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, challenging his confinement in Involuntary Protective Custody while incarcerated at Auburn Correctional Facility between late November of 2002 and the present. (Dkt. No. 85) (Second Amended Complaint)(AC). Plaintiff also alleges that defendant Wright used excessive force against him in violation of the Eighth Amendment. Plaintiff appears to seek class certification. AC ¶ 2. Presently before the court is defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56. (Dkt. No. 97). Plaintiff has filed a response in opposition to the motion for summary judgment, but has also filed a motion for voluntary dismissal of various claims and defendants contained in the amended complaint. (Dkt. Nos. 99-101). For the following reasons, this court will allow plaintiff to withdraw the requested claims and defendants, and will grant defendants' motion for summary judgment in part.*fn1
Plaintiff originally filed this civil rights action against nineteen defendants. (Dkt. No. 1). On November 2, 2006, plaintiff made a motion for class certification, and on November 30, 2006, plaintiff filed a motion to amend. (Dkt. Nos. 56, 72). On February 7, 2007, this court granted plaintiff's motion to amend, but denied his motion for class certification.*fn2 (Dkt. No. 84). The amended complaint named seventeen defendants. (Dkt. No. 85)(AC). The amended complaint contained six causes of action, including failure to protect (Count One); double jeopardy in relation to an Involuntary Protective Custody (IPC) placement (Count Two); due process relating to the continuation of plaintiff's IPC placement (Count Three); due process relating to defendants' failure to transfer plaintiff (Count Four); various constitutional rights*fn3 relating to the conditions in IPC at Auburn (Count Five); and cruel and unusual punishment relating to an alleged use of excessive force by defendant Wright (Count Six). AC ¶¶ 147-53.
Defendants filed their motion for summary judgment on August 15, 2007. (Dkt. No. 97). Plaintiff filed his response and supplemental response on October 1, 2007. (Dkt. Nos. 99, 101). In addition to these responses, plaintiff also filed a motion to voluntarily dismiss some of the claims and some of the defendants contained in the amended complaint. (Dkt. No. 100). In this motion for voluntary dismissal, plaintiff seeks to withdraw Counts One, Two, Four, and Five. (Dkt. No. 100). Plaintiff also consents to voluntary dismissal of the above claims as to defendants Glenn Goord; Lucien LeClaire; Richard Roy; Theresa Knapp-David; Donald Selsky; Joseph Giannotta; C. Barrette; Norman Austin; and Vince Konecny. (Dkt. No. 100).
In his opposition to defendants' motion, plaintiff also concedes that he cannot sustain his Eighth Amendment claim against defendants Goord, Burge, Bradt, Bellnier, Rourke, and Gummerson because plaintiff cannot establish the requisite personal involvement of these supervisory officials in the alleged assault. Plaintiff's Mem. of Law at 15 (Dkt. No. 99). Thus, the court will dismiss the Eighth Amendment claim (Count Six) as against all defendants except defendant Wright.
This court will grant plaintiff's motion to withdraw the above claims. Thus, remaining in this action are Counts Three and Six. Count Three alleges that the periodic review process for plaintiff's continued IPC placement was constitutionally insufficient. AC ¶¶ 67-82, 149. Count Six alleges that defendant Wright used excessive force against plaintiff. AC ¶¶ 130-46, 152. The remaining defendants are Goord (Count Three); LeClaire (Count Three); Selsky (Count Three); Burge (Count Three); Bradt (Count Three); Rourke (Count Three); Gummerson (Count Three); Kott (Count Three); Graham (Count Three); Bellnier (Count Three); and Wright (Count Six). The complaint will be dismissed in its entirety pursuant to plaintiff's motion for voluntary dismissal as against defendants Roy; Knapp-David; Giannotta; C. Barrette; Austin; and Konecny. Plaintiff has addressed his response to defendants motion for summary judgment only to the remaining claims and remaining defendants. (Dkt. Nos. 99, 101).
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.
Although plaintiff has agreed to dismiss many of his causes of action, this court will review all the facts for clarity because the remaining claims are related to the facts in their entirety. Plaintiff states that on November 30, 2002, he was incarcerated at Auburn Correctional Facility. AC ¶ 22. He concedes in his amended complaint that he had "unknown enemies" on the "C" and "D" Blocks at Auburn. AC ¶ 25. Plaintiff has been classified as a "Central Monitoring Case" (CMC) inmate. AC ¶ 24; Seifert*fn4 Aff. ¶ 7. CMC inmates are those who "by reason of their status, behavior, or nature of their crime, warrant additional scrutiny with respect to movement, placement and transportation." Seifert Aff. ¶ 4. The rules governing CMC status are contained in both DOCS Directives and in New York State Regulations. Seifert Aff. ¶ 5 & Ex. 1; N.Y. COMP. CODES R. & REGS. tit. 7, § 1000 et seq.
It is undisputed that on November 30, 2002, at approximately 12:20 p.m., plaintiff was stabbed three times by an unknown assailant. AC ¶ 35. Plaintiff did not report his injuries,*fn5 but at approximately 1:40 p.m. Corrections Officer (CO) Major discovered plaintiff bleeding in his cell.*fn6 AC ¶ 39. When questioned by CO Barrette, plaintiff would not or could not divulge the identity of his attacker. Defendants' Ex. F (Schwartz Aff. Ex. A at pp.3, 6). Plaintiff was examined by medical personnel at Auburn, but then transported to an outside hospital for treatment. Id at p.3. Plaintiff remained at the hospital until December 1, 2002. Defendants' Ex. L at 2.
Upon plaintiff's return from the hospital, he was placed in the Special Housing Unit (SHU), pending an Administrative Segregation (Ad Seg) hearing. See Defendants' Ex. A (Ad Seg Recommendation). Plaintiff states that the Ad Seg recommendation was denied because defendant Gummerson "testified" that Ad Seg was not appropriate for the victim of an assault. AC ¶¶ 53-54. However, former defendant Giannotta filed an alternative recommendation that plaintiff be placed in IPC. Defendants' Ex. B (IPC Recommendation); Burge Decl. ¶ 14. The main reason for the IPC recommendation was that plaintiff was the victim of a serious assault and suffered serious injuries, necessitating treatment at an outside hospital. Defendants' Ex. B. The recommendation was also based on the fact that the assailant was not found, and plaintiff could not or would not identify the individual. Id. Plaintiff refused to voluntarily sign into protective custody, and confidential information had revealed that if plaintiff were placed back in general population, he would again be the subject of an attack. Id. Finally, the recommendation stated that it was being made for plaintiff's own safety as well as the safety of "other inmates that you may assault in retaliation from this incident." Id.
Captain Rourke presided over the IPC hearing and affirmed the recommendation. Defendants' Ex. F*fn7 (Schwartz Aff. Ex. A at pp.14-17). Captain Rourke based his determination on the need to protect plaintiff's safety as well as the safety of other unknown inmates. Id. Plaintiff appealed this determination, claiming that he was denied the right to call witnesses, denied the ability to submit evidence, denied effective assistance, and denied an impartial hearing officer. AC ¶ 60. The IPC determination was affirmed by defendant Selsky, and plaintiff commenced an Article 78 proceeding in Albany County Supreme Court, challenging the IPC determination. Defendants' Ex. E. On July 22, 2003, Supreme Court Justice E. Michael Kavanaugh dismissed plaintiff's petition. Defendants' Ex. G. Plaintiff appealed Justice Kavanaugh's decision to the Appellate Division, Third Department. The Appellate Division affirmed the dismissal of plaintiff's petition on October 28, 2004.*fn8 Defendants' Ex. H.
DOCS policy requires that an inmate's IPC status be reviewed every thirty days by a three-member committee, consisting of a representative of the facility's executive staff, a security supervisor, and a member of the guidance and counseling staff. Kott Aff. ¶¶ 4, 6 & Ex. 1 (DOCS Directive 4948(III)(C)). The IPC review committee must then prepare written findings that are forwarded to the facility superintendent for final determination. Kott Aff. ¶ 5 & Ex. 1 (DOCS Directive 4948(III)(C)). Plaintiff is then informed of the committee's decision by memorandum. Kott Aff. Ex. 2. Plaintiff's IPC status was reviewed weekly for the first two months that he was in IPC and then monthly thereafter by a three-member committee. Kott Aff. ¶ 7 & Ex. 2; Burge Decl. ¶ 15; Graham Aff. ¶ 7. The "Memorandum" sent to plaintiff basically indicates the date of the review, that the circumstances of his placement in IPC had "[r]emained [t]he [s]ame," and that therefore, plaintiff would remain in IPC. Kott Aff. Ex. 2. A review of all the memoranda included with the Kott affidavit shows that defendants Bradt, Bellnier, Rourke, Gummerson, and Kott have all at one time or another been members of the three-person committee. Kott Aff. Ex. 2.
Plaintiff does not dispute that he received these reviews, rather, plaintiff claims that the reviews that he received were insufficient because he was not afforded any due process procedures in connection with these periodic reviews (AC ¶ 75); there was insufficient review by the Superintendent of the facility (AC ¶¶ 77-78); there was no requirement that plaintiff receive written reasons for the determination (AC ¶¶ 72-74); and that defendants Rourke, Gummerson, and Bradt were not sufficiently impartial because they had been involved in plaintiff's initial placement in IPC (AC ¶ 80).
DOCS Directive 4948(III)(A) provides that inmates who are admitted to IPC will be evaluated and recommended for transfer to facilities where they may be appropriately placed in general population. Defendants in this case state that on several occasions, requests have been made to transfer plaintiff, but ...