Johnson v. Annucci

314 F. Supp. 3d 472
CourtDistrict Court, W.D. New York
DecidedMay 21, 2018
Docket15–CV–6109L
StatusPublished
Cited by4 cases

This text of 314 F. Supp. 3d 472 (Johnson v. Annucci) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Annucci, 314 F. Supp. 3d 472 (W.D.N.Y. 2018).

Opinion

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge *474Plaintiff Roderick J. Johnson, appearing pro se , commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), sued twelve individual defendants, all of whom at all relevant times were employed by DOCCS. In his original complaint, plaintiff alleged that defendants violated his rights under the United States Constitution in a number of respects, in connection with an incident that occurred in 2013, while plaintiff was confined at Attica Correctional Facility.

The gist of plaintiff's claims is that defendants took actions against him, in retaliation for plaintiff having filed a grievance about what he considered to be an unlawful pat-frisk. In the original complaint, plaintiff asserted ten causes of action, alleging the use of excessive force, denial of adequate medical care, and due process violations.

Following an initial review of plaintiff's request to proceed in forma pauperis ("IFP"), the Court issued an Order (Dkt. # 8) which granted plaintiff IFP status, but dismissed several of plaintiff's claims. The Court allowed some claims to go forward, specifically plaintiff's excessive-force and retaliation claims against defendants Thomas Wilson and Trevor MacIntyre, who at all relevant times were Correction Officers at Attica.1

Those two remaining defendants have moved for summary judgment dismissing the complaint. (Dkt. # 39.) After defendants' motion was filed, plaintiff requested additional time to respond to the motion (Dkt. # 42, # 44, # 45). The Court has twice granted those requests. In its most recent order (Dkt. # 46), the Court gave plaintiff until December 13, 2017 to respond. He has not done so, nor has he communicated with the Court any further.

DISCUSSION

I. Plaintiff's Failure to Respond to the Summary Judgment Motion

Rule 56(e) of the Federal Rules of Civil Procedure provides that "[w]hen 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 denial of the adverse party's pleading, but the adverse party's response by affidavits as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

The Court of Appeals for the Second Circuit has stated 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 possible consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr. , 168 F.3d 615, 621 (2d Cir. 1999). In the instant case, defendants' notice of motion for summary judgment (Dkt. # 39-2) and the subsequent order sent by the court (Dkt. # 40) gave plaintiff ample notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. Plaintiff's requests for additional time to respond (which, as stated, were granted), further demonstrate *475that he understood the necessity of responding to the motion.2 The Court may therefore accept the truth of defendants' factual allegations and determine whether defendants are entitled to summary judgment. Crenshaw v. Syed , 686 F.Supp.2d 234, 235-36 (W.D.N.Y. 2010).

II. Defendants' Motion: Factual Background

In the complaint, plaintiff alleged that he filed a grievance against defendant Wilson concerning a pat frisk that Wilson conducted on him on or about November 29, 2013. Plaintiff alleged that a few days later, MacIntyre told plaintiff that plaintiff would be beaten up and killed if he filed any more grievances. Plaintiff further alleged that on December 14, 2013, he was physically assaulted by Wilson and MacIntyre, for no justifiable reason. Complaint ¶¶ 11-14.

In their Rule 56 Statement of facts ("SOF") (Dkt. # 39-1), defendants state that an incident involving plaintiff did occur on December 14, 2013. According to defendants' unrebutted statements, plaintiff and some other inmates had been let out of their cells for a morning call-out and were standing between two companies in C-Block. While they were standing there, one of the inmates was slashed with a blade of some sort. Afterwards, plaintiff was charged in a misbehavior report with possession of a weapon and violent conduct.

On December 16, 2013, prison officials determined from an x-ray that plaintiff had a scalpel blade, which had been melted inside a pen cap, in his bowel. Plaintiff has admitted that he swallowed it on December 14, at around the time that he was frisked following the slashing incident, because he did not want to get caught with the blade on his person. (Dkt. # 39-7 at 102.) Eventually the scalpel was found after plaintiff passed it. SOF ¶ 11.

Defendants argue that plaintiff's complaint should be dismissed for failure to exhaust administrative remedies. Defendants are correct.

The Prison Litigation Reform Act ("PLRA") requires inmate litigants to exhaust their administrative remedies before filing suit under § 1983. See 42 U.S.C. § 1997e(a). To satisfy the PLRA's exhaustion requirement, a New York prisoner is generally required to follow the prescribed three-step grievance procedure set forth at 7 N.Y.C.R.R. § 701.5. See Morrison v. Hartman , 898 F.Supp.2d 577, 581 (W.D.N.Y. 2012).

According to defendants' unrebutted assertions of fact, plaintiff did not file any grievances with respect to Wilson's or MacIntyre's alleged use of excessive force, or retaliation, in connection with the underlying incidents. Plaintiff did file two grievances in December 2013, and two grievances in January 2014, but none of them raised the issues that form the basis of this lawsuit. Plaintiff complained that he was not being given access to eye drops, and that he had inadequate bedding and lines, and he made some evidentiary requests relating to his disciplinary proceedings. (SOF ¶¶ 19-23; Romesser Decl. (Dkt. # 39-4) Exs. A-D.) There is no evidence *476that plaintiff ever filed any other grievances during the relevant time frame.

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Cite This Page — Counsel Stack

Bluebook (online)
314 F. Supp. 3d 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-annucci-nywd-2018.