The opinion of the court was delivered by: Scullin, Senior Judge
Currently before the Court are Plaintiff's objections to Magistrate Judge DiBianco's March 12, 2009 Report-Recommendation in which he recommended that this Court grant Defendants' motion for summary judgment dismissing Plaintiff's claims against Defendants in their official capacities and deny the motion in all other respects. See Dkt. No. 76. On April 20, 2009, Plaintiff objected only to the portion of the Report-Recommendation in which Magistrate Judge DiBianco recommended that this Court grant partial summary judgment as to his claims against Defendants in their official capacities.
Plaintiff pro se filed this action under 42 U.S.C. § 1983, alleging violations of his civil rights resulting from an incident that occurred on April 20, 2003, while he was incarcerated at Auburn Correctional Facility.
Specifically, Plaintiff alleges that, at approximately 8:45 p.m., he and several other inmates were crossing from the North Recreation Yard to the South Recreation Yard. See Amended Complaint at 4. Plaintiff claims that Defendant Wright and ten other officers stopped him and "placed him on the wall" for a pat-frisk and that Defendant Koziol placed him in handcuffs. See id. at 4-4.1.
Thereafter, Defendant Withers allegedly told Defendant Koziol not to "do anything in the yard," but to "wait until you take him back to his block." See id. Plaintiff alleges that Defendants Koziol and Withers then escorted him to a "feed-up" room, not his assigned block. See id. at 4-1. Plaintiff claims that, once inside, Defendant Koziol punched him several times in the chest. See id. Plaintiff also contends that Defendant Koziol ordered Defendant Wright to "beat [Plaintiff] down" and that, thereafter, Defendant Wright punched Plaintiff in the face until Defendant Koziol saw his eyes begin to bleed. See id. Upon seeing the blood, Defendant Koziol told Defendant Wright not to hit Plaintiff in the face anymore, but to hit him in the body where the marks would be less visible. See id.
After the incident, Plaintiff alleges that Defendant Koziol told him not to tell anyone or he would "bury" him under the jail and take other disciplinary actions against him. See id. Plaintiff was silent when asked if he understood, and Defendant Kuc pulled Plaintiff's beard and ordered him to respond to Defendant Koziol. See id. Plaintiff asserts that Defendants Koziol, Kuc, Wright, and Davis were all watching at the door while the incident occurred. See id. Plaintiff alleges that, while he was walking back to his cell, Defendant Davis told the others that they had not "killed" the "terrorist" yet and asked why Plaintiff was still able to walk. See id. Defendant Davis then told the other Defendants that they should break Plaintiff's legs and arms. See id.
During Plaintiff's deposition, he was asked to describe the events of April 20, 2003; and, in response, he provided some additional background facts that he had not included in his amended complaint. Plaintiff testified that, on April 20, 2003, Defendant Wright stopped at his cell at approximately 5:30 a.m. to threaten him because he filed grievances and because he was a "terrorist." See Transcript of Deposition of Mohammed Bhuiyan dated February 13, 2008 ("Bhuiyan Tr."), at 28. Further, Plaintiff asserted that, during the incident, when he started to bleed because of Defendant Wright's assault to his face, Defendant Koziol wiped blood from Plaintiff's eyes with Plaintiff's kufi -- a religious head covering. See id. at 34-35.
Defendants Withers, Davis, and Kuc filed a motion for partial summary judgment, claiming that (1) the Eleventh Amendment barred Plaintiff's claims against them in their official capacities; (2) Plaintiff failed to allege any constitutional violations against them; and (3) they were entitled to qualified immunity. Magistrate Judge DiBianco recommended that this Court grant the motion for partial summary judgment insofar as Plaintiff attempted to sue Defendants in their "official capacities." See Dkt. No. 76. Magistrate DiBianco explained that a plaintiff cannot sue the state itself under § 1983, and that "[a]n action against state officers in their official capacity is tantamount to an action against the state." See id. at 9 (citing Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 & n.1 (2d Cir. 1991) (citation omitted)).
Plaintiff appears to object to the Court's dismissal of his claims against Defendants in their official capacities on the ground that he sued Defendants in both their individual and official capacities. See Dkt. No. 79 at 1. Plaintiff also appears to object to the portion of the Report-Recommendation in which Magistrate Judge DiBianco treated all three of Plaintiff's causes of action as a single claim for excessive force.*fn1
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (citations omitted). This absolute immunity extends to both state agencies and state officials sued for damages in their official capacities, when the essence of the claim involved is one against a state as the real party in interest. See Richards v. State of New York App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed. 2d 694 (1982)) (other citation omitted). "To the extent that a state official is sued for damages in his official capacity . . . the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993) (citations omitted).
The law is clear that the Eleventh Amendment bars a § 1983 suit for money damages against a state official in his official capacity. Therefore, the Court concludes that Magistrate Judge DiBianco correctly applied the law in recommending the dismissal of Plaintiff's claims against Defendants in their official capacities. Accordingly, the Court grants Defendants Withers, Davis, and Kuc's motion for partial summary judgment and dismisses Plaintiff's claims against them in their official capacities.*fn2
Although Magistrate Judge DiBianco treated all three causes of action as a single claim for excessive force under the Eighth Amendment, liberally reading Plaintiff's complaint, it appears that in the first cause of action he is alleging that Defendants violated his right to equal protection by treating him differently than other similarly situated inmates. In other words, he alleges that Defendants used excessive force against him because of his religion. In his second and third causes of action, Plaintiff appears to be alleging Eighth Amendment excessive force claims -- the second causes of action against those Defendants who participated in the beating and the third cause of action against those Defendants who could have, but did not intervene to stop the beating. The Court notes that there is nothing in ...