The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On April 30, 2007, the parties to this action consented to proceed before the undersigned. The matter is presently before the court on Defendants' motion for partial summary judgment (Doc. No. 26), filed June 27, 2008.
Plaintiff Beresford Hall ("Hall" or "Plaintiff"), proceeding pro se, commenced this civil rights action on July 27, 2006, alleging Defendants violated Plaintiff's rights under the Eighth and Fourteenth Amendments in connection with a use of force on June 19, 2005, at Five Points Correctional Facility in Romulus, New York ("Five Points" or "the correctional facility"), where Plaintiff was then incarcerated. Defendants to this action, all employees of New York State Department of Corrections ("DOCS"), include DOCS Correctional Officers ("C.O.") Russell Ayers ("Ayers"), and Robert Bevier ("Bevier"), DOCS Sergeant Keith Gardner ("Gardner"), Five Points Deputy Superintendent David Napoli ("Napoli"), and Five Points Superintendent Thomas Poole ("Poole").
In particular, Plaintiff alleges that on June 19, 2005, Defendants Ayers and Bevier approached Plaintiff's cell and advised they would conduct a search of Plaintiff's cell. Plaintiff maintains Bevier used excessive force in removing Plaintiff from his cell and assaulted Plaintiff, while handcuffed, without any provocation, and that Defendant Ayers, who witnessed the excessive force and assault, failed to intervene on Plaintiff's behalf. Plaintiff, who is African-America, alleges his race was the motivating factor for the assault, asserting that there exists within DOCS facilities a pattern of frequently assaulting black inmates, but not white inmates. Plaintiff further alleges that following the assault, Defendants Gardener, Napoli and Poole conspired to conceal the assault by filing a false misbehavior report ("the misbehavior report"), and by falsifying statements concerning the severity of the injuries Plaintiff sustained as a result of such use of force. Plaintiff's claims of excessive force, assault and failure to intervene allege violations of the Eighth Amendment against Ayers and Bevier, while Plaintiff's claims of a false misbehavior report and other false statements allege violations of Fourteenth Amendment due process, and Plaintiff's conspiracy claim alleges a violation of 42 U.S.C. § 1985(3).*fn2 Defendants' answer (Doc. No. 9), was filed April 4, 2007.
On June 27, 2008, Defendants filed the instant motion (Doc. No. 26) ("Defendants' motion") seeking partial summary judgment on Plaintiff's claims of conspiracy and due process based on the filing of the alleged false misbehavior report. Defendant's motion is supported by a Statement of Undisputed Facts in Support of Defendants' Motion for Partial Summary Judgment (Doc. No. 27) ("Defendants' Statement of Facts"), the Declarations of Robert Bevier (Doc. No. 28) ("Bevier Declaration"), Russell Ayers (Doc. No. 29) ("Ayers Declaration"), Keith Gardner (Doc. No. 30) ("Gardner Declaration"), David Napoli (Doc. No. 31) ("Napoli Declaration"), and Thomas Poole (Doc. No. 32) ("Poole Declaration"), and a Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment (Doc. No. 33) ("Defendants' Memorandum"). In opposition to Defendants' motion, Plaintiff filed on August 7, 2008, a Memorandum of Law in Support of Opposition to Defendant's [sic] Motion for Partial Summary Judgment (Doc. No. 36) ("Plaintiff's Response"), the Declaration of Plaintiff Beresford Hall in Support of a [sic] Opposition to Defendant's [sic] Motion for Partial Summary Judgment (Doc. No. 37) ("Plaintiff's Declaration"), attached to which are Plaintiff's exhibits A though J ("Plaintiff's Exh(s). __"), and a Statement of Material Facts in Dispute in Support of Opposition to Defendant's [sic] Motion for Partial Summary Judgment (Doc. No. 38) ("Plaintiff's Statement of Facts"). Defendants did reply in further support of Defendants' motion. Oral argument was deemed unnecessary.
Based on the following, Defendant's motion is GRANTED.
Defendants seek summary judgment of Plaintiff's conspiracy and false misbehavior report claims. Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322. Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).
Vague assertions supported only by self-serving statements in the nonmoving party's affidavit are insufficient to defeat a properly supported summary judgment motion. Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1292 (2d Cir.), cert. denied, 419 U.S. 1022 (1974). "The non-moving party may not rely on conclusory assertions or unsubstantiated speculation [to defeat summary judgment]." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, "the non-movant must produce specific facts indicating that a genuine factual issue exists." Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998) (underlining added). The ultimate inquiry on a summary judgment motion is whether any reasonable jury could find the plaintiff's evidence meets the requisite burden of proof. Amnesty America v. Town of West Hartford, 361 F.3d 113, 122-23 (2d Cir. 2004).
Defendants are alleged to have violated Plaintiff's civil rights under 42 U.S.C. § 1983, pursuant to which an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. Plaintiff's claim that Defendants conspired to ...