The opinion of the court was delivered by: Loretta A. Preska, United States District Judge
Plaintiff Robert Sims, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 with respect to events that took place during his incarceration at Green Haven Correctional Facility ("Green Haven"). Plaintiff alleges that defendants denied him procedural due process at a series of seven disciplinary hearings in violation of the Fourteenth Amendment.
Plaintiff also alleges that defendants subjected him to excessive force on three separate occasions in violation of the Eighth Amendment. Defendants now move for summary judgment on all of plaintiff's claims.
The events underlying plaintiff's claims took place in 1995 while plaintiff was incarcerated at Green Haven. In 1996, plaintiff commenced the instant lawsuit alleging, inter alia, that defendants had subjected him to excessive force, displayed deliberate indifference to his medical needs, denied him procedural due process and verbally and sexually harassed him.
Thereafter, defendants moved to dismiss plaintiff's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. By Memorandum and Order filed August 25, 1997, I granted defendants' motion to dismiss in its entirety. Sims v. Artuz, 96 Civ. 0216, 1997 U.S. Dist. LEXIS 12669, *1 (S.D.N.Y. Aug. 25, 1997). The Court of Appeals vacated and remanded the decision to the extent that it dismissed plaintiff's excessive force and procedural due process claims. Sims v. Artuz, 230 F.3d 14, 27-28 (2d Cir. 2000). I then ordered plaintiff to file an amended complaint setting forth only the claims sustained by the Court of Appeals. (See Order filed November 20, 2000, docket no. 76). Plaintiff did so, (see Amended Complaint ("Am. Compl.") filed December 7, 2001, docket no. 127)*fn1, and defendants now move for summary judgment.
The defendants in this case — with the exception of Lorette Klein, Paul Daley and Skollar Stanley — were employed by the Department of Correctional Facilities ("DOCS") during the relevant time period, and most of the defendants — including Klein, Daley and Stanley — worked at Green Haven. Defendant Christopher Artuz was the Superintendent of Green Haven.
Defendant Philip Coombe, Jr. was the Acting Commissioner of DOCS in Albany. Defendant Cyril Coefield was the Deputy Superintendent for Security at Green Haven. Defendants Lorette Klein, Paul Daley and Skollar Stanley were employed by the New York State Office of Mental Health ("OMH") and were assigned to the psychiatric satellite unit operated by OMH at Green Haven.
Defendant Donald Selsky was the Director of Special Housing, Inmate Discipline Program for DOCS in Albany. Defendant John J. Tierney was a sergeant at Green Haven. Defendants Daniel J. Connolly and E. DeStefano were lieutenants at Green Haven. Defendants Virginia Blaetz, Thomas J. Levanduski and Robert "B.J." Smith were corrections counselors at Green Haven. Defendants Gayle A. Haponik, John S. Hupkowicz, William F. Hutchinson, C. Jones, S. Skidgell, B. Denton, G. Loughran, S. Thompson, K. Matott, C. Hooks and M. Rhynders were all employed by DOCS at Green Haven in capacities unspecified by the parties. (Defendants' Statement of Material Facts Pursuant to Local Rule 56. 1 ¶¶ 16-45). Defendants have provided a chart showing against which defendants plaintiff has asserted each of his ten claims. (Ex. to Defendants' Reply Brief). For simplicity's sake, in my discussion of plaintiff's claims I will often refer to the "defendants" without differentiating as to each defendant actually involved in each claim because ultimately such differentiation does not bear on my decision here.
The earlier decisions in this case, familiarity with which is assumed, provide an outline of plaintiff's claims. I will set forth the facts concerning the disciplinary hearings and the incidents of excessive force forming the basis of plaintiff's claims sustained by the Court of Appeals.*fn2
Plaintiff's due process claims arise from seven disciplinary hearings conducted at Green Haven during the period from March 3, 1995 to July 27, 1995. Each of the hearings was a Tier 3, or superintendent's hearing, the most serious level of disciplinary hearing. The parties do not refer to the disciplinary hearings in chronological order, but rather in the order in which plaintiff pleaded them. For consistency, I will also consider the hearings in this order.
1. First Disciplinary Hearing — March 7 and 8, 1995*fn3
This hearing took place as a result of two misbehavior reports issued to plaintiff for his conduct on February 21, 1995. (Inmate Misbehavior Report for February 21, 1995, Ex. I to the Affidavit of Laura V. Jones ("Jones Aff."); Inmate Misbehavior Report for February 21, 1995, Ex. J to Jones Aff.). On that date, plaintiff went to an appointment at the dental clinic. According to the first misbehavior report issued by defendant Hupkowicz, once he arrived at the clinic, plaintiff refused treatment, yelled profanity at the officers who were present and disobeyed a direct order to stop shouting. (Ex. I to Jones Aff.). Defendant Hupkowicz charged plaintiff with violating Rule 102.1 for making verbal threats and using abusive language and Rule 106.10 for refusing to obey a direct order. (Id.). The second misbehavior report issued by defendant Tierney charges that once plaintiff returned to his cell from the dental office, plaintiff was abusive and belligerent and refused to cooperate in the removal of his restraints, even when given a direct order to do so. (Ex. J to Jones Aff.). Defendant Tierney charged plaintiff with violating Rule 106.10 for refusing to obey a direct order, Rule 107.10 for verbal and physical interference and Rule 102.10 for making threats. (Id.).
These two misbehavior reports were consolidated into a single hearing conducted by defendant Connolly. Plaintiff received a copy of both misbehavior reports prior to the hearing. (Deposition of Robert Sims ("Pl's Dep.") at 95, Ex. G to Jones Aff.). Plaintiff selected defendant Smith, a corrections counselor at Green Haven, to assist him in preparing for the hearing. (Id.). Smith met with plaintiff, gave plaintiff a Tier Assistance Form and plaintiff informed Smith of the witnesses and documents he wanted. (Id.). Smith filed an inter-departmental communication stating that plaintiff "destroyed his complete Tier Assistance Form," but that Smith would "attempt to recall his requests from memory." (Ex. K to Jones Aff.). Smith also filed a misbehavior report for this incident, but no hearing was ever held as a result of the report.*fn4
On the first day of the hearing, March 7, defendant Connolly read the charges against plaintiff and he and plaintiff discussed plaintiff's complaints about defendant Smith's assistance. (Pl's Dep. at 98-101). Plaintiff told Connolly that the inter-departmental memorandum did not include witnesses he wanted to call and the videotape of the incident he wanted in evidence. (Id. at 99). Connolly adjourned the hearing until the next day, filing a disciplinary hearing extension request stating: "Inmate has numerous requests. He wishes to review video tapes. No way of providing that today. Also OMH staff needs to be interviewed. No one available today. Inmate also has new witnesses to testify at hearing." (Ex. L. to Jones Aff.).
The hearing reconvened on March 8, and plaintiff was again present. (Pl's Dep. at 101). Plaintiff renewed his complaints about the assistance he received from defendant Smith, but defendant Connolly determined that the assistance was adequate. (Id. at 104). Plaintiff became increasingly agitated during the hearing and cursed Connolly, after which plaintiff was removed from the hearing. (Pl's Dep. at 108). The hearing continued in plaintiff's absence. Two witnesses, defendant Daley and a dental assistant, testified in plaintiff's absence. Connolly filled out a Form 2176, required when an inmate requests a witness and the witness is not called or testifies outside the inmate's presence, for both witnesses. (Exs. M and N to Jones Aff.). Connolly also filled out a Form 2176 for another witness, inmate Nelson, who was not called "due to inmate Sims having to be ejected for disruptive behavior during proceedings." (Ex. YYY to Jones Aff.). Plaintiff acknowledges that there was a video tape on the table during the second day of the hearing on March 8, but it was not played in his presence. (Pl's Dep. at 117, 119).
Defendant Connolly found plaintiff guilty of all five charges. (Superintendent Hearing Disposition dated March 8, 1995, Ex. O to Jones Aff.). In the disposition, Connolly wrote that he relied upon the two written misbehavior reports of defendant Hupkowicz and Tierney. (Id.) Plaintiff received a penalty of one year in SHU as a result of the hearing. (Id.).
Plaintiff appealed the determination and penalty to defendant Selsky, who affirmed the decision. (Review of Superintendent's Hearing of March 8, 1995, Ex. P to Jones Aff.).
2. Second Disciplinary Hearing — March 3, 1995
The second disciplinary hearing resulted from a misbehavior report issued by Corrections Officer Robert Fountain to plaintiff for his conduct on February 24, 1995. (Inmate Misbehavior Report for February 24, 1995, Ex. R to Jones Aff.). The report states that on that date, plaintiff repeatedly threw his sneaker at a security camera, moved the camera out of position and refused a direct order to stop. (Id.). Fountain charged plaintiff with violating Rule 106.10 for failing to comply with a direct order, Rule 116.11 for tampering with state property or attempting to destroy state property, Rule 116.10 for destruction of state property and Rule 107.10 for interference with state duties. (Id.).
Plaintiff received a copy of the misbehavior report before the March 3 hearing. (Pl's Dep. at 295). Plaintiff signed an assistant selection form and corrections counselor Wayne Vincent, one of plaintiff's choices, was assigned to assist him. (Assistant Selection Form, Ex. S to Jones Aff.). Vincent completed an assistant form for plaintiff regarding the incident, but stated at the bottom of the form that plaintiff refused to sign it. (Assistant Form, Ex. T to Jones Aff.). Plaintiff testified at his deposition that he cannot recall meeting with an assistant for this hearing. (Pl's Dep. at 297-301). However, at the hearing, plaintiff complained to defendant Coefield, the hearing officer, about not getting the witnesses, documents and videotape he had asked his assistant to get for him. (Pl's Dep. at 303-04). Defendant Coefield found plaintiff guilty of refusing a direct order and tampering with property. (Superintendent Hearing Disposition dated March 3, 1995, Ex. Q to Jones Aff.). Coefield stated that he relied on the "officers report," his review of a videotape showing plaintiff throwing his sneaker at the camera and hitting it, and plaintiff's own testimony that he did throw his sneaker at and hit the camera. (Id.). Coefield sentenced plaintiff to 60 days in SHU. (Id.). Plaintiff appealed and the disposition was affirmed by Deputy Director Murphy. (Review of Superintendent's Hearing of May 3, 1995, Ex. RRR to Jones Aff.).
3. Third Disciplinary Hearing — July 11 and 20, 1995
This hearing resulted from a misbehavior report issued to plaintiff by Corrections Officer Charles Prentice for plaintiff's conduct towards Physician's Assistant Zaken during her rounds in SHU on June 27, 1995. (Inmate Misbehavior Report for June 27, 1995, Ex. V to Jones Aff.). According to the report, plaintiff shouted obscenities at Zaken and made disrespectful, sexually explicit comments. (Id.). Prentice charged plaintiff with violations of Rule 107.10 for interference, Rule 104.13 for conduct disturbing the facility, Rule 107.11 for verbal harassment and Rule 106.10 for disobeying a direct order. (Id.).
Again, plaintiff filled out an inmate assistance selection form and was assigned defendant Smith, one of his choices. (Ex. Z to Jones Aff.). Plaintiff sent Smith a letter listing the evidence and witnesses he wanted, which Smith attached to an assistant form with his handwritten responses to plaintiff's requests. (Ex. X to Jones Aff.). Plaintiff signed this form. (Id.). The hearing began on July 11, with defendant Haponik acting as hearing officer. Plaintiff told Haponik that he needed the videotape of the incident and certain witnesses, and Haponik adjourned the meeting. (Pl's Dep. at 432-35). The hearing reconvened on July 20, at which time plaintiff was not present, although he did receive an audiotape of the hearing. (Id. at 435-36). Plaintiff testified at his deposition that on the audiotape defendant Haponik gave a reason for plaintiff's absence, but that plaintiff can no longer recall the reason given. (Id. at 444). As required, Haponik filled out a Form 2176 for each witness not called or called outside plaintiff's presence. (Exs. AA, BB, CC, DD, EE to Jones Aff.). Haponik found plaintiff guilty of all four charges and sentenced plaintiff to 60 days in SHU and 30 days without the use of headphones. (Superintendent Hearing Disposition dated July 20, 1995, Ex. Y to Jones Aff.). In the disposition, defendant Haponik stated that she relied upon the "statement of PA Zaken and the written report of CO Prentice." (Id.). There is no evidence that plaintiff appealed this decision.
4. Fourth Disciplinary Hearing — July 11 and 12, 1995
The incident leading to this hearing took place on June 28, 1995, and was the subject of misbehavior reports written by Corrections Officers Robert Tompkins and Cherylann Harding. (Inmate Misbehavior Reports for June 28, 1995, Exs. FF and GG to Jones Aff.). According to those reports, plaintiff set a fire outside his cell, littered and threw water on the floor, threw clothes and sneakers at the security camera in an attempt to dislodge it from the wall and made threats to the officers. (Id.; Report of Fire, Ex. HH to Jones Aff.). Harding's report also states that plaintiff was naked and miming masturbation when she entered the area near plaintiff's cell. (Ex. GG to Jones Aff.). Tompkins charged plaintiff with violating Rule 102.10 for threats, Rule 104.13 for disturbance, Rule 107.10 for interference, Rule 116.10 for destruction of state property, Rule 118.10 for setting fires and Rule 118.25 for littering. (Ex. FF to Jones Aff.). Harding charged plaintiff with violating Rule 11 101.20 for intentionally exposing his private parts, Rule 104.11 for engaging in violent conduct and Rules 116.10 and 118.10 for the reasons stated by Tompkins. (Ex. GG to Jones Aff.).
These two reports were consolidated into a single hearing commencing on July 21. Plaintiff received copies of both reports before the hearing began. (Pl's Dep. at 330, 349). Plaintiff requested an assistant and was again assigned Smith, to whom he wrote a letter outlining his requests, including a request to view the videotape of the incident in his cell prior to the hearing. (Ex. KK to Jones Aff.). Smith responded by filling out an assistant form informing plaintiff that he could request the tapes at the hearing. (Ex. LL to Jones Aff.). Plaintiff refused to sign this form. (Id.) Plaintiff was present at the first day of the hearing, at which defendant Blaetz presided as hearing officer. When plaintiff raised objections about the assistance provided to him, Blaetz adjourned the hearing. (Pl's Dep. at 358). Plaintiff was not present when the hearing reconvened on July 12; according to the hearing disposition, Blaetz excluded plaintiff "due to his violent and disruptive behavior." (Superintendent Hearing Disposition dated July 12, 1995, Ex. MM to Jones Aff.). Blaetz found plaintiff guilty of all charges and sentenced him to 180 days in SHU, as well as 180 days of loss of recreation, receipt of packages, and use of the commissary and phones. (Id.). ...