The opinion of the court was delivered by: Siragusa, J.
Sean Tapp ("Plaintiff"), a prison inmate previously in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"),*fn1 brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Stanley Sepiol ("Sepiol," referred to in the Complaint as "Seppio"), Jeffrey Hale ("Hale"), Richard Kwasnik ("Kwasnik"), Paul Chappius ("Chappius"), and Michael McGinnis ("McGinnis") for alleged violations of his Constitutional rights under the Eighth Amendment. Compl., Sept. 15, 2005, ECF No. 1. Now before the Court is Defendants' Notice of Motion for summary judgment, Jan. 5, 2007, ECF No. 37, and Plaintiff's Notice of Motion Opposing Summary Judgment, Feb. 1, 2007, ECF No. 49. For the reasons stated below, Defendants' motion is granted, Plaintiff's cross-motion is denied, and this action is dismissed.
The following facts are viewed in the light most favorable to the Plaintiff. From December 22, 2003, to March 19, 2004, Plaintiff was housed in A Block, 6 Gallery, 20 cell at Southport Correctional Facility ("Southport"). During the time period in question, McGinnis was the Superintendent at Southport, Chappius was Deputy Superintendent for Security, Sepiol was a Correction Sergeant, Kwasnik a Correction Officer, and Hale was the Inmate Grievance Program ("IGP") Supervisor.
On March 1, 2004, Correction Officer Kevin Aiken ("Aiken"),*fn2
while assigned to A Block, was escorting a nurse on 6 Gallery
and observed what appeared to be feces on the bars of 20 cell, which
was then occupied by Plaintiff. After Aiken and the nurse completed
her rounds, Aiken returned to 6 Gallery with another Sergeant to
examine the substance on 20 cell more closely. Based on its odor,
color, and appearance, Aiken determined that the substance on the cell
bars was fecal matter, which was also found on a towel and blanket
that had been hanging on the front of 20 cell. Aiken concluded that
the feces could have only been thrown from cell 21, which was occupied
by another inmate. The inmate admitted to Aiken that he had thrown the
feces, and was subsequently moved to another cell. The soiled blanket,
towel, and a pillow case were removed from Plaintiff's cell bars.
DOCS Directive 4912 states that inmates are responsible for cleaning the interior of their cells, while cadre inmates, assigned as porters, cleaned the gallery floors and cell fronts. Inmates are provided with materials to clean the inside of their cells. Chappius Decl. Ex. F, Dec. 15, 2006, ECF No. 41. The exterior of Plaintiff's cell was cleaned by Southport cadre inmates at the direction of the correction officers. On March 19, 2004, Plaintiff was transferred from Southport to Franklin County for a grand jury appearance, and was returned to Southport on March 30, 2004, where he was then confined in A Block 3 Gallery 16 cell.
DOCCS records indicate that Plaintiff made one written complaint at Southport after the March 1 incident concerning the condition of his cell dated March 1, 2004. That complaint was received by the Division of Health Services on March 19, 2004 and by the Deputy Superintendent's Office on March 23, 2004. Id. Ex. D. Chappius, the Deputy Superintendent for Security, received the complaint on March 29, 2004, and ordered the A Block Sergeant to investigate Plaintiff's claims. At that point, however, Plaintiff had already moved out of A Block 6 Gallery 20 cell. On April 7, 2004, Lieutenant M. Sheehan, on behalf of Chappius, sent Plaintiff a memo advising him that his complaint had become moot in light of his transfer to another cell. Id. Ex. E.
The records of the Southport IGP also reflect that Plaintiff did not file a grievance relating to the March 1, 2004 incident in the months that followed. A printout of grievances filed by Plaintiff shows that Plaintiff did file a grievance in March 2004, but it concerned a request to copy files and not the sanitary conditions of his cell. Hale Decl. Ex. B, Jan. 5, 2007, ECF No. 43. Likewise, a search of the DOCCS Central Office Review Committee ("CORC") database revealed that Plaintiff filed no grievance appeals in 2004 from Southport in which he claimed that in March 2004 he had been confined in a feces-smeared cell. Eagen Decl. Ex. A, Jan. 5, 2007, ECF No. 42.
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed.R.Civ.P. 56(c). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).*fn3 Exhaustion of Administrative Remedies
Defendants argue in their motion for summary judgment that Plaintiff's Eighth Amendment claim must be dismissed pursuant to 42 U.S.C. § 1997e(a),*fn4 which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Generally, in order to satisfy 42 U.S.C. § 1997e(a), a plaintiff must file a grievance with respect to the challenged behavior, using DOCCS's Inmate Grievance Program ...