The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
In this suit under 42 U.S.C. § 1983, plaintiff pro se Henry Barrington alleges that prison officials violated his constitutional rights by assaulting him in retaliation for filing grievances about certain disciplinary actions taken against him. Defendants the State of New York and certain correctional officers at Green Haven have moved for summary judgment on all claims. For the following reasons, their motion is granted in part and denied in part.
At all times relevant to this suit, Barrington was incarcerated at the Green Haven Correctional Facility. Barrington alleges that on May 25, 2005 he was awaken "by a loud sounding bang" and opened his eyes to see defendant correctional officer James Titka standing in front of his cell with a baton. (2d Am. Compl. ("Compl.") ¶ 19; Dec. of H. Barrington, Jan. 13, 2011 ("Barrington Dec."), Ex. A.) At some point, Titka told Barrington to turn down his radio which Barrington alleges was playing a low volume through his headphones. Barrington did so and returned to sleep. (See id.; Compl. ¶ 19.) Some time later, Barrington was awoken by "another loud bang" and opened his eyes to see defendant correctional officer Jeremy Burch with baton in hand. (See id. at ¶ 20.) Barrington alleges that Burch demanded that Barrington surrender his radio and used a racial epithet in doing so. (See id.) Barrington complied.
After Barrington's unit was called to breakfast, Barrington approached the officers' station and asked Burch for a receipt for his confiscated radio and a grievance form to challenge the confiscation. (See id. ¶ 21.) Burch and defendant correctional officer Jeffrey Ohl responded by chastising Barrington with racial slurs and instructed Barrington to return to his cell. (See id.) Titka then came to Barrington's cell and told him that he would get his radio back but that he would receive a disciplinary ticket if he insisted on a receipt. (See id. ¶ 22.) Titka again used racial epithets in speaking with Barrington. (See id.)
Later on May 25, Barrington obtained a grievance form from another prisoner and completed it with his complaint regarding the events regarding his radio. (See id. ¶ 23.) Barrington had another prisoner drop the complaint in the designated grievance box on May 26, 2005. (See id. ¶ 24.)
The following day, May 27, 2005, Barrington again woke to Titka banging on the bars of his cell. Titka waived a copy of Barrington's grievance and, again using racial slurs, stated that Barrington "could write" but that "me and my boys going to get you." (Id. ¶ 25.) Titka added, "I am going to be off for three days but me and boys are going to get you." (Id.) Titka then called Ohl's attention to what Barrington had written and stated, "I have a good mind writing him another misbehavior report." (Id.)
On May 30, 2005, Barrington stepped out of his cell to have his scheduled shower and recreational time. (See id. ¶ 27.) As he did so, defendant correctional officer Christopher Morrow told him to stand against the cage at the officers' station. (See id.) Ohl, Burch, and defendant correctional officers Michael Canazzi and Brian Crossman were present at the station. Ohl stepped out and asked Barrington what was in his pockets. (See id. ¶¶ 27-28) Barrington emptied his pockets and presented the contents to Ohl. (See id. ¶ 28.) Burch then stepped out of the station. (See id.) Ohl again asked Barrington what was in his pockets, this time in an angry tone. (See id. ¶ 29.)
Barrington avers that, moments later, Ohl body-slammed him to the ground and began kicking and stomping on him while Canazzi and Crossman took hold of his legs. (See id. ¶¶ 30-31.) Ohl, Burch, and Marrow allegedly then knelt over Barrington and began punching him in the head. (See id. ¶ 31.) Canazzi allegedly began twisting Barrington's leg, causing him to cry out in pain, as Ohl, Burch, and Marrow continued to punch him in the head. (See id. ¶¶ 31-32.) According to Barrington, Burch and Marrow then withdrew, but Ohl continued punching Barrington and then began choking him. (See id. ¶ 32.) Barrington avers that he was then dragged down the hall, handcuffed, and taken to the Green Haven health clinic. (See id. ¶¶ 33-36.) Barrington was later taken by ambulance to a local hospital where he received surgery on a fractured leg. (See id. ¶ 37; Barrington Dec. Exs. I, J, W, Z. HH, II, JJ.)
The May 25 incident was recorded in misbehavior and other facility
incident reports, as a result of which Barrington was confined to a
special housing unit. (See Compl. ¶¶ 38-39.) In these reports, the
officers uniformly reported that their use of force was a response to
Barrington's abrupt turn to his left in what appeared to be an attempt
to elbow Ohl. (See Barrington Dec. Exs. B, C, D, E, F, G, L.)*fn1
Barrington filed a grievance regarding the assault and what
he alleged to be false reports regarding it. (See Barrington Dec. Ex
B.) The grievance was denied by the Green Haven Superintendent. (See
id. Exs. B, R.) Barrington appealed and his appeal was denied. (See
id. Exs. S, T.)
On April 26, 2006, Barrington, represented by counsel, filed a suit in the New York Court of Claims against the State of New York alleging that the State was liable for the excessive force used by corrections officers in the May 30, 2005 incident (the "Court of Claims Action"). (See Dec. of W. Bauman ("Bauman Dec."), Nov. 30, 2010, Ex. H.)
Barrington filed the original complaint in this action on May 8, 2008 alleging that the May 30, 2005 incident was an assault in retaliation for his filing a grievance regarding the May 25, 2005 incident.
Shortly thereafter, the Court of Claims Action proceeded to a bench trial as to liability only at which Barrington, Burch, Ohl, and another correctional officer Huttel testified. (See Bauman Dec. Ex. I.) On July 25, 2008, the Court of Claims found that "virtually none of the witness testimony" at the trial "bore any sign of 'absolute truth.'" (Id. at 10.) However, the Court of Claims found that Barrington's "description of the encounter, supported by the limited corroborative testimony of Titka and the objective evidence of his injury, were more credible than that offered by the officers involved. . . ." (Id. at 12.) Accordingly, the Court of Claims was "constrained to conclude, based on the totality of the evidence, that a much greater degree of force than was necessary to respond to the situation was applied by these officers." (Id. at 11.)
Notably, Barrington "presented considerable testimony and evidence concerning the confiscation of his radio and the resulting grievance contending that this was the motivating factor behind the May 30 incident. . . ." (Id. at 9.) However, the Court of Claims found that "final determination of the May 25 incident [wa]s not necessary to decide this claim": since "[t]he gravamen of the claim at bar [wa]s that excessive force was used," it was "irrelevant whether the officers were motivated by some desire to exact revenge for the May 25 incident and resulting grievance." (Id.)
A trial on damages then ensued. The physician who treated Barrington testified on his behalf and another expert orthopedic surgeon testified for the State. Following that trial, on June 19, 2008, the Court of Claims awarded Barrington $105,000 for past pain and suffering and $30,000 for future pain and suffering. (Bauman Dec. Ex. J at 8.) Judgment was entered against the State for $147,082.50 on July 23, 2009. (Bauman Dec. Ex. K.)
On July 25, 2008, Ohl was served with Barrington's original complaint in this action. Burch was served with the same on August 7, 2008.
That same day, Barrington was at the law library when he was informed that he had a visitor. (Compl. ¶ 50.) Barrington proceeded to his cell area but was sent back to the law library because officers there had purportedly called him back. (Id.) Yet when Barrington returned to the law library, he was told to return to his cell area. (Id.) Barrington did so and was met by defendant correctional officer Michael Funk who gave him a pass and told him to "hurry up." (Id. ¶ 51.) In the cell, Barrington noticed that his pass read "8:30 a.m." when the hour was by then 9:38 a.m. (Id. ¶ 52.) Barrington took the pass to Funk and told him that he believed that the incorrect time was an attempt to set him up on a violation of being outside his assigned area without authorization. (Id.) Funk responded by ordering Barrington on "Keep-Lock," a restricted status. (Id.)
Shortly thereafter, Funk left his post in the cell area and escorted Barrington to the holding area adjacent to the visitors' area. (Id.) Funk then proceeded to search Barrington. According to Barrington, during the search, Funk grabbed Barrington's genitals and told him "I am going to fuck you" and "You are my bitch." (Id.) Barrington avers that after completing the search Funk left in "uproarious laughter." (Id.) Barrington avers that Funk has told him on several occasions that he was present during the May 30, 2005 incident and has asked him if his leg hurts. (Id. ¶ 54.) In a sworn declaration, Funk has denied threatening Barrington or intentionally touching his genitals and described any such contact as incidental to a proper pat-and-frisk search pursuant to Department of Correctional Services regulations. (Dec. of M. Funk, Nov. 30, 2010, ¶ 3, Exs. A, B.)
Later on August 7, 2008, Funk filed a misbehavior report alleging that Barrington was disruptive and resistant during the pre-visit search. (See Barrington Dec. Ex. AA.) Barrington avers that this report was false. (Compl. ¶ 53.) He filed a grievance regarding the August 7, 2008 incident and the subsequent misbehavior report. (Barrington Dec. Ex. BB.) The charges in Funk's report were later dismissed on the ground that no staff witness was available to substantiate them. (See id. Ex. FF.)
On December 1, 2008, Barrington moved to amend his complaint to correct the names of one of the defendants and to identify certain John Does. Magistrate Judge Freeman instructed Barrington to move for leave to file a second amended complaint. Barrington moved for leave on January 23, 2009. Judge Freeman granted the motion with respect to retaliation claims against defendants Marrow, Canazzi, Crossman, Titka, and Funk but denied the motion in all other respects. (See Bauman Dec. Ex. C.)
On November 30, 2010, Defendants moved  for summary judgment on all claims.
Summary judgment is proper if the moving party shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In deciding whether there is a genuine issue of material fact as to an element essential to a party's case, the court must examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002) (internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial." Fed. R. Civ. Proc. 56(e). "This requirement has particular relevance when a party's responsive documents are long on speculation and short on specific facts." Medici Classics Prods., LLC v. Medici Group, LLC, 683 F. Supp. 2d 304, 307 (S.D.N.Y. 2010); see Woodman v. WWOR-TV, Inc., 411 F.3d 69, 85 (2d Cir. 2005) ("The law is well established that conclusory statements, conjecture, or speculation are inadequate to defeat a motion for summary judgment.") (quotation marks omitted). However, "[a] verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other ...