The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is defendants' motion to dismiss for failure to exhaust administrative remedies or, in the alternative, for summary judgment (Doc. 30).
A. Plaintiff's Allegations
Plaintiff names the following as defendants: Plainer, Amero, and Harrison. He states that his cell was searched on January 10, 2007, incident to a lock-down. According to plaintiff, "[a]n issue arose over an item of my property and I felt that staff were violating my rights and specific Title 15 rules regarding that property." He states that the searching officers had questioned his right to possess a book entitled The Art of Seduction. Plaintiff alleges that defendant Plainer instructed the officer to send the book to the institutional investigations and security unit while plaintiff filed an inmate appeal. However, plaintiff states that the officer ignored defendant Plainer's instructions and instead gave plaintiff the choice of either donating the book or sending it home.
Plaintiff felt the officer was acting contrary to the rules and defendant Plainer's instructions because there had been an earlier incident of staff being met with physical force by prisoners. For this reason, plaintiff then stated: "And you wonder why some prisoner's respond to your illegal behavior with violence." According to plaintiff, this caused the officer to become very agitated. Plaintiff states that the officer took him to see defendant Plainer at which time "an exaggerated summary of what I had said was conveyed to [Plainer] by the officer." Plaintiff claims that defendant Plainer then turned to him and said: "Okay, you want to make this personal." Following this statement, plaintiff was taken to the program office and surrounded by "approximately fourteen officers in an attempt to intimidate me and/or provoke me to violence by making derogatory statements to me." Specifically, plaintiff alleges that various officers said words to the effect that "you islanders are nothing but 'niggers.'" Plaintiff refused to respond and states that he was then escorted back to his housing unit by defendants Amero and Harrison.
According to plaintiff, as he was being escorted, defendant Harrison said something to him which he did not hear due to a hearing disability. Plaintiff states that he turned his head to better understand defendant Harrison and that "at that very moment both sergeants immediately picked me up and threw me to the ground face first with substantial force." Plaintiff alleges that, while on the ground, defendant Amero "began smashing the left side of my face against the concrete" while defendant Harrison "places his left knee into my back using his body weight to smash me into the ground, while simultaneously striking me with his baton to my knees, thighs, back, and elbow. . . ." At that point, defendant Amero said: "That should teach you fucking Islanders to fuck with us." Plaintiff states that his injuries were so severe that he could not stand or walk and had to be carried to the medical facility.
Plaintiff claims he was subjected to excessive force and that such force was applied " in retaliation" because he is of the same racial/ethnic group as a group of inmates involved in a prior incident.*fn1
Defendants have submitted a separate statement of undisputed facts, with supporting exhibits, which establish the following:
1. Plaintiff's cell block was on lock-down on January 10, 2007, while guards conducted cell searches;
2. Officers found contraband, a book entitled The Art of Seduction in plaintiff's cell;
3. Plaintiff demanded to know why the book was being confiscated and he was escorted to see defendant Plainer who explained why the book was considered contraband;
4. Plaintiff became agitated and highly argumentative and so Plainer ordered plaintiff removed from the housing unit because he was disrupting the ongoing cell searches;
5. Plainer ordered defendant Harrison to escort plaintiff to the program office to discuss the book further with another officer;
6. Plainer had no further interaction with plaintiff that day;
7. In the program office, plaintiff remained upset and angry about the confiscated book;
8. Shortly later, plaintiff was handcuffed with his hands behind his back and escorted by defendants Amero and Harrison back to his cell;
9. During the escort back, plaintiff continued to argue about the book;
10. About ten feet away from the entrance to plaintiff's cell block, plaintiff turned his head towards Harrison and stated: "I ain't no bitch";
11. Plaintiff then attempted to break free from Harrison by ...