United States District Court, N.D. New York
LIONKING ZULU Plaintiff pro se
OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for
W. HICKEY, AAG
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
an inmate in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS"),
commenced this action pursuant to 42 U.S.C. § 1983,
asserting claims arising from when he was incarcerated at
Upstate Correctional Facility ("Upstate C.F.").
See Dkt. No. 11. In his amended complaint, Plaintiff
asserts an Eighth Amendment claim against Defendants Seymour
and Grant for allegedly tampering with his food. See
11, 2016, Defendants moved for summary judgment. See
Dkt. No. 44. In their motion, Defendants argue that Plaintiff
cannot establish their personal involvement in the alleged
constitutional violation, there are no disputed issues of
material fact precluding summary judgment, and they are
entitled to qualified immunity. See Id. In a
Report-Recommendation and Order dated March 3, 2017,
Magistrate Judge Stewart recommended that the Court grant
Defendants' motion. See Dkt. No. 61.
Specifically, Magistrate Judge Stewart found that Plaintiff
failed to put forth evidence demonstrating Defendants'
personal involvement in the alleged Eighth Amendment
violation and recommended granting Defendants' motion on
that basis. See Id. at 6-9.
before the Court is Magistrate Judge Stewart's March 3,
2017 Report-Recommendation and Order.
neither party objected to Magistrate Judge Stewart's
recitation of the relevant background facts, and because it
is consistent with the record, the Court adopts the factual
background set forth in Magistrate Judge Stewart's
Report-Recommendation and Order. See Dkt. No. 61 at
may grant a motion for summary judgment only if it determines
that there is no genuine issue of material fact to be tried
and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)
(citations omitted). When analyzing a summary judgment
motion, the court "cannot try issues of fact; it can
only determine whether there are issues to be tried."
Id. at 36-37 (quotation and other citation omitted).
Moreover, it is well-settled that a party opposing a motion
for summary judgment may not simply rely on the assertions in
its pleadings. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c) (e)).
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2502, 2513-14, 91 L.Ed.2d 202 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the
movant's statement of material facts, the court may not
rely solely on the moving party's Rule 56.1 statement;
rather the court must be satisfied that the citations to
evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5
(2d Cir. 2003) ...