(Id., Ex. E). Sgt. Elbow's conclusions formed the basis for the Deputy Superintendent's denial of plaintiff's grievance (id., Ex. F).
On June 23, 1994, plaintiff filed this action. Plaintiff claims that Busch used "extreme and unnecessary force by pushing, shoving and hitting me in my lower and upper back therefore trying to force me in to my cell" (Item 1, P 14). He also claims that Kania struck him and pushed him back into his cell "with enough unwarranted and unnecessary force to thereby deliberately with malicious intent" cause him to stumble into his cell and fall (id., P 15). Plaintiff claims that as a result of the conduct of Busch and Kania, he suffered bruises, contusions and abrasions on his lower back and aggravation of a previous back injury, as well as "emotional anguish" (id., P 23). He seeks damages in the amount of $ 375,000.00 for violations of his rights under the first, eighth and fourteenth amendments to the United States Constitution (Item 1).
By order dated November 21, 1994, Judge Skretny granted plaintiff's request to proceed in forma pauperis, but dismissed the complaint sua sponte against three defendants sued in their supervisory capacity (Item 3). Defendants Busch and Kania now move for summary judgment dismissing the complaint against them on the grounds that plaintiff cannot meet the pleading requirements for either a first amendment or an eighth amendment violation, and that Busch and Kania are entitled to qualified immunity.
I. Summary Judgment.
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); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).
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.), 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 or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). However, where the parties have relied solely on assertions made in affidavits or sworn statements to demonstrate the presence or lack of genuine issues of material fact, the nonmoving party "will have his [or her] allegations taken as true, and will receive the benefit of the doubt when his [or her] assertions conflict with those of the movant." Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996)(quoting 10 Wright, Miller & Kane, Federal Practice and Procedure § 2716 (1983)); see also Piesco v. City of New York, 933 F.2d 1149 (2d Cir.), cert. denied, 502 U.S. 921, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991).
II. Eighth Amendment.
A claim that prison guards subjected an inmate to excessive force is governed by the eighth amendment, which protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993)(citing Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), and Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). The core inquiry for the court in assessing a prisoner's claim that prison officials used excessive force in violation of the eighth amendment is "whether force was applied in a good-faith effort to maintain or restore prison discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992).
An inmate claiming that prison officials subjected him or her to cruel and unusual punishment by the use of excessive force has the burden of establishing both an objective and a subjective component. Romano v. Howarth, supra, 998 F.2d at 105. Objectively, the plaintiff must establish that the deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions. Id. ; see also Wilson v. Seiter, supra. While a de minimis use of force will rarely suffice to state a constitutional claim, the plaintiff is not required to show that the application of force resulted in serious injury. Hudson v. McMillian, supra, 503 U.S. at 9. As explained by the Supreme Court in Hudson :
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 38 L. Ed. 2d 324, 94 S. Ct. 462 (1973)("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). The Eighth Amendment's prohibition of "cruel and unusual" punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort "repugnant to the conscience of mankind."
Hudson v. McMillian, supra, 503 U.S. at 9-10 (quoting Estelle v. Gamble, supra, 429 U.S. at 106).
Subjectively, the plaintiff must show that the defendants acted wantonly. More specifically in the context of an eighth amendment "excessive force" claim, the plaintiff must show that the defendants acted "maliciously and sadistically to cause harm . . . ." Id. at 7; Romano v. Howarth, supra, 998 F.2d at 105. To determine whether the defendants acted maliciously, the trier of fact should consider the following factors: the extent of the plaintiff's injuries, the need for the application of force, the correlation between the need for force and the amount of force used, the threat reasonably perceived by the defendants, and any efforts made by the defendants to temper the severity of a forceful response. Whitley v. Albers, 475 U.S. 312, 321, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). As stated by the Second Circuit in Romano v. Howarth :
If an evaluation of these factors leads the [trier of fact] to conclude that the defendants acted maliciously, wantonness has been established. And an Eighth Amendment violation has occurred. If, on the other hand, reflection upon these factors leads the [trier of fact] to find that the defendants acted in a good-faith effort to maintain and restore discipline, no constitutional violation has occurred because the subjective component of the claim has not been satisfied.