The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Karo Brown alleges that Defendants Robert Outhouse (who at the time of the alleged incident was the Sheriff of Cayuga County), Deputy Scott Walborn of the Cayuga County Jail, and two or more unnamed officers violated his rights under the United States Constitution and New York state law by using excessive force on him, denying him prompt medical care, and conducting a procedurally flawed disciplinary hearing*fn1. Currently pending before the Court is Defendants' motion for summary judgment. (Dkt. No. 39.) For the reasons that follow, I recommend that Defendants' motion be granted.
I. FACTUAL AND PROCEDURAL HISTORY
In 2004, Plaintiff was detained at Cayuga County Jail pending trial on federal charges.*fn2
(Dkt. No. 1 at ¶ 5.) Cayuga County Jail has a rule prohibiting the harboring of food. (Dkt. No. 39-5 ¶ 6.) This rule is set out in the inmate handbook, which Plaintiff received prior to November 15, 2004. Id.
On November 15, 2004, Defendant Custody Deputy Scott Walborn was "made aware that [Plaintiff] had been recorded by security cameras hiding objects under the table at which he was eating lunch." (Dkt. No. 39-4 ¶ 4.) Along with several other officers, he entered the lunch room to investigate. Id. Defendant Walborn ordered Plaintiff to pack up his lunch tray and prepare to be removed from the area. (Dkt. No. 39-4 ¶ 5.) Defendant Walborn then investigated the table where Plaintiff had been sitting and discovered salt and pepper packets in the cracks underneath the table. (Dkt. No. 39-4 ¶ 6.)*fn3
Defendant Walborn declares that Plaintiff "became verbally combative and turned toward me in a manner that I perceived as hostile." (Dkt. No. 39-4 ¶ 7.) According to Defendant Walborn, Plaintiff said "you don't mean shit to me... you can't do nothing to me... fuck you." (Dkt. No. 39-4 ¶ 8.) Defendant Walborn declares that Plaintiff was carrying a plastic food tray in his right hand and that he gripped and brandished an unidentified object in his left hand. (Dkt. No. 39-4 ¶ 9.) Defendant Walborn "decided that the situation called for restraining [Plaintiff] for his safety and the safety of the other officers." (Dkt. No. 39-4 ¶ 10.) Defendant Walborn declares that he "approached [Plaintiff] from behind and grabbed his left wrist. I then leaned him forward onto the lunch tray cart to apply handcuffs. However, the wheeled lunch tray cart rolled several feet*fn4 into the wall ahead. The cart approached the wall in a slow and steady manner, and at no point was [Plaintiff] thrown or shoved into the wall." (Dkt. No. 39-4 ¶ 11.) Defendant Walborn declares that "[a]fter the cart stopped rolling, using minimal force I put [Plaintiff] on the ground, rolled him onto his chest, and applied handcuffs." (Dkt. No. 39-4 ¶ 12.) As he was handcuffing Plaintiff, he determined that the object in Plaintiff's left hand was an eating utensil. (Dkt. No. 39-4 ¶ 14.) After Plaintiff was handcuffed, Plaintiff "rose to his feet" and was escorted away from the area. (Dkt. No. 39-4 ¶ 17.) As he was being moved, Plaintiff "continued to make verbal threats" against Defendant Walborn and the other officers, such as "I will get you all." (Dkt. No. 39-4 ¶ 18.)
Defendant Walborn declares that he never physically struck or kicked Plaintiff, pushed his face into the wall, or injured his lip. (Dkt. No. 39-4 ¶¶ 15, 19.) Lt. John Mack, who observed the incident contemporaneously on a security camera, declares that he did not "witness any injury or force used against [Plaintiff] other than that which was necessary to accomplish placing handcuffs on him. At no time did I witness any other corrections officer push [Plaintiff]'s face into the wall or injure him in any way." (Dkt. No. 39-5 ¶ 8.)
Plaintiff's version of the events is quite different. He denies confronting Defendant Walborn or showing any signs of aggression. (Dkt. No. 43 at 3.) He testified at his deposition that Defendant Walborn "slammed" him into the cart once, "slammed" him onto the floor once, and then placed him against the wall so hard that he banged his head and "busted" his lip. (Dkt. No. 39-2 at 30:7-23.)
Defendants have submitted security video of the incident.*fn5 This video, which does not have audio, does not fully support either party's description of the incident. The video shows that Plaintiff had packed up his tray before Defendant Walborn approached, placing his trash and remaining food on a bottom tray and then covering it with another tray. He did not, however, place his brightly colored eating utensil on the bottom tray. Rather, he placed it on the table to the right of his tray. He then stood up and drank some milk. He was walking away from the table with the tray in his left hand and the eating utensil on top of the tray when Defendant Walborn approached. Defendant Walborn pointed in the direction of the tray cart and then proceeded to check under the table where Plaintiff had been sitting. Plaintiff, meanwhile, continued in the direction of the tray cart. He looked over his shoulder in Defendant Walborn's direction three times, apparently saying something to Defendant Walborn each time. The second time he looked and spoke, he transferred the tray to his right hand and the eating utensil from the top of the tray to his left hand. Although Lt. Mack declares that this constituted "brandishing" the eating utensil (Dkt. No. 46-1 ¶ 4), a reasonable juror could conclude that this characterization is not apt.*fn6 Plaintiff did not at any point stop moving toward the tray cart or turn his body in Defendant Walborn's direction. Immediately after the third time Plaintiff turned his head to look at him, Defendant Walborn approached Plaintiff from behind and bent him forward onto the tray cart. The cart moved forward several feet into a wall, sending Plaintiff's head into the wall. When the cart moved, Plaintiff was leaning forward onto the cart with Defendant Walborn's right hand on his neck and Defendant Walborn's left hand on his left shoulder. Defendant Walborn took several stutter steps when the cart first moved rather than maintaining a smooth walking flow as one would expect if he intended to move the cart.*fn7 When the cart came to a rest, Defendant Walborn and several officers moved Plaintiff to the floor, restrained him, and then pulled him to his feet again. The entire incident, from Defendant Walborn's first physical contact with Plaintiff to the time that Plaintiff was raised to his feet, lasted less than fifty seconds.
Lt. Mack escorted Plaintiff to segregated housing ("the RHU"). (Dkt. No. 39-4 ¶ 20.) Lt. Mack declares that when he assumed custody of Plaintiff to escort him to the RHU, he "noticed no injury to his person" and did not "observe him to be in any pain or to be experiencing any significant discomfort." (Dkt. No. 39-5 ¶ 9.)
Plaintiff alleges that he "did not eat any food while he was in solitary confinement because he had requested... medical attention." (Dkt. No. 1 at ¶ 20.) Plaintiff alleges that he did not receive any medical attention until two or three days later. (Dkt. No. 1 at ¶ 20.) However, Jackie Chadwick, a registered nurse employed at the Cayuga County Jail, declares that she personally examined Plaintiff at sick call on the day after the incident. (Dkt. No. 39-3 ¶ 4.) Plaintiff's medical records from the Cayuga County Jail support Nurse Chadwick's assertion. Plaintiff told Nurse Chadwick that he had been in an altercation with corrections officers on the previous day and that he had injuries to his left shoulder, right jaw area, the right side of his neck, and the back of his neck. (Dkt. No. 39-3 ¶¶ 5-6.) Upon examination, Nurse Chadwick noted a "small abrasion" above Plaintiff's right eye, a "very small scratch" on Plaintiff's right wrist, a "small scratch" on Plaintiff's left upper inner arm, and a "small scratch" on the back of Plaintiff's neck. (Dkt. No. 39-3 ¶ 7.) There was "minimal swelling" to Plaintiff's left jaw, just below his ear. There were no cuts, scrapes, or bruises in that area. (Dkt. No. 39-3 ¶ 9.) There was no obvious trauma, injury, or deformity to Plaintiff's left shoulder and no evidence of swelling or bruising. (Dkt. No. 39-3 ¶ 8.) Nurse Chadwick did not report any injury to Plaintiff's lip. Nurse Chadwick concluded that Plaintiff required only observation, not treatment. (Dkt. No. 39-3 ¶ 11.)
On December 14, 2004, Plaintiff was brought to the infirmary complaining of a dislocated left shoulder. (Dkt. No. 39-3 ¶ 13.) He said this had occurred due to contact with a metal cart. Id. Upon examination, the doctor found that Plaintiff's left shoulder exhibited full range of movement. Id. The doctor prescribed Advil as needed for discomfort. Id. Based upon her review of Plaintiff's medical file, Nurse Chadwick declares that Plaintiff "had no further medical complaints between December 14, 2004, and his transfer out of [Cayuga County Jail] the following year." (Dkt. No. 39-3 ¶ 14.)
As a result of the incident, Defendant Walborn issued a misbehavior report charging Plaintiff with failing to follow orders, physically and verbally obstructing or interfering with staff, storing or hoarding food, and making threats to staff. (Dkt. No. 39-4 at 7.) As Plaintiff notes in his opposition (Dkt. No. 43 at 4), although the misbehavior report written on the day of the incident states that Plaintiff had "a lunch tray in his hand," it does not mention that Plaintiff was holding an eating utensil in his left hand. Id. It was not until he prepared an incident report two weeks later that Defendant Walborn mentioned the eating utensil. (Dkt. No. 39-4 at 9.) Indeed, no report prepared on the day of the incident mentions the utensil. (Dkt. No. 39-5 at 9 (Radell report); Dkt. No. 39-5 at 15 (Purcell report); Dkt. No. 39-5 at 11 (Campanello report).) However, several of the reports written two weeks later do mention the utensil. (Dkt. No. 39-5 at 12 (Babcock report); Dkt. No. 39-5 at 18 (Gleason report).)
Sometime after Defendant Walborn filed the misbehavior report, Plaintiff was "required to appear at a disciplinary hearing without any prior notice of the disciplinary hearing." (Dkt. No. 1 at ¶ 14.) At the hearing, Plaintiff asked to call other prisoners to testify as eyewitnesses, but the hearing officer denied the request. (Dkt. No. 1 at ¶ 22-23.) Plaintiff was then "kept in solitary confinement status for a couple of months." (Dkt. No. 1 at ¶ 23.) In his opposition to the motion for summary judgment, Plaintiff states that he was in solitary confinement for sixty to ninety days. (Dkt. No. 43 at 8.) The record does not include any other information about Plaintiff's disciplinary hearing and subsequent disciplinary confinement.
Plaintiff filed his complaint in this action on November 2, 2007, claiming that Defendants violated his rights under the United States Constitution and New York state law. (Dkt. No. 1 at 1.) Plaintiff alleges that he still suffers great pain and stiffness and believes that he risks permanent disability in his left shoulder if he is not promptly provided with physical therapy. (Dkt. No. 1 at ¶¶ 27, 29.) He requests 10 million dollars in damages. (Dkt. No. 1 at 7.)
On January 15, 2009, I recommended that Plaintiff's state law claims be dismissed as barred by the statute of limitations and that Plaintiff's medical care claims against Defendants Walborn and Outhouse be dismissed for lack of personal involvement. (Dkt. No. 21.) On June 10, 2009, Judge Sharpe adopted my recommendation in part and ordered that Plaintiff's state law claims and the medical care claim against Defendant Walborn be dismissed. He found, however, that the complaint adequately alleged that Defendant Outhouse was personally involved in the alleged denial of medical care and therefore ordered that the claim survive Defendants' motion to dismiss. (Dkt. No. 27.)
Thus, the following claims proceeded to discovery: (1) an excessive force claim against Defendant Walborn; (2) a procedural due process claim against Defendant Walborn; and (3) a medical care claim against Defendant Outhouse. Discovery closed on November 12, 2009. (Dkt. No. 36.)
On January 11, 2010, Defendants moved for summary judgment of the remaining claims. (Dkt. No. 39.) On February 10, 2010, Plaintiff requested, and I granted, an extension of time in which to respond to the motion. Plaintiff's extension request did not mention a need for further discovery. (Dkt. No. 40.) On March 1, 2010, Plaintiff wrote to the Court seeking assistance with obtaining discovery from Defendants in order to oppose the motion for summary judgment. Specifically, Plaintiff requested an order directing the warden of U.S.P. Canaan to take pictures of his shoulder, an order directing the psychology department to release Plaintiff's records, and an order directing the medical department to give Plaintiff copies of his medical records. (Dkt. No. 42.) On March 12, 2010, I issued an order directing Plaintiff to respond to four portions of Defendants' motion for summary judgment without receiving further discovery: (1) the argument that Plaintiff failed to exhaust his administrative remedies; (2) the argument that there ...