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SIMS v. ARTUZ

United States District Court, Southern District of New York


March 31, 2003

ROBERT SIMS, PLAINTIFF,
v.
CHRISTOPHER ARTUZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Loretta A. Preska, United States District Judge

MEMORANDUM AND ORDER

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.

BACKGROUND

I. Procedural Background

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.

II. Factual Background

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

A. Disciplinary Hearings

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.). According to the disposition, Blaetz relied on the videotape of the incident, the misbehavior reports and the testimony of Sergeant Markle. (Id.). Plaintiff appealed the determination and penalty to defendant Selsky, who affirmed the decision. (Review of Superintendent's Hearing of July 12, 1995, Ex. OOO1 to Jones Aff.)

5. Fifth Disciplinary Hearing — July 10 and 12, 1995

This hearing arose from plaintiff's sexually explicit comments and other conduct directed at Sergeant Markle, who issued a misbehavior report to plaintiff charging him with violating Rule 101.10 for making verbal threats, Rule 104.13 for disturbing order, Rule 106.10 for refusing a direct order and Rule 101.10 for engaging in sex acts. (Inmate Misbehavior Report for July 4, 1995, Ex. OO to Jones Aff.). The second day of the hearing itself was recorded on videotape. (Defs' Videotape Ex. B1). The hearing began on July 10 but was adjourned by hearing officer Coefield because plaintiff wished to view the videotape of the underlying incident. (Id.). The hearing reconvened on July 12, at which time plaintiff viewed the videotape and complained about not being assigned an assistant. (Id.). Defendant Coefield responded that plaintiff had stated at the hearing on July 10 that if he viewed the tape he would not need an assistant. (Id.). Plaintiff did not dispute this statement at the time. (Id.). The assistant selection form for this incident and hearing states that "inmate refused to return or sign form." (Ex. PP to Jones Aff.). Near the close of this hearing, plaintiff kicked the television monitor used to review the videotape. (Defs' Videotape Ex. B1). This conduct is the subject of plaintiff's sixth disciplinary hearing, discussed below.

Defendant Coefield found plaintiff guilty of all charges and sentenced plaintiff to 90 days in SHU, as well as 90 days loss of receipt of packages and the use of commissary and phones. (Superintendent Hearing Disposition dated July 12, 1995, Ex. QQ to Jones Aff.). Coefield stated that he relied on the videotape of the incident which "clearly shows inmate threat[en]ing, harassing and creating a disturbance on the gallery, " as well as Sergeant Markle's misbehavior report. (Id., Ex. RR to Jones Aff.). Plaintiff appealed the determination and penalty to defendant Selsky, who affirmed the decision. (Review of Superintendent's Hearing of July 12, 1995, Ex. KKK to Jones Aff.).

6. Sixth Disciplinary Hearing — July 26, 1995

This hearing concerns plaintiff's behavior during the disciplinary hearing on July 12, 1995. According to the misbehavior report filed by Sergeant Tierney, at one point during that hearing, plaintiff kicked the television monitor. (Inmate Misbehavior Report for July 12, 1995, Ex. SS to Jones Aff.). The videotape of the July 12 hearing also shows plaintiff kicking the television monitor. (Defs' Videotape Ex. B1). Plaintiff was then returned to his cell and refused to cooperate with the removal of his restraints. (Id.). Tierney charged plaintiff with violations of Rule 104.11 for violent conduct, Rule 106.10 for refusing a direct order, Rule 107.10 for interference and Rule 116.10 for destruction of state property. (Id.). Plaintiff received a copy of the misbehavior report before the hearing. (Pl's Dep. at 184). Plaintiff also filled out an inmate assistance selection form and was assigned corrections counselor Eddie Lee as his assistant. (Id. at 185). Plaintiff met with Lee and told him what documents and witnesses he wanted. (Id.). Lee wrote an inter-departmental communication to the hearing officer stating that when he gave the Tier Assistant Form to plaintiff for his signature, plaintiff refused to give it back. (Ex. TT to Jones Aff.). Plaintiff denies that he refused to give back the form. (Pl's Dep. at 201).

The hearing convened on July 26, 1995, with defendant Connolly presiding as hearing officer. Plaintiff complained about his assistant's failure to provide him with the videotape of the incident because, he claimed, the videotape would show that he did not break the plexiglass shield on his cell. (Id. at 188). Connolly ultimately found plaintiff not guilty of breaking the shield. (Superintendent's Hearing Disposition dated July 26, 1995, Ex. VV to Jones Aff.). Connolly completed at Form 2176 for denying plaintiff the opportunity to call a fellow inmate as a witness because, Connolly stated, the inmate "was not a witness to the incident." (Ex. W to Jones Aff.). Plaintiff was found guilty of violent conduct and interference with an employee and sentenced to one year in SHU and a special diet for 14 days. (Ex. VV to Jones Aff.). In the disposition, defendant Connolly stated that he relied on his review of the videotape of the incident which "clearly depicts Sims kicking the TV and VCR" during the hearing. (Id.). Plaintiff appealed the determination and penalty to defendant Selsky, who affirmed the decision. (Review of Superintendent's Hearing of July 26, 1995, Ex. LLL to Jones Aff.).

7. Seventh Disciplinary Hearing — July 27, 1995

The incident underlying this hearing occurred on July 13, 1995, and was the subject of a misbehavior report written by Corrections Officer Gerald Sawyer. (Inmate Misbehavior Report for July 13, 1995, Ex. XX to Jones Aff.). According to that report, plaintiff had a mop in his cell that he broke, used in a threatening manner and refused to give up when ordered. (Id.). Sawyer charged plaintiff with violating Rule 106.10 for refusing a direct order, Rule 116.10 for destruction of property, Rule 113.10 for a weapon and Rule 102.10 for threats. (Id.). Plaintiff signed an assistant selection form in preparation for the hearing and was assigned Sergeant Richard Ward, one of his choices. (Assistant Selection Form, Ex. YY to Jones Aff.). Plaintiff met with Sergeant Ward and Ward wrote an inter-departmental communication to the hearing officer stating that all of plaintiff's requests were met, but that plaintiff refused to sign the Tier Assistance Form. (Ex. ZZ to Jones Aff.). Plaintiff maintains that Ward did not provide him with the assistance he requested and that he never received the form. (Pl's Dep. at 393-95).

The hearing was held on July 27, with plaintiff present and defendant Levanduski serving as hearing officer. Levanduski had previewed the videotape of the incident and played only the scenes he deemed relevant at the hearing. (Id. at 403, 408, 410, 418). Plaintiff complained about this procedure and was removed from the hearing for "disrespectful" and "abusive" behavior. (Superintendent's Hearing Disposition dated July 27, 1995, Ex. AAA to Jones Aff.). Defendant Levanduski found plaintiff guilty of all charges, relying on the misbehavior report, the videotape of the incident and a videotape showing plaintiff refused to return his assistant paperwork. (Id.). Plaintiff received a penalty of 90 days in SHU and 14 days of restricted diet. (Id.). Plaintiff appealed the determination and penalty to defendant Selsky, who affirmed the decision. (Review of Superintendent's Hearing of July 27, 1995, Ex. MMM to Jones Aff.).

B. Incidents of Excessive Force

Three separate incidents form the basis of plaintiff's excessive force claims.

1. First Incident — February 21, 1995

Plaintiff's first claim for excessive force centers on an incident in the prison elevator on February 21, 1995. (Am. Compl. Claim 1, ¶¶ 1-3). At his deposition, plaintiff testified that defendants Hupkowicz, Skidgell and Jones beat him for three to four minutes in an elevator while returning plaintiff to his cell after plaintiff visited the dental clinic. (Pl's Dep. at 48-50, 60, 72). Plaintiff stated that as a result of this beating, his face became swollen in the left and right facial area and the forehead, but that the swelling subsided in "about three days." (Id. at 50-51, 149). Plaintiff also testified that he experienced back pain for a couple of weeks and had bruises on his back that lasted "between three and five days." (Id. at 150-51). In addition, plaintiff experienced bleeding in his mouth that stopped immediately after the incident and nostril discomfort that continued for a day. (Id. at 152). Plaintiff testified that he did not file a grievance against these defendants as a result of the February 21 incident, but that he did file a "complaint," meaning that he wrote "directly to Albany and a superintendent." (Id. at 56).

2. Second Incident — July 12, 1995

Plaintiff claims that defendants Tierney and Denton punched him in the face and pulled on his restraints while returning him to his cell from a disciplinary hearing on July 12, 1995. (Am. Compl. Claim 6, ¶ 1). At his deposition, plaintiff also alleged that defendants Tierney, Denton and Jones punched him several times in the lobby of the SHU. (Pl's Dep. at 156-59). Plaintiff testified that he had pain for four days as a result of this incident. (Pl's Dep. at 158).

3. Third Incident — August 29, 1995

Plaintiff claims that defendants Thompson, Matott, Hooks, Rhynders and DeStefano entered his cell on August 29, 1995, punched and kicked him repeatedly and grabbed his penis. (Am. Compl. Claim 9, ¶ 1). Plaintiff's account of the incident at his deposition varied somewhat over several days of testimony, but in essence, plaintiff testified that he was lying down in his cell when the officers entered, using a protective shield and wearing helmets, arm pads and leg pads. (Pl's Dep. at 488, 494, 541). The defendants attempted to place plaintiff in leg restraints, and plaintiff testified that either prior to or during that attempt, defendant Hooks hit plaintiff in the face and grabbed him by the penis. (Id. at 489, 493, 495, 552). Plaintiff testified that he screamed as a result of defendant Hooks' actions. (Id. at 494). Defendant Matott then attempted to place the leg restraints on plaintiff using force to do so, while the other defendants were hitting plaintiff. (Id. at 496-97). Plaintiff stated that the struggled continued, with other defendants grabbing his testicles and Hooks and Matott grabbing his penis. (Id. at 555, 557, 566-67, 574). Plaintiff also stated that certain of the defendants kneed him in the back, punched and kicked him. (Id. at 556). Plaintiff testified that the incident lasted 20-25 minutes at one point in his deposition and 8-9 minutes at another point. (Id. at 213, 217, 557). At some point, certain of the defendants carried plaintiff from his cell and, as they did so, plaintiff claims they hit him on his ribs and face. (Id. at 557-58). Plaintiff claims that as a result of this incident, his teeth were loosened and he suffered injuries to his buttocks, ankle and penis that were not documented by the photographs taken after the incident. (Id. at 225, 572). Defendant Loughran, a nurse, examined plaintiff for injuries and found "superficial abrasion marks," "reddening" and "bruising marks" on various parts of plaintiff's body. (Use of Force Report for August 29, 1995, Ex. CCC to Jones Aff.).

DISCUSSION

I. Summary Judgment Standard

Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, 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. See Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (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 litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.

The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The substantive law determines the facts which are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

Because plaintiff is proceeding pro se, I must consider the pleadings under a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); accord Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (referring to the "special solicitude" afforded pro se litigants when confronted with motions for summary judgment); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (citing Haines to support the principle that pro se pleadings are given a liberal construction).

Nevertheless, proceeding pro se does not otherwise relieve plaintiff from the usual requirements of summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (holding that a "pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment" (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991))); Kadosh v. TRW Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendant's motion ineffectual.").

II. Due Process Claims

"A claim alleging procedural due process violations must show that plaintiff enjoyed a protected interest, and defendants' deprivation of that interest occurred without due process of law." Taylor v. Rodriguez, 238 F.3d 188, 191 (2d Cir. 2001) (citing Tellier v. Fields, 230 F.3d 502, 511 (2d Cir. 2000)). A prisoner's claim for the denial of due process in connection with prison disciplinary hearings resulting in segregated confinement or loss of privileges must demonstrate that the deprivation complained of "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. 472, 484 (1995). The Court of Appeals has emphasized that "the duration of SHU confinement is a distinct factor bearing on atypicality and must be carefully considered." Colon v. Howard, 215 F.3d 23 227, 231 (2d Cir. 2000) (citing Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999) ("Both the conditions and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.") (citation omitted)). Confinement in SHU for a period of 305 days has been held to satisfy the Sandin standard, Colon, 215 F.3d at 231, while confinement for a period within the range of 101 to 305 days requires that district courts develop a detailed factual record, id. at 232, including, for example, evidence comparing the duration of the confinement at issue with "periods of comparable deprivation typically endured by other prisoners in the ordinary course of prison administration," Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999), or "evidence of the psychological effects of prolonged confinement in isolation and the precise frequency of SHU confinements of varying durations," Colon, 215 F.3d at 232.

Moreover, the Court of Appeals has indicated that district courts should consider aggregating periods of SHU confinements for purposes of the Sandin inquiry in certain cases. See Sealey, 197 F.3d at 587 (aggregating two terms of confinement); Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (aggregating periods of confinement at two different facilities). Indeed, in remanding this case, the Court of Appeals stated that "it is possible that some or all of [plaintiff's sentences to SHU] should be aggregated. " 230 F.3d at 23. Such aggregation appears to be particularly appropriate when separate SHU sentences "constitute a sustained period of confinement." Giano, 238 F.3d at 226.

Despite this advice from the Court of Appeals, defendants argue that plaintiff's sentences should not be considered in the aggregate. In support of this argument, defendants cite Rivera v. Goord, 119 F. Supp.2d 327 (S.D.N.Y. 2000), wherein Judge Chin declined to aggregate three sentences of 90 days, 3 days and 30 days that were imposed on the plaintiff at disciplinary hearings taking place over a period of almost 2 years. Id. at 343-44. Defendants do not dispute that from March 3 to July 27, 1995 plaintiff was sentenced to SHU for a total of close to three and a half years. (See Answer to the Amended Complaint dated 8/22/01, Claim 1, ¶ 2 (one year); Claim 2, ¶ 1 (60 days); Claim 3, ¶ 1 (60 days); Claim 4, ¶ 1 (180 days); Claim 5, ¶ 1 (90 days); Claim 6, ¶ 2 (one year); Claim 7, ¶ 1 (90 days)). In Rivera, the total sentence — 123 days — barely crosses the threshold of 101 days that the Court in Colon instructed requires detailed factual inquiry. On the facts here, I find it is appropriate to consider plaintiff's sentences in the aggregate. In making this finding I take into consideration the Court of Appeal's decision in Sealey, which aggregated two SHU sentences and held a defendant responsible for the period of confinement preceding the hearing as well as the period of confinement imposed after the hearing, even while acknowledging that the defendant "had no responsibility for determining the procedures (or their lack) with respect to [the prior] confinement. " 197 F.3d at 587. The Sealey Court noted that "[r]etrospectively, [the interval of confinement prior to a hearing], plus the interval for which the officer is responsible after the hearing, will inform a court's decision whether a prisoner confined in harsh conditions for the aggregate of both intervals is entitled to any damages." Id. at 587-88.

Considering plaintiff's sentences in the aggregate, there can be no doubt that his confinement satisfies the Sandin standard based on the duration alone. As noted above, the sentences here were imposed within a period of less than five months and totaled over three years in duration. Moreover, although defendants elicited testimony from plaintiff that he has been in SHU continuously since 1993 and will continue to be there until approximately 2007, (Pl's Dep. at 22), defendants have not shown that in relation to "periods of comparable deprivation typically endured by other prisoners in the ordinary course of prison administration," plaintiff's sentences were not out of the ordinary. Welch, 196 F.3d at 394. Furthermore, I note that defendant Connolly twice — on March 8 and July 26 — sentenced plaintiff to one year in SHU. These sentences, at 365 days each, clearly satisfy the Sandin standard, as such confinement represents "a significant departure from the ordinary incidents of prison life." Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) ("wherever the durational line is ultimately drawn, 305 days satisfies the standard"). Accordingly, I find that plaintiff has demonstrated a protected liberty interest based on his confinement in SHU.

Nevertheless, despite this determination, plaintiff's due process claim must be dismissed if he received all the process due him under the law. See Taylor v. Rodriguez, 238 F.3d 188, 191-92 (2d Cir. 2001); accord Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999) (rejecting district court's Sandin analysis but affirming summary judgment because plaintiff was not deprived of right to due process). In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court set forth the minimum requirements of procedural due process for an inmate facing a disciplinary hearing that could result in the loss of good time credits or solitary confinement. These requirements include (1) that the inmate be given written notice of the charges against him no less than 24 hours in advance of the hearing, (2) that the factfinder at the hearing provide a written statement setting forth "the evidence relied on and reasons for the disciplinary action," and (3) that the inmate be allowed to call witnesses and present documentary evidence in his defense, as long as doing so is not "unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 564, 566; Kalwasinski, 201 F.3d at 108. In addition, the Supreme Court held in Superintendent v. Hill, 472 U.S. 445 (1985), that the hearing disposition must be supported by "some evidence." Id. at 455. The question to be answered by the court in consideration of this point "is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56.

Since Wolff, the Court of Appeals has defined the requirements more fully, stating that with respect to the inmate's right to call witnesses, "[i]t is not a violation of due process at a disciplinary hearing to take the testimony of a witness outside the presence of an inmate" because an inmate does not have a constitutional right of confrontation. Kalwasinski, 201 F.3d at 109. However, a hearing officer "may not refuse to interview an inmate's requested witnesses `without assigning a valid reason.'" Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998) (quoting Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990)). The reason for denying an inmate's request for a witness can be "irrelevance or lack of necessity." Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1994) (quoting Scott v. Kelly, 962 F.2d 145, 146-47 (2d Cir. 1992) (internal quotation marks omitted)); Kalwasinski, 201 F.3d at 109 (a hearing officer does not violate due process "by excluding irrelevant or unnecessary testimony"). Or, if the hearing officer "reasonably concludes that it would be futile to call a witness to testify, his refusal to do so will not constitute a violation of the prisoner's constitutional rights." Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993).

The Court of Appeals has noted that "an inmate's right to assistance is limited." Silva, 992 F.2d at 22. An inmate confined to SHU is entitled to have an assistant assigned to him to act as his surrogate, that is, "to do what the inmate would have done were he able." Id. The assistant is not obligated to go beyond the bounds of the inmate's specific instructions. Id.

As chronicled in the fact section, supra, plaintiff's due process claims arise from seven separate disciplinary hearings. With respect to each of these hearings, the parties agree on the individual who wrote the misbehavior report, the dates the hearings were held, the names of the hearing officers, the fact that every time plaintiff complained of inadequate assistance the hearing was adjourned, and the disposition. Plaintiff does not claim that he was not provided with adequate notice of the charges against him for any of the hearings. Plaintiff's allegations focus instead on the exclusion of witnesses and other evidence and the assistance rendered by the corrections employees assigned to aid plaintiff in preparing for the hearings. I will address plaintiff's allegations regarding each hearing in turn, guided by the Court of Appeals' instructions in Powell v. Coughlin:

[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary proceeding because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial. If a person may be convicted and obliged to serve a substantial prison sentence notwithstanding a constitutional error determined to be harmless, surely the conditions of confinement of a sentenced prisoner may be made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating the violation.
953 F.2d 744, 751 (2d Cir. 1991).

A. First Disciplinary Hearing — March 7 and 8, 1995

Plaintiff alleges that at the first hearing, the hearing officer, defendant Connolly, denied plaintiff witnesses, a videotape of the incident giving rise to the hearing and the opportunity to comment on the charges and evidence. (Am. Compl. Claim 1, ¶ 5). Plaintiff also alleges that defendant Smith rendered inadequate assistance in that he failed to get the names of and interview witnesses. (Id. ¶ 7). At his deposition, plaintiff testified that the witnesses referenced in the Amended Complaint were inmate David Nelson, Paul Daley (a member of the mental health staff at Green Haven), an unnamed investigator from the Department of Justice, and "other witnesses" he could not name because his assistant did not get their names. (Pl's Dep. at 114-15). When questioned, plaintiff admitted that the investigator he wished to testify had no personal knowledge of the incident. (Id. at 115-16). As for Paul Daley, defendants have put forward a Form 2176 filled out by Connolly that indicates that Daley did in fact testify at the hearing, although outside the presence of plaintiff. (Ex. M to Jones Aff.). While inmate Nelson did not testify, Connolly filled out a Form 2176 stating that Nelson was not called as a witness because plaintiff was removed from the hearing for disruptive behavior. (Ex. YYY to Jones Aff.). Even assuming the reason provided by Connolly for denying plaintiff inmate Nelson as a witness is insufficient, or that other errors were made in terms of the denial of witnesses, as discussed below, such error did not prejudice plaintiff in terms of the outcome of the proceeding and was therefore harmless.

With respect to the videotape of the incident, plaintiff testified that defendant Connolly had a videotape at the second day of the hearing, (Pl's Dep. at 117), but plaintiff does not know if the tape depicted the incident or if it was ever played because he was ejected for disruptive behavior before the close of the hearing. The disposition for the hearing does not indicate that Connolly relied on the videotape in reaching his decision, although Connolly does state that he relied on the written misbehavior reports of defendants Tierney and Hupkowicz. (Ex. O to Jones Aff.). Defendants have provided a videotape of the incident which I have reviewed and which shows plaintiff refusing to cooperate with the removal of his arm restraints and refusing repeated orders to turn his back and move closer to the cell door. (Defs' Videotape Ex. A1). Thus, even if defendant Connolly did not view the videotape as requested by plaintiff, such conduct did not prejudice plaintiff in any way because Connolly's decision was supported by the misbehavior reports, satisfying the requirement that "some evidence" support the determination, and the videotape itself would only lead to the same determination.

Plaintiff's claim that he was not given an opportunity to comment on the charges and evidence does not rise to the level of a due process violation. Plaintiff admits he began swearing at defendant Connolly and was removed from the hearing shortly thereafter. (Pl's Dep. at 108-09). Connolly acted within his discretion to maintain the safety and order of the proceedings by removing plaintiff. See Wolff, 418 U.S. at 556 ("the full panoply of rights due a defendant" in criminal proceeding do not apply in disciplinary hearing context; rather, "there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application"). I find that because "plaintiff's own conduct caused his ejection, plaintiff cannot now complain that he did not have an opportunity to call witnesses or present evidence.

He forfeited his opportunity to do so through his own conduct." Carter v. Cleveland, No. 93-CV-0254, 1995 WL 818678, at *5 (W.D.N.Y. Feb. 15, 1995). As noted above, an inmate has no constitutional right of confrontation. Kalwasinski, 201 F.3d at 109. Thus, plaintiff's removal from the hearing does not state a due process claim.

Plaintiff selected defendant Smith as his assistant to help him prepare for the hearing. Defendants have proffered the inter-departmental communication written by Smith which indicates that plaintiff "destroyed" his Tier Assistance Form, but that Smith attempted to recall his requests from memory. (Ex. K to Jones Aff.). The first request is for the names of all the staff in the dental clinic. (Id.). The record indicates that at least one dental assistant who was present during the incident testified at the hearing, although outside plaintiff's presence. (Ex. N to Jones Aff.). Thus, testimony by other dental clinic staff would have been unnecessarily cumulative. Even taking plaintiff's statement that he requested "other witnesses" as true, and assuming for the moment that defendant Connolly erred in not providing a reason for excluding the testimony of such witnesses, the record contains no evidence that this error prejudiced plaintiff in any way.

Indeed, nothing in the record indicates that any error that may have been made by defendants with respect to the exclusion of testimony from certain witnesses or the assistance rendered to plaintiff would have influenced the ultimate outcome of the hearing. Thus, any error that did occur was harmless, and the result of the hearing should not be disturbed. See Powell, 953 F.2d at 750.

B. Second Disciplinary Hearing — March 3, 1995

With respect to plaintiff's second due process claim, plaintiff again alleges that the hearing officer, defendant Coefield, failed to call witnesses requested by plaintiff. (Am. Compl. Claim 2, ¶ 1). At his deposition, plaintiff stated that the three inmates he wanted to call as witnesses would have testified that he began to throw his sneaker at the camera after he was refused mental health care. (Pl's Dep. at 293). The testimony of these witnesses does not bear on the rules violations for which plaintiff was found guilty, i.e., refusing a direct order and tampering with property. (Superintendent Hearing Disposition dated March 3, 1995, Ex. Q to Jones Aff.). Furthermore, I note that the videotape of the underlying incident produced by defendants clearly shows plaintiff repeatedly throwing his sneaker at the security camera. (Defs' Videotape Ex. A1). Defendant Coefield stated in his disposition that he relied in part on this videotape in reaching his decision. (Ex. Q to Jones Aff.). Thus, any error that may have occurred by defendant Coefield's excluding the testimony of certain witnesses without a written reason for doing so did not result in any prejudice to plaintiff because the outcome of the hearing would have remained the same with or without their testimony.

C. Third Disciplinary Hearing — July 11 and 20, 1995

Plaintiff alleges that defendant Haponik, acting as the hearing officer, denied plaintiff due process by failing to call witnesses, not allowing plaintiff an opportunity to comment on the evidence and shutting off the tape recorder during part of the hearing. (Am. Compl. Claim 3, ¶¶ 1-2). Plaintiff requested that Mary Craven, Edward McSweeney, Superintendent Artuz, defendant Coefield, defendant Smith, Captain George Schneider and Lorette Klein be called as witnesses. (Ex. X to Jones Aff.). Defendant Haponik denied plaintiff's request, explaining on a Form 2176 that these individuals were not present at the time of the incident. (Ex. EE to Jones Aff.). Certain other witnesses testified outside of plaintiff's presence or refused to testify for lack of personal knowledge, but Haponik filled out a Form 2176 for each of these witnesses. (Exs. AA, BB, CC, DD to Jones Aff.). Thus, no deprivation of plaintiff's due process rights occurred with respect to the calling of witnesses.

For the reasons stated above in my discussion of the first disciplinary hearing, plaintiff's claim that he was not afforded an opportunity to comment on the evidence is dismissed as not stating a violation of due process.

With respect to defendant Haponik's shutting off the tape recorder during the hearing, plaintiff has offered no evidence demonstrating that the tape recorder was in fact shut off. Even assuming this fact to be true, however, such a claim does not rise to the level of a due process violation. Furthermore, the record contains no indication that plaintiff was prejudiced by the tape recorder being shut off.

D. Fourth Disciplinary Hearing — July 11 and 12, 1995

With respect to his fourth claim, plaintiff alleges that defendant Smith did not provide him with assistance and that defendant Blaetz, acting as the hearing officer, denied plaintiff witnesses and a videotape, as well as the opportunity to comment on the evidence. (Am. Compl. Claim 4, ¶¶ 1-3). In addition, plaintiff alleges that part of the hearing was not tape recorded. At his deposition, plaintiff acknowledged that when he raised objections about his assistance, Blaetz adjourned the hearing to resolve the issue. (Pl's Dep. at 358). Although plaintiff was not present when the hearing reconvened, defendant Blaetz wrote in the disposition that plaintiff was excluded "due to his violent and disruptive behavior." (Superintendent Hearing Disposition dated July 12, 1995, Ex. MM to Jones Aff.). For the reasons discussed above, plaintiff's exclusion from the hearing did not deprive him of due process.

With respect to the denial of witnesses, plaintiff admits that at least two inmates testified at the hearing. (Pl's Dep. at 330-31). Although plaintiff may have wished to call more inmates, there is no evidence that the testimony of further witnesses would have altered the outcome of the proceedings. As for the videotape of the incident, in the hearing disposition defendant Blaetz states that she based her decision in part on the videotape of the incident, as well as the two written misbehavior reports and the testimony of Sergeant Markle. (Ex.MM to Jones Aff.). Thus, the record contains no evidence that any errors, if in fact they occurred, resulted in prejudice to plaintiff.

Finally, plaintiff's claim that a portion of the disciplinary hearing was not tape recorded does not rise to the level of a constitutional due process violation. Wolff does not require that a disciplinary hearing be recorded. Moreover, once again, the record contains no evidence that such failure to record the hearing, if in fact there was such a failure, prejudiced plaintiff's case in any way. Thus, any errors that occurred during plaintiff's fourth disciplinary hearing were harmless.

E. Fifth Disciplinary Hearing — July 10 and 12, 1995

Again, plaintiff alleges that defendant Coefield, acting as hearing officer, denied plaintiff witnesses, failed to record on the audiotape of the hearing the sound of the videotape of the incident played during the hearing, and made his determination before hearing all of plaintiff's defenses. (Am. Compl. Claim 5, ¶¶ 1-2). At his deposition plaintiff testified that the witnesses he wished to call were inmates who were in nearby cells during the incident and could testify that he did not make threats to Sergeant Markle. (Pl's Dep. at 369). However, plaintiff also admitted at his deposition that he screamed at Markle while banging on his cell. (Id. at 342). Accepting for the moment that defendant Coefield should have provided a written reason for excluding these witnesses, plaintiff's own testimony makes clear that their exclusion was proper given that plaintiff admitted to the conduct with which he was charged. Furthermore, defendant Coefield relied upon a videotape of the incident in reaching his decision, finding that it "clearly shows inmate threat[en]ing, harassing and creating a disturbance on the gallery." (Superintendent's Hearing Disposition, Ex. RR to Jones Aff.). Thus, any error resulting from defendant Coefield's failure to give a written reason for excluding these witnesses was harmless.

With respect to plaintiff's allegations concerning the audiotape of the videotape, such a claim does not rise to the level of a deprivation of due process under the Constitution. In addition, plaintiff's claim that defendant Coefield made his determination without hearing all of plaintiff's defenses is based purely on speculation and conjecture and is not supported by the record.

F. Sixth Disciplinary Hearing — July 26, 1995

Plaintiff claims that defendant Connolly denied plaintiff the opportunity to present witnesses and certain evidence, and that Connolly improperly excluded plaintiff from part of the hearing. (Am. Compl. Claim 6, ¶¶ 4-5).*fn5 For the reasons already discussed, plaintiff's last claim is unavailing. With respect to the denial of witnesses, defendant Coefield filled out a Form 2176 for refusing to hear the testimony of one witness, another inmate, because the inmate did not actually see the incident take place. (Ex. W to Jones Aff.). There is no evidence in the record that testimony by any other witnesses would have altered the outcome of the hearing. Plaintiff admitted at his deposition that he kicked the television monitor, (Pl's Dep. at 153), the primary act of violence with which he was charged. Thus, any error involved in the exclusion of witness' testimony was harmless.

Plaintiff also argued during the hearing that he should be provided with the videotape of the incident because it would show that he did not break the plexiglass shield on his cell, one of the rule violations with which plaintiff was charged. (Pl's Dep. at 188). Plaintiff was not found guilty of this violation, and therefore suffered no injury from any error that resulted from his not being provided with access to the videotape.

G. Seventh Disciplinary Hearing — July 27, 1995

As part of plaintiff's seventh due process claim, he alleges that he was not allowed to be present at the hearing and not permitted to comment on the charges and evidence. (Am. Compl. Claim 7, ¶ 1). For the same reasons stated above, these allegations do not rise to the level of a due process violation. In addition, plaintiff claims that defendant Levanduski, the hearing officer, tampered with the hearing tapes and videotapes. (Id., Claim 7, ¶ 2). This allegation is not borne out by the record and plaintiff fails to point to any facts supporting this claim. At his deposition plaintiff claimed that he requested the testimony of certain witnesses and that their presence was denied without any written explanation. (Pl's Dep. at 427). Even accepting as true these facts as stated by plaintiff, once again, the record contains no indication that the outcome of plaintiff's hearing would have been any different. In making his determination of plaintiff's guilt, defendant Levanduski relied on a videotape of the incident and the misbehavior report. (Superintendent's Hearing Disposition dated July 27, 1995, Ex. AAA to Jones Aff.). Any error resulting from a procedural due process violation during the hearing was not prejudicial to plaintiff.

Accordingly, for the reasons stated above, defendants' motion for summary judgment on plaintiff's due process claims is granted in full.

III. Excessive Force Claims

The Eighth Amendment prohibits the infliction of "cruel and unusual punishment" on prison inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). This prohibition encompasses the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 320 (1986). The critical inquiry in an excessive use of force claim is "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing Whitley, 475 U.S. at 312); see also Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997); Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). In considering whether force was applied maliciously or sadistically to cause harm, the following factors may be relevant: the extent of the injury suffered, the need for the application of force, the relationship between the need for force and the amount of force used, any threat reasonably perceived by prison officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7; Romano v. Howarth, 998 F.2d 101 (2d Cir. 1993).

With respect to plaintiff's first two claims for excessive force, defendants have provided videotapes of the incidents at issue. (Defs' Videotape Exs. A1 and B1). The videotape of the first alleged incident showing plaintiff in the elevator on the return trip to his cell after the visit to the dental clinic does not depict any use of force by the officers. (Defs' Videotape Ex. A1). Nor does the videotape contain any indication of tampering by defendants, as alleged by plaintiff. The videotape has a counter in the upper right hand corner that tracks the time plaintiff is in the elevator continuously, without any break in the time or any indication of editing. (Id.). Thus, since a review of the videotape shows that plaintiff's allegations of excessive force and tampering are wholly without merit, and plaintiff has failed to produce evidence raising an issue of material fact as to this incident, defendants' motion for summary judgment on plaintiff's first claim for excessive force is granted.

The allegations in the complaint regarding plaintiff's second excessive force claim focus on defendants Tierney and Denton. Plaintiff alleges that these defendants punched him in the face and pulled on his restraints while returning him to his cell from the March 12 disciplinary hearing at which plaintiff kicked the television monitor. (Am. Compl. Claim 6, ¶ 1). The videotape provided by defendants indeed shows that the officers escorting plaintiff did pull on plaintiff's arm restraints when he was placed in his cell. (Defs' Videotape Ex. B1). However, the force used by defendants in the videotape is de minimus, and does not rise to the level of force that is "`repugnant to the conscience of mankind.'" Hudson, 503 U.S. at 9-10 (citation omitted). Nor has plaintiff raised an issue of material fact as to whether this force was applied maliciously or sadistically. See id. at 9. Thus, any claim based on defendants' pulling on plaintiff's arm restraints must fail.

However, at plaintiff's deposition he stated that his second excessive force claim arises from an incident that occurred in the lobby of SHU, (Pl's Dep. at 176), the only portion of plaintiff's return trip that is not depicted in the videotape. Plaintiff testified that defendants Tierney, Denton and Jones hit or punched him numerous times while they passed through the SHU lobby. (Pl's Dep. at 156-59). The videotape provided by defendants shows plaintiff and the officers entering the lobby single file and exiting the lobby also in a single file formation. (Defs' Videotape Ex. B1). There is no indication on the videotape that defendants subjected plaintiff to excessive force during the brief period they passed through the SHU lobby, nor does plaintiff complain about any use of force on the videotape. Plaintiff has failed to present any evidence raising an issue of material fact as to whether defendants used excessive force on him during his return trip to SHU from the disciplinary hearing. Accordingly, defendants' motion for summary judgment on plaintiff's second claim for excessive force is granted.

Plaintiff's third excessive force claim stems from certain defendants' interaction with plaintiff in his cell. Plaintiff testified at his deposition that these defendants punched and kicked him and grabbed his penis and testicles while placing restraints on plaintiff and attempting to remove him from his cell. (Pl's Dep. at 488-97, 555-57). Plaintiff described the incident as taking place over a period of 8-9 minutes at one point in his deposition and 20-25 minutes at another. (Id. at 213, 217, 557). As defendants point out, plaintiff's allegations about the type of force used on him conflict with his testimony about the amount of time that passed during the incident. Moreover, plaintiff's allegations are not supported by the evidence in the record. If, as plaintiff alleges, defendants repeatedly punched and kicked plaintiff for these lengthy periods of time, it is highly likely that both plaintiff and the defendants involved in the incident would have suffered far greater injury than actually occurred, even according to plaintiff's account. In this respect, I note that the Use of Force Report produced by defendants indicates that plaintiff suffered mostly reddening and skin abrasions, and states that defendants suffered no injuries whatsoever. (Ex. CCC to Jones Aff.). In addition, photographs taken of plaintiff after the incident do not show significant injury to plaintiff other than those minor injuries described in the Use of Force Report. (Ex. PPP to Jones Aff.). Given the evidence in the record and plaintiff's failure to put forward anything other that "mere allegations and denials" of the facts asserted by defendants, see Fed.R.Civ.P. 56(e), I find no issue of material fact as to whether defendants subjected plaintiff to excessive force during this incident.

Defendants also must be granted summary judgment on plaintiff's third excessive force claim because the evidence in the record fails to raise an issue of material fact as to the defendants' state of mind. Plaintiff admits that defendants entered his cell after he repeatedly banged on his cell and refused to stop when ordered. (Pl's Dep. at 209-10). Defendants have also presented evidence that plaintiff set several fires on that date. (Inmate Misbehavior Report for August 29, 1995, Ex. BBB to Jones Aff.; Inter-Departmental Communication dated September 12, 1995, Ex. DDD to Jones Aff.). On the record before me, there is ample evidence that defendants were responding to a legitimate safety concern — or at the very least, a disturbance created by plaintiff — and applied force "in a good faith effort to maintain or restore discipline," not "maliciously and sadistically." Hudson, 503 U.S. at 9. Plaintiff has failed to raise a genuine issue of material fact with respect to defendants' use of force while in his cell. Accordingly, defendants' motion for summary judgment on plaintiff's third claim for excessive force is granted.

IV. Plaintiff's Request for the Appointment of Counsel

Having reviewed plaintiff's deposition transcript and the other materials in the record, plaintiff's motion for the appointment of counsel is denied. As indicated by the above, despite plaintiff's ability to investigate and present his case competently through this stage of the litigation, the case does not appear to have merit. See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment (docket no. 159) is granted. Plaintiff's motion for the appointment of counsel (docket no. 155) is denied. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

SO ORDERED


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