The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Isidro Abascal, proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983, alleging that while he was incarcerated at Attica Correctional Facility, Defendants subjected him to cruel and unusual punishment and failed to protect him in violation of the Eighth Amendment. Pending before this Court are the Summary Judgment Motions of Plaintiff and Defendants. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Plaintiff's motion should be denied in its entirety, and Defendants' cross-motion should be granted in part and denied in part.
At all times relevant to his Complaint, Plaintiff was an inmate in the custody of the New York Department of Correctional Services at Attica Correctional Facility. (Complaint, Docket No. 1, at 1-2). Defendants Dennis Fleckenstein, William Kump, and Chester Kosmowski were correctional officers ("COs") during Plaintiff's period of incarceration. (Complaint at 1-2). Plaintiff alleged in his Complaint that these COs subjected him to cruel and unusual punishment in violation of the Eighth Amendment by depriving him of meals, depriving him of electricity in his cell, confiscating and reading his legal documents, physically assaulting and conspiring to physically assault him, and verbally threatening him. (Complaint at 7-8). Plaintiff further alleged that Defendants James T. Conway, Attica Correctional Facility Superintendent, and Thomas G. Eagen, Director of DOCS Inmate Grievance Program, failed to protect Plaintiff from the cruel and unusual treatment by the COs. (Complaint at 2, 8).
Defendants initially moved pursuant to Rule 12 (b)(6) to dismiss all causes of action except Plaintiff's claim of excessive force against Defendant Fleckenstein for failure to state a claim. (Docket Nos. 15, 16). This Court granted that motion in part and denied the motion in part. (Docket No. 26 at 17). Plaintiff's claims based on deprivation of electricity, verbal threats, and conspiracy were dismissed, although this Court liberally construed Plaintiff's pro se complaint as alleging a failure to intervene claim against Defendant Kosmowski. (Docket No. 26, at 12, 14-15). It was further concluded that Plaintiff failed to state a claim of failure to protect, therefore Defendants Conway and Eagen were dismissed from the case. (Docket No. 26). All claims were dismissed insofar as they were asserted against Defendants in their official, rather than individual, capacities. (Docket No. 26, at 17).
Plaintiff's remaining claims are against Defendants Fleckenstein and Kosmowski for the deprivation of food, against Defendants Fleckenstein and Kump for the confiscation and reading of legal documents,*fn1 against Fleckenstein for excessive force, and against Kosmowski for the failure to intervene in the assault by Fleckenstein. The parties each now move for summary judgment in their favor.*fn2
Summary judgment is appropriate where the materials in the record, including depositions, documents, affidavits or declarations, and stipulations, show that there are no genuine issues regarding any material fact and that the movant is entitled to judgment as a matter of law. see FED.R.CIV.P. 56 (a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When making that determination, a court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
Further, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.' " Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)(emphasis in original), quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Nonetheless, "proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Castro v. 32BJ Union, 800 F.Supp.2d 586, 591 (S.D.N.Y. 2011)(internal quotation marks omitted).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which provides that persons who, acting under the color of state law, deprive an individual of rights, privileges, or immunities secured by the Constitution and other laws are subject to civil liability. This provision does not itself provide a source of substantive rights, but instead provides the mechanism by which a plaintiff may seek vindication of federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To that end, "[i]n addition to prohibiting punishments that involve the unnecessary and wanton infliction of pain, the Eighth Amendment imposes certain duties on prison officials, who 'must ensure that inmates receive adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee the safety of the inmates.' " Williams v. Coughlin, 875 F.Supp. 1004, 1009 (W.D.N.Y.1995), quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)(internal quotation marks omitted). A prisoner may establish an Eighth Amendment violation based upon the conditions of his confinement "only where he proves both an objective element-that the prison officials' transgression was 'sufficiently serious'-and a subjective element-that the officials acted, or omitted to act, with a 'sufficiently culpable state of mind,' i.e., with 'deliberate indifference to inmate health or safety.'" Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002), quoting Farmer, 511 U.S. at 834.
Plaintiff alleges that he was deprived of meals by Fleckenstein on 13 different occasions between December 10, 2004 and March 6, 2005, with seven of those meals being denied in a four day period. Complaint ¶¶ 17-18, 22-23, 27-32, 34, 36-38; Affidavit of Plaintiff Isidro Abascal, Docket No. 85-2, ¶¶ 7-8, 11, 15-16, 18-21, 23, 25-27. Plaintiff alleges that Kosmoswski participated in five of those denials. Complaint ¶¶ 28-29, 32, 34, 36; Pl's Aff. ¶¶ 16, 18, 21, 23, 25. Defendants deny that Plaintiff was intentionally deprived of any meals, and assert that on the one occasion he was not given the proper amount of food by an inmate porter, Plaintiff was offered a double meal at the next feeding. Declaration of Defendant Dennis Fleckenstein, Docket No. 88, ¶ 9; Declaration of Defendant Chester Kosmowski, Docket No. 90, ¶ 4; Def's Mem. of Law, Docket No. 86-1 at 8. This stark dispute over whether Plaintiff was in fact deprived of any meals requires denial of Plaintiff's motion for summary judgment on this claim.
Defendants argue that they are nonetheless entitled to summary judgment because Plaintiff has admitted "that the cells were controlled by a lock box, which he could not see from his cell, and he therefore can not say who neglected to open his cell." Def's Mem. of Law at 9. Defendants correctly argue that in order to recover under § 1983, Plaintiff must establish the personal involvement of each defendant in the alleged constitutional deprivations. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert denied 543 U.S. 1093 (2005); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The record does not support the assertion, however, that Plaintiff admitted he could not identify the correctional officer who failed to open his cell on each of the occasions alleged. ...