The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge.
MEMORANDUM OPINION & ORDER
Pro se Plaintiff Willie Butler ("Butler"), an inmate at Sing Sing Correctional Facility ("Sing Sing"), brings this action under 42 U.S.C. § 1983 against Correction Officers Julio Gonzalez ("Gonzalez") and Jean Richard ("Richard") (together, "Defendants") claiming that his Eighth Amendment right to be free from cruel and unusual punishments was violated when Gonzalez beat him in a secluded stairwell at Sing Sing while Richard looked on, laughed and hurled insults. Butler also claims that Defendants violated his Eighth Amendment rights by denying him medical care after the beating. He seeks damages and an order removing Defendants as employees of the New York State Department of Correctional Services.
After exhausting his administrative remedies, Bulter commenced this action on March 3, 2009. The Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Theodore Katz on March 15, 2009. At the conclusion of discovery, Defendants moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on January 21, 2010. They argue that Butler's story, which is only supported by his deposition testimony, is so fanciful and inconsistent that no reasonable juror could find in his favor. Defendants also contend that Butler's excessive force claim fails because, even accepting his version of events as true, his injuries are de minimis. On May 18, 2010, Magistrate Judge Katz issued a Report and Recommendation ("R&R") recommending that the Court deny Defendants' motion for summary judgment. Defendants moved for reconsideration on June 10, 2010, and Magistrate Judge Katz denied the motion in an opinion and order ("Reconsideration Order") dated July 15, 2010. Defendants submitted timely objections to the R&R on August 10, 2010. The Court has reviewed the R&R, the Reconsideration Order and Defendants' objections. For the reasons that follow, the Court adopts Magistrate Judge Katz's findings and recommendations. Defendants' motion for summary judgment is DENIED.*fn1
A. January 2, 2009 Incident
Butler is incarcerated at Sing Sing, where Defendants work as corrections officers. According to Butler's deposition testimony, he called his wife from a telephone located near the Sing Sing gym in the early evening hours of January 2, 2009. While inmates are typically allotted 30 minutes of phone usage, a recently hired corrections officer named "Ms. Simpson" ("Simpson") told Butler that he could only use the phone for 15 minutes. (Butler Dep. at 35-36.) As Butler explained Sing Sing's phone policy to Simpson, Richard appeared and told Butler to stand against the wall. After momentarily leaving the area, Richard returned with Gonzalez.
Butler testified that Richard and Gonzalez took him "outside the gate" to secluded area near the back stairwell. Once out of Simpson's sight, Gonzalez asked Butler whether he had a "problem with Miss Officer." (Id. at 37.) Butler said no, and Gonzalez told him to remove his clothes and put his hands on the wall. In both the Complaint and the Amended Complaint, Butler alleges that he "stripped naked." (Compl. at 3; Am. Compl. at 3.) During his deposition, however, Butler testified that he stripped down to his "boxers and T-shirt." (Butler Dep. at 99.) After Butler took at least some of his clothing off, Gonzalez searched him but found nothing.
As Butler was getting dressed, Gonzalez punched him in the right eye and "busted my right eyebrow wide open." (Id. at 40.) Bleeding from his eye, Butler fell to his knees as Gonzalez continued the attack. According to Butler, Gonzalez repeatedly punched him with a closed fist "in the back and in the back of my head" as Richard "sat there and laughed and joked at the situation." (Id. at 39.) Rather than stop the attack, Richard told Butler he was "acting like a little bitch" and to "talk that smart shit now." (Id. at 39; Compl. at 3; Am. Compl. at 3.) Butler "pleaded and begged for medical attention," but neither officer responded. (Butler Dep. at 39.)
At some point during the minute long attack, an alarm went off and Gonzalez left the area. Richard took Butler back to his cell, where Butler asked an unidentified prisoner to call his wife. Butler wrote his wife's phone number and his inmate number on a piece of paper which he tossed to the inmate through the bars of his cell. The inmate then called Butler's wife and told her about the attack.
Gonzalez and Richard have not been deposed, and they have not submitted affidavits setting forth their version of events. Nor have Defendants submitted an affidavit by Simpson stating what she saw near the telephones outside the gym at Sing Sing on January 2, 2009. Defendants do, however, deny Butler's allegations of wrongdoing in their Answer to the Complaint. (Ans. ¶ 3.) They also point out that when corrections officers use force against inmates at Sing Sing, it is recorded in a "Use of Force logbook." (DeLoatch Dep. ¶ 5.) The logbook does not contain an entry indicating a "use of force incident involving inmate Butler on January 2, 2009." (Id.)
After Richard took Butler back to his cell, and over the course of the following days, several corrections officers and other Sing Sing personnel passed by Butler's cell. Butler called for help, but no one offered him medical assistance until four days after the beating. Butler testified that on January 6, 2009, he asked a female nurse passing by his cell to look at his eye, which had "started looking real nasty." (Butler Dep. at 117.)
According to Butler, the nurse said "oh, no, you have to go," and sent him to Westchester Medical Center ("WMC") where his right eye was sutured. (Id. at 63-63, 117.)
Records maintained at Sing Sing do not, however, indicate that Butler was transported to an outside hospital on January 6, 2009. And there are no records at WMC reflecting that Butler visited the hospital for any reason on January 6, 2009. Furthermore, Sing Sing's records do not indicate that Butler received sutures to his right eye at any point in January, 2009. Sing Sing personnel explain that if an inmate receives sutures, he is confined to the infirmary when he returns from the outside hospital, but Butler was not confined to the infirmary in January, 2009. Butler's medical records do indicate that he was evaluated by a nurse at the Sing Sing clinic for issues relating to a pre-existing heart condition on January 6, 2009. On January 8, 2009, Butler returned to Sing Sing's clinic and received medical attention for a similar heart-related issue. None of the records provided by Defendants pertaining to these two medical visits mention sutures or injury to Butler's eye or face.
Butler was transported from Sing Sing to the emergency room at WMC on January 11, 2009. Butler claims that he went to WMC because "my eye busted back open, and I wanted them to look at it." (Butler Dep. at 67.) Defendants contend that the appointment related to a finger injury Butler suffered in a weightlifting accident, and medical records of the January 11th visit to WMC make reference to an injury to Butler's pinky finger. During his deposition, Butler testified that his heart condition prevents him from engaging in athletic activity and that "I don't do no weights or nothing." (Id. at 64.) But while Butler ...