The opinion of the court was delivered by: Siragusa, J.
Plaintiff, now an inmate at Auburn Correctional Facility, has brought suit against six defendants in regards to a disciplinary hearing that occurred while he was an inmate at Elmira Correctional Facility ("Elmira"). He has also brought suit against a nurse for treatment he later received while being held in Elmira's Special Housing Unit ("SHU"). Defendants have filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, Defendants' motion is granted in part and denied in part.
Derrick R. Omaro ("Plaintiff"), a prisoner at Auburn Correctional Facility, filed a lawsuit under 42 U.S.C. § 1983 against Glenn Goord ("Goord"), Former Commissioner, New York State Department of Correctional Services ("DOCS"); Donald Selsky ("Selsky"), Director, Inmate Disciplinary Program, DOCS; Calvin West ("West"), Former Superintendent, Elmira; John Burge ("Burge"), Superintendent, Elmira; Larry Pocobello ("Pocobello"), Industrial Superintendent, Elmira; MaryJon Hopkins ("Hopkins"), Nurse Administrator, Elmira; and John Hughes ("Hughes"), Corrections Officer, Elmira. This suit concerns occurrences that took place while Plaintiff was a prisoner at Elmira in late 2004 and early 2005.
Plaintiff alleges that on November 19, 2004, his cell was searched and several items were found that constituted DOCS rule violations. (Pl.'s Brief in Support of Partial Summary Judgment 1.) Plaintiff alleges that Hughes violated his constitutional right to due process because the incident report Hughes wrote did not provide the amount of detail DOCS requires. (Compl. at 14.) On November 26, 2004, Pocobello began a hearing to determine Plaintiff's culpability. (Def.'s Ex. F.) On December 7, 2004, Pocobello found Plaintiff guilty of possessing altered items, excessive bedding, as well as unauthorized exchange, and stealing. (Def.'s Ex. I.)Plaintiff maintains that Pocobello did not permit him to call witnesses who would have provided exculpatory evidence. (Compl. at 5.)*fn1
Plaintiff was sentenced to ninety days in the SHU. Id. Plaintiff submitted his request for an appeal shortly after his hearing, and his request for an appeal is time-stamped December 13, 2004. (Def.'s Ex. L.) However, Selsky did not reverse Pocobello's decision until January 18, 2006. (Id. Ex. S.)*fn2 Plaintiff maintains that although Goord, West, and Burge were not directly involved in the length of time it took Selsky to hear Plaintiff's appeal, they are ultimately responsible. (Compl at 6, 7, 11.)
Plaintiff asserts that while in SHU, Hopkins refused to give him either medication for his back pain, or provide him with a TENS unit. Hopkins was the Nurse Administrator of Elmira's SHU, and Plaintiff wrote letters to her explaining his need for medication. Plaintiff claims to have suffered extreme pain as a result. (Compl. at 12-13.)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits 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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 James Wm. Moore, et al., MOORE'S FEDERAL PRACTICE § 56.11[a] (3d ed. 2009). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.1987) (en banc). Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the movant's burden has been met, the burden shifts to the nonmoving party, which in its response must set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. 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. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the nonmoving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir.2001), rev'd on other grounds; Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.1986). Since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
In support of his summary judgment motion, Pocobello draws the Court's attention to the fact that Plaintiff has not identified the witnesses he claims Pocobello refused to allow to testify. In response to Pocobello's motion, Plaintiff has provided the Court with no information about these witnesses, beyond his contention that their testimony at the hearing would have exculpated him. The transcript of the initial hearing indicates that Plaintiff requested three witnesses-Cross, Durham, and Schermerhorn- and asked for two more whom he could not identify. (Def.'s Ex. F.) The record sheet of the hearing shows that five witnesses testified: the three named above, as well as inmates McCullough, and Roberts. (Def.'s Ex. I.) There is no evidence in the record that Plaintiff asked for a sixth and seventh witness.
To avoid summary judgment, however, the non-movant must provide specific facts to show there is a genuine issue of material fact, and Plaintiff may not rely merely on the allegations contained in his own pleading. Fed. R. Civ. P. 56(e)(2). Even construing Plaintiff's submissions liberally and drawing all inferences in his favor, he is nevertheless unable to raise a triable issue of fact in regards to Pocobello. ...