The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a prisoners' civil rights suit brought pursuant to 42 U.S.C. § 1983 (2003), in which plaintiff sets forth two causes of action. In his first cause of action, in which he maintains that his Eighth Amendment rights were violated, he alleges: 1) that two corrections officers subjected him to the use of excessive force; 2) that a third corrections officer failed to intervene to stop the unlawful use of force; and 3) that both corrections officers and medical staff made false record entries. In his second cause of action, in which plaintiff maintains that his First Amendment rights were violated, he alleges that his atheist pendant and chain were unlawfully taken from him. Now before the Court is defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is granted in part and denied in part.
As a First Claim, plaintiff alleges in his complaint*fn1 filed on March 8, 2004 that he was summoned for an interview by defendant Corrections Sergeant Richard E. Simmons on December 2, 2002, the purpose of which, plaintiff asserts, was "to let plaintiff know that defendant Simmons was highly annoyed at plaintiff for having submitted complaints regarding the substantial loss of property plaintiff suffered (in an act of retaliation by the staff) when plaintiff was sent to the Special Housing Unit on May 25, 2002." (Compl. at 7.) In the evening of December 4, 2002, a fight between two inmates broke out in the B-Block yard. (Compl. at 3.) The complaint does not identify the location of the correctional facility to which it refers, but alleges that he is currently housed at Attica Correctional Facility. Plaintiff claims that he had nothing to do with the fight, but that two named defendants, Gary J. Pritchard ("Pritchard") and Richard Pistner ("Pistner"), both described as corrections officers at Attica Correctional Facility, escorted him from the B-Block yard into a hallway with his hands behind his back. (Compl. at 2-3.) There, the complaint states that both Pritchard and Pistner "roughly threw plaintiff up against the wall. Then without any sort of cause or even provocation from plaintiff, they commenced an assault upon his person."
(Compl. at 3.) Plaintiff contends that the assault lasted "for at least half a minute" and included being punched repeatedly in the face and body, being thrown onto the ground and being kicked and punched while on the ground. (Compl. at 3.)
Plaintiff further asserts that Pritchard and Pistner continued to beat him even when defendant Corrections Sergeant Jeffery P. Sekuterski ("Sukuterski") "re-entered the hallway along with all of the other officers, escorting in the two inmates who had been fighting." (Compl. at 4.) Plaintiff claims that Sekuterski "noticed that [he] was on the ground being assaulted by defendants Pritchard and Pistner," but "did nothing to curtail the abuse being inflicted upon plaintiff, even though he was directly responsible for overseeing the actions of the officers under his supervision." (Compl. at 4.) Plaintiff also claims that after being picked up and placed against the wall after the alleged beating, "he was again repeatedly punched all over his body and face by defendants Pritchard and Pistner.." (Compl. at 4.) Finally, plaintiff states that he was "slapped in the face by an unknown officer (just for kicks) and then ordered to pick up his property and walk back to his cell in his socks, bleeding and bruised, as a form of humiliation." (Compl. at 4.)
As a result of the alleged beating, plaintiff claims that his urine was tinged with blood until the next day, that his neck was sprained, and that it was painful to move for a week. He further states that two of the joints of his left hand were sprained, and that he had abrasions, lacerations and bruises to his right cheek, to the left side of his chin, to the area above his left eyebrow, to his upper lip, to his tongue, to his left knee, to his abdomen, to his neck and clavicle, to his scapula, and to his lower thoracic spine. (Compl. at 4.) He states that he was taken to the facility hospital by defendant Sergeant Dennis S. Wright ("Wright") and another officer. (Compl. at 5.) There, he contends, digital pictures were taken of his injuries by Wright and that defendant Sheryl Stewart ("Stewart"), a registered nurse, completed an injury report. Plaintiff further alleges that Wright engaged him in conversation, while at the facility hospital, and then distorted plaintiff's responses in order to file a false report "casting aspersions on plaintiff's credibility, despite not having any sort of evidence for doing so." (Compl. at 5.) Plaintiff contends that Wright asked to see his knuckles, and that the medical reports, which plaintiff obtained by a Freedom of Information Law request, contained the words, "knuckles reddened, both hands," in what plaintiff described as "very clumsily, and very deliberately inserted into the medical reports after plaintiff left the hospital." (Compl. at 6.)
Plaintiff also contends that the day after the assault, and again two days later, defendants Pritchard, Pistner and Sekuterski submitted false reports in response to the grievance he filed. (Compl. at 5.) Additionally, plaintiff asserts that despite numerous complaints made to him, defendant Superintendent Glenn S. Goord "never took any action to properly investigate plaintiff's situation nor to ensure his safety; relying, instead, on the very same individuals who were harassing plaintiff, or covering up the harassment, to conduct the investigations into plaintiff's allegations of misconduct." (Compl. at 6.) Plaintiff also states that he kept defendants James Conway ("Conway), Superintendent of Attica Correctional Facility, and Randy K. James ("James"), Deputy Superintendent at Attica, "liberally informed of the harassment being inflicted upon him by the staff at Attica, to the same or even greater extent than his complaints to defendant Goord." (Compl. at 7.) Plaintiff states that his grievance about this First Claim was dismissed by defendant Conway, but that the Central Office Review Committee forwarded the grievance to the Inspector General's Office and plaintiff was interviewed by the Inspector General on April 3, 2003. (Coml. at 8.)
As a Second Claim, plaintiff alleges that on May 25, 2002, he was escorted from his cell and taken to the Special Housing Unit ("SHU"), without explanation. (Compl. at 8.) There, he maintains was housed in a bare psychiatric cell overnight, and moved the next day to an SHU cell. When he asked for the return of his atheist pendant and chain, which he had been wearing when he was taken to SHU, he states that he was told they were sent to the office of the Inmate Records Coordinator. (Compl. at 8.) Plaintiff then states he wrote to the Inmate Records Coordinator requesting the return of his atheist pendant and chain, but received a letter from the legal officer stating that "his pendant would not be returned because it was suddenly being considered to be a 'potential weapon.'" (Compl. at 9.) He further contends that when he had last been sent to SHU, on February 4, 2002, for a brief time, his pendant and chain had not been confiscated. (Compl. at 9.) Plaintiff also states that his atheist pendant and chain had been approved by the Chaplain's Office, as well as by Security at Attica, and that he had been wearing them around his neck at Attica for over a year without incident, and that he had in fact worn it for three years at another correctional facility. (Compl. at 9.) Further, plaintiff contends that since he replaced his prior pendant through the facility's Package Room, "it is highly obvious that if anyone ever considered plaintiff's pendant to be a 'potential weapon' prior to the date in question, the pendant would never have been approved in the first place by either of these three departments and these facts would not be in evidence." (Compl. at 9.) Further, plaintiff asserts that his atheist pendant "was approved as a religious medal by the Department of Correction's own Director of Ministerial and Family Services, who has the final say in such matters." (Compl. at 9.) In addition, plaintiff also maintains that the defendants violated their own directive No. 4202, which he claims states as follows:
A permit may only be invalidated by the Deputy Superintendent for Security for overriding safety and security concerns and after consultation with the Director of Ministerial and Family Services. The inmate shall be informed in writing of the reason for a decision to invalidate a permit. If the inmate files a grievance within 14 days of receipt of such written notification, the item shall remain secured by th Deputy Superintendent of Security pending final resolution of the grievance. (Compl. at 9.) Plaintiff contends that he complained about the confiscation of his atheist pendant and chain to defendants James and Conway, but they refused to return the items to him. Plaintiff further states that fourteen days after his transfer to SHU, the Administrative Segregation ticket that caused his transfer was dismissed, but he had already "endured the loss of a substantial amount of property (when his property was packed up and sent to the Special Housing Unit).." (Compl. at 10.) He contends that he was sent to SHU "for the sole purpose of harassment and retaliation." (Id.) Further, plaintiff states that he complained about the confiscation of his pendant to defendant Goord. (Compl. at 10.) Finally, he attached to his complaint photographs of other religious emblems which he contends are more dangerous than his atheist pendant, but are not confiscated. (Compl. at 10; Compl. Ex. A.)
In considering a motion for dismissal under Rule 12, defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender 3d ed.). "In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).The court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f). "This standard applies with particular strictness where the plaintiff files a pro se complaint alleging ...