THÉRÈSE WILEY DANCKS, United States Magistrate Judge
APPEARANCES: GEORGE O'DELL
Plaintiff pro se
83271-051
St. Lawrence Psychiatric Center
1 Chimney Point Drive
Ogdensburg, New York 13669 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: TIMOTHY P. MULVEY, ESQ.
Assistant Attorney General
615 Erie Boulevard West
Syracuse, New York 13204 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Pro se Plaintiff George O'Dell initially asserted a variety of claims against a number of defendants in this civil rights action brought under 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff's sole remaining claim is one for violation of his Fourteenth Amendment right to substantive due process against remaining Defendants Alvin Tucker ("Tucker") and Darian Frazier ("Frazier"), arising out of their failure to protect him from an assault by another patient at the Central New York Psychiatric Center ("CNYPC") where Defendants are employed as Secure Care Treatment Aides 1 ("SCTA"). Id. at 2, 5-7. Defendants Tucker and Frazier have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 34.) Plaintiff has opposed the motion. (Dkt. No. 39.) Plaintiff's opposition can also be construed as including an application for appointment of counsel and is treated as such herein. Id. at ¶ 4; Dkt. No. 39-2 at 58-59. For the reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted and denies Plaintiff's motion for appointment of counsel without prejudice.
Plaintiff's claim against the individual who assaulted him was dismissed on initial review under 28 U.S.C. § 1915(e) (Dkt. No. 5.) The remainder of Plaintiff's claims, with the exception of the claim against Tucker and Frazier, were dismissed on Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 28.) In its Report-Recommendation on Defendants' motion to dismiss, this Court identified Plaintiff's claim against Defendants Tucker and Frazier as a Fourteenth Amendment substantive due process claim for failure to protect Plaintiff from being assaulted by another patient in violation of his Eighth Amendment rights. (Dkt. No. 24 at 8-15.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
I. BACKGROUND
Plaintiff was involuntarily committed to the Sex Offender Treatment Program ("SOTP") and was housed on Ward 405 at CNYPC in June 2013. (Dkt. Nos. 1 at 5; 39-2 at ¶ 10.) CNYPC is a psychiatric hospital operated by the New York Office of Mental Health. (Dkt. No. 34-5 at ¶ 3.) Humberto Gonzalez ("Gonzalez") was also a resident of SOTP Ward 405 in June 2013. Id. Gonzalez had a history of assaultive behavior and when previously housed in SOTP Ward 405 had punched another resident in the face and broken his jaw. (Dkt. No. 1 at 5.) Gonzalez was returned to Ward 405 after serving his sentence for the assault in Oneida County Corrections. Id.; Dkt. No. 39-2 at 18.
According to Plaintiff, the morning after Gonzalez returned to Ward 405, he came into the day room and began to call the Ward 405 residents abusive, insulting names and told them that he would punch anyone on the wards and break his jaw like the last person he had punched. (Dkt. No. 1 at 5.) Gonzalez also told residents that when the second TV came in he was going to watch sports, and if anyone did not like it to come see him, and he would settle the matter. Id. Plaintiff claims that Defendant Tucker came into the day room and told everyone that Gonzalez was not threatening anyone, and that he did not want anyone writing letters saying that Gonzalez was threatening anyone. Id. at 6. Plaintiff also claims that even though the threats from Gonzalez continued at least into the third day following his return to Ward 405 and quite possibly longer, Defendants Tucker and Frazier continuously stated that Gonzalez was not threatening anyone and even said they liked him because he would make people watch sports. Id. According to Plaintiff, Gonzalez was room restricted several times for approaching and threatening several residents. Id. Plaintiff claims that Tucker and Frazier would not make any notes concerning any of Gonzalez' threats. Id. As a result, the staff on Ward 405 made no attempt to protect Plaintiff or any of the other residents from Gonzalez. Id. at 7.
On May 21 and 31, 2013, Plaintiff submitted written requests for a meeting with the Risk Management staff to discuss an incident that had occurred with Gonzalez in the day room. (Dkt. Nos. 39-2 at 66, 67.) Plaintiff wrote that one morning at around 11:30am, while he was sitting in the day room, Gonzalez told residents of Ward 405 they were a bunch of child molesters and predators, and that he was going to stick a few of them so that he could go back to prison and not have to be around them. Id. at 67. Plaintiff wrote that Frazier was letting Gonzalez get away with saying those things, and that Frazier and Tucker both stated that they did not care and did not hear anything, and they allowed Gonzalez to continue to threaten the Ward 405 residents. Id.
A June 5, 2013, Patient Complaint Report regarding Plaintiff's request for a meeting reveals that his request was assigned to Risk Management Specialist Jill Porter LCSW ("Porter"), and that Treatment Team Leader ("TTL") Jim Morgan ("Morgan") was notified and asked to respond in writing to Risk Management regarding Plaintiff's concerns. Id. at 26. The TTL reported that staff members on the Ward were keeping a close watch on the situation between Plaintiff and Gonzalez, and that staff was aware of Gonzalez's bullying behaviors and had made that a focus point of his treatment plan. Id. Risk Management concluded that the Treatment Team was taking Plaintiff's concerns very seriously and attempting to resolve the conflict between Plaintiff and Gonzalez while watching them for safety. Id.
Porter wrote to Plaintiff in response to his concerns on June 5, 2013. Id. at 27. Porter wrote:
You indicated that you did not believe staff members were taking your reports seriously, or addressing the complaints you have made. Please be advised that your Treatment Team, as do all staff members of the Central New York Psychiatric Center, take all threats of violence seriously. They will continue to address any issues related to safety per Central New York's policy and procedures.
Id. There is no evidence in the record describing specific instances of threatening conduct by Gonzalez between June 5, 2013, and June 23, 2013, when Plaintiff was assaulted by Gonzalez.
As documented by the CNYPC video monitoring system, after dinner on the evening of June 23, 2013, Plaintiff, Gonzalez, and a third resident went into the sun room area of the day room, which had been reopened at 5:29pm. (Dkt. No. 39-2 at 63, 72.) Plaintiff was seated in a chair between two tables with his back against the wall. Id. at 63. The third resident was standing by a table. Id. According to the Incident Summary submitted by Plaintiff in opposition to Defendants' motion, Gonzalez entered the sun room moments after the other two and was changing the television channel. Gonzalez was reported to have said aloud to Plaintiff and the third resident in the sun room, "I don't give a fuck what anybody says, I'm changing it to sports and if anybody doesn't like it they can suck my dick." Id. Plaintiff was reported to have responded "If that's the case than (sic) you can suck my fucking dick." Id.
Gonzalez is reported to have said "What did you say to me?" as he walked from the corner of the sun room, picked up a chair and brought it directly over Plaintiff's head causing deep lacerations and severe bleeding. Id. SCTA Jackson, who was on duty and was at the desk in the day room at the time, heard a thump. Id. at 72. He ran into the sun room in time to see Gonzalez drop the chair and walk away. Id. Plaintiff was given immediate medical care by CNYPC medical staff and was taken by ambulance to the hospital where the lacerations were sutured. Id. at 62, 72. New York State Police placed Gonzalez under arrest, and he was taken into custody on felony assault charges. Id. at 62.
Neither Tucker nor Frazier were working at the time Gonzalez assaulted Plaintiff, nor were they even at CNYPC. (Dkt., Nos. 34-3 at ¶¶ 13-14; 34-5 at ¶¶ 12-13, 18.) Neither Tucker nor Frazier recalled any significant incidents where they felt Gonzalez posed an immediate or imminent physical threat to Plaintiff on the days they worked leading up to the assault. (Dkt., Nos. 34-3 at ¶¶ 13-14; 34-5 at ¶¶ 12-13.) In the days preceding the assault, neither Tucker nor Frazier considered Gonzalez to be an excessive or imminent risk to other residents' health and safety. (Dkt., Nos. 34-3 at ¶¶ 13-14; 34-5 at ¶¶ 17.)
II. APPLICABLE LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
Plaintiff's Complaint in this case was properly verified by declaration under 28 U.S.C. § 1746. LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with §1746). Complaint was properly verified. (Dkt. No. 1 at 11.)
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] 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). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3, 1999 U.S. Dist. LEXIS 16767 at *8 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
III. ANALYSIS
A. Deficiencies in Plaintiff's Opposition Papers
As required under N.D.N.Y. Local Rule ("L.R.") 7.1, Defendants have filed a statement of material facts with citations to the summary judgment record. (Dkt. No. 34-9.) Under the rule, the opposing party is required to respond to the movant's statement, and the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." L.R. 7.1(a)(3). Plaintiff has failed to respond to the statement of material facts filed by Defendants in the manner required under L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the L.R. provides that facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion,v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Defendants' notice to Plaintiff of the consequences of his failure to respond to their summary judgment motion, found in the body of their Notice of Motion, does not comply with the L.R. 56.2 notice requirements. (Dkt. No. 34 at 1.) However, the docket indicates that the Clerk's Office sent Plaintiff a copy of the L.R. 56.2 Notification of the Consequences of Failing to Respond to a Summary Judgment Motion form with Defendants' motion papers so Plaintiff has been advised of the consequences. (Dkt. No. 36.)
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
In his opposition papers, Plaintiff explained that he is not knowledgeable regarding the law or the legal material the Court may be requesting, and that at the St. Lawrence Psychiatric Center, where he is now confined, he has no access whatsoever to a law library or law books. (Dkt. No. 39-2 at 58-59.) Moreover, according to Plaintiff, the Mental Health Legal Services has been of no assistance to him. Id. at 58.
The Court takes judicial notice of civil rights litigation pending in the Northern District in which the lack of a law library and the unavailability of legal assistance from the Mental Health Legal Services for involuntarily committed sex offenders in the Central New York Psychiatric Center Sex Offender Treatment Program is presently being challenged on First Amendment grounds. See, e.g., Suggs v. Maxymillian, No. 9:13-CV-00359 (NAM/TWD), 2015 WL 5750998, at *10, 2015 U.S. Dist. LEXIS 133443, at *25-26 (N.D.N.Y. Sept. 14, 2015).
The Second Circuit has acknowledged a court's broad discretion to determine whether to overlook a failure to comply with local rules. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). The Court finds that in light of the unavailability to Plaintiff of a legal library or legal assistance, the proper exercise of discretion in this case requires excusing Plaintiff's failure to respond to Defendants' statement of material facts in accordance with L.R. 7.1(a)(3), as well as his failure to file a memorandum of law as required under L.R. 7.1(a), and conducting an assiduous review of the entire record. Id.
B. Legal Standard for Plaintiff's Failure to Protect Claim
The Court noted in its Report-Recommendation and Order on Defendants' Rule 12(b)(6) motion to dismiss in this case that the Second Circuit has yet to articulate the standard for a failure to protect claim alleged by an involuntarily committed patient. O'Dell v. Bill, No. 9:13-CV-1275 (FJS/TWD), 2015 WL 710544, at *6, 2015 U.S. Dist. LEXIS 182152, at *12 (N.D.N.Y. Nov. 26, 2014) (Report-Recommendation accepted in its entirety by Scullin, J.) The Court recognized that the Supreme Court held in Youngberg v. Romeo, 457 U.S. 307, 315 (1982) that involuntarily committed individuals have a Fourteenth Amendment substantive due process right to be protected from confinement in unsafe conditions. Id. The Court then considered the standards for liability applied by the various circuit and district courts that had considered the issue and determined that the deliberate indifference standard applicable to Eighth Amendment failure to protect claims by prisoners should be applied to claims for failure to protect from unsafe conditions under the Fourteenth Amendment alleged by an involuntarily committed patient against non-professional or low level staff members like Tucker and Frazier. O'Dell, 2015 WL 710544, at *8.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The Second Circuit has applied the professional judgment standard to substantive due process violations under the Fourteenth Amendment alleged by involuntarily committed patients against professionals. Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 188-89 (2d Cir. 2005) (citing Rodriguez v. City of New York, 72 F.3d 1051, 1061-62 (2d Cir. 1995)). The Second Circuit has not articulated whether to apply the professional judgment standard to non-professionals.
"Defendants may be held liable under § 1983 if they . . . exhibited deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to perform the duty or to act to ameliorate the risk or injury was a proximate cause of plaintiff's deprivation of rights under the Constitution." Doe v. New York City Dep't of Social Servs., 649 F.2d 134, 145 (2d Cir. 1981). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in the criminal law. (citation omitted). This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) Deliberate indifference for purposes of the Eighth Amendment exists if an official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). "The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference." Farmer, 511 U.S. at 837. Reckless disregard of a plaintiff's "right to be free from attacks by other inmates may be shown by the existence of a 'pervasive risk of harm to inmates from other prisoners and a failure by prison officials to reasonably respond to that risk.'" Knowles v. New York City Dept. of Corrections, 904 F. Supp. 217, 221 (S.D.N.Y. 1995). Mere negligence will not suffice to state a claim under § 1983. Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 620 (2d Cir, 1996). "In Lewis, the Court equated deliberate indifference for substantive due process and Eighth Amendment purposes." Moore v. Briggs, 381 F.3d 771, 774 (8th Cir. 2004) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998)).
C. Analysis of Plaintiff's Claim
Plaintiff claims that beginning the day Gonzalez returned to Ward 405 at CNYPC after serving time in jail for punching another resident and breaking his jaw, he began threatening to fight, beat up, and break the jaws of other residents. (Dkt. Nos. 1 at 5-6; 39 at ¶¶ 5- 7.) According to Plaintiff, Gonzalez continued to make those threats in the days following his return, and Tucker and Frazier, who were aware of and had even heard the threats, claimed that Gonzalez was not threatening anyone and did nothing about it. Id. Plaintiff contends that if Tucker and Frazier had reported Gonzalez's repeated threats of assault, the attack on Plaintiff might not have taken place. (Dkt. No. 39 at ¶ 5.)
Plaintiff's Complaint has left blank the date Gonzalez returned to Ward 405. (See Dkt. No. 1. at 5.) Although it is not entirely clear, Plaintiff appears to claim that Tucker and Frazier's alleged failure to acknowledge or do anything about Gonzalez's threats occurred in or around the three days following Gonzalez's return to Ward 405, although it may have continued for a longer period. Id. at 5-6. Evidence submitted by Plaintiff reveals that Gonzalez was back in Ward 405 at some point prior to May 21, 2013, when Plaintiff himself reported threats made by Gonzalez in the day room to Risk Management. (Dkt. No. 39-2 at 66.) Moreover, since in his May 21 and 31, 2013, requests to Risk Management Plaintiff specifically identified Tucker and Frazier as two of the treatment aides who had let Gonzalez get away with threatening behavior, it appears that Tucker and Frazier's alleged failure to take action had occurred prior to those requests. Id. at 66-67.
Evidence submitted by Plaintiff also shows that TTL Morgan was apprised of Plaintiff's reports, and that staff members on the Ward were aware of Gonzalez's bullying behaviors no later than June 5, 2013, and made it a focus of his treatment plan, and that staff was keeping a close eye on the situation between Plaintiff and Gonzalez. Id. at 26. Thus, even if, as Plaintiff contends, Tucker and Frazier saw but failed to report Gonzalez's threatening behavior, the TTL was clearly aware of the situation and indicated it was being monitored by staff no later than June 5, 2013, well before the attack on Plaintiff on June 23, 2013. Id. There is no evidence in the record revealing specific threatening or assaultive behavior by Gonzalez, or of Tucker and Frazier being aware of and failing to respond to such behavior, subsequent to Porter's June 5, 2013, report and up until the June 23, 2013, assault on Plaintiff.
The averments in their Affidavits show that Tucker and Frazier had no direct control over the placement or removal of residents on the SOTP wards at CNYPC. (Dkt. Nos. 34-3 at ¶ 17; 34-5 at ¶ 18.) The Affidavits also show that prior to June 23, 2013, during the times they were working, they never considered Gonzalez to be an excessive or immediate risk to other residents' health and safety, nor were they aware of a situation that an experienced SCTA working on SOTP Ward 405 would have considered an immediate or imminent threat to Plaintiff. (Dkt. Nos. 34-3 at ¶ 16; 34-5 at ¶ 17.) Prior to June 23, 2013, neither ever witnessed, nor were they made aware of, a specific threat to Plaintiff's physical safety or well-being by Gonzalez. (Dkt. Nos. 34-3 at ¶ 18; 34-5 at ¶ 19.) Although both Defendants were aware of Gonzalez's history of assault, in the days they worked at CNYPC leading up to June 23, 2013, nothing had transpired in the presence of either Defendant that would have caused them to recommend that Gonzalez be isolated from other Ward 405 residents. (Dkt. Nos. 34-3 at ¶¶ 16,18; 34-5 at ¶¶ 17, 19.)
Furthermore, neither of the Defendants was working at the time of the attack on Plaintiff on June 23, 2013. On June 19, 2013, through June 23, 2013, Tucker worked his regular 7:00am to 3:00pm shift in Ward 405 and worked overtime on June 21st and 22nd. (Dkt. No. 34-5 at ¶¶ 11-14.) During the period from June 19, 2013, through the end of his shift on June 23, 2013, the day of the assault, Tucker does not recall there being any significant incident where he felt Gonzalez posed an immediate or imminent physical threat to Plaintiff. Id. at ¶ 16. The assault by Gonzalez occurred after the end of Tucker's shift on June 23, 2013. Id. at ¶ 20.
Frazier worked his regular 7:00am to 3:00pm shift in Ward 405 on June 17, 2013, through June 20, 2013. (Dkt. No. 34-3 at ¶ 13.) Frazier, who worked regularly Monday through Friday, was on vacation Friday June 21, 2013, and did not return to work until the morning of June 24, 2013, the day after the assault. Id. at ¶ 13. Frazier does not recall there being any significant incident where he felt Gonzalez posed an immediate or imminent physical threat to Plaintiff during the period from June17, 2013, through the end of his shift on June 20, 2013. Id. at ¶ 15.
The foregoing evidence shows that Defendants did not know of and disregard an excessive risk to Plaintiff's safety, and that they did not draw the inference that Gonzalez was a serious risk to Plaintiff's safety. Moreover, Defendants were not present at CNYPC at the time of the assault. Plaintiff's assertions that Tucker and Frazier were aware of Gonzalez's threatening behavior, denied that it was threatening, and failed to act on it to protect Plaintiff and other residents of Ward 405, are vague with regard to timing and conclusory with regard to the facts and circumstances surrounding Tucker and Frazier's alleged failure to act to protect Plaintiff. Therefore, they are insufficient to defeat a properly supported summary judgment motion. See Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1292 (2d Cir. 1974) (vague assertions supported only by self-serving statements by the nonmovant are insufficient to defeat a properly supported summary judgment motion); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("The non-moving party may not rely on conclusory assertions or unsubstantiated speculation [to defeat summary judgment].").
The Court finds that, based upon the summary judgment record, its recommendation that Defendants be granted summary judgment would have been the same had the Court applied the professional judgment or shock the conscience standards rather than the deliberate indifference standard to Plaintiff's Fourteenth Amendment substantive due process claim. See Ammons v. Washington Dep't of Soc. & Health Servs., 648 F.3d 1020, 1027 (9th Cir. 2011). --------
In addition, the evidence in the summary judgment record does not support a finding of proximate cause as required to prevail on a § 1983 claim. See Doe v. New York City Dep't of Social Servs., 649 F.2d at 145. Plaintiff claims that if Tucker and Frazier had taken action with regard to Gonzalez, the assault on June 23, 2013, might not have occurred. (Dkt. No. 39 at ¶ 5.) However, the evidence shows that even if Tucker and Frazier were aware that Gonzalez was a threat to Plaintiff's safety and failed to take action or report their concerns prior Plaintiff's May 2013 requests for a meeting with Risk Management, at least as of June 5, 2013, TTL Morgan was aware of Plaintiff's concerns regarding Gonzalez, those concerns were being taken seriously, and staff was keeping a close eye on the situation and attempting to resolve the conflict between Plaintiff and Gonzalez. (Dkt. No. 26.) Given that the assault occurred despite the TTL and the staff's clear knowledge regarding Gonzalez's threatening behavior weeks before the June 23, 2013, assault and their monitoring of the situation, Plaintiff's claim that the assault might have been prevented had Tucker and Frazier reported that behavior is pure speculation.
Based upon the foregoing, the Court recommends that Defendants Tucker and Frazier's motion for summary judgment (Dkt. No. 34) be granted in its entirety.
IV. MOTION FOR APPOINTMENT OF COUNSEL
The Court has construed Plaintiff's papers in opposition to Defendants' motion for summary judgment to include a motion for appointment of counsel. (Dkt. No. 39-2 at 58-59.) Inasmuch as the Court is recommending that Defendants' motion for summary judgment be granted in its entirety, Plaintiff's motion for appointment of counsel is denied without prejudice.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants Tucker and Frazier's motion for summary judgment (Dkt. No. 34) be GRANTED IN ITS ENTIRETY; and it is hereby
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 39-2 at 58-59) is DENIED WITHOUT PREJUDICE; and it is hereby
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: May 2, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge