United States District Court, W.D. New York
DECISION AND ORDER
JEREMIAH J. McCARTHY, Magistrate Judge.
In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge . Before me is defendants' motion for summary judgement . For the following reasons, the motion is granted in part and denied in part.
Plaintiff, an inmate, commenced this action pro se pursuant to 42 U.S.C. §1983 against various correction officers employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). His alleged Eighth Amendment claims arise from two incidents occurring on February 1 and 18, 2010, while he was incarcerated at Southport Correctional Facility. Complaint .
A. The February 1, 2010 Incident
Beyond the allegations of the Complaint, there is little in the record concerning this alleged incident. Plaintiff's Complaint  alleges that when he arrived at Southport, defendant Richard Cecce made sexual advances toward him and tried to get him to move to the third floor of the facility, where he "would be taken care of nicely", but plaintiff denied those advances (id., ¶¶15, 17). Plaintiff testified that although he was subject to a medical permit that restricted him to a floor level, upon returning from a court trip on January 29, 2010, he was moved to the third floor of A-Block. Sleight Declaration , Ex. Q, pp. 17-19, 22. When plaintiff complained to a Sergeant about this move, the transfer was stopped and he was returned to his medical unit cell on B-Block (id., pp. 20-21, 23). Following this incident, plaintiff's Complaint alleges that Cecce told him, "you made me look bad... you're going to pay for it", and then assaulted him on the way to the shower on February 1, 2010, and charged with him with a false misbehavior report. Complaint , ¶¶19, 28.
B. The February 18, 2010 Incident
Plaintiff testified that on February 18, 2010, defendants Drew Onifer and Brian Crawford escorted him to the third floor. Sleight Declaration , Ex. Q, pp. 35, 37. While in the hallway of the third floor in front of the cells, defendant Richard Augustine made a sexual advance toward plaintiff and when he declined these advances, defendant Augustine "crushed [his] his head against the wall", causing a laceration (id., pp. 35-38). Plaintiff was then "drag[ged]" from the hall into the shower room on the third floor (id., p. 39). According to plaintiff, no other inmates on the floor could see into the showers from their cells, but the cells were in close enough proximity that the inmates in those cells could hear what was occurring in the shower room (id., p. 40).
Plaintiff initially testified that when he entered the shower room, he was thrown to the floor, but then clarified that he threw himself on the floor "because I knew where they were going" (id., pp. 40-41). He testified that he was then set on a bench and defendant Augustine unzipped plaintiff's pants and performed oral sex on him while defendant Onifer performed anal sex on defendant Augustine (id., pp. 40-44). Defendants Augustine and Onifer then switched positions (id., p. 46). While the alleged assault was occurring, plaintiff testified that defendant Crawford was "very agitated", "calling them all kinds of names and saying... he wasn't going to lose his job over their dirty fantasies" (id., p. 48). The incident eventually ended when defendant Crawford said that a "sergeant [was] coming or something" (id., p. 48). According to plaintiff, the incident lasted approximately 20 to 25 minutes (id., p. 47).
On the date of the alleged sexual assault, plaintiff was issued a misbehavior report by defendant Augustine charging him with refusing a direct order and with making threats. Sleight Declaration , Ex. C, Bates No. 001486. Although defendant Cecce was not present for the alleged February 18, 2010 incident, plaintiff's Complaint  alleges that he "set [him] up to be sexually assaulted on February 18, 2010" (id., ¶28).
To contradict plaintiff's version of events, defendants rely solely on the various reports prepared following the alleged incident. These reports indicate that on February 23, 2010, plaintiff first reported to Denise Fuller, LCSW-R, that he had been raped. Sleight Declaration , Ex. E, Bates No 001598. The memorandum prepared by Ms. Fuller states that plaintiff "would not provide any additional information, indicating I just need you to report this to Security'" (id.). On February 24, 2010, Captain Harry Hetrick prepared a memorandum to the Deputy Superintendent of Security ("DSS") Sheahan, indicating that while plaintiff was in his cell on February 23, 2010, he initially reported that "he had been sexually abused by staff in the A-12 shower, 5 days ago, and that C.O. Fluman had watched while 2 other C.O's abused him" (id., Ex. F, Bates No. 001597). Captain Hetrick also reported that when he and Kim Frey, LCSW-R, later interviewed plaintiff in an interview room, he stated that "C.O.'s Augustine and Onifer had physically abused him in the A-12 shower, while C.O. Crawford watched.... [and] that C.O. Crawford wanted no part of it" (id.). Ms. Frey's report of this interview (id., Ex. G, Bates No. 001599) is very different:
"Initially [plaintiff] indicated he was sexually assaulted on February 22, 2010, however he quickly altered this time frame to February 18, 2010 noting it occurred when he received his latest ticket. Mr. Orraca initially stated that the assault occurred while he was being brought from B block to A block however, he immediately changed the locale of the assault occurred to the Unit Shower. [Plaintiff] indicated that CO Onofer... and another CO whom he could not name, (but did physically describe) were responsible for his being sexually assaulted. A third CO was named by Mr. Orraca as a non-participant observer to the assault" (id.).
Following plaintiff's interview with Captain Hetrick and Ms. Frey, he was taken to the infirmary for an examination (id., Exs. F and G). The February 23, 2010 Ambulatory Health Record Progress Notes from that examination state that plaintiff "refused any medical care or examinations", and reported to Ben Oakes, RPA-C that "2 officers approached him asking for sexual favors... [and] they held their penises out, but there was no sexual contact. After he declined to participate, ... the 2 officers engaged in sexual activities [and] forced him to watch. He is unsure of the officers names that were involved" (id., Ex. I, Bates No. 000157). In a memorandum dated February 23, 2010, Mr. Oakes advised Captain Hetrick of what plaintiff reported (id., Ex. H, Bates No. 001600). At his deposition, plaintiff explained that he declined medical care and an examination, "[b]ecause I'm not letting nobody touch[ ] my penis again.... Even the medicals are homos". Sleight Declaration , Ex. Q, p. 53.
Defendants also rely upon a February 25, 2010 memorandum from DSS Sheahan to plaintiff, which states, in relevant part: "during my rounds on 2/24/10 I had a conversation with you concerning the allegations. At that time you conveyed to me that your allegations were false and that you registered them due to receiving a falsified misbehavior report from staff". Sleight Declaration , Ex. K, Bates No. 001596. Notwithstanding the varying accounts initially provided by plaintiff, defendants concede that at the February 25, 2010 Tier III disciplinary hearing arising from the February 18, 2010 misbehavior report (Sleight Declaration , Ex. D. Bates Nos. 001509-1511), plaintiff described the February 18, 2010 incident consistently with what is ...