Moran v. Livingston

• Decision Date: 06 January 2016
• Docket Number: 6:10–CV–6178 EAW
• Citation: 155 F.Supp.3d 278
• Parties: James J. Moran, Plaintiff, v. Donald Livingston, et al., Defendants.
• Court: U.S. District Court — Western District of New York

155 F.Supp.3d 278

James J. Moran, Plaintiff,

v.Donald Livingston, et al., Defendants.

6:10–CV–6178 EAW

United States District Court, W.D. New York.

Signed January 6, 2016

Filed January 7, 2016

James J. Moran, West Seneca, NY, pro se.

Shawn P. Hennessy, Brian R. Liebenow, Buffalo, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD

, United States District Judge

INTRODUCTION

Plaintiff James Moran (“Plaintiff”), appearing pro se, was detained first at the Erie County Holding Center (“ECHC”) and then at the Erie County Correctional Facility (“ECCF”) at all times relevant to the allegations in his complaint. Plaintiff commenced this action on March 29, 2010, pursuant to 42 U.S.C. § 1983

, alleging that Defendants, employees of ECHC and ECCF, violated his constitutional rights. (Dkt.1). In his second amended complaint, Plaintiff specifically alleges that Defendants were deliberately indifferent to his medical needs, exposed him to unsanitary conditions of confinement, and violated his First Amendment rights, all in violation of the First, Fifth, Eighth, and Fourteenth Amendments. (Dkt.50). Plaintiff claims that he contracted Methicillin-resistant Staphylococcus aureus (“MRSA”) while he was housed at ECHC and did not receive proper attention or medical care at ECHC or ECCF. (Id. ).

Presently before the Court is Defendants' motion for summary judgment. (Dkt.83). Plaintiff has not responded to the motion, despite being warned of the consequences for his failure to do so. For the following reasons, Defendants' motion is granted.

BACKGROUND

Plaintiff commenced the instant action on March 29, 2010. (Dkt.1). On June 16, 2010, the Court granted Plaintiff's application to proceed in forma pauperis. (Dkt.5). Plaintiff filed an amended complaint on July 19, 2010 (Dkt.6), and Defendants answered the complaint on April 15, 2011 (Dkt.8). Plaintiff filed a second amended complaint on June 25, 2013 (Dkt.50), and Defendants answered the complaint on August 5, 2013 (Dkt.51). Plaintiff's second amended complaint is the operative pleading in this matter. (Dkt.50). The parties engaged in discovery, and Defendants filed a motion for summary judgment on July 23, 2015. (Dkt.83).

On July 23, 2015, the Court entered a scheduling order requiring Plaintiff to file a response to the motion no later than August 21, 2015. (Dkt.84). Plaintiff was advised in this order that “[t]he claims Plaintiff asserts in his complaint may be dismissed without a trial if he does not respond to this motion by filing his own sworn affidavits and other papers as required by Fed. R. Civ. P. 56(c)

.” (Id. ). To date, Plaintiff has failed to file responsive papers in accordance with the Court order and has not communicated with the Court to request an extension of time.

DISCUSSION

I. Standard of Review

Rule 56 of the Federal Rules of Civil Procedure

provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586–87, 106 S.Ct. 1348 ) (emphasis in original). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

Federal Rule of Civil Procedure 56

provides that a party may not oppose summary judgment simply by relying upon the allegations in the complaint. Fed. R. Civ. P. 56(c)(1). Rather, the party must submit evidence, such as witness statements or documents, countering the facts asserted and raising issues of fact for trial. Id. If the party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, the court may consider the fact undisputed and 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)

.

Further, the Local Rules of Civil Procedure state that “[e]ach numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.” L.R. Civ. P. 56(a)(2).

“The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion.” Gustin v. Potter, 474 F.Supp.2d 460, 462 (W.D.N.Y.2007)

; see

Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir.2001).

However, even where such notice has been given, “failure to oppose or respond to a motion for summary judgment standing alone does not warrant granting the motion: ‘the district court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law.’ ” Devers v. Goord, No. 06–CV–843S, 2014 WL 4923284, at *4 (W.D.N.Y. Sept. 30, 2014)

(quoting Vt. Teddy Bear Co., Inc. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) ).

Here, both Defendants' notice of motion (Dkt.83) and this Court's scheduling order (Dkt.84) put Plaintiff on notice of the requirements of Rule 56

and the potential consequences of failing to respond to Defendants' motion for summary judgment. The notice of motion, in bold typeface, states: “Failure to Respond to This Motion For Summary Judgment May Result in The Grant of Judgment in Favor of The Party Seeking Summary Judgment and The Dismissal of All or Part of The Case.” (Dkt. 83 at 4). Similarly, this Court's scheduling order states: “THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS MOTION by filing his own sworn affidavits and other papers as required by Fed. R. Civ. P. 56(c).” (Dkt. 84 at 1). The scheduling order further explains that a plaintiff may not oppose summary judgment by simply relying on the allegations in the complaint and lists the papers that must be submitted in accordance with federal and local rules of civil procedure. (Id. at 1–2). Accordingly, Plaintiff was provided with adequate notice of his obligation to respond to Defendants' motion and the consequences of failing to do so.

Because Plaintiff failed to respond to Defendants' motion for summary judgment, “the Court will not simply grant defendants' motion automatically, but will accept the truth of defendants' factual allegations, and determine whether defendants are entitled to summary judgment.” Allaway v. McGinnis, 473 F.Supp.2d 378, 381 (W.D.N.Y.2007)

.

II. Admissibility of the Evidence

“Materials submitted in support of or in opposition to a motion for summary judgment must be admissible themselves or must contain evidence that will be presented in admissible form at trial.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 169–70 (2d Cir.2014)

(quotation omitted); see also Fed. R. Civ. P. 56(c). “ ‘[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment,’ and the Federal Rules of Evidence govern such admissibility.”

Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir.2014)

) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 56 (2d Cir.1997) ).

A. Medical Records

In support of the summary judgment motion, Defendants rely, in part, on documents purporting to be Plaintiffs medical records. Although medical records constitute hearsay, they “can be admissible under Federal Rule of Evidence 803(6)

, provided they are prepared in the regular course of business, near the time of occurrence, by a person with knowledge and are properly authenticated.” Hodges v. Keane, 886 F.Supp. 352, 356 (S.D.N.Y.1995). “Facts supporting admissibility must be supplied ‘by the testimony of the custodian or other qualified witness or by certification’ that complies with Federal Rule of Evidence 902.” Shells v. Flynn, No. 9:06–CV–407, 2009 WL 2868215, at *2 n. 2 (N.D.N.Y. Sept. 2, 2009) (quoting Fed. R. Evid. 803(6) ).

Here, to introduce the medical records, Defendants provide the declaration of Dr. Thomas Raab, a physician licensed to practice medicine in New York who is Board Certified by the American Board of Internal Medicine. (Dkt.83–6). Dr. Raab specializes in infectious diseases and is offered as an expert witness. Dr. Raab attaches Plaintiff's medical records from his incarceration at both the Erie County Correctional Facility and Erie County Holding Center. (Id. at ¶ 3). However, this declaration does not lay the proper foundation for the admissibility of Plaintiff s medical records. Dr. Raab does not provide the information required to support admissibility of the records under Federal Rule of Evidence 803

because he does not claim to be a records custodian for the documents and did not personally keep the medical records. Further, the records have not been certified in compliance with Federal Rule of Evidence 902(11). Accordingly, the records are not properly part of the record before this Court on...