United States District Court, W.D. New York
Patrick J. MORRISON, Plaintiff,
E.J. HARTMAN, et al., Defendants.
[Copyrighted Material Omitted]
Patrick J. Morrison, Malone, NY, pro se.
Benjamin A. Bruce, New York State Office of the Attorney General, Rochester, NY, for Defendants.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiff Patrick J. Morrison (" Plaintiff" ), who is proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was incarcerated at Attica Correctional Facility (" Attica" ), in the custody of the New York State Department of Correction and Community Supervision (" DOCCS" ). At the time of the relevant events, Defendants Hartman, Kozlowski, and Kingsley (collectively, " Defendants" ) were Correction Officers employed by DOCCS.
Currently before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. # 80). For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part.
Plaintiff alleges that on October 20, 2007, while plaintiff was confined in the Attica Special Housing Unit, Defendant Hartman skipped him while serving breakfast, and Plaintiff subsequently complained about this to the captain. According to Plaintiff, Hartman retaliated by writing a false misbehavior report against Plaintiff.
Upon his receipt of the misbehavior report, Plaintiff reported to a mental health nurse that he was feeling suicidal and wanted to go to the Mental Health Unit (" MHU" ). Plaintiff alleges that while he was being escorted to the MHU, Defendants
Hartman and Kozlowski took him into an elevator (which had no video cameras), where they hit him in the head with closed fists and a walkie-talkie, and kicked him. See Pl. Depo. (Dkt. # 80-3) at 114.
Plaintiff further alleges that after the elevator reached the third floor, Defendant Kingsley, who was not involved in escorting Plaintiff, directed Plaintiff to strip for a frisk. Kingsley, who was in a viewing room, observing Plaintiff through a window, directed Plaintiff to undress, rub his fingers through his hair, lift his testicles, and spread his buttocks. When Plaintiff complied, Kingsley allegedly told him to " take both fingers and rub them in [Plaintiff's] mouth," which Plaintiff did. Id. at 120-21. Plaintiff alleges that Kingsley then handed him a medical gown and grabbed plaintiff's left nipple before placing him in his cell.
Defendants now move for summary judgment on the grounds that: (1) Plaintiff did not exhaust his administrative remedies; (2) Plaintiff does not establish that the force allegedly used by Defendants Hartman and Kozlowski constitutes a violation of the Eighth Amendment; and (3) Hartman's and Kingsley's alleged acts do not rise to the level of a constitutional ...