employed as physician's assistant by New York State Department of Corrections and Community Supervision ("DOCCS") for the past 7 years. Oakes Decl. ¶ 4.
3. During the relevant period, defendant Oakes was a physician's assistant assigned to Southport ...