The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On March 20, 2008, 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 Defendants' motion for summary judgment (Doc. No. 144), filed August 7, 2008.
Plaintiff Larry Porter ("Plaintiff" or "Porter"), proceeding pro se, commenced this civil rights action on July 13, 2004, while incarcerated at Southport Correctional Facility ("Southport" or "the correctional facility"), in Pine City, New York, alleging Defendants, all employees of New York State Department of Correctional Services ("DOCS"), including DOCS Commissioner Glenn S. Goord ("Goord"), DOCS Director of Special Housing Unit ("SHU") Donald Selsky ("Selsky"), DOCS Inmate Grievance ("IG") Investigator Todd , "I.G." ("Todd"), Southport Superintendent Michael P. McGinnis ("McGinnis"), DOCS Lieutenant and Hearing Officer Richard Donahue ("Donahue"), DOCS Captain James P. Waite ("Waite"), DOCS Lieutenant Richard W. Strong ("Strong"), DOCS Sergeant Gary P. Morse ("Morse"), Registered Nurse Connie Demeritt ("Nurse Demeritt"), Corrections Officer ("C.O.") Paul H. Weed ("Weed"), C.O. Peter A. Mastrantonio, Jr. ("Mastrantonio"), and C.O. Joel W. Armstrong ("Armstrong"), violated Plaintiff's Fourteenth Amendment due process rights in connection with a December 24, 2002 altercation at Southport, and the related Tier III Superintendent's Hearing ("the disciplinary hearing") held on January 9, 2003. In a Memorandum and Order filed October 15, 2004 (Doc. No. 4) ("October 15, 2004 Order), District Judge John T. Elfvin dismissed for failure to state a claim all due process claims with prejudice,*fn1 with the exception of those due process claims relative to the disciplinary hearing which were dismissed without prejudice and with leave to replead by November 13, 2004. October 15, 2004 Order at 7.
On November 3, 2004, Plaintiff filed an amended complaint. (Doc. No. 5) ("Amended Complaint"), naming as the sole Defendant Donahue whom Plaintiff alleged engaged in numerous violations of Plaintiff's due process rights with regard to the January 9, 2003 disciplinary hearing, yet Plaintiff failed to allege, as required, that as a result of the due process violations, he suffered any deprivation or punishment posing an "atypical and significant hardship" in relation to the ordinary conditions of his confinement. Sandin v. Connor, 515 U.S. 472, 484 (1995). October 15, 2004 Order at 5. On December 19, 2002, the undersigned granted Plaintiff's motion to file a further amended complaint (Doc. No. 32), which was filed that same date (Doc. No. 34) ("Second Amended Complaint"). The Second Amended Complaint names as Defendants Goord, Selsky, Todd, McGinnis, Waite, Strong, Morse, Weed, Mastrantonio, Armstrong, Donahue, and Demeritt (together, "Defendants"), and alleges claims for retaliation, excessive force, failure to protect, failure to provide adequate medical care, and due process violations, in violation of the First, Eighth and Fourteenth Amendments, but discontinues his earlier asserted claims for negligence and assault under New York common law. Second Amended Complaint ¶ 1.
On August 7, 2008, Defendants filed the instant motion seeking summary judgment (Doc. No. 144) ("Defendants' motion"), supported by the Declaration of Assistant Attorney General David J. State ("State") (Doc. No. 145) ("State Declaration"), with attached exhibits A and B ("Defendants' Exh(s). __"), the Declaration of DOCS Commissioner Glenn S. Goord (Doc. No. 146) ("Goord Declaration"), a Statement of Undisputed Facts (Doc. No. 147) ("Defendants' Facts Statement"), and a Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. No. 148) ("Defendants' Memorandum"). In opposition to Defendants' motion, Plaintiff filed on September 19, 2008, the Affidavit of Larry Porter (Doc. No. 151) ("Plaintiff's Affidavit"), a Memorandum of Law (Doc. No. 152) ("Plaintiff's Memorandum"), and a Statement of Undisputed Facts (Doc. No. 153) ("Plaintiff's Facts Statement"). In further support of summary judgment, Defendants filed on October 10, 2008, the Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment (Doc. No. 154) ("Defendants' Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendants' motion is GRANTED.
On December 24, 2002, at 8:15 A.M., Plaintiff, then incarcerated at Southport, was in his cell when Defendants Mastrantonio, Weed, Armstrong and Morse opened Plaintiff's cell door to remove Plaintiff for exercise. Use of Force Report*fn3 at Bates No. 0774. After Plaintiff was cuffed and his cell door opened in preparation for the escort to Southport's exercise yard, Plaintiff kicked Mastrantonio in the left knee. Id. Defendants Mastrantonio and Armstrong pushed Plaintiff back into the cell and onto the bed, and Weed entered the cell to assist in gaining control of the "violently struggling" Plaintiff, who was biting, kicking and striking at staff. Unusual Incident Report*fn4 at Bates No. 0770; Use of Force Memorandum*fn5 at Bates No. 0780. Plaintiff kicked at Weed and Mastrantonio, broke a set of handcuffs and attempted to bite Mastrantonio, defying orders to stop fighting and resisting. Use of Force Report at 0774; Disciplinary Hearing T.*fn6 at Bates No. 0815; Unusual Incident Report at Bates No. 0770; Use of Force Memorandum at Bates No. 0780. To subdue Plaintiff, Weed struck Plaintiff with a baton, hitting him once in the right leg and twice in the left leg, finally gaining control of Plaintiff's right arm, while Armstrong, using his fist, struck Plaintiff three times in the fact to avoid being bitten, and twice in the torso. Use of Force Report at Bates No. 0777; Unusual Incident Report at Bates No. 0770; Use of Force Memorandum at Bates No. 0780; Disciplinary Hearing T. at Bates 0815. Mastrantonio, Armstrong and Weed used body holds to gain control of Plaintiff while handcuffs, a waist chain and leg restraints were applied. Id.
Plaintiff was then escorted to the A-Galley shower where Plaintiff initially refused to exit the shower and have his clothing removed by security to permit examination of his injuries by Southport's medical staff. Use of Force Report at 0777; Unusual Incident Report at Bates No. 0775. Porter eventually, at 10:30 A.M., was removed from the shower area, his clothing cut off, and examined by Nurse Demeritt of Southport's medical staff, who reported Plaintiff sustained a "tiny superficial cut on nose," left eye redness, four cuts on his left leg, and "obvious" left-side facial swelling. Use of Force Report at Bates No. 0777; Unusual Incident Report at Bates No. 0771, 0775.
Nurse Demeritt also examined Armstrong, Mastrantonio, and Weed. Unusual Incident Report at Bates No. 0770-71. Armstrong had low back pain. Id. Mastrantonio had pain in his right hand with small knuckle abrasions, and pain in his left knee. Id. Weed had a small cut on his left knuckle. Id. at Bates No. 0771. Despite their minor injuries, Armstrong, Mastrantonio and Weed all remained on duty, while Plaintiff was taken for further eye and facial examination to the emergency room where X-rays of his face were negative. Id. at 0771-75.
After the altercation, Plaintiff was charged on December 24, 2002, in an Inmate Misbehavior Report ("Misbehavior Report")*fn7 with violating numerous correctional facility rules, including DOCS Rules 100.11 (assault on staff), 104.11 (violent conduct), 107.10 (interference with employee), 106.10 (refusing a direct order), and 116.10 (destruction of state property). A Tier III disciplinary hearing held regarding the Misbehavior Report commenced on January 9, 2003, and concluded on January 14, 2003. Based on the Misbehavior Report, and the testimony of Armstrong, Mastrantonio, Morse and Weed, and review of the cell-block video tape that showed Plaintiff kicking and violently struggling against the correctional officers' attempt to restrain Plaintiff, refusing to obey direct orders, breaking handcuffs and attempting to bite a correctional office, Defendant Hearing Officer Donahue found Plaintiff guilty on all counts. Disciplinary Hearing T. at Bates No. 0842. Donahue sentenced Plaintiff to 24 months in SHU, 12 months recommended loss of good time credit, and 35 days of restricted diet, and ordered restitution in the amount of $17.50 for the broken handcuffs. Id.