United States District Court, W.D. New York
Derrick Williams pro se Alden, NY, for Plaintiff.
Gary M. Levine, A.A.G. New York State Office of the Attorney General, Rochester, NY, for Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Plaintiff Derrick Williams ("Williams"), an inmate at Greenhaven and Wende Correctional Facilities in New York State, alleges constitutional claims of denial of medical care against Dr. Robert Bentivegna (First Claim); Scott D. Leuthe, N.P. (Second Claim); Cheryl A. McKerrow, R.N. (Third Claim); Deborah Pearson, R.N. (Fourth Claim); Nurse Burke (Fifth Claim), Jacqueline Levitt, M.D. (Seventh and Eighth Claims); and various Jane Does (Sixth Claim). Now before the Court is Defendants' motion for summary judgment. For the reasons stated below, the application is granted.
Western District of New York local rule of civil procedure 56 provides in pertinent part as follows:
(1) Movant's Statement. Upon any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be annexed to the notice of motion a separate, short, and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
(2) Opposing Statement. The papers opposing a motion for summary judgment shall include a response to each numbered paragraph in the moving party's statement, in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried. 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.
(3) Citations. Each statement by the movant or opponent pursuant to this Local Rule must be followed by citation to evidence that would be admissible, as required by Federal Rule of Civil Procedure 56(e). Citations shall identify with specificity the relevant page and paragraph or line number of the authority cited.
In addition, the local rule provides that every pro se litigant must receive a notice concerning motions made under Federal Rule of Civil Procedure 56. In this case, Williams was served with the following notice in compliance with the local rule:
IMPORTANT NOTICE TO PRO SE LIDGANTS
RULE 56 MOTIONS FOR SUMMARY JUDGMENT
This Notice is to advise you that a party in your lawsuit has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which means that summary judgment will be granted if the Court finds 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. Fed.R.Civ.P. 56(c).
Failure to Respond to This Motion For Summary Judgment May Result in The Grant of Judgment in Favor of The Party Seeking Summary Judgment and The Dismissal of All or Part of The Case.
Opposing Affidavits and Exhibits
Therefore, if the motion seeks summary judgment against you, you MUST submit opposing papers in the form of one or more affidavits (or affirmations) made upon the personal knowledge of the person signing each affidavit. Each affidavit must set forth admissible facts and must show that the person submitting that affidavit is competent to testify as to the matters stated therein (because he or she has personal knowledge of the facts set forth in the affidavit). If you wish to submit exhibits in opposition to the motion, you may attach to the affidavit (or submit separately) sworn or certified copies or all papers or parts thereof which are referred to in an affidavit.
Statement of Material Facts Requiring a Trial
You MUST also submit a separate, short, and concise statement of the material facts as to which you contend there exists a genuine issue which must be tried See Rule 56 of the Local Rules of Civil Procedure (available on the Western District web site at www.nywd.uscourts.gov). Note that all of the material facts which have been set forth in the statement served on you by the moving party (which that party claims are material facts about which there is a genuine issue to be tried) will be deemed to have been admitted by you unless you controvert the facts in your statement of material facts presenting a genuine issue requiring a trial.
Memorandum of Law
You MUST also submit a separate answering memorandum of law, Local Rule 7.1(e), which may not exceed 25 pages in length without prior approval of the Court, Local Rule 7.1(f). Failure to comply may result in the ...