The opinion of the court was delivered by: Pitman, United States Magistrate Judge
Plaintiff pro se, Eugene Sidney, a prisoner at Great Meadow Correctional Facility in Comstock, New York, commenced this action pursuant to 42 U.S.C. § 1983, alleging that defendant, Corrections Officer Terrance Wilson, used excessive force against him in violation of the Eighth Amendment. By notice of motion dated November 21, 2006, Wilson moves for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting summary judgment and dismissing plaintiff's complaint (Docket Item 50).
The parties consented to refer this case to me for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Wilson's motion for summary judgment is denied.
Between April 1998 and February 2003, Sidney was incarcerated at Sing Sing Correctional Facility ("Sing Sing") (Plaintiff's Rule 56.1 Statement ("Plf. 56.1") at ¶ 6; Defendant's Rule 56.1 Statement ("Def. 56.1") at ¶ 6). On Tuesday, November 30, 1999, at approximately seven fifty-five in the morning, Sidney was escorted from his cell block, which was located in housing block five, to the Sing Sing medical facility to receive medication (Deposition Transcript of Eugene Sidney, taken on May 17, 2006 ("Plf. Dep.") at 44-46, annexed as Exhibit P to Declaration of Doris Rios Duffy, Esq., dated Sept. 13, 2007 ("Duffy Decl.")). Upon returning to housing block five, Sidney noticed that his breakfast had already been served on a tray and placed in a rack located near the steps Sidney used to enter the housing block (Plf. Dep. at 58-61). Sidney ate his breakfast while still standing because he was eager to participate in a law library "school run"*fn2 he had scheduled for that morning (Plf. Dep. at 62; Inmate Call Out Slip, dated Nov. 30, 1999, annexed as Exhibit N to Plaintiff's Opposition Letter, dated July 26, 2007).
Upon finishing his breakfast, Sidney asked Corrections Officer Robert Burton whether he could go on the morning school run. Sidney alleges that Burton told him he could not participate in the school run and gave no reason for the decision (Plf. Dep. at 63-64). According to Sidney, Burton then ordered Sidney to the opposite side of the gallery and Sidney complied, (Plf. Dep. at 67), as the morning school run proceeded to leave (Plf. Dep. at 63-64). Wilson alleges he walked up to Sidney, ordering him to lock into his cell, but Sidney refused (Def. 56.1 at ¶ 9). Sidney admits he did not want to go along with this order and did not lock-in (Plf. Dep. at 102).
At this point, the parties' accounts diverge. Wilson alleges that as a result of Sidney's failing to comply with the first order to lock-in, he ordered Sidney to submit to a pat frisk (Def. 56.1 at ¶ 11). Sidney denies that Wilson gave him this order (Plf. 56.1 at ¶ 11; Plf. Dep. at 94-95). According to Wilson, Sidney then assumed a "fighting stance" by raising his clenched fists, prompting Wilson to grab Sidney's arms and sweep his legs, causing both Sidney and Wilson to fall to the floor (Def. 56.1 at ¶¶ 12-13). Sidney denies ever raising his fists or making any other threatening gesture toward Wilson (Plf. 56.1 at ¶ 12; Plf. Dep. at 95). Instead, Sidney alleges that Wilson backed him against the wall, grabbed his arms, and threw him to the ground (Plf. 56.1 at ¶ 13; Plf. Dep. at 71-72). The parties also dispute what occurred while Sidney was on the floor. Wilson claims that he ordered Sidney to place his hands behind his back so that he could be handcuffed (Def. 56.1 at ¶ 14). Sidney denies Wilson gave him this order (Plf. 56.1 at ¶ 14; Plf. Dep. at 91). Wilson asserts that Sidney struggled with Wilson and Burton, preventing them from easily handcuffing him (Plf. 56.1 at ¶ 15). Sidney disputes this contention and claims that he landed in a ball after being thrown to the ground and that Wilson repeatedly kicked him in the ribs and then used his knee to pin Sidney's head to the floor (Plf. Dep. at 80-81, 86). Sidney contends that the pain from having his face pinned to the floor caused him to scream and allowed Wilson and Burton to eventually handcuffed him (Plf. 81-82, 91).
After the struggle, Wilson and Burton took Sidney to the Sing Sing medical facility where he was examined for injuries (Plf. Dep. at 91). The health record indicates that Sidney sustained a "scratch to [his] center upper brow," had a "bruised area to [his left] eyebrow ridge" with "obvious swelling and redness," complained of "pain to [his left] rib cage," and was given ice to apply to his swollen eye (Ambulatory Health Record, dated Nov. 30, 1999 ("Hlth. Rec.") at 1, annexed as Exhibit J to Declaration of Rocco G. Avallone, Esq., dated Nov. 16, 2006 ("Avallone Decl.")).
B. Defendant's Arguments*fn3
Defendant argues that (1) there are no issues of material fact as to Sidney's excessive force claim and (2), in any event, defendant is entitled to qualified immunity. I shall address each argument in turn.
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This form of relief is appropriate when, after discovery, the party -- here plaintiff -- against whom summary judgment is sought, has not shown that evidence of an essential element of her case -- one on which she has the burden of proof -- exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). Moreover, the existence of a mere scintilla of evidence in support of non-movant's position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
If the movant demonstrates an absence of a genuine issue of material fact, a limited burden of production shifts to the non-movant, who must "demonstrate more than some metaphysical doubt as to the material facts," and come forward with "specific facts showing that there is a genuine issue for trial." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). If the non-movant fails to meet this burden, summary judgment will be granted against it.
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. . . . In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant . . . . Stated more succinctly, '[t]he evidence of the non-movant is to be believed.'" Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir. 2002)(citations omitted); accord Jeffreys v. City of New York, supra, 426 F.3d at 553 ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the ...