The opinion of the court was delivered by: SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.:
I. The January 12, 1990 incidents.
Plaintiff was transferred from Shawangunk Correctional Facility arriving at Green Haven Correctional Facility on January 12, 1990. Defendant's 56.1 Statement, at 2, PP 3-4. Plaintiff claims that when he arrived at Green Haven, Officers Suber and O'Gorman "grabbed, beat, punched, kicked and dragged him from the ground outside of the transfer van, while he was handcuffed behind his back and shackled to his feet with leg irons on, to and into Greenhaven Prison and threw him on top of and over a long table as defendant Laboy observed, condoned and supervised without ordering such criminal and unlawful [sic] to immediately stop, cease and desist." Complaint, at 5, P 14. Plaintiff claims that defendants Suber, O'Gorman and Laboy conspired to assault him in retaliation for his "litigation endeavor"
and because he would not voluntarily submit to a strip frisk.
Id.; Plaintiff's Opposition # 1, at 5, P 2. Plaintiff was then examined and received medical attention for an "'abrasion to the right shoulder'" and "'minor laceration to left second digit'". Defendants' 56.1 Statement, at 2, P 8; see id. at Exh D. Without explanation, plaintiff claims that "a lot of [his] injuries were not recorded by the medical staff".
Plaintiff's Opposition # 1, at 9, P 14.
Following his admission to Green Haven, plaintiff received a misbehavior report. Defendants' 3(g) Statement, at Exh. C. Plaintiff claims that he was denied witnesses and exculpatory evidence at the January 25, 1990 disciplinary hearing before Lieutenant DeGaust. Complaint, at 7, P 18. Plaintiff was found guilty of two counts of refusing a direct order, and one count of refusing to submit to a strip frisk. Defendants' 3(g) Statement, at Exh. C. He received a sentence of 90 days in the Special Housing Unit as well as 90 days loss of packages, commissary, and telephone privileges. Id. Plaintiff claims that defendant Selsky joined the conspiracy to violate plaintiff's rights when he upheld Lieutenant DeGaust's determination. Complaint, at 7, P 18.
II. The October 1, 1992 incidents.
Plaintiff claims that defendants McCormick, Doyle and Mack conspired to harass, retaliate and provoke plaintiff into a physical confrontation when they discovered plaintiff would be transferred from Green Haven on October 1, 1992. Complaint, at 8, P 20. They allegedly made a number of racial slurs towards plaintiff and threatened to beat and kill him if he did not "voluntarily submit to and comply with the strip search procedures." Id. at 8-9, P 21. When plaintiff exited his cell, he was intercepted by defendants Brady and McCormick who then pat frisked him in the search room. Plaintiff claims this pat frisk procedure violated the consent decree in Hurley v. Ward, No. 77 Civ. 3847 (RLC)c (S.D.N.Y. July 21, 1983).
Complaint, at 9, P 23; see Defendants' 56.1 Statement, at Exh. K. Plaintiff was then ordered to submit to a strip frisk which he refused to do. See Defendants' 56.1 Statement, at 3-4, PP 14-15.
As a result of these incidents, plaintiff received a misbehavior report. Defendants' Response to Plaintiff's Request for Documents, at Exh. B. Plaintiff claims that his due process rights were violated at the October 13, 1992 disciplinary hearing arising from these events in that he was denied: the ability to present a defense and rebut the charges, an inmate assistant, witnesses, an impartial and unbiased hearing officer, and the opportunity to review the video tape of the search "to establish retaliatory factors and to present mitigating evidence pursuant to the consent decree in Salik v. Farrel." Complaint, at 17, P 35(1-5). Following a disciplinary hearing, plaintiff was found guilty of refusing a direct order, but not guilty of refusing to submit to a strip frisk.
Complaint, at 16, P 35; Defendant's Response to Plaintiff's Request for Documents, at Exh. B. He received a sentence of 90 days in the Special Housing Unit as well as 90 days loss of packages, commissary, and telephone privileges. Defendants' 56.1 Statement, at Exh. P.
Plaintiff filed the instant action under 42 U.S.C. § 1983 with seven causes of actions alleging that defendants violated his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. Defendants move for summary judgment claiming that (1) the facts do not support a claim for excessive force; (2) the disciplinary hearings complied with due process; (3) the facts do not support claims for conspiracy and retaliation; (4) verbal epithets without physical injury are not actionable under § 1983 as a matter of law; and (5) defendants are entitled to qualified immunity.
I. Summary Judgment Standard
Summary judgment is appropriate when
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 a judgment as a matter of law.
Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). The moving party bears the initial responsibility of "informing the court of the basis for its motion" and identifying those portions of the record that it "believes demonstrate the absence of a genuine issue of material fact." Federal Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson, 477 U.S. at 248.
The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. Chambers, 43 F.3d at 36. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," however, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); accord Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) ("the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). If the moving party meets its burden, the burden then shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To defeat the summary judgment motion, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Instead, the nonmovant must "'come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture of surmise.'" Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992) (citation omitted).
It is within this context that the district court must then view the evidence in "a light most favorable to the nonmoving party," and resolve all ambiguities and "draw all reasonable inferences" in its favor. American Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson, 477 U.S. at 255; Chambers, 43 F.3d at 36. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the moving party, summary judgment is improper." Chambers, 43 F.3d at 37 (emphasis added). Only when it is apparent that no rational trier of fact ...