The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. This is a closed action originally brought pursuant to 42 U.S.C. § 1983, by Plaintiff, now proceeding pro se. In its Decision and Order entered on July 22, 2010, the Court extensively discussed Plaintiff's abusive filings and directed him to, show cause not later than August 15, 2010, by submitting an affidavit in writing to the Court stating why he should not be sanctioned for disobeying the Court's Letter Order directing him not to file any further motions in this matter; and it is further ORDERED, that if Plaintiff fails to respond, the Court will impose sanctions on Plaintiff; and it is further ORDERED, that no further post-judgment motions be filed in this case, other than at the direction of the Court. (Decision and Order, Phelps v. Kapnolas, 94-CV-7543 (Jul. 22, 2010), at 6--7.) Since Plaintiff failed to "show cause" by August 15, 2010, the Court now determines whether Plaintiff is, in fact, subject to civil contempt sanctions. The Court will begin its analysis by setting forth the prior history in detail here from starting with the Court's 2005 Decision and Order.
Plaintiff commenced this action in July 1994 asserting, pursuant to 42 U.S.C. § 1983, entitlement to a declaratory judgment and monetary relief for acts of the defendants which he claimed violated his rights under the Fourth, Eighth and Fourteenth Amendments. In a Decision and Order entered on December 22, 1994, by the Honorable Richard J. Arcara, U.S. District Judge, the Court dismissed the complaint as to all the defendants except Kapnolas and all causes of action, except plaintiff's Eighth Amendment claim against Kapnolas. Decision and Order, Phelps v. Kapnolas, No. 94-CV-7543-CJS (W.D.N.Y. Dec. 22, 1994). That remaining cause of action was subsequently dismissed based upon defendant's motion for summary judgment. Decision and Order, Phelps v. Kapnolas, No. 94-CV-7543-CJS (W.D.N.Y. Jan. 29, 1996). However, plaintiff appealed to the United States Court of Appeals for the Second Circuit, raising the sole issue of whether the allegation that he was placed on a diet consisting only of bread for seven days would support a claim that defendants violated his rights under the Eighth Amendment. Plaintiff prevailed, and the Court of Appeals reversed as to all defendants on that single claim, and remanded for discovery proceedings. Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir. 1997).
Plaintiff then filed an amended complaint (# 47), which the Court dismissed, adopting the report and recommendation of U.S. Magistrate Judge Leslie G. Fochio, that defendants' motion (# 49) for summary judgment be granted. Order Adopting Report and Recommendation, Phelps v. Kapnolas, No. 94-CV-7543-CJS (W.D.N.Y. Dec. 8, 2000). Plaintiff appealed that dismissal, and the Court of Appeals again reversed, reinstated the amended complaint, and remanded the case to the Court for further discovery. Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). Following the completion of discovery, defendants filed another motion (# 116) for summary judgment. Plaintiff's pro bono counsel filed responsive papers and the Court heard oral argument on the summary judgment application on February 17, 2005.
Viewing the evidence in the light most favorable to plaintiff and drawing every inference in his favor, the Court accepted the following facts for the purposes of the motion. Plaintiff was an inmate at the Southport Correctional Facility ("Southport"), which is operated by the New York State Department of Correctional Services ("DOCS") (Amended Complaint, ¶ 3). Defendants were employed by DOCS in the following capacities at the times of the incidents alleged in the amended complaint: (1) Nick Kapnolas as a Correction Officer (Kapnolas Dep. at 10); JoAnn Delaney*fn1 as Institutional Steward (Delaney Aff. ¶ 11); Robert McClellan as Superintendent (McClellan Aff. ¶ 1); Terry Cleveland as a Correction Sergeant (Cleveland Dep. at 5); and Michael McGinnis as Deputy Superintendent of Security (McGinnis Aff. ¶ 1).
On July 1, 1994, Kapnolas filed an Inmate Misbehavior Report alleging that Plaintiff assaulted him by throwing a Styrofoam*fn2 bowl containing an unknown substance, which struck him in the middle of his back. (Kapnolas Dep. at 36, 38.) Based upon Kapnolas' report of this incident, on July 1, 1994, First Deputy Superintendent Melvin L. Hollins, not a named defendant, ordered Plaintiff on to a restricted diet beginning from lunch on July 1, 1994 to supper on July 8, 1994. (McClellan Aff. ¶4.) Kapnolas played no role in that determination. (Kapnolas Dep. at 52; Phelps Dep. at 43.) During the time he was on the restricted diet, Plaintiff was seen by medical personnel at the facility who reported that "he appeared to have no acute medical problems." (J. McClellan letter to T.A. Coughlin, III (Jul. 8, 1994), Pl.'s Appendix at Ex. I.)
Plaintiff contended that he was placed on the restricted diet for fourteen days and suffered damages as a result. (Phelps Dep. at 43, 83; but c.f. Pre-Hearing Restricted Diet Order (Jul. 1, 1994), Pl.'s Appendix Ex. F (placing plaintiff on a restricted diet from July 1 to 8, 1994, a total of only seven days).) From July 1 until July 8, the facility medical staff documented that plaintiff lost eight pounds. (Phelps Dep. at 74.) Plaintiff claimed he lost additional weight the next week, but did not quantify the amount, except to respond to questioning at his deposition to say that, "I was skinny." (Id.) In his amended complaint, Plaintiff claimed he lost thirty pounds. (Phelps Dep. at 77 (referring to Compl. ¶ 15), 83.) When confronted with the record of eight pounds lost, Plaintiff responded, "[w]ell, in this record right here it says eight, but I think it was more than that." (Id.) Plaintiff claimed to "probably" have records to substantiate the claimed thirty-pound loss, (id.), but did not produce them for the motion.
Plaintiff also claimed that he wrote letters complaining that the restricted diet food, referred to as "the loaf,"*fn3 was rotten, but did not recall to whom he wrote, or when, except to relate that he "made Civil Service [sic] complaints to Albany, 114A [sic], at that particular time. That's what they were. I wrote letters to the Commissioner. I wrote letters to the Superintendent. I wrote letters to other organizations." (Phelps Dep. at 80, 83.) None of plaintiff's letters complaining about the food were produced for this motion. When asked in particular about the restricted diet, Plaintiff responded as follows:
The three meals was [sic] rotten because they would let the bread sit in like these brown paper bags. And they would just pick it up, you know, and the bread would be moldy and rotten. Do you know what I'm saying? In other words, everybody would go home, right. And when they would go home it would be already there in the bag. (Phelps Dep. at 70.) Plaintiff further testified that for fourteen days, "[t]he only food [he] ate was from [his] next door neighbor." (Id.)
Sergeant Cleveland was deposed with regard to complaints he received about the restricted diet. (Cleveland Dep. at 10-22.) He testified that most of the complaints from inmates "were just that they were not fully in agreement of [sic] being on the diet, number one. And that they just didn't like eating that for any period of time." (Cleveland Dep. at 10.) When asked if Plaintiff complained, Cleveland testified that he could not recall any specific complaint from him, but that if Plaintiff had complained about the meal, he "would have assessed his complaint and if [he] found there to be any merit to it [he] would have acted upon it." (Id. at 21.) He also testified that when he received complaints from other inmates, he looked at the restricted diet loaves and "didn't see anything wrong with the loaf and there really wasn't anything I could do to make the loaf any more pleasant for them to eat." (Id. at 12.)
In addition to the weight loss, Plaintiff claims he was mentally affected by the restricted diet. (Phelps Dep. at 78.) Plaintiff's deposition testimony is unclear as to whether the mental stress he suffered was as a result of being in solitary confinement, being on a restricted diet, or having used illegal drugs. (Id.) When asked if it was his testimony that "somewhere in the records a doctor said he is hearing voices because he was on a restricted diet.," plaintiff responded, "I won't say that." (Id. at 79-80.) Plaintiff did, however, admit to having used marijuana and "cocaine sometimes," but discounted drug use as contributing to his mental state. (Id. at 80.) He concluded that the restricted diet, "basically, it's a psychological thing that messes you up. Do you know what I mean?" (Phelps Dep. at 81.) When asked to clarify his statement, Plaintiff referred to "mental distress." (Id. at 82.) When asked to ...