Opinion
98-CV-0146E(F)
August 23, 2000
ATTORNEYS FOR THE PLAINTIFF:
Pro Se, Pine City, NY.
ATTORNEYS FOR THE DEFENDANT:
William D. Lonergan, Esq., Asst. Attorney General of NYS, 107 Delaware Ave., Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Plaintiff Johnny E. Wood, while incarcerated at Wende Correctional Facility ("Wende") in Alden, N.Y., was injured in an altercation with "unknown inmates" in December 1997. See Am. Compl. Proceeding pro se, plaintiff alleges that has Eighth Amendment privilege against cruel and unusual punishment was infringed by officers at the facility and is suing for damages under 42 U.S.C. § 1983. Presently before this Court is defendants' motion for summary judgment. Such motion will be granted.
Such statute provides, in relevant part, "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects, or causes to be subjected, . . . [any] person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ."
Despite multiple warnings from this Court, plaintiff has failed to file appropriate papers in opposition to the defendants' summary judgment motion. Plaintiff's only answering paper — a December 8, 1999 "Motion Requesting that Defendants Motion for Summary Judgment Be Dismissed" — is patently insufficient. In such paper, he indicates only that has legal knowledge is extremely limited and that he is unable to file a response arguing the merits of the case. Plaintiff also repeats has request for appointment of counsel, a request which has already been denied three times, most recently by Magistrate Judge Leslie G. Foschio August 9, 1999. For the purposes of the instant motion, it suffices to say that there is no constitutional right to appointed counsel in civil cases and assignment is clearly within the Court's discretion. See In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). In this regard, plaintiff has set forth no special reason that is materially different from that which this Court has previously considered — and rejected — as to why counsel should be appointed and, accordingly, no counsel will be appointed. It should also be noted that, in response to plaintiff's December 8, 1999 filing, the undersigned did extend plaintiff's deadline for filing papers and further cautioned plaintiff as to the serious consequences of failing to file such. This Court also directed the Clerk of the Court to send a notice to plaintiff so that he would be absolutely clear as to what he was required to do in opposition to defendants' summary judgment motion. Nevertheless, the deadline therefor has passed and plaintiff has failed to file an appropriate affidavit or memorandum of law.
Local Rule of Civil Procedure 7.1(e) provides, in relevant part: "Absent leave of court . . ., upon any motion filed pursuant to [FRCvP 56], . . . the opposing party shall file and serve with the papers in opposition to the motion an answering memorandum and a supporting affidavit. Failure to comply with this subdivision may constitute ground for resolving the motion against the non-complying party."
The standards which determine whether summary judgment may properly be granted are well-established. Such "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving [parties are] entitled to a judgment as a matter of law." Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP"). "[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Gittens v. Garlocks Sealing Technologies, 19 F. Supp.2d 104, 110 (W.D.N.Y. 1998). "[A] pro se prose party's `bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424 (S.D.N.Y. 1995). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial." FRCvP 56(e). This is true "regardless of whether the moving [parties accompany their] summary judgment motion with affidavits, [and] the motion may, and should, be granted so long as . . . the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Citation omitted.
Defendants move for summary judgment on the ground that they were not personally involved in the injury to plaintiff. Under section 1983, personal involvement is required for a finding of liability. See Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997). A plaintiff may show that a supervising defendant is personally involved if such defendant (1) directly participated in the infraction, (2) failed to remedy a wrong after he had been notified of such, (3) instituted or maintained a policy or custom which permitted unconstitutional practices to occur or (4) was grossly negligent in management of subordinates. See Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986). Plaintiff has failed to establish any personal involvement of defendants, or any of them, in plaintiff's injury. Plaintiff was cut by a fellow inmate or inmates while participating in "Keeplock" exercise. See Statement of Undisputed Facts ¶ 8. It is neither alleged nor shown nor suggested by evidence in the record that the prison authorities directly participated in the injury. There is no evidence showing that any defendant failed to remedy the injury. While the Complaint alleges that plaintiff advised security staff, during the morning of December 15, 1997 and prior to the altercation, that he was in fear and wished to move, each defendant has denied that such a conversation took place. See Herron Affirm. ¶¶ 4-5; Lanier Affirm. ¶¶ 4-5; Skinner Affirm. ¶ 10. There is no evidence in the record that any defendant instituted a policy or custom that permitted infractions to occur or acted with gross negligence in supervising subordinates. In short, because plaintiff has offered no proof traversing the contents or veracity of defendants Statement of Undisputed Facts, memorandum of law and supporting affidavits, there is no genuine issue of material fact in this action to be tried and defendants are entitled to judgment as a matter of law.
Rule 56 of this Court's Local Rules of Civil Procedure provides, in relevant part: "All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." (emphasis added). Inasmuch as plaintiff has filed no substantial response to defendants' motion and has filed no statement of disputed facts, the Statement of Undisputed Facts filed by defendants must be accepted as true.
Granting summary judgment in favor of defendants would also be proper inasmuch as plaintiff has failed to "show that he is incarcerated under conditions posing a substantial risk of serious harm" and that defendants were deliberately indifferent to has health of safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Absent the unsupported statements contained within Plaintiff's Amended Complaint, it remains undisputed that defendants had no forewarning of the December 1997 altercation and that plaintiff never identified the assailants involved therein. Statement of Undisputed Facts ¶¶ 8, 9. Moreover, the fact that plaintiff had previously refused to enter "protective custody undermines any inference that defendants have been — and continue to be — indifferent to plaintiff's health and safety. Id. ¶ 4. If anything, such refusal is indicative of plaintiff's own indifference to has own health and safety. In short, because the plaintiff fails to create any factual dispute regarding defendants' "knowledge of a substantial risk to the plaintiff's safety, he has failed to create a factual dispute regarding even the infliction of punishment, a clear prerequisite to an Eighth Amendment claim." Dexter v. Thompson, No. 93-CV-0745E(F), 1995 WL 495072, at *4 (W.D.N.Y. Aug. 18, 1995) (citing Farmer, at 841-843). For this reason, plaintiff's claim must fail.
Plaintiff was offered "protective custody" after he was involved in a September 1997 altercation with two inmates but refused such protection. Statement of Undisputed Facts ¶¶ 2-4.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that this case shall be closed.