The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
The parties to this action consented to proceed before the
undersigned on November 13, 2002. The matter is presently before
the court on Defendants' motion for summary judgment (Doc. No.
143), filed November 8, 2002. BACKGROUND
Petitioner commenced this action on August 27, 1991, seeking
relief pursuant to 42 U.S.C. § 1983, alleging deprivation of due
process in connection with a prison disciplinary proceeding at
Auburn Correctional Facility ("Auburn") and Eighth Amendment
violations based on prison conditions in the Special Housing Unit
("SHU") at Attica Correctional Facility ("Attica") where
Petitioner, after being found guilty in the challenged
disciplinary proceedings, was confined for one year. The original
Defendants to this action included New York State Department of
Correctional Services ("DOCS") Commissioner Thomas A. Coughlin,
III ("Coughlin"), SHU Program Director Donald Selsky ("Selsky"),
and Attica Correctional Hearing Officers Lt. Grant ("Grant"), and
LeBaron ("LeBaron"), who filed answers to the Complaint on
October 22, 1991. On December 19, 1991, the parties consented to
proceed before the undersigned for all purposes, including the
entry of judgment, and that any appeal from the undersigned's
ruling would be taken to the District Judge, as was then
authorized under 28 U.S.C. § 636(c)(4).
On January 22, 1992, Plaintiff filed an Amended Complaint (Doc.
No. 21) ("Amended Complaint"), with leave of the court, adding as
Defendants Auburn Superintendent Hans Walker ("Walker"), former
Auburn First Deputy Superintendent Frank Irvin ("Irvin"), and
Auburn Deputy Superintendent for Security Edward Dann ("Dann").
Answers to the Amended Complaint were filed on February 12, 1992
by Defendants Coughlin, Selsky, Grant and LeBaron, and on March
4, 1004 by Defendants Walker, Irvin and Dann. On September 14,
1992, Defendants Coughlin, Selsky, Grant and LeBaron filed
amended answers to the Amended Complaint. On November 16, 1992, following the conclusion of discovery,
Plaintiff filed a motion for partial summary judgment as to the
liability of Defendants Selsky, LeBaron and Grant. On March 8,
1993, Defendants filed a motion for summary judgment to dismiss
the Amended Complaint as to all Defendants as a matter of law. On
August 12, 1994, the undersigned denied Plaintiff's motion for
partial summary judgment and granted summary judgment in favor of
Defendants. August 12, 1994 Order (Doc. No. 115). Judgment in
favor of Defendants was entered on August 17, 1994 and the file
was closed. On August 30, 1994, Plaintiff erroneously filed an
appeal with the Second Circuit Court of Appeals which, on
February 21, 1995, remanded the matter to District Judge Larimer
who, at that time, had jurisdiction pursuant to
28 U.S.C. § 636(c)(4). The file was reopened on April 5, 1995 and, in a
Decision and Order filed on October 5, 1998 (Doc. No. 126), Judge
Larimer affirmed the August 12, 1994 Order, and the file was
closed on October 19, 1998.
On October 30, 1998, Plaintiff filed an appeal with the Second
Circuit which, on May 7, 2001, affirmed the District Court on all
grounds, with the exception of the Second Cause of Action
asserting Eighth Amendment prison conditions claims against
Defendants Grant and LeBaron, which were remanded for further
proceedings. Gaston v. Coughlin, 249 F.3d 156, 166-67 (2d Cir.
2001). The file was accordingly reopened on June 15, 2001.
On November 8, 2002, Defendants filed a motion for summary
judgment directed at Plaintiff's Eighth Amendment claim (Doc. No.
143). Filed on November 8, 2002 in support of the motion were
"Defendants' Memorandum of Law in Support of Motion for Summary
Judgment" (Doc. No. 144) ("Defendants' Memorandum"), the
Declarations of Assistant Attorney General Michael Russo ("Russo") (Doc. No. 145)
("Russo Declaration"); Grant (Doc. No. 146) ("Grant
Declaration"), LeBaron (Doc. No. 148) ("LeBaron Declaration"),
and Marco Hume ("Hume") (Doc. No. 149) ("Hume Declaration"), and
"Defendants' Statement of Undisputed Material Facts" (Doc. No.
147) ("Defendants' Undisputed Facts Statement). Plaintiff, in
opposition to summary judgment, filed on February 23, 2002, the
Affidavit of Kenneth Gaston (Doc. No. 152) ("Gaston Affidavit"),
a "Rule 56 Counterstatement of Facts" (Doc. No. 153)
("Plaintiff's Disputed Facts Statement"), "Plaintiff's Memorandum
of Law in Opposition to Defendants' Motion for Summary Judgment"
(Doc. No. 154) ("Plaintiff's Memorandum"), and the Declaration of
Tim O'Neal Lorah, Esq.*fn1 (Doc. No. 155) ("Lorah
Declaration"). On January 24, 2003, Defendants filed in further
support of the summary judgment motion "Defendants' Reply
Memorandum of Law in Support of Motion for Summary Judgment"
(Doc. No. 157) ("Defendants' Reply"), the Reply Declaration of
LeRoy Grant (Doc. No. 158) ("Grant Reply Declaration"), and the
Reply Declaration of Donald LeBaron (Doc. No. 159) ("LeBaron
Reply Declaration"). Oral argument was deemed unnecessary.
Based on the following, Defendants' motion for summary judgment
FACTS*fn2 In May 1990, Plaintiff Kenneth Gaston ("Gaston"), while
incarcerated at Auburn Correctional Facility ("Auburn"), served
as vice president of Auburn's Inmate Liaison Committee ("ILC").
On May 19, 1990, a group of inmates staged a food strike at
Auburn. Auburn First Deputy Superintendent Frank Irvin ("Irvin"),
and Deputy Superintendent for Security Edward Dann ("Dann") met
with ILC members, including Gaston, regarding the incident and
Gaston stated that he was in his cell during the food strike and
did not participate in the food strike. A confidential informant
later reported to Dann that Gaston had organized the food strike
and Dann, based on that information, on May 21, 1990, prepared a
misbehavior report charging Gaston with violating DOCS Rule
104.12, prohibiting inmates from participating in activities
which threaten a prison facility's order. As a result of the
disciplinary charges, Gaston, on May 21, 1990, was transferred to
Attica where he was placed in cell 23 on the second floor of the
B-West Gallery in Attica's SHU, located in Attica's Reception
Building. Following a disciplinary hearing at Attica, Gaston, on
August 31, 1990, was found guilty as charged and was sentenced to
confinement in SHU for two years.*fn3 Gaston filed an
administrative appeal and, on November 2, 1990, the guilty
disposition was affirmed, but his term of SHU confinement was
reduced to one year.
Gaston maintains that the conditions of his confinement in SHU
at Attica were inhumane and violated his Eighth Amendment right
to be free from cruel and unusual punishment. In particular, Gaston alleges that numerous broken
windows in his cellblock were not repaired for the entire winter
season of 1990-1991, when the outside temperatures were "freezing
and sub-zero," that he was subjected for a prolonged period of
time to freezing temperatures requiring Gaston to wear all of the
clothing issued to him at all times, including while he slept,
that mice were continually entering his cell and that for several
days during July 1990, the area in front of his cell was filled
with human feces, urine and sewage water. Amended Complaint ¶¶
63-72. Gaston claims that he filed a grievance regarding the
broken windows, to no avail, and that his complaints to DOCS
sergeants assigned to his cellblock about the unsanitary
conditions were ignored. Amended Complaint ¶¶ 67, 70.
Summary judgment of a claim or defense will be granted when a
moving party demonstrates that there are no genuine issues as to
any material fact and that a moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn,
930 F.2d 204, 209 (2d Cir. 1991). The court is required to construe
the evidence in the light most favorable to the non-moving party.
Tenenbaum v. Williams, 193 F.3d 58, 593 (2d Cir. 1999) (citing
Anderson, supra, at 255). The party moving for summary judgment
bears the burden of establishing the nonexistence of any genuine
issue of material fact and if there is any evidence in the record
based upon any source from which a reasonable inference in the
non-moving party's favor may be drawn, a moving party cannot obtain a
summary judgment. Celotex, supra, at 322; see Anderson,
supra, at 247-48 ("summary judgment will not lie if the dispute
about a material fact is "genuine," that is, if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party"). In assessing a record to determine whether
there is genuine issue of material fact, the court is required to
resolve all ambiguities and draw all factual inferences in favor
of the party against whom summary judgment is sought. Rattner v.
Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
"[W]here the nonmoving party will bear the burden of proof at
trial on a dispositive issue, a summary judgment motion may
properly be made in reliance solely on the `pleadings,
depositions, answers to interrogatories, and admissions on file.'
Such a motion, whether or not accompanied by affidavits, will be
`made and supported as provided in this rule [FRCP 56],' and Rule
56(e) therefore requires the non-moving party to go beyond the
pleadings and by her own affidavits, or by the `depositions,
answers to interrogatories, and admissions on file,' designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex, supra, at 323-24 (1986) (quoting Fed.R.Civ.P.
56). Thus, "as to issues on which the non-moving party bears the
burden of proof, the moving party may simply point out the
absence of evidence to support the non-moving party's case."
Nora Beverages, Inc. v. Perrier Group of America, Inc.,
164 F.3d 736, 742 (2d Cir. 1998). Once a party moving for summary
judgment has made a properly supported showing as to the absence
of any genuine issue as to all material facts, the nonmoving
party must, to defeat summary judgment, come forward with
evidence that would be sufficient to support a jury verdict in
its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d
Although a summary judgment motion may be made with or without
supporting affidavits, if affidavits are submitted, they "shall
be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein." Fed.R.Civ.P. 56(a). Rule 56 further provides that
[w]hen a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of
the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that
there is a genuine issue for trial.
"However, if the motion for summary judgment is not made and
supported as provided in Rule 56, the Rule does not impose on the
party opposing summary judgment an obligation to come forward
with affidavits or other admissible evidence of his own." St.
Pierre v. Dyer, 208 F.3d 304, 404 (2d Cir. 2000) (reversing
granting of summary judgment in favor of defendant because
defendant failed to allege factual basis for assertions contained
in defendant's affidavit such that plaintiff, as the party
opposing summary judgment, was not required to adduce evidence to
defeat summary judgment and the "self-serving" nature of
plaintiff's affidavit statements went to the weight of the
statements, rather than to their admissibility).
As discussed, Background, supra, at 3, this case was remanded
from the Second Circuit for further proceedings only with regard
to the Second Cause of Action alleging Defendants Grant and
LeBaron violated Gaston's Eighth Amendment right prohibiting
cruel and unusual punishment. Most of Gaston's allegations
concerning Defendants Grant and LeBaron pertain to their participation in
Gaston's Tier III disciplinary hearings conducted with regard to
the prison disciplinary charges brought against Gaston following
the food strike at Auburn. Gaston specifically alleged that Grant
and LeBaron violated Gaston's due process rights during the
disciplinary hearings by relying on the confidential informant's
hearsay statements without independently assessing the
informant's credibility. Amended Complaint ¶¶ 31-36, 42-47,
54-59. Summary judgment on the due process claims, however, was
granted in favor of all Defendants, including Grant and LeBaron.
Gaston, supra, at 163-64. Gaston's sole Eighth Amendment claim
against Defendants Grant and LeBaron therefore is that as a
result of Grant's and LeBaron's dispositions concerning the
disciplinary proceedings, Gaston was forced to endure treatment
and unsanitary conditions while confined to SHU in Attica in
violation of the Eighth Amendment's prohibition of cruel and
unusual punishment. Amended Complaint, Second Cause of Action ¶
85 (referencing Amended Complaint ¶¶ 63-77).
With regard to Gaston's Eighth Amendment claim, the only
factual allegation pleaded in the Amended Complaint against Grant
and LeBaron states in its entirety: "[t]hroughout the time that
plaintiff was confined to SHU pursuant to the dispositions of
defendants LeBaron and Grant, he was subjected to intense mental
anguish and excruciating emotional and psychological pain caused
by conditions existing in SHU at that time."*fn4 Amended
Complaint ¶ 64. Despite the dearth of factual allegations connecting Grant and LeBaron to the alleged substandard
conditions in SHU, the Second Circuit remanded the matter for
further proceedings, citing Gaston's assertion in his memorandum
of law opposing Defendant's earlier summary judgment motion, that
Grant and LeBaron had "`actual knowledge of the events that
occurred in Attica's SHU because they made daily rounds and were
directly responsible for placing plaintiff in [the] inhumane
conditions,'" and neither Grant nor LeBaron had submitted an
affidavit or other sworn evidence denying knowledge of,
responsibility for, or involvement in the alleged inhumane
conditions in Attica's SHU.*fn5 Gaston, supra, at 165-66
(quoting Gaston Memorandum of Law dated April 16, 1993 (Doc. No.
110), at 26).
Defendants move for summary judgment seeking to dismiss the
Eighth Amendment claims on the basis that Gaston has failed to
allege, or to submit admissible evidence, that either Grant or
LeBaron was personally involved in any of the conditions which
allegedly violated Gaston's Eighth Amendment rights, Defendants'
Memorandum at 2, and, alternatively, that none of Grant's or
LeBaron's actions violated Gaston's rights under the Eighth
Amendment, Defendants' Memorandum at 10. Gaston argues in opposition to summary judgment that triable
issues of fact preclude granting Defendants' summary judgment
motion. Plaintiff's Memorandum at 2. Specifically, Gaston points
to factual issues pertaining to the broken windows and low
temperature in his cell, Plaintiff's Memorandum at 4-17, and the
unsanitary condition outside his cell while confined to SHU,
Plaintiff's Memorandum at 17-25. Defendants argue ...