The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff, Omar Osacio, brought the instant action pro se pursuant to 42 U.S.C. § 1983 alleging that his Eighth Amendment rights were violated though: (1) the use of excessive force against him at the Great Meadow Correctional Facility on January 13, 2006; and (2) deliberate indifference to his medical condition, arising from the January 13th incident. Defendants move for summary judgment arguing that: (1) Plaintiff failed to exhaust all available administrative remedies; (2) several Defendants should be dismissed for lack of personal involvement; (3) Defendants are entitled to qualified immunity; (4) there was no excessive force in violation of the Eighth Amendment; (5) Plaintiff's injury did not constitute a serious medical need; and (6) there was no deliberate indifference to Plaintiff's medical needs.
On January 13, 2006 Plaintiff was being returned to his special housing unit (SHU) cell by Defendants Officer Deluke and Officer Beebe. Plaintiff was handcuffed behind his back. A retention strap was used to secure the cuffs. Upon returning Plaintiff to his cell, Plaintiff extended his handcuffed wrists through the feed up port in order for Defendants to remove the handcuffs. The left cuff was removed and Plaintiff turned to his right to see the officers. Defendants ordered Plaintiff to put his arms back out through the feed up port. Plaintiff testifies that, at this point, Defendant Deluke pulled, shook, punched, and scraped Plaintiff's arm against the bars. The retention strap and handcuffs were removed and the incident ended.
Following the incident, a "use of force report" was prepared which reported that Plaintiff resisted returning the cuffs and Defendants took control of Plaintiff's hands until the cuffs were removed by a third officer, Defendant Murray. Control was maintained by pulling on the retention straps with steady continuous tension until the officers were able to grab Plaintiff's hands.
Following the documented use of force, a nurse was directed to Plaintiff's cell to evaluate him. An officer was directed to take photos of Plaintiff's injuries. Plaintiff refused to be evaluated and turned out the lights so that no pictures could be taken. Plaintiff stated that if there was to be a medical exam and pictures taken, he wanted them per his request and he wanted a full medical evaluation.
In the days following the incident, nurses made daily sick call rounds. On January 13th Plaintiff did not complain about any injury to his hand or arm. That day he complained only of a rash on his forehead and dental pain. The following day, Plaintiff made no complaints. On January 15th and 16th, Plaintiff voiced complaints of forearm pain, but the nurse observed no abrasions, swelling, or redness. On January 17th, Plaintiff saw Defendant Nurse Bayer. Plaintiff asked only that a dental appointment be scheduled. Later that day, Plaintiff was escorted to the medical unit for an evaluation. Plaintiff reported right hand and left arm pain. A nurse documented puffiness and bruising in Plaintiff's right hand and two scratches on his left arm. At this time photographs were taken. On January 18th and 19th, Defendant Bayer again saw Plaintiff. He made no complaints referable to his right hand. On January 23rd, Plaintiff again complained of right hand pain. The nurse scheduled a doctor appointment for February 17, 2006. On January 26th, Plaintiff complained to Defendant Bayer of pain and numbness in his hand. She reported that there was no evidence of swelling or of decreased range of motion. Defendant Bayer referred Plaintiff to a physician assistant who saw Plaintiff on January 28th. On January 27th, the nurse on duty noted Plaintiff's complaint of right hand pain and that he was already scheduled to see a doctor. On February 4th, Defendant Nichols saw Plaintiff. He made no complaints of right hand pain. On February 14th, Plaintiff again saw Defendant Nichols. This time Plaintiff complained of right hand pain. On February 17th, Plaintiff was seen by a doctor who ordered an X-ray. The x-ray revealed a healing fracture to the 3rd metacarpal on the right hand. Another doctor appointment was scheduled for March 14th. On March 14th, Plaintiff's doctor reported slight tenderness on the 3rd metacarpal but reported normal range of motion, normal grip strength, and that the fracture was healing. After March 14th, there is no evidence that Plaintiff offered any complaint of pain or problems with his right hand.
Defendants Greene, LeClaire, McLaughlin, Goord, and Daniel were not involved in the use of force or with Plaintiff's medical care. Defendant Pauloano never treated Plaintiff.
Plaintiff filed a grievance claiming he did not promptly receive his x-ray. There is no record of any other grievance or appeal by Plaintiff concerning the facts and circumstances of this lawsuit.
Summary judgment, pursuant to Fed. R. Civ. P. 56(c), is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations ... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations ... of the [plaintiff's] pleading ...."). Rather, "[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." Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at *8 (W.D.N.Y. Mar. 29, 2004) [internal quotations omitted] [emphasis added]. It must be apparent that no rational finder of fact could find in favor of the non-moving party for a Court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) [citation omitted].
When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); seealsoSealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.