The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On July 9, 2007, the parties to this action consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned. The matter is presently before the court on Plaintiff's motion for summary judgment (Doc. No. 50), filed October 26, 2007, and Defendants' motion for summary judgment (Doc. No. 51), filed October 30, 2007.
On July 27, 2006, Plaintiff Nathaniel R. Collins ("Plaintiff"), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging that on March 29, 2004, while incarcerated at Elmira Correctional Facility ("Elmira" or "the correctional facility"), Defendants New York State Department of Correctional Services ("DOCS") Officers Cunningham ("Cunningham"), Hogancamp ("Hogancamp"), G. Miles ("Miles"), Mr. Chapman ("Chapman"), and Hillman ("Hillman") (together, "Defendant Corrections Officers"), subjected Plaintiff to excessive force in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiff further asserts Defendant DOCS Sergeant Wanger ("Wagner"),*fn1 as the superior officer in charge of the Defendant Corrections Officers, failed to intervene to protect Plaintiff from the alleged excessive force.
An answer was filed by Defendants Chapman, Hillman, Hogancamp, and Wagner on September 6, 2006 (Doc. No. 11). By order filed January 31, 2007 (Doc. No. 23), the Estate of Gary Miles was substituted for Defendant Miles. On February 27, 2007, an answer to the Complaint was filed by Cunningham and the Estate of Gary Miles (Doc. No. 27). By stipulation and order filed July 30, 2007 (Doc. No. 45), the action was voluntarily discontinued as against Hillman.
On October 26, 2007, Plaintiff filed a motion seeking summary judgment (Doc. No. 50) ("Plaintiff's motion"), supported by the attached Declaration of Nathaniel R. Collins ("Plaintiff's Declaration"), Statement of Undisputed Facts ("Plaintiff's Facts Statement"), exhibits consisting of portions of Plaintiff's medical records, and a Memorandum of Law ("Plaintiff's Memorandum"). On October 30, 2007, Defendant filed a motion seeking summary judgment (Doc. No. 51) ("Defendants' motion"), supported by a Memorandum of Law (Doc. No. 52) ("Defendants' Memorandum"), a Statement of Facts (Doc. No. 53) ("Defendants' Facts Statement"), and the Declarations of DOCS Inmate Grievance Program ("IGP") Officer at Elmira, Gary A. Materne ("Materne") (Doc. No. 54) ("Materne Declaration"), and DOCS Inmate Grievance Program Supervisor ("IGPS") at Collins Correctional Facility, David LaGraves ("LaGraves") (Doc. No. 55) ("LaGraves Declaration").*fn2
In opposition to Defendants' motion, Plaintiff filed on November 9, 2007, a response (Doc. No. 58) ("Plaintiff's Response"), with exhibits 1 and 2 ("Plaintiffs' Response Exh(s). __"). In opposition to Plaintiff's motion and in further support of Defendants' motion, Defendants filed on January 23, 2008, the Declarations of Assistant Attorney General Kim S. Murphy ("Murphy") (Doc. No. 61) ("Murphy Declaration"), and Defendant Wagner (Doc. No. 62) ("Wagner Declaration"), and Defendants' Response to Plaintiff's Statement of Facts (Doc. No. 63) ("Response to Plaintiff's Facts Statement"). On March 7, 2008, Plaintiff filed Responses to the Murphy Declaration (Doc. No. 64) ("Plaintiff's Response to Murphy Declaration"), and the Wagner Declaration (Doc. No. 65) (Plaintiff's Response to Wagner Declaration"). Oral argument was deemed unnecessary.
Based on the following, Plaintiff's motion is DENIED; Defendants' motion is GRANTED. The Clerk of the Court is directed to close the file.
According to an Inmate Misbehavior Report ("First Misbehavior Report"),*fn4 on March 24, 2009, at 6:10 P.M., Plaintiff, then incarcerated at Elmira Correctional Facility, was involved in an incident ("the incident") in which Plaintiff repeatedly refused to obey several direct orders from corrections officers. First Misbehavior Report. In particular, Plaintiff, after receiving his evening dose of medication, proceeded toward the correctional facility's "slop sink" for water. Id. Because more than 20 other inmates were "awaiting medical showers," Defendant Cunningham gave three direct orders for Plaintiff to obtain water from the water "spicket" [sic] rather than from the slop sink, but Plaintiff refused each direct order. Id. After Plaintiff ignored Cunningham's third order, Cunningham approached Plaintiff at the slop sink, turned off the water and directed Plaintiff to "lock in," but Plaintiff did not move. Id. Cunningham gave Plaintiff two more orders to lock in and Plaintiff responded to the third order by walking past Cunningham, shoving his right shoulder into Cunningham's chest, causing Cunningham to step backward. Id. Cunningham again ordered Plaintiff to lock in, and Plaintiff then complied. Id. Cunningham then issued the First Misbehavior Report regarding the incident, charging Plaintiff with refusing to obey direct orders, interference, refusal to lock-in, violent conduct and assault. First Misbehavior Report. Following the incident, Defendant Wagner was instructed to supervise Plaintiff's escort to the correctional facility's Special Housing Unit ("SHU"), pending a disciplinary hearing on the First Misbehavior Report. Wagner Declaration ¶¶ 3-4.
According to a second Inmate Misbehavior Report ("Second Misbehavior Report"),*fn5 while being escorted to SHU by Defendant Miles and another correctional officer not named in this action, Plaintiff attempted to pull away from Miles, ignored several direct orders from Miles to stop resisting, and spun around, hitting his head on a wall while trying to run from Miles. Second Misbehavior Report; Wagner Declaration ¶ 4. As a result of Plaintiff's resistance to the escort, Miles placed Plaintiff in a body hold. Id. Miles's left arm was broken during the melee. Second Misbehavior Report. The Second Misbehavior Report charges Plaintiff with disobeying a direct order, physical interference, and violent conduct. Id.
Whether Plaintiff filed a grievance relative to the March 29, 2004 incident is disputed by the parties. In particular, Plaintiff alleges he filed a grievance, which was denied and that the Grievance Officer came to Plaintiff's cell and threatened Plaintiff not to file another grievance. Complaint at 5. Plaintiff maintains he appealed the denial but that the appeal was "forward[ed] back to Elmira" as Plaintiff had been transferred to Collins Correctional Facility ("Collins"). Id. Plaintiff wrote several letters concerning the grievance, including an April 30, 2004 letter to then Elmira IGP Supervisor Sheryl Graubard requesting, pursuant to New York Freedom of Information Law ("FOIL Request"),*fn6 a copy of "Grievance Dated ...