The opinion of the court was delivered by: Michael A. Telesca United States District Judge
André Smith ("Smith" or "Plaintiff"), proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983, complaining of a violation of his civil rights by prison officials at Southport Correctional Facility ("Southport") and seeking recovery of compensatory and punitive damages. (Dkt. #1). With the permission of the Court (Siragusa, D.J.), defendants have filed a second motion for summary judgment (Dkt. #62), and Plaintiff has submitted a response (Dkt. #65). This matter was transferred to the undersigned on January 10, 2012. (Dkt. #64). For the reasons that follow, defendants' motion is granted and the complaint is dismissed in its entirety.
A. The July 5, 2005 Use-Of-Force Incident and Plaintiffs' Grievances
At about 7:45 a.m. on July 5, 2005, Corrections Officer ("CO") Timothy Hable ("Hable"), who was accompanied by CO James Gilbert ("Gilbert"), handcuffed Smith through the food slot of his cell-door as part of the procedure for allowing Smith to exit his cell for recreation hour, and instructed him, according to the standard practice, to turn his back to the cell door. Plaintiff contends that Hable and Gilbert opened the cell door, rushed into the cell, and began beating him. Smith also asserts that several minutes into the beating, CO Richard Augustine ("Augustine") arrived and punched him in the face twice. The photos taken after the assault show Smith with massive swelling on all parts of his head as well as several lacerations. Smith v. Goord, No. 07-CV-6265-CJS, 2009 WL 3213289, at *1 (W.D.N.Y. Aug. 27, 2009) (Siragusa, D.J.) (Dkt. #56) (citation to record omitted). Smith, who appears to be semi-conscious, is being propped up by two guards for the camera. Id.
According to the report filed by prison staff, Smith while being let out of his cell for exercise, turned to his right and--unprovoked--kicked Gilbert in his left shin. See Use Of Force Report, attached to the Declaration of Karen Bellamy ("Bellamy Decl.") (Dkt. #48). As Hable attempted to push Smith into his cell, Smith hit Hable in the chest with a closed fist and his restraints. Id. Gilbert applied a "bear hug" to Smith's upper body, forcing him to the floor face-first. Id. Hable assisted Gilbert by grabbing Smith's left upper torso with his hands. Augustine applied a "figure four" leg-lock and CO Evans (not a defendant in this action) applied leg irons and the waist chain with assistance from Hable. The corrections officers all denied using excessive force against Smith. Id.
As a result of the incident, Smith was charged with violent conduct, assault on staff, interference with an employee, and refusing a direct order. However, on July 13, 2005, he was found not guilty on all charges at a Tier III hearing. Smith, 009 WL 3213289, at *1 (Dkt. #56). Aside from a one-page hearing record sheet, Southport has no other record of the proceeding. Id.
Smith filed a grievance, SPT-34084-05, on July 5, 2005, alleging the following:
On July 5th, 2005, as I was attempting to go to recreation, I was assaulted by three C.O.s (correctional officers) in A-Block, 12 Gallery. These three officers ran in my cell, without a seargant [sic] being present and hit me 20 times in the face.
I currently have a lawsuit pending against Commissioner Glenn Goord. I believe this assault was done in retaliation to my lawsuit and was meant to intimidate me. Plaintiff's Exhibit ("Pl. Ex.") H (Dkt. #53). Plaintiff also submitted a handwritten memorandum from a "Sgt. Sampsell" dated August 5, 2005, in which the sergeant reported that he interviewed Plaintiff and three witnesses. Id.
In a written decision dated August 20, 2005, an acting superintendent (whose signature is illegible) at Southport denied Plaintiff's grievance stating that he found no evidence to substantiate the allegations asserted in the grievance. Smith, 2009 WL 3213289, at *2 (Dkt. #56).
Plaintiff did not appeal this denial but instead filed a second grievance (SPT-34335-05) on August 4, 2005, against Superintendent Michael P. McGinnis ("McGinnis"), and Deputy Superintendent for Security P. Chappius, Jr. ("Chappius"). See Grievance SPT-34335-05, Aug. 2, 2005, at 2-3, Pl. Ex. I (Dkt. #53). SPT-34335-05 sought redress against McGinnis and Chappius for rejecting Smith's first grievance and for failing to adequately investigate his allegations of retaliation and excessive use of force. The relief requested was for McGinnis and Chappius to "properly investigate" ...