United States District Court, N.D. New York
BOWIE Plaintiff, pro se
LETITIA JAMES Attorney General for the State of New York
Attorney for Defendants
MATTHEW P. REED, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
MIROSLAV LOVRIC UNITED STATES MAGISTRATE JUDGE
pro se Edmund Bowie ("Bowie" or
"Plaintiff"), an inmate who was, at all relevant
times, in the custody of the New York Department of
Corrections and Community Supervision ("DOCCS"),
brings this action pursuant to 42 U.S.C. § 1983 against
Defendants Sergeant Gary Woodruff ("Sgt. Woodruff")
and Correctional Officer Kyle Brooks ("C.O.
Brooks") for violations of his rights under the Eighth
Amendment. Dkt. No. 1 ("Compl."). Presently before
the Court is Defendants' motion for summary judgment and
dismissal of Bowie's complaint pursuant to Rule 56(a) of
the Federal Rules of Civil Procedure. Dkt. No. 29. Bowie did
not oppose the motion. For the following reasons, it is
recommended that Defendants' motion for summary judgment
Plaintiff's Failure to Respond
discussing the background of this case, the Court addresses
Bowie's failure to respond or oppose the motion. The
Second Circuit requires that a pro se litigant defending
against a summary judgment motion be notified as to the
nature and consequences of summary judgment. Vital v.
Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d
Cir.1999); see also Local Rule 56.2 (Notice to Pro
Se Litigants of the Consequences of Failing to Respond to a
Summary Judgment Motion). Here, Bowie was notified of the
consequences of failing to respond to a summary judgment
motion by Defendants and the Court. Dkt. No. 29 at 3; Dkt.
No. 30. Given this notice, Bowie was adequately apprised of
the pendency of Defendants' motion and the consequences
of failing to respond. On May 21, 2019, Bowie filed a Notice
of Change of Address and requested an extension of time to
file his response to the motion. Dkt. Nos. 31 and 32. The
Court granted the extension and directed Bowie to provide a
response on or before June 21, 2019. Dkt. No. 33. Despite the
extension, Bowie has not submitted opposition to
Defendants' motion for summary judgment.
fact that there has been no response to a summary judgment
motion does not . . . mean that the motion is to be granted
automatically." Champion v. Artuz, 76 F.3d 483,
486 (2d Cir. 1996). The Court has broad discretion to decide
whether to overlook the parties' failures and perform an
independent review of the record. Holtz v. Rockefeller
& Co., 258 F.3d 62, 73 (2d Cir. 2001); see also
Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014)
(noting that "the court may rely on other evidence in
the record even if uncited" in determining the
undisputed material facts). If the district court chooses to
conduct such an independent review of the record, any
verified complaint filed by the plaintiff should be treated
as an affidavit in opposing a motion for summary judgment.
Patterson v. County of Oneida, 375 F.3d 206, 219 (2d
because the Complaint is verified,  the Court will accept the
pleading as an affidavit to the extent that the statements
are based on Bowie's personal knowledge or are supported
by the record. See Berry v. Marchinkowski, 137
F.Supp.3d 495, 530 (S.D.N.Y. 2005) (collecting cases to
support the proposition that a court may consider unsworn
assertions on a motion for summary judgment where they are
based on the plaintiff's personal knowledge and in light
of special solicitude).
Bowie's pro se status, the Court has opted to review the
entire summary judgment record to ascertain the undisputed
material facts. Consequently, the facts set forth in
Defendants' Rule 7.1 Statement of Material
Facts are accepted as true as to those facts
that are not disputed by the facts set forth in the
Complaint. N.D.N.Y. L.R. 7.1(a)(3) ("The Court shall
deem admitted any properly supported facts set forth in the
Statement of Facts that the opposing party does not
specifically controvert.") (emphasis omitted).
time of the incidents described in the Complaint, Bowie was
an inmate in the custody of DOCCS and confined at Great
Meadow Correctional Facility ("Great Meadow C.F.").
See generally, Dkt. No. 1.
claims that he was involved in a physical altercation with
Sgt. Woodruff and C.O. Brooks on June 10, 2017. Dkt. No. 1 at
2-3. Bowie alleges that Sgt. Woodruff and C.O. Brooks used
excessive force and failed to intervene to protect him from
the use of force, in violation of his Eighth Amendment
rights. Id. at 4.
23, 2017, Bowie filed an Inmate Grievance Complaint
(Grievance No. 62268-17) related to the June 10, 2017
incident. Dkt. No. 29-3 at 3, 6. Bow ie alleged:
I was involved in a altercation in the big yard on (6-10-17)
at which time I was handcuffed and taken to the facility
infirmary. While in the infirmary check up room, Sergeant
John Doe asked me questions which I answered. He said I was
not trueful [sic] and proceed[ed] to slap me in the back of
the head. He asked me some more questions[, ] again I
answered. He once again told me I was a liar [and] told
Officer John Doe to hold me against the wall while another
officer punched me in the ribs 4 or 5 times breaking 2 of my
ribs which resulted in me going to Albany Med.
Dkt. No. 29-3 at 6.
10, 2017, the Grievance Clerk received the grievance. Dkt.
No. 29-3 at 3. Due to the nature of the grievance, the Inmate
Grievance Resolution Committee ("IGRC") forwarded
the grievance directly to the facility Superintendent for
August 9, 2017, the Superintendent issued a decision stating
that the grievance was investigated and denied. Dkt. No. 29-3
at 7. On August 21, 2017, Bowie signed the Appeal Statement
indicating that he wished to appeal the Superintendent's
decision to the Central Office Review Committee
("CORC"). Id. On August 23, 2017, the
Grievance Clerk received and ...