Opinion
Civ. No. 99-4428 (DRD).
September 26, 2001
Mr. Darryl Allmond Chrysanthemum Drive, Alexandria, VA, Plaintiff Pro Se.
John J. Farmer, Jr., Esq. Attorney General of New Jersey, By: Katherine M. Brooks, Esq. Deputy Attorney General, Trenton, New Jersey.
Attorneys for Defendants Jack Terhune, James Barbo, Gary Hilton, Dr. Richard Cervasco, Howard Beyer, Dr. Thomas Farrell, Michelle Ricci, Lydel Sherrer, Joseph Rogers, Lt. Gillagen Craig Russo, Thomas Whitley, Derrick Miner, Derrick McGee, Naim Sallam, Charles Newsome, Renee Arvin, Joanne Clark, Georgina Bussey, Capt. Allen, Sgt. Collins, Officer Ramas, Stith, Fowles, Wallace, James Larkin, William Diller, Officer Joyner, Frank Pedalino, and Maggie Aguerro.
Daniel R. Esposito, Esq. Kalison, McBride Jackson Liberty Corner, New Jersey, Attorney for Defendants Correctional Behavioral Solutions, Inc.
Stephen D. Holtzman, Esq. Christine M. English-Martin, Esq. Lally, Holtzman, Gilligan Quasti, P.C. Linwood Commons Linwood, New Jersey, Attorneys for Defendants Correctional Medical Services, Inc., Nurse McCall and Barry Hawlk.
OPINION
This is an action brought by plaintiff for compensatory damages, punitive damages, declaratory and injunctive relief, arising out of numerous incidents which allegedly occurred while plaintiff was incarcerated at Northern State Prison. Plaintiff alleges, inter alia, the defendants collectively actively conspired to deny him adequate medical care, or passively condoned the acts or omissions of others intended to deny plaintiff medical treatment, thereby causing violations of 42 U.S.C. 1983, his rights provided by the United States Constitution, and the Americans with Disabilities Act, and the Rehabilitation Act.
There are six motions pending before the Court. (i) Plaintiff has moved for summary judgment; (ii) defendants Correctional Medical Services, Inc., Nurse McCall and Barry Hawlk, ("CMS defendants") move to dismiss and/or for summary judgment; (iii) defendant Correctional Behavioral Solutions, Inc.,("CBS") moves for summary judgment; (iv) defendants Jack Terhune, Gary Hilton, Dr. Richard Cevasco, Howard L. Beyer, John Forker, Dr. Thomas Farrell, James Barbo, Lydell Sherrer, Joseph Rodgers, Sgt. Russo, Officer Miner, Officer McGee, Sgt. Whitley, Officer Salaam, Michelle Ricci, Lt. Gilgallen, Officer Newsome, Officer Clark, Officer Arvin, Sgt. Collins, Officer Stith, Officer Fowles, Captain Allen, Frank Pedalino, Officer Wallace, Officer Joyner, Officer Ramas, Officer Hosten, Hearing Officer Larkin, Georgina Bussey, William Diller, and Maggie Aguerro ("the state defendants") move for summary judgment as to all claims against the state defendants claiming deliberate indifference to a serious medical need; (v) Plaintiff also moves for the appointment of pro bono counsel and (vi) appeals the Magistrate Judge's discovery order dated February 26, 2001.
For the reasons set forth below, plaintiff's motion for summary judgment is denied; CMS defendants' motion to dismiss and/or for summary judgment is granted; CBS' motions for summary judgment is granted; the state defendants' motion for partial summary judgment is granted; plaintiff's motion for pro bono counsel is denied; and the Magistrate Judge's Order is affirmed. The Court will dismiss the ADA and Rehabilitation Act claims against the state defendants for the same reasons it will dismiss the ADA and Rehabilitation Act claims against other defendants.
In addition, plaintiff has brought a claim that state defendants, Hoftner and Joynder interfered with his mail and thus interfered with his ability to litigate his claims. There is no evidence that the acts of either of these defendants constituted constitutional violations and the claims will be dismissed. In his amended complaint, plaintiff sets forth a litany of actions which he alleges were wrongful or with which he disagreed. None state a valid claim of a constitutional wrong.
STATEMENT OF FACTS
Pro se plaintiff Darryl Allmond was incarcerated in Northern State Prison. In his complaint and amended complaint, he alleges the underlying bases for his complaint are the following incidents:· From July 29, 1998 through April 1999, Defendant Clark refused plaintiff the use of a lower bunk bed although he knew plaintiff was injured, causing plaintiff pain and injury.
· On November 17, 1998, the plaintiff was denied medical attention by "the second shift officer."
· On November 19, 1998, and November 24, 1998, plaintiff was refused medical treatment, although he was on the "past list", and at times had to wait months to receive prescription refills.
· On August 2, 1998, plaintiff's name was placed on the doctor call list for August 4, 1998, but was denied medical treatment for pain to his "knee and kiney's" (sic), and subsequent requests for treatment on August 8, 1998, August 9, 1998 and August 13, 1998, were again denied.
· On January 6, 1999, Defendant Clark slammed plaintiff's arm into the cell door. Plaintiff further claims Defendant Clark refused plaintiff medical treatment at this time.
· On January 24, 1999, Defendant Newsome assaulted plaintiff with a cell door, causing plaintiff pain to his arm, shoulder and spine, refused to give plaintiff medical treatment, and further alleges that the medical department failed to provide plaintiff with treatment for his injuries for two months.
· On February 26, 1999 and March 19, 1999, Defendant Kilgalen caused plaintiff mental stress and emotional abuse by threatening him with physical harm.
· On April 8, 1999, July 8, 1999, and August 30, 1999, and "other times", Defendants Officer Miner and McGee harassed the plaintiff by taunting him. Plaintiff further alleges he informed Lt. Hayes about the harassment.
· On April 28, 1999 he was assigned to the loading dock where he was required to load and unload trucks, causing him to sustains injuries, and the prison doctor found his injuries on May 29, 1999.
· On or about August 3, 1999, plaintiff was ordered to take off his clothes by Sgt. Russo, who took his pen, took plaintiff's legal papers and threw them on the floor, and ransacked plaintiff's bed locker a number of times, and plaintiff further claims that Sgt. Russo's actions were instigated by defendant Arvin between May 7, 1999 through May 20, 1999, when defendant Arvin complained to defendant Russo that plaintiff "looked at him". He further alleges that he was threatened with discipline if he continued to look at defendant Arvin. Plaintiff alleges that the actions of Arvin and Russo in this regard were an abuse of power, harassment, and emotional abuse.
· On December 12, 1999, Sgt. Whitley and Officer Salaam harassed plaintiff by subjecting him to an unreasonable strip search.
· On unspecified dates, prison officials interfered with his legal mail.
· On September 15, 1999, Defendant Bussey assaulted plaintiff and verbally harassed him.
· On September 30, 1999, defendant Diller moved plaintiff's location, so plaintiff could be set up by defendant Arvin and defendant Russo.
· Defendants Arvin, Russo, and Ramos conspired to move plaintiff to "I trailer".
· Defendants Russo and Ramas took plaintiff's legal papers for 15 days and would not provide plaintiff with a pillow at detention.
· Defendant Oszart denied plaintiff a fair hearing
· Defendant Wallace and Larkin upheld charge No-202 against him.
· Plaintiff was denied rehabilitation programs.
· Defendants Hoster and Joiner interfered with his legal mail.
· Defendant Pedalino submitted a false affidavit in another action.
· Defendant Aguero of the Ombudsman's office, failed to act on plaintiff's behalf.
STANDARD OF REVIEW
A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). A motion to dismiss which presents the court with matters outside the pleading which are not excluded is to be treated as a motion for summary judgment and analyzed pursuant to Rule 56. Fed.R.Civ.P. 12. In such circumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id.Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence need not be in a form that would be admissible at trial.Celotex, 477 U.S. at 324. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
In addition to being genuine, the disputed facts must be material, as determined by the substantive law. Anderson, 477 U.S. at 248. Debate over extraneous issues will not suffice; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
DISCUSSION
In order to maintain a cause of action under § 1983, plaintiff must establish that the conduct complained of was committed by a person acting under state law, the conduct deprived plaintiff of rights, privileges, or immunities secured by Constitution of the United States, and that the defendant's acts were the proximate cause of the injuries and damages of the plaintiff. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).To state a claim under § 1983 for violation of the Eighth Amendment based on inadequate medical care, plaintiff must demonstrate (1) that a particular defendant exhibited deliberate indifference to (2) plaintiff's serious medical needs. Estelle v. Gamble 42 U.S. 97, 104 (1976).
To establish deliberate indifference, plaintiff must show that the particular defendant's conduct is accompanied by a requisite mental state. Farmer v. Brennan 511 U.S. 825, 837 (1994). The plaintiff must allege the defendant was aware of the requisite risk, and may show knowledge through circumstantial evidence.Id.; Durmer v. O'Connel, 991 F.2d 64 (3d Cir. 1993).
To establish the seriousness of the medical need, plaintiff must establish that the claimed need has been diagnosed by a physician or is so obvious that a lay person would recognize the necessity for doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
Plaintiff has provided no proof that his medical needs were "serious" within the meaning of Estelle v. Gamble, 429 U.S. 97. In this regard, plaintiff neither provides substantive evidence as to his medical needs, nor any evidence that any such harm he suffered resulted from the lack of medical attention. Maldonado v. Terhune, CMS et. al, 28 F.Supp.2d 284, 289-90 (D.N.J. 1998). Thus, summary judgment is granted to all the moving defendants as to plaintiff's claims regarding his medical care.
Defendants CPS and CBS
Although defendants CMS and CBS also argue they cannot be held liable under respondeat superior grounds, they do not dispute they were acting under color of state law during the relevant time period. See West v. Atkins 487 U.S. 42, 54 (1988). In Monell v. Department of Social Servs., 436 U.S. 658 690 (1978), the Supreme Court held that a municipal defendant may not be held liable pursuant to § 1983 under the theory ofrespondeat superior. Here, the corporate defendants argue they too may not be held liable under a respondeat superior theory. However, under Monell, the corporate defendants may be held liable for a custom or practice that causes an employee to violate another's constitutional rights. Id. at 691-692; See also, Rizzo v. Goode, 423 U.S. 362, 370-241 (1976). The corporate defendants summary judgment motions are be granted not only on the ground of plaintiff's failure of proof on his indifference to serious medical needs claim but also failed to present any evidence that the corporate defendants had a policy or custom which caused plaintiff to be denied medical treatment for a medical need as defined by Estelle v. Gamble, 429 U.S. 97.
Defendants Barry Hawlk and Nurse McCall
Defendants Hawlk and McCall also argue that summary judgment is appropriate as plaintiff has failed to establish they had personal involvement with plaintiff. In order to prevail under § 1983 in a suit against defendants Hawlk and McCall individually, plaintiff must show that they each had personal involvement in the alleged wrongs. Andrews v. City of Philadephia, 895 F.2d 1469, 1478 (3d Cir. 1990). Plaintiff must set forth proof of direct action or knowledge and acquiesence, which must be pled with specificity. Id. at 1478.
In an affidavit, Defendant Hawlk states he was employed as Health Service Administrator at Northern State Prison beginning March 29, 1999 through July 24, 2000. Defendant Hawlk is not a physician and does not provide medical treatment to prisoners. His duties include supervising the entire medical operation at the prison, including the oversight of staffing and administrative procedures.
Significantly, there are no incidents identified in the complaint which arose after defendant Hawlk's employment began at Northern State Prison. Plaintiff claims in response to defendant Hawlk's affidavit that plaintiff specifically complained to defendant Hawlk two or three times "about the mistreatment and that he (Hawlk) stated that certain nurses will be fired." Although from Defendant Hawlk's affidavit it is clear he has no recollection of ever meeting plaintiff, this discrepancy does not create a genuine issue of fact. Defendant Hawlk simply was not employed at the time plaintiff claims he was denied medical treatment, to wit, July 1998 through March 1999. Thus, even accepting as true the plaintiff's allegations as to defendant Hawlk, the court must dismiss the complaint and grant summary judgment to defendant Hawlk on the additional ground that plaintiff has failed to identify any specific action by Defendant Hawlk which led to the any denial of medical treatment to plaintiff.
Summary judgment will also be granted in favor of defendant McCall on the additional ground that plaintiff failed to identify any specific action on her part. Defendant McCall was employed by CMS as the Charge Nurse at Northern State Prison beginning in 1996 through May 2000. As Charge Nurse, McCall was responsible for operations of the nursing staff on the day shift, as well as administrative work including staff scheduling and preparing reports on nursing operations. Her duties also included assisting doctors in emergency situations and drawing blood and administering treatment within proper protocol.
Plaintiff has not provided the court with any evidence that Defendant McCall committed any act or acquiesced in any act which resulted in specific harm to plaintiff. In opposition to defendants' motion, plaintiff responded "[d]efendant McCall fail(sic) to ensure that the nurses under her comply to protocol and is responsible for what plaintiff complain of along with defendant Hawlk." (Allmond letter dated October 24, 2000, p. 2). This allegation without any factual support that McCall performed any act which injured plaintiff or acquiesced in any act which resulted in denial of treatment to plaintiff is insufficient to support a motion for summary judgment. Thus, summary judgment will be granted and the complaint dismissed as to defendant McCall on this additional ground.
Plaintiff's ADA claim and Rehabilitation Act Claim
The ADA defines disability as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. 42 U.S.C. 12101 (2). In 1998, the United States Supreme Court ruled that Title II of the ADA extends to prison inmates.Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). The Third Circuit has held that the standard for liability under the ADA is the same as that of the Rehabilitation Act. McDonald v. Pennsylvania Dept. of Public Welfare 62 F.3d 92, 94-95 (3d Cir. 1995). Thus, the elements of plaintiff's ADA claim and Rehabilitation Act claim are: (1) plaintiff is an individual with a disability, (2) the plaintiff is otherwise qualified for the program sought or would be qualified if the defendant made reasonable modifications to the program, (3) the program receives federal funds; (4) plaintiff was excluded from the program solely by reason of his or her disability. McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 94-95; Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995).
It is not necessary that a defendant receive federal funds under the ADA, thus item 3 is not relevant to plaintiff's ADA claim.
Plaintiff has simply failed to offer any proof that he is an individual with a disability, he was otherwise qualified for a program sought or would be qualified if the defendants made reasonable modifications to the program, and he was excluded from the program solely by reason of his disability. Furthermore, with regard to his ADA claim, plaintiff has not established that the CMS is a public entity subject to liability. As plaintiff has failed to set forth any evidence that he has a claim under the ADA and Rehabilitation Act against the CMS defendants, these claims are dismissed.
The Court also dismisses these claims against all the remaining defendants sua sponte, as plaintiff has failed to establish he has a disability within the meaning of the ADA and Rehabilitation Act.
Failure to State A Cognizable Legal Access Claim Plaintiff also includes in his complaint an allegation that the defendants have interfered with his mail. It is noted that plaintiff's claim for interference with his legal mail was dismissed by this Court's opinion in Allmond v. Barbo, Civil No. 98-5025. As noted in Allmond v. Barbo, his vigorous litigation of this and his many other lawsuits strongly suggests that his right of access to the courts has in no way been impaired. Accordingly, plaintiff fails to state a claim upon which relief may be granted and the Complaint will be dismissed as to this claim, specifically against defendants Hoster and Joyner. Plaintiff is cautioned against bringing the same claim again. Should plaintiff continue to pursue claims which have been previously dismissed by the Court, he may be subject to sanctions. Appointment of Pro Bono Counsel
A civil litigant neither has the constitutional, nor statutory right to counsel. Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). Although § 1915(e)(1), provides the court with the authority to appoint counsel, such an appointment is discretionary. Parham v. Johnson, Jr., et al, 126 F.3d 454 (3d Cir. 1997).
The Third Circuit has delineated certain factors which should be used to consider whether pro bono counsel should be appointed.Id. As a preliminary matter, the court is required to determine whether the case has some merit. Tabron, 6 F.3d at 157. In light of the Court's findings above, it is clear that the Court does not find most of plaintiff's case meritorious. However, the state defendants only moved for partial summary judgment and various assault claims remain to be resolved against them. Therefore, as assault claims usually turn on the credibility of witnesses, the Court will considered the remaining factors underTabron.
The remaining factors under Tabron are: (1) the plaintiff's ability to present his case; (2) the complexity of the legal issues; (3) the degree to which factual investigation will be necessary and the ability of plaintiff to pursue such investigation; (4) the amount a case is likely to turn on credibility; (5) whether the case will turn on the credibility of expert witnesses; (6) whether the plaintiff can attain or afford counsel on his own behalf. Id., at 155-157. The Tabron court further notes that this list of factors is not exhaustive, and should only be used as a guidepost. Moreover, because volunteer lawyer time is a precious commodity, it should not be wasted on frivolous cases. Id.
With regard to the first factor in the Tabron analysis, it is noted that plaintiff has a GED education, is literate, and has quite extensive litigation experience. These factors weigh against the appointment of counsel. Moving to the second factor, the legal issues in the case are not complex. As the Court granted summary judgment to the defendants on his Eighth Amendment deliberate indifference, ADA and Rehabilitation Act claims, and has found other claims fail to state a cause of action, the sole claim which remains to be litigated is his assault claim against the state defendants. A lay person can easily grasp the elements of such a claim. The Court finds that these factors weigh against the appointment of counsel. The third factor requires the court to examine plaintiff's ability to conduct a factual investigation and the degree which a factual investigation will be necessary. Plaintiff's ability to conduct a factual investigation appears to be without restriction since he is at liberty. In view of the nature of the claim there is very little to be investigated. This factor weighs against the appointment of counsel. Turning to factor four, the remaining assault claim will turn on credibility. The active participants in the alleged assault are parties to the case and each will be able to testify about his role in the events. The court finds factor four weighs against the appointment of counsel. Turning to factor five, plaintiff obviously has the ability to understand the significance of expert testimony as he served an expert report. In view of the nature of the remaining claim the report of an expert may be unnecessary. It is unclear whether he would be capable of effectively cross-examining a defense expert at trial. This factor does not have much weight one way or another. The final factor requires the Court to consider whether plaintiff could afford or obtain his own counsel. Plaintiff has presented no evidence that he has even attempted to obtain counsel. This factor weighs heavily against appointing counsel for plaintiff. Considering the plaintiff's request under the Tabron analysis, the Court is of the opinion that pro bono counsel is not necessary at this time. Therefore, plaintiff's request is denied. Breach of Contract pursuant to N.J.S.A. 2A:15-2
Plaintiff has alleged that the contract between CMS and the State of New Jersey, and the subcontract between CMS and CBS have been breached by their failure to provide the physical and mental health services required by their contracts, causing injury to plaintiff. Plaintiff further claims he is a third-party beneficiary of the contracts. The Court has jurisdiction of this claim pursuant to 42 U.S.C. § 1367.
N.J.S.A. 2A:15-2 is a codification of New Jersey law that third party beneficiaries may sue upon a contract made for their benefit without privity of contract. Reider Communities, et. al. v. Township of North Brunswick, 227 N.J. Super 214 (1998). However, unless a party can establish the contracting parties had the specific intent that a third party receive a benefit, a third party has no cause of action "despite the fact it may derive an incidental benefit from the contracts's performance." Id. at 222. A review of the contracts discloses that the contracting parties did not anticipate that third parties have the right to sue for damages arising out of an alleged breach of contract. Furthermore, public policy considerations weigh against a third party beneficiary relationship arising out of the subject contract.
Plaintiff has failed to establish he is a third party beneficiary to the contract. Most importantly, however, plaintiff fails to establish the contracts were breached in any way. Accordingly, plaintiff's breach of contract claim is dismissed, and defendant CMS' motion for summary judgment on the contract claims is granted. The court also grants summary judgment to CBS on plaintiff's breach of contract claims, sua sponte.
Appeal of Magistrate Judge Wigenton's Order
Finally, the plaintiff moves for a review of the decision of Magistrate Judge Wigenton dated February 28, 2001. A magistrate judge's order will not be reversed unless it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1)(A); Cippolone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986). District court judges are to give particularly broad deference to a magistrate judge's discovery rulings. Boody v. Township of Cherry Hill, 997 F. Supp. 562, 573; Environmental Tectonics Corp. v. W.S. Kirkpatrick Co., 659 F. Supp. 1381, 1398 (D.N.J. 1987).
A ruling is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Boody, 659 F. Supp. at 573, quoting South Seas Catamaran, Inc. v. MV Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988). A district judge's simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review. Andrews v. Goodyear Tire Rubber Co., 191 F.R.D. 59, 67 (D.N.J. 2000).
In his moving papers, plaintiff contends that "CMS failed to provide a medical report of Dr. Wilkins", failed to provide defendants personnel files, failed to provide "reply's (sic) of administrative remedy's (sic) complaints" and "the forms that can be used as evidence against the defendants". He further claims that both CBS and CMS "provided plaintiff with out of date contracts", and the state defendants "failed to provide plaintiff with any discovery requests and a copy of the depositions."
Magistrate Judge Wigenton's Order suggests she was satisfied that defense counsel had made reasonable efforts to satisfy plaintiff's discovery requests. She further noted that plaintiff has failed to advise both defense counsel and the Court as to the specific information he seeks from CMS. Accordingly, Magistrate Judge Wigenton found that plaintiff failed to demonstrate how the discovery produced by defendant CMS is insufficient and unsatisfactory. Accordingly, as plaintiff failed to provide Magistrate Wigenton with any reason to compel discovery, this Court will not disturb Judge Wigenton's Order denying plaintiff's motion with respect to CMS.
Although it appears that Magistrate Judge Wigenton did not address plaintiff's motion with respect to all defendants, this Court finds that plaintiff's motion to compel as it applies to the remaining defendants should be denied as the requests are overbroad and unreasonable in the context of this litigation.
CONCLUSION
Plaintiff's motion for summary judgment is denied. The motion of the CMS defendants for dismissal and/or for summary judgment is granted. The motion of CBS for summary judgment is granted. The motion of the state defendants for partial summary judgment is granted requiring dismissal of the claims alleging deliberate indifference to a serious medical need. In addition, the claims against the state defendants' brought under the Americans with Disabilities Act and Rehabilitation Act will be dismissed. There remains against the state defendants only the claim that one or more of them physically assaulted him. Plaintiff's motion for pro bono counsel is denied.
Plaintiff may lack proofs that certain of the state defendants committed or aided and abetted a physical assault against him, and if so, such state defendants may file a motion for total summary judgment in their favor.
An order implementing this decision will be entered.
It will be noted that in the foregoing opinion the court dismissed several claims sua sponte. This was done pursuant to 28 U.S.C. § 1915(e)(2) which provides that "the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted . . .". Plaintiff filed at least twenty-one separate cases during the seven year course of his incarceration. Of these, eight complaints were dismissed for failure to state a claim, and two were dismissed on defendants' motions for summary judgment. In others of these cases in forma pauperis status has been revoked or denied.