The opinion of the court was delivered by: VICTOR Marrero, District Judge.
Plaintiff Angel Torres ("Torres"), proceeding pro se, filed this action
under 42 U.S.C. § 1983 alleging violations of his constitutional
rights under the Eighth Amendment and the Due Process Clause of the
Fourteenth Amendment of the United States Constitution. Defendant B.
Depasquale ("Depasquale") answered the complaint. Defendants William
Mazzuca ("Mazzuca"), Thomas Eagen ("Eagen"), Arlen Pelc ("Pelc"), John
Rourke ("Rourke") and N. Bezio ("Bezio") filed a motion to dismiss the
complaint pursuant to Federal Rules of Civil Procedure ("Fed.R. Civ. P.")
12(b)(6). On April 18, 2002, Torres identified defendant John Doe 1 as
Lieutenant Kruger ("Kruger") but has not served that defendant. For the
reasons discussed below, the motion is GRANTED in its entirety.
According to the Complaint, on or about June 10, 2001, while Torres was
housed in a Special Housing Unit ("SHU") at Fishkill Correctional
Facility ("Fishkill"), he translated a request to Depasquale, a
corrections officer at Fishkill, for toilet paper made by the inmate
housed in the cell adjoining his who did not speak English. In response,
Depasquale swore and denied the request, telling Torres to mind his own
business and instructing him to inform the other inmate to "wash up in
the toilet or use his washcloth." (See Amended Complaint, dated February
15, 2002 (the "Compl."), ¶¶ 20-22.) Depasquale then left. Shortly
thereafter, Torres reported this incident to the Sergeant on duty, who
assured Torres that Depasquale would deliver toilet paper. When
Depasquale delivered toilet paper ten or fifteen minutes later, he said:
"Torres don't forget you snitched on me to the Sergeant. I am gonna be
here on June 25th 2001 [the day Torres was to be released from SHU] and
you're gonna get it, I promise." (Compl. ¶ 25.) Torres did not
grieve or otherwise inform prison officials of this threat.
The Complaint further alleges that on June 25, 2001, Depasquale again
threatened Torres by stating "Torres, I'm here and I'm gonna get you!"
(Id. at ¶ 26.) Shortly thereafter, Depasquale, along with two other
lieutenants, appeared to release Torres from SHU confinement. Torres
alleges that Depasquale handcuffed him and "pat frisked" him roughly,
including intentionally grabbing him in the groin area. (Id. at ¶
27.) When Torres objected to Depasquale's "improper pat frisk,"
Depasquale slammed his head against the wall. (Id.)
Once the officers waist chained and handcuffed Torres, Torres alleges
that they took him to the "strip room" where Depasquale punched Torres in
the face, causing him to fall to the ground unconscious. (Id. at ¶¶
28, 29.) Torres regained consciousness when he was lifted from the
ground, and noticed a pool of blood beneath him. The Court will refer to
these alleged events as the "Incident".
On the same day as the Incident, Depasquale filed an Inmate Misbehavior
Report charging Torres with assaulting staff, violent conduct, disobeying
a direct order, interference with an employee, and violation of a search
and frisk procedure. (See id. Exh. J (the "Misbehavior Report").) The
Misbehavior Report sets forth a very different account of the Incident
from Torres's, essentially stating that because of Torres's aggressive
and disruptive behavior, Depasquale punched him in self-defense. At the
June 29, 2001 hearing held in response to Depasquale's charges, Torres
argued that the Misbehavior Report was a fabrication. Mazzuca,
Superintendent of Fishkill, presided over the hearing. The hearing was
adjourned to review evidence and to arrange for Torres's witnesses to be
summoned. The hearing was never reconvened. Instead, on July 7, 2001,
Torres was released from SHU. Torres filed a request for the hearing
tape, the Misbehavior Report and disposition, as well as pictures that
were taken of him after the Incident is alleged to have occurred. He was
informed by letter from corrections officer T. L. Favro, dated October
18, 2001, that no file existed. (See id. Exh. L.)
On June 26, 2001, Torres filed a grievance regarding the Incident.
Receiving no response, he submitted a second grievance on July 4, 2001.
Again receiving no response, he filed a third grievance on July 17,
Torres finally was interviewed by Kruger, a correctional lieutenant at
Auburn Correctional Facility, on August 13, 2001. According to Torres,
Kruger submitted a report stating that Depasquale "denies in writing that
he assaulted the grievant" and apparently did not interview any witness
or review any video surveillance tapes that might exist. (Id. at ¶
46.) Based on Kruger's findings, a report was issued denying Torres's
grievance (the "Kruger Report"). (Id. Exh. E.) Torres appealed the Kruger
Report to Eagen, Director of the Inmate Grievance Program. Bezio, another
corrections officer, was then assigned to conduct a second
investigation. On December 19, 2001, when Bezio appeared to interview
Torres, Torres was distressed to find that Bezio was not able to
interview Depasquale and did not have any videotapes to review. Bezio's
investigation affirmed the Kruger Report and the appeal was denied. (Id.
Torres wrote to Commissioner Goord ("Goord"), the Commissioner of the
Department of Correctional Services, explaining the Incident, the
existence of the video and audio tapes recording the Incident, the denial
of his grievances and requested assistance in prosecuting his grievance.
In response, he received a letter from Lucien J. Leclaire, Jr.
("Leclaire"), Deputy Commissioner of the Department of Correctional
Services, dated December 5, 2001 (Id. Exh. O.) Leclaire informed Torres
that the Incident had been recorded as an "unusual incident (assault on
staff)." In addition, Leclaire pointed to the Doe Report investigation,
and indicated that corrections officer Pelc had reviewed the video tape
of Torres's escort from the gallery to the strip frisk area and found
nothing to support Torres's claims. Further, Leclaire stated that the
Misbehavior Report charges were dismissed because the disciplinary
hearing was not completed in a timely manner. Thus, Leclaire found no
factual support in the grievance record for Torres's assault claim.