The opinion of the court was delivered by: HECKMAN
This case has been referred to the undersigned by Hon. Michael A. Telesca, pursuant to 28 U.S.C. § 636(b)(1), for pretrial matters and to hear and report on dispositive motions. Defendants have filed a motion for summary judgment (Item 21) pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, it is recommended that defendants' motion be granted.
On October 18, 1995, plaintiff filed this action seeking declaratory relief and monetary damages pursuant to 42 U.S.C. § 1983. He claims that on September 1, 1995, while he was incarcerated at the Southport Correctional Facility maintained by the New York State Department of Correctional Services ("DOCS"), Correction Officers Moss, Brewer and Knapp and Correction Sergeant Rich subjected plaintiff to "malicious and sadistic use of force as a means of retaliation for filing complaints with government officials and for signing an affidavit of another prisoner in support of his petition to the Courts" (Item 1, P 18). He claims that Lieutenant Ryan and Captain Reynolds witnessed the conduct of the other defendants and took no action to prevent (id., P 13).
Aproximately 20 minutes later, Sergeant Rich and Captain Reynolds went to plaintiff's cell to retrieve the handcuffs. Plaintiff put his arms and wrists through the cell hatch. Rich removed the right cuff. Plaintiff then grabbed Rich's arm and attempted to pull him toward the cell. At the same time, plaintiff threw a cup of "unknown liquid smelling of urine" on Rich (Item 23, Ex. B). The liquid struck Rich on both hands and arms and on his uniform shirt, pants, belt and boots. The key to the handcuffs broke off, and bolt cutters had to be used to remove the cuffs (id.; see also Item 24, §§ 7, 8). Rich filed a misbehavior report about this incident (see Item 23, Ex. B). The report was also signed by Reynolds and Ryan. Again, the record before the court does not reflect the disposition of the charges set forth in the misbehavior report.
At approximately 2:00 p.m. on September 1, 1995, plaintiff was examined by medical staff in his cell. He complained of pain in his left upper arm, shoulder and wrist. There was no bruising, swelling or deformity, and plaintiff had full range of motion. There was tenderness of the left wrist at the base of the thumb, with limited range of motion of the wrist. Plaintiff was given oral analgesic for the pain and was advised to keep his left wrist elevated and to apply cold compresses (Item 24, Ex. C, p. 1; see also Medical Report of John W. Alves, M.D., attached to Item 25).
Plaintiff was seen again by nursing staff on September 2, 1995, and was observed wearing a self-made sling on his left arm. On September 3, 1995, nursing staff observed slight swelling of plaintiff's left hand at the base of the index finger, but no swelling of the wrist or gross deformity was observed. On September 6, 1995, plaintiff was observed by Dr. Alves, Southport's Health Services Director. Plaintiff's left wrist was without soft tissue swelling. His left elbow showed tenderness to palpation, but his elbow and shoulder had full range of motion and the neuro-vascular status of his left upper extremity was intact. Dr. Alves authorized an x-ray of plaintiff's left elbow, which was taken on September 13. The x-ray showed no evidence of fracture, dislocation or joint effusion (id.).
On September 22, 1995, plaintiff was examined again by Dr. Alves. Plaintiff stated that his left elbow pain had resolved, but he complained that his left thumb and fifth finger tingled. He had full range of motion in his left wrist, and there was no evidence of neuro-vascular compromise (id.).
In his unverified complaint, plaintiff alleges that defendants' conduct "denied [him] . . . his First, Eighth & Fourteenth Amendment Rights" (Item 1, P 17). Defendants move for summary judgment on the following grounds:
1. Plaintiff has failed to meet his burden to establish any triable issues of fact as to whether defendants' conduct meets the standards for cruel and unusual punishment or retaliation for the exercise of a protected right;
2. Defendants are entitled to qualified immunity; and,
3. Plaintiff has failed to show that defendants violated DOCS directives on the use of physical force.
These grounds are discussed in turn below.
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. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).
Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" in its unsworn pleadings to dispute the facts asserted by the movant. Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); Higgins v. Artuz, 1997 U.S. Dist. LEXIS 12034, 1997 WL 466505, at *3 (S.D.N.Y. August 14, 1997). Thus, where the movant's papers give the opposing party "easily comprehensible notice" of the possible consequences of not replying to the motion, and the party does not provide a response to the motion, the court may consider as undisputed the facts set forth in the moving party's affidavits, and may enter judgment in favor of the movant. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)(citing Timms v. Frank, 953 F.2d 281, 285 (7th Cir.), cert. denied, 504 U.S. 957 (1992)).
As explained by the Second Circuit in the Champion case:
The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically. Such a motion may properly be granted only if the facts as to which there is no genuine dispute "show that ...