The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff Sha-heed Rahman ("Rahman") asserts claims of excessive use of force under the Eight Amendment, failure to intervene under the Eighth Amendment, violation of due process under the Fourteenth Amendment, and retaliation under the First Amendment against various employees of the New York State Department of Corrections and Community Supervision ("DOCCS"). On August 8, 2011, defendants Officer Dyeisha Smith ("Smith"), Sergeant James Pautler ("Pautler"), Hearing Officer Ana Calero ("Calero"), and Director of Special Housing Donald Venettozzi ("Venettozzi," and collectively, the "Moving Defendants") filed a motion for summary judgment on the Eighth Amendment, First Amendment and Fourteenth Amendment claims asserted against them. For the following reasons, their motion is granted.
The following facts are undisputed unless otherwise indicated. During the relevant period, Rahman was an inmate incarcerated at the DOCCS's Sing Sing Correctional Facility ("Sing Sing"), serving an indeterminate sentence of 25 years to life. He is a Shiite Muslim. Calero was a hearing officer who conducted disciplinary hearings at Sing Sing. Venettozzi was Acting Director of Special Housing who reviewed and affirmed disciplinary hearing dispositions. Smith was a corrections officer employed at Sing Sing. Pautler was a corrections sergeant at Sing Sing.
Underlying all of Rahman's claims is an incident that took place on June 4, 2007. Rahman alleges that on that date, he entered the mess hall at Sing Sing and noticed that a corrections officer was serving food. Upon seeing this, Rahman spoke to a cook and told him that he understood officers were not supposed to handle food. This issue was not new to Rahman; he had previously filed a grievance about officers handling food as he had been concerned about contamination of the food in violation of his religious dietary restrictions. Officer Tejeda ("Tejeda") overheard this conversation and called Rahman a snitch. When Rahman's table was called to return to their cells, Tejeda intercepted him at the pat-frisk area. After conducting a search of Rahman, Tejeda and Officer Acevedo ("Acevedo") escorted him towards his cell separately from the other inmates. They crossed the mess hall bridge to the S & X Landing, then descended one flight of stairs to the R & W Landing, which itself was one flight above the Q & V flats, where Rahman's cell was located. On the R & W Landing, Tejeda punched Rahman in the face, and Acevedo hit him on the back of the head with a baton. Rahman started to fight back, biting Tejeda in the chest. One of the officers pulled the alert pin on his radio, signaling more corrections officers -- Dawkins, Mayfield and Lashley -- to arrive at the R & W Landing. Rahman also bit Lashley in the chest. Together, the five officers continued to beat Rahman until he was on the floor and handcuffed. More officers arrived at the R & W landing. Some of the defendants, including Officer Mendez ("Mendez"), continued to beat Rahman after he was handcuffed. A group of inmates on the level with the Q & V flats observed the fight.
The Inmate Misbehavior Report ("IMR") filed by Tejeda presents a different version of the events that took place on June 4, 2007. Tejeda alleged that when Rahman noticed a corrections officer serving food in the mess hall, he began screaming "put on a hairnet," and continued to yell this even after sitting at a table with his meal. Towards the end of the meal period, Tejeda proceeded to the mess hall bridge to assist with the pat and frisks. When Rahman approached the bridge, he continued to scream "wear a fucking hairnet." Tejeda therefore pulled Rahman to the side of the line and began to escort him separately from the other inmates back to his cell. While on the R & W landing, Rahman punched Tejeda in the face and bit his chest. After Tejeda pried Rahman off of him, Rahman bit Lashely in the chest, and Tejeda responded by hitting him with his baton on the back and legs. He was then able to pin Rahman to the ground and handcuff him. A use of force report filed by Mendez added that several officers were needed to get Rahman under control and that in so doing, they hit him with their batons on his back and legs and had to use force on his head, arms, upper body and right wrist.
For the purposes of this motion a few more undisputed facts are relevant. On June 4, 2007, Smith was the Officer in Charge ("OIC") on the mess hall bridge. As the OIC, her duties were to remain on the bridge, call down inmates from their cells to the mess hall and count the number of inmates entering and exiting the mess hall. As the OIC, she is not supposed to respond to incidents that arise, nor do officers that respond to incidents report to her. As some of the inmates were leaving the mess hall that day, Smith heard a commotion from the levels below the mess hall bridge, where she could not see. She could not tell what was going on, but simply heard yelling. An alert also came in over the radio. Smith then locked the gates of the mess hall in order to help secure the area. Smith was on the mess hall bridge during the entire relevant period.*fn1 She was not asked to leave her post by Tejeda. Smith testified that she was not aware prior to the incident that Tejeda or any other officer intended to assault Rahman.
II. Rahman's Disciplinary Hearing
As a result of the June 4, 2007 incident, Rahman was charged with refusing a direct order, assault on staff, violent conduct, and creating a disturbance. Rahman pled not guilty to all counts. Calero conducted Rahman's Tier III Hearing over six days in June and July 2007.
At Rahman's request, Calero heard the testimony of inmates named Williams and Muhammed, a civilian cook, Acevedo, Dawkins, and an officer named Hudson. Rahman, Tejeda, and Lashley also testified. Calero denied Rahman's requests to take testimony from an unnamed Sergeant, corrections officers Benjamin, Smith, Pautler and an inmate named Hansberry. On the Witness Interview Notice denying Rahman's request that Hansberry testify at the hearing, Calero noted that his testimony would be irrelevant. Calero testified that she believed that Hansberry was "one or more" levels below the level where Rahman alleged his beating took place, and that therefore could not have witnessed anything. On the Witness Interview Notice, Calero wrote that Hansberry was on Q & V level "one tier below R/W" where the alleged beating took place.*fn2
Calero found Rahman guilty of refusing a direct order, assault on staff, and violent conduct, and found Rahman not guilty of creating a disturbance. Referenced as support for Calero's hearing disposition report dated July 3, 2007, ("Disposition"), were the witnesses' and Rahman's testimony, a visit to the locations discussed in the hearing, the IMR, and the employee and inmate injury reports. In the Disposition, Calero concluded that Rahman "was blinded by rage, which refutes his uncorroborated claim of justification." Calero denies that she had prejudged the outcome of the Disposition, that she considered testimony from Hansberry's own disciplinary hearing, or that she relied solely on the IMR. The penalty imposed on Rahman included 22 months of detainment in the Special Housing Unit for solitary confinement ("SHU").
Rahman appealed the Disposition. Venettozzi affirmed the Disposition on September 7, 2007. After reviewing the hearing for procedural errors, Venettozzi found none that warranted a reversal or rehearing.
III. State Court Proceedings
Rahman, proceeding pro se, filed an Article 78 petition in the New York State Supreme Court, challenging the Disposition. The petition was dismissed, and Rahman appealed to the Appellate Division, Second Department. On appeal, Rahman was represented by an attorney, James M. Bogin of Prisoner's Legal Services of New York. On Rahman's behalf, Mr. Bogin filed both a petitioner's brief and a reply brief. In his briefs on appeal, Rahman argued that Calero had violated his "constitutional and regulatory right to present relevant witnesses at his hearing by denying [his] request to present inmate Hansberry as a witness."
Rahman cited Supreme Court case law concerning Fourteenth Amendment due process rights. The briefs do not indicate that Rahman had any difficulty in presenting his arguments due to gaps in the hearing transcripts or missing tapes that were to be ...