The opinion of the court was delivered by: Siragusa, J.
Before the Court is Defendants' motion for summary judgment, filed on March 4, 2009, ECF No. 48. For the reasons stated below, Defendants' motion is granted.
On August 26, 2006, Rivera's cell at Southport Correctional Facility was searched by corrections officers. Rivera Dep. at 13--14, Jan. 6, 2009, ECF No. 51-2. In their search, the officers allegedly found cash and staff social security numbers. Id. at 14; Pl.'s Rule 56 Statement ¶ 2, ECF No. 56. On August 28, 2006, defendants, Correction Officers James
H. Squires ("Squires") and Franklin D. Frisbee, Jr. ("Frisbee"), escorted Rivera to be interviewed by Lieutenant David C. Augustine ("Augustine") regarding the items alleged to have been found in his cell. At this interview, Rivera claims that Augustine assaulted him, and that Squires and Frisbee joined the assault, and as a result he sustained a bruise to his right eye. However, Defendants claim that Rivera kicked Augustine, prompting force to be used against him.
Rivera never filed a grievance concerning the alleged assault. He did, however, write a letter to defendant Superintendent David F. Napoli ("Napoli") on September 20, 2006. In the letter, Rivera claims that he was assaulted by Augustine, Squires, and Frisbie. Rule 26 Disclosure, Ex. O at 36-8, ECF No. 25-2. Deputy Superintendent for Security Services Paul Chappius, Jr., investigated Rivera's assault claim and determined that no evidence supported it. P. Chappus Jr. letter to Plaintiff (Oct. 16, 2006), Rule 26 Disclosure, Ex. O, ECF No. 25-2.
On August 28, 2006, the same date as the purported assault, Rivera filed a grievance alleging that Correctional Officers Richard J. Cecce and Frisbie denied him lunch, as well as light, and water from August 28--30, 2006. Although this grievance does not allege retaliation, the subject complaint in this action states several times that he was retaliated against for allegedly possessing staff social security numbers, and that such retaliation consisted of harassment, including the denial of food, showers, hygienic supplies, lights, water, and mandatory recreation, along with the falsification of misbehavior reports. Compl. ¶ 38--40, ECF No. 1; Br. for Pl. Pro Se ¶ 9--11, ECF No. 1-3.
Subsequently, on May 1, 2008, Rivera filed a grievance specifically alleging retaliation. In that regard, Rivera claimed that he was harassed and denied a shower, and further states, "These type of actions has been taking place with several officers since August 26, 2006, when I was accused of having officer's social security #'s. Every [sic] since then, I have been retaliated against by this officer and several others." Pl.'s Verbal Harassment by Officer grievance (May 1, 2008) at 1, Rule 26 Disclosures, Ex. I, pp. 73-5, ECF No. 25.
Here, Rivera alleges that Defendants: (1) violated his Eighth Amendment rights against cruel and unusual punishment by the use of excessive force; (2) retaliated against him in violation of his First and Fourteenth Amendment rights to free speech and due process because he filed grievances and complaints and because of allegations that he possessed prison guards' social security numbers;*fn1 (3) conspired against him to violate his constitutional rights in violation of 42 U.S.C. § 1985; and (4) deliberately indifferent to his heath and safety by failing to protect him from prison guards' attacks.
In their Notice of Motion, Defendants included the following language in accord with Western District of New York Local Rule of Civil Procedure 56(b):
PLEASE BE ADVISED, that pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, when a motion for summary judgment is made and properly supported, you may not simply rely upon the complaint, but you must respond, by affidavits or as otherwise provided in the rule, setting forth further specific facts showing that there are genuine issues of material facts for trial. Any factual assertions in our affidavit will be accepted by the Court as being true unless you submit affidavits or other documentary evidence contradicting our assertions. If you do not respond to the defendants' motion as described above, summary judgment, if appropriate, may be entered against you. If summary judgment is entered against you, your case against the moving parties will be dismissed.
PLEASE BE FURTHER ADVISED, that pursuant to Local Rule 56 of the Western District of New York, you must include a separate, short and concise statement of any material facts as to which you contend there exist a genuine issue for trial. In the absence of such a statement, all material ...