The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Pro se Plaintiff Jonathan Odom ("Plaintiff"), who is incarcerated by the State of New York serving an aggregate minimum sentence of twenty-four years, brings this action under 42 U.S.C. § 1983 ("Section 1983"), alleging that he suffered assault, forced medication, deliberate indifference to medical needs, abuse of due process, and use of excessive force. Defendants Nick Scalzo ("Scalzo"), Eileen Cavanagh ("Cavanagh"), Stephanie Chiesa ("Chiesa"), Albert Paolano ("Paolano"), Richard Doling ("Doling"), and Lt. Brockway ("Brockway") move for summary judgment on all claims against them.*fn1 Plaintiff moves for an order compelling the return of his hearing aid and kit, and for appointment of counsel. For the reasons stated in this Order, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART without prejudice to renewal of certain elements consistent with this Order; Plaintiff's Motion for an order directing return of his hearing aid and kit is DENIED without prejudice to renewal; and Plaintiff's Motion for appointment of counsel is DENIED, also without prejudice to renewal.
A. Plaintiff's Litigation History
The Honorable Thomas P. Griesa, then Chief District Judge for the Southern District of New York, found in 1996 that this Plaintiff "is a savvy pro se litigant who has abused this Court's resources." Odom v. Coombe, No. 96-CV-6629, slip op. at 6 (S.D.N.Y. Dec. 24, 1996) [hereinafter PLRA Order]. Judge Griesa recounted the many frivolous or malicious actions Plaintiff had brought in this court that "lacked an arguable basis either in law or in fact" and that resulted in Plaintiff being barred, under the Prison Litigation Reform Act ("PLRA"), from filing any new actions in forma pauperis ("IFP") in this District Court. Id. at 5-6 (internal quotation marks omitted); see 28 U.S.C. § 1915(g).
Plaintiff has remained an extraordinarily active litigant, notwithstanding the bar to proceeding IFP. In July 1999, Plaintiff unsuccessfully brought suit against eighty defendants, alleging violation of his constitutional rights "in retaliation for having filed a federal civil rights action and grievances against the prison system, its officers, and its administrators." Odom v. Poirer, No. 99-CV-4933, 2004 WL 2884409, at *1 (S.D.N.Y. Dec. 10, 2004) (Daniels, J.). In August 1999, Plaintiff sought habeas relief, which was denied. Odom v. Duncan, No. 99-CV-9088, 2005 WL 3288140 (S.D.N.Y. Dec. 2, 2005) (Mukasey, C.J.). In October 1999, Plaintiff brought this case, addressed in detail infra. In April 2000, Plaintiff sought to bring a Section 1983 suit against thirty named defendants, although the complaint was dismissed prior to service by then-Chief Judge Mukasey. Odom v. Bernardi, No. 00-CV-3171 (S.D.N.Y. Apr. 26, 2000). In December 2006, Plaintiff brought a Section 1983 suit against eleven employees of New York Department of Correctional Services ("NYDOCS") alleging various torts against him including false misbehavior reports, improper conduct at a disciplinary hearing, and -- interestingly -- "denial of access to the courts." See Odom v. Calero, No. 06-CV-15527, 2008 WL 449677, at *1 (S.D.N.Y. Feb. 19, 2008).
Plaintiff has also filed actions in other courts. For example, in October 2002, Plaintiff sued several correction officers in the Western District of New York, claiming that they violated his constitutional rights in May 2000 by locking him in the shower and searching his court materials. Odom v. Baker, No. 02-CV-757, 2008 WL 281789, at *1 (W.D.N.Y. Jan. 31, 2008).
Although Plaintiff does not appear to have filed any new cases in the Eastern District of New York since Judge Griesa's PLRA Order, he did take a Section 1983 case against NYDOCS officials to jury trial there on March 24-26, 2003, which resulted in a verdict for Defendants. See Odom v. Sielaff, No. 92-CV-1132 (E.D.N.Y. filed Mar. 11, 1992).*fn2 In November 2004, Plaintiff sued various correction officers and food service officials alleging statutory religious freedom and various constitutional claims concerning his alleged kosher diet. Odom v. Dixion, 04-CV-889, 2008 WL 466255, at *1 (W.D.N.Y. Feb. 15, 2008) ("According to Plaintiff, Defendants failed to provide Plaintiff with the proper utensils to open hermetically sealed kosher food packs . . . ."). In October 2005, Plaintiff sued several correction officers in the Northern District of New York, claiming to have been assaulted by them in April 2005, in retaliation for his having previously filed grievances regarding the conditions of his confinement. Odom v. Stevens, No. 05-CV-1339 (N.D.N.Y. Apr. 11, 2006). In November 2007, Plaintiff sued various officials in the Western District of New York, yet again claiming that they had assaulted him and then denied him medical care. Odom v. Stevens, No. 07-CV-0792 (W.D.N.Y. filed Nov. 28, 2007).
Although this Court has not searched the relevant dockets, Plaintiff is also a frequent filer in other courts. Cf. PLRA Order at 4-5 ("Plaintiff admits that he is currently litigating in the United States Court of Appeals for the Second Circuit . . . as well as litigating a number of matters in New York state courts.").
Plaintiff was incarcerated in the custody of the State of New York on April 1, 1998, when he was transferred from Great Meadow Correctional Facility ("Great Meadow") to Downstate Correctional Facility ("Downstate"), allegedly to attend a deposition in a federal lawsuit. (Defs.' Statement Pursuant to Rule 56.1 ¶¶ 1- 2, 5 ("Defs.' 56.1").) At relevant times prior and subsequent to April 1, 1998, Plaintiff was otherwise housed at Great Meadow. (Id. ¶ 3.) While at Downstate, Plaintiff refused an injection of psychiatric medication. Several of the Defendants attempted to restrain and subdue him in order to administer the medication. (Id. ¶¶ 9-11.) Plaintiff alleges that during this attempted restraint, Defendants Kerns, Knight, Meo, Nieves, Perkins, Racca, Rakoce and Wilkie assaulted him. (Id. ¶ 14.) After the alleged assault, Defendant Scalzo, a nurse at Downstate, administered the injection of medication. (Id. ¶ 12.)
Thereafter, several Defendants took Plaintiff to the prison hospital, where Defendant Chiesa photographed and fingerprinted Plaintiff and then Defendant Cavanagh, a nurse at Downstate, examined him. (Id. ¶¶ 13, 15, 26.) Cavanagh examined open wounds on Plaintiff's ankles and feet, directed that photographs be taken, and stated in her report that no further treatment was required. (Am. Compl., Ex. C.) Plaintiff alleges this lack of treatment was due to his wounds being inflicted by NYDOCS personnel. (Id. ¶ 17.) On April 20, 1998, Plaintiff filed a grievance regarding his medical treatment on April 1, 1998, which the Inmate Grievance Review Committee ("IGRC") referred to as a "multiple injury grievance." (Objections of State Defs. to the Magistrate's Report and Recommendation ("Obj."), Exs. A, E.) Plaintiff himself titled the grievance: "Grievance complaining about being deliberately denied medical treatment for my injuries I sustained on 4/1/98." (Id., Ex. A.) In the grievance, Plaintiff complained of an aching jawbone, infected wounds, loss of hearing in his left ear and a sore rib cage, among other issues. The IGRC decided the grievance in Plaintiff's favor, and on May 4, 1998, Plaintiff met with a doctor, Defendant Paolano.
Dr. Paolano's treatment notes from the May 4 meeting describe an infected ulcer on Plaintiff's left foot, which he noted may have been an old or chronic injury. (Dec. 3, 2002 Aff. of Jonathan Odom ("Odom Aff."), Ex. E.)*fn3 He provided Plaintiff with treatment for his infection and ordered an x-ray of his feet. (Id.) Plaintiff indicated that he agreed with the IGRC's resolution to grant relief "as per Dr. Paolano's statement of 5/4/98," and his only complaint with the resolution of his grievance concerned the administration of his special dietary needs.*fn4 (Obj., Ex. A.) No mention of ear pain is included in his appeal statement, nor is it discussed in Dr. Paolano's treatment notes.*fn5 Plaintiff claims that his eardrum was ruptured during the attack of April 1, 1998. (Am. Compl. ¶¶ 21, 53.) He alleges his eardrum was first examined on August 26, 1998, when an outside ear specialist found a hole in it that required surgery. (Id. ¶ 53.) After this assessment, Plaintiff claims that Dr. Paolano refused to provide antibiotics or send him to an outside hospital for ear surgery. (Id. ¶¶ 21, 53-55.) In 1999, Plaintiff visited the medical area at Great Meadow at least twelve times. (Id., Ex. E.) He complained of ear problems on only one of those visits, at which time he was prescribed antibiotics. (Id.) Plaintiff underwent surgery to reconstruct his eardrum on February 10, 2000. (Odom Aff., Ex. I.)
Plaintiff further alleges that certain Defendants brought false disciplinary charges against him based on the April 1, 1998 attack at Downstate. (Defs.' 56.1 ¶ 8.) On April 22, 1998, Defendant Doling found Plaintiff guilty of disciplinary infractions and sentenced him to segregation in the Special Housing Unit ("SHU"). (Id. ¶ 27.) The hearing decision was reversed on June 22, 1998, on grounds that the tape recording of the hearing was incomplete. (Id.; Obj., Ex. G.) On June 30, 1998, Defendant Brockway found Plaintiff guilty of disciplinary infractions in a rehearing. (Defs.' 56.1 ¶ 28.) Plaintiff was again sentenced to segregation in the SHU. (Id.) Plaintiff alleges that he was not permitted to call witnesses at either hearing. (Id.) The determination of the hearing held on June 30, 1998, was also reversed on August 20, 1998, because a mandatory mental health assessment had not been ordered. (Id.) Plaintiff spent a total of 142 days in the SHU. (Id. ¶ 73.)
Defendants moved for summary judgment, and the Motion was referred to Magistrate Judge Michael H. Dolinger.*fn6 Judge Dolinger issued a Report and Recommendation ("R&R") concluding that the Court should deny Defendants' Motion except that it should grant dismissal without prejudice as to claims against Defendant Chiesa. (R&R 50.) Judge Dolinger further recommended that Plaintiff be given thirty days to replead any claims against Chiesa and that the Court appropriately structure an opportunity for Defendants to assert a defense of exhaustion of administrative remedies. (Id. 46 n.20, 48.)
Defendants filed timely and specific objections to the R&R, which are as follows:
1) Plaintiff failed to exhaust available administrative remedies (Obj. 12-16);
2) Plaintiff's deliberate indifference claims raise no issue of fact (id. 16-20);
3) Due process is not implicated by inmate disciplinary hearings (id. 20-25); and
4) Defendants are entitled to qualified immunity defeating all claims (id. 25-27). Plaintiff has also moved for an order directing Defendant Paolano and other medical personnel to return ...