The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
MEMORANDUM OPINION & ORDER
Plaintiff Roger Andrews ("Andrews") brings this action against Defendants Eddie Cruz ("Cruz"), Jose Padilla ("Padilla") and Thomas Lavan*fn1 ("Lavan") asserting claims under 42 U.S.C. § 1983 for conspiracy to assault, assault, failure to prevent assault and inadequate medical care. Andrews alleges that the Defendants, current and former New York Department of Correctional Services ("DOCS") corrections officers, conspired to, and did, assault him in violation of his constitutional rights when he was incarcerated at the Fulton Correctional Facility ("Fulton") in the Bronx, New York.
Andrews filed his Complaint on January 23, 2003.*fn2 The Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Ronald Ellis on March 30, 2004. On May 4, 2009, all three Defendants filed separate motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. As grounds for the motions, Defendants argue that Andrews failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e et seq. On March 9, 2010, Magistrate Judge Ellis issued a Report and Recommendation (R&R) recommending that the Court deny the motions for summary judgment. The Court has reviewed the R&R and Cruz's, Lavan's and Padilla's timely objections.*fn3 For the reasons that follow, the Court adopts Magistrate Judge Ellis' findings and recommendations. The Defendants' motions for summary judgment are denied.
In early 2001, Andrews was a participant Fulton's Day Reporting Program (the "Program"). As part of the Program, Andrews lived in a private residence and reported to Fulton on scheduled dates. In February, 2001, Cruz began harassing Andrews based on his race and Andrews complained about the harassment to Cruz's supervisor, Sergeant Holmes ("Holmes"). At Holmes' direction, Andrews filed a written complaint concerning the harassment with Fulton's Deputy Supervisor of Security on April 19, 2001.
On April 21, 2001, Andrews reported to Fulton as scheduled. Cruz had Andrews submit to a drug test which was administered by Padilla. The test came back positive for opiate use and Andrews was ordered to be confined in the Special Housing Unit ("SHU"). Andrews, however, spoke with Holmes and challenged the test results. When Holmes conducted a drug test on Andrews the following day, the results came back negative.
As Cruz and Padilla were escorting Andrews to the SHU, Cruz allegedly punched Andrews in the face and said "[d]o you think I don't know about you complaining to my superior officers about me you bitch ass nigger." (Compl. ¶ 31.) Andrews, Cruz and Padilla were met at the SHU by Lavan. As Andrews was led towards a cell, one of the Defendants allegedly punched him in his face from behind and he fell to the ground. Once he was on the ground, the Defendants proceeded to kick and punch Andrews in his head, back, ribs and groin. After the beating, Andrews was taken to a cell in the SHU where Cruz told him, "you can either hold down that beating or take a charge of assault on an officer. If I hear anything about this from anyone they'll find you hanging in an empty cell." (Id. ¶ 37.)
The morning after the attack, a corrections officer noticed Andrew's injuries and permitted him to remain in bed. In light of Cruz's threat, Andrews was too afraid to ask the officer for medical assistance. When his pain did not subside, however, Andrews requested medical assistance from a female officer. Andrews told the officer about the assault, but asked her not to tell anyone. The officer nevertheless told prison officials about the assault and Andrews was taken to the Fulton nurse and then to an outside hospital for treatment. The female officer asked Andrews to file a formal grievance, and when Andrews returned from the hospital, he filed a formal grievance concerning the assault and requested that he be transferred to another facility. (Grievance, Declaration of Meredith Shaw ("Shaw Decl."), Ex. I.)
Andrew's grievance was forwarded to Fulton's acting Superintendent, Terrance McElroy ("McElroy"). McElroy interviewed Andrews and conducted a walk-through of the area where the alleged assault took place. After the interview, McElroy apologized to Andrews and told him that his request for a transfer would be honored. At some point, Lieutenant Lawson ("Lawson") conducted an internal investigation into the alleged assault. Following Lawson's investigation, McElroy wrote a letter to the Deputy Inspector General of DOCS requesting an investigation and stating, "I do not concur with the investigation conducted, and feel, based on further investigation that there is something to this complaint. I'm requesting immediate transfer to another facility for the safety of the inmate who has expressed fear of retaliation from staff." (Letter from McElroy to Deputy Inspector General dated April 27, 2001, Shaw Decl., Ex. J.)
Days after Andrews filed his grievance, he was transferred to Sing Sing Correctional Facility ("Sing Sing"). Shortly after arriving at Sing Sing, David Holland ("Holland"), an investigator with DOCS Inspector General's Office, interviewed Andrews. Holland told Andrews not to speak about the assault since Cruz had connections at Sing Sing.
In 2002, Padilla left DOCS, and Cruz was terminated in 2003. Andrews believes that the two officers left DOCS because of the investigation into his assault. Ultimately, Andrews never received a written decision on his grievance from McElroy or anyone else.
II. The PLRA and Magistrate Judge Ellis' R&R
The PLRA states that "[n]o action shall be brought with respect to prison conditions under... [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general ...