The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #9.
Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. ##1 and 44. Plaintiff alleges that while an inmate at the Southport Correctional Facility, his rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is a motion for summary judgment on plaintiff's Eighth Amendment claim by defendants Murley, Mastrantonio, Marshall, Casselberry and Hillard. Dkt. #77. Also before this Court is plaintiff's motion for protection from retaliation seeking transfer out of Southport Correctional Facility. Dkt. #105. For the following reasons, defendants' motion for summary judgment is denied and plaintiff's motion for protection from retaliation is denied.
Plaintiff, proceeding pro se, filed this action on August 16, 2002, against defendants Donald Selsky, Michael McGinnis*fn1 , Lieutenant Donahue, Timothy P. Murley, Peter A. Mastrantonio (incorrectly spelled "Mastrantinio" in the complaint), Scott Marshall, James B. Casselberry (incorrectly spelled "Casslberry" in the complaint) and Dale R. Hillard pursuant to 42 U.S.C. § 1983, seeking $1.5 million in compensatory damages and to be removed from the Special Housing Unit and returned to the general population in one of the following correctional facilities, Sing Sing, Green Haven, Eastern, Shawangunk or Sullivan. Dkt. #1.*fn2 Specifically, plaintiff complains that while he was housed at Southport Correctional Facility ("Southport"), on May 9, 2001 at approximately 7:47 a.m., defendants Murley, Mastrantonio, Marshall, Casselberry and Hillard subjected him to excessive force in violation of his rights under the Eighth Amendment. Additionally, plaintiff further claims that defendant Corcoran denied him due process in connection with the resulting disciplinary hearing.
Allegations in the Complaint
Plaintiff alleges in his complaint that on May 9, 2001 at approximately 7:47 a.m., defendants Mastrantonio and Marshall went to plaintiff's cell for what was supposed to be plaintiff's one hour period of recreation. Dkt. #1, ¶ 1. Defendant Mastrantonio handcuffed plaintiff through the "feed up" slot and once plaintiff was handcuffed, plaintiff alleges that defendant Mastrantonio stated "[s]o you are the one with the big fucking mouth." Id. Plaintiff alleges that he responded "I don't know what you are talking about." Id. Thereafter, plaintiff claims that his cell door opened and defendants Mastrantonio and Marshall "rushed the plaintiff from behind and rammed the plaintiff into the back wall of the cell." Id. While he was still handcuffed, plaintiff alleges that defendant Marshall punched plaintiff in the face and that defendant Mastrantonio "picked up the plaintiff by his knees and slammed the plaintiff unto [sic] the cell floor." Id. At that point, plaintiff alleges that defendants Casselberry and Hillard ran into plaintiff's cell. Id. at ¶ 2. Plaintiff maintains that at no time did he resist or try to fight the officers, however, plaintiff does state that he attempted to get under the cell bed for cover. Id. At that time, defendant Casselberry bent down and started to punch plaintiff in the back of the head. Id. Plaintiff alleges that while he was still being kicked by defendants Hillard, Mastrantonio and Marshall, defendant Murley entered his cell, advised the officers to put leg restraints on plaintiff, and punched plaintiff in the head and said "you got me writing reports all day now asshole." Id. at ¶ 3. As plaintiff was being escorted to the shower area, plaintiff maintains that defendants Casselberry and Mastrantonio continued to punch him. Id. at ¶ 4. As a result of the foregoing, plaintiff alleges that he suffered a laceration on his right thumb and injury to his back.
Defendants' Statement of Undisputed Facts
Defendants maintain that force was used on May 9, 2001 after plaintiff struck defendant Marshall in the nose with his elbow. Dkt. #79, ¶ 11. Plaintiff vehemently denies ever striking defendant Marshall in the nose with his elbow. Dkt. #95, p.2. Thereafter, defendants assert that defendants Hillard and Casselberry responded to the incident and while defendants were attempting to gain control of plaintiff, plaintiff spit on defendant Mastrantonio. Dkt. #79, ¶¶ 12-13. Plaintiff further denies ever spitting on defendant Mastrantonio. Dkt. #95, ¶ 3. Defendants claim that plaintiff was placed down on his bed by defendants Marshall and Mastrantonio while defendants Casselberry and Hillard applied a waist chain and leg irons. Dkt. #79, ¶ 14. Defendants maintain that the force used consisted of body holds and mechanical restraints. Id. at ¶ 15. Once the waist chains and leg irons were applied, defendants state that plaintiff was escorted to the shower without further incident where photographs were taken of plaintiff. Id. at ¶ 16. Later that same day, plaintiff was seen by Nurse Dyal and defendants claim plaintiff complained of "minor back pain and had a 1/4 inch minor laceration on his right thumb." Id. at ¶ 18. Plaintiff disputes that he ever described his pain as "minor." Dkt. #102, p.1. Nurse Dyal noted in plaintiff's medical records that there was no active bleeding and that plaintiff was ambulating well. Dkt. #79, ¶ 21.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. ...