The opinion of the court was delivered by: Hon. Thomas J. McAvoy, Senior United States District Judge
MEMORANDUM DECISION and ORDER
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983, claiming that defendants failed to protect him from assault, violated his right to due process, and retaliated against him for filing grievances. (Dkt. No. 1). Plaintiff seeks declaratory, injunctive,*fn1 and substantial monetary relief. Presently before the court is defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56.*fn2 (Dkt. No. 45). Plaintiff has responded in opposition to defendants' motion. (Dkt. No. 48). For the following reasons, this court agrees with defendants and will dismiss the complaint in its entirety.
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id.
Plaintiff alleges that on October 4, 2005, while he was incarcerated at Upstate Correctional Facility, he was "attacked suddenly" by Manny Davis, an inmate who was being transferred to another facility. Complaint ¶ 17. Plaintiff speculates that inmate Davis attacked plaintiff because Davis was unhappy with the transfer and believed that he could avoid transfer by starting a fight. Id. Plaintiff claims that defendant Brown witnessed the attack, but did not respond quickly to assist plaintiff. Complaint ¶ 18. Plaintiff states that the videotape of the incident will show that defendant Brown was "standing around" before he intervened in the altercation. Id.
Both plaintiff and inmate Davis were charged with disciplinary rule violations. Plaintiff was charged with failing to obey a direct order, creating a disturbance, fighting, and violent conduct. Id. ¶ 21. Defendant Vann conducted plaintiff's disciplinary hearing, and plaintiff claims that defendant Vann did not complete the hearing in a timely manner, in violation of New York State regulations governing disciplinary hearing procedures. Defendant Vann found plaintiff guilty of the misbehavior and sentenced him to two months in the Special Housing Unit (SHU) and a two month loss of various privileges. Vann Decl. Ex. G. Defendant Vann also recommended a loss of two months of good time. Id. Plaintiff claims that there was insufficient evidence to find him guilty, and defendant Vann was retaliating against plaintiff for writing letters to her superiors, complaining about the conduct of the disciplinary hearing. Complaint ¶¶ 25-26. Plaintiff also claims that defendant Vann was biased against plaintiff because she also conducted Davis's disciplinary hearing. Id. ¶¶ 30-31. On appeal, Donald Selsky, the Director of Special Housing and Inmate Disciplinary Program dismissed one of the charges, but allowed the penalties to stand. Vann Decl. Ex. H.
Plaintiff also claims that on November 30, 2005, while plaintiff was still in SHU as a result of defendant Vann's disciplinary determination, he was attacked by inmate Rosado. Id. ¶¶ 44-47. Plaintiff states that two corrections officers came to plaintiff's assistance and prevented plaintiff from being seriously injured. Id. ¶ 47. Another misbehavior report was written against plaintiff, but was dismissed because plaintiff was released from incarceration. Compl. Exhibits at p.11-12.
Plaintiff initially brought this complaint, naming Superintendent Robert Woods; Deputy Superintendent of Security, Darwin LaClair; Lieutenant Karin Vann; Corrections Officer Lawrence Brown; Upstate Correctional Facility; and the State of New York. (Dkt. No. 1). By stipulation dated September 5, 2006, Upstate Correctional Facility and the State of New York were dismissed as defendants. (Dkt. No. 35). The remaining defendants have submitted affidavits in support of their motion for summary judgment, together with the pertinent facility records, including a transcript of the plaintiff's disciplinary hearing. (Dkt. No. 45). Plaintiff was deposed on March 21, 2007, and excerpts of that deposition are attached to the Declaration of Gerald R. Rock as Exhibit B. (Dkt. No. 45). Defendants have also submitted a copy of the videotape of the incident involving inmate Davis that led to the misbehavior report.
An inmate has a right under the Eighth and Fourteenth Amendments to be spared "the 'unnecessary and wanton infliction of pain.'" Hendricks v. Coughlin, 942 F.2d 109, 112 (2d Cir. 1991)(citation omitted). An inmate's allegation that a defendant was deliberately indifferent in failing to protect him from the violence of other inmates states a claim under section 1983. Id. at 113.
In order to establish an Eighth Amendment claim for failure to protect an inmate, the plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm, and prison officials acted with deliberate indifference to that risk and the inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836 (1994). The plaintiff must show that prison officials actually knew of and disregarded an excessive risk of harm to the inmate's health and safety. Id. at 837. The defendant must be aware of the facts from which the inference can be drawn that a substantial risk of serious harm exists and the defendant must also draw that inference. Id.
In this case, plaintiff attempts to hold defendants Brown, Woods, and LaClair liable for the failure to protect plaintiff from the attack by inmate Davis. Plaintiff seeks to hold defendants Vann, Woods, and LaClair liable for the attack by inmate Rosado. Plaintiff's first problem in establishing a failure to protect claim is that he concedes that each attack was unprovoked and "sudden," making it difficult to find that the defendants "actually knew of" the risk to plaintiff. Plaintiff claims that inmate Davis was upset because he did not want to be transferred, and thought that he could avoid transfer by starting a fight with plaintiff. Compl. ¶ 17. In the second incident, plaintiff claims that ...