Berman v. Durkin
| Decision Date | 10 March 2017 |
| Docket Number | Civ. No. 9:13-CV-0136 (LEK/DJS) |
| Parties | BARRY BERMAN, Plaintiff, v. CHARLES DURKIN, et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
JOSHUA E. McMAHON, ESQ.
Assistant Attorney General
Pro se Plaintiff Barry Berman commenced this civil rights action on February 1, 2013. Dkt. No. 1, Compl. The following claims remain: (1) an Eighth Amendment excessive force claim against Defendants Correction Officer ("C.O.") Devereaux, Sergeant ("Sgt.") King, and John Does ## 1-3 and # 5 arising from an alleged assault on May 27, 2010; (2) an Eighth Amendment excessive force claim and a First Amendment retaliation claim against Defendants C.O. Mitchell and Sgt. Durkin arising from an alleged assault on June 13, 2010 that occurred in retaliation when Plaintiff reported the May 27, 2010 incident; and (3) Eighth Amendment deliberate medical indifference claims against Defendant Drs. Ramineni and Mannava. See Dkt. No. 127, Am. Compl.
Presently before the Court is Defendants' Motion for Summary Judgment. Dkt. No. 190, Defs.' Mot. Summ. J. Defendants argue that: (1) Plaintiff's claims against the unidentified John Doe Defendants should be dismissed; (2) Plaintiff failed to exhaust his administrative remedies with respect to his claims arising from the incidents alleged to have occurred on May 27, 2010 and June 13, 2010; and (3) Defendants are entitled to summary judgment on each of Plaintiff's claims. Id. Despite being granted two extensions of time to file a response, Plaintiff has not filed a response. Dkt. Nos. 194 & 198. For the reasons that follow, the Court recommends that Defendants' Motion be granted in part and denied in part.
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "morethan mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (). "A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist." Colon v. Coughlin, 58 F.3d at 872.
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When a motion for summary judgment is unopposed, the court may "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." FED. R. CIV. P. 56(e)(3); see also N.D.N.Y.L.R. 7.1(b)(3) (). "If the evidence adduced in support of the summary judgment motion does not meet [the movant's] burden [of production], 'summary judgment must be denied even if no opposing evidentiary matter is presented.'" Amaker v. Foley, 247 F.3d 677, 681 (2d Cir. 2001) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)). "An unopposed summary judgment motion may also fail where the undisputed facts fail to 'show that the moving party is entitled to judgment as a matter of law.'" Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (quoting Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)). "In the case of a pro se, the district court should examine every claim or defense with a view to determining whether summary judgment is legally and factually appropriate." Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014).
Pursuant to this District's Local Rules, "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3). Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir. 1995). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that the court may in its discretion opt to conduct a review of the entire record even where one of the parties has failed to file a 7.1 statement. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001); see also Jackson v. Fed. Exp., 766 F.3d at 194 (). Due to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record to ascertain the undisputed material facts. The Court will cite to the facts as set forth in Defendants' Rule 7.1 Statement of Facts only when properly supported by the record. Dkt. No. 190-16, Defs.' Rule 7.1. Statement of Material Facts ( ); see also GlobalRock Networks, Inc. v. MCI Commc'ns Servs., Inc., 943 F. Supp. 2d 320, 329 (N.D.N.Y. 2013) () (citing Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003)).
The Court here summarizes Plaintiff's allegations and sets forth the undisputed material facts regarding the alleged assaults that occurred on May 27 and June 13, 2010, when he was incarcerated at Clinton Correctional Facility ("Clinton").
On May 27, 2010, Plaintiff was going to the yard when he was stopped by Defendant C.O. Devereaux for a pat frisk. Defs.' SMF at ¶ 38; Am. Compl. at ¶ 15. Plaintiff stated that there was nothing in his pockets, but alleges that he forgot that he was carrying a pencil. Defs.' SMF at ¶ 38; Am. Compl. at ¶16. As C.O. Devereaux searched Plaintiff, he reached into Plaintiff's right front pocket and pricked his finger on the pencil. Defs.' SMF at ¶ 38. Plaintiff alleges that he returned to his cell and that C.O. Devereaux later came and discussed the incident. Am. Compl. at ¶ 17. Plaintiff apologized and explained that he was taking medication and C.O. Devereaux stated that hewould meet with his supervisor regarding whether to issue a misbehavior report. Id.
Approximately ten minutes after his conversation with C.O. Devereaux, Plaintiff claims that C.O. Devereaux, Defendant Sgt. King, and John Does ## 1-3 came and ordered him to exit his cell. Id. at ¶ 18. The Defendants ordered Plaintiff to face and grab the cell bars, which Plaintiff did. Id. at ¶ 19. Plaintiff was then punched repeatedly in his head, sides, and back. Id. Plaintiff collapsed, but was ordered to get up, and when he did, was again punched repeatedly in his head, sides, and back. Id. at ¶¶ 21-23. Plaintiff attempted to look at one of the John Doe Defendant's name tags, but was ordered to look away. Id. at ¶ 23. The Defendants war...
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