ELFVIN, Judge.
Plaintiff, proceeding pro se, commenced this action under 42 U.S.C. § 1983 for violations of his rights under the Eighth, Fifth and Fourteenth Amendments against Sgt. Mark Cunningham and six correctional officers at Comstock Correctional Facility for injuries suffered as a result of an alleged unprovoked beating he received while incarcerated there. Presently before this Court is defendants' motion for summary judgment. For the reasons that follow, defendants' motion will be granted as to plaintiff's Fifth and Fourteenth Amendment claims and as to plaintiff's Eighth Amendment claims against defendants in their official capacities. Defendants' motion will be denied as to plaintiff's Eighth Amendment claims against defendants in their individual capacities.
Plaintiff's Complaint alleges that on or about April 26, 1997 he was repeatedly physically beaten by Corrections Officers Brezezniak, Baines, Hunter, Dylag and Carriero. According to plaintiff, Bzrezniak was the initial aggressor and was later aided by the others. Officer Cramer was present but did nothing to stop the beating and Sgt. Cunningham was also present but did not intervene until several minutes had elapsed. After this beating had ceased, plaintiff was handcuffed and taken to see the ACF Medical Staff and subsequently taken to the Special Housing Unit ("SHU").
Unless otherwise noted, the statement of facts herein is taken from the Complaint because, as discussed infra, defendants' papers barely address the alleged beating suffered by plaintiff but rather only discuss the disciplinary proceedings which plaintiff claims deprived him of his due process and equal protection rights.
Later that day Brzezniak prepared and filed a misbehavior report against plaintiff accusing him of assaulting a staff member and of possessing weapons. On May 2, 1997 a Tier III disciplinary hearing was commenced. At this hearing plaintiff was permitted to call his own witnesses and cross-examine the opposing witnesses. The testimony at the hearing consisted of plaintiff's account of the incident wherein he alleges that he was the victim of an unprovoked attack — Transcript of Commissioner's Hearing ("Transcript") at 6-8 — and testimony from Bzrezniak stating that plaintiff had provoked the attack. Id at 2. At the conclusion of the hearing, plaintiff was found guilty as charged and subjected to the following sanctions, viz., — (1) SHU 180 days, suspended 30 days and deferred 180 days, (2) keeplock 130 days, suspended 100 and deferred 180 days, (3) 150 days' loss of phone, packages and commissary, (4) counseling and reprimand and (5) recommended loss of eight months' good time allowance.
Plaintiff filed an administrative appeal but the institutional decision was affirmed on July 23, 1997. Plaintiff then petitioned the New York Supreme Court, Wyoming County, to review the May 2nd holding and said court transferred the matter to the New York Supreme Court Appellate Division, Fourth Department, which affirmed the Tier III determination. He then brought the present action. The suit was brought against defendants "jointly, severally, and individually and in [their] official capacity." Complaint 10.
Following discovery, defendants moved for summary judgment on the following grounds: (1) plaintiff had received all the due process he was due at the Tier III disciplinary hearing, (2) the Eleventh Amendment bars this Court from hearing this case to the extent it is brought against defendants in their official capacity and (3) defendants lack personal participation with respect to the conduct of the disciplinary hearing.
As a preliminary matter, this Court must address two arguments raised by defendants — first, that the statutory period of limitations has expired and, second, that the Eleventh Amendment bars this suit. The statutory period of limitations for a section 1983 claim accruing in New York is three years. Jahory v. New York State Dept. of Educ., 131 F.3d 326, 331 (2d Cir. 1997). Here the claim accrued on April 26, 1997 and plaintiff's Complaint, which was dated by him April 20, 2000, was filed with this Court on May 2, 2000. The United States Supreme Court has noted the particular hurdles and disadvantages an incarcerated person faces when commencing an action and has instructed the district courts, for purposes of the statute of limitations, that filing occurs when the complaint is delivered to prison authorities to be forwarded to the district court. Houston v. Lack, 487 U.S. 266, 270 (1988). The burden of proving the date of delivery to the prison officials is placed upon the prison officials who are in the best position to establish such date. Garvey v. Vaughn, 993 F.2d 776, 781 (11th Cir. 1993); United States v. Grana, 864, F.2d 312, 316 (3d Cir. 1989). Plaintiff dated his Complaint April 20, 2000 and there is no reason to believe that he did not place his Complaint in the proper channels at that time. Therefore and because his claim was filed within the three-year statutory period of limitations, this Court will hear the claim.
The Eleventh Amendment is a bar to suits against the state in federal courts unless the state has consented to suit or Congress has expressly abrogated the immunity. Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir. 1997). It also bars suits against state officials when, regardless of what the caption says, the state is the real party in interest. Edelman v. Jordan, 415 U.S. 651, 663 (1974). When state officials are sued in their official capacity, the state is the real party in interest so the Eleventh Amendment bars such a suit. Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988). State officials sued in their individual capacities can be held liable; however, plaintiff can only look to the assets of the individual and not to those of the state. Ibid. Therefore, plaintiff's claims against the various defendants in their official capacities will be dismissed; however, his claims against them in their individual capacities are not barred and may continue.
Plaintiff is proceeding pro se and therefore this Court must pay special deference to him and his pleadings. His Complaint contained several paragraphs referencing the beating he received and each of these paragraphs concluded with a statement of which of his rights he believed the defendants had deprived him. Paragraph 12 alleges that defendants' acts were "outlawed" by the Fifth, Eighth and Fourteenth Amendments to the Constitution, as does paragraph 16.
Paragraph 14 alleges that defendants' acts were "outlawed" by the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments to the Constitution, as does paragraph 18. This Court must "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest argument that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
Internal citations omitted. This Court is convinced that plaintiff has received from defendant the notice which the Second Circuit Court of Appeals has recently stated is necessary for a district court to hear a summary judgment motion against a pro se litigant. Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001). Specifically, plaintiff received notice from defendants of the requirements necessary to respond to a motion for summary judgment and that failure to respond to such a motion may result in dismissal of all or part of his case.
When evaluating plaintiff's Complaint under this standard, it becomes clear to this Court that plaintiff's Complaint was based on the beating he allegedly received, in addition to the punishment he received as a result of the ensuing disciplinary proceedings. Based on these facts, this Court reads plaintiff's Complaint to contain claims under 42 U.S.C. § 1983 for violation of his Eighth Amendment right to be free from cruel and unusual punishment, as well as claims for violation of his right to due process and equal protection as guaranteed by the Fifth and Fourteenth Amendments.
The Supreme Court has long recognized that incarceration does not result in the stripping of one's due process rights when faced with prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 555-556 (1973). At a minimum, the prisoner is entitled to advance written notice of the charges against him and a written statement of the evidence relied upon by the factfinder and the reasons for the disciplinary action taken. Id. at 563. These steps were taken here. Plaintiff was permitted to call and cross-examine witnesses and was given all the evidence he requested. Therefore, plaintiff's due process rights have not been violated by defendants and summary judgment will be granted on such claim. In addition, plaintiff's Complaint states that his equal protection rights have been violated. There is nothing in the record to indicate that this claim has any merit and therefore summary judgment will be granted on this ground as well.
As mentioned supra, plaintiff's Complaint goes on for six pages about alleged beatings by corrections officers at Comstock yet, with the exception of two brief references, he barely mentions the Eighth Amendment. Defendants' answering papers only mention a possible Eighth Amendment violation in their reply memorandum of law where they ask this Court to note that their memorandum of law in support of their motion for summary judgment did not address plaintiff's Eighth Amendment claim and, consequently, defendants argue that whether or not an assault occurred is a non-issue for the purpose of summary judgment. Defs.' Reply Mem. of Law at 6. This statement is rather ambiguous and leaves this Court wondering exactly what relief defendants were asking for with respect to plaintiff's Eighth Amendment claim. It is possible that they are not in fact asking for summary judgment on the Eighth Amendment claims to the extent that the action is not barred by the Eleventh Amendment, but only on the equal protection and due process claims. However and just to be certain and final, if defendants did in fact intend to move for summary judgement on plaintiff's Eighth Amendment claim, the undersigned notes that such motion would nonetheless be denied as far as plaintiff's Complaint is against defendants in their individual capacities, but would be granted to the extent that defendants are being sued in their official capacities.
The party seeking summary judgment bears the initial burden to come forward with support for his claim that there is in fact no genuine issue material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). "The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1985).
In an Eighth Amendment claim, "whether the measure taken inflicted unnecessary and wanton pain ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-321 (1985). In determining the wantonness of force the court may "evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson v. McMillan, 503 U.S. 1, 7 (1991).
Internal citations omitted.
Internal citations omitted.
Defendants have come forward with nothing to meet their initial burden to show the absence of a genuine issue of material fact as to whether plaintiff was beaten in violation of his Eighth Amendment rights. Specifically, they put forward no evidence to show either that the alleged beating did not occur or, if it did, that it was a justifiable use of force in response to behavior by plaintiff which threatened the safety of the staff. Defendants only put in the transcript from plaintiff's disciplinary proceeding in which there were a few brief references by corrections officers that their use of force may have been justified. Plaintiff, on the other hand, has put in pleadings and other papers in which he swears that he was subjected to an unprovoked attack. The entire record before this Court can be summarized as pitting plaintiff's word that the beating was unprovoked and excessive versus defendants' word that the plaintiff had a weapon and was violently resisting arrest. This is a factual issue which will be heard by a jury and therefore defendants' summary judgment motion will be denied.
Plaintiff's Complaint was verified and therefore can be treated as an affidavit for summary judgment purposes. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Accordingly, it is hereby ORDERED that defendants' summary judgment motion is granted as to plaintiff's due process and equal protection claims and on plaintiff's Eighth Amendment claims against defendants in their official capacity, that defendants' motion for summary judgment is denied on plaintiff's Eighth Amendment claim against defendants in their personal capacity and that the parties shall appear before the undersigned on the 30th day of November, 2001 at 3:00 p.m. or as soon thereafter as the matter may be heard to set a date for trial.