The opinion of the court was delivered by: Siragusa, J.
Before the Court is Defendants' motion for summary judgment (Docket No. 72) filed on March 30, 2007, in which they seek dismissal of the complaint. After taking the matter under consideration on the papers submitted in support of, and opposition to, the motion, the Court grants Defendants' motion.
Plaintiff filed a complaint November 8, 2000, alleging that on December 2, 1997, defendants subjected him to excessive force by using a chemical agent to extract him from his cell, in violation of his Eighth Amendment right against cruel and unusual punishment. Defendants deny that they used excessive force. Rather, they maintain that any force they used was lawful and necessary to extract plaintiff after he refused direct orders to exit his cell.
On June 22, 2005, the Court entered a Decision and Order granting, in part, Defendants' motion for judgment on the pleadings (Docket No. 22) with regard to the defendants in their official capacities, and otherwise denying it with respect to the defendants in their individual capacities. On October 12, 2006, the Court entered a Decision and Order revoking Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) (1996)*fn1 and denied Defendants' motion for summary judgment seeking dismissal of the case, since Plaintiff had already paid the filing fee. In addition, the Court denied Plaintiff's cross-motion for summary judgment.
In the present motion for summary judgment, Defendants seek dismissal of the complaint on the ground that Plaintiff will be unable to prove that the force used to extract him from his cell was excessive in violation of his Eighth Amendment rights. Their argument can be summarized by this portion of their supporting memorandum of law:
The videotape evidence before the Court [which had not previously been presented to the Court] memorialized how the extraction occurred, and it is clear that force was needed and was used in a lawful manner. Based upon the video-tape [sic] evidence, even if the evidence is viewed in the light most favorable to the plaintiff, there is no issue material fact regarding whether any force used during the extraction was excessive. Accordingly, plaintiff's excessive force claims must be dismissed. (Def.s' Suppl. Mem. of Law, at 10-11.) In the alternative, Defendants argue they are entitled to qualified immunity.
Plaintiff was deposed on December 21, 2006, and a copy of the deposition testimony is attached to the declaration of Tamara B. Christie (Docket No. 73). In his deposition, Plaintiff testified that he was 23 years old, previously used the name Shamal Mcgougain, and attended John Jay College in New York City for one year. (Green Dep., at 4-5.) He stated he had been convicted of robbery in the first degree and received a sentence of twenty-five years of incarceration and began his sentence on January 15, 1997. (Id., at 6.)
He also stated his belief that he had been convicted of possession of drugs and attempted robbery in separate instances, but the sentences for those were run together with his sentence for robbery. Additionally, he stated he had misdemeanor convictions, but served no more than a week or two in jail for those. (Id., at 9.) He testified that he had held approximately 20 to 25 jobs during his lifetime before entering prison for his sentence and that his most recent job had been with Airborne Express delivering packages. Prior to that, he worked in a fast food restaurant and at a supermarket. (Id., at 7-8.) Testifying concerning the events of December 2, 1997, at Southport Correctional Facility, Plaintiff testified that Morse lacked authorization to use chemical agents on him during the cell extraction at issue, and, in that regard, that Hager unnecessarily sought approval for the use of a chemical agent to remove him from his cell. (Id., at 10-11.) Further, Plaintiff contended that Defendants used a chemical agent for the purpose of causing him harm and as a means of punishment. He then described the events of December 2, 1997:
In December of 1997 I was given some draft bags and notified I was moving to level one. About 1:20 a sergeant came to tell me he wanted to talk about me refusing not to move. Where, I don't know where he got that from, I am still baffled to this day as what caused him to come to my cell. Basically, the lieutenant came to my cell, a couple people from the facility came to my cell somewhere around 2:30; I was extracted and tear gas and chemical agents was used to remove me from the cell. (Id., at 12.) At his deposition, Plaintiff testified that he was to be moved from level 2, where he enjoyed more privileges, to level 1, where his privileges would be more restricted. (Id., at 13.) He claimed he was never given a reason for the move. He also stated that the sergeant who came to talk to him was Sergeant Ganter, but does not recall what he said to the sergeant, or what the sergeant said to him, other than he was being moved to a different cell. (Id., at 14-15.) Plaintiff also said that Lt. Hager came to talk to him and was upset. However, Plaintiff indicated that he did not pay attention to what Lt. Hager said. He also recalled "some people did come and talk to me, I don't remember who." (Id., at 15.) Plaintiff recalled the extraction team arriving at his cell, but did not recall Lt. Hager speaking to him at the time and giving him one last chance to leave his cell voluntarily. He merely remembered that he was unconscious during the cell extraction couldn't breathe as a result of the tear gas, and recalls waking up in the shower with corrections officers cutting off his clothes. (Id., at 16.) He stated he also remembered the sergeant spraying something, but did not really know what it was, and the next thing he remembered was waking up in the shower. He believes he was in the shower to decontaminate himself. (Id., at 17.) He recalls being seen by medical the next day. (Id., at 17.)
Plaintiff explained his injuries resulting from the cell extraction as follows: I have had a wrist ailment prior to that, this was aggravated from the incident.
I developed a skin disorder. I had a sinus problem to [sic] that, dealing with an incident from Rikers Island in October of 1996 that they never did fix. I was taking medication for my eyes, all the white part of my eyes was [sic] blood red for like two weeks after that incident. My vision, sometimes I am nearsighted, sometimes I am farsighted, sometimes my vision is blurry.... [Plaintiff stated he was suffering from] [p]ost traumatic stress disorder; I be [sic] catching flashbacks. I have difficulty sleeping, outbursts and things like that. I have difficulty concentrating. (Id., at 19.) He further explained that the wrist ailment resulted from the handcuffs being put on too tightly on December 2, 1997, and that prior to that date, he "got numbness in my wrist, a tingling in my hands and things of that nature. Sometimes I get a burn pain of my forearm." (Id., at 20.) He indicated that after December 2, "it became a little more chronic for a period of time. It still comes backs [sic] now and then. It is not as severe as it was right after the incident." (Id., at 20.) He could not answer for how long it was severe, since he was more concerned about his eyes. He recalled receiving Napros[y]n for his wrist pain, but could not recall for how long. (Id., at 21.)
Plaintiff also testified that he has "been having warts on the face and fingers. I have dry, itchy and your dated skin at times." With regard to the sinus condition, Plaintiffs said, "it became more chronical [sic] after the cell extraction. I believe at the time it was also as a result of me losing temporary consciousness, I couldn't breathe." He further stated that on February 5, 2001, he "was tooken [sic] from the facility that I was into Albany med to have surgery done on my nose." (Id., at 22.)
Also in his deposition, Plaintiff elaborated on his claim against Morse in the following questions and answers:
A: My claim is that the purpose and his reason for authorizing the chemical agents was not necessary and maliciously he approved of [sic] to cause me pain and suffering. He never had to training or the necessary hindsight to determine the side effects or the effects of the harm that would be caused to me as a result of using those chemical agents.
Q: And what about Mr. Hager, how do you claim Mr. Hager violated your rights on December 2, 1997?
A: Same as with the other defendant, as far as with Defendant Hager I believe his whole purpose, the [sic] demeanor from the beginning was to cause me harm.
Q: Why do you believe that?
A: From the way that he initially approached me regarding the matter.
Q: How was it that he initially approached you?
A: Like I explained before, he just came talking at me; he didn't talk to me, he talked at me.
Q: Did he tell you he wanted to hurt you?
A: I interpreted that from his body language.
Q: How, what do you mean by that, what body language did you interpret from that?
A: Lieutenant's hostility.
Q: What was his body language that said to you he was trying to hurt you?
A: He was hostile, very boisterous, he was confrontive in front of my cell, he was making more of a threat than trying to resolve the matter. I didn't know until and to this day, like I don't see why the sergeant came to my cell at 1:20. My bag wasn't packed. I wasn't moving until like 3:00 o'clock.
Q: Are you saying he was more of a threat, or are you saying he threatened you?
A: I said it was more like a threat, threatened, on a personal interpretation. He said a whole lot of things.
A: What he said, I wasn't interested in whatever he said. It was just that, yes, I took offense to it. I didn't get into this with him.
A: I interpreted it that way.
Q: You interpreted it at the time ...