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Sanchez v. Ziolkowski

United States District Court, W.D. New York

July 14, 2015

LUIS SANCHEZ, Plaintiff,
v.
OFFICER ZIOLKOWSKI, OFFICER BRUN, OFFICER FITCH, SGT. JOHN DOE, NURSE DONNA BONNING, NURSE JANE DOE, NURSE HEWLEY, [1] and OFFICER JOHN DOE 1-6, Defendants.

Luis Sanchez pro se, Brooklyn, NY, for Plaintiff.

Bernard F. Sheehan, A.A.G, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This prisoner civil rights action is before the Court on Defendants' motion for summary judgment filed on March 31, 2015, ECF No. 9. For the reasons stated below, Defendants' application is granted.

BACKGROUND

Pursuant to the local rules, Defendants filed a statement of fact, and served Plaintiff with a copy, as well as with a notice advising Plaintiff of the need to respond to the statement of facts. The statement advised Plaintiff using this language:

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 ASSERTS 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 whishes 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.

Def.s' Rule 56.2 Notice to Pro Se Litigants Opposing Summary Judgment, Mar. 31, 2015, ECF No. 9-1. The Court issued a motion scheduling order directing that Plaintiff respond to the motion by May 5, 2015, and set July 30, 2015, as the date for oral argument. To date, Plaintiff has not responded to the statement of facts. The Second Circuit held in Glazer v. Formica Corp., 964 F.2d 149 (2nd Cir. 1992) that,

When a party has moved for summary judgment on the basis of asserted facts supported as required by Fed.R.Civ.P. 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.

Id. at 154. Since Plaintiff has not responded, the Court deems the assertions of fact[2] in Defendants' statement admitted for the purposes of this motion.

1. Defendant Donna Bonning RN is a registered nurse, and she is licensed as a nurse to practice medicine in New York State. Declaration of Donna Bonning RN, dated March 26, 2015, ¶ 2.
2. Defendant Bonning has been employed as a nurse doctor by the New York State Department of Corrections and Community Supervision (DOCCS) for the past 6 years. Bonning Decl. ¶ 4.
3. During the relevant period, Defendant Bonning was a nurse assigned to Attica Correctional Facility (Attica). Bonning Decl. ¶ 5.
4. Defendant Vance Hawley RN is a registered nurse, and he is licensed as a nurse to practice medicine in New York State. Declaration of Vance Hawley RN, dated March 30, 2015, ¶ 2.
5. Defendant Hawley was assigned as a nurse to Attica in 2010, but he no longer works for Attica or DOCCS. Hawley Decl. ¶ 4.
6. During the relevant period, Defendant Hawley was a nurse assigned to Attica. Hawley Decl. ¶ 4.
7. Mr. Sanchez, who is the Plaintiff in this matter, was an inmate at Attica during the relevant time. Bonning Decl. ¶ 6; Hawley Decl. ¶ 6.
8. Plaintiff has since been released from custody.
9. Mr. Sanchez claims that he was assaulted on December 30, 2010 by corrections officers while he was at Attica. Bonning Decl. ¶ 8; Hawley Decl. ¶ 8; Docket No. 1 at 12.
10. He claims that his nose was broken and that he needed surgery to repair the damage. Bonning Decl. ¶ 9; Hawley Decl. ¶ 9; Docket No. 1 at 12.
11. Mr. Sanchez claims that, after he was assaulted, Defendants Bonning and Hawley failed to provide him adequate medical treatment.
Bonning Decl. ¶ 10; Hawley Decl. ¶ 10; Docket No. 1 at 14-15, 18-19.
12. Plaintiff's claims are not true.
13. Attached as Exhibit A to the Bonning Declaration and to the Hawley Declaration are true and correct copies of Mr. Sanchez's use of force examination report and Ambulatory Health records. Bonning Decl. ¶ 13; Hawley Decl. ¶ 13.
14. The pages of Exhibit A have been numbered in the lower right corner for ease of reference.
15. Exhibit A to the Bonning Declaration is the same as Exhibit A to the Hawley Declaration.
16. As shown below and in Exhibit A, Plaintiff was provided proper and adequate medical care while he was at Attica Correctional Facility.
17. There was a use of force involving Mr. Sanchez on December 30, 2010. Bonning Decl. ¶ 15; Hawley Decl. ...

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