Full opinion text
DECISION and ORDER DAVID N. HURD, District Judge. Plaintiff, Injah Tafari, brought this civil rights action in June 2007, pursuant to 42 U.S.C. § 1983. By Report-Recommendation dated March 31, 2010, the Honorable George H. Lowe, United States Magistrate Judge, recommended that defendants’ motion for summary judgment (Dkt. No. 75) be granted in part and denied in part. The following claims should be dismissed: (1) the Eighth Amendment excessive force claim against defendant Jewett; (2) the failure-to intervene claims against defendants McCarthy, Matthews, and Deleo; (3) the due process claim against defendants Farrell and T.J. Brown regarding the destruction of personal property; (4) the access-to-courts claim against defendants McCarthy and Torres; (5) the free speech claim against defendants McCarthy and Torres; (6) the excessive force claim against defendant Farrell regarding the tobacco-spitting incident; (7) the claim that defendants Eagen, Miller, K. Lucas, and T. Lucas wrongfully restricted plaintiffs ability to file grievances; (8) the Eighth Amendment medical care claim against defendants Sisilli and Riester; (9) the Eighth Amendment conditions of confinement claim against defendants Miller, W. Brown, and Healy regarding recreation periods; (10) the retaliation claim against defendants Miller, W. Brown, and Healy regarding recreation periods; (11) the First Amendment claim against defendant Miller regarding Kosher meals; (12) the claim that defendants DiCairano and Leghorn violated plaintiffs constitutional rights by using racial epithets: (13) the Eighth Amendment excessive force claim against defendant Leghorn; (14) the Eighth Amendment medical care claims against defendants W. Brown, Gusman, and Inaganti regarding plaintiffs shoulder surgery; (15) the Eighth Amendment medical care claim against defendant Gusman regarding plaintiffs vision issues; (16) the claims regarding constant cell illumination and ventilation in the SHU; (17) any claim against defendant Healy for conducting a disciplinary hearing on October 28, 2005; (18) all claims against defendant Selsky; and (19) plaintiffs pendent state law claims. The Report-recommendation further recommended that defendants’ motion should be denied as to the following claims which should proceed to trial: (1)the Eighth Amendment excessive force claim against defendants Sisilli and Riester; (2) the Eighth Amendment excessive force claim against defendant T.J. Brown; (3) the Eighth Amendment excessive force claim against defendant Occhipinti; (4) the failure to intervene claim against defendant DiCairano; and (5) the procedural due process claim against defendant Healy regarding the hearing on the November 15, misbehavior report. Further recommendations were that the following claims should survive sua sponte review and also proceed to trial: (1) the retaliation claim against defendant T.J. Brown; and (2) the retaliation claim against defendants Occhipinti and DiCairano. The Report-Recommendation further recommended that the following claims be sua sponte dismissed: (1) the supervisory liability claims against defendant Miller regarding the urine-and-feces throwing incident and the mail tampering incident; (2) the failure-to-investigate claims against defendant Griffin regarding the urine-and-feces throwing incident and the mail tampering incident; (3) the retaliation claim against defendants McCarthy and Torres regarding the mail tampering incident; (4) the Eighth Amendment medical care claim against defendant Farrell regarding the tobacco spitting incident; (5) the claim that defendants K. Lucas, W. Brown, and Eagen failed to properly process plaintiffs grievances regarding the denial of Kosher meals; (6) the retaliation and due process claims against defendants Gusman, Griffin, Healy, Sisilli, and Riester regarding the March 1, March 2, June 27, October 11, October 12, and October 16, misbehavior reports and the disciplinary hearings that followed them; (7) the retaliation claim against defendant Occhipinti regarding the October 15, misbehavior report; and (8) the retaliation claims against defendants Griffin and Healy based upon their conduct during disciplinary hearings. The plaintiff has filed objections to the ReporL-Recommendation. Based upon a de novo review of the lengthy ReporL-Recommendation and the entire file, including those portions to which the plaintiff has objected, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1). Accordingly, it is ORDERED that 1. Defendants’ motion for summary judgment (Dkt. No. 75) is GRANTED in part and DENIED in part as follows: 2. The following claims are DISMISSED: (a) the Eighth Amendment excessive force claim against defendant Jewett; (b) the failure-to intervene claims against defendants McCarthy, Matthews, and Deleo; (c) the due process claim against defendants Farrell and T.J. Brown regarding the destruction of personal property; (d) the access-to-courts claim against defendants McCarthy and Torres; (e) the free speech claim against defendants McCarthy and Torres; (f) the excessive force claim against defendant Farrell regarding the tobacco-spitting incident; (g) the claim that defendants Eagen, Miller, K. Lucas, and T. Lucas wrongfully restricted plaintiffs ability to file grievances; (h) the Eighth Amendment medical care claim against defendants Sisilli and Riester; (i) the Eighth Amendment conditions of confinement claim against defendants Miller, W. Brown, and Healy regarding recreation periods; (j) the retaliation claim against defendants Miller, W. Brown, and Healy regarding recreation periods; (k) the First Amendment claim against defendant Miller regarding Kosher meals; (l) the claim that defendants DiCairano and Leghorn violated plaintiffs constitutional rights by using racial epithets: (m) the Eighth Amendment excessive force claim against defendant Leghorn; (n) the Eighth Amendment medical care claims against defendants W. Brown, Gus-man, and Inaganti regarding plaintiffs shoulder surgery; (o) the Eighth Amendment medical care claim against defendant Gusman regarding plaintiffs vision issues; (p) the claims regarding constant cell illumination and ventilation in the SHU; (q) any claim against defendant Healy for conducting a disciplinary hearing on October 28, 2005; (r) all claims against defendant Selsky; and (s) plaintiffs pendent state law claims. 3.Defendants’ motion is DENIED as to the following claims which will proceed to trial: (a) the Eighth Amendment excessive force claim against defendants Sisilli and Riester; (b) the Eighth Amendment excessive force claim against defendant T.J. Brown; (c) the Eighth Amendment excessive force claim against defendant Occhipinti; (d) the failure to intervene claim against defendant DiCairano; and (e) the procedural due process claim against defendant Healy regarding the hearing on the November 15, misbehavior report. 4. The following claims survive sua sponte review and will also proceed to trial: (a) the retaliation claim against defendant T. J. Brown; and (b) the retaliation claim against defendants Occhipinti and DiCairano. 5. The following claims are sua sponte DISMISSED: (a) the supervisory liability claims against defendant Miller regarding the urine-and-feces throwing incident and the mail tampering incident; (b) the failure-to-investigate claims against defendant Griffin regarding the urine-and-feces throwing incident and the mail tampering incident; (c) the retaliation claim against defendants McCarthy and Torres regarding the mail tampering incident; (d) the Eighth Amendment medical care claim against defendant Farrell regarding the tobacco spitting incident; (e) the claim that defendants K. Lucas, W. Brown, and Eagen failed to properly process plaintiffs grievances regarding the denial of Kosher meals; (f) the retaliation and due process claims against defendants Gusman, Griffin, Healy, Sisilli, and Riester regarding the March 1, March 2, June 27, October 11, October 12, and October 16, misbehavior reports and the disciplinary hearings that followed them; (g) the retaliation claim against defendant Occhipinti regarding the October 15, misbehavior report; and (h) the retaliation claims against defendants Griffin and Healy based upon their conduct during disciplinary hearings. 6.The Clerk is directed to return the file to the Magistrate Judge for further pretrial proceedings. IT IS SO ORDERED. REPORT-RECOMMENDATION AND ORDER GEORGE H. LOWE, United States Magistrate Judge. This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Injah Tafari alleges that the twenty-one named Defendants, all employees of the New York State Department of Correctional Services (“DOCS”) violated his constitutional rights by subjecting him to excessive force, destroying his personal property, interfering with his outgoing mail, restricting his ability to file grievances, denying him medical care, subjecting him to inhumane conditions of confinement, denying him Kosher meals, and falsely finding him guilty of disciplinary rules. Currently pending before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Dkt. No. 75), Plaintiffs motion to file a second amended complaint (Dkt. No. 84), and Plaintiffs motion to appoint counsel (Dkt. No. 93). For the reasons that follow, I recommend that Defendants’ motion be granted in part and denied in part and order that Plaintiffs motions be denied. 1. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT A. Applicable Legal Standards 1. Legal Standard Governing Motions for Summary Judgment Under Federal Rule of Civil Procedure 56, summary judgment is warranted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006). The nonmoving party must do more than “rest upon the mere allegations ... of the [plaintiffs] pleading” or “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir.2008). 2. Legal Standard Governing Motions to Dismiss for Failure to State a Claim To the extent that a defendant’s motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the allegations of the plaintiffs complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). As a result, “[wjhere appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) (citations omitted); accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties”). Accordingly, it is appropriate to summarize the legal standard governing Federal Rule of Civil Procedure 12(b)(6) motions to dismiss. A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-,-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). “Determining whether a complaint states a plausible claim for relief ... requires the ... court to draw on its judicial experience and common sense ... [Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief.” Id. at 1950 (internal citation and punctuation omitted). “In reviewing a complaint for dismissal under [Rule] 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994) (citation omitted). Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). However, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (internal quotation and citation omitted). Of course, an opportunity to amend is not required where the plaintiff has already amended the complaint. See Advanced Marine Tech. v. Burnham Sec., Inc., 16 F.Supp.2d 375, 384 (S.D.N.Y.1998) (denying leave to amend where plaintiff had already amended complaint once). In addition, an opportunity to amend is not required where “the problem with [the plaintiffs] causes of action is substantive” such that “better pleading will not cure it.” Cuoco, 222 F.3d at 112 (citation omitted). B. Urine and Feces Throwing Incident On January 27, 2005, Plaintiff was awakened by the presence of a cold substance which he later determined to be urine and feces. (Am. Compl. ¶ 17, 20; Pl.’s Dep. 15: 4-16, 16:15-20, Mar. 18, 2008.) Upon scanning his cell, Plaintiff discovered Defendant Sergeant C. Jewett standing in his doorway with a white cup accompanied by Defendants Officers Kevin McCarthy and L. Matthews. (Am. Compl. ¶ 17.) When Plaintiff inquired into Defendant Jewett’s actions, the Defendants laughed and Defendant Jewett said, “That asshole is now up for the count.” (Am. Compl. ¶ 18.) Defendant McCarthy additionally stated, “You better start sleeping with your hearing aid on because I am going to write you a misbehavior report every time you don’t stand up for the 6:30 a.m. count.” (Am. Compl. ¶ 18.) Defendant Matthews added, “Next time I’m gonna kick [your] ass [if] you don’t stand up for my count.” (Am. Compl. ¶ 19.) Defendant Officer C. Deleo then closed Plaintiffs cell door. (Am. Compl. ¶ 19.) In a report filed after this incident, Defendant Jewett stated he threw a three ounce cup of water on Plaintiff to wake him because Plaintiff was “unresponsive to the officers during their 6:30 am count.” (Dkt. No. 75-22 at 10.) Plaintiff does not allege that he suffered any physical injury as a result of this incident. Plaintiff reported the January 27 incident to Defendant Officer Thomas Farrell and requested that the area supervisor be notified of the treatment he was receiving. (Am. Compl. ¶ 20.) Defendant Farrell told Plaintiff that he would notify the area supervisor of his concerns. (Am. Compl. ¶ 20.) Plaintiff also reported the incident to Defendant David Miller, who at that time was the acting Superintendent at Eastern, as he was making his rounds of the Special Housing Unit (“SHU”) and showed Miller the bed linens soiled from Defendant Jewett’s actions. (Am. Compl. ¶ 21; Pl.’s Dep. 16:15-18.) Defendant Miller told Plaintiff that a Captain would conduct an investigation, that he would be seen by medical personnel, and that he would be provided with a change of linen. (Am. Compl. ¶ 21; Miller Decl., Dkt. No. 75-32 ¶ 3.) Defendant Captain Patrick Griffin was sent to conduct the investigation later that day and allegedly looked into the cell without saying a word or requesting any of the assistance offered by Defendant Miller. (Am. Compl. ¶ 22; PL’s Dep. 17:3-9.) After this incident, Plaintiffs family called Glenn Goord, who was then the commissioner of DOCS. He ordered that a more extensive investigation be conducted. (PL’s Dep. 18:2-1-25.) Defendant Jewett admits to throwing something on Plaintiff. However, he claims the substance thrown was water, not urine and feces. (PL’s Dep. 19:3-6; Jewett Decl., Dkt. No. 75-32 ¶ 9.) I construe the complaint as asserting the following claims: (1) an Eighth Amendment excessive force claim against Defendant Jewett; (2) a failure to intervene claim against Defendants Matthews, McCarthy, and Deleo; (3) a supervisory claim against Defendant Miller; and (4) a claim that Defendant Griffin failed to properly investigate the incident. 1. Excessive Force Plaintiff claims that Defendant Jewett exercised excessive force by throwing urine and feces on him while he was sleeping. (Am. Compl. ¶ 70.) Defendants argue that this claim should be dismissed because the force used was de minimis. (Defs.’ Br., Dkt. No. 75-34 at 15-16.) When prison officials are “accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The extent of any injury suffered by the inmate “is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Id. at 7, 112 S.Ct. 995 (citation and quotation marks omitted). In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by responsible . officials, and any efforts made to temper the severity of a forceful response. The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it. Id. (citation and quotation marks omitted). In other words, not “every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment’s prohibition of cruel and usual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10, 112 S.Ct. 995 (citation omitted). The force used here was de minimis. See DeArmas v. Jaycox, No. 92-CV-6139, 1993 U.S. Dist. LEXIS 1292, 1993 WL 37501 (S.D.N.Y. Feb. 8, 1993), aff'd, 14 F.3d 591 (2d Cir.1993) (holding that punching an inmate in the arm and kicking inmate in the leg was de minim-is ); Candelaria v. Coughlin, 787 F.Supp. 368, 374-75 (S.D.N.Y.1992) (pressing fist against inmate’s neck causing inmate to lose breath was de minimis force); Anderson v. Sullivan, 702 F.Supp. 424, 426-27 (S.D.N.Y.1988) (pulling on an inmate’s arms and forcing inmate’s face into cell bars was de minimis force); Brown v. Busch, 954 F.Supp. 588, 597 (W.D.N.Y.1997) (holding that pushing and striking an inmate causing inmate to stumble into his cell was de minimis force). The question, then, is whether the force used was “of a sort repugnant to the conscience of mankind.” For the purposes of this analysis I will view the evidence in the light most favorable to Plaintiff and assume that Defendant Jewett threw urine and feces, not water, on Plaintiff. This conduct, while certainly repulsive, is not sufficiently severe to be considered “repugnant to the conscience of mankind.” See Fackler v. Dillard, No. 06-10466, 2006 U.S. Dist. LEXIS 61480, 2006 WL 2404498, at *1 (E.D.Mich. Aug. 16, 2006) (holding that an officer who threw a four-ounce cup of urine on an inmate which caused no physical injury “was not so grievous as to rise to the level of an Eighth Amendment violation.”); Benitez v. Ham, No. 9:04-CV-1159, 2009 U.S. Dist. LEXIS 97495, 2009 WL 3486379 (N.D.N.Y. Oct. 21, 2009) (Mordue, J. and Lowe, M.J.) (holding that refusing to remove restraints around an inmate’s wrists after knowing that it was causing the inmate “‘extreme pain’ and ‘severe swelling’ ” was not “repugnant to the conscience of mankind”); Murray v. Goord, 668 F.Supp.2d 344 (N.D.N.Y.2009) (Scullin, J. and Peebles, M. J.) (holding that punching an inmate in the testicles and shoving inmate into cement was not “repugnant to the conscience of mankind”); Perry v. Stephens, 659 F.Supp.2d 577, 582-83 (S.D.N.Y.2009) (stating that slapping an inmate across the face several times is not the force “of a sort repugnant to the conscience of mankind”); compare Rembert v. Holland, 735 F.Supp. 733, 736 (W.D.Mich.1990) (stating that no penological goal was furthered when an off-duty officer entered an inmate’s cell, made sexual demands, and threw feces and urine on the inmate). Therefore, I recommend that the Eighth Amendment claim against Defendant Jewett be dismissed. 2. Failure to Intervene Plaintiff claims that Defendants Matthews, McCarthy, and Deleo violated his constitutional rights by failing to intervene before Defendant Jewett threw urine and feces on Plaintiff. (Am. Compl. ¶ 70.) Defendants argue that this claim should be dismissed because none of the accused Defendants had a “reasonable opportunity” to intervene and should not be held liable. (Defs.’s Br. at 15-16.) Defendants are correct. Law enforcement officials can be held liable under § 1983 for not intervening in a situation where another officer is violating an inmate’s constitutional rights. Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y.2008) (citation omitted). A state actor may be held liable for failing to prevent another state actor from committing a constitutional violation if “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s position would know that the victim’s constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.” Id. at 501 (citation omitted); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir.1997) (“Failure to intercede to prevent an unlawful arrest can be grounds for § 1983 liability.”). “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). As to Defendants Matthews and McCarthy, Plaintiff does not allege that either Defendant Matthews or Defendant McCarthy threw the liquid substance on him, but rather that they failed to stop Defendant Jewett from doing so. (Am. Comp. ¶ 17-19.) It is undisputed that Defendants Matthews and McCarthy were present in Plaintiffs cell at the time of the incident. However, given the brief and unexpected nature of the incident, both Defendants lacked reasonable opportunity to stop the alleged violation. See Cusamano v. Sobek, 604 F.Supp.2d 416, 429 (N.D.N.Y.2009) (excusing an officer from liability “despite his presence, if the assault is ‘sudden and brief,’ such that there is no real opportunity to prevent it”); Parker v. Fogg, No. 85-CV-177, 1994 U.S. Dist. LEXIS 1696,1994 WL 49696, at *30-31 (N.D.N.Y. Feb. 17, 1994) (holding that an officer is not liable for failure to intervene if there “was no ‘realistic opportunity’ to prevent [an] attack [that ends] in a matter of seconds”). The liquid throwing incident began and ended within a matter of seconds, an increment of time too “sudden and brief’ to give Defendants a “realistic opportunity” to respond and intervene on behalf of the Plaintiff. Cusamano, 604 F.Supp.2d at 429 n. 9. For these reasons, Defendants McCarthy and Matthews cannot be held liable for their failure to intervene and the claims against them should be dismissed. As to Defendant Deleo, Plaintiff additionally alleges that Defendant Deleo failed to intervene. In his complaint, Plaintiff concedes that Defendant Deleo’s only connection to this incident was that he “closed [Plaintiffs] cell door back from inside the [console].” (Am. Comp. ¶ 19.) This claim does not rise to the level of a cognizable claim because Defendant Deleo was not in Plaintiffs cell when the incident occurred and thus had no reasonable opportunity to intervene. A defendant who is not in the vicinity of the alleged constitutional violation, especially an isolated violation that occurs within seconds, cannot be held liable because he lacked reasonable opportunity to intervene. See Ford v. Moore, 237 F.3d 156, 163 (2d Cir.2001); Cusamano, 604 F.Supp.2d at 429 n. 9. Therefore, the claims against Defendant Deleo must be dismissed. 3. Defendant Miller Broadly construed, the complaint could be read as asserting a supervisory liability claim against Defendant Miller. Defendants have not addressed this claim. I find that it is subject to sua sponte dismissal. “ ‘[Pjersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). In order to prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the unlawful conduct and the defendant. If the defendant is a supervisory official, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. In other words, supervisory officials may not be held liable merely because they held a position of authority. Rather, supervisory personnel may be considered “personally involved” if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Broadly construed, Plaintiffs complaint alleges that Defendant Miller failed to remedy his situation after learning of it. This claim is without merit because [i]t has been ■ held that an appropriate guiding principle for determining personal responsibility is where a grievance alleges an ongoing constitutional violation, the supervisory official who reviews the grievance is personally involved if he is confronted with a situation that he can remedy directly. If the official is confronted with a violation that has already occurred and is not ongoing, then the official will not be found personally responsible for failing to remedy a violation. Harnett v. Barr, 538 F.Supp.2d 511, 524 (N.D.N.Y.2008) (Hurd, J.) (internal quotation omitted). Here, Defendant Miller was confronted with an alleged violation that had already occurred and was not ongoing. Therefore, he is not personally responsible for failing to remedy the alleged violation. Accordingly, I recommend that the Court dismiss this claim sua sponte. 4. Defendant Griffin Broadly construed, Plaintiffs complaint alleges that Defendant Griffin violated his constitutional rights by failing to conduct a thorough investigation of the incident. Defendants have not addressed this claim. I recommend that it be dismissed sua sponte because prisoners do not have a due process right to a thorough investigation of grievances. Torres v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y.2003). Therefore, Defendant Griffin did not violate any constitutional right even if, as Plaintiff alleges, he failed to thoroughly investigate the incident. C. Destruction of Personal Property Plaintiff alleges that on January 27, 2005, Defendant Officers Thomas Farrell and T.J. Brown removed Plaintiff from his cell to obtain his personal property. (Am. Compl. ¶ 23.) Plaintiff was escorted to the SHU day room where he noticed that all of his personal belongings had already been opened and spread out on the table. (Am. Compl. ¶ 23.) Plaintiff remained restrained and was told to stay seated when he noticed a garbage can full of his personal items. (Am. Compl. ¶ 24.); (Pl.’s Dep. 21:12-14.) These items included: thirty-five manila envelopes, 5,000 writing papers, sixty-seven bars of Dial soap, two 100-count boxes of white envelopes, two large manila envelopes with claim receipts, six large manila envelopes containing legal documents, two hair ties and two hearing aids. (Am. Compl. ¶24.) When Plaintiff reported this incident to the area supervisor, Defendant T.J. Brown told Plaintiff, “I’ll slap the living hell out of you if you keep running your mouth.” (Am. Compl. ¶ 25.) Defendant Farrell then stated, “Let’s take that nigger back to his cell,” and allegedly threatened to throw away Plaintiffs other personal items. (Am. Compl. ¶ 25.) On the way back to his cell, Plaintiff complained to Sergeant Pagnuchi about his items being thrown away, and some, but not all, of the items were returned. (Pl.’s Dep. 29:1-13.) Plaintiff alleges that Defendants Farrell and T.J. Brown violated his Fourteenth Amendment rights by throwing away several of his personal belongings. (Am. Compl. ¶¶ 23-24.) Defendants argue that Plaintiffs constitutional rights were not violated because a meaningful post-deprivation remedy was available. (Defs.’ Br. at 11.) “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (emphasis omitted). This Circuit has held that “confiscation ... [does] not constitute a Fourteenth Amendment violation for loss of property because of the availability of state court post-deprivation remedies” in the New York penological system. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996); see also Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (“Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process.”), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). After the alleged property destruction occurred, Plaintiff could have pursued numerous forms of recourse, including verbally complaining to supervisors and/or submitting a formal grievance. Plaintiff verbally reported the incident to Defendant T.J. Brown, but pursued no further administrative recourse through the grievance process. (Am. Compl. ¶ 24.) Thus, adequate post-deprivation remedies were available to Plaintiff after the alleged deprivation, but Plaintiff simply chose not to pursue those remedies. I therefore find that Plaintiffs due process rights were not violated and recommend that the Court dismiss this claim. D. Mail Interference Plaintiff alleges that he slid three manila envelopes under his door on January 27 to be mailed in compliance with Eastern SHU outgoing mail procedures. (Am. Compl. ¶ 26.) After discovering that the envelopes had never reached their destination, Plaintiff filed mail tampering complaints with the SHU staff. (Am. Compl. If 27; Pl.’s Dep. 35:8-15.) Defendant Griffin conducted the investigation regarding this incident. (Am. Compl. ¶ 28.) Defendants Officers Alex Torres and McCarthy later admitted to Plaintiff that they had thrown away his envelopes to “teach [Plaintiff] how to stand up for count.” (Am. Compl. ¶ 29.); (PL’s Dep. 37:3-16.) Plaintiff complained to Defendant Miller about this incident. (PL’s Dep. 37:17-21.) I construe the complaint as asserting the following claims: (1) an access to courts claim; (2) a free speech claim; (3) a retaliation claim; (4) a claim that Defendant Griffin failed to investigate the matter properly; and (5) a claim of supervisory liability against Defendant Miller. 1. Access to Courts Plaintiff alleges that Defendants McCarthy and Torres violated his Constitutional rights by throwing away his legal mail on January 27, 2005. (Am. Compl. ¶ 26-29.) “Interference with legal mail implicates a prison inmate’s rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). “A prisoner has a constitutional right of access to the courts for the purpose of presenting his claims, a right that prison officials cannot unreasonably obstruct and that states have affirmative obligations to affirm.” Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986) (citing Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). This right of access, however, guarantees a prisoner “no more than reasonable access to the courts.” Herrera v. Scully, 815 F.Supp. 713, 725 (S.D.N.Y.1993) (citing Pickett v. Schaefer, 503 F.Supp. 27, 28 (S.D.N.Y.1980)). A claim for reasonable access to the courts under § 1983 requires that an inmate demonstrate that the alleged act of deprivation “actually interfered with his access to the courts or prejudiced an existing action.” Id. (citations omitted). Courts have not found an inmate’s rights to be violated when the deprivation merely delays work on his legal action or communication with the court. Id. Moreover, the Second Circuit has held that a single, isolated incidence of mail interference is not a cognizable claim under § 1983. Govan v. Campbell, 289 F.Supp.2d 289, 297-98 (N.D.N.Y.2003) (citing Washington, 782 F.2d at 1136 (prisoner states a claim where he “indicates an alleged continuing activity rather than a single, isolated instance.”)). Here, Plaintiffs complaint alleges only one incident of mail tampering. (Am. Compl. ¶ 26-29.) In Davis, the Second Circuit dismissed an inmate’s alleged denial of access to the courts because his evidence only established two incidents of deprivation and thereby failed to establish “an ongoing practice by prison officials of interfering with his mail.” Davis, 320 F.3d at 352. Nothing in the record indicates that Plaintiff was subjected to more than one incident of mail interference and, as such, he does not have a cognizable claim under § 1983. Moreover, Plaintiff has failed to show any actual injury caused by this incident. Plaintiff does not allege that his access to the courts was chilled or that his ability to legally represent himself was impaired. Without actual injury, the court cannot allow for a cognizable claim under § 1983. Collins v. Goord, 438 F.Supp.2d 399, 415 (S.D.N.Y.2006) (citing Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)); Howard v. Leonardo, 845 F.Supp. 943, 946 (N.D.N.Y.1994) (Hurd, M.J.). Because Plaintiff cannot establish more than one incident of mail tampering or that he suffered any actual injury as a result of the Defendants’ conduct, I recommend that the Court dismiss his claim for denial of access to the courts. 2. Free Speech I construe Plaintiffs complaint as alleging that the mail tampering incident also violated his constitutional right to free speech under the First Amendment. Defendants argue that one incident of failing to send out Plaintiffs legal documents does not constitute a First Amendment claim. (Defs.’ Br. at 3.) The First Amendment protects an inmate’s “right to the free flow of incoming and outgoing mail.” Dolberry v. Levine, 567 F.Supp.2d 413, 419 (W.D.N.Y.2008) (citation omitted). However, courts in the Second Circuit have never held an isolated incident of mail tampering to violate an inmate’s First Amendment rights. Id.; Davis, 320 F.3d at 351. Again, Plaintiff has alleged only one incident of mail tampering by Defendants and he incurred no actual injury as a result of their conduct. Based on these facts, this incident simply cannot raise a valid free speech claim under § 1983 and I recommend that the Court dismiss the claim. 3. Retaliation Read broadly, I construe Plaintiffs complaint to allege that Defendant McCarthy threw out Plaintiffs legal mail in retaliation for reporting the urine and feces throwing incident earlier that day. (Am. Compl. ¶ 29.) Defendants have not addressed this claim. Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that in a prison setting, corrections officials may not take actions that would have a chilling effect upon an inmate’s exercise of First Amendment rights. See id. at 381-83. Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted, [t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners’ claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citations omitted), overruled on other grounds, Swierkiewiez v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). To prevail on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove by the preponderance of the evidence that: (1) the speech or conduct at issue was “protected”; (2) the defendants took “adverse action” against the plaintiff; and (3) there was a causal connection between the protected speech and the adverse action — in other words, that the protected conduct was a “substantial or motivating factor” in the defendants’ decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). Here, there is no question that Plaintiffs conduct was protected by the Constitution because the First Amendment protects an inmate’s “right to the free flow of incoming and outgoing mail.” Dolberry v. Levine, 567 F.Supp.2d 413, 419 (W.D.N.Y.2008) (citation omitted). This right is well established in case law and is uncontroverted between the parties in the present matter. Because Plaintiff has an established constitutional right, the next inquiry in a claim of retaliation is whether the Defendants took an “adverse action.” The Second Circuit defines “ ‘adverse action’ objectively, as retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.’ ” Gill, 389 F.3d at 381 (quoting Davis, 320 F.3d at 353, superceded by 320 F.3d 346 (2d Cir.2003)) (emphasis in original). The Second Circuit has “made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.” Id. at 381. Courts in this circuit have held that claims of mail tampering do not constitute adverse action. See Rivera v. Pataki, No. 04 Civ. 1286, 2005 U.S. Dist. LEXIS 2747, 2005 WL 407710, at *19 (S.D.N.Y. Feb. 7, 2005) (holding that several incidents of “actively preventing] [plaintiff] from mailing his documents ... did not constitute adverse action”); Battice v. Phillip, No. CV-04-669, 2006 U.S. Dist. LEXIS 53407, 2006 WL 2190565, at *6 (E.D.N.Y. Aug. 2, 2006) (“allegations that [defendant] withheld [plaintiffs] mail ... do not constitute adverse actions.”). Therefore, I recommend that the Court dismiss this claim sua sponte. 4. Defendant Griffin Read broadly, Plaintiffs complaint alleges that Defendant Griffin violated his constitutional rights by failing to conduct a thorough investigation of the incident. Defendants have not addressed this claim. I find that this claim is subject to sua sponte dismissal because prisoners do not have a due process right to a thorough investigation of grievances. Torres v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y.2003). Therefore, I recommend that the Court dismiss this claim. 5. Defendant Miller I construe Plaintiffs complaint to allege Defendant Miller, in his supervisory capacity, deprived Plaintiff of his constitutional rights with regards to the mail tampering incident. Defendants have not addressed this claim against Defendant Miller. I find that this claim is subject to sua sponte dismissal because Defendant Miller was not personally involved in the alleged violation. The SHU mail policy required “inmates to place all outgoing mail under their cell doors, to be picked up by the S.H.U. officers on the midnight shift and taken to the chart office.” (Miller Decl. ¶ 11.) At the time of the mail tampering incident, Defendant Miller was the Superintendent of Eastern Correctional Facility. (Miller Decl. ¶ 1.) Plaintiff does not allege that Defendant Miller misplaced his mail, but rather that Defendant Miller failed look into the matter after Plaintiff complained to him. (Pl.’s Dep. 37:17-38:1.) Absent a showing that Defendant Miller personally played a role in the loss of Plaintiffs legal mail, he cannot be held liable. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (“Absent some personal involvement by [defendant] in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983.”). Because Plaintiff does not allege that Defendant Miller lost his mail, I recommend that the Court sua sponte dismiss the claim against Defendant Miller. E. Tobacco Incident Plaintiff alleges that on March 7, 2005, Defendant Farrell escorted him to the recreation area and, once Plaintiff was secured, spit chewing tobacco in Plaintiffs face. (Am. Compl. ¶ 30; Pl.’s Dep. 42:14-19.) Plaintiff does not allege that any injury resulted from this incident. However he does allege that his request for medical treatment immediately after the incident was denied. (Am. Compl. ¶ 30.) Plaintiff alleges that he immediately reported this incident to Deputy Winlin and requested a sick call, but that Defendant Farrell would not allow for one. (Pl.’s Dep. 43:10-25.) I construe the complaint as asserting: (1) an Eighth Amendment excessive force claim against Defendant Farrell; and (2) an Eighth Amendment medical claim against Defendant Farrell. 1. Excessive Force Plaintiff alleges that Defendant Farrell violated his Eighth Amendment rights by spitting chewing tobacco in his face. (Pl.’s Br., Dkt. No. 80-1 at 2.) Defendants argue that this single incident does not constitute excessive force. (Defs.’ Br. at 17.) Defendants are correct. As a matter of law, a single incident of spitting does not constitute excessive force. See Greene v. Mazzuca, 485 F.Supp.2d 447, 451 (S.D.N.Y.2007) (citation omitted) (holding that yelling, spitting at and threatening an inmate do not “rise to the level at which prevailing doctrine sets the constitutional bar to establish cruel and unusual punishment”); Headley v. Fisher, No. 06 CV 6331, 2008 U.S. Dist. LEXIS 37190, 2008 WL 1990771, at *14 (S.D.N.Y. May 7, 2008) (holding that spitting in plaintiffs face, slapping and pushing twice did not give rise to the claim of excessive force). Therefore, I recommend that the Eighth Amendment claim against Defendant Farrell be dismissed. 2. Denial of Medical Care Plaintiff claims that Defendant Farrell denied him medical treatment after the tobacco incident. (Am. Compl. ¶ 30.) Defendants have not addressed this issue. I find that this claim is subject to sua sponte dismissal. There are two elements to a prisoner’s claim that prison officials violated his Eighth Amendment right to receive medical care: “the plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009) (citation and punctuation omitted). “The objective ‘medical need’ element measures the severity of the alleged deprivation, while the subjective ‘deliberate indifference’ element ensures that the defendant prison official acted with a sufficiently culpable state of mind.” Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003) (citation omitted). Here, Plaintiff has not alleged and the evidence does not show that he suffered any physical injury as a result of this incident. As such, his condition fails to meet the objective prong for medical indifference in that any injury he may have suffered was not “serious” and the court need not address the second element of deprivation. For these reasons, I recommend that the claim against Defendant Farrell for medical indifference be dismissed. F. Grievance Restriction Plaintiff filed 115 grievances against Eastern staff in the two-month period between January 24, 2005 and March 24, 2005. (Defs.’ Br. at 4). On March 25, 2005, Defendant Inmate Grievance Program Director Thomas Eagen served Plaintiff with a grievance restriction alleging that he had acted in bad faith by inundating the program with multiple grievances. (Am. Compl. ¶ 31; Pl.’s Dep. 45:8-11.) Defendant Eagen’s grievance restriction limited the number of grievances Plaintiff was allowed to file to two per week. (Eagen Decl. at 3). Plaintiff believes that Eagen relied on false statements made by Defendants Miller, Inmate Grievance Program Supervisor Kathleen Lucas and Sergeant Theodore Lucas. (Am. Compl. ¶ 31.) These Defendants allegedly reported that Plaintiff had stated, “The war is on.” (Am. Compl. ¶ 31; Pl.’s Dep. 48:1-10.) Plaintiff filed a grievance with Commissioner Glenn Goord about the restrictions placed upon him by Defendant Eagen. (PL’s Dep. 46:1-14.) Plaintiff claims that his access to the grievance program was unfairly restricted, that he was denied access to the courts, and that Defendant Eagen prevented his grievances from being fully exhausted on appeal. (Am. Compl. ¶ 33.) Defendants argue that this claim should be dismissed because Plaintiff has no constitutional right to file a grievance and Defendant Eagen had sufficient information to determine that Plaintiff was abusing the grievance process. (Defs.’ Br. at 3-4.) Defendants are correct. Many states, including New York, have voluntarily instituted inmate grievance programs to resolve problems between inmates and staff members. Shell v. Brzezniak, 365 F.Supp.2d 362, 369-70 (W.D.N.Y.2005). While the First Amendment guarantees the right of access to courts, grievance programs were undertaken voluntarily and have no legal basis in the Constitution. Therefore these programs are not considered constitutional rights. Cancel, 2001 WL 303713 at *3-4, 2001 U.S. Dist. LEXIS 3440 at *9-10. Thus, courts have consistently held that violations of those procedures or the state’s failure to enforce them does not give rise to a claim under § 1983. Id. at *3-4, 2001 U.S. Dist. LEXIS 3440 at *10 (citations omitted). Moreover, there is sufficient evidence to establish that Plaintiff was abusing the grievance program. Plaintiff filed an exorbitant amount of grievances, 115 in a two month period, most of which were deemed frivolous, which gave Defendants appropriate justification for restricting Plaintiffs access to the program. Plaintiff has no right to abuse a voluntarily instituted program and delay the valid claims of other inmates. If Plaintiff had been completely prohibited from filing grievances, he may have had a claim. However, Plaintiff was still permitted to file two grievances per week under the restriction, which is a sufficient means of redress. For the above reasons, I recommend that this claim be dismissed. G. Bus Incident Plaintiff alleges that on June 27, 2005, Defendant Officers A. Sisilli and R. Riester used excessive force on him and that he was denied medical care after the incident. (Am. Compl. ¶¶ 37-40.) The parties agree that on June 27, 2005, Plaintiff was escorted to the Downstate Correctional Facility draft room to wait for the bus to Eastern Correctional Facility. (Am. Compl. ¶ 34; PL’s Dep. 55:4-7.) Defendant Sisilli searched and restrained Plaintiff and ordered him to remain seated until the bus’ departure. (Am. Compl. ¶ 34.); (PL’s Dep. 55:8-18.) Plaintiff alleges that when he began to speak to the inmate next to him, Defendant Sisilli yelled violently at Plaintiff, “Hey you fucking asshole, on the fucking noise, there’s no fucking talking while I’m [tying] inmate up.” (Am. Compl. ¶ 35.) Plaintiff replied, “Excuse me, Officer I am not talking loud disturbing anyone, I’m [speaking] to the man [tied] up next to me quietly.” (Am. Compl. ¶ 35.) Defendant Officer R. Riester then told Plaintiff to, “Shut the fuck up, I don’t want to hear your mouth at all asshole.” (Am. Compl. ¶ 36.) Defendant Sisilli then added, “I don’t care how low you are talking, keep your fucking mouth [closed].” (Am. Compl. ¶ 36; Pi’s Dep. 55-56.) According to Defendants, Defendant Sisilli gave Plaintiff several direct orders to stop talking but Plaintiff refused to stop talking and used profanities. (Sisilli Decl. ¶ 5; Riester Deck ¶¶ 6-7.) Defendant Riester asked Plaintiff for his identification number several times. Plaintiff “refused each time, using profanities.” (Riester Decl. ¶ 8.) The parties agree that thereafter, Defendants removed all inmates except Plaintiff from the draft room. (PL’s Dep. 56:11-17; Sisilli Decl. ¶ 7; Riester Decl. ¶ 9.) According to Defendants, they asked Plaintiff again for his identification number. (Sisilli Decl. ¶ 8.) Plaintiff responded by saying “when we get to Eastern the chains will come off and we are going to roll.” (Riester Decl. ¶ 10.) Both Defendants declare that they “then escorted the plaintiff to the bus without incident.” (Sisilli Decl. ¶ 8; Riester Deck ¶ 11.) Plaintiffs version of events in the draft room is quite different. He alleges that Defendant Sisilli grabbed him by his hair and rammed his head into the plastic covering over the holding pen repeatedly. (Am. Compl. ¶ 37; Pi’s Dep. 56:19-24.) Plaintiff turned his head to avoid injury to his face which resulted in the ramming of his shoulders into the plastic covering. (Am. Compl. ¶ 37.) Plaintiff claims that Defendant Sisilli repeated this assault approximately ten to fifteen times and then threw Plaintiff to the floor where Defendant Riester began to kick Plaintiff while he was restrained. (Am. Compl. ¶¶ 37-38; Pi’s Dep. 58:1-16.) According to Plaintiff, the incident lasted for anywhere between thirty and sixty seconds. (PL’s Dep. 58:16.) Defendant Sisilli then pulled Plaintiff from the floor by his hair, which resulted in two dreadlocks being torn from his scalp. (Am. Compl. ¶ 39.) Once Plaintiff was removed from the floor, Defendant Riester began to hit him in the head with several pairs of handcuffs, causing blood to leak from Plaintiffs ear. (Am. Compl. ¶ 39.) Defendant Sisilli then pulled Plaintiff completely to his feet, slammed him into a wall and dragged him onto an awaiting bus, punching him in the midsection the entire time. (Am. Compl. ¶ 39.); (Pi’s Dep. 61:11-14.) The parties also have different versions of what occurred when the bus arrived at Eastern. Plaintiff alleges that once the bus arrived at Eastern, Defendants Sisilli and Riester “hit, slapped, and punched [P]laintiff all the way down to the SHU.” (Am. Compl. ¶ 40.); (PL’s Dep. 61:11-13.) Defendants, on the other hand, declare that they accompanied Eastern sergeants and officers on Plaintiffs escort to the SHU and that during that escort Defendant Sisilli “maintained control of the plaintiff by holding the plaintiffs waist chain.” (Sisilli Decl. ¶ 9; Riester Decl. ¶ 16.) Defendants declare that when they arrived at the SHU, Defendant Sisilli removed Plaintiffs transportation hardware and directed Plaintiff to put his hands in his pockets. Plaintiff did not respond. (Sisilli Deck ¶ 10; Riester Decl. ¶¶ 17-18.) Thereafter, Eastern staff placed Plaintiff in his cell. (Riester Decl. ¶ 19.) Plaintiff alleges that he requested medical treatment upon arriving at Eastern, which was denied. (Am. Compl. ¶ 40); (PL’s Dep. 60:8-12.) Plaintiff was seen and treated three times the following day, June 28, 2005. (Am. Compl. ¶ 40; Gusman Decl. ¶¶ 12-14.) The first time was at 9:10 a.m. Plaintiff complained that his left ribs were broken and that there was something “leaking and moving” in his head as a result of being hit in the head with handcuffs. (Defs.’ Ex. B at 78.) The nurse who examined him noted that Plaintiff had three-inch reddened areas on both shoulders with no break of skin and half-inch abrasions on both achilles tendons. No other abrasions, contusions, or lacerations were noted. (Gusman Decl. ¶ 12; Defs.’ Ex. B at 78.) Force photos were taken during that visit, which indicated bruises on Plaintiffs shoulders from the altercation. (Pi’s Dep. 59:17-24.) Plaintiff saw a doctor later that day, who ordered x-rays of Plaintiffs left rib cage and audiology testing in response to Plaintiffs complaints of pain, despite a normal chest examination and no crepitation of the ribs. (Gus-man Decl. ¶ 13.) Plaintiffs medical records show that the x-rays “were read as normal.” (Defs.’ Ex. B at 84.) Plaintiff was seeh again during 7:00 p.m. sick call. Staff did not note that Plaintiff had any complaints, although he inquired about a possible scheduling conflict with an upcoming orthopedic consultation. (Gusman Deck ¶ 14.) I construe Plaintiffs complaint to allege the following: (1) an excessive force claim against Defendants Sisilli and Riester; and (2) a denial of medical care claim against Defendants Sisilli and Riester. 1. Excessive Force a. Merits Plaintiff claims that Defendants Sisilli and Riester violated his Eighth Amendment rights by subjecting him to excessive force. (Am. Compl. ¶ 71.) Defendants argue that they are entitled to summary judgment because Plaintiff did not suffer any severe injuries and the alleged incidents lasted only “a couple of seconds.” (Defs.’ Br. at 21-22.) Defendants’ arguments are without merit. Plaintiffs medical examination revealed two three-inch reddened areas on his shoulders with broken skin and a half-inch superficial abrasion on his Achilles tendon. (Kerwin Ex. E.) Defendants argue that they are entitled to summary judgment because Plaintiff did not suffer any severe injuries. (Defs.’ Br. at 21-22.) Defendants’ characterization of Plaintiffs injuries as de minimis is correct. Generally, courts in this Circuit have not viewed bruises and other superficial injuries as “serious” injuries. See Gabai v. Jacoby, 800 F.Supp. 1149, 1155 (S.D.N.Y.1992) (holding that a bruise resulting from being pushed into a chair was not a “serious injury”); DeArmas, 1993 U.S. Dist. LEXIS 1292, 1993 WL 37501, at *4 (holding that force that resulted in a bruise and an injured right knee was “de minimis in the legal sense of the term”); Shabazz v. Pico, 994 F.Supp. 460, 471 (S.D.N.Y.1998) (kicking the ankles and feet of an inmate causing abrasions and minor lacerations are de minimis and insufficient to rise to the level of a constitutional violation). However, as discussed above in Section 1(B)(1) of this Report-Recommendation, the extent of injury suffered by the inmate is only “one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 7, 112 S.Ct. 995 (citation and quotation marks omitted). In determining whether the use of force was wanton or unnecessary, it may also be proper to evaluate the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by responsible officials, and any efforts made to temper the severity of a forceful response. The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it. Id. (citation and quotation marks omitted). Here, the parties’ different versions of the events of June 27, 2005, make it impossible to decide these factors as a matter of law. Where “[t]he circumstances of the incident and assessment of fault [bear] directly on the issue of whether force used was excessive ... given the conflicting evidence ... [t]he resolution of that issue must be left to the ultimate trier of fact.” Corselli v. Coughlin, 842 F.2d 23, 26-27 (2d Cir.1988). Moreover, Defendants’ argument that the claims against Defendants Sisilli and Riester should be dismissed because the incidents lasted only “a couple of seconds” is without merit. (Defs.’ Br. at 21-22.) While “[t]he Second Circuit has deemed brief confrontations between prisoners and guards ... insignificant for Eighth Amendment purposes,” the cases cited by Defendants are distinguishable. Each of the cases involved a single push lasting no more than a few seconds. In Bryan v. Admin. of F.C.I. Otisville, 897 F.Supp. 134 (S.D.N.Y.1995), the prisoner was pushed once by a corrections officer and allegedly “missed steps” causing “pains in his right leg.” Bryan, 897 F.Supp. at 135. In Malloy v. DeFrank, No. 95-Civ.-9122, 1996 U.S. Dist. LEXIS 16151, 1996 WL 631725, at *4 (S.D.N.Y. Oct. 31, 1996), an inmate was pushed once in the back. Here, Plaintiff alleges that Defendants Sisilli and Riester repeatedly beat him in the draft room, on the way to the bus, and upon arriving at Eastern. (Am. Compl. ¶¶ 37-40.) Each of these incidents lasted between thirty and sixty seconds. (Pl.’s Dep. 58:16.) Thus, the assault, when viewed in total, involved numerous punches and kicks and lasted anywhere