TYSHAUN MOSELY, Plaintiff, Pro Se, Orleans Correctional Facility, Albion, NY.
ROGER W. KINSEY, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, ESQ., Attorney General of the State of New York, Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Tyshaun Mosely brings this action, pursuant to 42 U.S.C. § 1983, alleging that Defendants (1) used excessive force upon him, (2) failed to protect him from the use of excessive force, (3) were deliberately indifferent to his serious medical needs, and (4) deprived him of due process at a prison disciplinary hearing. See generally Dkt. No. 1, Compl. Defendants now move for Summary Judgment. Dkt. No. 23. Plaintiff opposes the Motion. Dkt. No. 29. For the reasons that follow, we recommend that Defendants' Motion be GRANTED in part, and DENIED in part.
I. STANDARD OF REVIEW
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [FED. R. CIV. P. 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
Except where noted, the following facts are undisputed.
On August 19, 2011, a fight involving dozens of inmates erupted in the main yard at Clinton Correctional Facility ("CCF"). Dkt. No. 23-1, Defs.' Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Defs.' 7.1 Statement"), at ¶ 1. To regain control of the yard, correction officers fired multiple gunshots and ordered all inmates to lay down on the ground. Id. at ¶¶ 2 & 3. Officers then separated the inmates in the yard into three groups, those who were actively involved in or close to the fighting, those on the fringe of the fighting, and those who were not near the fighting but were in the yard. Id. at ¶¶ 3-6. Defendants claim that Plaintiff was amongst those inmates that were involved in or very near to the fighting. Id. at ¶¶ 16 & 22. Plaintiff disputes this claim. See Dkt. No. 23-4, Michael Guynup Decl., dated Aug. 23, 2012, Ex. D., Disciplinary Hr'g Tr., dated Aug. 26, 2011, at pp. 14-17.
After the melee ended, the inmates were removed from the yard and taken to the gymnasium where each inmate, including Plaintiff, was examined by the medical unit and photographed before being taken to their cells. Defs.' 7.1 Statement at ¶¶ 7-9. Plaintiff claims that while being transported from the main yard to the gymnasium, and while handcuffed behind his back, Defendants LeClair and Doe, "repeatedly punched and kicked [him] in the head, face and stomach." Compl. at ¶¶ 12-13. And that, once inside the gymnasium, in the presence of Defendants Matott, Fessette, and Guynup, "LeClair slapped [Plaintiff] across the face multiple times.... [and] several officers began punching and slapping [him] on the head and face. Others kicked [him] in the stomach and back." Id. at ¶¶ 14-16. Defendants deny that any such abuse occurred or that Defendants Matott, Fessette, or Guynup witnessed such abuse. See e.g. Defs.' 7.1 Statement at ¶¶ 12-13. Defendants also allege that Plaintiff neither reported any injuries, nor requested any medical attention after the incident. Id. at ¶¶ 10-11 & 14. Contrariwise, Plaintiff claims he suffered back pain as a result of the incident, but did not report it because he "was intimidated by the officials not to report any injuries... to the medical staff." Compl. at ¶¶ 17 & 19.
Misbehavior reports were issued to those inmates involved in the fight, and Defendant Woodruff was temporarily assigned to CCF to conduct disciplinary hearings. Defs.' 7.1 Statement at ¶¶ 15, 17, & 19. After hearing the testimony of Defendant Sgt. Guynup and viewing the video of the melee, Plaintiff was found guilty and sentenced to eighteen-months confinement in a Special Housing Unit ("SHU") and a recommendation that he lose twelve-months of good time credit. Id. at ¶¶ 24. Plaintiff was released from SHU sixty-seven days later after the disciplinary decision was reversed on appeal and expunged. Id. at ¶¶ 25 & 26.
B. John Doe
Plaintiff named a John Doe Defendant in his Complaint. See generally Compl. However, to date, and despite being reminded by this Court,  Plaintiff has failed to ascertain the true identify of the Doe Defendant. Under FED. R. CIV. P. 4(c)(1) and 4(m), the plaintiff is responsible for service of the summons and complaint for each defendant within 120 days of the filing of the complaint. Failure to properly serve any defendant in accordance with the Federal Rules will result in the court, upon motion or on its own initiative, to dismiss the case without prejudice as to that defendant. Id. at 4(m). Here, Plaintiff had 120-days from December 10, 2011 - the day he ...