The opinion of the court was delivered by: John T. Curtin United States District Judge
This case has been transferred to the undersigned for all further proceedings. Plaintiff, Manny Fuentes, proceeding pro se, brought this action seeking injunctive relief and money damages pursuant to 42 U.S.C. § 1983 based on alleged unconstitutional conditions of his confinement while he was an inmate in the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS")*fn1 at Attica Correctional Facility ("Attica CF").*fn2 By order entered January 4, 2011, this court dismissed the action as against certain defendants for lack of personal involvement in the alleged constitutional deprivations, and directed service of process upon the remaining defendants, Corrections Sergeant Craig Balcer and Corrections Officer Edward Arrington. Item 6. Following discovery, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Item 29) seeking dismissal of the complaint in its entirety.
For the reasons that follow, defendants' motion is granted.
On September 19, 2007, plaintiff filed a grievance pursuant to the Inmate Grievance Program ("IGP") established by DOCCS procedures (discussed at further length below in this decision and order), alleging as follows:
At 1:45 p.m. on August 24, 2007, while housed in A-Block at Attica CF, plaintiff suddenly lost the ability to remain standing and fell to the floor of his cell. He cried out for assistance, but no staff member came to check on him. Officer Arrington passed by plaintiff's cell at 3:27 p.m. as he was making his rounds on the cell block, but ignored plaintiff's cries for help. Two other unidentified Corrections Officers also passed by his cell and ignored him. Officer Arrington returned around 4:00 p.m. and asked plaintiff what was wrong. Plaintiff tried to explain that he was unable to move. Arrington told him to "shut up," and left without rendering assistance. At 4:48, an unidentified mental health nurse arrived to give plaintiff his medications. She told him she would call the clinic for help, but no one came. At around 5:00 p.m., Arrington returned to plaintiff's cell while making his "count" and remarked to his unidentified partner, "He's still alive." At 5:15 p.m., a nurse named Bridget stopped by his cell and told him she would see what she could do to get him help. At about 5:45 p.m., his cell door opened and two inmate porters entered with a wheelchair. He told them he needed professional assistance. At that point, Sergeant Balcer arrived at plaintiff's cell with other Officers and told plaintiff he had to get up and get dressed if he wanted to go to the clinic. Plaintiff told Balcer he was unable to move, and Balcer left. He returned around 6:27 p.m. with a nurse named "Sheryle" and two porters, who placed plaintiff on a bed board and transferred him to the clinic. Some time later, an ambulance arrived to take plaintiff to Erie County Medical Center ("ECMC"), where spinal surgery was performed. See Item 33-1, Grievance No. 52525-07.
Plaintiff's grievance was referred to the facility Superintendent, in accordance with IGP procedures. On October 4, 2007, the Superintendent's Office issued a written determination denying the grievance, stating as follows:
This grievance has been investigated by a Lieutenant and includes an interview with the grievant, along with written memorandum from staff named.
The grievance states: That the grievant was ignored when having a medical emergency.
Upon interview, the grievant reiterated his claims and provided no witnesses or any other pertinent information. Staff is on record denying all allegations. Written statements by staff do not support the timeline provided by the grievant. The Investigating Lieutenant could find no evidence to support the grievant's accusations. The Investigating Lieutenant states that the staff involved appear to have acted in a timely manner. He also states that it appears that the grievant did not notify staff until approximately 5:00 on the date in question, not earlier as stated in the grievance.
Item 1, p. 14. Plaintiff's appeal to the Inmate Grievance Program Central Office Review Committee ("CORC") was unanimously denied by written determination dated November 14, 2007, stating that:
Upon full hearing of the facts and circumstances . CORC upholds the determination of the Superintendent for the reasons stated.
CORC notes that the facility administration has conducted a proper investigation and that the employees in question have gone on record to deny grievant's allegations. CORC has not been presented with sufficient evidence to substantiate that he has been the victim of harassment. CORC note that [Officer Arrington] indicated that he notified medical of the grievant's complaint. The grievant was seen by medical staff at his cell and he refused to be taken by wheelchair to the Infirmary. The grievant later agreed to be taken to the facility emergency room at approximately 6:40 p.m. Item 1, p. 15.
Plaintiff filed the complaint in this action on August 16, 2010, in which he alleges that at 3:27 p.m. on August 24, 2007, he was lying on the floor of his cell in his own blood and urine unable to move and crying out for help, when Officer Arrington walked by twice without rendering assistance. He claims that Officer Arrington returned some time later with Sergeant Balcer, entered the cell, and kicked plaintiff in his side and on the bottom of his feet while telling him to get up and put his clothes on if he wanted to go to the infirmary. He further alleges that, while Sergeant Balcer looked on, Officer Arrington continued to kick plaintiff "at a record and rapid pace" until plaintiff felt a "pop" in an area of his spine where he had pre-existing injury, resulting in severe pain. See Item 1, ¶¶ 13-18. He also claims that he "was afraid to mention the beating by [defendant] Arrington" in his grievance "due to fear of his life," id. at ¶ 25, based on threats of bodily harm he allegedly received from defendant Arrington "because he was a witness to an assault on another inmate .." Id. at ¶ 31. He claims that the acts of defendants Arrington and Balcer constitute the use of excessive force and deliberate indifference to his serious medical needs, in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
In support of the motion for summary judgment, defendant Arrington has submitted a declaration, based upon his personal knowledge and review of documents generated and maintained by DOCCS in the ordinary course business. As set forth in his declaration, defendant Arrington categorically denies that the events as described by plaintiff, first in Grievance No. 52525-07 and subsequently in the complaint in this action, ever took place. Specifically, defendant Arrington states that, at approximately 5:00 p.m on August 24, 2007, he found plaintiff on the floor of his cell. Plaintiff told Arrington he was having back pain. Arrington contacted medical staff, and provided a wheelchair and hospital gurney, which plaintiff refused. Plaintiff was eventually transported to the infirmary by Nurse Stewart at approximately 6:45 p.m. See Item 31.
Defendant Balcer has also submitted a declaration, based upon personal knowledge and review of DOCCS records, denying that the events described by plaintiff in Grievance No. 52525-07 and in the complaint in this action ever took place. Balcer states that, at approximately 5:00 p.m. on August 24, 2007, Officer Arrington notified medical staff that plaintiff was complaining of back pain, and Arrington was told that the nurse would come after medications were distributed. Arrington brought a wheelchair to plaintiff's cell to transport him to the infirmary, but plaintiff refused and instead began to yell, creating a disturbance. Balcer then arrived at plaintiff's cell, and plaintiff told him he was unable to feel his legs or control his bladder. Balcer called medical staff to explain plaintiff's condition, and was told that the nurse would come after medications were distributed. Balcer told Corrections staff not to ...