The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn2
Plaintiff pro se Saleem Hamid ("Hamid"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, thirteen DOCS employees as well as DOCS, and the State of New York, violated his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Compl. (Docket No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Docket No. 40. Hamid opposes the motion. Docket No. 44. For the following reasons, it is recommended that defendants' motion be granted in part and denied in part.
The facts are related herein in the light most favorable to Hamid as the non-moving party. See subsection II(A) infra.
At all relevant times, Hamid was incarcerated at Eastern Correctional Facility ("Eastern"). Compl. ¶ 25. On April 1, 2004, during an inmate head count, defendant Temple approached Hamid's cell and heard Hamid's radio playing through external speakers and not headphones. Id.; T. 4, 51*fn3; Temple Aff. (Docket No. 40-11) ¶¶ 11-12. During rounds the previous evening, Hamid had been warned by defendant Allison that he must utilize headphones to listen to his radio for security reasons. T. 4, 9, 41-42, 49; Temple Aff. ¶¶ 13, 16. Temple gave several orders for Hamid to surrender his radio. T. 4; Temple Aff. ¶ 17. The radio would not fit through the cell window and Temple entered Hamid's cell to retrieve the radio.*fn4 T. 51, 55; Temple Aff. ¶ 18.
Upon Temple's entry into the cell, cans fell from behind Hamid's door. T. 6. According to Temple, Hamid reached for a can top which she believed could be used as a weapon while Hamid states that he was merely attempting to clear a path for Temple. T. 6, 55; Temple Aff. ¶ 18. Temple stepped on Hamid's hand and alleges that Hamid threw his radio at her, hitting her in the face. T. 55-56; Temple Aff. ¶¶ 18-19. Hamid contends that he did not throw the radio at Temple but handed it to her. T. 6. Multiple inmates testified that they did not hear any profane words exchanged and that there were no sounds of a struggle or ensuing altercation, but none of the inmates actually witnessed the exchange. Id. 13-14, 24, 26-27, 32-34.
Temple left the cell with the radio, secured it, and walked to an office downstairs. T. 7, 55; Temple Aff. ¶ 20. Multiple inmates heard a loud crash as Temple exited the cell block but did not witness what caused the crash.*fn5 T. 14, 19, 22, 28-29, 35. Additionally, during the disciplinary hearing, Hamid viewed his radio which he testified was not in the same working condition as when it was removed from his cell by Temple. T. 60-61.
Defendant McDonough saw Temple immediately after the incident and stated that Temple was "visibly upset" and bleeding. T. 46. Temple wrote a misbehavior report and went to the infirmary where pictures of her injuries were taken and she completed an injury report. Temple Aff. ¶ 21; Docket No. 40-14 at 13, 21; Docket No. 40-22. Temple's hand was bleeding and her face was swollen. T. 56. Temple returned to work the following day, but asserts that she had two black eyes by the conclusion of her shift. Temple Aff. ¶ 22. Temple further asserts that on April 3, 2004, she went to an emergency room where she was diagnosed and treated for a broken nose and whiplash and that this incident ultimately led to her retirement from DOCS. Id. ¶¶ 3, 23-24; T. 58. Multiple inmate-witnesses state that immediately after the incident and the days which followed, Temple did not appear to have sustained any physical injuries. T. 15, 20, 23, 28-29, 34, 36.
While Temple proceeded to the office, defendants Mansueto and Ferraro, the corrections officers on corridor patrol and escort duty, arrived at Hamid's cell to escort him to the Special Housing Unit*fn6 ("SHU").*fn7 Manseuto Aff. (Docket No. 40-15) ¶¶ 4-7; Ferraro Aff. (Docket No. 40-17) ¶¶ 4-7. Mansueto and Ferraro met defendant Miraldi at Hamid's cell, told Hamid to exit the cell, pat-frisked and handcuffed Hamid, and escorted him to SHU. Manseuto Aff. ¶¶ 8-10; Ferraro Aff. ¶¶ 8-10; Miraldi Aff. (Docket No. 40-19) ¶¶ 17-19.
Mansueto, Ferraro, and Miraldi contend that upon arrival at SHU, defendant Farrell proceeded with a standard strip-frisk. Mansueto Aff. ¶ 17; Ferraro Aff. ¶ 17; Miraldi Aff. ¶ 25; Farrell Aff. (Docket No. 40-24) ¶ 8. Hamid contends that defendants Botsford and Wells "physically assaulted and sexually abused [him]" upon their entry into the unit, beating him before the strip-search while Miraldi, Mansueto, and Ferraro stood by. Compl. ¶¶ 29-31.*fn8 Additionally, while defendants made Hamid engage in multiple cavity searches, either Botsford or Wells appeared to be videotaping the strip-search. Id. ¶ 31. Hamid also claims that after the strip-frisk was concluded, Botsford and Wells escorted him back to his SHU cell and when they removed his handcuffs, they inflicted so much pain that he urinated on himself. Id. ¶ 32.
Miraldi, Mansueto, and Ferraro deny being in the room, laughing, or making any other comments while the strip-frisk occurred and did not view any other defendants use force on Hamid. Manseuto Aff. ¶¶ 18-19; Ferraro Aff. ¶¶ 18-19; Miraldi Aff. ¶¶ 26-27. Additionally, while Farrell explained that sometimes a cavity search needs to be performed multiple times if the inmate is not cooperating, he stated that he has "never used the strip frisk procedure to try to humiliate or embarrass the plaintiff . . ." and no other individuals were present during the procedure. Farrell Aff. ¶¶ 10-14, 18-19.
On April 4, 2004, a Tier III disciplinary hearing*fn9 was commenced before defendant Coleman. See Docket No. 40-7. Prior to the hearing, Hamid had requested and received assistance from Mr. Cosh and obtained copies of the misbehavior report dated April 2, 2004, the log book entries for his cell blocks, and the investigative reports. T. 2-3. Hamid was not presented with the unusual incident ("UI") report prior to the hearing because it was not finalized but received it on April 8, 2004. T. 2, 39. Additionally, during the hearing Hamid requested and was able to question five inmate-witnesses, Allison, Temple, and McDonough. See generally T. 2-3. On April 9, 2004, Coleman announced his disposition, finding Hamid guilty of (1) creating a disturbance, (2) assault on a staff member, (3) interference with an employee, and (4) harassment, and sentenced him to (1) twenty-four months in SHU; (2) the loss of recreation, packages, commissary, and telephone calls for twenty-four months; and (3) the loss of twenty-four months good time credits. T. 66-67; Docket No. 40-14.
On April 19, 2004, Hamid received a letter from defendant Superintendent Miller stating that his appeal was denied as he had received "a fair and impartial . . . hearing," and "the penalty that was imposed [wa]s justified." Docket No. 40-23. However, on June 24, 2004, defendant Selsky reviewed and affirmed the conviction but reduced the penalties to eighteen months as "the nature of [the] misconduct d[id] not warrant [the] penalty imposed." Docket No. 40-9 at 3-4. Additionally, on February 3, 2005, Hamid received another letter from Selsky stating that while Selsky did "not believe that there [were] sufficient grounds to reconsider the previous decision to modify th[e hearing disposition] . . . [and no f]urther administrative action w[ould] be forthcoming . . , [Hamid would] receive a further reduction in . . . confinement time through . . . established time cut procedures . . . ." Id. at 2.*fn10
Additionally, on April 4, 2004, Hamid was criminally charged for the incident which occurred three days earlier. Compl. ¶ 41. On or about June 26, 2004, Hamid was arraigned on an indictment charging assault returned by an Ulster County grand jury. Id. ¶ 43. On or about June 13, 2005, the criminal trial commenced. Id. ¶ 44. On or about June 16, 2005, Hamid was found not guiity. Id. ¶ 45. This action followed.
In his complaint, Hamid alleges that defendants violated his (1) First Amendment rights by retaliating against him for filing grievances; (2) Fourth, Fifth, and Sixth Amendment rights by subjecting him to false arrest, unlawful indictment in the subsequent criminal prosecution, and prohibiting him from testifying before the grand jury; (3) Eighth Amendment rights by subjecting him to excessive force and failing to intervene therein; (4) Fourteenth Amendment rights by denying him due process during his disciplinary hearing and subsequent criminal indictment; (5) state law rights by maliciously prosecuting and falsely arresting him; and (6) rights under §§ 1985 and 1986.
Defendants move for summary judgment on all claims asserting that (1) the Eleventh Amendment bars Hamid's claims against New York State, DOCS, and defendants in their official capacities; (2) Hamid has not administratively exhausted his retaliation remedies for the allegations of sexual and verbal harassment and the use of excessive force; (3) Hamid was not deprived of due process, (4) Hamid is barred by his disciplinary conviction from asserting certain due process claims; (5) Hamid failed sufficiently to allege a retaliation claim; (6) Hamid's claim regarding damage to his radio does not rise to the level of a due process violation; (7) New York Corrections Law § 24 bars Hamid's claims against the State in federal court; (8) Hamid is unable to establish the elements of malicious prosecution; (9) Goord, Ellison, Allison, McDonough, and Botsford were not personally involved; (10) there is no jurisdiction over Wells; and (11) defendants are entitled to qualified immunity.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); see also Sealed Plaintiff v. Sealed Defendant #1, F.3d , 2008 WL 3294864, at *5 (2d Cir. Aug. 12, 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
As a threshold matter, defendants contend that Hamid has failed to exhaust his administrative remedies. Under 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suit challenging prison conditions, including federal civil rights cases. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 126 S.Ct. 2378, 2382-83 (2006). This exhaustion requirement applies to all prison condition claims. Porter, 534 U.S. at 532. "[A]ny deprivation that does not affect the fact or duration of a prisoner's overall confinement is necessarily a condition of that confinement." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). The exhaustion requirement also applies even if the administrative grievance process does not provide for all the relief requested by the inmate. Nussle, 534 U.S. at 524.
While the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "certain caveats apply." Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004)). Exhaustion is generally achieved through the Inmate Grievance Program (IGP).*fn11 See N.Y.Comp. Codes R. & Regs. tit. 7, § 701.1 et seq. (2007). However, when inmates fail to follow the IGP, a court must conduct a three-part inquiry to determine if such failure is fatal to claims. A court must consider whether (1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement.
Ruggiero, 467 F.3d at 175 (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
Administrative remedies are unavailable when there is no "possibility of  relief for the action complained of." Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). The test to determine the availability of an administrative remedy is an objective one asking whether "a similarly situated individual of ordinary firmness" would have deemed it accessible. Id. at 688. Courts have found unavailability "where plaintiff is unaware of the grievance procedures or did not understand it or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove v. Riley, No. CV-04-4587 (DST), 2007 WL 389003, at *8 (E.D.N.Y. 2007) (internal citations omitted).
Hamid failed to exhaust his administrative remedies as there no evidence that any grievances were filed concerning the physical or sexual abuse he allegedly sustained. The IGP was freely available to Hamid. This was demonstrated when Hamid successfully filed an inmate grievance and appealed two grievance denials in 2003, unrelated to the claims here. Linquist Aff. (Docket No. 40-27) ¶ 11. Additionally, Hamid testified at his deposition that he was familiar with the grievance procedure from reading The Jailhouse Lawyer's Manual. Hamid Dep. at 49-50.
Thus, Hamid was familiar with the system. However, liberally construing Hamid's evidence, Hamid alleges that he (1) found the IGP futile because he had filed multiple grievances in the past that were never directed to the appropriate persons or places, (2) made verbal complaints to Miller during which he was never instructed to file his grievances in writing, and (3) attempted to send the grievances to his mother, which she never received, so that she could present the grievances on his behalf. Hamid Dep. at 66-68. Hamid has produced no other evidence to substantiate his testimony. There are no copies of grievances that he attempted to mail or any other portion of a paper trail from which to conclude that Hamid was actually submitting the documents in question.
Nevertheless, although implausible, Hamid's testimony on this issue requires a determination of credibility, a determination that cannot be made on a motion for summary judgment. See Dillon v. Morano, 497 F.3d 247, 254 (2d Cir. 2007); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 157 (2d Cir. 1998) ("To the extent that these inconsistencies can only be resolved based upon credibility determinations, such questions of witness credibility are to be decided by the jury."); United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) ("Resolutions of credibility conflicts and choices between conflicting versions of the facts are matters for the jury, not for the court on summary judgment.").
Accordingly, defendants' motion should be denied on this ground.*fn12
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)). Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is ...