The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Pursuant to 42 U.S.C. § 1983, the Plaintiff Abdul Shariff ("Shariff"), an inmate in the New York State Department of Correctional Services ("DOCS") at Five Points Correctional Facility ("Five Points"), is suing the following current or former DOCS employees: Superintendent Thomas Poole ("Poole"), Deputy Superintendent David Napoli ("Napoli"), Lieutenant Brian McCauley ("McCauley"), Lieutenant Peter Ficchi ("Ficchi"), Corrections Officer Frank Rossbach ("Rossbach"), Corrections Officer Michael O'Hara ("O'Hara"), Corrections Officer Lucien Leroux ("Leroux"), and Corrections Officer Tracy Ault ("Ault").
Plaintiff is proceeding pro se and has been granted leave to proceed in forma pauperis. Now before the Court is Defendants' Motion for Summary Judgment. For the reasons stated below, the application is granted in part and denied in part.
As of May 23, 2003, Plaintiff was an inmate at Five Points, a maximum security prison. (Complaint, ¶ 15.) Plaintiff is a paraplegic and wheelchair bound. (Shariff Mem. in Opposition at 2.) On January 1, 2004, Plaintiff became an elected member of the Five Points Inmate Liaison Committee ("ILC"). (Compl. ¶ 21.)*fn1 The ILC is a group of elected inmates who work with the facility administration to address inmate issues. (Shariff Dep. Ex. A at 6.) During January 2004, Plaintiff and other ILC members added "officer brutality on inmates" to the ILC agenda. ILC staff advisor McCauley discouraged this addition, and the officer brutality issue was not included in the finalized agenda. (Shariff Dep. Ex. A at 11, 14-15, 19.) On February 16, 2004, Plaintiff was interviewed by McCauley regarding a letter he had sent to Commissioner Glenn Goord ("Goord"). The letter complained of restrictions placed on the ILC, mainly in terms of the issues that they were allowed to address.
On February 17, 2004, Leroux and another officer entered the ILC office and confiscated a grievance that Plaintiff was typing. (Dep. Ex. A at 21--32). Plaintiff claims Leroux informed him that ILC staff advisor Ficchi had directed staff to review what the ILC inmates were typing. (Shariff Dep. Ex. A at 11, 28, 32.) Following the confiscation, Leroux wrote a misbehavior report, which was later dismissed, and Plaintiff filed a grievance. (Shariff Dep. Ex. A at 29--32.) Plaintiff testified at his deposition that up until that time, ILC inmates had been allowed to type anything they had to type. (Shariff Dep. 27.)
On February 23, 2004, Ault stopped Plaintiff as he was entering his cell and expressed his disapproval of another issue to be raised by the ILC, which involved "illegal swaps" between officers. (Shariff Dep. Ex. A at 33-39.) Plaintiff explains that what he terms an "illegal swap" occurs when two or more corrections officers switch scheduled duties without changing the official schedule. Plaintiff chose to address this issue following alleged assaults on inmates by officers, where the inmates in question claimed to have been assaulted by a particular officer. However, when the complaints were investigated, the inmates were informed that the officer had not been working on the day of the alleged assault. (Shariff Dep. Ex. A at 37.) During the February 23 conversation, Ault told Plaintiff to drop the issue. When Plaintiff refused, Ault threatened him, stating that "being that you's [sic] want to raise that issue, it's war now, officers against the inmates." (Shariff Dep. Ex. A at 34--38.) The exchange was recorded by the facility's video and audio system. Plaintiff addressed the incident in a February 25, 2004, complaint to Superintendent Poole. Poole determined in a March 2, 2004, letter that Ault "was out of order discussing ILC issues with you that had not yet been addressed by the Administration and the ILC. Although I do not interpret his remarks to be threatening, I do consider them to be totally inappropriate." (Shariff Mem. in Opp. Ex. B.)
The ILC was also involved in a program referred to as "Click-Click," in which inmates could have their photographs taken. (Shariff Dep. Ex. A at 61--68) When the "Click-Click" program memorandum was posted, it contained an erroneous statement (inmates may not be photographed while seated). (Shariff Dep. Ex. A at 63.) This discrepancy was discussed with Rossbach, who Plaintiff claims changed the memorandum, as well as with McCauley and Ficchi. The discrepancy was ultimately resolved at the next ILC meeting. (Shariff Dep. Ex. A at 62--68.) Plaintiff maintains that after the "Click-Click" issue, Rossbach and O'Hara harassed him by repeatedly inspecting his folder and pat frisking him. (Shariff Dep. Ex. A at 68--76.)
On June 11, 2004, Plaintiff was given a misbehavior report by Rossbach, claiming that he had been out of place and had lied. (Shariff Dep. Ex. A at 76--77.) Plaintiff claims Rossbach stated that he was writing him up because Plaintiff had written up Rossbach following the "Click-Click" issue. (Shariff Dep. Ex. A at 78.) Plaintiff states that, although the misbehavior report was dismissed the next day, he was held in keeplock for approximately twenty-two hours. (Shariff Dep. Ex. A at 78--81.)
Plaintiff also contends that his cell was searched and "trashed" on March 3, 4, 7, and 15, April 8, May 29, June 7 and 16, July 23, August 4, and September 5 and 10, 2004. (Shariff Dep. at 42--60; Compl. ¶¶ 34, 36, 46, 48, 55.) He filed a grievance regarding the March 3, 2004 and the March 7, 2004 cell searches, and testified at his deposition that the searches were ordered by Napoli. (Shariff Dep. at 43, 59--60, 92.) He also blames Poole, in his supervisory capacity, for the cell searches. (Shariff Dep. Ex. A at 59--60, 92.) Plaintiff alleges that the cell searches were in retaliation for his complaints and grievances, and that the chronology of the events presents evidence of retaliation. (Shariff Dep. Ex. A at 55.) Further, Plaintiff alleges that on June 11, 2004, Defendant Corrections Officer Frank Rossbach ("Rossbach") retaliated against Plaintiff for having written a grievance on June 4, 2004, alleging officer brutality. In that regard, Plaintiff contends that Rossbach wrote a "false misbehavior report charging Plaintiff with two charges.. Plaintiff was found not guilty on both charges" and that Rossbach said, "Well, I'm writing you up because you wrote me up." (Compl. ¶¶ 49, 52; Shariff Dep. 78.) During the summer of 2005, Plaintiff resigned from ILC. (Shariff Dep. Ex. A at 90--91.) Plaintiff left Five Points on March 27, 2006.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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." Fed. R. Civ. P. 56(c). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). Where the non-moving party will bear the burden of proof at trial, "the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 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." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e).
Additionally, when a plaintiff is moving pro se, his pleadings must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the pro se plaintiff must still establish the existence of genuine issues of material fact to survive a motion for summary judgment; the pro se party's "bald assertion," when unsupported by evidence, is insufficient. Lee v. Coughlin, 904 F. Supp. 424, 429 (S.D.N.Y. 1995).
In their Notice of Motion for Summary Judgment (Docket No. 25), filed on May 1, 2007, Defendants included the following language, in conformance with the requirement to "provide the pro se party with notice of the requirements of Rule 56 of the Federal Rules of Civil Procedure, and the consequences of noncomliance therewith.," Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001):
PLEASE BE ADVISED, that pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, when a motion for summary judgment is made and properly supported, you may not simply rely upon the complaint, but you must respond, by affidavits or as otherwise provided in the rule, setting forth further specific facts showing that there are genuine issues of material facts for trial. Any factual assertions in our affidavit will be accepted by the Court as being true unless you submit affidavits or other documentary evidence contradicting our assertions. If you do not respond to the defendants' motion as described above, summary judgment, if appropriate, may be entered against you. If summary judgment is entered against you, your case against the moving parties will be dismissed.
PLEASE BE FURTHER ADVISED, that pursuant to Local Rule 56 of the Western District of New York, you must include a separate, short and concise statement of any material facts as to which you contend there exist a genuine issue for trial. In the absence of such a statement, all material facts set forth in defendants' ...