The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff H. Patrick Barclay ("Barclay" or "plaintiff") filed the complaint in this civil rights action brought pursuant to 42 U.S.C. § 1983 on November 20, 2002. He filed an amended complaint on January 24, 2003. The claims alleged include violations of the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, conspiracy, racial discrimination, and retaliation. Defendants moved for summary judgment with permission in order to narrow the issues for trial. Plaintiff opposed. The motion was taken on submission without oral argument.
Barclay avers that he is black, a protected class. He is fairly litigious, having filed at least two state court actions relating to his alleged physical disability (requires a cane for walking) and at least four other actions in federal court relating to his imprisonment. (Am. Compl. at 4-7*fn1 .) Plaintiff has filed numerous grievances related to prison misbehavior proceedings. See, e.g., id. at 11.
There is some dispute regarding the facts surrounding the events that led to Barclay's misbehavior reports and subsequent grievances. The facts presented by the parties are set forth below. When disputed, the facts, inferences from them, and any ambiguities are taken in the light most favorable to Barclay. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Significant variations in the versions of events are pointed out for demonstrative purposes.
On February 4, 2001, defendant Corrections Officer J. Berkman ("CO Berkman") issued plaintiff a misbehavior report alleging four rule violations. Plaintiff did not attend the hearing. Plaintiff was unable to attend because prison officials would not permit him to use his cane to ambulate to the hearing, not, as defendants suggest, because he refused to go.
On February 27, 2001, defendant Corrections Officer T. James ("CO James") threw plaintiff's lunch tray on the ground telling him to "get it off the ground, dog." Plaintiff refused, saying "I'm not your dog." Defendant Corrections Officer T. Ashlaw ("CO Ashlaw") was collecting lunch trays. Barclay informed CO Ashlaw that he had not been fed. Plaintiff asked to talk to a sergeant. According to CO Ashlaw, plaintiff refused to give up his lunch tray until he talked to a sergeant. He notified defendant Sergeant Zernigil ("Sgt. Zernigil"), then issued Barclay a misbehavior report charging him with two violations--disobeying a direct order and violation of mess hall policy. Plaintiff did not attend the hearing. Barclay did not attend because no corrections officer called him out to do so, rather than as defendants again suggest, that he refused. Defendant hearing officer Lt. Lavalley ("Lt. Lavalley") found plaintiff guilty of the charged misbehaviors. The finding of guilt was upheld on appeal. As a result of this incident plaintiff claims that his due process rights were violated because he was not called out to attend the hearing. He also claims that CO James refused him meals from February 27, to March 1, 2001; CO Ashlaw refused to feed him on February 27, 2001; and defendant Superintendent of Upstate Correctional Facility T. Ricks ("Super. Ricks") knew he was not being fed, all contrary to his Eighth Amendment rights.
On March 1, 2001, CO Berkman issued a misbehavior report to plaintiff alleging violation of a direct order--refusal to close the recreation door. According to plaintiff, the door could not be closed due to an electrical problem. CO Berkman issued an order to deprive Barclay of recreation. Barclay was denied recreation for sixty days, in addition to keeplock, loss of packages, and loss of commissary. Plaintiff claims that this denial of recreation deprived him of adequate exercise, depriving him of a liberty interest without due process.
Plaintiff was also given misbehavior reports on December 3, 2000; March 24, 2001; April 25, 2001; and May 18, 2001,*fn2 by corrections officers who are not named in this action. He was found guilty in each instance. The guilty findings relating to the December 3, 2000, March 24, 2001, and April 25, 2001, misbehavior reports were upheld on appeal. Barclay did not appeal the guilty finding as to the May 18, 2001, charge. The punishment imposed for each instance consisted of thirty days of keeplock, loss of packages, and loss of commissary.
On November 21, 2001, there was an incident between Barclay and his cellmate Wingate in their cell. According to the unusual incident report, a corrections officer noticed Barclay and Wingate appeared to have been fighting in their cell. The officer ordered Wingate to lock out in the recreation area. He complied. Also, he blamed Barclay, stating that Barclay had attacked him with a pen. The officer then ordered Barclay to come to the gate. Barclay's pen and legal papers were on his bed. He attempted to obey, but due to weak legs he had to sit on the bed. The officer then directed plaintiff to bring the pen to him.
He told the officer that his legs were too weak to walk. The officer called for the sergeant and medical assistance.
The sergeant requested that plaintiff lay face down on the floor. The complaint named the sergeant as John Doe. Plaintiff now states that he has determined this to be Sergeant O. Chapman ("Sgt. Chapman"), and defendants do not disagree. The sergeant opened the cell gate and ordered the officers to retrieve plaintiff. The officers came in to the cell in full battle gear with weapons and plexiglass. The officers who responded were Skiff, defendant Mr. Kenny ("CO Kenny"), Oropallo, and King. Plaintiff named another officer as John Roe in the complaint. He states that he now knows this to be officer Skiff ("CO Skiff"). He did not name Oropallo or King in the complaint.
The officers jumped on plaintiff's back causing him pain, and pushed the plexiglass shields into his shoulders causing cuts. Barclay's elbow was also bruised. The officers placed plaintiff on a stretcher and took him out of the cell for medical treatment. According to CO Skiff's account, at Sgt. Chapman's direction, he entered Barclay's cell, obtained control of Barclay's legs while mechanical restraints were applied, then assisted in carrying plaintiff to the medical holding area. (Defts.' Ex. B.) According to CO Kenny, he applied mechanical restraints and helped plaintiff to the gurney for transportation to the holding pen to await medical treatment. Id. Thus, defendants assert that no force was used; the officers merely secured Barclay to a stretcher for transport to the medical area. Further, both CO Skiff and CO Kenny noted that plaintiff did not resist and was limp. Plaintiff offers no other factual account of these defendants' involvement.
The nurse noted that Barclay had cuts on both lips, a bloody nose, and various scratches and abrasions on his neck, hands and fingers. In addition, his dreadlocks were pulled out of his scalp on the right side.
Wingate also received medical treatment. It was noted that he had punctures and scratches to his left upper back, his front left chest, left eye, and right hand. He also had a bruise on his palm. Wingate reported that plaintiff had attacked him with a pen.
Plaintiff claims that Wingate attacked him with no provocation, and that Wingate's injuries were caused in a previous fight with a different inmate. Regardless of how the incident occurred, it resulted in plaintiff being charged with assault on another inmate, assault on staff, disobeying a direct order, and inmate movement in violation of disciplinary rules. (Wingate was also charged with misbehavior. He was found guilty of fighting, which was upheld on appeal.)
A Superintendent's hearing was held on December 4, 2001, with regard to the misbehavior charges against Barclay for the November 21, 2001, incident with Wingate. Defendant Hearing Officer J. Kelly ("Kelly") conducted the hearing. She found plaintiff not guilty of assault on another inmate and not guilty of assault on staff. However, she found plaintiff was guilty of refusing a direct order and the movement regulation violation. Kelly assigned the punishment of 90 days keeplock, with the loss of packages, commissary, and telephone privileges for 90 days. She also recommended 90 days loss of good time. Defendant Donald Selsky ("Selsky") reviewed and affirmed the ...