THOMAS P. GRIESA, District Judge.
On March 4, 2010, pro se plaintiff and prisoner, Damon Vincent, commenced this action pursuant to 42 U.S.C. §1983 against Correctional Officer defendants Sitnewski, Frederick, Kovas, Relf, Carter, Stetson, Depo, and Schmidt. The complaint alleges that defendants took adverse action against Sitnewski in retaliation for certain grievances and lawsuits which Vincent filed, and also alleges violations of Eighth Amendment rights.
On September 30, 2011, the court dismissed one of Vincent's six claims. On February 11, 2013, defendants moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings with respect to the remaining five claims. The motion is denied.
It is relevant to the retaliation claims that Vincent lists at the beginning of the complaint two lawsuits brought by him relating to his imprisonment. The first such lawsuit was brought in the Northern District of New York in June of 2007. According to the complaint, it was still pending until December 21, 2009 when it was settled. The second lawsuit was brought in the Western District of New York and was commenced in September of 2007. It was pending until December 21, 2009 when it was settled.
THE FIRST CLAIM
In this claim Vincent alleges that Corrections Officer ("CO") Sitnewski sexually assaulted him because of his pending lawsuits. In particular, Vincent alleges that on March 11, 2009, Sitnewski conducted a pat and frisk search on Vincent, groping and fondling Vincent's genital area. Sitnewski allegedly stated to Vincent: "Isn't one of your lawsuits about this, can't nobody see if I fuck you in the ass." As a result, Vincent claims that he had problems sleeping because the "sexual assault" was a violation of his Muslim religious beliefs. Attached as an exhibit to the complaint is a grievance filed against defendant Sitnewski on March 16, 2009, alleging sexual assault and harassment and retaliation.
THE SECOND CLAIM
Vincent's Second Claim alleges failure to protect against defendants Frederick, Kovas, and Relf. In particular, the complaint alleges that a fight occurred on May 8, 2009, at which time Vincent, a non-participant, was assailed from behind by another unidentified inmate in the prison yard. Vincent alleges that defendants watched the fight proceed for nearly 5 minutes from their watch posts and failed to intervene; the fight was broken up by fellow prisoners; Vincent suffered severe facial lacerations as a result of the fight; and Fredrick and Relf thereby failed to protect Vincent in violation of his constitutional rights. Vincent alleges that defendants' failure to act violated his Eighth Amendment right to be free from cruel and unusual punishment. Vincent filed a grievance on this subject on May 20, 2009, which is attached the complaint.
THE THIRD CLAIM
In the Third Claim, Vincent alleges that certain improper actions were taken against him in retaliation for his filing of grievances. However, the only grievance actually referred to is a grievance dated May 28, 2009, which is about the conduct alleged in the third claim. This is attached to the complaint. However, in addition to the alleged retaliation, Vincent alleges cruel and unusual punishment in violation of the Eighth Amendment.
Returning to the subject of grievances, the complaint alleges that defendant Carter asked Vincent about "two recent grievances, " and that Carter rushed into Vincent's cell, wrestled Vincent on to his bed, and said to Vincent, "That will keep you from complaining, you will learn asshole."
The complaint alleges that at this time, 2:00 PM on May 22, 2009, Vincent was handcuffed to the side of his bed so that he could not move or use the bathroom. The complaint alleges that another inmate gave adult diapers to Vincent. According to the complaint, Vincent was not released from this handcuffing until about 8:30 AM on May 23, 2009. ...