The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the alleged violation of his rights under the First and Eighth Amendments. Currently pending before the court is the defendants' motion for summary judgment (Item 35).
Plaintiff commenced this action on April 26, 2010 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983 (Item 1). Specifically, plaintiff, an inmate at Attica Correctional Facility ("ACF"), alleges that he was choked and slapped by defendant Correction Officer ("CO") Diebel in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Additionally, plaintiff alleges that he was verbally threatened by defendant CO Hulton in retaliation for the filing of a grievance in violation of the First Amendment. In an order filed May 26, 2010, plaintiff was granted permission to proceed in forma pauperis (Item 5).
Defendants filed answers to the complaint on April 11, 2011 (Items 14, 15). On June 21, 2011, the parties consented to the referral of this matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636 (c) for all further proceedings including the entry of judgment (Item 20). Following the parties' exchange of discovery materials, on April 24, 2012, the defendants moved for summary judgment (Item 35). The notice of motion contained a "Notice to Pro Se Litigants Opposing Summary Judgment," in which plaintiff was advised that he may not oppose summary judgment simply by relying on the allegations in the complaint. Additionally, plaintiff was warned that if he failed to respond to the motion for summary judgment "on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true" and enter judgment in favor of defendant. Id., p.2.
The plaintiff has not filed a response to the motion. On October 25, 2011, the case was transferred to the docket of the undersigned (Item 37). The court has now determined that oral argument is unnecessary. For the reasons that follow, the defendants' motion for summary judgment is granted, and the complaint is dismissed.
In support of the motion for summary judgment, defendants have submitted a declaration with supporting exhibits, including a partial deposition transcript of plaintiff Joe Felder (Item 35, att. 3, Exh. A). Plaintiff stated that on his way to the recreation yard on July 18, 2009, defendant Diebel told plaintiff to "get on the wall." Id., p. 18. Eight officers were present. Id. at 21. Plaintiff testified that he was prompted by Diebel to put his hands on the door and spread his feet out, and was asked if he had anything sharp in his pocket. Id. When Plaintiff responded that he had nothing sharp, defendant Diebel searched plaintiff's pockets. Id., p. 21. He found cigarettes and threw them on the floor. Id. Plaintiff stated that defendant Diebel then told plaintiff to turn around. Id. Defendant Diebel took his right hand and grabbed plaintiff by the throat. Id. Plaintiff further testified that Diebel slapped plaintiff with his left hand and said, "Two years ago, you looked at me funny and gave me the evil eye, do you remember?" Id., pp. 21-22. Plaintiff answered "No," and was slapped again by Diebel on the left side of plaintiff's face. Id., p. 22. Plaintiff stated that he instantly felt pain and was woozy, "like he knocked me out." Id. at 23-24. He "saw stars," but did not have the wind knocked out of him . Id., p. 24. Instead of going to the yard, plaintiff stated that "they sent me right back upstairs because he knew he hurt me." Id. at 24. In a grievance dated July 18, 2009, plaintiff stated that defendant Diebel threatened, "Next time I'll kill your ape ass." (Item 1, p. 9).
During the investigation of plaintiff's grievance, the defendants presented a significantly different version of events. Defendant Diebel reported that he conducted a random pat frisk under the supervision of Sergeant Cheney in B-Block while plaintiff was going to the recreation yard (Item 35, att. 4, Exh. A, p. 12). CO Diebel found a cassette tape on plaintiff during the pat frisk. Id. Sergeant Cheney stated that he was present and authorized the pat frisk of plaintiff by CO Diebel. Id., p. 19. CO Diebel and Sergeant Cheney both asserted that plaintiff was able to return to his cell with the cassette tape instead of proceeding to recreation and that plaintiff was neither struck, choked, nor hit by CO Diebel or any other officer. Id., pp. 12, 16, 19.
On July 20, 2009, plaintiff requested medical treatment, complaining of injuries he received during the alleged assault of July 18, 2009 (Item 35, att.4, Exh. A, p. 13). At approximately 1:05 pm, plaintiff was examined by Jacqueline Berlinghoff, RN (Item 35, att. 5, ¶ 5). Berlinghoff concluded that, although plaintiff complained of face pain and a sore throat, there was no "redness, bruising or scratches found on the face and no redness, cuts or abrasions present on the throat." Id. Additionally, Nurse Berlinghoff "saw no visible signs of an excessive use of force . . . [and] no injury consistent with plaintiff's allegations of being slapped, punched or choked." Id., ¶ 7. No treatment was necessary (Item 35, att. 4, Exh. A, p. 13).
Plaintiff testified that on August 6, 2009, while in the mess hall, defendant Hulton approached him and said, "Why you looking at me?" and "I better not catch you looking at me nowhere in this facility because if I catch you looking at me in the facility again, I'm going to f- you up . . . and I don't care where in the building we at. Don't look at me." (Item 35, att. 3, Exh. A, pp 36-37). Plaintiff admitted that CO Hulton did not strike him, but that he just "verbally threatened . . . and physically threatened" him. Id., p. 38.
On August 10, 2009, plaintiff filed a grievance, in which he stated that he believed Hulton's threat was in retaliation for his previous grievance against CO Diebel (Item 35, att. 4, Exh. B, p. 26). In response to the grievance, CO Hulton stated that he "called [plaintiff] out of line while exiting the messhall to inform him that while in the messhall he must face forward in his seat at all times." Id., p. 30. CO Hulton denied any harassment, threats, or retaliation. Id.