United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, Jr., District Judge.
Plaintiff Pedro Vega ("Plaintiff"), who is proceeding pro se, is an inmate in the custody of the New York State Department of Corrections at Wende Correctional Facility. Plaintiff commenced this action alleging his First and Eighth Amendment rights were violated under the United States Constitution and 42 U.S.C. § 1983.
In his Complaint, Plaintiff asserts 11 causes of action alleging excessive use of force, sexual misconduct and negligence by C.O. Daniel W. Hatfield ("Hatfield"), C.O. Matthew A. Mann ("Mann"), C.O. Edwin Mendez ("Mendez"), C.O. Andrew Olivieri ("Olivieri"), as well as allegations of failure to intervene against Sergeant Richard Beall ("Beall") (collectively, "Defendants"). Dkt. #1. All Defendants are correctional officers employed by the State of New York and Sergeant Beall is the correctional supervisor for all other Defendants. Plaintiff's 1st Cause of Action alleges Hatfield engaged in sexual misconduct and violated Plaintiff's Eighth Amendment Right. The 2nd, 4th, 5th, 6th, 7th, and 8th Causes of Action allege Defendants Hatfield, Olivieri, Mann, and Mendez engaged in excessive force against Plaintiff. In the 3rd, 9th, and 11th Causes of Action, Plaintiff alleges that Defendants Mann, Olivieri, and Beall failed to intervene on Plaintiff's behalf to defend his Constitutional rights. In the 10th Cause of Action, Plaintiff alleges that Defendants Hatfield, Mann, Olivieri, Mendez, and Beall were negligent in their various activities.
Currently before the Court is Defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, as well as Plaintiff's Cross Motion for Partial Summary Judgment and Response to Defendants' Motion for Summary Judgment, respectively. Dkt. ## 48, 51. For the reasons that follow, Defendants' Motion for Summary Judgment is granted in part and denied in part. Plaintiff's Cross Motion for Partial Summary Judgment is denied in all respects.
Plaintiff alleges that on January 8, 2007, Defendant Hatfield, stopped him outside his cell when Plaintiff was walking to a medical checkup. Compl. ¶¶ 13, 15. Hatfield ordered Plaintiff to assume the pat frisk position. Compl. ¶ 16. Plaintiff asked why he was the only one being stopped and Hatfield responded, "it's your turn to get molested, " and intentionally and forcibly touched Plaintiff's genitals three times during the pat frisk. Id. Plaintiff alleges that Hatfield stated, "this is what I like" (after gratifying himself a second time). Compl. ¶ 20. Plaintiff was then informed by Hatfield that they were "almost finished" when, for a third time, Hatfield gratified himself by groping the Plaintiff's private. Compl. ¶ 24. Plaintiff told Hatfield he felt his actions were inappropriate and would be filing a grievance against him. Id.
Thereafter, Hatfield struck Plaintiff in the face and head numerous times until Plaintiff fell to the floor. During that time Hatfield stated, "you won't be filing a grievance for quite some time." Compl. ¶ 28. Three other Defendants present at the scene, Olivieri, Mendez, and Mann, joined the assault on the Plaintiff. Hatfield and Olivieri continued beating Plaintiff on the floor while Mann held Plaintiff's legs. Compl. ¶ 37. Thereafter, Defendant Mann continued to hold Plaintiff's legs as Olivieri smashed Plaintiff's head on the floor. Compl. ¶ 31. As a result, Plaintiff received a laceration above his left eye and loss of consciousness. Id. After he regained consciousness, Plaintiff claims he was amongst a group of officers including Sergeant Beall. Compl. ¶ 32. Beall ordered Defendant Mendez to lift Plaintiff off the floor, as Mendez performed the action he punched Plaintiff in the stomach without provacation and Beall did not intervene. Compl. ¶¶ 33, 34. Defendants deny that the Plaintiff was touched inappropriately or that excessive force was used against him. Dkt. #48.
Defendants have moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on the grounds that Plaintiff's Complaint does not sufficiently allege (1) unconstitutional conduct occurred during the pat frisk; (2) that Defendants engaged in the use of excessive force and (3) that Defendant Beall failed to intervene. In response, Plaintiff has moved for partial summary judgment on the excessive force, failure to intervene, and sexual misconduct claims on the grounds that Defendants have failed to submit evidence rebutting Plaintiff's allegations.
I. Summary Judgment Standard
Under Rule 56(c), summary judgment is appropriate where the papers and affidavits submitted by the parties "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Furthermore, the moving party bears the burden of proving there is no genuine issue of material fact. In order for the non-moving party to survive a summary judgment motion, they must "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When a plaintiff is filing pro se, courts should interpret the litigants papers to raise the strongest arguments that they could suggest. Reyes v. McGinnis, No. 00-CV-6352-CJS, 2003 WL 23101781, at *2 (W.D.N.Y. Apr. 10, 2003). The pro se litigant must, however, make "specific allegations of fact indicating a ...