The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
The parties have consented, pursuant to 28 U.S.C. § 636(c), to have the undersigned conduct all further proceedings in this case, including entry of judgment. Dkt. #46.
Plaintiff commenced this action pro se, pursuant to 42 U.S.C. § 1983, alleging that certain corrections officers ("C.O.'s"), in retaliation for filing of grievances, used excessive force against him during the course of a search of his cell in the Attica Correctional Facility ("Attica"), on January 10, 2000. Dkt. #54, Exh. A. Plaintiff alleges that the C.O.'s fabricated a misbehavior report accusing plaintiff of attempting to assault C.O. Seider with a razor-type weapon and that the he was denied due process at the resulting Tier III disciplinary hearing, which resulted in the imposition of two years confinement in the Special Housing Unit. Dkt. #54, Exh. A.
Currently before the Court is plaintiff's motion to strike defendants' answer or, in the alternative, prelude evidence and testimony. Dkt. #53. For the following reasons, plaintiff's motion is denied.
Sgt. Corcoran declares that he regularly makes use of informants and receives tips from inmates on an almost daily basis. Dkt. #61, ¶ 4. On January 10, 2000, Sgt. Corcoran ordered a search of plaintiff's cell after he received a written note from an inmate telling him that plaintiff had a weapon. Dkt. #54, Exh. L, pp.2-3; Dkt. #61, ¶ 5. Sgt. Corcoran concedes that he no longer has the note, explaining I receive hundreds of such notes a year. I have no reason to keep them, and keeping them would be not only cumbersome but perhaps dangerous for the inmates who write them. Therefore, I routinely throw them out.
Dkt. #61, ¶ 6. Although the note was not available for production during discovery, the New York State Department of Correctional Services ("DOCS"), did produce the inmate who wrote the note for deposition and he testified that he sent Sgt. Corcoran a note explaining that plaintiff had wanted me to hold a weapon for him. He sent it to me, and it was in a sock with a note or something like that, saying he wanted me to hold this weapon for him. . . . I sent it back. I didn't want it. I didn't even look at the weapon. It was like in a sock, and I sent it right back and that was it.
Dkt. #54, Exh. Q. DOCS Directive No. 4910, regarding Control of & Search for Contraband, provides that an "unscheduled search of the living quarters of an inmate shall be conducted only when there is reasonable suspicion that contraband is contained in the housing unit." Dkt. #54, Exh.
C.O. Seider testified that Sgt. Corcoran asked him to search plaintiff's cell for weapons or other contraband. Dkt. #54, Exh. M, p.4. According to Sgt. Corcoran's Use of Force/Assault on Staff Memo,
At approximately 9:45, Officer Seider was sent to do a suspicion frisk of Inmate Perez [sic] . . . cell, per my order. When he reached the inmates [sic] cell and the door opened the inmate reached above the cell door and grabbed a razor with his right hand. As the inmate attempted to raise the razor above his head Officer [Seider] grabbed hold of his right wrist area with both hands and wrestled the inmate to the floor, striking the bed and overturning a bucket of water flooding the cell. Inmate continued to resist and Officer Fleming assisted with body holds to the inmates [sic] legs and the struggle ended. Officer Seider recovered a 3/4 " x 1 1/4 " razor type weapon from the floor, that had been dropped by the inmate during the struggle. The weapon was bagged, tagged and photocopied and turned over to the Captains [sic] evidence locker. The inmate was escorted over to the facility hospital via gurney. The inmate appeared to have a seizure while being escorted off the company. The inmate was treated for multiple contusions to the face and back, a bruise to the right eyebrow and a small cut to the top of the head. Inmate Perez was admitted to the facility hospital for observation. Officer Seider had tenderness to the right shoulder and reported off duty due to his injuries. Officer Fleming reported no injuries. Officer Dixon later reported that the video tape was defective and no video footage was available.
Dkt. #54, Exh. E, pp.8-9. C.O. Seider declares that he recovered the weapon, "a small piece of metal sharpened on one edge," from the floor of plaintiff's cell and gave the weapon to the Hall Captain to process so that he could go to the infirmary. Dkt. #66, ¶¶ 2 & 5. The weapon was logged into the Captain's evidence locker, but was not available for production during discovery. Dkt. #67, p.6. A photocopy of a weapon was produced during discovery. Dkt. #54, Exh. E, p.10.
Plaintiff submitted a grievance dated January 14, 2000, alleging that On January 10, 2000 at approximately 9:45 a.m., two officers (D. Seider) and (D. Fleming) appeared at the front of my cell gate (B18-23 cell). I was given an order by them to step out of my cell when it opens and they was gonna conduct a cell search on me. As I was about to step out of my cell, Officer D. Seider ran in [sic] my cell real fast and grabbed me by my neck with his left hand and started punching me by my neck with his left hand and started punching me on my face and head until I lost consciousness. He was punching me on my head real hard with his right hand, when I lost consciousness [sic] I was sent to the facility hospital on a stretcher, when I woked [sic] up at the hospital, I was told by the nurses that I had went into a seizure while being assaulted from the use of force by correction officers. Also the nurses told me that corrections officers had told them that I tried to assault a correction officer with a razor.
Dkt. #54, Exh. C. At his deposition, plaintiff testified that he remembered the C.O.'s took me out of my cell to the officer's station, and once they took me to the officer's station and after Officer Seider grabbed my head and slammed it into the company wall, I went to [sic] seizures, convulsions of the brain. From there, I don't remember what happened . . . .
Dkt. #54, Exh. R, p.2. Plaintiff recalled that C.O. Dixon was present with the video recorder while the C.O.'s were assaulting him in his cell, stating: when they took me out of my cell, I seen him. As soon as I stepped out of my cell, he was right there in front of me with a camera. When they turned me around, he was there with a camera. He was recording all the time. When they took me to the officer's station, I seen him. When Officer Seider turned me around to slam my head on the wall, that's the last I seen him.
Dkt. #54, Exh. R, pp.2-3. Plaintiff denies ever being in possession of a razor or weapon and denies reaching for the ledge over his cell door when the officers came to search his cell. Dkt. #54, Exh. R, p.5.
Sgt. Corcoran testified that it is standard policy that all Special Housing Unit moves be videotaped. Dkt. #54, Exh. L, p.7. However, plaintiff's move commenced before the video camera arrived. Dkt. #54, Exh. L, p. 8. C.O. Reginald Dixon, a non-party to this action, declares that he was responsible for video taping plaintiff's move from B Block to the facility hospital, which he recalls as being "without incident." Dkt. #54, Exh. S; Dkt. #62, ¶ ¶ 2, 6. At the end of the move, C.O. Dixon recalls "that there was something unusual with the camera's tracking numbers, and when I backed up a few frames to view what was recorded, it did not appear ...