The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action brought pursuant to 42 U.S.C. § 1983 in which the plaintiff, a prison inmate at Southport Correctional Facility ("Southport"), alleges that Michael McGinnis ("McGinnis"), the former Superintendent of Southport, John Morton ("Morton"), a Corrections Sergeant at Southport, Randy Banks ("Banks") a Corrections Officer at Southport, and Douglas W estervelt ("W estervelt"), also a Corrections Officer at Southport, violated his constitutional rights. Specifically, he alleges that on December 4, 2001, Morton, Banks, and W estervelt physically assaulted him, and that McGinnis failed to prevent the attack. Now before the Court is Defendants' motion for summary judgment [#24]. For the reasons that follow, the application is denied.
Unless otherwise noted, the following are the facts of the case, viewed in the light most-favorable to Plaintiff. On March 7, 2001, Plaintiff was transferred to Southport to serve a disciplinary sentence in the Segregated Housing Unit ("SHU").*fn1 On July 5, 2001, Banks "assaulted" Plaintiff by physically removing him from the "draft room" area of Southport, where Plaintiff's legal materials were stored. Specifically, Plaintiff states that while he was arguing with corrections officers, who he contends were improperly attempting to prevent him from retrieving his legal papers, Banks "tackled" him. (Plaintiff's Affidavit in Opposition to Summary Judgment [#55] ¶ ¶ 14-15). Subsequently, Plaintiff wrote a ten-page letter to McGinnis, complaining that corrections staff were denying him his "constitutional rights to access to the court." (Plaintiff's July 5, 2001 letter to McGinnis, attached to Complaint [#1] at 1). Plaintiff also stated that he "was physically assaulted by an officer named Banks." (Id. at 3). Plaintiff further stated his belief that he was being targeted for harassment and retaliation as a result of a conspiracy among corrections staff at Southport. Plaintiff requested, inter alia, that McGinnis investigate the officers named in the letter, including Banks. (Id. at 9). McGinnis did not respond to the letter. (Plaintiff's Dep. at 67). Following the incident, Plaintiff was issued a misbehavior report, and was eventually found guilty at a disciplinary hearing. Plaintiff appealed, however, McGinnis affirmed the conviction.
Plaintiff also filed an inmate grievance concerning the incident, which apparently was referred directly to McGinnis, pursuant to 7 New York Code Rules & Regulations ("NYCRR") § 701.8, since it involved allegations of staff harassment. (Plaintiff's Affidavit in Opposition to Summary Judgment [#55] ¶ 21). Plaintiff maintains that McGinnis denied the grievance, though there is no copy of the grievance or of McGinnis's decision in the record. (Id.; see also, Plaintiff's Dep. at 67-68).*fn2 Between July and November 2001, Plaintiff filed additional inmate grievances alleging retaliation by prison staff, all of which McGinnis denied. (Plaintiff's Affidavit in Opposition to Summary Judgment [#55] ¶ 24).
On November 23, 2001, Banks allegedly caused filthy water, which had flooded the cell block, to splash into Plaintiff's face. Plaintiff responded by throwing jell-o from his food tray on Banks. Banks issued Plaintiff a misbehavior report, and as a result, Plaintiff received a pre-hearing Deprivation Order, denying him exercise, showers, cell clean-up, and haircuts. Plaintiff was subsequently found guilty at a disciplinary hearing, and McGinnis affirmed the conviction. (Plaintiff's Affidavit in Opposition to Summary Judgment [#55] ¶ ¶ 39-40). It is unclear from the record whether Plaintiff field an inmate grievance over this incident.
On December 4, 2001, Plaintiff claims that Banks, W estervelt, and Morton each assaulted him. In that regard, Plaintiff was scheduled to be escorted from his cell to take a shower, and Banks and W estervelt were his escort officers. Banks and W estervelt came to Plaintiff's cell, and pursuant to facility procedures, had Plaintiff place his hands behind his back and through the food tray slot in the cell door, so that they could apply handcuffs. Once Plaintiff was handcuffed in this manner, Banks and W estervelt opened the cell door, and W estervelt applied a leg shackle to Plaintiff's left ankle. At this point, Plaintiff alleges, Banks yanked upward on Plaintiff's handcuffs, and W estervelt yanked upward on his leg restraint, and both officers then body-slammed him to the cell floor. (Id. at 38-42). The officers then allegedly punched and kicked Plaintiff 60 to 70 times over a period of ten minutes. (Id. at 46-60). According to Plaintiff, most of the blows struck him in the head. (Id.). During the alleged assault, Defendant Morton was standing both inside and out of Plaintiff's cell, and did not intervene.
Defendants offer a much different version of events, and maintain that Plaintiff struck Banks in the eye with his elbow while W estervelt was applying the leg restraints. Plaintiff, however, maintains that it was actually W estervelt who struck Banks in the eye, in order to make it appear that Plaintiff had assaulted Banks. Defendants further maintain that after Plaintiff elbowed Banks, W estervelt and Banks used reasonable force to take Plaintiff down to the ground, where they finished applying the shackles to Plaintiff's right leg. Both Banks and W estervelt deny punching or kicking Plaintiff.
Following the incident, Plaintiff was issued a Misbehavior Report, and was subsequently found guilty at a Tier III Disciplinary Hearing. As a result, he was sentenced to eighteen additional months in SHU, twelve months loss of good time, and seven days restricted diet. Plaintiff appealed, however, McGinnis affirmed the conviction.
On December 2, 2004, Plaintiff commenced the subject action. Following discovery, Defendants filed the subject motion for summary judgment on February 24, 2006. Defendants contend that McGinnis is entitled to summary judgment because he was not personally involved in the alleged assault. Defendants further contend that Morton, Banks, and W estervelt are entitled to summary judgment, even though there appears to be disputed issues of fact concerning the assault, because Plaintiff's version of events is "incredible as a matter of law." In support of the motion, Defendants offer a photograph of Banks, allegedly taken immediately after the incident, which shows that his eye is swollen, as well as photographs of Plaintiff taken immediately after the incident, which show no serious injuries, and only minor abrasions. Defendants have also submitted a videotape of the incident, which they maintain shows Plaintiff striking Banks. Defendants have also submitted affidavits from Banks, W estervelt, and the nurse who examined Plaintiff following the alleged assault, but have not submitted affidavits from Morton or McGinnis.
After Defendants filed their motion, Plaintiff filed a number of motions, including multiple motions for assignment of counsel, and multiple motions for injunctive relief. After these motions were resolved, Plaintiff filed his opposition to the summary judgment motion on February 12, 2008. In that regard, Plaintiff maintains that McGinnis was personally involved in the alleged assault on December 4, 2001, because he knew that Banks had previously violated Plaintiff's constitutional rights, and because he failed to take any corrective action:
McGinnis knew that the defendant Banks had been engaging in a pattern of unlawful retaliation and assaults against [Plaintiff] and had a pattern of abusing and assaulting prisoners, new that [by] continuing to allow defendant Banks to work around [Plaintiff], further retaliatory assaults would recur/occur, knew that defendant Banks was a temperamental 'hot-head' and walking time bomb and failed to protect [Plaintiff] and personally encouraged the . . . assaults upon [Plaintiff's] person . . . . [McGinnis] failed to take any reasonable measures to prevent the [December 4, 2001] assault by Banks . . . . [McGinnis] creat[ed] and maintain[ed] a policy or custom of allowing unlawful retaliatory practices that included assaults upon [Plaintiff] . . . and also acted with 'gross negligence' in managing his ...