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Cowan v. Cahill

United States District Court, D. Connecticut

September 23, 2016

VERNON L. COWAN, JR., Plaintiff,
v.
JASON CAHILL, et al., Defendants.

          RULING ON PENDING MOTIONS

          Stefan R. Underhill United States District Judge

         The plaintiff, Vernon L. Cowan, Jr., is currently confined at the North Branch Correctional Institution in Cumberland, Maryland. He initiated this action by filing a complaint against Captain Jason Cahill, Lieutenant Michael Pafumi and Correctional Officers Orcutt, Prior, Hartley and Delpeschio. Cowan moves for summary judgment and for the appointment of counsel. The defendants move for summary and to stay discovery pending my ruling on the motions for summary judgment.

         The motion to stay discovery is denied as moot. For the reasons set forth below, both motions for summary judgment will be denied and the plaintiff's motion for appointment of counsel will be granted.

         I. Standard of Review

         In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is “entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When a motion for summary judgment is supported by documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.

         In reviewing the record, I must “construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enters., L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). If there is evidence in the record from which a reasonable factual inference could be drawn in favor of the non-moving party on the issue on which summary judgment is sought, summary judgment is improper. See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         Where one party is proceeding pro se, I must read the pro se party's papers liberally and interpret them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted). Despite this liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts[1]

         Cowan's complaint and application to proceed in forma pauperis were dated June 12, 2014, and were received by the court on June 30, 2014. See Compl., Doc. No. 1 at 1, 17; Application Proceed In Forma Pauperis, Doc. No. 2 at 1, 5. The complaint asserted claims of excessive force and failure to protect from harm against Captain Jason Cahill, Lieutenant Michael Pafumi and Correctional Officers Orcutt, Prior, Hartley and Delpeschio related to incidents that occurred at Northern Correctional Institution on September 2, 2011.

         On July 8, 2014, I issued a notice informing Cowan that there were deficiencies in his application to proceed in forma pauperis. See Notice, Doc. No. 5. The notice directed Cowan to correct the deficiencies and to file the necessary documents on or before July 30, 2014, or the case would be subject to dismissal. On August 18, 2014, after Cowan had failed to comply with the notice of insufficiency, I denied the application to proceed in forma pauperis and dismissed the complaint without prejudice. See Ruling and Order, Doc. No. 6. I informed Cowan that any motion to reopen the dismissal should be accompanied by a new application to proceed in forma pauperis with all the necessary supporting documentation and should also explain why he had filed to comply with the notice of insufficiency. See Id. On August 21, 2014, the Clerk entered a judgment closing the case pursuant to my ruling dismissing the complaint without prejudice. See Judgment, Doc. No. 7.

         On August 28, 2014, the Clerk's Office received a letter from Cowan regarding the dismissal of his case. On September 18, 2014, I issued an order informing Cowan that the letter would not be construed as a motion to reopen, and that if he sought to reopen the case, he must file a motion and a new prisoner application to proceed in forma pauperis. See Order, Doc. No. 8.

         On October 6, 2014, I received Cowan's motion to reopen the judgment and a new prisoner application to proceed in forma pauperis. See Mot. Reopen, Doc. No. 9; Application Proceed In Forma Pauperis, Doc. No. 10. On October 8, 2014, I granted Cowan's motion to reopen. See Order, Doc. No. 12. On November 6, 2014, I granted Cowan leave to proceed in forma pauperis. See Order, Doc. No. 13.

         On December 31, 2014, Cowan sought leave to amend his complaint. See Mot. Am., Doc. No. 14. On January 6, 2015, I granted the motion for leave to amend. See Order, Doc. No. 16. The amended complaint included the same excessive force and failure to protect claims against Captain Jason Cahill, Lieutenant Michael Pafumi and ...


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