The opinion of the court was delivered by: HECKMAN
REPORTED AND RECOMMENDATION
UNITED STATES MAGISTRATE JUDGE
This case has been referred to the undersigned by Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b)(1)(B). Defendant Paul N. Marcellus has filed a motion for summary judgment.
For the reasons that follow, it is recommended that defendant's motion be denied.
Plaintiff is an inmate at the Southport Correctional facility, maintained by the New York State Department of Correctional Services ("DOCS"). On March 19, 1993 he was being housed in "One Company" at Southport, which is the cell block area where prisoners with disciplinary problems are kept (Marcellus Deposition, p. 11, attached to Item 53). Peter Storms, a civilian worker at Southport, was in One Company distributing clothes to inmates when one of the inmates threw a bar of soap at him. Storms approached plaintiff's cell and told plaintiff he was going to write him up on disciplinary charges. Plaintiff denied that he threw the soap. He then took a cup from his desk, dipped it in the toilet and threw water from the toilet on Storms (Plaintiff's Deposition, pp. 4-5, attached to Item 53).
Storms reported the incident to Sgt. Marcellus, who was the supervising officer on duty in charge of One Company. Marcellus claims that he contacted the watch commander, Lt. Burge, who advised Marcellus to move plaintiff to D-block where the cell doors were solid and materials could not be thrown at passers-by. Marcellus went to plaintiff's cell, accompanied by officers Hicks and Hine. He informed plaintiff that he was to be moved to D-block, and ordered him to extend his hands to be cuffed. Marcellus repeated this order several times, but plaintiff refused to comply. Instead, plaintiff asked Marcellus to call a lieutenant and to record the event on video. These requests were refused (Plaintiff's Deposition, pp. 5-7; Marcellus Deposition, pp. 16-18 ).
Marcellus left the area, and returned shortly thereafter with two additional corrections officers. He again ordered plaintiff to step up to the cell door to receive handcuffs, and plaintiff again refused. According to Marcellus, the cell block had become "highly agitated" over the incident, and several inmates were yelling and throwing things onto the gallery floor. Marcellus then ordered plaintiff's cell to be opened. The five officers rushed into the cell, led by Officer Shaylor who pinned plaintiff against the cell wall with a plexiglas shield. Plaintiff resisted as the officers eventually wrestled him to his bed, handcuffed him, and took him to D-block.
Plaintiff claims that when the cell door opened, he was sitting on his bed. Shaylor rushed toward him with the shield and pushed him up against the wall. Officer Armstrong then got on top of him, and Officer Hicks hit him in the legs with his baton. Officer Armstrong then turned plaintiff over on his bed, and Hicks continued hitting him with his baton in the legs and in the back. He also claims that one of the officers struck him on the face with a walkie-talkie, while two others held and twisted his arms (Plaintiff's Deposition, pp. 11-15).
In D-block, Plaintiff was seen by a nurse and photographs were taken of his injuries. His medical records show that he suffered an abrasion under his left eye, a small laceration near his right ear, and four superficial skin tears on his upper calf behind the knee. His right wrist was slightly swollen (Item 53, Ex. C).
A Tier III disciplinary hearing was held on April 1, 1993. Plaintiff pled guilty to charges of assault and committing an unhygienic act with respect to the incident involving Mr. Storms. The hearing officer also found plaintiff guilty of interference with an employee, refusing a direct order, and violating a movement regulation. He was assessed a penalty of 180 days in SHU.
On May 19, 1993, plaintiff filed this action under 42 U.S.C. § 1983. After this court granted his application for appointment of counsel, an amended complaint was filed alleging that the conduct of the corrections officers constituted excessive force in violation of the eighth amendment. Defendant Marcellus now moves for summary judgment dismissing the case against him.
Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991).
A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture ...