The opinion of the court was delivered by: MCAVOY
These two actions were consolidated by a Stipulation and Order dated and filed with this court on March 8, 1996.
The plaintiff alleges that the defendants assaulted him, intentionally delayed medical treatment for his injuries, and denied him due process in violation of his First, Fourth, Sixth, Seventh, Eighth, and Fourteenth Amendment rights. The plaintiff seeks injunctive relief and compensatory damages.
On or about July 6, 1991, the plaintiff alleges that he slipped and fell on wet stairs and/or the bathhouse floor of the Clinton Correctional Facility. The plaintiff further alleges that following the accident, he was handcuffed by the defendants Forley and Seals, and beaten by hands, boots, and clubs about his head, knees, and arms. Subsequent to the alleged beating, the plaintiff was treated for a head wound at the Champlain Valley Medical Hospital.
The plaintiff alleges that he was assaulted on no less than six occasions by groups of corrections officers. The motivation for these beatings allegedly was the plaintiffs' complaints and civil lawsuits against corrections officers and administrators. The plaintiff also alleges that on one occasion a nurse injected him with an undisclosed and unauthorized medication.
The plaintiff repeatedly alleges that he has been denied proper medical treatment. Specifically, the plaintiff claims that: (1) he has not received his prescribed physical therapy since September 11, 1992; (2) he has been denied use of a prescribed wheelchair since November 16, 1992; (3) he has been without his prescribed crutches since January 10, 1993; and (4) he has been without a prescribed knee brace since January 12, 1993. Allegedly, all of these devices, with the exception of the wheelchair, were removed from his possession without medical authorization, and by force. In addition, the plaintiff claims to have been further mistreated in retaliation for initiating lawsuits by denial of daily supplies, a proper diet, pain medication, and certain surgeries. Finally, the plaintiff alleges that he has been sent outside into a recreation area during the winter months for one hour periods without appropriate clothing.
The defendants moved for summary judgment on November 14, 1994. First, the defendants argue that the complaint should be dismissed because the plaintiff has failed to comply with the Magistrate Judge's discovery order requiring his cooperation at an oral deposition. Second, the defendants contend that the plaintiff's eighth amendment claims relating to medical treatment/care must be dismissed because the plaintiff cannot establish that any defendant acted with deliberate indifference to a serious medical need. Third, the defendants Walker and Senkowski argue that all claims should be dismissed as against them because they were not personally involved in the alleged unlawful acts. Finally, the defendants argue that they are protected from a claim for damages pursuant to the doctrine of qualified immunity. The Magistrate Judge issued a Report-Recommendation dated December 13, 1995, to which the defendants have objected.
The defendants' motion for summary judgment was referred to Magistrate Judge David N. Hurd for a Report-Recommendation and objections have been filed. Accordingly, pursuant to Fed. R. Civ. P. 72 this court must make a "de novo determination upon the record" of the motion before the court. Fed. R. Civ. P. 72(b). After making a de novo determination, this court may accept, reject, or modify the recommended decision receive further evidence, or recommit the matter to the magistrate with instructions." Id. The court now turns to the issues presented.
B. Standard For Summary Judgment
The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. R. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990), quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994) (quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983). However, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it may not properly grant summary judgment where the issue turns on the credibility of witnesses. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the Court on summary judgment. Id. ; See, e.g., Fed.R.Civ.P. 56(e), 1963 Advisory Committee Note; Agosto v. Immigration & Naturalization Service, 436 U.S. 748, 756, 98 S. Ct. 2081, 2086-87, 56 L. Ed. 2d 677 (1978); Poller v. Columbia Broadcasting System, 368 U.S. 464, 472-73, 82 S. Ct. 486, 490-91, 7 L. Ed. 2d 458 (1962); Ramseur v. Chase Manhattan Bank, 865 ...