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 the entry of final judgment. Dkt. #10.
Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. In his complaint, plaintiff alleges four separate incidents that he claims occurred while he was housed at the Wyoming Correctional Facility. Id. Currently before the Court is defendants' motion for summary judgment. Dkt. #22. Defendants argue that because plaintiff failed to exhaust his administrative remedies, his claims fail as a matter of law.
Plaintiff, proceeding pro se, filed this action on May 28, 2003, pursuant to 42 U.S.C. § 1983, seeking compensatory damages for injuries he allegedly sustained as a result of excessive use of force, sexual harassment and retaliation while he was incarcerated at the Wyoming Correctional Facility ("Wyoming"), in violation of his constitutional rights under the First and Eighth Amendments to the United States Constitution. Dkt. #1. Specifically, plaintiff's complaint named the following as defendants: Superintendent Giambruno; Deputy Hall; Captain Malensky; Lieutenant Richards; Sergeant Skubis; Sergeant Johnson; Counselor Harris; Senior Counselor Brunette; Corrections Officer Brooks; Corrections Officer Sweet (incorrectly spelled Sweets in the complaint); Corrections Officer Wilson; Corrections Officer Golden; Corrections Officer Lewis and three "John Does." Id.*fn1 Plaintiff's complaint alleges four separate and distinct incidents that occurred on July 2, 2001, July 6, 2001, in or about September 2002 and in or about December 2002. Id. As discussed above, following District Judge Larimer's Decision and Order, six defendants remain, Sergeant Skubis, Counselor Harris, and Corrections Officers Brooks, Sweet, Wilson and Lewis. Only defendants Harris, Brooks, Sweet, Wilson and Lewis have appeared in this action. Dkt. #6. Based upon a review of the Western District of New York docket sheet, it does not appear to this Court that defendant Sergeant Skubis was ever served with a copy of the Complaint.
The July 2, 2001 Incident
Plaintiff alleges that on July 2, 2001, while he was on his way to the mess hall, defendants Sweet and Skubis, together with two unidentified officers, pulled him aside, asked him what housing unit he was from and that defendant Skubis made derogatory remarks toward plaintiff. Dkt. #1. Plaintiff further alleges that defendants Sweet, Skubis and the two unidentified officers forcefully put him against the wall to frisk him, bent his left arm behind his back, grabbed his hair and slammed the right side of his head/face into the wall. Id. Plaintiff maintains that he sustained injuries to his left shoulder and to the right side of his head/face, however, according to plaintiff, Lieutenant Richards and the nurse lied in the medical reports stating that he had not sustained any injuries. Id. Moreover, plaintiff alleges that he wrote a complaint to the Superintendent concerning the incident and that Lieutenant Richards investigated in the matter "in a revengeful hostile matter [sic] to impress [sic] & intimidate me to drop the complaint and also Deputy Hall lie [sic] and hide [sic] the complaint covering the incident; threatening me to drop the complaint." Id. Based on the foregoing, plaintiff asserts that his Eighth Amendment right to be free from cruel and unusual punishment was violated.
The July 6, 2001 Incident
Plaintiff alleges that he was assaulted by defendants Wilson, Lewis and an unidentified Sergeant on July 6, 2001 while being admitted to the Special Housing Unit ("SHU") for the incident that occurred on July 2, 2001. Dkt. #1. Plaintiff claims that he was assaulted in retaliation for writing a letter/complaint against Sergeant Skubis in relation to the July 2, 2001. Id. Specifically, plaintiff alleges that "C.O. Wilson slammed me on the floor kick [sic] me in the stomach, and punch [sic] me in the face several times, while C.O. Lewis held me on the floor, then C.O. Wilson kick [sic] me by my pubic hair (rightside lower) and stomped on my stomach." Id. Moreover, plaintiff claims that he suffered a hernia as a result of this incident and was taken to the Erie County Medical Center for treatment. Id. Finally, plaintiff's complaint states that "C.O. Wilson said if I complaint [sic] or said anything, I would regret it." Id.
The September 2002 Incident
Plaintiff alleges that on or about September 9, 2002, defendant Brooks assaulted him in the visiting room. Id. Specifically, plaintiff claims that defendant Brooks made comments in a joking manner to plaintiff's fiancé about her large breasts and that she should not wear such little shirts. Id. Plaintiff asserts that he told his fiancé to complain to the Inspector General about these comments and thereafter, defendant Brooks threatened to end the visit and issued plaintiff a misbehavior ticket. Id. At the conclusion of the visit, plaintiff claims that defendant Brooks made sure that plaintiff was the last one in the visiting room and then punched plaintiff in the stomach twice while defendant Sweet watched. Id.
The December 2002 Incident
Lastly, plaintiff alleges that at his quarterly visit to his counselor in December 2002, defendant Harris sexually harassed him and retaliated against him by issuing a misbehavior ticket to him because he complained to the Superintendent and Senior Counselor about her prior instances of sexual harassment. As noted above, plaintiff's claims of sexual harassment against defendant Harris were dismissed with prejudice by District Judge Larimer and the only claim that survives against defendant Harris is plaintiff's retaliation claim. Dkt. #5. Specifically, plaintiff alleges that defendant Harris made advances towards him and when he refused, she removed his fiancé's name from his approved phone list. Thereafter, plaintiff claimed he refused to attend his counseling sessions with defendant Harris and complained to the Superintendent ...