The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
The parties have consented to proceed before the undersigned
pursuant to Title 28 U.S.C. § 636(c). The matter is before the
court on the Defendant's motion for summary judgment (Docket No.
25) filed April 27, 2004.
Plaintiff commenced this action on April, 23, 2003 pursuant to Title 42 U.S.C. § 1983, claiming a violation of the Eighth and Fourteenth
Amendments for alleged excessive use of force and a retaliatory
misbehavior report (Docket No. 1). On May 22, 2003, Plaintiff was
granted in forma pauperis status (Docket No. 3). On June 23,
2003, Defendants filed an Answer to the Complaint (Docket No. 4).
Defendant moved for summary judgment on April 27, 2004, arguing
that the force used against Plaintiff was de minimis and not
excessive, that Defendant Donahue had no personal involvement in
the alleged assault, and that Plaintiff's claim of retaliation is
not constitutionally cognizable (Docket No. 25).
Plaintiff filed a response to the motion on May 26, 2004
(Docket Nos. 36-38). Oral argument was deemed unnecessary. For
the following reasons, Defendant's motion for summary judgment is
GRANTED in part and DENIED in part.
At the time of the alleged constitutional deprivations,
Plaintiff was an inmate in the custody of the New York State
Department of Correctional Services housed at the Southport
Correctional Facility. Plaintiff alleges that on October 9, 2002
he testified at a disciplinary hearing before Lt. Donahue.
Following his testimony, he was told to wait outside the hearing
room for the disposition. Plaintiff alleges that, while waiting,
he was grabbed from behind by Defendant Richards and pushed over
a railing. Plaintiff was then stomped upon and kicked in the
chest, stomach and face by Defendant Richards. Plaintiff further
alleges that he filed a written complaint about the alleged
assault and that, in retaliation for the complaint, Lt. Donahue filed a
misbehavior report charging Plaintiff with making threats (Doc.
In support of the motion for summary judgment, Defendants
submitted a declaration of Defendant Richards in which Richards
stated that he was present at Plaintiff's Tier III disciplinary
hearing on October 9, 2002, but denied threatening Plaintiff with
physical harm (Docket No. 28 ¶ 4). Defendant Richards stated
that, following the hearing, he escorted Plaintiff into the
hallway to await the disposition. Id. ¶ 5. Richards ordered
Plaintiff to stand against the wall, but Plaintiff responded with
profanity and attempted to run away. Id. ¶ 6. Richards stated
that he grabbed Plaintiff by his waist chain, and that Plaintiff
struggled with him. Richards further averred that other
corrections staff arrived and they subdued Plaintiff. Id. ¶ 7.
Plaintiff refused to stand, so the staff carried him to the
shower area. Id. ¶ 8. Richards denied stomping, kicking, or
punching Plaintiff. Id. ¶ 9.
In further support of the motion, Defendant submitted a
declaration of Defendant Donahue (Doc. No. 29). Lt. Donahue
stated that he conducted Plaintiff's disciplinary hearing on
October 9, 2002. Id. ¶ 4. Following the hearing, Lt. Donahue
directed Richards to escort Plaintiff to the hallway. Id. ¶ 5.
Shortly thereafter, Lt. Donahue heard a commotion in the hallway,
and observed Plaintiff struggling with Richards. Id. ¶ 6.
Several other staff members arrived and assisted in restraining
Plaintiff. Id. ¶ 7. Lt. Donahue stated that he did not fail to
intervene in the alleged assault upon Plaintiff, because he
witnessed no assault. Lt. Donahue stated that corrections staff
used appropriate force "to quell the disturbance, to maintain
discipline, to maintain order, to maintain security within the facility, and to protect themselves
and others." Id. ¶ 9. Based on the incident, Plaintiff filed a
grievance on October 10, 2002. Id. ¶ 11. In a letter to DOCS
Commissioner Goord regarding the October 9, 2002 incident,
Plaintiff stated: "Because I fear for my life and this
administration has not taken my complaints seriously, I am left
with no other choice but to assault whatever correction staff
comes to get me out of my cell because I don't know if their
intent is to hurt me." Id. Exh. A. Lt. Donahue then filed a
misbehavior report against Plaintiff for his threats against
staff in violation of DOCS rule 102.10. Id. ¶¶ 13, 16.
Plaintiff was not disciplined for this letter, as the
disciplinary hearing was not timely commenced. Id. ¶ 15.
Defendants also submitted a declaration of Connie L. DeMerritt,
a registered nurse at Southport. Ms. DeMerritt examined Plaintiff
in conformance with DOCS policy following the use of force
incident on October 9, 2002. Plaintiff complained of lumbar back
pain, but DeMerritt observed no visible swelling, redness or
eccymosis (Doc. No. 30 ¶ 5). According to DeMerritt, Plaintiff
had a small abrasion on his right wrist, and she advised him to
keep it clean. Id. ¶ 6. However, Ms. DeMerritt observed no
injuries consistent with Plaintiff's allegations that he was
stomped on and kicked. Id., ¶ 10. Finally, Defendants offered a
declaration of Paul Bryington, who took photographs of Plaintiff
after the use of force incident (Doc. No. 31). The photographs
are filed as Docket No. 32.
In opposition to Defendants' motion, Plaintiff stated that
prior to the Tier III hearing on October 9, 2002, Defendants
Richards and Donahue threatened him with physical harm (Docket
No. 38 ¶ 4). Plaintiff stated that he was attacked without provocation by Defendant Richards and that Defendant Donahue
observed the assault and refused to intervene. Id. ¶¶ 5-6.
Plaintiff stated that he was dragged to the shower area, where
defendant Richards stomped upon and kicked him. Id., ¶ 7.
Finally, Plaintiff stated that neither Commissioner Goord, to
whom the letter was written, nor his designee Wayne Wilhelm
directed that Defendant Donahue file a misbehavior report
regarding the letter. Id. ¶ 11.