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March 3, 1998

JORGE SPRAU, Plaintiff,
THOMAS A. COUGHLIN, III, et al., Defendants.

The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to 42 U.S.C. ยง 1983. Plaintiff, Jorge Sprau ("plaintiff"), alleges that defendants, Commissioner of Corrections Thomas Coughlin ("Coughlin"), Inspector General Brian Malone ("Malone"), Superintendent Walter Kelly ("Kelly"), and Correction Officer Donald Carriero ("Carriero"), violated his constitutional rights while he was incarcerated at Attica Correctional Facility. Pending before the Court is defendants' motion for summary judgment.


 Plaintiff claims that on September 11, 1993, Carriero approached him in the exercise yard and demanded his identification card. When plaintiff asked why his card was being taken, Carriero informed plaintiff that another correction officer had told Carriero to take it. Plaintiff immediately requested that officer's name. Carriero responded that he could not give plaintiff that information. Plaintiff informed Carriero that he was going to report him not only for taking his identification card, but also for refusing to tell him the name of the officer that had initially requested it. At that point, Carriero ordered plaintiff to his cell.

 As plaintiff was walking back to his cell, Carriero and two other officers approached him. Carriero told plaintiff to put his hands on the wall for a pat frisk. Carriero then grabbed plaintiff from behind the neck and hit him across the neck and face and in the eye several times. Each time Carriero hit plaintiff, he dared plaintiff to write a complaint against him. Carriero then told plaintiff to go directly to his cell, where he was placed in keeplock confinement. Later that evening, plaintiff received Ibuprofen and a bag of ice from the health center for his injuries. Plaintiff wrote to Kelly, Coughlin, and Malone to inform them of the incident.

 Defendants offer a significantly different version of events. Defendants maintain that on the evening in question, plaintiff was observed talking through the windows in the exercise yard, which is a violation of facility rules. When the tower officer ordered plaintiff to stop, plaintiff responded with an obscene gesture. Carriero approached plaintiff and brought him to the platform officer for identification. Plaintiff was ordered into keeplock confinement in anticipation of a misbehavior report. Carriero maintains that he escorted plaintiff back to his cell, but denies that he frisked him. Carriero also asserts that no incident of any kind occurred while he was escorting plaintiff back to his cell and that plaintiff suffered no injuries while in Carriero's presence.

 As a result of the incident in the yard, Correction Officer Daniels issued a misbehavior report against plaintiff for refusing a direct order, engaging in verbal harassment, violating rules relating to inmate movement, and refusing to produce identification. Plaintiff was found guilty of the first three offenses at a Tier II hearing held on September 15, 1993.

 Plaintiff wrote to Kelly on September 15, 1993, alleging that Carriero had assaulted him. Kelly referred the complaint to Lieutenant Perkins for investigation. Based on that investigation, no action was taken. Kelly maintains that plaintiff's complaint regarding the incident was properly investigated and denied. Further, although plaintiff claims that he also wrote to Coughlin and Malone regarding the incident, Coughlin and Malone did not receive any communications from plaintiff either before or after the incident. Plaintiff also filed a grievance on October 27, 1993 against Carriero for harassment. Based on an investigation, it was determined that plaintiff's allegations were unfounded, and the grievance was denied on November 15, 1993.


 In this action, plaintiff alleges that defendants: (1) deprived him of his rights to freedom of speech and to petition the government for redress of grievances under the First Amendment; (2) inflicted cruel and unusual punishment on him in violation of the Eighth Amendment; and (3) deprived him of equal protection under the Fourteenth Amendment.

 A. Summary Judgment Standard

 Summary judgment will be granted if the record demonstrates 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); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), and all ambiguities and inferences that may be reasonably drawn from the facts must be viewed in the light most favorable to the non-moving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a ...

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