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finding that detainee did not have liberty interest in remaining free of administrative status
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02 Civ. 6726 (PAC)(JCF).
August 11, 2006
MEMORANDUM DECISION AND ORDER
Pro se plaintiff Heriberto Palacio ("Palacio" or "Plaintiff"), currently incarcerated at the Coxsackie Correctional Facility, brings this civil rights action pursuant to 42 U.S.C. § 1983 for compensatory and punitive damages and equitable relief in connection with claims of deliberate indifference by the defendants. Palacio alleges that Defendants improperly classified him as a centrally monitored case ("CMC"), failed to protect him from inmate-on-inmate assaults on two occasions, and denied him adequate medical care. Palacio also claims that Defendants failed to comply with discovery requests and asks that the Court permit further discovery. Defendants now move for summary judgment. For the reasons set forth below, the Court grants Defendants' motion and denies Plaintiff's request for further discovery.
Title 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other 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, suit in equity, or other proper proceeding for redress. . . .
Palacio's claims all relate to his detention five to six years ago at the Manhattan Detention Center ("MDC") and the Queens Detention Center ("QDC") during the period from on or about April 28, 2000 to March 28, 2001 and are asserted against numerous New York City Department of Correction ("DOC") officials and personnel. According to the docket report, defendants include the City of New York, MDC Warden Richard Pagan, MDC Superintendent Jorge Ocasio, QDC Warden Mark Farsi, MDC Correction Officer ("CO") Orlando Thomas, QDC Doctor S. Edano, CO Captain McMillan, Michael Hess and numerous John/Jane Doe CO and correction official defendants (collectively "Defendants"). The Court notes that Palacio has four other actions on file in the Southern District of New York.
BACKGROUND
The Court follows this Circuit's mandate to construe pro se complaints "liberally [and to] interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Palacio makes four distinct claims under 42 U.S.C. § 1983 that Defendants violated his right to due process as protected by the Eighth Amendment.
First, Palacio alleges that Defendants the City of New York and Department of Correction ("DOC") officials John/Jane Does violated his right to due process by classifying him as a CMC. (Compl. ¶¶ 4-6.) Palacio claims that he tried to challenge his classification but that his appeal was denied, again in violation of constitutional rights. (Id. ¶¶ 6, 8, 33.) Since CMC prisoners are housed together, separate from the general prison population, and since some CMC prisoners are gang members or have prior convictions, both with histories of "penological violence," Palacio maintains that his CMC status was assigned with deliberate indifference to his safety. (Id. ¶ 20.)
Second, Palacio alleges that Defendant Correction Officer ("CO") Thomas ("Thomas") and several other Defendant John/Jane Doe COs were deliberately indifferent in that they failed to protect Palacio from an inmate-on-inmate assault on December 16, 2000 at the Manhattan Detention Center ("MDC"). (Id. ¶¶ 17-27.) According to Palacio's Complaint, Defendant CO Jane Doe left open the cell doors of MDC's 6 South Tier "for hours" during which time Defendant Thomas "abandon[ed] his post, leaving the entire 6 South population unmonitored and unsecured." (Id. ¶ 21.) Palacio claims that he was subsequently attacked in his cell by two inmates, one of whom — Palacio claims it was Benjamin Lowman ("Lowman") — slashed Palacio with a razor. (Id. ¶¶ 22-27.) Palacio was transferred to the Queens Detention Center after this incident to separate him from his assailants. (Id. ¶ 32.)
Lowman is alternately spelled as "Loehman" and "Lowmann" in the record.
Third, Palacio alleges that Defendants — he does not specify whom — were deliberately indifferent in failing to protect him from a second inmate-on-inmate assault on January 26, 2001 in the Queen's Detention Center's ("QDC") infirmary. (Id. ¶¶ 34, 36-37.) According to the Complaint, Defendant CO Captain McMillan ("McMillan") sent Palacio to the infirmary unescorted where Lowman again assaulted him, this time punching him in the jaw. (Id.) Palacio claims that this second assault occurred in spite of Defendant John/Jane Doe correction officials' alleged promise to protect Palacio from Lowman "in the form of a separation order." (Id. ¶¶ 28-30.) Palacio also appears to claim that John/Jane Doe correction officials were deliberately indifferent to his safety in allowing him and Lowman to be transferred to the same prison in spite of this alleged separation order.
Fourth, Palacio alleges that, after the January 26 assault, Defendants McMillan, Dr. S. Edano ("Edano") and the City of New York acted with deliberate indifference by delaying medical treatment, misdiagnosing his injury and providing inadequate medication. (Id. ¶¶ 39-54.) Palacio maintains that, after the assault, "the Captain from the Plaintiff's housing area" — apparently McMillan — refused to provide him with medical attention "for several hours" despite the "plethora of blood streaming from his gums and intense pain and numbness." (Id. ¶¶ 39-40.) Palacio claims that, when he was finally treated, Edano failed to diagnose what was later revealed to be a broken jaw and prescribed only aspirin. (Id. ¶¶ 42-43, 50-51.) Consequently, Palacio alleges that he "complained for weeks about the pain to no avail," and that, when the fracture was finally detected by a New York State Department of Corrections doctor, "it was too late to properly treat the injury." (Id. ¶¶ 44, 50-53.)
II. Statement of the Facts
Unless otherwise noted, the following facts are undisputed.
The facts are taken from the Defendants' Statement Pursuant to Local Rule 56.1 ("Local Rule 56.1 Statement") (Docket No. 63); exhibits attached to the June 20, 2005 Declaration of Phillip Kim ("Kim Decl."); the February 23, 2005 Deposition of Palacio ("Palacio Dep."); and Plaintiff's Opposition to Defendant's Motion for Summary Judgment. The Court notes that Plaintiff failed to submit any affidavits in opposition to Defendants' summary judgment motion. The Rules of Civil Procedure provide that affidavits submitted in opposition to summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Furthermore, "[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 denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Id.
A. The Parties
Plaintiff, a pretrial detainee during all relevant times (Local Rule 56.1 Statement ¶ 5), is a state prisoner and has been incarcerated at the Coxsackie Correctional Facility since at least May 17, 2006 to the present (Docket No. 83). Prior to that, Plaintiff was incarcerated at MDC from on or about April 10, 2000 and was then transferred to QDC in December of 2000 or January of 2001. (Compl. ¶¶ 4, 32.) Plaintiff was transferred again on or about February 2, 2001 to the North Infirmary Command ("NIC") at Rikers Island. (Compl. ¶ 46; Kim Decl. Ex. C.) On or about March 29, 2001, Plaintiff was moved to an unspecified New York State correctional facility and then moved to the Auburn Correctional Facility sometime before June 5, 2003. (Compl. ¶ 50; Docket no. 16.)
Defendants include the City of New York, MDC Warden Richard Pagan, MDC Superintendent Jorge Ocasio, QDC Warden Mark Farsi, MDC CO Orlando Thomas, CO Captain McMillan, QDC Dr. S. Edano, Michael Hess and numerous John/Jane Doe defendants.
Neither the Plaintiff nor Defendants provide further information about the Defendants, such as the time periods that they worked in these capacities. The "Doe" defendants refer to several unnamed COs involved in the December 16, 2000 assault, the unnamed correction officials who allegedly instituted the order of separation and the unnamed correction officials who transferred both Lowman and Palacio to the same prison.
B. Procedural History of this Action
Palacio's Complaint was filed on August 22, 2002 and the action was assigned to Magistrate Judge James C. Francis of this District. (Docket No. 2.) Palacio had previously submitted an application to the Court for appointment of counsel, which was denied. (Docket No. 12.) Palacio filed his Amended Complaint on October 21, 2002 (Docket No. 5) and the case was reassigned to Judge Kimba M. Wood of this District. (Docket No. 7). Judge Wood asked that the case be referred to a magistrate judge, and Magistrate Judge Francis was so designated. (Docket No. 9.) Defendants filed their Answer on June 16, 2003. (Docket No. 19.)
Chief Judge Michael Mukasey instructed Palacio on the importance of identifying "Doe" defendants when he issued his August 22, 2002 Order giving Palacio leave to file an amended complaint. Specifically, Chief Judge Mukasey wrote:
Plaintiff is advised that the naming of John Doe defendants does not toll the statute of limitations period governing actions under § 1983, and that plaintiff shall be responsible for ascertaining the true identity of any `John Doe' defendants and amending his complaint to identify any `John Does' before the statute of limitation expires.
(Docket No. 3 at 7 n. 2)
On November 26, 2003, the Court ordered Defendants to comply with Plaintiff's request for production of documents and set December 19, 2003 as a deadline. (Docket No. 26.) On February 11, 2003, Plaintiff submitted an omnibus motion in which he claimed that Defendants had not produced "one-tenth" of the documents requested and asked that the Court again order Defendants to comply. (Docket No. 27.) Magistrate Judge Francis denied the order "without prejudice to being renewed if accompanied by copies of the discovery demands and responses at issue." (Id.)
On April 26, 2004, Plaintiff submitted an omnibus motion requesting that time to complete discovery be enlarged and that Defendants be compelled to identify the John/Jane Doe defendants. (Docket No. 31.) On May 7, 2004, the Court denied the motion, noting that "Defendants have produced the relevant incident reports from which plaintiff can himself identify the alleged wrongdoers." (Docket No. 32.) On June 2, 2004, the Court denied as untimely Plaintiff's motion for reconsideration of the May 7, 2004 order as well as his request for permission to depose the Defendants and certain witnesses. (Docket No. 35.)
Magistrate Judge Francis appears to be referring to the DOC investigative materials generated as a result of the inmate-on-inmate assaults and Palacio's medical treatment. (Kim Decl. Ex. G.)
Specifically, Palacio sought to depose individuals he identified as COs Thomas, Wright, L. Rosado, J. Romero, R. Lopez, K. Thomas, Captain McMillan, Warden Richard Pagan, Dr. S. Edano, the "Doe" defendants and unidentified prisoner witnesses.
On July 10, 2004, the Plaintiff submitted a request for a conference to resolve discovery issues and again requested permission to depose the Defendants and certain witnesses. (Docket No. 39.) Then, on July 12, 2004, the Plaintiff filed a motion for reconsideration of the June 2, 2004 order. (Docket No. 38.) The Court denied these motions "without prejudice to renewal after [D]efendants have responded to [Plaintiff's] new demands and after [Plaintiff] has been deposed." (Docket No. 36.)
By this point, Defendants claimed to have provided Plaintiff with "documentation concerning the CMC classification, plaintiff's injury to inmate investigations concerning the incidents with Mr. Lowman and Mr. Elliot, along with Department of Correction directives." (Docket No. 36.) Specifically, it appears that Defendants produced the DOC directive on CMCs; several blank template forms used for CMC designation; a January 4, 1999 memorandum on CMCs from Commissioner Kerik (Kim Decl. Ex. A); the DOC record of Palacio's CMC Due Process Hearing; Palacio's DOC CMC Information Sheet; two forms reviewing Palacio's CMC status (Kim Decl. Ex. C); the Daily News articles regarding Palacio (Kim Decl. Ex. D); multiple grievance forms filed by Palacio, none of which are relevant to these claims; (Kim Decl. Ex. F); numerous investigative reports regarding the December assault individually filed by CO Captains Dobson and Ranieri, COs Thomas, Johnson, Breeze, Hernandez and Wright, CO Supervisor Catherine Gabbin, MDC Deputy Warden Thomas S. Cossean, and MDC Warden Richard Pagan; "Voluntary Inmate Statement" forms regarding the December assault (all of the inmates solicited declined to make a statement); and several investigative reports regarding the January assault and subsequent medical treatment individually filed by CO Captain McMillan, a CO Supervisor (the name is illegible), CO Jasmine Romero and Dr. S. Edano.
Defendants did acknowledge that the Plaintiff had made some "new discovery requests" in his most recent motion with which they would comply. (Id.) It is unclear what these requests were, however.
On September 23, 2004, Plaintiff again submitted a motion to compel Defendants to provide "all of the discovery demanded heretofore." (Docket No. 41.) The Court again denied the motion "without prejudice to being renewed accompanied by copies of the discovery requests and responses at issue." (Id.) Palacio then submitted a second motion for the enlargement of time to complete discovery in which he alleged that "respondents have not provided most of the discovery demanded by this plaintiff." (Docket No. 42.) Magistrate Judge Francis again denied the order. (Id.)
On February 23, 2005, Plaintiff was deposed. (Docket No. 52.) On May 4, 2005, Plaintiff submitted a motion to compel production of his deposition transcript and "the discovery sought heretofore by this Plaintiff." (Docket No. 58.) The Court ordered Defendants to provide Palacio with a copy of his deposition transcript but denied Plaintiff's other request since "[Palacio] has not proffered copies of the discovery demands to which he refers, nor of any response by [D]efendants." (Id.)
On June 21, 2005, Defendants filed their motion for summary judgment. (Docket No. 60.) This action was reassigned to this Court on September 9, 2005. (Docket No. 75.) On September 30, 2005, Plaintiff filed his motion in opposition to Defendants' motion for summary judgment. (Docket No. 76.) In it, Plaintiff alleged that "he has been precluded from obtaining evidence . . . by the [Defendants'] failure and refusal to provide . . . the discovery . . . requested heretofore." (Id. at 9.) The Plaintiff also wrote that "a hearing on discovery issues needs to be conducted, [and] this Plaintiff needs to be given the opportunity to depose the witnesses he has sought to depose heretofore." (Id. at 25.)
C. Plaintiff's CMC Classification
Plaintiff was classified as a CMC on or about April 28, 2000 and designated for maximum security housing. (Local Rule 56.1 Statement ¶ 7.) "It is the policy of the New York City Department of Correction to establish and maintain procedures to effect central monitoring of selected inmates so that the agency is continually aware of the housing, transport and case status of such inmates." (Kim Decl. Ex. A.) Inmates are selected for such monitoring based on their "notoriety" and "interest in the inmate on the part of other law enforcement agencies," among other factors. (Id.) Once they are classified as a CMC, inmates receive a "Notice of C.M.C. Designation" within seventy-two hours. (Id.) CMC inmates can then appeal their classification by writing to the Deputy Chief of Security Operations or the Chief of Department who, in turn, must respond with a written determination within fifteen business days. (Id.) The Deputy Chief of Security Operations also conducts a twenty-eight day or "monthly" review of all CMCs. (Id.)
On April 27 and 28 of 2000, the New York Daily News published stories in which it reported that Palacio was a possible suspect in the disappearance of his girlfriend. (Kim Decl. Ex. D.) According to the DOC's Record of Due Process Hearing on December 22, 2000, Palacio was classified as a CMC because his "girlfriend is missing and there has been extensive news media coverage." (Kim Decl. Ex. C.) On this same form, Palacio stated: "There is no evidence against me. I would like to be taken out of [CMC maximum security]. I've been punished enough." (Id.) The hearing officer ordered that Palacio remain classified as a CMC. (Id.) Palacio, however, disputes that an actual hearing occurred. (Palacio Dep. at 166:2-12.)
According to Palacio,
This wasn't a hearing. What happened was that they sent around a captain or an officer, one person, they pulled a bunch of us out of the housing area, showed us a paper and asked us to sign it, and that was it. There was supposed to be, according to my understanding, a hearing after this. This was not the hearing itself. I was not given a hearing. That's why I said I do not waive my right to be present at my hearing. The hearing was supposed to be subsequent to this paper, this document. And that's what I was informed. That interview by that one person, I don't remember if it was an officer or a captain, that wasn't the hearing itself."
(Palacio Dep. at 166:2-12.)
Palacio challenged his CMC classification on numerous occasions. (Id. at 74:23-85:10.) He testified that he first complained to COs (Id. at 75:15-24) and then began to file formal written grievances "approximately, . . . twice a week" in "basically every [correctional] facility [he was] housed in." (Id. at 76:8-22.) Palacio testified that he also wrote a letter in or about December of 2000 to the MDC superintendent in which he appealed his classification. (Id. at 78:5-79:22.)
The Defendants note that there is no record of grievances filed by Palacio concerning his CMC classification. (Local Rule 56.1 Statement ¶ 13.)
Palacio believed this individual was Richard Pagan. (Palacio Dep. 79:3-6.)
The Defendants note that there is no record of a letter sent by Palacio to any Defendant regarding his CMC classification. (Local Rule 56.1 Statement ¶ 13.)
On February 1, 2001, Palacio's CMC designation was reviewed at QDC and continued for the same reasons as before. (Kim Decl. Ex. C ("Subject is a suspect in a case that his girlfriend is missing [sic]. The case is receiving extensive news and media coverage.").) One day later, on February 2, 2001, Palacio's CMC designation was reviewed again, this time at NIC (after he was apparently transferred), and it was again continued. (Kim Decl. Ex. C.)
D. December 16, 2000 Inmate-on-Inmate Assault
On December 16, 2000, Palacio was slashed with a razor and suffered injuries to his back and head during an inmate-on-inmate assault at MDC. (Local Rule 56.1 Statement ¶ 15.) Just before the time of the assault, CO Thomas, who was assigned to the 9 South Post where Palacio was housed, observed Palacio walking toward fellow inmate Mark Elliot's ("Elliot") cell. (Id. ¶ 15; Kim Decl. Ex. G.) CO Thomas then observed Plaintiff and Elliot in a physical altercation and ordered them to stop fighting. (Local Rule 56.1 Statement ¶¶ 16-17; Kim Decl. Ex. G.) When Palacio and Elliot refused to comply, CO Thomas sounded an alarm summoning additional COs, and the fighting stopped. (Local Rule 56.1 Statement ¶ 18; Kim Decl. Ex. G.) No other inmates were identified as being involved in the altercation by either COs or other inmates. (Local Rule 56.1 Statement ¶ 19; Kim Decl. Ex. G.)
Palacio disputes CO Thomas's account of the December 16, 2000 assault. (Palacio Dep. 91:13-118:2.) In fact, Palacio contends that CO Thomas was not at his assigned post when the assault occurred. (Id. at 91:15-92:1.) According to Palacio, he did not approach Elliot's cell, but rather was hit on the back of his head while watching television in the recreation area. (Id. at 88:8-13.) Palacio was then dragged to a cell where he was "cut with a razor" and then beaten and stomped while he attempted to fight his way out. (Id. at 94:13-21.) Palacio also contends that "approximately six inmates," as opposed to just one, took part in his assault. (Id. at 88:5-6; 97:3-7.) He claims that a fellow inmate and Defendants Corrections Officials John Does later told him that Lowman was one of those involved. (Id. at 114:19-115:18; Compl. ¶ 29.)
Palacio stated that he "was involved in a situation where [he] was jumped by approximately six inmates." (Palacio Dep. at 88:5-6.) He further testified:
I believe that there were other people waiting in the cell for the ambush. And I know for a fact, because the way I was positioned when they dragged me in the cell that at least one or two more people came from outside and joined in the attack.
(Id. at 97:3-7.)
Both parties agree that Palacio had no relationship with Elliot prior to the assault. (Local Rule 56.1 Statement ¶ 22; Palacio Dep. at 110:9-12.) Palacio also testified that, though he may have had reason to fear Elliot since Elliot may have robbed another inmate a week before, he never informed any Defendant of this fear. (Local Rule 56.1 Statement ¶ 23; Palacio Dep. at 110:13-17.)
E. January 26, 2001 Inmate-on-Inmate Assault
Palacio testified that, at approximately noon on January 26, 2001, he was sent to QDC's health clinic for "sick call." (Palacio Dep. at 123:15-125:17.) Lowman was also at the clinic at that time and "got into [Palacio's] face" the moment Palacio arrived. (Id. at 128:10-15.) The CO stationed at the clinic ordered the two inmates to separate, at which point Palacio turned to leave. (Id. at 133:16-21.) Palacio testified that Lowman then struck him in the right side of his "mandible" from behind. (Id. at 121:3-15; 133:20-21.)
In their summary judgment filings, the parties argue at some length over whether Palacio was escorted to the clinic. This Court notes that Palacio testified: "I believe an officer took me up." (Palacio Dep. at 125:5.)
Palacio testified that prior to the January 26, 2001 assault but after the December 16, 2000 assault, two John Doe correction officials met with Plaintiff. (Id. at 115:7-18; 120:12-121:6.) According to Palacio, these officials took photographs of Palacio's injuries from the December 16, 2000 assault and informed him that Lowman had been one of his attackers. (Id. at 115:7-18.) Palacio testified that they then told him that they would enter a separation order against both Lowman and Elliot. (Id. at 120:13-22.) As previously indicated, Palacio was transferred to the Queens Detention Center on December 17, 2000.
According to Palacio,
[T]he two gentlemen that came and interviewed me in the New York City Department of Correction told me that they knew that [Lowman] was one of the assailants. He was a gang member. They are familiar with him. And they told me they were going to put a separation order, an order for separation, which I believe they did because when I came back, when I was going to trial for the gun case, I heard that the personnel mentioned the orders on several occasions; they mentioned that there was a separation order, that I could not be around him or Elliot. So they knew that me and this guy had a problem and when I walked into the infirmary, he was there.
(Palacio Dep. at 120:13-22.)
F. Medical Treatment after the January 26, 2001 Assault
Plaintiff has not brought a claim regarding the medical treatment he received after the December 16, 2000 assault.
After the January 26, 2001 assault, Palacio was sent back to his housing area. (Id at 136:5-7.) He testified that he was permitted to return to the clinic to receive treatment for his injured jaw "a couple hours later." (Id. at 136:10-11.) According to DOC documentation, Palacio first complained about his injured jaw to Defendant CO Captain McMillan at "approximately 1445 hrs." (Kim Decl. Ex. G.) Defendant Edano then treated Palacio at "1635 hrs." (Id.)
Palacio testified that he told Edano that he thought his jaw was broken. (Palacio Dep. at 136:12.) In his "Injury to Inmate Report," Edano noted that "[Palacio] is alert, awake, not in distress. Able to talk without difficulty. Has some discomfort on opening mouth, but range normal. No discoloration/laceration." (Kim Decl. Ex. G.) Palacio disputes that he was able to talk without difficulty and disagrees with the characterization of his discomfort on opening his mouth. (Palacio Dep. 170:13-17.) Edano treated Palacio's injury with Motrin. (Kim Decl. Ex. G.)
Palacio testified that, after January 26, 2001, he returned to sick call "numerous times" and continued to receive Motrin. (Palacio Dep. 137:19-21.) After being transferred to NIC on or about February 2, 2001, Palacio claims that a "City doctor" x-rayed his jaw and failed to find a fracture. (Id. at 138:1-6.) Palacio testified that he remained in pain at this point and had difficulty chewing. (Id. at 138:7-18.)
This individual is not named as a Defendant.
Palacio testified: "I couldn't chew on the right side for like two months. It was really bad." (Palacio Dep. 138:15-16.)
Palacio testified that, on or about March 28 or 29 of 2001, he was transferred into New York State custody and received a "very comprehensive and thorough [medical] examination." (Id. at 138:25-139:2.) According to Palacio, a state doctor x-rayed him as a part of this examination and discovered that Palacio's jaw was broken. (Id. at 139:3-20.) The doctor informed him that his jaw had already started healing and that it was "too late to do anything." (Id. at 139:24-140:2.) Other than his own assertion, Palacio does not submit the x-ray, a doctor's statement, or the relevant medical records.
DISCUSSION
I. Standard of Review
A motion for summary shall be granted "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 party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Thus, summary judgment should only be granted if "the nonmoving party `has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (citation omitted). The Court "resolve[s] all ambiguities, and credit[s] all rational factual inferences, in favor of the plaintiff." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citation omitted). The Court should, thus, grant summary judgment only "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
"When considering motions to dismiss the claims of plaintiffs proceeding pro se, courts in this Circuit are instructed to construe the pleadings liberally," and "[t]his is especially true when dealing with civil rights complaints" like the one at the bar. Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001) (citations omitted). Thus, "[a]lthough the same summary judgment rules are applicable when a party is proceeding pro se, `special latitude' is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are worded inartfully." Cherry v. Edwards, No. 01 Civ. 7886, 2005 WL 107095, at *7 (S.D.N.Y. Jan. 18, 2005) (citations omitted). Nevertheless, "a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, No. 95 Civ. 9941, 1997 U.S. Dist. LEXIS 14077, at *8 (S.D.N.Y. Sept. 15, 1997) (citingCarey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)). A nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (citation omitted), or create a genuine issue of material fact by presenting contradictory or unsupported statements. SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978) ("The party opposing the motion must set forth `concrete particulars' . . . [;] [i]t is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion." (citations omitted)).
While Palacio contradicts much of what Defendants prove, it is always done on his "say so," without affidavit, documentary support, or other proof.
II. Plaintiff's Claims Against Unnamed Defendants are Time-Barred
As a preliminary matter, this Court finds Palacio's claims against the "Doe" Defendants are time-barred. The applicable limitations period for an action under 42 U.S.C. § 1983 is three years. See Owens v. Okure, 488 U.S. 235, 251 (1989). Further, this Circuit has held that "`John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a `John Doe' with a named party in effect constitutes a change in the party sued." Barrow v. Westhersfield Police Dep't, 66 F.3d 466, 468 (2d Cir. 1995) (citing Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)); accord Basile v. City of Albany, No. 96-7880, 1997 U.S. App. LEXIS 2347, at **2-3 (2d Cir. Feb. 10, 1997) (affirming the dismissal of a pro se plaintiff's claims for failing to properly amend his complaint to identify the "Doe" defendants during the three-year limitations period). As such, Palacio's claims against the "Doe" Defendants expired, at the very latest, on March 28, 2004, three years after Plaintiff was transferred out of DOC to State custody.
This refers to all unnamed Defendants, including the John/Jane Doe COs from the December 16, 2000 assault, the John Doe correction officials who allegedly instituted a separation order and the John/Jane Doe correction officials allegedly responsible for transferring Palacio and Lowman to the same prison.
Plaintiff asserts that his claims against the "Doe" Defendants can be maintained under "the relation back theory." (Pl. Mot. Opp'n Mot. Summ. J. at 25). Plaintiff appears to be referring to Rule 15(c)(3) of the Federal Rules of Civil Procedure, which allows Plaintiff to amend his complaint to change the name of the party sued if the claim "relates back" to the claim initially pleaded. Specifically,
[a]n amendment to a pleading that attempts to bring in a new party will "relate back" to the date of the original pleading when (1) the claim arises out of the same conduct originally pleaded and (2) within (ordinarily) 120 days of the original filing date, "the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996) (quoting Fed.R.Civ.P. 15(c)(3)). This Circuit has held that "Rule 15(c)[(3)] does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow, 66 F.3d at 469. Furthermore, when the "[plaintiff] [is] informed by the court — within the limitations period . . . that he need[s] to name the individual [defendants] . . . [he] [is] not `mistaken' for purposes of rule 15(c)." Id. at 466; cf. Soto, 80 F.3d at 37 (granting pro se plaintiff leave to amend complaint under Rule 15(c)(3) where plaintiff was not informed that he needed to name defendants).
Palacio's claims against the "Doe" Defendants cannot be amended under Rule 15(c)(3). Palacio did not name the "Doe" Defendants during the limitations period because he did not know their identities and not because of a "mistake." As in Barrow, Plaintiff was informed in August 2002 — almost two full years before the statute of limitations would expire — that his failure to identify the "Doe" Defendants before the claims expired would bar his suit. Furthermore, it is unclear how Palacio could properly amend the Complaint since he still has not identified the "Doe" Defendants.
See supra note 7.
Since Plaintiff has received materials in discovery (including the incident reports) from which he could identify the "Doe" Defendants (Docket No. 32), it would be inappropriate to allow at this late date the substitution of actual names for the John Does, Walters v. N.Y. City Health Hosp. Corp., 02 Civ. 751, 2006 U.S. Dist. LEXIS 14959, at * 9-10 (S.D.N.Y. Mar. 30, 2006).
Since Palacio failed to identify the "Doe" Defendants during the limitations period and since he cannot amend his complaint under Rule 15(c)(3), this Court dismisses all of his claims against the "Doe" Defendants.
III. Centrally Monitored Case Claim
A. CMC Classification
In evaluating whether Palacio's classification as a CMC violated his due process rights, the Court must first determine whether his prior non-CMC status is "a property or liberty interest protected by the Constitution."Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001) (citation and internal quotation marks omitted); accord Mack v. Artuz, No. 01 Civ. 11832, 2002 U.S. Dist. LEXIS 24216, at *21 (S.D.N.Y. Dec. 19, 2002). If Palacio had such an interest, the Court "must then consider whether the government deprived [him] of that interest without due process." Narumanchi v. Bd. of Trs. of the Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988).
This Circuit has rejected the view that federal prisoners have a property or liberty interest in their non-CMC status protected by the Due Process Clause. Pugliese v. Nelson, 617 F.2d 916, 923 (2d Cir. 1980) (holding that "a prisoner's interest in avoiding CMC classification does not entitle [the prisoner] to due process protections"). Since the federal CMC designation is similar to New York State's CMC designation "in all material respects," Majid v. Malone, No. 95 Civ. 2545, 1996 U.S. Dist. LEXIS 3515, at *8 (S.D.N.Y. Mar. 23, 1996), courts in this District have found that "New York State CMC designation is not a deprivation of a liberty interest triggering due process considerations." Mack, 2002 U.S. Dist. LEXIS 24216, at *23;accord Adams v. Galletta, No. 96 Civ. 3750, 1999 U.S. Dist. LEXIS 16082, at *13 (S.D.N.Y. Oct. 19, 1999) (holding that a New York State CMC designation for a pretrial detainee is not a deprivation of liberty interest); Majid, 1996 U.S. Dist. LEXIS 3515, at *3 (same). This Court concurs with these findings. As such, Palacio's due process claim regarding his initial classification as a CMC must be dismissed.
The conditions of pretrial detention are constitutional unless they amount to punishment of the detainee. See Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). However, "not every disability imposed during pretrial detention amounts to `punishment' in the constitutional sense." Bell, 441 U.S. at 537. This Circuit has held that "the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is not a right protected by the due process clause itself." Covino v. Vt. Dep't of Corr., 933 F.2d 128, 129 (2d Cir. 1991) (internal quotations omitted); accord McFadden v. Solfaro, No. 95 Civ 1148, 1998 U.S. Dist. LEXIS 5765, at *16 (S.D.N.Y. Apr. 23, 1998) (finding that assignment of pretrial detainee to segregated housing based on his security classification did not violate Due Process Clause). As such, the conditions of Palacio's CMC classification were constitutional.
B. CMC Review and Appeals Process
Palacio also appears to claim that the manner in which his CMC status was reviewed and Defendants' failure to respond to his alleged letter of appeal also violate his due process rights. Whether the CMC review and appeals processes have due process implications is a question that the Second Circuit appears not to have considered, but this Court joins other District Courts in determining that the DOC directive outlining the CMC review and appeals process does not create a liberty interest. See, e.g., Adams, 1999 U.S. Dist. LEXIS 16082, at *18 ("[I]f the [CMC] designation is not the deprivation of a liberty interest, then the prison authorities were not constitutionally required to afford due process in imposing it."); Korkala v. N.Y. City Dept. of Corr., No. 84 Civ. 5740, 1986 U.S. Dist. LEXIS 20820, at *16 (S.D.N.Y. Sept. 4, 1986) (holding that "the State's adoption of a procedural rubric does not create a liberty interest"). Palacio's due process claim regarding the review and appeals of his CMC classification is dismissed.
In light of this determination, the Court does not evaluate the manner in which Defendants reviewed Palacio's CMC status and responded to his alleged letter of appeal.
III. Inmate-on-Inmate Assaults
The Supreme Court has held that prison officials have a duty to protect prisoners from violent attacks by other inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, "the standard for prisoner failure to protect claims brought under 42 U.S.C. § 1983 is quite high." Rivera v. New York, No. 96 Civ. 7697, 1999 U.S. Dist. LEXIS 129, at *22 (S.D.N.Y. Jan. 6, 1999) (internal quotations omitted). Mere negligence in failing to protect the inmate will not support a constitutional claim. See Davidson v. Cannon, 474 U.S. 344, 347 (1986) (holding "where a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required"). Prison officials are liable for harm incurred by an inmate if the officials acted with "deliberate indifference" to the safety of the inmate. Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). "To succeed on such a claim, the prisoner must establish both that a substantial risk to his safety actually existed and that the offending prison officials knew of and consciously disregarded that risk." Baines v. City of New York, No. 01 Civ. 2645, 2004 U.S. Dist. LEXIS 1461, at **18-19 (S.D.N.Y. Feb. 5, 2004) (citing Farmer, 511 U.S. at 834, 837-39). The standard for demonstrating a defendant's awareness of the risk is high. See Hines v. Lacy, No. 98-2961, 1999 U.S. App. LEXIS 20206, at *8 (2d Cir. 1999) ("[T]he 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 also draw the inference.")
A. The December 16, 2000 Inmate-on-Inmate Assault
Viewing the facts in a light most favorable to the Plaintiff, there may be a question of material fact as to whether Elliot posed a "substantial risk," since there is an allegation that Elliot robbed another inmate shortly before the December 16, 2000 incident. But nothing in the record suggests that Defendants either inferred that a substantial risk to Palacio existed from these facts, or consciously disregarded it. Therefore, Palacio's claims arising out of the December 16, 2000 assault are dismissed. See Baines, 2004 U.S. Dist LEXIS 1461, at *22 (summary judgment proper where there is no evidence that any of the individual defendants had any knowledge that plaintiff faced a substantial risk of harm).
B. The January 26, 2001 Inmate-on-Inmate Assault
Viewing the facts in a light most favorable to the Plaintiff, there may be a question of material fact on whether Defendant CO Captain McMillan was aware that Lowman posed a substantial risk to Palacio's safety. According to Palacio's testimony, shortly after the December assault, the two John Doe correction officials allegedly met with Palacio and promised that they would institute a separation order to protect him from Lowman. Palacio testified that some COs mentioned the alleged separation order when transporting him to trial. The record does not foreclose the possibility that CO Captain McMillan was one of these officers.
As discussed above, Palacio's claims against all "Doe" Defendants have been dismissed as time-barred.
Even if CO Captain McMillan possibly may have been aware of the risk that Lowman posed to Palacio, there is nothing to suggest her deliberate indifference to that risk. First, there is no evidence that CO Captain McMillan had any control over the series of events that led to Palacio and Lowman being transferred to the same health clinic. Second, there is no evidence to suggest that she was negligent, let alone deliberately indifferent, in sending Palacio to "sick call," a process which Palacio himself apparently initiated. Notably the CO on duty at "sick call" quickly separated Palacio and Lowman and, as a result, only a single punch was thrown. Therefore, this Court dismisses Palacio's claim against CO Captain McMillan arising out of the January 26, 2001 assault.
As noted previously, the Court has construed Palacio's complaint as making claims against only the two John Doe correction officials and CO Captain McMillan in regard to this assault. The Court notes, however, that there is no evidence from the record that anyone acted with deliberate indifference to Palacio during the January 26, 2001 assault.
IV. Medical Claim
The Supreme Court has held that "deliberate indifference to a prisoner's serious illness or injury states a cause of action under [ 42 U.S.C. § 1983]." Estelle v. Gamble, 429 U.S. 97, 105 (1976) ("[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment." (internal quotations and citation omitted)). The Second Circuit has articulated a two-prong test to evaluate such claims. The Plaintiff first must demonstrate as a threshold matter "the objective seriousness of his medical condition, i.e., that he was suffering from a condition of urgency, [or] one that may produce death, degeneration, or extreme pain." Williams v. Wright, 162 Fed. Appx. 69, 70 (2d Cir. 2006) (internal quotations omitted). The Plaintiff must then show that the Defendants acted "with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). This subjective culpability prong "entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer, 511 U.S. at 835.
A. Objective Seriousness of Palacio's Medical Condition
In this Circuit, "[t]here is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition." Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). To aid district courts in making this determination, this Circuit has articulated a "non-exhaustive list" of relevant factors: "(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain." Id. at 162 (internal quotations omitted). The Court assumes, without deciding, that Palacio's broken jaw resulting from the January 26, 2001 assault constituted a serious medical condition. See, e.g., Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." (internal quotations omitted)); Brock, 315 F.3d at 163-164 (finding that a scar that caused chronic "annoying" or "extreme" pain might constitute a serious medical condition); Carter v. Fagin, 363 F. Supp. 2d 661, 663 (S.D.N.Y. 2005) (finding that a jaw condition that caused "great pain" constituted a serious medical condition); but see Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (noting that some courts have found that "a mild concussion and broken jaw" do not constitute serious medical conditions).
There is no evidence, other than Palacio's statement, that his jaw was in fact broken. He has submitted no affidavit or other evidence that a state doctor determined Palacio's jaw was broken.
B. Subjective Culpability of Defendants
1. Delay of Medical Treatment
The Supreme Court has held that "intentionally denying or delaying access to medical care" for a serious medical condition can constitute deliberate indifference. Estelle, 429 U.S. at 104-105. This Circuit, however, has "reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment, ignored a life-threatening and fast-degenerating condition for three days, or delayed major surgery for over two years." Demata v. N.Y. State Corr. Dep't of Health Servs., No. 99-0066, 1999 U.S. App. LEXIS 22955, at *5 (2d Cir. Sept. 17, 1999) (internal quotations and citations omitted).
In the instant case, the delay of treatment was, at most, a little more than two hours. Furthermore, nothing in the record suggests that Palacio suffered from a life-threatening or fast-degenerating condition or that prison officials deliberately delayed his treatment as a form of punishment. Therefore, this Court finds that the delay does not rise to the level of deliberate indifference and Palacio's claim on this basis is dismissed.
2. Failure to Diagnose Broken Jaw
It is well settled that the negligent failure to diagnose a serious medical condition does not create a cause of action under 42 U.S.C. § 1983. See Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment."); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (holding that "negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim"); Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) ("Mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act . . . that evinces a conscious disregard of a substantial risk of serious harm." (internal quotations omitted)). Furthermore, the Supreme Court has held that a doctor's choice of diagnostic techniques does not support a constitutional claim. See Estelle, 429 U.S. at 107.
Specifically, the Supreme Court has held:
[T]he question whether an x-ray — or additional diagnostic techniques or forms of treatment — is indicated is a classic example of a matter for medical judgment. A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice.Estelle, 429 U.S. at 107.
Defendant Edano's decision not to x-ray Palacio's jaw and his failure to diagnose the fracture do not support a claim under 42 U.S.C. § 1983. Viewed in a light most favorable to the Plaintiff, the record does not suggest that Edano evinced a culpable recklessness in the manner in which he diagnosed Palacio's injury. At most, the facts might support a claim of medical malpractice. Therefore, Palacio's claim on this basis is dismissed.
3. Choice of Treatment
"It is well-established that mere disagreement over the proper treatment does not create a constitutional claim." Chance, 143 F.3d at 703. "So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Id. The case law regarding adequacy of treatment "draws a clear distinction between situations in which the physician provides no medical care, which may amount to deliberate indifference, and those in which the physician provides merely substandard care, which amounts at most to negligence." Nelson v. Rodas, No. 01 Civ. 7887, 2002 U.S. Dist. LEXIS 17359, at *55 (S.D.N.Y. Sept. 17, 2002). In certain instances, however, a physician may be deliberately indifferent if he or she consciously chooses "an easier and less efficacious" treatment plan. Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (finding that a prison doctor's decision not to reattach a prisoner's severed ear but instead to stitch up the wound constituted deliberate indifference). But see Reyes v. Gardener, 93 Fed. Appx. 283, 284-285 (2d Cir. 2004) (finding no deliberate indifference where doctors conservatively prescribed Tylenol, Motrin and, eventually, Demerol to treat pain caused by Plaintiff's sickle cell condition).
The facts in the instant case are far more analogous to Reyes than to Williams. Here, as in Reyes, Plaintiff claims that he received inadequate medication to treat his pain. Such a disagreement over the proper treatment does not support a constitutional claim. Furthermore, even if Edano committed medical negligence, he did not show the requisite "culpable recklessness," as exhibited by the doctor in Williams v. Vincent. Therefore, Palacio's claims on this basis are dismissed.
V. Inadequate Discovery Claim
Summary Judgment may be inappropriate prior to an adequate opportunity for discovery. See Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995); Sutera v. Schering Corp., 73 F.3d 13, 18 (2d Cir. 1995) (reversing summary judgment entered before any discovery had taken place). Under Rule 56(f) of the Federal Rules of Civil Procedure, courts may permit further discovery prior to ruling on a summary judgment motion in the interests of justice. Bank of Am. Nat'l Trust and Savings Ass'n v. Envases Venezolanos, S.A., 740 F. Supp. 260, 269 (S.D.N.Y. 1990), aff'd 923 F.2d 843 (2d Cir. 1990). In this Circuit, a party claiming that he or she has been denied adequate discovery
Fed.R.Civ.P. 56(f) provides: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
must make a four-part showing before further discovery should be granted prior to resolving a pending summary judgment motion: (1) the party must specify the nature of the uncompleted discovery; (2) the party must demonstrate how the facts sought are reasonably expected to create a genuine issue of fact; (3) the party must explain what efforts he has made to obtain those facts; and (4) the party must explain why those efforts were unsuccessful.
Hutchinson v. Pangburn, No. 95 Civ. 5449, 1998 U.S. Dist. LEXIS 4082, at **25-26 (S.D.N.Y. Mar. 31, 1998) (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)). A plaintiff's unsupported allegations do not pass this four-part test, however. See Carney v. United States Dep't of Justice, 19 F.3d 807, 813 (2d Cir. 1994) (holding that the district court did not err in denying pro se plaintiff discovery pursuant to Rule 56(f) because plaintiff's allegations were "grounded in mere speculation").
A plaintiff must also comply with the appropriate procedural guidelines when making a claim of inadequate discovery. This Circuit had held that "the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Paddington Partners, 34 F.3d at 1137 (noting that even "a reference to Rule 56(f) and to the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56(f) affidavit"). However, "the Court must afford `special solicitude' to pro se litigants confronted with summary judgment motions." Sereika v. Patel, 411 F. Supp. 2d 397, 404 (S.D.N.Y. 2006) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)) (nonetheless denying pro se plaintiff's request for further discovery partially because he did not submit a Rule 56(f) affidavit).
Construed liberally, Plaintiff's Motion in Opposition to Defendant's Motion for Summary Judgment requests that this Court allow Palacio the opportunity to conduct further discovery. Specifically, Palacio requests permission to depose the Defendants and certain witnesses and appears to ask the Court to compel production of "the discovery requested heretofore." These requests were not made through a Rule 56(f) affidavit as required. The Court can deny Palacio's request on this basis alone.
Officers Thomas, Wright, L. Rosado, J. Romero, R. Lopez, K. Thomas, Captain McMillan, Warden Richard Pagan, Doctor S. Edano, the "Doe" Defendants and unidentified prisoner witnesses. (Docket No. 35.)
The Court also finds that Palacio's request for further discovery does not pass this Circuit's four-part test. First, his request that the court compel production of "the discovery requested heretofore" does not adequately "specify the nature of the uncompleted discovery." Hutchinson, 1998 U.S. Dist. LEXIS 4082, at *26. Second, his request for permission to depose specific witnesses does not "demonstrate how the facts sought are reasonably expected to create a genuine issue of fact." Id., 1998 U.S. Dist. LEXIS 4082, at *26. Plaintiff claims that deposing Defendants and certain witnesses will allow him to show (1) that he filed multiple grievances regarding his CMC classification, or alternatively that the DOC's grievance system is flawed (Pl. Mot. Opp'n Defs.' Mot. Summ. J. ¶ 13); (2) that CO Thomas's account of the December 16, 2000 inmate-on-inmate assault is inaccurate (Id. ¶¶ 15, 17, 18, 20); (3) that Lowman was involved in the December 16, 2000 assault and then, in spite of a separation order, assaulted Palacio again on January 26, 2001 (Id. ¶ 28). This Court already viewed these disputed facts in the light most favorable to the Plaintiff in its analysis above. This Court nonetheless found that all of Plaintiff's claims fail as a matter of law. Therefore, Plaintiff's request for further discovery is denied.
The Court notes that, in denying three similarly broad requests, Magistrate Judge Francis instructed Palacio to submit the "discovery requests and responses at issue." (See Docket Nos. 27, 41, 58.)
CONCLUSION
Defendants' motion for summary judgment is granted. The Clerk ofthe Court is requested to close out this case.
Having dismissed all of Palacio's claims on substantive grounds, this Court does not consider the issues of exhaustion of administrative remedies, liability of supervising officers, qualified immunity or municipal liability.
SO ORDERED.