Clark v. Gardner

Case Information

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ JAMEL CLARK,

Plaintiff, 9:17-CV-0366 v. (DNH/TWD) GERALD GARDNER, et al.,

Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: JAMEL CLARK Plaintiff, pro se 99-A-0475 Sullivan Correctional Facility Box 116 Fallsburg, NY 12733 LETICIA JAMES LAUREN ROSE EVERSLEY, ESQ. Attorney General of the State of New York Ass’t Attorney General Attorney for Defendants The Capitol Albany, NY 12224 THÉRÈSE WILEY DANCKS , United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER I. INTRODUCTION

This matter was referred for a 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). Pro se Plaintiff Jamel Clark (“Plaintiff” or “Clark”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights at Shawangunk Correctional Facility (“Shawangunk”) in 2014. (Dkt. No. 1.)

Defendants and claims remaining following initial review and motion practice are: (1) First Amendment retaliation claims against Corrections Officer (“C.O.”) David DeGraff (“DeGraff”) and C.O. George Karamanos (“Karamanos”); (2) Eighth Amendment excessive force claims against DeGraff, Karamanos, C.O. Richard McElroy (“McElroy”), and Sergeant (“Sgt.”) Robert Harrison (“Harrison”); and (3) Fourteenth Amendment due process claims against Lieutenant (“Lt.”) Gerald Gardner (“Gardner”), Deputy Superintendent of Security Louis Pingotti (“Pingotti”), Lt. Gregory Palen (“Palen”), Plant Superintendent Ronald Farah (“Farah”), Superintendent Joseph Smith (“Smith”), DOCCS Director Donald Venettozzi (“Venettozzi”), and DOCCS Acting Commissioner Anthony Annucci (“Annucci”). (Dkt. Nos. 9, 47. 1 )

Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of the complaint in its entirety. (Dkt. No. 80.) In support of their motion, each Defendant has submitted declarations: Annucci (Dkt. No. 80-3); DeGraff (Dkt. No. 80-5); Farah (Dkt. No. 80-6); Gardner (Dkt. No. 80-8); Harrison (Dkt. No. 80-9); Karamanos (Dkt. No. 80-10); McElroy (Dkt. No. 80-11); Palen (Dkt. No. 80-12); Pingotti (Dkt. No. 80-13); Smith (Dkt. No. 80-16); and Venettozzi (Dkt. No. 80-17). Defendants also submit declarations from the following DOCCS employees: Michael Cunningham, Shawangunk Inmate Grievance Program (“IGP”) Supervisor (Dkt. No. 80-4); Debra Fuller, Attica Correctional Facility (“Attica”) IGP Supervisor (Dkt. No. 80-7); Corey Proscia, Sullivan Correctional Facility (“Sullivan”) IGP Supervisor (Dkt. No. 80-14); Rachel Seguin, Assistant Director of the IGP for

1 The Court refers to Defendants’ DOCCS’ ranks as indicated in 2014. Their present ranks and employment status may differ. 2 DOCCS (Dkt. No. 80-15); John Werlau, Shawangunk Correction Captain (Dkt. No. 80-18); and Sean White, Attica Correction Captain (Dkt. No. 80-19). Plaintiff filed a response. (Dkt. No. 87.) Defendants filed a reply and Plaintiff filed a sur-reply permitted by the Court. (Dkt. Nos. 88, 90, 92.)

For reasons explained below, the Court recommends that Defendants’ motion for summary judgment be granted in part and denied in part.

II.

BACKGROUND

A. Plaintiff’s Housing Assignments Plaintiff has been in DOCCS’ custody since 1999. As relevant to this action, Plaintiff

was incarcerated at Shawangunk from October 1, 2013, through December 23, 2014. (Dkt. No. 80-1 at ¶ 2. 2 ) He was temporarily housed at Attica from July 20, 2014, through August 25, 2014, for a court trip. (Dkt. No. 1 at 11.) Between September 8 and 11, 2014, and October 30 and November 17, 2014, Plaintiff was temporarily housed at Downstate Correctional Facility (“Downstate”) and Sullivan, respectively, for mental health observation. (Dkt. No. 1 at 20-21; Dkt. No. 80-18 at ¶ 7; 80-1 at ¶¶ 13, 14.) On December 23, 2014, Plaintiff was moved to Sullivan and on January 30, 2015, Plaintiff was transferred to Attica, where he remained through February 8, 2016. (Dkt. No. 80-1 at ¶¶ 16, 17.)

Generally, Plaintiff claims he spent more than 300 days in disciplinary confinement as a result of the six disciplinary hearings at issue. (Dkt. No. 1 at 41-42.) During his deposition, 2 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected unless indicated.

3 Plaintiff testified that he was “continuously” housed in disciplinary confinement from August 2014 until July 2015. (Dkt. No. 80-2 at 140-42.)

Defendants’ submissions indicate that from August 5, 2014, through August 25, 2014, Plaintiff was housed in the general population “B block” in cell 0B-1130 at Shawangunk. (Dkt. No. 80-18 at ¶ 7.) On August 25, 2014, Plaintiff was placed in the Special Housing Unit (“SHU”) result of a disciplinary infraction following a hearing conducted by Gardner. (Dkt. No. 80-1 at ¶ 3; see Part II.B., infra .) Plaintiff was assigned to cell SH-00-006. 3 (Dkt. No. 80-18 at ¶ 8.) Plaintiff remained in the SHU at Shawangunk from August 25, 2014 through September 4, 2014. (Dkt. No. 80-1 at ¶ 5.) On September 3, 2014, Plaintiff’s August 25, 2014, disciplinary hearing disposition was administratively reversed and, on September 4, 2014, Plaintiff was released back to general population. Id . at ¶¶ 4, 5.

On September 4, 2014, Plaintiff was involved in an incident whereby he was violently assaulted. Id . at ¶ 6. 4 Plaintiff was transported to an outside hospital for medical evaluation and treatment of his injuries. (Dkt. No. 1 at 19.) Thereafter, Plaintiff was confined in the facility hospital. Id . at 19-20. As a result of this incident and on the recommendation of Lt. Connors, who is not a party, Plaintiff was placed under Involuntary Protective Custody (“IPC”) status for his personal safety and for the safety and security of the facility. Id . at ¶¶ 7, 8. 5 Plaintiff was

3 Inmates in Shawangunk’s SHU are subject to, inter alia , limitations on personal property, packages, commissary, programs, visits, and telephone calls, and out-of-cell recreation is limited to one hour daily. (Dkt. No. 80-18 at ¶ 11.)

4 Plaintiff’s Eighth Amendment claims related to the September 4, 2014, incident were dismissed on initial review without prejudice. (Dkt. No. 9.) 5 At Shawangunk, inmates in IPC are housed in the same block as the SHU, but on a different side of the block. (Dkt. No. 80-1 at ¶ 9.) Inmates in IPC are not subject to the same degrees of restriction as are inmates in SHU. Id . at ¶ 10.

4 housed in IPC cell SD-00-005 from September 11, 2014, through October 30, 2014. Id . at ¶¶ 11, 12.

As noted, from October 30 through November 17, 2014, Plaintiff was temporarily housed at Sullivan for mental health observation. Id . at ¶¶ 13, 14. When he returned to Shawangunk, he was housed in the SHU from November 17 through December 23, 2014. Id . at ¶¶ 14, 15. On December 23, 2014, Plaintiff was moved to Sullivan. Id . at ¶ 16.

On January 30, 2015, Plaintiff was transferred from Sullivan to Attica. Id . at ¶ 17. Plaintiff was housed in the general population at Attica from January 30 through March 11, 2015. Id . at ¶¶ 18, 19. Between March 11 and March 16, 2015, Plaintiff was relocated to Attica’s mental health observation unit. Id . at ¶ 20. From March 16, 2015, through February 8, 2016, Plaintiff was housed in general population at Attica. Id . at ¶ 21. Plaintiff was not housed in the SHU at Attica at any time in 2015. Id . at ¶ 22.

The August 25, 2014, Disciplinary Hearing 6

B.

On July 24, 2014, while temporarily housed at Attica, Plaintiff’s cell at Shawangunk was

searched. (Dkt. No. 1 at 11.) Various items of contraband were allegedly recovered during the search, along with several other unauthorized items. Id . Upon his return to Shawangunk on August 5, 2014, Plaintiff was served with an inmate misbehavior report (“IMR”) regarding the cell search. Id . at 12.

Plaintiff alleges that on August 6, 2014, Gardner conducted a disciplinary hearing. Id . at 13. 7 Plaintiff claims that his requests for an employee assistant and for production of relevant 6 Defendants refer to the six disciplinary hearings at issue by the date the decision was rendered. For consistency and ease of reference, the Court does the same. 7 Gardner has no recollection of serving as the hearing officer for the August 25, 2014, disciplining hearing. (Dkt. No. 80-8 at ¶ 4 n.1.) Venettozzi states DOCCS’ records reflect that 5 documents and reports were denied, including, among other things, a copy of DOCCS Directive 4934. Id . at 14-15. Plaintiff’s request to call inmate Benjamin as a witness on his behalf was also denied. Id . at 15. Inmate Benjamin had told Plaintiff that he observed officers placing a television set and lamp in his cell prior to the July 24, 2014, cell search. Id . at 16.

At the conclusion of the hearing, Gardner found Clark guilty of four of the five rule violations with which he had been charged. Id . Plaintiff was sanctioned with 60 days confinement in the SHU and loss of privileges, loss of honor visiting privileges for four months, loss of television in his cell for one year, and six months’ loss of good time credits. Id .

According to Plaintiff, the disciplinary determination was affirmed on administrative appeal by Smith. Id . at 17. After speaking with a member of the mental health staff regarding his hearing, Clark was informed by Smith that the disciplinary determination was being reviewed by DOCCS’ Central Office. Id .

On September 3, 2014, Plaintiff’s August 25, 2014, disciplinary hearing disposition was administratively reversed. (Dkt. No. 80-2 at ¶ 4.) On September 4, 2014, Plaintiff was released from SHU. Id . at ¶ 5. The September 23, 2014, Disciplinary Hearing Conducted by Gardner

C. On September 7, 2014, C.O. Algarin search Plaintiff’s cell and issued an IMR charging

Plaintiff with possession of marijuana. (Dkt. No. 80-1 at ¶ 23.) Plaintiff was served a copy of the IMR the following day. Id. at ¶ 24.

Shortly after receiving the IMR and being informed that a Tier III disciplinary hearing would be held upon his release from the facility hospital, Plaintiff attempted suicide. (Dkt. No. 1 Plaintiff had a Tier III disciplinary hearing at Shawangunk on August 25, 2015, which was administratively reversed on September 3, 2014. (Dkt. No. 80-17 at ¶ 13.)

6 at 20.) Upon his release from the hospital, Plaintiff was sent to Downstate Correctional Facility and admitted to the “Office of Mental Health Suicide Prevention Crisis Observation and Treatment Unit.” Id . at 21. DOCCS’ Office of Special Housing/Inmate Disciplinary Programs granted an extension to commence the Tier III disciplinary hearing until Plaintiff returned to Shawangunk. (Dkt. No. 80-1at ¶ 30.) On September 11, 2014, Clark was returned to Shawangunk and confined in the SHU. (Dkt. No. 1 at 21.)

Plaintiff’s Tier III disciplinary hearing commenced on September 15, 2014. Id . at ¶ 31. Garner served as the hearing officer. Id . at ¶ 32. Plaintiff claims Gardner denied his request for an employee assistant and deprived him of his right to call witnesses and present a defense. (Dkt. No. 1 at 22-23.)

The hearing transcript reflects Gardner read Plaintiff his rights and obligations, which included his right to call witnesses and present evidence. (Dkt. No. 80-1 at ¶ 33.) Gardner adjourned the Tier III hearing on September 15, 2014, to address Plaintiff’s concerns regarding his pre-hearing assistance. Id . at ¶ 34. Plaintiff selected Mr. Chumas, a civilian employee at Shawangunk, to be his assistant. Id . at ¶ 25. During his meeting with Mr. Chumas, Clark requested two inmates to appear as witnesses at his hearing, and he also requested a copy of DOCCS Directive 4933, which was provided. Id . at ¶¶ 26, 27, 28. On September 16, 2014, Mr. Chumas provided Plaintiff with additional requested documents, including certain log book pages, Unusual Incident Report, memoranda, cell inspection form, and contraband chain-of- custody documentation. Id . at ¶ 35.

The hearing resumed on September 18, 2014. Id . at ¶ 36. Two inmate witnesses requested by Plaintiff testified at the hearing by speakerphone, and Plaintiff was permitted to ask the inmates questions. Id . at ¶ 37. A third inmate requested by Plaintiff refused to testify, which

7 was documented for the hearing record. Id . at ¶ 38. C.O. Comito, C.O. Keys, and C.O. Miller also testified at Plaintiff’s request. Id . at ¶¶ 39, 43. Mr. Chumas testified regarding the assistance he provided to Plaintiff and C.O. Algarin testified regarding the circumstances of the IMR he wrote. Id . at ¶¶ 40, 41.

On September 23, 2014, Gardner found Plaintiff guilty of violating prison rule 113.25, as charged by C.O. Algarin. Id . at ¶¶ at 42-44. Gardner imposed penalties of 3 months SHU confinement, 6 months loss of certain privileges, and 6 months recommended loss of good time. Id . at ¶ 45. He advised Plaintiff of his right to appeal the Tier III hearing determination within 30 days. Id . at ¶ 46.

Gardner provided Plaintiff with a written hearing disposition sheet on September 23, 2014, which included a statement of the evidence used for the determination. Id. at ¶ 47. In his declaration, Gardner states he did not predetermine his decision prior to the conclusion of the hearing. Id . at ¶ 48.

Plaintiff claims both Smith and Annucci affirmed the disciplinary determination. (Dkt. No. 1 at 23.) On October 3, 2014, the DOCCS Commissioner’s office received an appeal from Plaintiff. (Dkt. No. 80-1 at ¶ 49.) The DOCCS Commissioner’s office received further correspondence from Plaintiff regarding his appeal of the September 23, 2014, Tier III hearing disposition on October 9 and October 17, 2014. Id . at ¶ 50. The DOCCS Commissioner’s office does not handle appeals of Tier III hearing dispositions, which are delegated to the Office of Special Housing/Inmate Disciplinary Programs. Id . at ¶ 51. Annucci had no knowledge of the of the substance of Plaintiff’s appeals and no involvement in the determination of the appeal. Id . at ¶ 52.

8 On December 3, 2014, Plaintiff’s hearing determination was review by the Office of Special Housing/Inmate Disciplinary Programs and affirmed by Venettozzi. Id . at ¶¶ 53-55. Subsequently, on January 20, 2016, Plaintiff’s September 23, 2014 Tier III hearing disposition was administratively reversed. 8 Id . at ¶ 56.

D. The October 14, 2014, Disciplinary Hearing Conducted by Pingotti Plaintiff alleges that on September 24, 2014, DeGraff and Harrison searched his cell.

(Dkt. No. 1 at 24.) No contraband was discovered during the search. Id . at 24-25. However, DeGraff threatened Plaintiff and told him that he would “make sure you come up dirty for ‘K- 2’.” Id . at 25. Later that day, Plaintiff was ordered to undergo a urinalysis. Id . On September 30, 2014, on the basis of that test, C.O. Strang issued an IMR charging Plaintiff with being under the influence of K2, a synthetic form of marijuana. (Dkt. No. 80-1 at ¶ 57.) On October 1, 2013, Plaintiff was served a copy of the IMR. Id . at ¶ 58. Plaintiff selected Mr. Chumas to be his assistant. Id . at ¶ 59.

On October 1, 2014, Plaintiff met with Mr. Chumas. Id . at ¶ 60. Plaintiff claims that in preparation for this hearing, he requested numerous documents and reports regarding the testing apparatus and protocols, but these requests were denied. (Dkt. No. 1 at 26.) Plaintiff also requested audio and video of the threats made by DeGraff on September 24, 2014, which were

8 Plaintiff commenced a state court proceeding pursuant to New York CPLR Article 78 to challenge several of the disciplinary hearings at issue in this case. (Dkt. No. 1 at 24.) In April 2016, the Article 78 proceeding was dismissed as moot, upon the advice of the Attorney General that all of the challenged disciplinary determinations had been administratively reversed and expunged from Plaintiff's record. Id .; see Clark v. State Dep’t of Corrections and Community Supervision , 138 A.D.3d 1331 (N.Y. App. Div. 3d Dep’t 2016). Venettozzi states this hearing was administratively reversed when his office learned that confidential testimony relevant to Plaintiff’s mental health status may not have been taken prior to this hearing. (Dkt. 80-17 at ¶ 19.)

9 also denied. Id . at 27. Plaintiff was removed from the hearing prior to its conclusion and claims he never received a written statement of the disposition. Id .

The hearing transcript reflects that Plaintiff’s Tier III disciplinary hearing commenced on October 7, 2014, with Pingotti serving as the hearing officer. (Dkt. No. 80-1 at ¶ 63-64.) Pingotti read Plaintiff his rights and obligations, which included his right to call witnesses and present evidence. Id . at ¶ 65. Pingotti informed Plaintiff that the company that manufactured the chemical reagent used in the drug test does not testify at prison disciplinary proceedings. Id . at ¶ 66.

Plaintiff requested two documents for the hearing on October 7, 2014: a K2 test reliability assessment and a memorandum regarding disciplinary procedures for K2 written by DOCCS Deputy Commissioner Joseph Bellnier. Id . at ¶ 67. Plaintiff reviewed the requested documents during an adjournment of the hearing and he had an opportunity to take any notes that he needed. Id . at ¶ 68.

On October 14, 2014, C.O. Strang testified regarding the circumstances of the IMR and the drug test that he conducted. Id . at ¶ 69. At Plaintiff’s request, Nurse Scofield also testified. Id . at ¶ 70. However, Pingotti denied Plaintiff’s request to call Deputy Commissioner Bellnier because he had no firsthand knowledge of the drug test conducted by C.O. Strang. Id . at ¶ 71. Pingotti also denied Plaintiff’s request for a video recording of his housing block from September 24, 2014, because it had no relevance to the drug test conducted on September 30, 2014. Id . at ¶ 72.

The hearing transcript reflects that Pingotti warned Plaintiff on three occasions not to speak over him when he spoke. Id . at ¶ 73. On October 14, 2014, Plaintiff was removed from 10 the hearing for being disruptive and noncompliant with Pingotti’s directions. Id . at ¶ 74. The hearing concluded in Plaintiff’s absence. Id . at ¶ 75.

Pingotti found Plaintiff guilty of violating prison rule 113.13, as charged by C.O. Strang. Id . at ¶ 76. Pingotti imposed penalties of 2 months of SHU confinement, in addition to 2 months loss of packages, commissary, and telephone privileges. Id . at ¶ 77. He prepared a written hearing disposition sheet on October 14, 2014, which included a statement of the evidence relied upon which he relied. Id . at ¶ 78.

Pingotti directed C.O. North to deliver the written hearing disposition to Plaintiff at his cell, together with a form advising Plaintiff of his right to appeal to the Commissioner within 30 days. Id . at ¶ 79. C.O. North documented that he delivered Pingotti’s written hearing disposition and appeal form to Plaintiff on October 15, 2014 at 9:45 AM., and that Plaintiff refused to sign a form acknowledging receipt. Id . at ¶ 80. In his declaration, Pingotti avers he did not predetermine his decision prior to the conclusion of the Tier III hearing on October 14, 2014. Id . at ¶ 81.

Plaintiff claims he appealed the determination, which was affirmed by Smith and Annucci. (Dkt. No. 1 at 28.) On October 17, 2014, the DOCCS’ Commissioner’s office received Plaintiff’s appeal. (Dkt. No. 80-1 at ¶ 82.) On December 12, 2014, the Acting Director of Special Housing, Corey Bedard, signed the appeal affirmance. Id . at ¶¶ 84-86. Annucci had no knowledge of the substance of Plaintiff’s appeal and had no involvement in the determination of the appeal. Id . at ¶ 83. On January 20, 2016, Plaintiff’s October 14, 2014, Tier III hearing disposition was administratively reversed. Id . at ¶ 87. 9

9 Venettozzi explains this hearing, like the September 23, 2014, hearing, was administratively reversed when his office learned that confidential testimony relevant to 11 E. The November 17, 2017, Disciplinary Hearing Conducted by Palen On October 15, 2014, DeGraff conducted a search of Plaintiff’s IPC cell at Shawangunk

and observed small hole, approximately one (1) inch in length, in Plaintiff’s mattress. (Dkt. No. 80-1 at ¶ 88.) On October 17, 2014, during a subsequent cell search, DeGraff observed that the hole in Plaintiff’s mattress had expanded from approximately one (1) inch to six (6) inches in length since October 15, 2014. Id . at ¶ 89. DeGraff reached his hand inside the mattress and found pieces of lead wrapped in paper. Id . at ¶ 90. He then removed Plaintiff’s mattress from the cell to further search it in the sally port area of the cell block. Id . at ¶ 91. DeGraff cut open Plaintiff’s mattress, removed all of the stuffing, and found copper wire wrapped in paper and pieces of bedsheet. Id . at ¶ 92. DeGraff secured all evidence and disposed of the mattress. Id . at ¶ 93.

Thereafter, on October 17, 2014, DeGraff issued an IMR charging Plaintiff with possession of contraband and destruction of property. Id . at ¶ 94. Plaintiff was served with the IMR on October 18, 2014. Id . at ¶ 95. 10

On October 21, 2014, Plaintiff’s Tier II hearing commenced on the October 17, 2014, IMR. Id . at ¶ 96. Palen served as the hearing officer. Id . at ¶ 97. Plaintiff claims that Palen denied his requests for an assistant and also denied his requests for relevant videos and Plaintiff’s mental health status may not have been taken prior to this hearing. (Dkt. 80-17 at ¶ 19.)

10 Plaintiff claims he had previously filed a grievance complaining about the condition of his mattress and also about the fact that the cell equipment report had not been completed when Plaintiff was first assigned to the cell. (Dkt. No. 1 at 30.) He also verbally complained about his mattress to Smith during rounds. Id . DOCCS records indicate Plaintiff filed a grievance numbered SHG-29231-14, entitled “Mattress Needs Replacing,” which was received for filing on October 21, 2014, after Plaintiff received the October 10, 17, 2014, IMR. ( See Dkt. No. 80-4 at ¶ 14; see also id . at 6-13.)

12 witnesses. (Dkt. No. 1 at 31.) Plaintiff alleges DeGraff destroyed the mattress (prior to the hearing so its condition could not be examined during the hearing) in retaliation for Plaintiff’s grievance activity. Id . at 32.

The hearing transcript reflects Palen read Plaintiff his rights and obligations. Id . at ¶ 98. Inmates are not provided with employee assistants for Tier II hearings. Id . at ¶ 99. Palen informed Plaintiff that he would not have an assigned assistant, but he gave Plaintiff an opportunity to advise him what evidence and witnesses Plaintiff needed for his defense. Id . at ¶ 100.

DeGraff testified at the hearing regarding the circumstances of the IMR that he wrote and Plaintiff asked DeGraff questions. Id . at ¶ 101. At Plaintiff’s request, Sgt. Lutz testified regarding prior complaints made by Plaintiff about his mattress. Id . at ¶ 102. Plaintiff requested to view the video recording of his cell block from October 17, 2014, at the time DeGraff removed Plaintiff’s mattress from his cell, and Plaintiff reviewed this video in Palen’s presence during an adjournment of the haring on October 22, 2014. Id . at ¶ 103. Karamanos also testified at the hearing regarding a prior inspection of Plaintiff’s cell and Plaintiff asked him questions. Id . at ¶ 104.

Plaintiff’s Tier II hearing was adjourned from October 30, 2014, through November 17, 2014, while he was housed at Sullivan for mental health observation. Id . at ¶ 105. The Office of Special Housing/Inmate Disciplinary Programs granted an extension to continue the Tier II hearing until Plaintiff returned from Sullivan to Shawangunk, and subsequently granted a further extension due to the temporary unavailability of Palen. Id . at ¶ 106.

Plaintiff’s Tier II hearing recommenced on November 26, 2014. Id . at ¶ 107. Plaintiff submitted documentary evidence in his defense, including prior complaints he made to 13 Shawangunk and DOCCS officials. Id . at ¶ 108. Plaintiff requested copies of complaints he claimed to have made to DOCCS’ Office of the Inspector General (“OIG”) in September and October 2014, and he requested that an OIG investigator, Investigator Russo, testify regarding those complaints. Id . at ¶ 109. At Plaintiff’s request, Palen contacted the OIG, and he was advised by the OIG that no such complaints existed and, accordingly, Plaintiff’s request was denied. Id . at ¶ 110. Plaintiff also requested to present his mattress as evidence during the hearing. Id . at ¶ 111. However, it was unavailable as DeGraff had disposed of it after cutting it open on October 17, 2014. Id .

Plaintiff requested video showing rounds made by the Smith and Sgt. Lutz, but the video did not exist as it was beyond the normal retention period. Id . at ¶ 112. Plaintiff requested video showing a previous interaction with DeGraff on September 24, 2014, but the video was unavailable due to an equipment malfunction. Id . at ¶ 113. Plaintiff also requested a video of the October 15, 2014, search conducted by DeGraff, which Palen denied as not relevant because it would not have depicted the condition of the mattress inside of the cell. Id . at ¶ 114. Plaintiff requested video showing the sally port area of his housing block where DeGraff brought Plaintiff’s mattress on October 17, 2014. Id . at ¶ 115. Palen denied this request as redundant of the October 17, 2014, video that Plaintiff had already reviewed. Id . Lastly, Plaintiff requested video showing the linen exchange on his housing block on three dates prior to October 17, 2014. Id . at ¶ 116. Palen denied this request as not relevant because the condition of his linens upon receipt was not at issue in the hearing. Id .

Clark requested copies of contraband receipts resulting from cell searches on three dates prior to October 17, 2014. Id . at ¶ 117. Palen denied this request as not relevant because any 14 evidence of contraband confiscated on prior occasions would not be relevant to the October 17, 2014, cell search at issue in the hearing. Id .

Plaintiff requested to call as a witness the prior inmate assigned to his cell before him. Id . at ¶ 118. Specifically, Plaintiff requested inmate Bey, believing that inmate Bey was the prior inmate assigned to his cell. Id . It was determined that inmate Bey was not the prior occupant of Plaintiff’s cell, and that two other inmates were assigned to the cell after Bey and prior to Plaintiff. Id . at ¶ 119. The inmate identified as the last to occupy the cell prior to Plaintiff refused to testify, and his refusal was documented in the hearing record. Id . at ¶ 120.

Plaintiff also requested to call Smith to testify regarding a prior complaint voiced by Plaintiff concerning his mattress. Id . at ¶ 121. Palen denied this request, however, as redundant of the testimony given by Sg. Lutz, who was with Smith and already testified about the same conversation. Id . at ¶ 121.

Plaintiff’s hearing concluded on November 27, 2017. Id . at ¶ 122. Palen found Plaintiff guilty of violating prison rules 113.23 and 116.10, as charged by DeGraff. Id . at ¶ 123. Palen imposed penalties of 30 days of keeplock 11 confinement, 30 days loss of privileges, and restitution of $65.25 for the cost of the mattress. Id . at ¶ 124. Plaintiff was advised of his right to appeal his Tier II hearing disposition to the Superintendent. Id . at ¶ 125. He was provided with a written hearing disposition sheet on November 27, 2014, which included a statement of the evidence supporting the determination. Id . at ¶ 126. In his declaration, Palen avers he did not predetermine his decision prior to the conclusion of the Tier II hearing on November 27, 2014. Id . at ¶ 127.

11 Keeplock is a form of disciplinary confinement whereby an inmate is confined to his own cell for a period of time. Gittens v. LeFevre , 891 F.2d 38, 39 (2d Cir. 1989). 15 On December 3, 2014, Pingotti, as Smith’s designee, affirmed the disposition. Id . at ¶ 128. On December 22, 2014, Plaintiff wrote to Smith to request a limited “re-review” of the timeliness of his Tier II hearing and to complain that DeGraff had disposed of his mattress prior to the hearing. Id . at ¶ 129. Smith responded to Plaintiff that the chain of extensions granted by the Office of Special Housing/Inmate Disciplinary Programs was in Order and that all contraband secreted in the mattress had been secured. Id . at ¶ 130.

F. The December 10, 2014, Disciplinary Hearing Conducted by Gardner As noted, Plaintiff was temporarily housed at Sullivan from October 30 to November 17,

2014. On November 13, 2014, a social worker at Sullivan issued an IMR charging Plaintiff with threatening to kill a corrections officer on November 12, 2014, and stating that he “know[s] his face.” (Dkt. No. 80-1 at ¶¶ 131, 132.) The Office of Special Housing/Inmate Disciplinary Programs granted an extension to commence the hearing until after Plaintiff returned from Sullivan to Shawangunk. Id . at ¶ 133.

On November 18, 2014, Plaintiff was served a copy of the IMR at Shawangunk. Id . at ¶ 134. The Tier II hearing commenced on November 20, 2014, with Gardner serving as the hearing officer. Id . at ¶ 135, 136. Plaintiff claims his request for an employee assistant was denied, as were his requests for relevant documents and witnesses. (Dkt. No. 1 at 38-39.)

The hearing transcript reflects that Gardner read Plaintiff his rights and obligations. (Dkt. No. 80-1 at ¶ 137.) Gardner informed Plaintiff that he would not have an assigned assistant as it was a Tier II hearing, but he told Plaintiff to advise him of what evidence and witnesses he needed to present his defense. Id . at ¶ 138.

Plaintiff requested a video recording from November 12, 2014, at Sullivan at the time that a mental health nurse made rounds to his cell. Id . at ¶ 139. This request was denied as no 16 such video existed. Id . at ¶ 140. Plaintiff requested to call as witnesses inmates who were in neighboring cells to his at Sullivan on November 12, 2014. Id . At Plaintiff request, inmates Aviles and Perez testified at the hearing by speakerphone, and Plaintiff had an opportunity to ask questions. Id . at ¶ 141. A third inmate, who was located at Great Meadow Correctional Facility at the time of the Tier II hearing, refused to testify and signed a refusal form for the hearing record. Id . at ¶ 142.

Plaintiff requested to call the Assistant Commissioner of the New York State Office of Mental Health (“OMH”) as a witness. Id . at ¶ 143. Gardner denied this request because the Commissioner of OMH was not present during the incidents alleged in the November 13, 2014, IMR. Id . Plaintiff requested to call Investigator Russo from DOCCS OIG as a witness. Id . at ¶ 145. Gardner denied this request because Investigator Russo was not present during the alleged incidents. Id .

Plaintiff also requested copies of his OMH mental health records, stating that he wanted these records to establish the reason why he was at Sullivan for mental health observation. Id . at ¶ 146. This request was denied as not relevant because the reason for Plaintiff’s mental health observation was not relevant to the incidents alleged in the November 13, 2014, IMR. Id . The clinical social worker who authored the November 13, 2014, IMR testified by speakerphone on December 10, 2014, and Plaintiff had an opportunity to ask her questions. Id . at ¶ 147.

On December 10, 2014, Lt. Gardner found Plaintiff guilty of violating prison rule 102.10, as charged in the November 13, 2014, IMR. Id. at ¶¶ 148, 149. Gardner imposed penalties of 30 days of keeplock confinement and 30 days loss of privileges. Id . at ¶ 151. Plaintiff was advised of his right to appeal his Tier II hearing disposition to the Superintendent. Id . at ¶ 151.

17 Gardner provided Plaintiff with a written hearing disposition sheet on December 10, 2014, which included a statement of the evidence relied upon. Id . at ¶ 152. In his declaration, Gardner states he did not predetermine his decision prior to the conclusion of the hearing. Id . at ¶ 153. Plaintiff alleges Smith affirmed the disciplinary determination. (Dkt. No. 1 at 37.) Defendants assert Pingotti, as Smith’s designee, affirmed Plaintiff’s Tier II hearing disposition on December 12, 2014. (Dkt. No. 90-1 at ¶ 154.)

G. The December 18, 2014, Disciplinary Hearing Conduced by Farah On October 24, 2014, DeGraff and Karamanos escorted Plaintiff from his IPC cell to a

scheduled shower. (Dkt. No. 80-1 at ¶ 155.) The parties disagree as to what happened next. Plaintiff alleges he was assaulted by DeGraff and Karamanos in retaliation for having filed grievances and complaints against these officers. (Dkt. No. 1 at 34.) Specifically, Plaintiff claims DeGraff “aggressively squeezed” Plaintiff’s penis “causing him pain” during an “improper” pat frisk, and Karamanos slammed Plaintiff’s head into the wall. Id .

According to Defendants, DeGraff observed items stuffed in Plaintiff’s pocket and initiated a pat frisk. (Dkt. No. 80-1 at ¶ 156.) During the pat frisk, Plaintiff made a sudden movement toward DeGraff. Id . at ¶ 158. As a result, Karamanos pushed Plaintiff to the wall to secure him. Id . at ¶ 159. After “gaining control” of Plaintiff, DeGraff and Karamanos escorted Plaintiff back to his cell. Id . at ¶ 160.

Thereafter, on October 24, 2014, DeGraff issued an IMR charging Plaintiff with refusal to obey a direct order and a movement violation. Id . at ¶ 161. Plaintiff was served a copy of the IMR on October 25, 2014. Id . at ¶ 162.

A Tier III hearing commenced on October 30, 2014, with Farah serving as the hearing officer. Id . at ¶¶ 163, 164. During this hearing, Plaintiff claims he was denied an employee 18 assistant and was also denied relevant documents and video of the incident. (Dkt. No. 1 at 35.) Plaintiff also claims he was improperly removed from the hearing and was not provided with a written statement of Farah’s disposition. Id .

The hearing transcript demonstrates Farah commenced the Tier III hearing on October 30, 2014, and read Plaintiff his rights and obligations. (Dkt. No. 80-1 at ¶ 165.) Plaintiff informed Farah that he had not met with an assistant prior to the hearing. Id . at ¶ 166. Farah adjourned the hearing to provide Plaintiff with an opportunity to select and meet with an assistant. Id . at ¶ 167.

On November 18, 2014, Plaintiff met with his selected assistant, Mr. Austin, a Recreation Supervisor. Id . at ¶ 168. The hearing recommenced on December 1, 2014. Id . at ¶ 169. Plaintiff was provided with several documents including a Use of Force report, Watch Commander and SHU log book pages, and copies of certain DOCCS Directives. Id . at ¶ 170. On December 4, 2014, Plaintiff viewed a video recording from the time of the October 24, 2014, incident. Id . at ¶ 171. Plaintiff requested a second video recording from October 17, 2014; however, that request was denied as not relevant to the October 24, 2014 incident. Id . at ¶ 172. Plaintiff requested to call three inmates as witnesses. Id . at ¶ 173. Two of the three inmates requested by Plaintiff refused to testify from the outset. Id . at ¶ 174. One inmate requested by Plaintiff initially agreed to testify but later refused. Id . at ¶ 175.

Plaintiff requested to call Investigator Russo from DOCCS OSI as a witness and to provide records. Id . at ¶ 176. However, Farah was advised Investigator Russo could not testify or provide documents due to an ongoing investigation at that time. Id . at ¶ 176.

DeGraff and Karamanos both testified at the hearing. Id . at ¶ 175. Plaintiff was warned multiple times during the course of the hearing not to speak over Farah and other witnesses when 19 they spoke. Id. at ¶ 178. In his declaration, Farah explains Plaintiff was removed from the hearing partway through DeGraff’s testimony because he became extremely disruptive and noncompliant with his directions. (Dkt. No. 80-2 at ¶ 179.) Farah continued questioning DeGraff and adjourned the hearing. ( See Dkt. No. 80-6 at 52-54.)

The hearing resumed on December 15, 2014. (Dkt. No. 80-1 at ¶ 180.) But Plaintiff refused to leave his cell to attend the continuation of the hearing. Id . Farah, together with C.O. North and C.O. Vitarius, went to Plaintiff’s cell on December 15, 2014, to encourage Plaintiff to attend the hearing and advised Plaintiff that a penalty may be imposed if he were found guilty. Id . at ¶ 181. Plaintiff refused to leave his cell. Id . at ¶ 182.

At Farah’s direction, C.O. North went to speak to Plaintiff a second time about returning to the hearing. Id . at ¶ 183. C.O. North reported to Farah that he asked Plaintiff multiple times if he wanted to leave his cell to attend the hearing and Plaintiff refused each time. Id. at 184. Plaintiff signed a form waiving his right to attend the Tier III hearing on December 15, 2014, but added a handwritten note that he was afraid of retaliation and felt that Farah was unfair. Id . at ¶ 185.

On December 18, 2014, Farah found Plaintiff guilty of violating prison rules 106.10 and 109.12, as charged by DeGraff and imposed penalties of 120 days of SHU confinement, and 120 days loss of packages, commissary, telephone, recreation, and television privileges. Id . at ¶¶ 186, 187. Farah prepared a written hearing disposition sheet on December 18, 2014, which included a statement of the evidence. Id . at ¶ 188. He directed C.O. North to deliver the written hearing disposition to Plaintiff at his cell, together with a form advising Plaintiff of his right to appeal to the Commissioner within thirty (30) days. Id . at ¶ 189. C.O. North documented that he delivered the written hearing disposition and appeal form to Plaintiff on December 18, 2014, at

20 11:35 AM, and that Plaintiff refused to sign a form acknowledging receipt. Id . at ¶ 190. In his declaration, Farah states he did not predetermine his decision prior to the conclusion of the Tier III disciplinary hearing on December 18, 2014. Id . at ¶ 191.

Plaintiff claims he appealed the disposition, which was affirmed by Smith and Venettozi. (Dkt. No. 1 at 37.) Defendants submit that on December 22, 2014, the Office of Special Housing/Inmate Disciplinary Programs received Plaintiff’s appeal. (Dkt. No. 80-1 at ¶ 192.) Staff working in the Office of Special Housing/Inmate Disciplinary Programs reviewed Plaintiff’s appeal and recommended that the December 18, 2014, disposition be affirmed. Id . at ¶ 193. Venettozzi compared the disciplinary charges to the penalties imposed and signed off the recommended affirmance of the hearing disposition. Id . at ¶ 194.

On April 21, 2016, Plaintiff’s December 18, 2014, Tier III hearing disposition was administratively reversed pursuant to a court order. Id . at ¶ 195; see Clark v. State Dep’t of Corrections and Community Supervision , 138 A.D.3d 1331 (N.Y. App. Div. 3d Dep’t 2016); see also Dkt. No. 80-17 at ¶ 19.

H. Eighth Amendment Claims As discussed above, Plaintiff claims he was assaulted by DeGraff and Karamanos on

October 24, 2014, during an escort to a scheduled shower. (Dkt. No. 1 at 28.) Specifically, Plaintiff claims DeGraff “aggressively squeezed” Plaintiff’s penis “causing him pain” during an “improper” pat frisk, and Karamanos slammed Plaintiff’s head into the wall. Id .

According to Defendants, DeGraff observed objects stuffed in Plaintiff’s pockets and DeGraff ordered Plaintiff to spread his legs and initiated a pat frisk. (Dkt. Nos. 80-5 at ¶ 9.) Plaintiff did not comply with DeGraff’s instruction and made a “sudden and aggressive movement” to his left side towards DeGraff. Id . Karamanos then pushed Plaintiff against the

21 wall once in order to “gain control” of him. Id . Defendants contend this “minimal amount of force was reasonable and necessary to secure control of plaintiff after his sudden and aggressive movement.” (Dkt. No. 80-10 at ¶ 7.) DeGraff and Karamanos declare they did not strike Plaintiff or use any further force. (Dkt. Nos. 80-5 at ¶ 9; 80-10 at ¶ 7.) They further declare they did not touch Plaintiff in any sexual way. Id . Defendants state they escorted Plaintiff back to his cell with no further incident. Id .

Plaintiff also claims he was subjected to verbal and physical abuse by DeGraff, McElroy, and Harrison during an escorted trip to Shawangunk’s facility hospital. Id . at 29. 12 Specifically, Plaintiff claims DeGraff pushed Plaintiff up against the wall and “pressed his pelvis and genitals against the Plaintiff,” McElroy “punched” Plaintiff in the back of his head, while Harrison stood by and made “intimidating statements.” (Dkt. No. 1 at 29.) Plaintiff filed a complaint with the “Office of Special Investigations.” Id .

In their declarations, DeGraff, Karamanos, McElroy, and Harrison deny having ever struck, physically assaulted, used excessive force on, or improperly touched Plaintiff in any way at any time. (Dkt. Nos. 80-5 at ¶ 14, 80-9 at ¶ 5, 80-10 at ¶ 12, 80-11 at ¶ 6.) These Defendants further declare they have never threatened or harassed Plaintiff, verbally or otherwise at any time. Id . Harrison further states he has never allowed or encouraged any correctional staff to assault an inmate. (Dkt. No. 80-9 at ¶ 6.)

I. First Amendment Claims As discussed above, Plaintiff claims DeGraff and Karamanos assaulted him on October

24, 2014, in retaliation for Plaintiff having filed inmate grievances regarding their mistreatment of him in violation of the First and Eighth Amendments. (Dkt. No. 1 at 34.) Plaintiff also claims

12 Plaintiff’s complaint does not specify the date of this alleged assault. 22 DeGraff destroyed his mattress (and thereby prevented Plaintiff from presenting a meaningful defense to the October 17, 2014, IMR issued by DeGraff) in retaliation for Plaintiff’s grievance activity. Id . at 42.

For his part, DeGraff declares that on October 17, 2014, he was unaware of any grievances that Plaintiff may have filed against him or against other correctional staff. (Dkt. No. 80-1 at ¶ 196.) He further states that he disposed of Plaintiff’s mattress on that date because it was cut open and unusable, and all contraband had been removed and secured. Id . at ¶ 197.

As to the October 24, 2014, incident, DeGraff and Karamanos state that they were unaware of any grievances that Plaintiff may have filed against them or against other correctional staff. Id . at ¶¶ 198, 199. Further, as noted above, Defendants aver Plaintiff did not comply with DeGraff’s instruction and argue that the “minimal amount of force was reasonable and necessary to secure control of plaintiff after his sudden and aggressive movement.” (Dkt. No. 80-10 at ¶ 7.)

J. Grievances Defendants’ submissions demonstrate Plaintiff never filed a grievance concerning his

claim that DeGraff and Karamanos used excessive force on him on October 24, 2017. (Dkt. No. 80-1 at ¶ 204.) Plaintiff never filed a grievance concerning his claim that DeGraff and Karamanos retaliated against him on October 24, 2017. Id . at ¶ 205. He never filed a grievance concerning his claim that DeGraff retaliated against him on October 17, 2014, by disposing of his mattress. Id . at ¶ 206. Lastly, Plaintiff never filed a grievance concerning his claim that DeGraff, McElroy, and Harrison used excessive force on him at any time. Id . at ¶ 207. In response, Plaintiff argues administrative remedies were unavailable. (Dkt. Nos. 87, 92.)

23

III. LEGAL STANDARD GOVENRING SUMMARY JUDGMENT

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986). 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. Salahuddin v. Gourd , 467 F.3d 263, 272–73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that 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).

If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin , 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg. , 156 F.3d 396, 400 (2d Cir. 1998).

The Second Circuit has reminded that on summary judgment motions “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005). “At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id . (citation and internal quotation marks omitted). Accordingly, statements “that are

24 devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll. , 196 F.3d 435, 452 (2d Cir. 1999).

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, Inc. , 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se , the court is obligated to “read [the pro se party’s] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994).

In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr ., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc ., 85 F.3d 1002, 1011 (2d Cir. 1996) (credibility issues which are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion for summary judgment).

IV. PLAINTIFF’S FAILURE TO COMPLY WITH LOCAL RULE 7.1

While courts are required to give due deference to a plaintiff’s pro se status, that status “does not relieve [a pro se ] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records , 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants’ summary judgment motion, Plaintiff failed to respond to the statement of material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3). 13 (Dkt. Nos, 87, 92.)

13 Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant’s Statement of Material Facts. Under the rule, the response “shall mirror the movant’s Statement of Material Facts by admitting and/or denying each of the movant’s assertions in matching

25 Where, as in this case, a party has failed to respond to the movant’s statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant’s statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, 14 and (2) provided that the nonmovant, if proceeding pro se , has been specifically advised of the possible consequences of failing to respond to the motion. 15 See Champion v. Artuz , 76 F.3d 483, 486 (2d Cir. 1996).

Accordingly, the facts set forth in Defendants’ Statement of Material Facts that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff’s verified complaint and verified opposition submissions will be accepted as true. See McAllister v. Call , No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff’s verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara , No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants’ Statement of Facts Pursuant to Rule 7.1(a)(3) . . . supplemented by Plaintiff’s verified complaint . . . as true.”). As to any facts not contained in Defendants’ Statement of Material Facts, in light numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” N.Y.N.D. L.R. 7.1(a)(3).

14 Local Rule 7.1(a)(3) provides that “The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d. Cir. 2004) (“[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party’s [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.”) (citations omitted).

15 Defendants and the Clerk’s office provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 80 at 2; Dkt. No. 81.) 26 of the procedural posture of this case, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry , 336 F.3d at 137.

Moreover, the Second Circuit has ruled that “[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules,” including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to “conduct an assiduous review of the record.” Holtz v. Rockefeller & Co., Inc ., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff’s pro se status, the Court has reviewed the entire record.

V.

LEGAL STANDARDS GOVERNING CLAIMS AND DEFENSES

A. Fourteenth Amendment Due Process Claims The Due Process Clause of the Fourteenth Amendment states: “[n]o State shall . . .

deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV § 1. “A liberty interest may arise from the Constitution itself, . . . or it may arise from an expectation or interest created by state laws or polices.” Wilkinson v. Austin , 545 U.S. 209, 221 (2005) (internal citations omitted). “Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship.” Sira v. Morton , 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted).

The constitutionally mandated due process requirements for prison disciplinary hearings include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of

27 his defense, subject to a prison facility’s legitimate safety and penological concerns; 16 (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. See Wolff v. McDonald , 418 U.S. 539, 564-70 (1974); Luna v. Pico , 356 F.3d 481, 487 (2d Cir. 2004). Additionally, the hearing officer’s findings must be supported by “some” “reliable evidence.” Sira , 380 F.3d at 69 (citing Superintendent v. Hill , 472 U.S. 445, 455 (1985)) (other citation omitted).

The due process clause also guarantees that “[a]n inmate subject to a disciplinary hearing is entitled to . . . an impartial hearing officer.” Allen v. Cuomo , 100 F.3d 253, 259 (2d Cir. 1996) (citing, inter alia , Wolff , 418 U.S. at 570-71). The Second Circuit has explained that its “conception of an impartial decisionmaker is one who, inter alia , does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen.” Patterson v. Coughlin , 905 F.2d 564, 570 (2d Cir. 1990). “The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges.” Allen , 100 F.3d at 259. Indeed, “[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts.” Id . (citing Russell v. Selsky , 35 F.3d 55, 60 (2d Cir. 1996); Francis v. Coughlin , 891 F.2d 43, 46 (2d Cir. 1989)). “A hearing officer may satisfy the standard of impartiality if there is ‘some evidence in the record’ to support the

16 The right to call witnesses is not unfettered. Alicea v. Howell , 387 F. Supp. 2d 227, 234 (W.D.N.Y. 2005) (citing Ponte v. Real , 471 U.S. 491, 495 (1985)). This right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. Id . (citing, inter alia , Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence)); see also Eleby v. Selsky , 682 F. Supp. 2d 289, 291-92 (W.D.N.Y. 2010) (hearing officers have discretion to keep the hearing within reasonable limits, and “included within that discretion is the authority to refuse to call witnesses whose testimony the prison official reasonably regards as duplicative or non-probative”).

28 findings of the hearing.” Barnes v. Annucci , No. 9:15-CV-0777 (GTS/DEP), 2019 WL 1387460, at *11 (N.D.N.Y. Mar. 12, 2019) (citations omitted).

“To state a claim for procedural due process, there must first be a liberty interest which requires protection.” Lewis v. Murphy , No. 9:12-CV-00268 (NAM/CFH), 2014 WL 3729362, at *7 (N.D.N.Y. July 25, 2014) (citing Valmonte v. Bane , 18 F.3d 992, 998 (2d Cir. 1994)). To establish a procedural due process claim under § 1983, a plaintiff must show that he (1) possessed a liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride , 380 F.3d 649, 654 (2d Cir. 2004). “Prison discipline implicates a liberty interest when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Id . (quoting Sandin v. Conner , 515 U.S. 472, 484 (1995)).

As to the first factor, “[t]he prevailing view in this [C]ircuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement.” Liao v. Malik , No. 9:13-CV-1497 (GTS/DEP), 2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting cases). As to the second factor, the plaintiff bears the “burden of proving that the conditions of his confinement constituted an atypical, significant hardship in relation to the ordinary incidents of prison life in order to recover damages” under § 1983. Vasquez v. Coughlin , 2 F. Supp. 2d 255, 260 (N.D.N.Y. 1998).

The Second Circuit has instructed that in determining whether an inmate’s SHU confinement has imposed an atypical and significant hardship, a court must consider, among other things, both the duration and conditions of confinement. J.S. v. T’Kach , 714 F.3d 99, 106 (2d Cir. 2013). Thus, while not dispositive, the duration of a disciplinary confinement is a

29 significant factor in determining atypicality. Colon v. Howard , 215 F.3d 227, 231 (2d Cir. 2000) (citations omitted).

Although the Second Circuit has “explicitly avoided” creating “a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights,” the Court has established guidelines. Palmer v. Richards , 364 F.3d 60, 64 (2d Cir. 2004).

Confinement for 101 days or fewer under typical punitive segregation conditions “generally do[es] not constitute ‘atypical’ conditions of confinement.” Bunting v. Nagy , 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (quoting Sealey v. Giltner , 197 F.3d 578, 589 (2d Cir. 1999)). By contrast, 305 days or more of segregated confinement has been deemed an atypical and significant hardship. See Colon , 215 F.3d at 231-32. “A period of confinement between 101 and 305 days is considered to be an ‘intermediate duration’ and could implicate a liberty interest should a detailed record of the conditions of confinement indicate that it was an atypical and significant hardship.” Bunting , 452 F. Supp. 2d at 456 (citing Sealey , 197 F.3d at 589); see also Palmer , 364 F.3d at 64-65.

Additionally, “[o]verlapping disciplinary penalties may, under some circumstances, have to be aggregated for purposes of determining whether a liberty interest was violated.” Reynoso v. Selsky , 292 F. App’x 120, 122 (2d Cir. 2008) (summary order). “Generally, it appears from Second Circuit decisions that separate SHU sentences constitute a ‘sustained’ period of confinement [that may be aggregated] when (1) they are contiguous and (2) they either (a) were imposed by the same disciplinary hearing officer or (b) were based on the same administrative rationale and are executed under the same conditions.” Taylor v. Artus , No. 9:05-CV-271 (LEK/GHL), 2007 WL 4555932, at *8 & n.40 (N.D.N.Y. Dec. 19, 2007) (emphasis in original).

30 B. First Amendment Retaliation Claims “Courts properly approach prisoner retaliation claims ‘with skepticism and particular

care,’ 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.’” Davis v. Goord , 320 F.3d 346, 352 (2d Cir. 2003) (quotation and other citation omitted). “To prove a First Amendment retaliation claim under Section 1983, a prisoner must show . . . ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.’” Espinal v. Goord , 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak , 389 F.3d 379, 380 (2d Cir. 2004)).

“Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.” Davis , 320 F.3d at 353 (internal quotation marks and citation omitted). In making this determination, courts are to “bear in mind” that “prisoners may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse.” Dawes v. Walker , 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds , Swierkiewicz v. Sorema N.A. , 534 U.S. 506 (2002) (internal quotation marks and citations omitted). The “test is objective, not subjective, and must be so, since the very commencement of a lawsuit would otherwise be dispositive on the issue of chilling.” Davidson v. Bartholome , 460 F. Supp. 2d 436, 447 (S.D.N.Y. 2006) (citations omitted).

In determining whether a causal connection exists between the plaintiff’s protected activity and a prison official’s actions, factors to be considered include: “(i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate’s prior

31 good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation.” Baskerville v. Blot , 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon v. Coughlin , 58 F.3d 865, 872-73 (2d Cir. 1995)). “The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action.” Id .

Upon satisfying his initial burden, “the burden shifts to defendants to establish that the same adverse action would have been taken even in the absence of the plaintiff’s protected conduct, i.e., ‘even if they had not been improperly motivated.’” Davidson v. Desai , 817 F. Supp. 2d 166, 194 (W.D.N.Y. 2011) (quoting Graham , 89 F.3d at 80). “At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail.” Davidson v. Chestnut , 193 F.3d 144, 149 (2d Cir. 1999); see also Murray v. Hulihan , 436 F. App’x 22, 23 (2d Cir. 2011) (“Defendants cannot be liable for First Amendment retaliation if they would have taken the adverse action even in the absence of the protected conduct.”).

C. Eighth Amendment Excessive Force Claims “The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . .

including the unnecessary and wanton infliction of pain.” Giffen v. Crispen , 193 F.3d 89, 91 (2d Cir. 1999) (citation and quotation marks omitted). An Eighth Amendment excessive force claim has two elements—“one subjective focusing on the defendant’s motive for his conduct, and the other objective, focusing on the conduct’s effect.” Wright v. Goord , 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian , 503 U.S. 1, 7-8 (1992)).

“The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the 32 particular circumstances surrounding the challenged conduct.” Harris v. Miller , 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright , 554 F.3d at 268) (internal quotation marks omitted). The test for wantonness on an excessive force claim “is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id . (quoting Scott v. Coughlin , 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, “a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.”) (citation and quotation marks omitted)). The objective component requires a showing that the “conduct was objectively ‘harmful enough’ or ‘sufficiently serious’ to reach constitutional dimensions.” Harris , 818 F.3d at 64 (citation omitted).

In addition, a corrections officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate in the use of force. See Tafari v. McCarthy , 714 F. Supp. 2d 317, 342 (N.D.N.Y. May 24, 2010); Cicio v. Graham , No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010). Indeed, an official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officers in his or her presence. Cicio , 2010 WL 980272, at *13. In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally

33 refusing or failing to take reasonable measures to end the use of excessive force. Tafari , 714 F. Supp. 2d at 342; Jean-Laurent v. Wilkinson , 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008).

D. Personal Involvement “It is well settled that, in order to establish a defendant’s individual liability in a suit

brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven , 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section 1983 plaintiff must ‘allege a tangible connection between the acts of the defendant and the injuries suffered.’” Austin v. Pappas , No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson , 790 F.2d 260, 263 (2d Cir. 1986)). Supervisory officials may not be held liable for their subordinates’ constitutional violations merely because they are in a position of authority. See Black v. Coughlin , 76 F.3d 72, 74 (2d Cir. 1996).

Traditionally, to establish supervisory liability in the Second Circuit, a plaintiff must allege that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.

Shaw v. Prindle , 661 F. App’x 16, 18 (2d Cir. 2016) (quoting Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995)). However, the Second Circuit recently held that the Colon test was abrogated by the Supreme Court’s decision in Ashcroft v. Iqbal , 556 U.S. 662 (2009).

34 The Court held that: [A]fter Iqbal , there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove “that each Government- official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal , 556 U.S. at 676, 129 S. Ct. 1937. “The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue” because the elements of different constitutional violations vary. Id . The violation must be established against the supervisory official directly.

Tangreti v. Bachmann , 983 F.3d 609, 618 (2d Cir. 2020) (alteration in original). 17 E. Exhaustion Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought

with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “The PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle , 534 U.S. 516, 532 (2002).

In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined and do so properly. Jones v. Bock , 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo , 548 U.S. 81, 88 (2006)). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in

17 Tangreti was decided in the context of an Eighth Amendment deliberate indifference claim against a prison official, and therefore did not specify the “factors necessary” to establish a claim against a supervisor for the types of claims Plaintiff alleges here. Tangreti , 983 F.3d 609 at 618.

35 court.” Id . at 211. In New York state prisons, DOCCS has a well-established three-step IGP. N.Y. Comp. Codes R. & Regs. tit. 7 (“NYCRR”), § 701.5 (2013).

Generally, the IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility’s IGP clerk within twenty-one calendar days of the alleged occurrence. Id . § 701.5(a). A representative of the facility’s Inmate Grievance Resolution Committee (“IGRC”) has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id . § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance ( id . § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id . § 701.5(b)(3).

Second, a grievant may appeal the IGRC decision to the facility’s superintendent within seven calendar days of receipt of the IGRC’s written decision. Id . § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant’s appeal. Id . § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Office Review Committee (“CORC”) for a decision under the process applicable to the third step. Id . § 701.5(c)(3)(I).

Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent’s written decision. Id . § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id . § 701.5(d)(3)(ii).

Complaints of harassment are handled by an expedited procedure which provides that such grievances, once it is given a number and recorded by the IGP clerk, are forwarded directly 36 to the superintendent of the facility, after which the inmate may appeal any negative determination to CORC. Id . §§ 701.8(h),(i).

Generally, a plaintiff must properly appeal through all three levels of the IGP before seeking relief in a federal court under § 1983. See Ruggiero v. Cty. of Orange , 467 F.3d 170, 176 (2d Cir. 2006).

However, for complaints regarding sexual abuse or sexual harassment, DOCCS has established a different procedure. See DOCCS Directive 4040 § 701.3(i); 7 NYCRR § 701.3(i). “Revised in 2014 pursuant to the Prison Rape Elimination Act (“PREA”), see Henderson v. Annucci , No. 14-CV-445A, 2016 WL 3039687, at *3 (W.D.N.Y. Mar. 14, 2016), Directive 4040 § 701.3(i) creates a relaxed exhaustion requirement for allegations concerning incidents of sexual assault.” Sheffer v. Fleury , No. 9:18-cv-1180 (LEK/DJS), 2019 WL 4463672, at *4 (N.D.N.Y. Sept. 18, 2019). Specifically, “an inmate is not required to file a grievance concerning an alleged incident of sexual abuse or sexual harassment to satisfy the [PLRA] exhaustion requirement.” 7 NYCRR § 701.3(i). Instead:

[A]ny allegation concerning an incident of sexual abuse or sexual harassment shall be deemed exhausted if official documentation confirms that: an inmate who alleges being the victim of sexual abuse or sexual harassment reported the incident to facility staff; in writing to Central Office Staff; to any outside agency that the Department has identified as having agreed to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials under the PREA Standards; or to the Department’s Office of the Inspector General.

Id . (citations omitted). If an inmate does file a grievance regarding a complaint of sexual abuse or sexual harassment, “[t]he complaint shall be deemed exhausted upon filing.” Id . Finally, “[a] sexual abuse or sexual harassment complaint may be submitted at any time.” Id .

37 Finally, while the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross v. Blake , 136 S. Ct. 1850, 1858 (2016). More specifically, § 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross , 136 S. Ct. at 1858 (“[T]he exhaustion requirement hinges on the availability of administrative remedies[.]”) (quotations and citations omitted). In the PLRA context, the Supreme Court has determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Ross , 136 S. Ct. at 1859 (quotations and internal citations omitted).

The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id . at 1859-60. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id . at 1859. “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id . Finally, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id . at 1860.

As an affirmative defense, the defendant bear the burden of showing the plaintiff failed to satisfy the exhaustion requirements. See Jones , 549 U.S. at 216; Johnson v. Testman , 380 F.3d 691, 695 (2d Cir. 2004).

F. Qualified Immunity “Government actors are entitled to qualified immunity insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would 38 have known.” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t , 577 F.3d 415, 432-33 (2d Cir. 2009) (internal quotation marks and citation omitted). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id . at 433 (citation omitted). “The principle of qualified immunity ensures that before they are subjected to suit, officers are on notice their conduct is unlawful.” Id . (internal quotation marks and citation omitted).

VI. ANALYSIS

Defendants argue summary judgment is appropriate because: (1) Plaintiff was not deprived of a protected liberty interest sufficient to support a Fourteenth Amendment due process claim; (2) Plaintiff received all of the process he was due in connection with the hearings; (3) Annucci and Venettozzi were not personally involved in the alleged deprivations under the Fourteenth Amendment; (4) Annucci, Venettozzi, and Smith are entitled to qualified immunity; (5) Plaintiff failed to exhaust his administrative remedies with respect to his First Amendment retaliation and Eighth Amendment excessive force claims; (6) Plaintiff’s Eighth Amendment excessive force claim against DeGraff, McElory, and Harrison arising from the unspecified incident fails on the merits; and (7) Plaintiff’s First amendment retaliation claims against DeGraff and Karamanos fail on the merits. ( See generally Dkt. No. 80-20, 92.) Plaintiff opposes the motion. (Dkt. Nos. 87, 92.)

A. Fourteenth Amendment Due Process Claims Plaintiff alleges he was denied due process at six disciplinary hearings conducted by

Gardner, Pingotti, Palen, and Farah in violation of his rights under the Fourteenth Amendment. (Dkt. No. 1 at 41-42.) Generally, as detailed above, Plaintiff claims he was denied the

39 opportunity to present a defense, documents, videos, witnesses, and employee assistance. He claims Defendants were biased and he was removed from two hearings and was not provided with a written statement of the disposition at one hearing. Plaintiff claims he appealed all of the disciplinary determinations, which were affirmed on administrative appeal by Smith, Venettozzi, and/or Annucci.

Defendants argue the sentences imposed by Gardner, Pingotti, Palen, and Farah at the disciplinary hearings did not implicate a protected liberty interest and that, even if they did, Plaintiff received due process. (Dkt. No. 80-20 at 32-38.) According to Defendants, Plaintiff’s assertion that he served more than 305 days of consecutive disciplinary confinement is belied by the record. Id . at 34. Defendants point out that Plaintiff did not actually serve anywhere near the full amount of time in the SHU with which he was sanctioned from the six disciplinary hearings at issue. Id . Additionally, Defendants argue Plaintiff’s claims against Annucci and Venettozzi should be dismissed for lack of personal involvement. Id . at 25-29. Lastly, Annucci, Venettozzi, and Smith argue they are entitled to qualified immunity. Id . at 29-32.

In his response and sur-reply, liberally construed, Plaintiff suggests that Defendants have “already conceded” that he was denied due process because the disciplinary hearings at issue were administratively revered. (Dkt. No. 87 at ¶¶ 10, 11.) As to the length of his disciplinary confinement, Plaintiff asserts that he was always housed in “continuous” “restrictive” confinement, from September 2014 through May/June 2015, including the SHU at Shawangunk and Sullivan and, the “long term confinement unit” at Attica, which is a “secure confinement unit,” known as “18 company.” (Dkt No. 87 ¶¶ 12-15; Dkt. No. 92 at ¶ 7.) Plaintiff further argues Annucci and Venettozzi were personally involved, are liable as supervisors (“someone must stop the buck”) and are not entitled to qualified immunity. (Dkt No. 87 ¶¶ 12-15.)

40 1. Liberty Interest As a preliminary matter, Plaintiff had “‘no right to due process [at his hearing] unless a liberty interest’ was infringed.” Palmer , 364 F.3d at 64 (alternation and emphasis in original). Here, the record evidence demonstrates Plaintiff was housed in disciplinary confinement at Shawangunk during the relevant time period for a total of 46 days in 2014: from August 25, 2014, through September 4, 2014, and from November 18, 2014, through December 23, 2014. (Dkt. No. 80-18 at ¶ 17.)

As detailed above, during the intervening period, Plaintiff was housed in Shawangunk’s facility hospital after the September 4, 2014, incident and was then placed under IPC status for his personal safety and for the safety and security of the facility from September 11, 2014, through October 30, 2014. (Dkt. Nos. 1 at 19-20, 80-1 at ¶¶ 7-14.) Thereafter, he was temporarily transferred to Sullivan for mental health observation from October 30, 2014, through November 17, 2014. (Dkt. Nos. 1 at 19-20, 80-1 at ¶¶ 7-14.) Subsequently, Plaintiff was transferred from Shawangunk to Sullivan on December 23, 2014, and then to Attica on January 30, 2015. (Dkt. No. 80-1 at ¶¶ 16, 17.) Plaintiff was housed in the general population at Attica for all of 2015, except for five days in March when he was temporarily relocated to the mental health observation unit. Id . at ¶¶ 18-21. He was not housed in the SHU at Attica at any time in 2015. Id . at ¶ 22.

Courts routinely find similar disciplinary confinement insufficient to constitute a liberty interest. See Holmes v. Grant , No. 03-CIV-3426, 2005 WL 2839123, *5 (S.D.N.Y. Oct. 25, 2005) (finding 60 days in the SHU at Shawangunk is “insufficient to constitute a deprivation of a liberty interest”); see also Holland v. Goord , No. 05-CV-6295, 2006 WL 1983382, *7 (W.D.N.Y. July 13, 2006) (finding 77 days in keeplock during which the plaintiff was deprived

41 of TV, phone, packages, and commissary, and was unable to attend Muslim services and classes, did not constitute a liberty interest); Pilgrim v. Bruce , No. 9:05-CV-198, 2008 WL 2003792, *15 (N.D.N.Y. May 7, 2008) (finding 60 days in keeplock failed to establish that he was subject to more severe conditions than in normal restrictive confinement).

Moreover, because the record evidence demonstrates Plaintiff’s disciplinary confinement was not “contiguous,” the Court agrees with Defendants that aggregation is not appropriate in the case at bar and any disciplinary confinement Plaintiff actually served in connection with his hearings should be evaluated individually. ( See Dkt. No. 80-2 at 35.)

Where, as in this case, the plaintiff’s disciplinary confinement “was not long enough to constitute an atypical and significant deprivation by itself,” courts “look to the conditions of confinement” as alleged by plaintiff. Smith v. Hamilton , 9:15-CV-0496 (BKS/ATB), 2016 WL 3823395, at *3 (N.D.N.Y. July 12, 2016) (quoting Palmer , 364 F.3d at 66). Here, given the absence of any allegations from Plaintiff about unusually harsh or abnormal conditions of his confinement at Shawangunk, the Court finds Plaintiff’s liberty interests were not implicated by the disciplinary hearings challenged in this action. See McEachin v. Selsky , No. 9:04-CV-0083 (FJS/RFT), 2010 WL 3259975, at *9 (N.D.N.Y. Mar. 30, 2010) (“It is expected that confinement in SHU will be accompanied by a loss of privileges that prisoners in the general population enjoy and such conditions fall ‘within the expected parameters of the sentence imposed by a court of law.’”) (citations omitted); see also Dkt. No. 87 at ¶ 15 (alleging he was “locked into cell housing” for “23 hours[s]” a day). 18

18 Inmates in the SHU are subject to, inter alia , limitations on personal property, packages, commissary, programs, visits, and telephone calls, and out-of-cell recreation is limited to one hour daily. (Dkt. No. 80-18 at ¶ 11.)

42 Further, as noted, Plaintiff was not housed in Attica’s SHU in 2015. (Dkt. No. 80-1 at ¶ 22.) While Plaintiff describes his confinement at Attica as “restrictive” while housed in “18 company,” he only claims that his “personal property, i.e., television sets, hot pots, etc.” was “confiscated,” which fails to implicate an atypical and significant hardship. (Dkt. No. 87 at ¶ 12.) Moreover, Plaintiff has not alleged that this “restrictive” confinement differed from other inmates housed in 18 company. See id .

Based on the forgoing, the Court finds Plaintiff has failed to establish a protected liberty interest and, as a result, Plaintiff’s Fourteenth Amendment due process claims fail as a matter of law. Accordingly, the Court recommends granting summary judgment to Gardner, Pingotti, Farah, Palen, Smith, Venettozzi, and Annucci.

2. Due Process Even assuming Plaintiff demonstrated the existence of material questions of fact as to a protected liberty interest, which, for reasons set forth he did not, Defendants have established their entitlement to summary judgment because Plaintiff was afforded the process he was due. ( See Dkt. No. 80-20 at 36-38.)

a. Gardner Gardner conducted Plaintiff’s disciplinary hearings that concluded on September 23, 2014, and December 10, 2014. (Dkt. No. 80-8 at ¶¶ 4, 6. 19 ) The record shows that at each 19 As noted, Plaintiff also claims Gardner conducted the August 25, 2014, hearing. Gardner has no recollection of any such hearing. (Dkt. No. 80-8 at ¶ 4 n.1.) Defendants have not submitted the transcript of that hearing. Thus, the Court makes no finding as the process afforded to Plaintiff during that hearing. Nevertheless, the record shows Plaintiff only was confined in the SHU for 10 days as a result of that hearing, which fails to create a liberty interest. See Ochoa v. DeSimone , No. 9:06-CV-119 (DNH/RFT), 2008 WL 4517806, at *4 (N.D.N.Y. Sept. 30, 2008) (holding 30 days SHU and keeplock confinement insufficient to create liberty interest); Escalera v. Charwand , No. 9:04-CV-0983 (FJS/DEP), 2008 WL 699273, at *8 (N.D.N.Y. Mar. 12, 2008) (same).

43 hearing, Plaintiff received advance notice of the charges against him (the IMRs issued September 8, 2014, and November 13, 2014), an opportunity to call witnesses and present evidence, and a written statement of the evidence relied upon at the conclusion of each hearing. Id . at ¶¶ 9-17, 39-44. Plaintiff was assisted by Mr. Chumas in connection with the September 23, 2014, Tier III hearing and, although he was not assigned an employee assistant for the December 10, 2014, Tier II hearing, Plaintiff made his requests for evidence and witnesses directly to Gardner. Id . at ¶¶ 10, 38.

Upon review of the hearing transcripts, Gardner acted fairly and impartially. As to the September 23, 2014, hearing, Gardner relied upon the IMR issued by C.O. Algarin, as well as the verbal testimony given at the hearing. Id . at ¶¶ 23, 26. Similarly, as to the December 10, 2014, hearing, Gardner relied upon the IMR issued by social worked at Sullivan, and upon all of the verbal testimony. Id . at ¶ 49.

b. Pingotti Pingotti conducted the October 14, 2014, Tier III disciplinary hearing. (Dkt. No. 80-13 at ¶ 4.) Plaintiff received a copy of the September 30, 2014, IMR, was assisted by Mr. Chumas, and had an opportunity to call relevant witnesses and present evidence. Id . at ¶¶ 9-17. Plaintiff attended the hearing until just prior to the conclusion, when he was removed due to his disruptive and unruly behavior. See id . at ¶ 18. Plaintiff was provided with a copy of the written disposition, which included a statement of evidence utilized by Pingotti including the IMR, the documentation regarding Plaintiff’s urinalysis result, and all of the verbal testimony given during the course of the hearing. Id . at ¶ 24. Upon review of the hearing transcript and record, Pingotti acted fairly and impartially. Id . at ¶ 25.

44 c. Palen Palen conducted Plaintiff’s November 27, 2014, Tier II hearing regarding the October 17, 2014, IMR. (Dkt. No. 80-12 at ¶ 6.) Plaintiff received a copy of the IMR giving him advance notice of the charges against him, an opportunity to call witnesses and present evidence, and a written statement of the evidence Palen considered, which included the IMR and all of the verbal testimony given at the hearing. Id . at ¶ 29. As this was a Tier II hearing, Plaintiff was not assigned an assistant and was directed to make all requests for the evidence and witnesses he needed to Palen. Id . at ¶ 11. Upon review of the hearing transcript and record evidence, Palen acted fairly and impartially. Id . at ¶ 30.

d. Farah Farah conducted the December 18, 2014, Tier III hearing regarding the October 24, 2014, IMR. (Dkt. No. 80-6 at ¶ 6.) Plaintiff received a copy of the IMR giving him advance notice of the charges against him, was assisted by Mr. Austin, was presented with an opportunity to call witnesses and present relevant evidence, and received a written explanation of the disposition. Id . at ¶¶ 9, 15, 36. In finding Plaintiff guilty, Farah considered the IMR written by DeGraff, the verbal testimony given at the hearing, the documentation regarding the October 24, 2014, incident, as well as the video recording depicting the incident. Id . at ¶ 32. The three inmate witnesses that Plaintiff requested refused to testify. Id . at ¶¶ 16, 30. After multiple warnings, Plaintiff was removed during the course of the hearing due to his disruptive behavior. See id . at ¶ 23. Plaintiff then refused to attend the remainder of the hearing. See id . at ¶¶ 26-29. Upon review of the hearing transcript and record evidence, Palen also acted fairly and impartially and did not predetermine Plaintiff’s guilt. Id . at ¶¶ 30, 37.

For these reasons, summary judgment is also warranted. 45 3. Appeals Plaintiff appealed all of the disciplinary determinations at issue, which he claims were affirmed on administrative appeal by Smith, Venettozzi, and/or Annucci. However, for reasons discussed above, Plaintiff has failed to establish a liberty interest and he was afforded due process. As such, Plaintiff cannot establish a Fourteenth Amendment due process claim against these Defendants based on their alleged affirmance of a constitutional disciplinary hearing. See Cole v. New York State DOCCS , No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *28 (N.D.N.Y. Aug. 25, 2016); see also Lopez v. Whitmore , No. 13-CV-0952 (BKS/ATB), 2015 WL 4394604, at *11 (July 16, 2015). Thus, summary judgment is also warranted on this basis. 20

Moreover, since Defendants filed this motion, the Second Circuit has clarified that under the Supreme Court’s ruling in Iqbal , “a plaintiff must plead and prove ‘that each Government- official defendant, through the official’s own individual actions, has violated the Constitution.’” Tangreti , 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal , 556 U.S. at 676). Merely being in the chain of command is not enough to satisfy this standard. See id . While “‘[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue’ because the elements of different constitutional violations vary,” id . (quoting Iqbal , 556 U.S. at 676) (second alteration in original), “[t]he violation must be established against the supervisory official directly.” Id . (emphasis added). Failing to correct another officer’s violation does not suffice. Id . at 617 n.4. “Indeed, even before Tangreti , affirming the outcome of a prison hearing was not sufficient to establish personal involvement.” Smart v. Annucci , No. 19-CV-7908, 2021 WL

20 As the Court recommends granting summary judgment for reasons discussed above, the Court declines to address Defendants whether Annucci, Venettozzi, and Smith are entitled to qualified immunity. ( See Dkt. No. 80-20 at 25-32.)

46 260105, at *5 (S.D.N.Y. Jan. 26, 2021) (citing Abdur-Raheem v. Selsky , 598 F. Supp. 2d 367, 370 (W.D.N.Y. 2009) (collecting cases)).

Here, Plaintiff has not alleged, and the record does not demonstrate, that Smith, Venettozzi, or Annucci had any personal involvement during the disciplinary hearings at issue. See Smart , 2021 WL 260105, at *5 (“That [defendants] failed to act on plaintiff’s complaints, and that [they] denied plaintiff’s administrative appeals, cannot support the inference that these [d]defendants, through “[their] own individual actions, [have] violated the Constitution.”) (quoting Tangreti , 983 F.3dat 615). Thus, summary judgment is also warranted on this basis. 21

B . Exhaustion Defendants argue Plaintiff failed to exhaust his administrative remedies with respect to

his First Amendment retaliation and Eighth Amendment excessive force claims. (Dkt. No. 80-20 at 21-25.) To that end, Defendants submit evidence demonstrating Plaintiff did not file any grievances at Shawangunk, Sullivan, or Attica regarding his claims that: (1) DeGraff and Karamanos assaulted him on October 24, 2014, as he was exiting his cell to take a shower; (2) DeGraff and Karamanos retaliated against him on October 24, 2014, by subjecting him to excessive force; (3) DeGraff, McElroy, and Harrison assaulted Plaintiff on another unspecified date while escorting him to the facility hospital; or (4) DeGraff retaliated against him on October 17, 2014, by disposing of his mattress. (Dkt. No. 80-1 at ¶¶ 204-07.) CORC has no record of an appeal filed by Plaintiff related these claims. (Dkt. No. 80-15 at ¶¶ 15-16.) Defendants thus argue summary judgment is warranted.

21 As the Court recommends granting Defendants’ motion insofar as it seeks dismissal of Plaintiff’s Fourteenth Amendment claims, the Court declines to address whether Annucci, Venettozzi, and Smith are entitled to qualified immunity. ( See Dkt. No. 80-20 at 29-32.)

47 Plaintiff counters administrative remedies were unavailable and, alternatively, requests an exhaustion hearing. (Dkt. No. 87 at ¶¶ 2-7.) Specifically, Plaintiff claims administrative remedies had become unavailable as to his Eighth Amendment excessive force claims because his “complaints, grievance, etc., were the subject of much tampering, and mishandling.” Id . at ¶ 6. Plaintiff further argues the IGP is “opaque” and “confusing as it applies to what an inmate can do—when his grievance are not making it to the grievance staff, or what a plaintiff can do when his grievances are causing officers to retaliate.” Id . at ¶ 7.

1. Excessive Force As pointed out by Defendants, when questioned about his excessive force claims during his deposition, Plaintiff testified that he did not remember whether he filed a grievance against DeGraff, McElroy, and Harrison and could not recall the date of the alleged incident. (Dkt. No. 80-2 at 63, 70.) With respect to the October 24, 2014, incident, Plaintiff also testified that he could not remember whether he filed a grievance against DeGraff or Karamanos. Id . at 60-61.

In his sworn response to Defendants’ motion, Plaintiff explains that his memory was “unclear” at the time of his deposition and further states that as to his excessive force claims “a grievance was filed” by “giving said grievance” to a SHU officer at Shawangunk. (Dkt. No. 87 at ¶ 2.) The parties agree a grievance was never filed at Shawangunk.

Plaintiff states that he sent a copy of the grievance to Lanny E. Walter, an attorney, whom he claims to have acted as the “custodian and record keeper of [his] grievances,” because he was “having a hard time getting grievances against Shawangunk SHU officers filed or even delivered for filing at Shawangunk Inmate Grievance Office/Staff.” Id . at ¶¶ 2, 3. 22

22 Attorney Walter does not represent Plaintiff in this action. ( See Docket Report; see also Dkt. No. 87 at 18.) 48 Plaintiff has submitted a copy of a November 22, 2019, letter from Attorney Walter addressed to Judge Hurd, which in turn identifies “[a] December 14, 2014[,] grievance sent to J. Taylor-Stewart . . . to which are attached pink copies of Inmate Grievance Complaint dated November 26, 2014[,] and December 4, 2014.” Id . at 1-2, 18. Plaintiff also submitted photocopies of grievances dated November 26, 2014, and December 4, 2014. Id . at 32-33. In the November 26, 2014, grievance, Plaintiff states:

Prior to being sent OMH/OBS I filed this complaint but it was never answered. While under escort from the dentist on Oct. 15, 2014, Officer DeGraff in an act of retaliation and intimidation put his groin up against my buttocks and grabbed my penis, after which Officer McElroy punched me in the back of the head, while their Supervisor Sgt. Harrison stood by and threatened my (sic) to stop writing complaints to the commissioner, and Superintendent about Captain Bertone. Then on Oct. 24, 2014, C.O. DeGraff and Karamanos violated facility SHU shower policy and pat frisked me at which time C.O. DeGraff grabbed my penis and Karamanos slammed my head into the wall with his forearm repeatedly.

(Dkt. No. 87 at ¶ 2.) According to Defendants, this “grievance,” which lacks a grievance number, is insufficient to exhaust his Eighth Amendment excessive claims because there is no indication it was actually filed . (Dkt. No. 88 at 4-5.) The Court agrees. Defendants further assert that even if Plaintiff may have relayed this “grievance” to Deputy Superintendent Taylor-Stewart, along with a letter complaining of difficulties in the grievance process, it would not substitute for proper exhaustion because “a plaintiff’s letters to prison officials or other officials outside the grievance chain of command are insufficient to properly exhaust administrative remedies.” Id . at 5 (quoting, inter alia , Cucchiara v. Dumont , No. 9:18-CV-0182 (GLS/CFH), 2019 WL 2516605, at *5 (N.D.N.Y. Apr. 26, 2019), report and recommendation adopted , 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016)). The Court also agrees.

49 The Court reaches a different conclusion, however, as to Defendants’ contention that Plaintiff’s Eighth Amendment excessive force claims are not “salvaged” from the PLRA’s exhaustion requirement by his “unsupported assertion that one or more unnamed Shawangunk officers destroyed, mishandled, or otherwise failed to file his grievance or grievances.” Id . (citing, inter alia , Rodriguez v. Cross , No. 15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“mere contention or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations”), report and recommendation adopted , 2017 WL 2790530 (N.D.N.Y. June 27, 2017)).

Contrary to Defendants’ assertion, Plaintiff had not speculated that his grievance was misplaced. (Dkt. No. 88 at 5-6.) In his sworn opposition, Plaintiff states he gave the grievance to a SHU officer and mailed a copy of the grievance to Attorney Walter. (Dkt. No. 87 at ¶¶ 2, 5.) Plaintiff proffers a copy of the November 26, 2014, grievance, and a cover letter from Attorney Walter dated November 22, 2019, which, among other things, references a November 26, 2014, grievance. (Dkt. No. 88 at 18, 32.) “Since the Court is required to draw reasonable inferences in Plaintiff’s favor, the Court must infer that the grievance was never filed because prison authorities did not file it, not because Plaintiff did not submit it.” McLean v. LaClair , No. 9:19- CV-1227 (LEK/ATB), 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021); Fann v. Graham , No. 15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (“Viewing the facts in the light most favorable to plaintiff, the record suggests that plaintiff’s grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his administrative remedies[.]”), report and recommendation adopted , 2018 WL 1399340 (N.D.N.Y. Mar. 19,

50 2018); Thaxton v. Simmons , No. 10-CV-1318, 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact.”); see also Woodward v. Lytle , No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4-5 (N.D.N.Y. Sept. 27, 2018) (finding an issue of fact as to the availability of the grievance process where plaintiff drafted and submitted a grievance that was never filed or answered) (collecting cases).

Additionally, Defendants’ contention that Plaintiff was able to successfully navigate the IGP as to other matters at Shawangunk during the relevant time ( see Dkt No. 88 at 6) does not necessarily weaken Plaintiff’s unavailability argument—his history of filing grievances could also suggest that, absent interference, he was capable of complying with it. See Burrell v. Zurek , No. 9:17-CV-0906 (LEK/TWD), 2019 WL 4051596, at *3 (N.D.N.Y. Aug. 28, 2019).

Based on the foregoing, the Court finds Plaintiff has raised a genuine issue of fact as to the availability of the IGP with respect to his Eighth Amendment excessive force claims and therefore summary judgment is not warranted.

2. Sexual Assault Rachel Seguin, the Assistant Director of DOCCS IGP, states that “with the exception of the sexual assault allegations,” Plaintiff’s excessive force and retaliation claims are the proper subject for a grievance. (Dkt. No. 80-15 at 10.) Defendants acknowledge that “DOCCS regulations exempt claims of sexual abuse or harassment from the requirement of filing a grievance for exhaustion purposes, so long as the incident is properly reported.” (Dkt. No 80-20 at 25, citing 7 NYCRR § 701.3(i).)

51 Here, Plaintiff testified that he believed his October 29, 2014, letter to DOCCS’ Inspector General obviated the need for a grievance because it implicated PREA. (Dkt. No. 80-2 at 60- 62. 23 ) In that letter, Plaintiff states:

Dear Inspector General: Once again I am to make a request for your intervention on my behalf and investigate the ongoing retaliation, abuse, and again this inappropriate touching of my “penis” genitals by “C.O. D. DeGraff” who work the SHU/PC SD Unit here at Shawangunk. Officer DeGraff . . . on Oct. 24, 2014, . . . in an act of retaliation, “grabbed my penis” my buttock . . . under the guise of a pat frisk that is not a part of the policy at Shawangunk before a SHU shower. Please investigate!!

Id . at 191. Moreover, in his declaration, DeGraff states, “I understand that plaintiff filed a complaint against me concerning the October 24, 2014[,] incident at some point thereafter. Attached as Exhibit D is a memorandum that I wrote to a different supervisor, Sgt. Lutz, on December 4, 2014 after plaintiff lodged his complaint. To the best of my knowledge, plaintiff’s complaint was found unsubstantiated and dismissed.” (Dkt. No. 80-5 at ¶ 12.) In that memorandum, DeGraff states:

At no time have I sexually assaulted inmate Clark, J. 99A0475 or any other inmate. I do not have it ‘out for him.’ I have not ‘set up’ inmate Clark or any other inmate. CO Karamanos and myself were involved in a minor use of force on October 24, 2014 with inmate Clark. Inmate Clark was being disruptive and failed to follow staff direction. A Tier 3 misbehavior report was issued for that incident and is still pending. Inmate Clark was out of the Facility for an extended period of time after that incident, and there have been no incidents since.

(Dkt. No. 80-5 at 13.) 23 Plaintiff also states in the verified complaint that he filed a complaint with the Office of Special Investigations about the alleged excessive force incident involving DeGraff, McElroy and Harrison on the way to Shawangunk’s facility hospital. (Dkt. No. 1 at 29.)

52 Nevertheless, Defendants argue DeGraff’s alleged conduct does not fall under the purview of the exemption because ‘“Sexual Contact’ does not include touching of the intimate parts of another person during the performance of a personal search in accordance with Department procedures . . . ” (Dkt. No. 80-20 at 24-25, emphasis in Defendants’ memorandum of law.) Defendants also note Plaintiff does not claim Karamanos participated in the alleged sexual touching and, therefore, his excessive force against Karamanos must be “properly grieved for exhaustion purposes.” Id . at 25.

However, the parties dispute whether the sexual contact was in accordance with Department procedures. See Hayes v. Dahlke , 976 F.3d 259, 275 (2d Cir. 2020) (“Prison regulations state that, while ‘[c]ontact through the clothing with the genitalia, groin, . . . inner thigh, and buttocks is a necessary component of a thorough pat frisk[,] . . . staff must avoid any penetration of the anal or genital opening through the clothing” and “must not lift or otherwise manipulate the genitalia during a pat frisk.”) (alterations in original). “Further, while it is true that not all grievances by inmates are covered by Directive 4040, conduct that is specifically related to the act of sexual abuse, such as a failure to intervene and protect that abuse, could be reasonably interpreted by the inmate as being covered by the Directive.” Sheffer v. Fleury , 2019 WL 3891143, at *4 (N.D.N.Y. Aug. 19, 2019) (finding an “incident” of sexual abuse under § 701.3(i) could include “not only the acts of sexual abuse by an inmate or a corrections officer, but also other events which are necessarily intertwined with such a claim, such as a physical assault during the course of the abuse . . .”).

Given the record and considering the evidence in the light most favorable to Plaintiff, the Court finds Defendants have not sustained their burden of demonstrating that Plaintiff’s sexual 53 assault claims, along with the alleged physical assaults, were not properly exhausted under the relaxed procedures found in § 701.3(i).

3. Retaliation The Court reaches a different result as to Plaintiff’s First Amendment retaliations claims. Here, there is no dispute that Plaintiff never filed a grievance concerning his claims that DeGraff or Karamanos retaliated against him for his grievance activity. Plaintiff does not suggest, and the record does not demonstrate, that Plaintiff’s administrative remedies were unavailable under Ross .

Based upon the foregoing, the Court finds Plaintiff did not exhaust his administrative remedies with respect to his First Amendment retaliation claims as the PLRA requires and, therefore, recommends granting Defendants’ motion and dismissing Plaintiff’s First Amendment retaliation claims against DeGraff and Karamanos.

Generally, a dismissal for failure to exhaust administrative remedies is without prejudice, so that the inmate-plaintiff can cure the defect by exhausting his administrative remedies and then reinstituting his suit. See Snider v. Melindez , 199 F. 3d 108, 111-12 (2d Cir. 1999). However, dismissal with prejudice is appropriate where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Berry v. Kerik , 366 F.3d 85, 87 (2d Cir. 2004). Here, more than several years have passed since Plaintiff should have filed a grievance. As Plaintiff’s failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff’s First

54 Amendment retaliation claims with prejudice. See Castineiras v. Helms , No. 9:17-CV-1084 (BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6, 2019). 24

C. Excessive Force Claims As discussed, Plaintiff claims he was physically and sexually assaulted on two separate

occasions while confined at Shawangunk. Defendants only seek summary judgment on the merits as to Plaintiff’s Eighth Amendment excessive force claim premised on the incident involving DeGraff, McElroy, and Harrison. (Dkt. No. 80-20 at 15-17.)

Defendants argue summary judgment is warranted because Plaintiff has never provided a date or time of this alleged incident. (Dkt. No. 80-20 at 16; see Dkt. No. 1 at 29.) When questioned at his deposition about this alleged incident, Plaintiff testified that he did not remember when it occurred. (Dkt. No. 80-20 at 16.) Without such essential information as the date or time, Defendants argue Plaintiff’s excessive force claim in connection with this alleged incident should be dismissed. Id ., citing, inter alia , Lopez v. City of New York , No. 05 Civ. 10321, 2009 WL 229956, at *8 (S.D.N.Y. Jan. 30, 2009) (granting summary judgment dismissing an excessive force claim where the plaintiff failed to provide, among other things, a timeframe for the alleged incident).

To be sure, Plaintiff testified that he could not recall the exact date of this incident. (Dkt No. 80-2 at 63.) However, Plaintiff recalled the incident and described it taking place within the infirmary area, in the “short corridors leading” to the “emergency room areas and sick-call areas of Shawangunk.” Id . Plaintiff further testified DeGraff “pushed me up against the wall” and “he pressed up against me and talking into my ear and pressing his pelvis, like up against my

24 In light of this recommendation, the Court does not address the merits of Plaintiff’s First Amendment retaliation claims. 55 buttocks.” Id . at 64-65. Although he could not recall what DeGraff said, “it was some perverted stuff[.]” Id . at 65. Plaintiff testified McElroy “punched” him a “couple times” in the “back area” of his head. Id . at 65-66. Plaintiff also testified Harrison came up to the side of him and threatened Plaintiff that “it will get rougher.” Id . at 65. When questioned about any witnesses, he suggested the nurses or the “dentist office might have heard it.” Id . at 67. More importantly, in his sworn opposition statement, Plaintiff has now proffered the date of the incident: October 15, 2014. (Dkt. No. 87 at ¶ 5; see also Dkt. No. 87 at 32 (“While under escort from dentist on Oct. 15, 2014, Officer DeGraff in an act of retaliation and intimidation put his groin up against my buttocks and grabbed my penis, after which Officer McElroy punched me in the back of my head, while their supervisor Sgt. Harrison stood by and threatened me . . . .”).)

Without question, the evidentiary support for Plaintiff’s excessive force claim against these Defendants is thin. Plaintiff testified that the incident happened quickly, approximately one to two minutes, and the injuries were not extensive in that he had “a little soreness in the back of my head.” (Dkt. No. 80-2 at 67, 69.) Moreover, DeGraff, McElroy, and Harrison affirmatively deny having ever physically assaulted, used excessive force on, or improperly touched Plaintiff in any way. (Dkt. No. 80-5 at ¶¶ 5, 14; Dkt. No. 80-9 at ¶ 5; Dkt. No. 80-11 at ¶ 6.)

Nevertheless, on the record before the Court, Plaintiff has also testified and identified the date, location, and described the alleged force and sexual touching. Since Plaintiff’s “allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically,” summary judgment is inappropriate. See Wright v. Goord , 554 F.3d 255, 269 (2d Cir. 2009); see also Hayes , 976 F.3d at 275 (“Indeed, as we explained in Crawford , if an “officer intentionally brings his or her genitalia into

56 contact with the inmate in order to arouse or gratify the officer’s sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact.”) (quoting Crawford v. Cuomo , 796 F.3d 252, 257 (2d Cir. 2015)). The key inquiry into a claim of excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson , 503 U.S. at 7 (citing Whitley v. Albers , 475 U.S. 312, 321-22 (1986)); see also Wilkins v. Gaddy , 559 U.S. 34, 37 (2010) (per curiam) (“[t]he Supreme Court has emphasized that the nature of the force applied is the core judicial inquiry in excessive force cases – not whether a certain quantum of injury was sustained.”).

Based on the foregoing, the Court recommends denying Defendants’ motion as to Plaintiff’s excessive force claim against DeGraff, McElroy, and Harrison arising from this incident.

VII. CONCLUSION

After carefully reviewing the entire record in this matter, the parties’ submissions and the applicable law, and for the above-stated reasons, the Court recommends that Defendants’ motion for summary judgment be granted as to all claims, with the exception of the Eighth Amendment excessive force claims against DeGraff, Karamanos, McElroy, and Harrison.

ACCORDINGLY , it is hereby RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No 80) be

GRANTED in part and DENIED in part; and it is further ORDERED that the Clerk provide Plaintiff with a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in LeBron v. Sanders , 557 F.3d 76 (2d Cir. 2009) (per curiam).

57 Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 25 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services , 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 8, 2021

Syracuse, New York 25 If you are proceeding pro se and are served with this Order and Report-

Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

58 McAllister v. Call, Not Reported in F.Supp.3d (2014)

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55. This Court accepted the Report and Recommendation and Order in its entirety and directed Plaintiff to file an amended

KeyCite Yellow Flag - Negative Treatment complaint to “include only one cause of action a procedural Distinguished by McDonald v. Zerniak, N.D.N.Y., November 4, 2016 due process claim in connection with his disciplinary hearing and one Defendant hearing officer Call .” See Dkt. No. 58 at

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4–5. Only the Westlaw citation is currently available. United States District Court, Plaintiff thereafter filed his amended complaint and requested N.D. New York. compensatory and punitive damages. See Dkt. No. 64, Amended Complaint at 4. In this amended complaint, Plaintiff

Charles McALLISTER also known alleged that Defendant violated his constitutional rights under as Charles McCallister, Plaintiff, the First, Eighth and Fourteenth Amendments. See Dkt. No. v. 64, Amended Complaint at ¶¶ 33, 34, 43. Harold CALL, Vocational Supervisor, Mohawk Correctional Facility, Defendant. On May 9, 2014, Defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

No. 9:10–CV–610 (FJS/CFH). Procedure. See Dkt. No. 74. In a Report–Recommendation | and Order dated October 9, 2014, Magistrate Judge Hummel Signed Oct. 28, 2014. recommended that this Court grant Defendant's motion in | part and deny his motion in part. See Dkt. No. 81 at Filed Oct. 29, 2014. 33. Plaintiff filed objections to Magistrate Judge Hummel's recommendations. See Dkt. No. 83. Attorneys and Law Firms Charles McAllister, Westbury, NY, pro se.

Where a party makes specific objections to portions of a magistrate judge's report and recommendation, the court

Hon. Eric T. Schneiderman, Office of the New York State conducts a de novo review of those recommendations. See Attorney General, The Capitol, Keith J. Starlin, AAG, of Trombley v. Oneill, No. 8:11–CV–0569, 2011 WL 5881781, Counsel, Albany, NY, for Defendant. *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed.R.Civ.P. 72(b) (2); 28 U.S.C. § 636(b)(1)(C)). Where a party makes no objections or makes only conclusory or general objections,

ORDER

however, the court reviews the report and recommendation for “clear error” only. See Salmini v. Astrue, 3:06–CV–

SCULLIN, Senior District Judge. 458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quotation omitted). After conducting the appropriate review,

*1 Currently before the Court are Magistrate Judge a district court may decide to accept, reject, or modify those Hummel's October 9, 2014 Report–Recommendation and recommendations. See Linares v. Mahunik, No. 9:05–CV– Order, see Dkt. No. 81, and Plaintiffs objections thereto, see 625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) Dkt. No. 83. (quoting 28 U.S.C. § 636(b)(1)(C)). Plaintiff, a former inmate who was, at all relevant times, in Although Plaintiff's objections are, in most respects, general the custody of the New York Department of Corrections and or conclusory, given his pro se status, the Court has conducted Community Supervision, commenced this action pursuant a de novo review of Magistrate Judge Hummel's Report– to 42 U.S.C. § 1983. In his original complaint, Plaintiff Recommendation and Order. Having completed its review, asserted claims against Brian Fischer, Lucien J. LeClaire, the Court hereby Patricia LeConey, Carol Woughter, and John and Jane Does. Defendants moved for summary judgment. See Dkt. No.

*2 ORDERS that Magistrate Judge Hummel's October 9, 49. By Report–Recommendation and Order dated July 6, 2014 Report–Recommendation and Order is ACCEPTED 2012, Magistrate Judge Homer recommended that this Court in its entirety for the reasons stated therein; and the Court dismiss all claims against the named individuals and direct further Plaintiff to join Harold Call as a Defendant. See Dkt. No. McAllister v. Call, Not Reported in F.Supp.3d (2014)

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were dismissed; and (2) defendant was directed to join ORDERS that Defendant's motion for summary judgment is Call, who was identified in the motion papers as a John GRANTED in part and DENIED in part; and the Court Doe defendant. Dkt. No. 55; Dkt. No. 58. The report and further recommendation was accepted in its entirety, and McAllister

was directed to file an amended complaint to “include only ORDERS that Plaintiff's First Amendment claims, his Eighth one cause of action—a procedural due process claim in Amendment claims, and his challenge to the constitutionality connection with his disciplinary hearing—and one Defendant of Directive 4913 are DISMISSED; and the Court further —hearing officer Call.” Dkt. No. 58 at 4. McAllister

thereafter filed his amended complaint wherein he requested ORDERS that, to the extent that Plaintiff has asserted claims punitive and compensatory damages. Am. Compl. at 4. against Defendant in his official capacity, those official- Presently pending is Call's motion for summary judgment on capacity claims are DISMISSED; and the Court further the amended complaint pursuant to Fed.R.Civ.P. 56. Dkt. No.

74. McAllister did not respond. For the following reasons, it is ORDERS that Defendant's motion for summary judgment is recommended that Call's motion be granted in part and denied DENIED with respect to Plaintiff's Fourteenth Amendment in part. due process claims and with respect to Defendant's qualified immunity defense; and the Court further 2

McAllister is no longer incarcerated and is currently under the supervision of DOCCS.

ORDERS that this matter is referred to Magistrate Judge Hummel for all further pretrial matters; and the Court further

I. Failure to Respond ORDERS that the Clerk of the Court shall serve a copy of The Court notified McAllister of the response deadline and this Order on the parties in accordance with the Local Rules.

extended the deadline for his opposition papers on two occasions. Dkt. No. 75; Dkt. No. 77; Dkt. No. 80. Call also

IT IS SO ORDERED.

provided notice of the consequence of failing to respond to the motion for summary judgment in his motion papers. Dkt. No. 74–1. Despite these notices and extensions, McAllister

REPORT–RECOMMENDATION AND ORDER 1 did not respond. 1 This matter was referred to the undersigned for *3 Summary judgment should not be entered by default report and recommendation pursuant to 28 U.S.C. against a pro se plaintiff who has not been given any notice § 636(b) and N.D.N.Y.L.R. 72.3(c). that failure to respond will be deemed a default.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Thus, “[t]he fact

CHRISTIAN F. HUMMEL, United States Magistrate Judge. that there has been no response to a summary judgment motion does not ... mean that the motion is to be granted

Plaintiff pro se Charles McAllister (“McAllister”), a former automatically.” Id. at 486. Even in the absence of a response, inmate who was, at all relevant times, in the custody of defendants are entitled to judgment only if the material facts the New York Department of Corrections and Community demonstrate their entitlement to judgment as a matter of law. Supervision (“DOCCS”), 2 brings this action pursuant Id.; FED. R. CIV. P. 56(c). “A verified complaint is to be to 42 U.S.C. § 1983 alleging that defendant Harold treated as an affidavit ... and therefore will be considered in Call (“Call”), Vocational Supervisor, Mohawk Correctional determining whether material issues of fact exist....” Colon v. Facility (“Mohawk”), violated his constitutional rights under Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (internal citations the First, Eighth and Fourteenth Amendments. Am. Compl. omitted); see also Patterson v. Cnty. of Oneida, N.Y., 375 (Dkt. No. 64) ¶¶ 33, 34; 4. McAllister initially commenced F.3d 206, 219 (2d Cir.2004) (same). The facts set forth in this civil rights action against defendants Brian Fischer, defendant's Rule 7.1 Statement of Material Facts (Dkt. No. Lucien J. LeClaire, Patricia LeConey, Carol Woughter, 74–2) are accepted as true as to those facts that are not and John and Jane Does. Defendants moved for summary disputed in McAllister's amended complaint. N.D.N.Y.L.R. judgment. Dkt. No. 49. By report and recommendation dated 7.1(a)(3) (“The Court shall deem admitted any properly July 6, 2012, (1) all claims against identified defendants McAllister v. Call, Not Reported in F.Supp.3d (2014)

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supported facts set forth in the Statement of Facts that the documents, prison directives 4933 and 4982, and a facility opposing party does not specifically controvert.”). rule book. Am. Compl. ¶ 8; Dkt. No. 74–3, Exh. A, at 11. He

also asked Sullivan for permission to retrieve documents from his personal property. Id. The requested witnesses were those inmates whose signatures were affixed to the five confiscated

II. Background affidavits. Dkt. No. 74–3, Exh. A, at 14. Sullivan retrieved the requested materials, and all inmate witnesses agreed to testify.

The facts are reviewed in the light most favorable to Id. at 11. McAllister as the non-moving party. See subsection III(A) infra. At all relevant times, McAllister was an inmate at

On or about July 21, 2009, a Tier III disciplinary hearing Mohawk. Am. Compl. ¶ 3. was held before Call, who served as the hearing officer. Am. Compl. ¶ 10. McAllister pleaded not guilty to both alleged

On or about July 15, 2009, nonparty Correction Officer violations. Dkt. No. 74–3, Exh. A, at 38. McAllister objected Femia, pursuant to authorization from nonparty Captain to the misbehavior report as violative of prison directive Dauphin, searched McAllister's personal property while 4932 because the copy he was given (1) provided insufficient McAllister was confined in a secure housing unit (“SHU”). 3 notice of the charges against him and (2) differed from the Dkt. No. 74–3, Exh. A, at 14; Am. Compl. ¶¶ 5–6. report that Call read into the record. Id. at 39–41. McAllister Femia confiscated approximately twenty documents from stated that his copy did not list the names of the inmates McAllister's locker, including five affidavits that were signed to whom the confiscated affidavits allegedly belonged. Id. by other inmates. Dkt. No. 74–3, Exh. A, at 14. As Call acknowledged the difference between the reports but a result of the search, Femia issued McAllister a Tier concluded that the misbehavior report informed McAllister III misbehavior report, alleging violations of prison rules of the charges against him and the bases for the charges. 113.15 4 (unauthorized exchange) and 180.17 (unauthorized Id. at 39, 41–42. McAllister also argued that his copy of assistance). 5 Id.; Am. Compl. ¶ 7. the misbehavior report referred to confiscation of twenty documents from his cell, but did not identify the papers that

3 were taken. Id. at 42. He contended that the misbehavior SHUs exist in all maximum and certain medium report's general reference to “legal work” was insufficient security facilities. The units “consist of single- to provide him with notice of the documents to which the occupancy cells grouped so as to provide report was referring because he had several volumes of legal separation from the general population ....“ work. Id. at 42, 59. In response to this objection, Call recited N .Y. COMP.CODES R. & REGS. tit 7, § the body of the misbehavior report, which described the 300.2(b) (1999). Inmates are confined in a SHU confiscated documents as “[a]rticles of paper which appear as discipline, pending resolution of misconduct to be legal work including some signed affidavits” and asked charges, for administrative or security reasons, or McAllister, “[t]hat didn't ring a bell for you? How much in other circumstances as required. Id. at pt. 301. paperwork did you have that fit that description?” Id. at 42. 4 Rule 113.15 provides that “[a]n inmate shall not Call also expressed his belief that the affidavits qualified as purchase, sell, loan, give or exchange a personally legal work. Id. at 45, 57–58. owned article without authorization.” 7 NYCRR 270.2. *4 McAllister next argued that he did not provide

unauthorized legal assistance to another inmate in violation 5 Rule 180.17 provides that “[a]n inmate may of rule 180.17 because the inmate affidavits were used as not provide legal assistance to another inmate evidence to prove that the Division of Parole had a “practice” without prior approval of the superintendent or of “fail[ing] to respond to appeals over the last four years .... designee. An inmate shall not receive any form “ Dkt. No. 74–3, Exh. A at 45–49, 56. These inmates were of compensation for providing legal assistance.” 7 aware that their affidavits were created for, and to be used

NYCRR 270.2.

solely in support of, McAllister's case and that they were receiving no legal benefit. Id. at 48–49. McAllister further

McAllister was assigned as his inmate assistant nonparty contended that he did not need permission from prison Correction Officer A. Sullivan. Am. Compl. ¶ 7; Dkt. No. 74– personnel to collect the affidavits. Id. at 64. 3, Exh. A, at 11. McAllister requested five inmate witnesses, McAllister v. Call, Not Reported in F.Supp.3d (2014)

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against him during the Tier III hearing and prejudged his guilt, McAllister also argued that rule 113.15 is ambiguous because and (f) he was denied equal protection. it does not list the specific items which, if found in an inmate's possession, would violate the rule. Dkt. No. 74–3, Exh. A, at 54. Finally, to the extent it can be determined from the

A. Legal Standard hearing transcript, McAllister objected to the SHU procedures for handling his personal property. Id. at 70.

A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by

At the conclusion of the hearing, Call informed McAllister affidavits or other suitable evidence, and the moving party is that he would be considering testimony from a confidential entitled to judgment as a matter of law. The moving party has witness. Dkt. No. 73–3, Exh. A, at 13, 38, 73. McAllister the burden to show the absence of disputed material facts by objected to consideration of confidential testimony without providing the court with portions of pleadings, depositions, being informed of the contents. Id. at 74. Finally, McAllister and affidavits which support the motion. FED. R. CIV. P. declined to call the inmates that he had requested as witnesses. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Id. at 37, 71. Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty

Call found McAllister guilty of violating prison rules 113.15 Lobby, Inc., 477 U.S. 242, 248 (1986). All ambiguities are and 180.17. Dkt. No. 74–3, Exh. A, at 8–9, 76. He imposed resolved and all reasonable inferences drawn in favor of the a penalty of three months in SHU and three months loss non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d of privileges. Id. at 8. Call relied upon the misbehavior Cir.1997). report, the confidential testimony, the packet of legal work containing the other inmates' affidavits, and McAllister's

*5 The party opposing the motion must set forth facts testimony and statements. Id. at 9. showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to

The disciplinary determination was reversed upon the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. administrative appeal on the ground that the evidence failed to v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court support a finding of guilt. Dkt. No. 74–3, Exh. B, at 79; Exh. to grant a motion for summary judgment, it must be apparent C, at 81. In May 2010, McAllister commenced this action that no rational finder of fact could find in favor of the non- pursuant to 42 U.S.C. § 1983. moving party. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223–24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

III. Discussion 6 Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude.

6 All unpublished decisions referenced herein are See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, appended to this report and recommendation. 477 (2d Cir.2006). As the Second Circuit has stated, McAllister argues that Call violated his rights under (1) [t]here are many cases in which we have said that a pro se the First Amendment, by (a) retaliating against him by litigant is entitled to “special solicitude,” ... that a pro se finding him guilty and (b) hindering his access to the litigant's submissions must be construed “liberally,” ... and courts; (2) the Eighth Amendment, by imposing a three- that such submissions must be read to raise the strongest month SHU assignment, plus ten additional days following arguments that they “suggest,” .... At the same time, our reversal of the disciplinary hearing; and (3) the Fourteenth cases have also indicated that we cannot read into pro se Amendment, because (a) he was given insufficient notice of submissions claims that are not “consistent” with the pro se the charges against him, (b) he was denied advance notice litigant's allegations, ... or arguments that the submissions of the use of a confidential witness, (c) he was forced to themselves do not “suggest,” ... that we should not “excuse spend approximately fifty-two days in SHU as a result of the frivolous or vexatious filings by pro se litigants,” ... and misbehavior report, (d) Call failed to follow certain DOCCS that pro se status “does not exempt a party from compliance directives and prison regulations, (e) Call demonstrated bias with relevant rules of procedural and substantive law.... McAllister v. Call, Not Reported in F.Supp.3d (2014)

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damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 Id. (citations and footnote omitted); see also Sealed Plaintiff (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir.2008). 880, 885 (2d Cir.1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). However, supervisory personnel may be considered personally involved

B. Eleventh Amendment if: Call argues that he is entitled to Eleventh Amendment (1) [T]he defendant participated directly in the alleged immunity relating to McAllister's claims for money damages constitutional violation; against him in his official capacity. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

(2) the defendant, after being informed of the violation not be construed to extend to any suit in law or equity, through a report or appeal, failed to remedy the wrong; commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of

(3) the defendant created a policy or custom under any Foreign State.” U.S. CONST. AMEND. XI. “[D]espite which unconstitutional practices occurred, or allowed the the limited terms of the Eleventh Amendment, a federal court continuance of such a policy or custom; [cannot] entertain a suit brought by a citizen against his [or her] own State.” Pennhurst State Sch. & Hosp. v. Halderman, (4) the defendant was grossly negligent in supervising 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. subordinates who committed the wrongful acts; or 1, 21 (1890)). Regardless of the nature of the relief sought,

(5) the defendant exhibited deliberate indifference to the in the absence of the State's consent or waiver of immunity, rights of inmates by failing to act on information indicating a suit against the State or one of its agencies or departments that unconstitutional acts were occurring. is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100. Section 1983 claims do not abrogate the Eleventh

Colon, 58 F.3d at 873 (citing Williams v. Smith, 781 F.2d 319, Amendment immunity of the states. See Quern v. Jordan, 440 323–24 (2d Cir.1986)). 7 Assertions of personal involvement

U.S. 332, 340–41 (1979).

that are merely speculative are insufficient to establish a triable issue of fact. See e.g., Brown v. Artus, 647 F.Supp.2d

A suit against a state official in his or her official capacity is a

190, 200 (N.D.N.Y.2009).

suit against the entity that employs the official. Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988) (citing Edelman v. Jordan,

7 415 U.S. 651, 663 (1974)). “Thus, while an award of damages Various courts in the Second Circuit have against an official in his personal capacity can be executed postulated how, if at all, the Iqbal decision affected only against the official's personal assets, a plaintiff seeking the five Colon factors which were traditionally to recover on a damages judgment in an official-capacity suit used to determine personal involvement. Pearce must look to the government entity itself,” rendering the latter v. Estate of Longo, 766 F.Supp.2d 367, 376 suit for money damages barred even though asserted against (N.D.N.Y.2011), rev'd in part on other grounds the individual officer. Kentucky v. Graham, 473 U.S. 159, 166 sub nom., Pearce v. Labella, 473 F. App'x 16 (1985). Here, because McAllister seeks monetary damages (2d Cir.2012) (recognizing that several district against Call for acts occurring within the scope of his duties, courts in the Second Circuit have debated Iqbal's the Eleventh Amendment bar applies. impact on the five Colon factors); Kleehammer v.

Monroe Cnty., 743 F.Supp.2d 175 (W.D.N .Y.2010) *6 Accordingly, it is recommended that Call's motion on this (holding that “[o]nly the first and part of the ground be granted. third Colon categories pass Iqbal's muster ....”);

D'Olimpio v. Crisafi, 718 F.Supp.2d 340, 347 (S.D.N.Y.2010) (disagreeing that Iqbal eliminated Colon's personal involvement standard).

C. Personal Involvement As to any constitutional claims beyond those surrounding the “[P]ersonal involvement of defendants in alleged denial of due process at the Tier III hearing, the undersigned constitutional deprivations is a prerequisite to an award of notes that evaluation of such is unnecessary as it is outside McAllister v. Call, Not Reported in F.Supp.3d (2014)

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of the scope set forth in this Court's prior order. Dkt. No. He suggests that his transfer to SHU, as a result of the Tier 58 at 4. However, to the extent that Call acknowledges III determination, triggered enforcement of his compliance these claims and provides additional and alternative avenues with directive 4913, which impeded his ability to proceed for dismissal, McAllister fails to sufficiently allege Call's with active legal matters and resulted in dismissals. Am. personal involvement in impeding his access to the courts, in Compl. ¶ 41. Thus, McAllister also argues that he was denied violation of the First Amendment. McAllister argues that, as a access to the courts. Am. Compl. ¶ 38. As a preliminary result of Call's determination that he violated rules 113.15 and matter, McAllister's First Amendment retaliation and access 180.17, his legal paperwork was confiscated, which impaired claims are beyond the scope of the prior order of this Court his ability to continue to represent himself in pending state directing McAllister to limit his amended complaint “include and federal court claims. Am. Compl. ¶¶ 38–40. However, only one cause of action—a procedural due process claim McAllister does not suggest that Call was personally involved in connection with his disciplinary hearing.” Dkt. No. 58, in either the search and confiscation of paperwork that led at 4. Regardless, McAllister fails to plausibly allege either to the filing of the misbehavior report nor the subsequent retaliation or denial of access to the courts. reduction in his paperwork pursuant to directive 4913. To the contrary, McAllister concedes that the paperwork was Courts are to “approach [First Amendment] retaliation claims reduced pursuant to the directive. by prisoners with skepticism and particular care.” See e.g.,

Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (citing McAllister also fails to sufficiently allege Call's personal Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled involvement in the SHU procedures for storing property or on other grounds by Swierkiewicz v. Sorema, NA, 534 U.S. in holding him in SHU for ten additional days following 506 (2002)). A retaliation claim under section 1983 may not the reversal of the Tier III determination. Call stated that be conclusory and must have some basis in specific facts hr had no involvment with the storage of property in that are not inherently implausible on their face. Ashcroft, SHU. Dkt. No. 74–3, at 5. Call also contended that he 556 U.S. at 678; South Cherry St., LLC v. Hennessee Group “was not responsible for plaintiff's being held in SHU for LLC, 573 F.3d 98, 110 (2d Cir.2009). To survive a motion to additional days following the August 26, 2009 reversal of the dismiss, a plaintiff must show “(1) that the speech or conduct disciplinary hearing decision of July 22, 2009.” Id. McAllister at issue was protected, (2) that the defendant took adverse does not allege Call's involvement in this delay. McAllister's action against the plaintiff, and (3) that there was a causal sole reference to the ten-day delay is his claim that he “was connection between the protected speech and the adverse not released from Special Housing until September 4, 2009, action.” Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), approximately 10 days after the reversal” Am. Compl. ¶ 43. overruled on other grounds by Swierkiewicz v. Sorema N.A., This conclusory statement is insufficient to demonstrate Call's 534 U.S. 506 (2002); Taylor v. Fischer, 841 F.Supp.2d 734, personal involvement in an extension of his time in SHU 737 (W.D.N.Y.2012). If the plaintiff meets this burden, the following the reversal of the Tier III determination. Brown, defendants must show, by a preponderance of the evidence, 647 F.Supp.2d at 200. that they would have taken the adverse action against the

plaintiff “even in the absence of the protected conduct.” *7 Accordingly, it is recommended that Call's motion be Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. granted insofar as McAllister alleges that Call: denied him 274, 287 (1977). “Types of circumstantial evidence that can access to the courts in violation of the First Amendment, show a causal connection between the protected conduct and was at all involved with the storage of his property while he the alleged retaliation include temporal proximity, prior good was in SHU, and caused him to be held an additional ten discipline, finding of not guilty at the disciplinary hearing, days in SHU following administrative reversal of the Tier III and statements by defendants as to their motives.” See Barclay determination. v. New York, 477 F.Supp.2d 546, 588 (N.D.N.Y.2007).

*8 Here, McAllister baldly states that Call's disciplinary determination was imposed in retaliation for his filing

D. First Amendment of grievances and lawsuits; however, McAllister does not identify these grievances and lawsuits nor does he claim

McAllister appears to argue that, in retaliation for his filing that any of these were lodged against Call. See generally of grievances and lawsuits, Call found him guilty of the Ciaprazi v. Goord, No. 02–CV–915, 2005 WL 3531464, misconduct in the Tier III hearing and imposed SHU time. McAllister v. Call, Not Reported in F.Supp.3d (2014)

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at *9 (N.D.N.Y. Dec. 22, 2005) (dismissing the plaintiff's of his property or in the later reduction of his property or that claim of retaliation where the plaintiff could “point to no it was maliciously imposed by Call. As noted, the initial cell complaints lodged by him against or implicating the conduct search which led to the misbehavior report was ordered by of [the] defendant ... who issued the disputed misbehavior Captain Dauphin and executed by Correction Officer Femia. report.”). McAllister also provides no time frame for the Similarly, McAllister concedes that his property was reduced apparent grievance and lawsuits. Thus, it cannot be discerned pursuant to directive 4913. Although McAllister suggests that whether or how these unnamed grievances and lawsuits his transfer to SHU as a result of the Tier III hearing triggered were a “motivating factor” in Call's Tier III determination. the application of directive 4913, he was transferred to SHU Doyle, 429 U.S. at 287 (internal quotation marks and citation on July 9, six days before the initial cell search occurred. Id. omitted). McAllister's unsupported, conclusory claim fails to ¶ 5. Thus, if McAllister were forced to comply with directive plausibly demonstrate that Call's determination was a product 4913 because of his transfer to SHU, he failed to demonstrate of retaliatory animus. that the compliance arose from the SHU term ordered by Call

rather than the unknown incident that resulted in his transfer Undoubtedly, prisoners have a constitutional right to to SHU on July 9. Further, McAllister failed to establish any meaningful access to the courts. Bounds v. Smith, 430 U.S. actual injury because he did not specify which cases were 817, 824 (1977); Lewis v. Casey, 518 U.S. 343, 350 (1996) allegedly dismissed as a result of the property reduction. See (“The right that Bounds acknowledged was the (already well- Monsky, 123 F.3d at 247. established) right of access to the courts.”). This right is implicated when prison officials “actively interfer[e] with *9 Accordingly, it is recommended that Call's motion for inmates' attempts to prepare legal documents[ ] or file summary judgment be granted on this ground. them.” Lewis, 518 U.S. at 350 (internal citations omitted). To establish a denial of access to the courts claim, a plaintiff must satisfy two prongs. First, a plaintiff must show that the

E. Eighth Amendment defendant acted deliberately and maliciously. Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). Second, the plaintiff must

In his amended complaint, McAllister references the Eighth demonstrate that he suffered an actual injury. Id.; Monsky Amendment. Am. Compl. ¶ 31. However, McAllister's only v. Moraghan, 123 F.3d 243, 247 (2d Cir.1997) (internal reference to the Eighth Amendment is his assertion that Call's citations, quotation marks, and alterations omitted) (quoting use of a confidential witness violated his Eighth Amendment Lewis, 518 U.S. at 329) (“In order to establish a violation right to be free from cruel and unusual punishment. However, of access to courts, a plaintiff must demonstrate that a in support of this argument, McAllister states only that this defendant caused actual injury, i.e., took or was responsible right was violated when Call stated, “[s]o, um there is a lot for actions that hindered a plaintiff's effort to pursue a legal of stuff going on through my paperwork and I want to bring claim”). Thus, a plaintiff must allege that the defendant was it to your attention before we move on ...” Id. ¶ 33; Dkt. No. “responsible for actions that hindered his efforts to pursue a 74–3, at 73. When read in context, it becomes clear that Call legal claim.” Davis, 320 F.3d at 351 (internal quotation marks made this statement immediately before informing McAllister omitted). of his consideration of confidential information. Dkt. No. 73– 3, at 73. Although, in referencing this portion of the hearing

Here, there is insufficient evidence to give rise to a genuine transcript McAllister alleges that he was subject to cruel and dispute of fact regarding either element of a denial of court unusual punishment, it appears that McAllister intended to access claim. As noted, McAllister merely states that, as a assert that the use of a confidential witness was a due process result of the property reduction pursuant to directive 4913, his violation. Even if McAllister had intended to argue that use “ability to continue litigation in Federal and State court caused of a confidential witness violates the prohibition of cruel adverse decisions by the court and dismissals.” Am. Compl. and unusual punishment, such a claim would necessarily fail ¶ 41. This claim is insufficient to demonstrate that Call was because the Eighth Amendment protects an inmate's right responsible for actions that hindered his legal claims. Insofar to be free from conditions of confinement that impose an as McAllister's claim could be read to suggest that Call denied excessive risk to an inmate's health or safety. Farmer v. him access to the courts by confiscating his legal documents, Brennan, 511 U.S. 825, 834 & 837 (1994). As McAllister as noted supra, McAllister fails to present any plausible facts makes no claim that he faced conditions of confinement to support a finding that Call was involved in the initial search imposing a risk to his health or safety and instead focuses McAllister v. Call, Not Reported in F.Supp.3d (2014)

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his argument on notice of a confidential witness, giving atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d McAllister due solicitude, his claim regarding the use of a Cir.2000); Blackshear v. Woodward, No. 13–CV–1165, 2014 confidential witness will be incorporated as part of the due WL 2967752 (N.D.N.Y. July 1, 2014). process analysis below.

McAllister suggests that his confinement in SHU for forty- two to fifty-two days is a sufficient deprivation that requires procedural protections. Freedom from SHU confinement may

F. Fourteenth Amendment give rise to due process protections; however, the plaintiff must allege that the deprivation imposed “an atypical and

1. Due Process significant hardship.” Sandin, 515 U.S. at 484; Gaston v. Coughlin, 249 F.3d 156, 162 (2d Cir.2001) (concluding

Well-settled law provides that inmates retain due process that SHU confinement does not give rise to due process rights in prison disciplinary hearings.” Hanrahan v. Doling, protections where inmate failed to demonstrate atypical 331 F.3d 93, 97 (2d Cir.2003) (per curiam) (citing cases). hardship while confined). Although the Second Circuit has However, inmates do not enjoy “the full panoply of rights” cautioned that “there is no bright-line rule regarding the accorded to a defendant in a criminal prosecution. Wolff v. length or type of sanction” that meets the Sandin standard McDonnell, 418 U.S. 539, 556 (1974). For a plaintiff to state a ( Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999)), it has claim that he was denied due process at a disciplinary hearing, made clear that confinement in SHU for a period of one the plaintiff “must establish (1) that he possessed a liberty year constitutes atypical and significant restraint on inmates, interest and (2) that the defendant(s) deprived him of that deserving due process protections. See e.g. Sims v. Artuz, interest as a result of insufficient process.” Ortiz v. McBride, 230 F.3d 14, 23 (2d Cir.2000) (holding confinement in 380 F.3d 649, 654 (2d Cir.2004) (per curiam) (quoting Giano SHU exceeding 305 days was atypical); Sealey v. Giltner, v. Selsky, 238 F.3d 223, 225 (2d Cir.2001)). To satisfy the first 197 F.3d 578, 589 (2d Cir.1999) (concluding confinement prong, a plaintiff must demonstrate that the deprivation of for fewer than 101 days in SHU, plus unpleasant but which he complains is an “atypical and significant hardship not atypical conditions, insufficient to raise constitutional on the inmate in relation to the ordinary incidents of prison claim). Although the Second Circuit has generally held that life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). “A liberty confinement in SHU for 101 or fewer days without additional interest may arise from the Constitution itself, ... or it may indicia of atypical conditions generally does not confer a arise from an expectation or interest created by state laws liberty interest ( Smart v. Goord, 441 F.Supp.2d 631, 641 (2d or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) Cir.2006)), it has “explicitly noted that SHU confinements of (citations omitted). fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions of Sealey or a more fully developed record showed that even relatively brief confinements under normal

a. Denial of Liberty Interest SHU conditions were, in fact, atypical.” Palmer v. Richards, *10 In assessing whether an inmate plaintiff was denied 364 F.3d 60, 65 (2d. Cir.2004) (citing, inter alia, Ortiz, 323 procedural due process, the court must first decide whether F.3d at 195, n. 1). the plaintiff has a protected liberty interest in freedom from SHU confinement. Bedoya v. Coughlin, 91 F.3d 349, 351

The undersigned notes that it is unclear what portion of (2d Cir.1996). If the plaintiff demonstrates the existence of McAllister's relatively brief time in SHU is attributable to a protected liberty interest, the court is then to determine the Tier III determination, because it appears that McAllister whether the deprivation of this interest “occurred without was already in SHU when the instant disciplinary report due process of law.” Id. at 351, citing Kentucky Dept. of was filed. Am. Comp. ¶ 5; Dkt. No. 74–3, Exh. A, at Corr. v. Thompson, 490 U.S. 454, 460–61 (1989). Due 14. The undersigned also notes that there is no indication process generally requires that a state afford an individual that McAllister endured unusual SHU conditions. The only “some kind of hearing” prior to depriving them of a liberty reference McAllister makes to his time in SHU is that, upon or property interest. DiBlasio v. Novello, 344 F.3d 292, his transfer to SHU, several bags of his paperwork were 302 (2d Cir.2003). Although not dispositive, duration of confiscated pursuant to directive 4913. Id. ¶ 37. However, disciplinary confinement is a significant factor in determining review of directive 4913 reveals that the personal and legal McAllister v. Call, Not Reported in F.Supp.3d (2014)

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property limit set forth in directive 4913 applies to the general prison population and inmates in other forms of segregated

i. Notice confinement. Dkt. No. 49–2, at 5–19. Thus, the fact that McAllister was forced to comply with directive 4913 does

McAllister first appears to argue that he was denied not indicate that he was subjected to conditions more severe procedural due process because the misbehavior report (1) than the normal SHU conditions or conditions imposed on the violated unnamed DOCCS rules, regulations, and procedures, general prison population. Dkt. No. 74–3, Exh. A, at 14. and (2) failed to provide him with adequate notice of the charges against him because it did not list the five inmates

*11 Although the record is largely absent of detail of the whose affidavits were confiscated and, thus, impacted his conditions McAllister faced in SHU, there is also nothing ability to prepare a defense to the charges. Am. Compl. in the record comparing the time McAllister was assigned ¶¶ 11–13, 16–17. Although inmates are entitled to advance and spent in disciplinary confinement with the deprivations written notice of the charges, “[t]his is not to suggest that endured by other prisoners “in the ordinary course of prison the Constitution demands notice that painstakingly details all administration,” which includes inmates in administrative facts relevant to the date, place, and manner of charged inmate segregation and the general prison population. Welch v. misconduct ....“ Sira, 380 F.3d at 72 (2d Cir.2004) (citing Bartlett, 196 F.3d 389, 394 (2d Cir.1999) (holding that, Wolff, 418 U.S. at 564). “[T]here must be sufficient factual after Sandin, “the relevant comparison concerning duration is specificity to permit a reasonable person to understand what between the period of deprivation endured by the plaintiff and conduct is at issue so that he may identify relevant evidence periods of comparable deprivation typically endured by other and present a defense.” Id. prisoners in the ordinary course of prison administration, including general population prisoners and those in various

First, to the extent that McAllister's argues that the differing forms of administrative and protective custody”). Because disciplinary reports violated unspecified DOCCS rules, “[t]he record does not reveal whether it is typical for inmates regulations, and procedures (Am.Compl.¶¶ 12–13), this claim not being disciplined to spend similar periods of time in must fail. A section 1983 claim is not the “appropriate forum” similar circumstances,” Call's motion for summary judgment in which to seek review of a violation of a prison regulation. should be denied. Id. at 394 (citing Brooks v. DiFasi, 112 F.3d Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 (S.D.N.Y.2002) 46, 49 (2d Cir.1997)). (“a § 1983 claim brought in federal court is not the appropriate forum to urge violations of prison regulation or

Accordingly, it is recommended that defendant's motion for state law ... the allegations asserted must constitute violations summary judgment on this ground be denied. of constitutional due process standards.”). Next, McAllister fails to plausibly allege the existence of a question of fact whether the difference between the misbehavior reports deprived him of the ability to identify relevant evidence

b. Procedural Due Process so that he could prepare a defense. Although McAllister's Assuming a liberty interest exists, it must be determined copy of the report was missing the names of the inmates whether McAllister was denied due process at his Tier III whose affidavits were confiscated, it informed McAllister hearing. Where disciplinary hearings could result in SHU of the date, time, and location of the alleged violations; confinement or loss of good time credit, “[i]nmates are the rules alleged to have been violated; and a description entitled to advance written notice of the charges; a fair and of the documents that were confiscated. Johnson v. Goord, impartial hearing officer; a reasonable opportunity to call 305 Fed. Appx. 815, 817 (2d Cir.2009) (concluding where witnesses and present documentary evidence; and a written the inmate's copy of misbehavior report included details of statement of the disposition, including supporting facts and alleged violation and charges against him, a sentence missing reasons for the action taken.” Luna v. Pico, 356 F.3d 481, 487 from the inmate's copy of report did not violate the inmate's (2d Cir.2004) (citing Kalwasinski v. Morse, 201 F.3d 103, 108 due process rights). It is clear that the discrepancy between (2d Cir.1999)); see also Wolff, 418 U.S. at 556; Sira v. Morton, the misbehavior reports did not affect McAllister's ability to 380 F.3d 57, 59 (2d Cir.2004). prepare and present a defense. Prior to the hearing, McAllister

requested as witnesses the five inmates whose affidavits were found during the property search. Indeed, the record demonstrates that McAllister was able to both identify the

McAllister v. Call, Not Reported in F.Supp.3d (2014)

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documents referenced in the misbehavior report and address 626 (FJS/ATB), 2011 WL 7629513, at *11 (N.D.N.Y. Mar. 1, them at the hearing. Dkt. No. 74–3, Exh. A at 45, 47–48. 2011) (citing Francis, 891 F.2d at 46). *12 Thus, because he received sufficient notice of the McAllister first argues that Call prejudged his guilt. He charges against him and was able to prepare and present a supports this contention by pointing to moments during defense on his behalf, McAllister fails to raise a question the Tier III hearing where Call expressed his belief that of fact as to whether he was denied sufficient notice of the McAllister's possession of affidavits signed by other inmates charges against him. was sufficient to support a violation of prison rules 113.15 and

180.17. Am. Compl., ¶¶ 13, 15, 23–25, 36. Here, however the challenged affidavits were not evidence that Call prejudged because he had the opportunity to review the affidavits and did

ii. Hearing Officer Bias/Pre-determination of Guilt so at the hearing. Although McAllister disagreed with Call's opinion that possession of such documents would be a per se

McAllister also contends that his procedural due process violation of the rules, Call's assertion of belief in this matter rights were violated because Call was biased against him and was an opinion he reached following his personal review of prejudged his guilt. The Fourteenth Amendment guarantees this evidence. See Johnson v. Doling, No. 05–CV–376, 2007 inmates the right to the appointment of an unbiased hearing WL 3046701, at * 10 (N.D.N.Y. Oct. 17, 2007) (holding that officer to address a disciplinary charge. Allen v. Cuomo, 100 where the “[p]laintiff was provided the opportunity to testify, F.3d 253, 259 (2d Cir.1996). An impartial hearing officer [and] call and question witnesses .... [d]isagreement with “does not prejudge the evidence” and is not to say “how rulings made by a hearing officer does not constitute bias”). he would assess evidence he has not yet seen.” Patterson v. Thus, it does not appear that Call prejudged this evidence. Coughlin, 905 F.2d 564, 570 (2d Cir.1990); see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989) (“it would be

*13 To support his claim that Call exhibited bias and improper for prison officials to decide the disposition of a partiality against him in the Tier III hearing, McAllister points case before it was heard”). However, “[i]t is well recognized out that, after he objected to the misbehavior report for failing that prison disciplinary hearing officers are not held to the to provide him sufficient notice of the documents confiscated, same standard of neutrality as adjudicators in other contexts.” Call read the portion of the misbehavior report describing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1996). “A hearing the documents as “[a]rticles of paper which appear to be officer may satisfy the standard of impartiality if there is legal work including some signed affidavits,” and stated “that ‘some evidence in the record’ to support the findings of the didn't ring a bell for you?” Id. ¶¶ 19, 32). When read in hearing.” Nelson v. Plumley, No. 9:12–CV–422, 2014 WL context, this statement does not establish bias on Call's part, 4659327, at *11 (N.D .N.Y. Sept. 17, 2014) (quoting Allred rather it appears to be a genuine question. Though it may be v. Knowles, No. 06–CV–0456, 2010 WL 3911414, at * 5 said that Call could have couched this question in a kinder (W.D.N.Y. Oct. 5, 2010) (quoting Waldpole v. Hill, 472 U.S. manner, this statement does not demonstrate bias. Moreover, 445, 455 (1985)). However, “the mere existence of ‘some that the Tier III determination was reversed on appeal, without evidence’ in the record to support a disciplinary determination more, is not evidence of bias or other due process violation. does not resolve a prisoner's claim that he was denied due Eng v. Therrien, No. 04–CV–1146, 2008 WL 141794, at *2 process by the presence of a biased hearing officer.” See Smith (N.D.N.Y. Jan. 11, 2008). v. United States, No. 09–CV–729, 2012 WL 4491538 at *8 (N.D.N.Y. July 5, 2012).

Thus, McAllister fails to plausibly allege the existence of question of fact whether Call prejudged his guilt or was

Prison officials serving as hearing officers “enjoy a rebuttable otherwise biased in the Tier III hearing. presumption that they are unbiased.” Allen, 100 F.3d at 259. “Claims of a hearing officer bias are common in [inmate section] 1983 claims, and where they are based on purely conclusory allegations, they are routinely dismissed.”

iii. Failure to Investigate Washington v. Afify, 968 F.Supp.2d 532, 541 (W.D.N.Y.2003) (citing cases). “An inmate's own subjective belief that the McAllister next suggests that he was denied procedural due hearing officer was biased is insufficient to create a genuine process because Call declined to interview the law library issue of material fact.” Johnson v. Fernandez, No. 09–CV– officer. Am. Compl. ¶ 29. Call permitted McAllister to present McAllister v. Call, Not Reported in F.Supp.3d (2014)

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testimony on his behalf and afforded him the opportunity this circuit provides that where a prison official decides call witnesses. Had McAllister wished to hear testimony to keep certain witness testimony confidential, he or she from the law library officer, he could have requested the “must offer a reasonable justification for their actions, if not law library officer as a witness. Wolff, 418 U.S. at 566 contemporaneously, then when challenged in a court action.” (inmates have a right to call witnesses in their defense at Sira, 380 F.3d at 75 (citing Ponte v. Real, 471 U.S. 491, 498 disciplinary hearings). That Call found it unnecessary to (1985)). Although “[c]ourts will not readily second guess the independently interview the law library officer—especially judgment of prison officials with respect to such matters ... where McAllister did not demonstrate that his testimony the discretion to withhold evidence is not unreviewable....” Id. would be relevant—does not result in a denial of due process (citations omitted). Here, Call failed to provide his rationale because “[t]here is no requirement ... that a hearing officer for refraining to share the substance of this testimony, stating assigned to preside over a disciplinary hearing conduct an merely that McAllister could not be told the substance of the independent investigation; that is simply not the role of a testimony because “it is by definition it is ... confidential.” hearing officer.” Robinson v. Brown, No. 9:11–CV–0758, Dkt. No. 74–3, at 74. As Call presented no reason to justify 2012 WL 6799725, *5 (N.D.N.Y. Nov. 1, 2012). withholding the identity or substance of the confidential

witness's testimony, McAllister presents a viable due process Accordingly, McAllister fails plausibly raise a due process claim based on the nondisclosure of this evidence. Sira, 380 violation based on Call's alleged failure to investigate. F.3d at 76.

Accordingly, Call's motion for summary judgment should be denied on this ground.

iv. Confidential Witness To the extent it can be discerned, McAllister contends that he was denied due process because Call relied on confidential

v. Some Evidence witness testimony, yet failed to provide him with advance notice of the confidential witness and refused to inform him of “Once a court has decided that the procedural due process his or her identity or the nature of the testimony. Am. Compl. requirements have been met, its function is to determine ¶¶ 30–34. The Second Circuit has held that a hearing officer whether there is some evidence which supports the decision must perform an independent assessment of a confidential of the [hearing officer].” Freeman v. Rideout, 808 F.2d informant's credibility for such testimony to be considered 949, 954 (2d Cir.1986) (citations omitted). In considering reliable evidence of an inmate's guilt. Sira, 380 F.3d at 78 whether a disciplinary determination is supported by some (noting that, “when sound discretion forecloses confrontation evidence of guilt, “the relevant question is whether there is and cross-examination, the need for the hearing officer to any evidence in the record [before the disciplinary board] conduct an independent assessment of informant credibility that could support the conclusion reached by the disciplinary to ensure fairness to the accused inmate is heightened.”). board.” Superintendent v. Hill, 472 U.S. 445, 455–56 (1985)

(citations omitted); Sira, 380 F.3d at 69. The Second Circuit *14 Here, the record provides no indication that Call has interpreted the “some evidence” standard to require independently assessed the credibility and reliability of the “reliable evidence” of guilt. Luna, 356 F.3d at 488. confidential witness. The confidential witness form merely states that Call “was provided confidential information In making his determination, Call relied upon McAllister's relating to the misbehavior report .” Dkt. No. 74–3, at 13. testimony and statements, testimony of a confidential witness, Similarly, Call does not provide whether or how he performed the misbehavior report, and the legal documents confiscated an assessment of the witness's credibility. Id. at 4. Therefore, during the property search. Dkt. No. 74–3, at 4. As noted, there exist questions of fact whether Call deprived McAllister based on the record provided, Call did not perform an of due process by relying on this testimony without an independent assessment of the witness's credibility. Thus, independent assessment of the witness's credibility. Call's reliance on confidential testimony would be insufficient

to support a finding of guilt. Taylor v. Rodriguez, 238 To the extent that McAllister argues that he was denied F.3d 188, 194 (2d Cir.2001) (determining that reliance on due process by Call's decision to refuse to disclose the confidential informant's testimony insufficient to provide content of the confidential witness's testimony, the law in “some evidence” of guilt where there was no independent McAllister v. Call, Not Reported in F.Supp.3d (2014)

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examination of indicia relevant to informant's credibility). McAllister repeatedly testified that he did not provide legal The remaining evidence relied upon—McAllister's testimony, assistance to the inmates in question because the affidavits the misbehavior report, and the affidavits—does not were written solely to serve as supporting evidence in his constitute some evidence of guilt, as required by the Due personal action, the inmates were aware that they would Process clause. receive no legal benefit as a result, and he did not receive

any compensation from the inmates. Regardless whether Call *15 The affidavits alone do not constitute some evidence of considered McAllister's testimony to be credible, without guilt because mere possession of affidavits signed by other some other reliable evidence, such as, perhaps, a statement inmates would not violate prison rules 113.15 and 180.17 from one of the other inmates claiming that he signed the were it true that these documents were McAllister's property affidavit under the belief that McAllister would provide and drafted solely for his benefit. Similarly, although a written him with legal assistance, McAllister's testimony denying misbehavior report may serve as some evidence of guilt, violations of the charged prison rules would not constitute such is the case where the misbehavior report charges the some evidence of guilt. plaintiff for behavior that the author of the misbehavior report personally witnessed. Creech v. Schoellkoph, 688 F.Supp.2d *16 Accordingly, it is recommended that Call's motion for 205, 214 (W.D.N.Y.2010) (citations omitted) (misbehavior summary judgment be denied as to McAllister's procedural report drafted by officer who personally observed plaintiff due process claim. possess and transfer pieces of sharpened metal to another inmate constituted some evidence of guilt). In this case, where a determination of guilt would appear to turn on knowledge

c. Directive 4913 of the ownership of the documents and an understanding of the circumstances under which the papers were drafted, a

McAllister further argues that, as a result of the SHU misbehavior report which merely states that papers appearing placement, he suffered an unconstitutional deprivation of to be legal work signed by other inmates were found in his legal and personal property because he was required to McAllister's property, it does not establish a per se violation comply with the limits set forth in directive 4913. This Court of rules 113.15 and 180.17. See Hayes v. Coughlin, No. has already ruled upon this claim when it was raised at earlier 87 CIV. 7401, 1996 WL 453071, at *3 (S.D.N.Y. Aug. 12, stages. In deciding Call's motion for summary judgment 1996) (“if a misbehavior report can serve as ‘some evidence’ on the McAllister's first complaint, this Court held that the for a hearing decision and thereby insulate a hearing from directive did not violate his Fourteenth Amendment rights: review, there would be little point in having a hearing”); see also Williams v. Dubray, No. 09–CV–1298, 2011 WL 3236681, at *4 (N.D.N.Y. July 13, 2011) (holding that

Directive # 4913 was reasonably there were questions of fact whether the determination was related to valid institutional goals based upon some evidence of guilt where the hearing officer given DOCCS' responsibility to relied on misbehavior report that was based on a corrections provide for the health and safety of its officer's unsupported accounts, without additional evidence staff and inmates and the alternatives to support its charges). Thus, absent additional evidence that provided to inmates in being able to these papers belonged to other inmates or that McAllister seek exceptions and choose which four drafted the documents for other inmates' use, the fact that the or five draft bags of material would misbehavior report identified these documents as being found remain with them. Moreover, the rules in McAllister's secured property does not constitute reliable were neutral and reasonably related evidence of guilt. to the ultimate goals of the facility, security and safety.

Finally, McAllister's testimony does not constitute reliable evidence of guilt. In response to the charge of violating rule 113.15, McAllister testified that the affidavits were

McAllister v. Fischer, 2012 WL 7681635, at *12 (N.D.N.Y. his property because he drafted them solely as evidence in July 6, 2012) (Dkt. No. 55, at 22–23), Report and his personal litigation against the Department of Probation. Recommendation adopted by 2013 WL 954961 (N.D.N.Y. Similarly, in defense of the charge for violating rule 180.17, Mar. 12, 2013) (Dkt. No. 58), appeal dismissed 2d Cir. 13– McAllister v. Call, Not Reported in F.Supp.3d (2014)

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111 (Jan. 13.2014). Further, the Court concluded that directive paperwork I realized something that I wanted to point out 4913 “did not violate[ ] McAllister's Fourteen Amendment to Mr. McAllister.” rights” and was “reasonably related to valid institutional

Defendant Call discriminated against plaintiff when he goals.” Dkt. No. 55, at 23–24; Dkt. No. 58. Thus, any stated: “I reviewed it this morning the 22nd when it was such claim is barred by the law of the case. Arizona v. received again is confidential” California, 460 U.S. 605, 618 (1983) (citations omitted); see also United States v. Thorn, 446 F.3d 378, 383 (2d

Am. Compl. ¶¶ 31–32. McAllister does not explain how Cir.2006) (internal quotation marks and citations omitted) these statements denied him equal protection. McAllister (“The law of the case doctrine counsels against revisiting our fails to plausibly suggest that he was treated differently prior rulings in subsequent stages of the same case absent from any similarly-situated individuals. Further, even if these cogent and compelling reasons ....”)); Arizona, 460 U.S. statements demonstrate the existence of questions of fact at 618 (citations omitted); Wright v. Cayan, 817 F.2d 999, regarding whether McAllister was treated differently from 1002 n. 3 (2d Cir.1987) (citations omitted) (“Even when similarly-situated persons, he fails to identify disparity in cases are reassigned to a different judge, the law of the case the conditions “as a result of any purposeful discrimination dictates a general practice of refusing to reopen what has been directed at an identifiable suspect class.” See Dolberry decided.”). v. Jakob, No. 11–CV–1018, 2014 WL 1292225, at *12 (N.D.N.Y. Mar. 28, 2014).

Accordingly, it is recommended that defendant's motion for summary judgment be granted on this ground.

Accordingly, it is recommended that defendant's motion on this ground should be granted.

2. Equal Protection G. Qualified Immunity McAllister's only reference to an equal protection violation in the amended complaint is his conclusory claim that Call's

Call contends that, even if McAllister's claims are reference to a confidential witness during the Tier III hearing substantiated, he is entitled to qualified immunity. The was in violation of his right to equal protection. Am. Compl. ¶ doctrine of qualified immunity is an affirmative defense 31. Further, in this Court's previous order, McAllister's equal which “shield[s] an officer from personal liability when an protection claim was dismissed for failure to demonstrate, officer reasonably believes that his or her conduct complies among other things, that he was part of a protected class or with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009). that he was treated differently from any similarly-situated Even if a disciplinary disposition is not supported by “some inmates. Dkt. No. 58, at 4; Dkt. No. 55, at 24–25. Thus, any evidence,” prison officials are entitled to qualified immunity such claim would also be barred by the law of the case. Thorn, if “their conduct does not violate clearly established statutory 446 F.3d at 383. Regardless, McAllister's equal protection or constitutional rights of which a reasonable person would claim must also fail for the reasons discussed infra. have known.” Luna, 356 F.3d at 490 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)) (internal quotation marks omitted).

*17 To establish an equal protection violation, a plaintiff This assessment is made “in light of the legal rules that were must show that “he was treated differently than others clearly established at the time it was taken.” Wilson, 526 similarly situated as the result of intentional or purposeful U.S. at 614; Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 Cir.1991). To determine whether a state official is entitled to (2d Cir.2005). McAllister has not identified, nor does the qualified immunity for acts taken during the course of his record disclose, any basis for a reasonable fact-finder to or her employment, a reviewing court is to determine: “(1) conclude that he was treated differently from similarly- whether plaintiff has shown facts making out violation of a situated individuals. Rather, plaintiffs only support for his constitutional right; (2) if so, whether that right was clearly equal protection claim is the following: established; and (3) even if the right was clearly established, whether it was objectively reasonable for the [official] to

Call, throughout the entire disciplinary hearing deprive believe the conduct at issue was lawful.” Phillips v. Wright, [sic] plaintiff equal protection when he stated: “This is 553 Fed. Appx. 16, 17 (2d Cir.2014) (citing Gonzalez v. City hearing officer Call, this is 2:21 as I was going through my of Schenectady, 728 F.3d 149, 154 (2d Cir.2013)). McAllister v. Call, Not Reported in F.Supp.3d (2014)

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and statements, without more, sufficiently supported a determination that McAllister violated rules 113.15 and

*18 First, as discussed, McAllister presented a viable due 180.17. process claim that the determination was not based on some evidence of guilt because Call (1) relied on confidential

Accordingly, defendant's motion for summary judgment witness testimony without making an independent assessment should be denied on this ground. of the witness's credibility and (2) did not otherwise have sufficient reliable evidence to support his finding of guilt. McAllister has also raised issues of fact whether the remaining evidence relied upon—the misbehavior report, IV. Conclusion McAllister's testimony and statements, and the confiscated

For the reasons stated above, it is hereby RECOMMENDED legal papers—provided reliable evidence of guilt. that defendant's motion for summary judgment (Dkt. No. 74) be

Addressing the second prong of the analysis, there is a clearly- established right to procedural due process protections, including the right to have a disciplinary determination be

*19 1. GRANTED insofar as: based on some evidence of guilt. There is also a clearly- established right to an independent assessment of confidential

a. dismissing plaintiff's First Amendment claims; witnesses performed where a hearing officer relies on the witness's testimony ( Vasquez v. Coughlin, 726 F.Supp. 466, b. dismissing plaintiff's Eighth Amendment claims; 472 (S.D.N.Y.1989) (right clearly established by 1986); see

c. dismissing plaintiff's challenge to the constitutionality of also Sira, 380 F.3d at 80). Further, although there is no Directive 4913; bright-line for what suffices as “some evidence” in every prison disciplinary proceeding ( Woodard v. Shanley, 505 Fed.

d. defendant's Eleventh Amendment immunity defense; Appdx. 55, 57 (2d Cir.2012)), there were questions of fact surrounding the allegedly reliable evidence demonstrating

2. DENIED as to: that McAllister was in possession of other inmates' legal a. plaintiff's Fourteenth Amendment procedural due documents or that he provided them with unauthorized process claims; legal assistance. Cf. Turner v. Silver, 104 F.3d 354, at *3 (2d Cir.1996) (some evidence to support determination

b. defendant's qualified immunity defense. that the defendant violated rule against unauthorized legal Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge assistance where documentary evidence indicated the plaintiff written objections to the foregoing report. Such objections received payment from other inmates, author of misbehavior shall be filed with the Clerk of the Court “within fourteen report testified regarding an interview with informant who (14) days after being served with a copy of the ... implicated defendant, prison official testified that inmate told recommendation.” N.Y.N.D.L.R. 72 .1(c) (citing 28 U.S.C. § her he had been charged for law library services and inmate 636(b)(1)(B)-(C)). testified the same). Call both failed to perform an independent assessment of the confidential witness's credibility and

FAILURE TO OBJECT TO THIS REPORT WITHIN

provided no explanation for why both the identity of the

FOURTEEN DAYS WILL PRECLUDE APPELLATE

witness and the substance of his or her testimony could not REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); be disclosed to McAllister. Sira, 380 F.3d at 75 (citing Ponte, Small v. Sec'v of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. 471 U.S. at 498). § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). Thus, given the state of the law regarding the rights to which an inmate is entitled in his disciplinary hearing, it

Dated: October 9, 2014. was not objectively reasonable for Call to have believed that (1) he need not perform an independent assessment All Citations of the witness credibility or (2) the misbehavior report,

Not Reported in F.Supp.3d, 2014 WL 5475293 confiscated affidavits, and McAllister's consistent testimony McAllister v. Call, Not Reported in F.Supp.3d (2014)

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End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Douglas v. Perrara, Not Reported in F.Supp.2d (2013)

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Report–Recommendation for the reasons stated therein. (Dkt. No. 80.)

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Only the Westlaw citation is currently available. ACCORDINGLY, it is United States District Court, N.D. New York. ORDERED that Magistrate Judge Treece's Report– Recommendation (Dkt. No. 80) is ACCEPTED and

David DOUGLAS, Sr., Plaintiff, ADOPTED in its entirety; and it is further v. PERRARA, Corrr. Officer, Great Meadow ORDERED that Defendants' motion for partial summary C.F.; Lawrence, Corr. Officer, Great judgment (Dkt. No. 70) is GRANTED; and it is further Meadow C.F.; Whittier, Corr. Officer, Great Meadow C.F.; Mulligan, Corr. Officer, ORDERED that the following claims are DISMISSED from Great Meadow C.F.; Deluca, Corr. Sergeant, this action: (a) all claims asserted against Defendant Russell, Great Meadow C.F.; and Russel, Deputy and (b) all claims asserted against Defendants in their official Superintendent, Great Meadow C.F, Defendants. capacities only. The Clerk is directed to terminate Defendant Russell from this action; and it is further

No. 9:11–CV–1353 (GTS/RFT). | ORDERED that the following claims REMAIN PENDING Sept. 27, 2013. in this action: (a) Plaintiff's claim that Defendants Whittier, Mulligan, Perrara and/or Lawrence subjected him to

Attorneys and Law Firms inadequate prison conditions by depriving him of meals for approximately five consecutive days in December 2009, in

David Douglas, Sr., Liverpool, NY, pro se. violation of the Eighth Amendment; (b) Plaintiff's claim Hon. Eric T. Schneiderman, Attorney General for the State that Defendants Whittier, Mulligan, Perrara and Lawrence of New York, Colleen D. Galligan, Esq., Assistant Attorney used excessive force against him, and that Defendant Deluca General, of Counsel, Albany, NY, for Defendants. failed to protect him from the use of that excessive force, in violation of the Eighth Amendment and New York State common law; and (c) Plaintiff's claim that Defendant Deluca

DECISION and ORDER was deliberately indifferent to Plaintiff's serious medical needs (following the assaults) in violation of the Eighth GLENN T. SUDDABY, District Judge. Amendment; and it is further *1 Currently before the Court, in this pro se civil rights ORDERED that Pro Bono Counsel be appointed for the action filed by David Douglas, Sr., (“Plaintiff”) against the Plaintiff for purposes of trial only; any appeal shall remain six above-captioned New York State correctional employees, the responsibility of the plaintiff alone unless a motion for are the following: (1) Defendants' motion for partial summary appointment of counsel for an appeal is granted; and it is judgment (requesting the dismissal of Plaintiff's claims further against Defendant Russell, and his claims against the remaining Defendants in their official capacities); and (2)

ORDERED that upon assignment of Pro Bono Counsel, a United States Magistrate Judge Randolph F. Treece's Report– final pretrial conference with counsel will be scheduled in Recommendation recommending that Defendants' motion be this action before the undersigned, at which time the Court granted. (Dkt.Nos.70, 80.) Neither party filed an objection will schedule a jury trial for Plaintiff's remaining claims as set to the Report–Recommendation, and the deadline by which forth above against Defendants Whittier, Mulligan, Perrara, to do so has expired. ( See generally Docket Sheet.) After Lawrence and DeLuca. Counsel are directed to appear at the carefully reviewing the relevant filings in this action, the final pretrial conference with settlement authority from the Court can find no clear error in the Report–Recommendation: parties. Magistrate Judge Treece employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Douglas v. Perrara, Not Reported in F.Supp.2d (2013)

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Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When a party has

REPORT–RECOMMENDATION and ORDER moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure

RANDOLPH F. TREECE, United States Magistrate Judge. 56(e) ] and has, in accordance with local court rules, served *2 Pro se Plaintiff David Douglas brought a civil rights a concise statement of the material facts as to which it Complaint, pursuant to 42 U.S.C. § 1983, asserting that contends there exist no genuine issues to be tried, those facts Defendants violated his constitutional rights while he was in will be deemed admitted unless properly controverted by the the custody of the New York State Department of Corrections nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, and Community Supervision (“DOCCS”) and housed in the

154 (2d Cir.1992). Great Meadow Correctional Facility. Specifically, Plaintiff alleges that in early December 2009, he wrote a letter to To defeat a motion for summary judgment, the non-movant Defendant Eileen Russell 1 complaining that he had been must set out specific facts showing that there is a genuine

issue for trial, and cannot rest merely on allegations or denied meals for several days. See Dkt. No. 1, Compl. at denials of the facts submitted by the movant. FED. R. CIV. ¶¶ 8, 64, & 66. Plaintiff further alleges that the remaining P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Defendants violated his constitutional rights when they Cir.2003) ( “Conclusory allegations or denials are ordinarily used excessive force against him on several occasions and not sufficient to defeat a motion for summary judgment denied him medical care in order to treat the injuries he when the moving party has set out a documentary case.”); sustained therewith. See generally id. And, according to Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525–26 Plaintiff, Defendant Russell's failure to take disciplinary (2d Cir.1994). To that end, sworn statements are “more than action against these individuals and curtail their “known mere conclusory allegations subject to disregard ... they are pattern of physical abuse of inmates” renders her liable for specific and detailed allegations of fact, made under penalty violating his constitutional rights. Id. at ¶ 66. of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such

1 Although Plaintiff spells this Defendant's name as statements is better left to a trier of fact. Scott v. Coughlin, “Russel,” it is clear from Defendants' submissions 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 that the correct spelling of this individual's name (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d is “Russell” and the Court will refer to her Cir.1995)). accordingly. Compl. at ¶ 8; Dkt. Nos. 10 & 70–3. Presently pending is Defendants' Motion for Partial Summary *3 When considering a motion for summary judgment, the Judgment whereby they seek dismissal of Defendant Russell

court must resolve all ambiguities and draw all reasonable from this action as well as dismissal of all claims against the inferences in favor of the non-movant. Nora Beverages, remaining Defendants in their official capacities. Dkt. No. 70. Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d A response to that Motion was due on February 22, 2013. To Cir.1998). “[T]he trial court's task at the summary judgment date, the Court has not received a response from Plaintiff.

motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.”

I. DISCUSSION

Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is

A. Standard of Review proceeding pro se, the court must “read [his or her] supporting papers liberally, and ... interpret them to raise the strongest

Pursuant to FED. R. CIV. P. 56(a), summary judgment is arguments that they suggest.” Burgos v. Hopkins, 14 F.3d appropriate only where “there is no genuine dispute as to any 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, material fact and the movant is entitled to judgment as a matter 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, of law.” The moving party bears the burden to demonstrate unsupported by the record, are insufficient to defeat a motion through “pleadings, depositions, answers to interrogatories, for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, and admissions on file, together with [ ] affidavits, if any,” 21 (2d Cir.1991). Summary judgment is appropriate “[w]here that there is no genuine issue of material fact. F.D.I. C. v. Douglas v. Perrara, Not Reported in F.Supp.2d (2013)

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the record taken as a whole could not lead a rational trier of his Eighth Amendment rights were being violated. fact to find for the non-moving party.” Matsushita Elec. Indus. Compl. at ¶¶ 5–8. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

*4 With regard to the pending, unopposed Motion, the Court notes that there is a paucity of factual allegations

Pursuant to the Local Rules of Practice for the Northern contained in the Complaint concerning Defendant Russell. District of New York, “[w]here a properly filed motion is In fact, the only factual allegation that this Court can point unopposed and the Court determines that the moving party to is that Plaintiff wrote two letters to Defendant Russell has met its burden to demonstrate entitlement to the relief complaining about being denied meals. Defendant Russell requested therein, the non-moving party's failure to file to is not named nor referenced throughout the remainder of serve any papers ... shall be deemed as consent to the granting the Complaint. Nevertheless, in the section of the Complaint or denial of the motion, as the case may be, unless good cause where Plaintiff lists his causes of action, he seemingly seeks is shown.” N.D.N.Y.L.R. 7.1(b)(3). “The fact that there has to hold Defendant Russell liable for her alleged failure to been no response to a summary judgment motion does not, of intervene and take disciplinary action against the Defendants course, mean that the motion is to be granted automatically.” in order to curb their known pattern of physical abuse against Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Even inmates. Id. at ¶¶ 64 & 66. in the absence of a response, Defendants are entitled to summary judgment only if the material facts demonstrate

According to Defendants' uncontroverted submissions, their entitlement to judgment as a matter of law. Id.; FED. R. Defendant Eileen Russell is employed by DOCCS and CIV. P. 56(c). Because Plaintiff has failed to raise any question worked at Great Meadow in 2006 as the Assistant of material fact, the Court will accept the facts as set forth in Deputy Superintendent for Special Housing assigned to the Defendants' Statement Pursuant to Rule 7.1(a)(3) (Dkt. No. Behavioral Health Unit. Dkt. No. 70–3, Eileen Russell Decl., 70–2), supplemented by Plaintiffs' verified Complaint (Dkt. dated Feb. 4, 2013, at ¶¶ 1, 3, & 4. During her tenure in that No. 1), as true. See Lopez v. Reynolds, 998 F.Supp. 252, 256 position, Plaintiff neither worked nor was housed as a patient

(W.D.N.Y.1997).

in the Behavioral Health Unit. Russell Decl. at ¶ 11. Russell did not have any responsibilities related to delivery of meals to inmates nor does she have any recollection of speaking with Plaintiff or seeing any correspondence from him. Id. at ¶ 13.

B. Personal Involvement Furthermore, at no time was she made aware of any assault As noted above, Plaintiff brings this civil rights action against Plaintiff by any DOCCS employee. Id. at ¶ 15. for alleged violations of his constitutional rights during his incarceration in December 2009 at Great Meadow

The Second Circuit has held that “personal involvement Correctional Facility. Plaintiff claims that in early December of defendants in alleged constitutional deprivations is a 2009, he was subjected to threats and harassment by other prerequisite to an award of damages under § 1983.” inmates and correctional officers. Compl. at ¶ 1. Plaintiff Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations alleges that beginning on December 11, 2009, he was denied omitted). Moreover, “the doctrine of respondeat superior several meals for several consecutive days by unnamed cannot be applied to section 1983 actions to satisfy the individuals, prompting him to file grievances and write two prerequisite of personal involvement.” Kinch v. Artuz, 1997 letters to Defendant Russell. Id. at ¶¶ 2–8. 2 Thereafter, on WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir.1995) & Wright v. December 16, 2009, Plaintiff's meals were delivered to him Smith, 21 F.3d at 501) (further citations omitted)). Thus, “a and, on the following date, he was moved to protective plaintiff must plead that each Government-official defendant, custody. Id. at ¶¶ 9–10. The remainder of Plaintiff's Complaint describes a series of events wherein the remaining Defendants through the official's own individual actions, has violated the constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). are accused of using excessive physical force against him and denying him medical attention.

It appears that Plaintiff seeks to hold Defendant Russell liable 2 due to her employment as a supervisor at Great Meadow. The Plaintiff alleges that in addition to filing several Second Circuit has stated that a supervisory defendant may grievances he submitted sick call requests and sent have been personally involved in a constitutional deprivation letters to the Inspector General, all explaining how within the meaning of § 1983 if she: (1) directly participated Douglas v. Perrara, Not Reported in F.Supp.2d (2013)

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in the alleged infraction; (2) after learning of the violation, he has not created any material issue of fact regarding failed to remedy the wrong; (3) created a policy or custom Russell's non-involvement in any constitutional wrongdoing. under which unconstitutional practices occurred or allowed Thus, based upon the record before the Court, we find such policy or custom to continue; (4) was grossly negligent that Defendant Russell was not personally involved in any in managing subordinates who caused the unlawful condition wrongdoing and should be dismissed from this action. See or event; or (5) the defendant exhibited deliberate indifference Wright v. Smith, 21 F.3d at 501 (defendant may not be held to the rights of inmates by failing to act on information liable simply because he holds a high position of authority). indicating that unconstitutional acts were occurring. 3 Colon v. Coughlin, 58 F.3d at 873 (citations omitted); Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir.1986) (citations

C. Eleventh Amendment omitted). By their Motion, Defendants seek dismissal of claims brought against them in their official capacities. Dkt. No. 70. In 3 The Second Circuit has yet to address the impact making this request, the Defendants note that during the of Ashcroft v. Iqbal, 556 U.S. 662 (2009), upon pendency of this action, Plaintiff was released from DOCCS's the categories of supervisory liability under Colon custody, thereby rendering moot any request he has made v. Coughlin, 58 F.3d 865 (2d Cir.1995). See for injunctive relief. Dkt. No. 70–4, Defs.' Mem. of Law, Grullon v. City of NewHaven, 720 F.3d 133 (2d at pp. 7–8. After reviewing the Complaint, the Court notes Cir.2013) (noting that the Court's decision in that Plaintiff primarily seeks monetary compensation for both Iqbal “may have heightened the requirements for compensatory and punitive damages. See Compl. at Relief showing a supervisor's personal involvement,” but Requested. In addition, he seeks a declaratory judgment declining to resolve the issue). Lower courts have that his rights have been violated, but does not seek other struggled with this issue, specifically whether Iqbal injunctive relief. Id. effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See,

The Eleventh Amendment states, “[t]he Judicial power of the e.g., Sash v. United States, 674 F.Supp.2d 531, 543 United States shall not be construed to extend to any suit in (S.D.N.Y.2009). While some courts have taken the law or equity, commenced or prosecuted against one of the position that only the first and third of the five United States by Citizens of another State, or by Citizens Colon categories remain viable and can support a or Subjects of any Foreign State.” U.S. CONST. amend. XI. finding of supervisory liability, see, e.g., Bellamy Although by its terms, the amendment bars suit by citizens of v. Mount Vernon Hosp., 2009 WL1835939, at *6 one state against another state, the Supreme Court has held (S.D.N.Y. June 26, 2009), aff'd, 387 F. App'x that such amendment similarly bars suits against a state by 55 (2d Cir.2010), others disagree and conclude its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). “The that whether any of the five categories apply in Eleventh Amendment thus ‘affirm[s] that the fundamental any particular cases depends upon the particular principle of sovereign immunity limits the grant of judicial violations alleged and the supervisor's participatory authority in Art. III.’ “ Richardson v. New York State Dep't role, see, e.g., D'Olimpio v. Crisafi, 718 F.Supp.2d of Corr. Servs., 180 F.3d 426, 447–48 (2d Cir.1999) (citing 340, 347 (S.D.N.Y.2010). Nevertheless, this Court, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. until instructed to the contrary, continues to apply 89, 98 (1984)). Thus, sovereign immunity provided for in the entirety of the five-factor Colon test. the Eleventh Amendment prohibits suits against the state, *5 Here, the evidence shows that Defendant Russell did including a state agency in federal court. Pennhurst State not directly participate in any constitutional wrongdoing, Sch. & Hosp. v. Halderman, 465 U.S. at 98–101; Severino v. she was not aware that Plaintiff had been experiencing any Negron, 996 F.2d 1439, 1441 (2d Cir.1993); Daisernia v. State problems with other inmates and staff, in her assignment to of New York, 582 F.Supp. 792, 796 (N.D.N.Y.1984). To the the Behavioral Health Unit she did not come into contact with extent a state official is sued for damages in his or her official the Plaintiff, and, she was not responsible for creating policies capacity, “such a suit is deemed to be a suit against the state, or customs nor for rectifying any of the alleged constitutional and the official is entitled to invoke the eleventh amendment infirmities Plaintiff is alleged to have been subjected to. immunity belonging to the state.” Rourke v. New York State Because Plaintiff failed to respond to Defendants' Motion, Dep't. of Corr. Servs., 915 F.Supp. 525, 539 (N.D.N.Y.1995) Douglas v. Perrara, Not Reported in F.Supp.2d (2013)

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For the reasons stated herein, it is hereby (citing Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir.), cert. denied, 510 U.S. 1073 (1994); Ying Jing Gan v.

RECOMMENDED, that Defendants' Motion for Partial City of New York, 996 F.2d 522, 529 (2d Cir.1993)); see also Summary Judgment (Dkt. No. 70) be GRANTED and all Mathie v. Fries, 121 F.3d 808, 818 (2d Cir.1997) (“A claim claims against Defendant Russell be DISMISSED and claims against a government officer in his official capacity is, and against the remaining Defendants in their official capacities should be treated as, a claim against the entity that employs be DISMISSED; and it is further the officer ....”). RECOMMENDED, that if the above recommendations are *6 However, whether state officials sued in their official accepted, this case be set down for a final pre-trial conference capacities are entitled to Eleventh Amendment immunity with the parties to assess whether this matter is trial ready; depends also upon the relief sought in the complaint. The and it is further Second Circuit has held that in accordance with Ex parte Young, 209 U.S. 123 (1908), “acts of state officials that violate

ORDERED, that the Clerk of the Court serve a copy of this federal constitutional rights are deemed not to be acts of the Report–Recommendation and Order upon the parties to this state and may be subject of injunctive or declaratory relief in action. federal court.” Berman Enters., Inc. v. Jorling, 3 F.3d at 606 (citations omitted); see also Rourke v. New York State Dep't

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen of Corr. Servs., 915 F.Supp. at 540. While much of the relief (14) days within which to file written objections to the sought herein is compensatory and punitive monetary relief, foregoing report. Such objections shall be filed with the Clerk to the extent Plaintiff seeks some form of declaratory relief, of the Court. FAILURE TO OBJECT TO THIS REPORT such claims against the Defendants in their official capacities

WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

could go forward insofar as the Plaintiff seeks prospective APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 relief. However, in light of his release from DOCCS's custody, (2d Cir.1993) (citing Small v. Sec'y of Health and Human the Court finds that any request for prospective injunctive Servs ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § relief is moot and the claims against the remaining Defendants 636(b) (1); FED. R. CIV. P. 72 & 6(a). in their official capacities should be dismissed. Khalil v. Laird, 353 F. App'x 620 (2d Cir.2009) (citing Muhammad v. City of New York Dep't of Corr., 126 F.3d 119, 123 (2d

All Citations Cir.1997)). Not Reported in F.Supp.2d, 2013 WL 5437617

II. CONCLUSION

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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Currently pending before the court are cross motions brought by the parties, both seeking the entry of summary judgment

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in their favor. For the reasons set forth below, I recommend Only the Westlaw citation is currently available. that plaintiff's cross motion be denied, defendants' motion be United States District Court, N.D. New York. granted, and plaintiff's second amended complaint (“SAC”) be dismissed in its entirety.

Arrello BARNES, Plaintiff, v. Anthony ANNUCCI, et al., 1 Defendants. I. BACKGROUND 2 2 In light of the procedural posture of the case, the

1 Defendants' filings indicate that the correct following recitation is derived from the record now spelling of defendant Ollies is Anthony Olles, before the court, with all inferences drawn and the defendant sued as J. Whitford is John ambiguities resolved in the non-movant's favor. See Whiteford, and Donald Venetozzi is Donald Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003). Venettozzi. See Dkt Nos. 97-7, 97-10, 97-12. Because the parties have filed cross motions for Accordingly, the clerk of the court will summary judgment, the court draws “all factual respectfully be directed to modify the court's inferences ... ‘against the party whose motion is records to reflect the proper spellings of the under consideration.’ ” Tindall v. Poultney High names of these three defendants. Sch. Dist. , 414 F.3d 281, 283-84 (2d Cir. 2005) (quoting Boy Scouts of Am. v. Wyman , 335 F.3d

Civil Action No. 9:15-CV-0777 (GLS/DEP) 80, 88 (2d Cir. 2003) ) (internal quotation marks | omitted). Signed 03/12/2019 Plaintiff is a New York State prison inmate currently being Attorneys and Law Firms held in the custody of the DOCCS. See generally Dkt. No. 72; see also Dkt. No. 97-4 at 6. Although he is presently

ARRELLO BARNES, Pro Se, 00-A-0597, Elmira confined in the Elmira Correctional Facility (“Elmira”), Correctional Facility, P.O. Box 500, Elmira, NY 14902. the events giving rise to this suit transpired at various points between 2011 and 2015, while plaintiff was held in

FOR DEFENDANTS: HON. LETITIA JAMES, New York the Sullivan Correctional Facility (“Sullivan”), the Attica State Attorney General, OF COUNSEL: COLLEEN D. Correctional Facility (“Attica”), the Clinton Correctional GALLIGAN, ESQ., Assistant Attorney General, The Capitol, Facility (“Clinton”), and the Great Meadow Correctional Albany, NY 12224. Facility (“Great Meadow”). See generally Dkt. No. 72. Each of the discrete incidents that give rise to this suit is more fully described below.

ORDER, REPORT, AND RECOMMENDATION

DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE

A. The 2011 Assault and the 2012 Tier III Disciplinary Hearing

*1 This is a civil rights action brought by plaintiff Arrello On August 8, 2011, plaintiff's fellow inmate at Sullivan, Barnes, who is proceeding pro se and in forma pauperis George Mims, was assaulted with a razor while he was (“IFP”), pursuant to 42 U.S.C. § 1983, against several exercising in the West Yard of that facility. Dkt No. 97-3 at individuals employed by the New York State Department 65; Dkt. No. 97-4 at 15. As a result of the incident, plaintiff of Corrections and Community Supervision (“DOCCS”). was issued an inmate misbehavior report (“MBR”) on August Plaintiff alleges that his First and Fourteenth Amendments 10, 2011 charging him with violating certain inmate behavior rights were violated in connection with a series of incidents rules. Dkt. No. 97-3 at 52; Dkt. No. 102-5 at 3; see generally that resulted in disciplinary proceedings being brought 7 N.Y.C.R.R. § 270.2. Plaintiff has denied any role in the against him while he was incarcerated at four different assault, asserting that he was working in a different area of correctional facilities operated by the DOCCS. the facility at the time the assault occurred. Dkt. No. 97-3 at 234 (“[W]hen this took place[,] I was at work”).

Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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testify, he stated, “[b]ecause I am not doing it.” Id.; Dkt. No. Plaintiff was initially found guilty following a disciplinary 97-3 at 240-41; see also Dkt. No. 102-5 at 5. With respect to hearing held on October 25, 2011 at Sullivan. Dkt. No. 97-3 at Officer Connors, when he was contacted, he indicated that he 58. That determination was ultimately revisited as a result of was not working on the date of the assault, and as a result, a court challenge, and a new hearing was ordered to address defendant Coveny denied plaintiff's request for his testimony the charges associated with the stabbing of inmate Mims. Dkt. as irrelevant. Dkt. No. 97-3 at 279; see also Dkt. No. 97-3 at No. 97-3 at 58-59. 61. Despite plaintiff's allegation to the contrary, there is no

indication in the record that plaintiff sought the testimony of *2 Following the administrative expungement, a second Officer Zarrias at the second hearing. 4 See generally Dkt. hearing was conducted by defendant Raymond Coveny, a

No. 97-3 at 231-92. corrections captain, in August and September of 2012, while plaintiff was confined to Attica. Dkt. No. 97-3 at 231-92;

4 It appears that plaintiff may be conflating the Dkt. No. 97-9. In his SAC and his cross motion for summary witness requests made in connection with his initial judgment, plaintiff alleges that although he requested that

disciplinary hearing with the witness requests made Officer Connors, Officer Zarrias, and inmate Mims be called in connection with his second hearing. See Dkt. No. as witnesses at the second hearing, defendant Coveny denied 97-4 at 17. each of those requests. Dkt. No. 72 at 9; Dkt No. 102-1 at 1; On September 6, 2012, defendant Coveny dismissed one Dkt. No. 102-3 at 1. According to plaintiff,

charge, but found plaintiff guilty of all remaining charges. [defendant] Coveny told me ‘I will not call officers to Dkt. No. 97-3 at 49-50, 290-91. As a result, plaintiff was testify so they can contradict other officers’ after [I] sentenced to two years of disciplinary special housing unit requested two [corrections officers] witnesses. He also (“SHU”) confinement, coupled with the corresponding loss refused George Mims to be a witness. 3 of certain privileges. Dkt. No. 97-3 at 49. Dkt. No. 102-1 at 1; but see Dkt. No. Dkt. No. 97-3 at 280, Dkt. No. 102-5 at 4. B. The 2013 “Return to Sender” Letter and the Tier III

Disciplinary Hearing 3 On January 24, 2013, a letter written by plaintiff to a female Plaintiff appears to be referring to following friend was returned to the mailroom at Attica, with the statement made by defendant Coveny during the envelope having been marked “return to sender.” Dkt. No. course of the second hearing: 97-7 at 2; see also Dkt. No. 97-3 at 101. Because “return to [O]kay, I am not missing your point and the sender” mail is frequently used by gang members as a method point was made and I understand[.] [H]owever[,] to communicate within the facility and circumvent scrutiny, I reviewed the video with the assistance [of] the letter was confiscated by prison personnel, who then asked Lieutenant Maxwell and I am of the opinion that defendant Anthony Olles, a corrections officer and member the person I saw in the video is you[.] Lieutenant of the Crisis Intervention Unit (“CIU”) at Attica, to review the Maxwell has testified that the person in the video correspondence to determine whether it contained prohibited is you[.] ... [S]o to have a staff member come gang material. Dkt. No. 97-7 at 1-3. Based upon his training and state that you[ ] weren't in the yard [when] I and experience, defendant Olles determined that the “return to already have a staff member that [says] that you sender” letter contained gang codes associated with the Hunta were[,] and I personally as the hearing officer Bloods, a subset of the larger Bloods gang, and issued plaintiff have viewed the video and I am convinced that an MBR charging him with violating Rule 105.13. 5 Dkt. No. it is you that is in the video.... [they're] going to 97-3 at 100-08; Dkt. No. 97-7 at 3. be denied [as] witnesses. Dkt. No. 97-3 at 280; Dkt. No. 102-5 at 4. 5 Rule 105.13 is part of Rule Series 105, which The documentary evidence adduced by the parties reflects addresses an inmate's “Unauthorized Assembly or that although inmate Mims provided testimony at plaintiff's

Activity.” 7 N.Y.C.R.R. § 270.2(B)(6). Rule 105.13 original disciplinary hearing, see Dkt. No. 97-4 at 23, he provides that “[a]n inmate shall not engage in or refused to testify at the second hearing. Dkt. No. 97-3 at 69. encourage others to engage in gang activities or When inmate Mims was asked to specify why he refused to Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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meetings, or display, wear, possess, distribute or at the facility. Dkt. No. 97-8 at 1-2. As a result of an use gang insignia or materials including, but not investigation into the matter, Corrections Officer J. Hanson limited to, printed or handwritten gang or gang (“C.O. Hanson”) issued plaintiff an MBR charging him with related material.” 7 N.Y.C.R.R. § 270.2(B)(6). violating multiple inmate behavior rules including, inter alia ,

gang activity and threats on staff. Dkt. No. 97-3 at 116; see *3 On January 29 and 30, 2013, a Tier III disciplinary generally 7 N.Y.C.R.R. § 270.2. hearing was held before defendant John Whiteford, a senior corrections counselor at Attica. 6 Dkt. No. 97-3 at 293-303;

After plaintiff was removed from his cell, defendant Richard Dkt. No. 97-10 at 1-2. During the hearing, plaintiff requested J. Mahuta, a corrections officer assigned to the CIU, and the testimony of Officer Eric Kentzel, 7 whom plaintiff another officer conducted a cell search. Dkt. No. 97-3 at indicated would testify that plaintiff “did[ not] write that 117; Dkt. No. 97-8 at 1-2. In his SAC, plaintiff accused letter” and that “another inmate ... [was] throwing [plaintiff's] defendant Mahuta of confiscating and discarding three of his name” on correspondence. Dkt. No. 97-3 at 295-99, 301-02; religious head coverings. Dkt. No. 72 at 11-12. According to Dkt No. 97-4 at 39, 44-45; Dkt. No. 97-10 at 2. Defendant defendant Mahuta, during the course of that cell search, he Whiteford denied plaintiff's request, however, because there did not remove or throw away any religious head coverings was no indication that Officer Kentzel had knowledge or from plaintiff's cell. Dkt. No. 97-8 at 3. Plaintiff counters by information regarding the specific letter that led to the alleging that two other inmates overheard defendant Mahuta issuance of the MBR. Dkt. No. 97-4 at 46 (“Irrelevancy, I state, “[i]sn't [plaintiff] a Blood? What is he doing with believe.”); Dkt. No. 97-10 at 2-3; Dkt. No. 102-1 at 1; Dkt. kufis?” prior to disposing of those head coverings. 8 Dkt. No. No. 102-3 at 1; see also Dkt. No. 72 at 10. 72 at 12; Dkt. No. 97-4 at 56-57; compare Dkt. No. 97-8 at 3 with Dkt. No. 102-1 at 2; Dkt. No. 102-5 at 24-25.

6 Plaintiff continues to assert in his cross-motion that defendant Whiteford violated his procedural 8

A “kufi” is headgear that is associated with the due process rights because he was biased during Muslim religion. Nicholas v. Tucker , 89 F. Supp. 2d the hearing. However, that claim was previously

475, 477 (S.D.N.Y. 2000).

dismissed by the court, and it was not re-asserted However, during the cell search, defendant Mahuta in plaintiff's SAC. Dkt. No. 70 at 33 (“[D]efendant discovered three handwritten pages of material that he [Whiteford's] statement did nothing more than believed to be prohibited gang material. Dkt. No. 97-8 at advise plaintiff that, if evidence was presented on 3. Those three pages, along with three Bibles and other the record that plaintiff violated rule 105.13, he materials, were confiscated by defendant Mahuta, who had would be found guilty.”); see also Dkt. Nos. 72, 75. the materials placed inside a contraband locker for further 7 The precise spelling of this officer's name is not review at a later time. Dkt. No. 97-8 at 3; Dkt. No. 97-3 clear from the record before the court. See, e.g. , at 413-14. Defendant Mahuta ultimately determined that Dkt. No. 97-1 at 4 (“Kenzel” and “Kinzel”); Dkt. only the three handwritten pages constituted prohibited gang No. 97-4 at 39 (“Kintzel”); Dkt. No. 97-10 at material and issued plaintiff am MBR charging him with 2(“Kentzel”). possession of that material. Dkt. No. 97-3 at 117.

At the conclusion of the hearing, defendant Whiteford found plaintiff guilty as charged, and plaintiff was sentenced to one year of disciplinary SHU confinement, coupled with the loss

1. Plaintiff's Tier III Disciplinary Hearing and Appeals of certain privileges. Dkt. No. 97-3 at 86; see also Dkt. No. *4 Between February 5, 2015 and February 27, 2015, 97-3 at 299-304. defendant Kenneth McKeighan, an industrial superintendent at Great Meadow, conducted a Tier III disciplinary hearing

C. The 2015 Conspiracy, Gang Material, Grievance, and with respect to the two MBRs. Dkt. No. 97-5; Dkt. No. 97-6; the Tier III Disciplinary Hearing see also Dkt. No. 97-3 at 116-117. At the hearing, plaintiff On January 29, 2015, members of the CIU at Clinton requested, inter alia , the testimony of his brother, Exondus received confidential information that inmate gang members,

Barnes who, plaintiff asserted, would testify that he was the including plaintiff, were conspiring to assault security staff author of the three handwritten pages of material confiscated Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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during the cell search. Dkt. No. 97-5 at 5; Dkt. No. 97-6 at 8, the footage likely would have been “inconclusive.” Dkt. No. 17-18; see also Dkt. No. 97-3 at 115. Defendant McKeighan 97-3 at 397; Dkt. No. 97-6 at 3, 10, 12. denied the request as irrelevant, however, because plaintiff was charged with possession of the materials, and thus the At the conclusion of the hearing, defendant McKeighan found question of authorship was not relevant. 9 Dkt. No. 97-3 at plaintiff guilty as charged. Dkt. No. 97-3 at 110-115. Plaintiff

was sentenced to 910 days of disciplinary SHU confinement, 119; Dkt. No. 97-4 at 66-68; Dkt. No. 97-6 at 33-34; Dkt. No. coupled with the loss of certain privileges. Dkt. No. 97-3 97-11 at 3. at 110; see also id. at 114 (“Due to the nature of the entire incident and the fact your actions would have resulted in

9 Specifically, defendant Mahuta charged plaintiff the injury to the staff and would have likely disrupted the with violating Rule 105.13 of the standards of entire facility and DOCCS in general, I have exceeded the inmate behavior. See footnote 5, supra ; see also 7 recommended confinement guidelines considerably.”).

N.Y.C.R.R. § 270.2(B)(6).

At the hearing, plaintiff also requested copies of the “call Following the conclusion of the hearing, plaintiff filed outs” or “yard go-arounds” for Clinton, contesting that those a series of appeals challenging defendant McKeighan's materials would demonstrate that he was not in the yard determination. Dkt. No. 97-3 at 340-99; see also Dkt. with his co-conspirators during the relevant times. Dkt. No. 97-12 at 3. On May 12, 2015, defendant Donald No. 97-5 at 5-6. Although defendant McKeighan initially Venettozzi, the Director for the DOCCS Special Housing/ reserved decision regarding plaintiff's request, he ultimately Inmate Disciplinary Program, affirmed the finding of guilt, denied it after C.O. Hanson testified that no such document but reduced plaintiff's penalty from 910 days to twelve existed at Clinton. Dkt. No 97-6 at 4. Nonetheless, defendant months of disciplinary SHU confinement. Dkt. No. 97-3 at McKeighan obtained “program sheets” for the relevant time, 341-42; Dkt. No. 97-12 at 4. Dkt. No. 97-5 at 126-154, and compiled that information into a spreadsheet, which showed that plaintiff and his co- *5 In addition to addressing one of his appeals to defendant conspirators were in fact together on the evening of January Anthony Annucci, the Acting Commissioner of the DOCCS, 19, 2015. 10 Dkt. No. 97-5 at 218; see also Dkt. No. 97-6 at see Dkt. No. 97-3 at 344, plaintiff also sent defendant

Annucci a letter on April 1, 2015, complaining that his due 18-19. process rights were violated at the hearing. Dkt. No. 97-3 at 348-49; Dkt. No. 97-13 at 2; see also Dkt. No. 102-1 at 2.

10 January 19, 2015 is a significant date because it is Defendant Annucci did not respond to plaintiff's appeal or the day after prison officials at Clinton used force letter or undertake any investigation as a result of plaintiff's against a suspected Bloods gang member. Dkt. No. correspondence. Dkt. No. 97-13 at 2. 97-8 at 2; Dkt. No. 97-11 at 2. Defendants theorize that plaintiff and fellow inmates attempted to plan the assaults on prison staff in retaliation for the use 2. Plaintiff's Grievance of force. Dkt. No. 97-5 at 36; Dkt. No. 97-11 at 2, 4.

Plaintiff also requested that video footage from Clinton's On February 20, 2015, plaintiff filed a grievance in North Yard be provided at the hearing, arguing that it would connection with defendant Mahuta's cell search, stating show that he was not in the area during the relevant time, thereby undercutting the claims made by the confidential On 1/29/15, my cell [was] searched by [defendant] Mahuta informant. See, e.g. , Dkt. No. 97-5 at 6, 11. Defendant at [Clinton] ..., and my letters, Bible, etc. were confiscated for review. After the paper [was] review[ed], I received McKeighan's denial of that request was two-fold. First, he noted that the video footage simply did not exist inasmuch a misbehavior report for only [three] papers. [T]he Bible, as by the time the conspiracy had been uncovered, the video address book, etc., were [not deemed] gang material. footage had been recorded over. Dkt. No. 97-3 at 397; Dkt.

I did not receive[ ] my documents [back] as of yet. No. 97-5 at 6; Dkt. No. 97-6 at 3. Second, he noted that even if footage of the North Yard existed, that footage would

Action requested: for my papers, bible, etc. to be return[ed] have shown only a general view of the North Yard instead of to me. focusing on any particular group of people, and he believed Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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plaintiff be afforded an opportunity to file a SAC. Id. Dkt. No. 97-3 at 403 (errors in original); see also Dkt. No. at 41. Although neither party filed any objections to my 97-4 at 75. It appears that prison personnel were initially report, before Judge Sharpe had an opportunity to review confused with respect to the nature of the relief plaintiff it, plaintiff availed himself of my recommendation and filed sought, as well as the location of plaintiff's property, because his SAC on July 24, 2017. Dkt. No. 72. On September 1, in initially denying plaintiff's grievance, the superintendent 2017, Judge Sharpe issued an order adopting my report and stated that “[t]he items in question were deemed to be recommendation in its entirety. Dkt. No. 75. contraband and as such were properly disposed of.” Dkt. No. 97-3 at 404, 442. In his appeal of the grievance determination

*6 Plaintiff's SAC was referred to me for review to to the DOCCS Central Office Review Committee (“CORC”), determine whether the deficiencies that were discerned in my plaintiff explained that he was seeking the return of only those July 14, 2017 report and recommendation had been cured materials that were determined not to constitute gang-related by the filing of plaintiff's SAC. Dkt. No. 76. Following contraband. Dkt. No. 97-3 at 404-05. While plaintiff's appeal my review, I issued a report and recommendation on was pending before the CORC, the materials that he sought September 22, 2017, recommending that plaintiff's SAC be were returned to him, see Dkt. No. 97-3 at 400, 413, 418, accepted for filing, but that various of plaintiff's claims 442, although plaintiff has denied ever having received those be dismissed. Dkt. No. 76. By decision and order dated materials back from prison officials. Dkt. No. 97-4 at 77. October 19, 2017, Judge Sharpe adopted my report and recommendation in its entirety over plaintiff's objections. Dkt. Nos. 77, 78. As a result of these rulings, the following four

II. PROCEDURAL HISTORY

claims survived and proceeded to discovery: (1) Fourteenth Plaintiff commenced this action on or about June 25, 2015,

Amendment procedural due process claim against defendants by the filing of a complaint accompanied by an application Coveny, Whiteford, and McKeighan; (2) First Amendment for leave to proceed IFP and a motion for a preliminary free speech claim against defendants Olles and Mahuta; (3) injunction. Dkt. Nos. 1, 2, 4. Although plaintiff's original First Amendment free exercise claim against Mahuta; and (4) IFP application was denied by the court as incomplete, his Fourteenth Amendment procedural due process claim against subsequent motion for leave to proceed without prepayment defendants Annucci and Venettozzi in their supervisory of fees was granted. Dkt. Nos. 5, 6, 10. capacities. See id. at 3. By decision and order dated September 17, 2015, Senior On January 23, 2018, following the close of discovery, District Judge Gary L. Sharpe denied plaintiff's motion for defendants filed a motion for summary judgment, seeking preliminary injunctive relief. Dkt. No. 10. In addition, he dismissal of plaintiff's claims on various grounds, both reviewed plaintiff's complaint pursuant to 28 U.S.C. §§

procedural and on the merits. Dkt. No. 97. Plaintiff has 1915(e), 1915A and dismissed a number of claims and opposed defendants' motion and cross moved for summary defendants from the action. See generally id. judgment in his favor. Dkt. No. 102. Defendants have submitted papers in opposition to plaintiff's motion and

On October 26, 2015, and prior to service upon defendants, in further support of their motion. Dkt. No. 103. The plaintiff filed an amended complaint (“FAC”), which was parties' motions, which are now fully briefed and ripe for accepted by Judge Sharpe because it was deemed “a pleading determination, have been referred to me for the issuance of which reflects the [c]ourt's rulings in the [initial] order.” a report and recommendation pursuant to 28 U.S.C. § 636(b) Dkt. No. 17. In response to plaintiff's FAC, defendants filed (1)(B) and Northern District of New York Local Rule 72.3(c). a motion on September 21, 2016, seeking its dismissal for See Fed. R. Civ. P. 72(b). failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 30.

III. DISCUSSION

On July 14, 2017, I issued a report, which recommended A. Summary Judgment Standard the dismissal of various claims and several defendants from Summary judgment motions are governed by Rule 56 of the action. See generally Dkt. No. 70. In addition, in light the Federal Rules of Civil Procedure, which provides that of my recommendation that multiple claims and defendants the entry of summary judgment is warranted “if the movant be dismissed from the action, I further recommended that shows that there is no genuine dispute as to any material Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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fact and the movant is entitled to judgment as a matter of not acknowledge defendants' argument, instead focusing his law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett , 477 U.S. opposition on the underlying merits of the First Amendment 317, 322 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. claims defendants Olles and Mahuta. See generally Dkt. No. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion 102. Freight Line, Inc. , 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is “material” for purposes of this inquiry if it “might affect the outcome of the suit under the governing law.” Anderson , 477

1. Generally U.S. at 248; see also Jeffreys v. City of N.Y. , 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute “if the

The Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L. evidence is such that a reasonable jury could return a verdict No. 104-134, 110 Stat. 1321 (1996), which imposes several for the nonmoving party.” Anderson , 477 U.S. at 248. restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that “[n]o action shall

A party moving for summary judgment bears an initial burden be brought with respect to prison conditions under section of demonstrating that there is no genuine dispute of material 1983 of this title, or any other Federal law, by a prisoner fact to be decided with respect to any essential element of confined in any jail, prison, or other correctional facility until the claim in issue; the failure to meet this burden warrants such administrative remedies as are available are exhausted.” denial of the motion. Anderson , 477 U.S. at 250 n.4; Sec. Ins. 42 U.S.C. § 1997e(a); see also Ross v. Blake , 136 S. Ct. Co. , 391 F.3d at 83. In the event this initial burden is met, the 1850, 1856 (2016). Section 1997e(a)’s exhaustion provision opposing party must show, through affidavits or otherwise, is mandatory and applies to all inmate lawsuits regarding the that there is a material dispute of fact for trial. Fed. R. Civ. P. conditions of their confinement. Ross , 136 S. Ct. at 1856; 56(e); Celotex , 477 U.S. at 324; Anderson , 477 U.S. at 250. Woodford v. Ngo , 548 U.S. 81, 84 (2006); Porter v. Nussle , 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer

When deciding a summary judgment motion, a court must Priatno , 829 F.3d 118, 122 (2d Cir. 2016). In the event a resolve any ambiguities, and draw all inferences, in a light defendant establishes that the inmate-plaintiff failed to fully most favorable to the non-moving party. Anderson , 477 U.S. comply with the administrative process prior to commencing at 255; Jeffreys , 426 F.3d at 553; Wright v. Coughlin , 132 F.3d an action in federal court, the plaintiff's complaint is subject 133, 137-38 (2d Cir. 1998). The entry of summary judgment to dismissal. See Woodford , 548 U.S. at 93 (“[W]e are is justified only in the event of a finding that no reasonable persuaded that the PLRA exhaustion requirement requires trier of fact could rule in favor of the non-moving party. Bldg. proper exhaustion.”); see also Wilson v. McKenna , 661 F. Trades Employers' Educ. Ass'n v. McGowan , 311 F.3d 501, App'x 750, 752 (2d Cir. 2016). “Proper exhaustion” requires 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 a plaintiff to procedurally exhaust his claims by “compl[ying] (finding summary judgment appropriate only when “there can with the system's critical procedural rules.” Woodford , 548 be but one reasonable conclusion as to the verdict”). U.S. at 95; accord, Macias v. Zenk , 495 F.3d 37, 43 (2d Cir. 2007). 12

B. Plaintiff's Failure to Exhaust Administrative 12 Remedies 11 While placing prison officials on notice of a grievance through less formal channels may 11 As will be seen, because I recommend that each of constitute claim exhaustion “ ‘in a substantive plaintiff's claims be dismissed, have elected not to sense,’ ” an inmate plaintiff nonetheless must address defendants' alternative argument that they meet the procedural requirement of exhausting are shielded by the doctrine of qualified immunity. his available administrative remedies within the Dkt. No. 97-4 at 31-33. appropriate grievance construct in order to satisfy *7 Defendants contend that plaintiff failed to fully the PLRA. Macias , 495 F.3d at 43 (quoting exhaust his administrative remedies with respect to his First Johnson v. Testman , 380 F.3d 691, 697-98 (2d Cir. Amendment free speech claim against defendants Olles and 2004) (emphasis omitted) ). Mahuta and his First Amendment free exercise claim against

In New York, the DOCCS has instituted a grievance Mahuta. Dkt. No. 97-14 at 12-15. As a result of plaintiff's procedure, designated as the Inmate Grievance Program failure, defendants argue, those claims must be dismissed. Id. ; (“IGP”), for use by prison inmates to lodge complaints see also Dkt. No. 103 at 4-5. In his cross motion, plaintiff does Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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regarding the conditions of their confinement. Williams , 829 As can be seen, at each step of the IGP process, a decision F.3d at 119. The IGP is comprised of three steps that inmates must be rendered within a specified time period. 7 N.Y.C.R.R. must satisfy when they have a grievance regarding prison § 701.5. Where the IGRC and/or superintendent do not timely conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams , 829 respond, an inmate is permitted to appeal “to the next step.” F.3d at 119. The IGP requires that an inmate first file a 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to grievance with “the clerk” within twenty-one days of the follow each of the required three steps of the above-described alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. IGP prior to commencing litigation, he has failed to exhaust § 701.5(a)(1). “The complaint may only be filed at the his administrative remedies as required under the PLRA. See facility where the inmate is housed even if it pertains to Ruggerio v. Cty. of Orange , 467 F.3d 170, 176 (2d Cir. 2006) another facility.” Id. Representatives of the inmate grievance (“[T]he PLRA requires proper exhaustion, which means using resolution committee (“IGRC”) 13 have up to sixteen days all steps that the agency holds out, and doing so properly (so

that the agency addresses the issues on the merits).” (internal after the grievance is filed to informally resolve the issue. quotation marks omitted) ). 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within

While the PLRA mandates exhaustion of available sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § administrative remedies, it also “contains its own, textual 701.5(b)(2). exception to mandatory exhaustion.” Ross , 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only

13 The IGRC is comprised of “two voting inmates, those administrative remedies that “are available” must first two voting staff members, and a non-voting be exhausted. 42 U.S.C. § 1997e(a); see also Ross , 136 chairperson.” 7 N.Y.C.R.R. § 701.4(a). S. Ct. at 1858 (“[T]he exhaustion requirement hinges on *8 A grievant may then appeal the IGRC's decision to the the availab[ility] of administrative remedies.” (alteration in facility's superintendent within seven days after receipt of original) (internal quotation marks omitted) ). In the PLRA the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The context, the Supreme Court has determined that “availability” superintendent must issue a written decision within a certain means that “an inmate is required to exhaust those, but only number of days after receipt of the grievant's appeal. 14 7 those, grievance procedures that are capable of use to obtain

some relief for the action complained of.” Ross , 136 S. Ct. at N.Y.C.R.R. § 701.5(c)(3)(i), (ii). 1859 (quoting Booth v. Churner , 532 U.S. 731, 738 (2001) ) (internal quotation marks omitted).

14 Depending on the type of matter complained of by the inmate, the superintendent has either seven or

In Ross , the Supreme Court identified three circumstances in twenty days after receipt of the appeal to issue a which a court could find that internal administrative remedies decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii). are not available to prisoners under the PLRA. 15 Ross , The third and final step of the IGP involves an appeal to 136 S. Ct. at 1859-60. Under the first, “an administrative the CORC, which must be taken within seven days after procedure is unavailable when (despite what regulations or an inmate receives the superintendent's written decision. 7 guidance materials may promise) it operates as a simple N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render dead end—with officers unable or consistently unwilling to a written decision within thirty days of receipt of the appeal. provide any relief to aggrieved inmates.” Id. at 1859. In 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii). addition, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. The

Where an inmate's grievance complains of employee Court explained that, “[i]n this situation, some mechanism harassment, the grievance is forwarded directly to the exists to provide relief, but no ordinary prisoner can discern superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § or navigate it.” Id. The third scenario in which administrative 701.8(b), (c). The superintendent then has twenty-five days remedies are deemed unavailable to prisoners is when “prison from the date of its receipt to render a decision. 7 N.Y.C.R.R. § administrators thwart inmates from taking advantage of a 701.8(f). An inmate may appeal the superintendent's decision grievance process through machination, misrepresentation, or to the CORC within seven days of its receipt. 7 N.Y.C.R.R. intimidation.” Id. at 1860. § 701.8(h). Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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15

According to the Second Circuit, “the three Dkt. No. 97-3 at 403 (errors in original). When prison officials circumstances discussed in Ross do not appear to appeared to initially misapprehend which materials he sought be exhaustive[.]” Williams , 829 F.3d at 123 n.2. to have returned, in an appeal to the CORC on August 24, 2015, plaintiff stated:

2. Analysis *9 During his deposition, plaintiff testified that he had filed If you review the 1/29/15 [inmate “a lot” of grievances during his time in DOCCS custody. Dkt. misbehavior report], only 3 pages No. 97-4 at 71-72; see Dkt. No. 97-3 at 28-44. Although he were confiscated, which was the only did not believe that the number of grievances that he had material I was found guilty on. The filed reached the “triple digits,” he speculated that it was contraband list which stated my Bible, approaching fifty to sixty grievances. Dkt. No. 97-4 at 72. letters, phone book, etc. were being Plaintiff expressed a general understanding that the use of review which Dep. Brendel could the inmate grievance process was necessary to effectively verify. The review[ed] material was “exhaust [his] remedies.” Dkt. No. 97-4 at 78. never charged on the misbehavior

report.... [T]he I.G.R.C. staffs are During his deposition, plaintiff was asked whether he had merely covering up the fact that filed a grievance regarding the allegation that defendant Olles grievant[’s] property was stolen. violated plaintiff's First Amendment right to free speech by his unjustified confiscation of plaintiff's “return to sender” letter in January of 2013. See Dkt. No. 72 at 9. Dkt. No. 97-4

Dkt. No. 97-3 at 404-05 (errors in original). Plaintiff's at 72-73. In response, plaintiff indicated that he was unable grievance and appeal to the CORC makes no mention of to specifically recall whether he had, but that he did not “see religious headwear. See generally id. Plaintiff's grievance also why [he] would” have filed one. Dkt. No. 97-4 at 72-74. fails to indicate that he believed the seizure of the three pages Because plaintiff effectively concedes that he did not file a of material was in violation of his First Amendment rights. grievance with respect to this incident, I can easily conclude See generally id. Instead, plaintiff's grievance solely seeks the that he failed to exhaust his administrative remedies prior to return of those materials that prison personnel determined did commencement. not constitute gang-related material. See generally id. With respect to plaintiff's free exercise and free speech Consistent with the objectives of the PLRA, “inmates claims against defendant Mahuta, both of which arise out must provide enough information about the conduct of of the January 29, 2015 search of plaintiff's cell, plaintiff which they complain to allow prison officials to take acknowledged that he filed only one grievance arising out appropriate responsive measures.” Johnson , 380 F.3d at 697. of that incident on February 20, 2015 (GM 59,129-15). Dkt. In determining whether exhaustion has been achieved, the No. 97-3 at 403; Dkt. No. 97-4 at 75-76. According to that standard for determining the sufficiency of an administrative grievance, grievance is analogous to that of notice pleading. Brownell v. Krom , 446 F.3d 305, 310 (2d Cir. 2006) (citing Johnson , 380

On 1/29/15, my cell [was] searched by [defendant] Mahuta F.3d at 697). at [Clinton] ..., and my letters, Bible, etc. were confiscated for review. After the paper [was] review[ed], I received

*10 Although it is “appropriate to afford pro se inmates a misbehavior report for only [three] papers. [T]he Bible, a liberal grievance pleading standard, the grievance may address book, etc., were [not deemed] gang material. not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally.”

I did not receive[ ] my documents [back] as of yet. Brownell , 446 F.3d at 310; see also Singh v. Lynch , 460 Action requested: for my papers, bible, etc. to be return[ed] F. App'x. 45, 47 (2d Cir. 2012); Turner v. Goord , 376 F. to me. Supp. 2d 321, 324 (W.D.N.Y. 2005) (“[T]he mere fact that

[the] plaintiff filed some grievance, and fully appealed all the decisions on that grievance, does not automatically mean

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that he can now sue anyone who was in any way connected with the events giving rise to that grievance.”). Even affording 17

In light of this recommendation, I have elected not plaintiff the appropriate lenity as a pro se litigant, plaintiff's to address defendants' alternative argument on the grievance failed to describe any First Amendment concern merits. arising out of defendant Mahuta's cell search. C. Due Process Although it is true that “a claim may be exhausted when Defendants contend that plaintiff was afforded adequate due it is closely related to, but not explicitly mentioned in process during the disciplinary proceedings conducted by an exhausted grievance,” Simmons v. Robinson , No. 07- defendants Coveny, Whiteford, and McKeighan. Dkt. No. CV-7383, 2011 WL 31066, at *4 (S.D.N.Y. Jan. 4, 2011) 97-14 at 21-28. In his cross motion, plaintiff disagrees, and (citing Espinal v. Goord , 55 8 F.3d 119, 128 (2d Cir. 2009) ), asserts that defendants' decisions deprived him of procedural I am unable to conclude that the sole grievance filed by due process in connection with each of his Tier III disciplinary plaintiff provided the facility with sufficient information hearings. See generally Dkt. No. 102. to permit an investigation of his concerns regarding the disposal of religious headwear or the seizure of three pages of gang-related material. 16 Instead, it is clear from plaintiff's

1. Generally grievance that his primary concern was with securing the return of his non-gang related material. Dkt. No. 97-3 at

To establish a procedural due process claim under section 403-05. Accordingly, because plaintiff's grievance failed 1983, a plaintiff must show that he (1) possessed an actual to provide the facility enough information to investigate liberty interest, and (2) was deprived of that interest without his free speech and free exercise concerns, plaintiff's being afforded sufficient process. Tellier v. Fields , 280 F.3d February 20, 2015 grievance was not sufficient to exhaust 69, 79-80 (2d Cir. 2000); Hynes v. Squillace , 143 F.3d 653, his administrative remedies prior to commencement of 658 (2d Cir. 1998); Bedoya v. Coughlin , 91 F.3d 349, 351-52 this action. See, e.g., Dailey v. Fuller , 15-CV-1051, 2016 (2d Cir. 1996). Much like their prior motions, defendants do WL 7732236 *7-*8 (Dec. 5, 2016) (Dancks, M.J.), report not seek dismissal of any of plaintiff's due process claims on and recommendation adopted by (N.D.N.Y. Jan 11, 2017) the basis that he was not denied a constitutionally significant (Sannes, J.); Wright v. Potter , No. 14-CV-01041, 2016 WL liberty interest, see generally Dkt. No. 97-14 at 21-28, and as a 5219997, at *5 (Jun. 28, 2016) (Dancks, M.J.), report and result the court will not address that issue. Instead, defendants' recommendation adopted by 2016 WL 5173283 (Hurd, J.) argument is focused on whether plaintiff was deprived of a (N.D.N.Y. Sept. 21, 2016). liberty interest without being afforded sufficient process. See generally id.

16 Copies of all unreported decisions have been appended for the convenience of the pro se *11 The procedural safeguards to which a prison inmate is plaintiff. entitled before being deprived of a constitutionally cognizable

liberty interest are well established under Wolff v. McDonnell , This, of course, does not end the court's inquiry with respect 418 U.S. 539 (1974). In its decision in Wolff , the Court held to exhaustion. Plaintiff, however, has not claimed that the that the constitutionally mandated due process requirements IGP process was unavailable to him during the relevant include (1) written notice of the charges to the inmate; (2) times periods. To the contrary, the record evidence indicates the opportunity to appear at a disciplinary hearing and a that plaintiff was able to successfully navigate the grievance reasonable opportunity to present witnesses and evidence in procedure while housed in a SHU at a different facility. support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by

Accordingly, the undisputed facts in this case reveal that with the hearing officer explaining his decision and the reasons for respect to his First Amendment claims, plaintiff failed to the action being taken; and (4) in some circumstances, the fully comply with the IGP prior to the commencement of right to assistance in preparing a defense. Wolff , 418 U.S. at this action, despite his remedies remaining available to him 564-69; see also Luna v. Pico , 356 F.3d 481, 487 (2d Cir. at all relevant times. I therefore recommend that defendants' 2004). To pass muster under the Fourteenth Amendment, a motion for summary judgment on this basis be granted on this hearing officer's disciplinary determination must also garner procedural basis. 17 the support of at least “some evidence.” Superintendent, Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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Mass. Corr. Inst., Walpole v. Hill , 472 U.S. 445, 455 (1985); at 3. Plaintiff cannot now turn his own lack of diligence into Luna , 356 F.3d at 487-88. a constitutional deprivation. See, e.g., Hasan Jamal Abdul

Majid v. Henderson , 533 F. Supp. 1257, 1273 (N.D.N.Y.) The due process clause of the Fourteenth Amendment also (Munson, C.J.) (concluding that due process was not violated guarantees that “[a]n inmate subject to a disciplinary hearing where the inmate failed to request witnesses at or before the is entitled to ... an impartial hearing officer.” Allen v. Cuomo , hearing), aff'd mem. , 714 F.2d 115 (2d Cir. 1982). 100 F.3d 253, 259 (2d Cir. 1996) (citing, inter alia, Wolff , 418 U.S. at 570-71). The Second Circuit has explained that *12 In addition, although plaintiff requested testimony from its “conception of an impartial decisionmaker is one who, inmate Mims, who had also testified at the initial hearing, that inter alia , does not prejudge the evidence and who cannot witness refused to provide testimony at the second hearing say ... how he would assess evidence he has not yet seen.” and declined to elaborate on the reasons for his refusal Patterson v. Coughlin , 905 F.2d 564, 570 (2d Cir. 1990). “The beyond “[b]ecause I am not doing it.” Dkt. No. 97-3 at degree of impartiality required of prison officials[, however,] 69. Courts in this circuit have routinely held that a hearing does not rise to the level of that required of judges.” Allen , officer's failure to call a fellow inmate who refuses to testify 100 F.3d at 259. Indeed, “[i]t is well recognized that prison does not offend procedural due process. See, e.g., Caimite disciplinary hearing officers are not held to the same standard v. Venettozzi , No. 17-CV-0919, 2018 WL 6069458, at *5 of neutrality as adjudicators in other contexts.” Id. (citing (Oct. 29, 2018) (Hummel, M.J.), report and recommendation Russell v. Selsky , 35 F.3d 55, 60 (2d Cir. 1996); Francis v. adopted by 2018 WL 6068414 (N.D.N.Y. Nov. 20, 2018) Coughlin , 891 F.2d 43, 46 (2d Cir. 1989) ). “A hearing officer (Sharpe, J.); Abdur-Raheem v. Caffery , No. 13-CV-6315, may satisfy the standard of impartiality if there is ‘some 2015 WL 667528, at *6 (S.D.N.Y. Feb. 17, 2015); Hinton v. evidence in the record’ to support the findings of the hearing.” Prack , No. 12-CV-1844, 2014 WL 4627120, at *7 (N.D.N.Y. Allred v. Knowles , No. 06-CV-0456, 2010 WL 3911414, at *5 Sept. 11, 2014) (Kahn, J.) (“The fact that these witnesses (W.D.N.Y. Oct. 5, 2010) (emphasis in original) (quoting Hill , refused to testify on [the plaintiff's] behalf does not alter the 472 U.S. at 455). fact that he was given the opportunity to call witnesses.”).

Finally, with respect to the testimony of Officer Connors, the record reveals that plaintiff's request to call him as a witness

a. Defendant Coveny was initially granted and defendant Coveny contacted him to “make arrangement for [his] testimony.” Dkt. No. 97-3 at 234, According to plaintiff, defendant Coveny violated his due 241. In response to being contacted to provide “confidential process rights during the second hearing by improperly testimony” for the proceeding, however, Officer Connors denying his request to call Officer Connors, Officer Zarrias, indicated that “he was not working on the date of [the] alleged and inmate Mims as witnesses. Dkt. No. 72 at 9 (first incident.” Dkt. No. 97-3 at 279. As a result, defendant Coveny cause of action); see also Dkt. No. 102 at 11. Although due properly denied plaintiff's request based upon a finding that process includes the “right of an inmate to call and present the officer could not provide relevant evidence. Dkt. No. 97-3 witnesses and documentary evidence in his defense before the at 85; see Dkt. No. 97-9 at 2-3; see also Kalwasinski v. Morse , disciplinary board,” that right is not unfettered. Ponte v. Real , 201 F.3d 103, 109 (2d Cir. 1999). (“[A] hearing officer does 471 U.S. 491, 495 (1985). An inmate's right may be limited not violate due process by excluding irrelevant or unnecessary for security reasons, to keep a hearing within reasonable testimony.”). limits, or on the basis of irrelevance or lack of necessity. See Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 (2d Cir. 1991).

Accordingly, because no reasonable factfinder could conclude that defendant Coveny violated plaintiff's

In this case, after an exhaustive review of the record evidence, procedural due process rights, I recommend that the claim I conclude that no reasonable factfinder could conclude that against defendant Coveny be dismissed. defendant Coveny violated plaintiff's due process rights at the second hearing. First, with respect to plaintiff's alleged request to call Officer Zarrias, although it appears plaintiff did call him as a witness for the initial hearing, there is no record

b. Defendant Whiteford evidence that plaintiff sought his testimony in connection with the second hearing. Dkt. No. 97-4 at 17-18; see Dkt. No. 97-9 Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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Plaintiff alleges that defendant Whiteford violated his due disciplinary proceeding by (1) denying plaintiff's request to process rights during the January 2013 disciplinary hearing call his brother as a witness; (2) permitting the admission of when he denied his request to call Officer Kentzel as a fabricated evidence; and (3) denying plaintiff's request for witness. Dkt. No. 72 at 9-10 (third cause of action); see also video footage. Dkt. No. 72 at 10-11 (sixth cause of action); Dkt. No. 102-1 at 1. According to plaintiff, Officer Kentzel Dkt. No. 102-4 at 12. would have testified that plaintiff did not write the “return to sender” letter and that there was another inmate that was First, when the search of plaintiff's cell uncovered three pages “throwing [plaintiff's] name” on correspondence. Dkt. No. of gang-related material, plaintiff was charged with violating 97-3 at 295-99, 301-02; see also Dkt. No. 97-10 at 2. Rule 105.13 of the standards of inmate behavior, see Dkt.

No. 97-3 at 182, which prohibits possessing gang-related During the disciplinary hearing, Sergeant O'Connell stated material. Although plaintiff wished to call his brother to that he had compared the handwriting and signature on the testify that he was the author of the three pages in question, “return to sender” letter with correspondence known to be defendant McKeighan determined that the testimony would written by plaintiff, and concluded that plaintiff was the be irrelevant in light of the fact that plaintiff was charged author of the letter at issue. Dkt. No. 97-3 at 299-300. Sergeant with possession—not authorship—of the material in question. O'Connell's testimony provided defendant Whiteford with a Defendant McKeighan's decision to deny plaintiff's request to rational basis for concluding that Officer Kentzel's testimony call his brother as a witness was well within the discretion would have been irrelevant or unnecessary. Dkt. No. 97-4 at of the hearing officer, and comports with procedural due 46 (“Irrelevancy, I believe.”); see also Dkt. No. 97-10 at 2-3. process. See Kalwasinksi , 201 F.3d at 108-09. Defendant Whiteford believed that Officer Kentzel did not have “any knowledge of the actual letter at issue in the hearing Next, there is no merit to plaintiff's allegation that defendant and whether or not it had been authored by plaintiff.” Dkt. McKeighan permitted the admission of evidence that was No. 97-10 at 3. purportedly fabricated, and this allegation evinces plaintiff's

misapprehension of the evidence that was provided pursuant Based upon the record evidence, no reasonable juror could to his own request. Plaintiff requested copies of what he find that defendant Whiteford violated plaintiff's due process referred to as “call outs” or “yard go-arounds” for Clinton rights by denying his request to call Officer Kentzel. See which, he asserted, would demonstrate that he was not in Delee v. Hannigan , 729 F. App'x 25, 31 (2018) (“[D]efendants the yard with his co-conspirators during the relevant times. had the right to refuse to hear irrelevant testimony from Dkt. No. 97-5 at 5-6. After defendant McKeighan determined witnesses with no personal knowledge.”) (citing 7 N.Y.C.R.R. that no such documents existed, he instead obtained “program § 253.6(c); Kingsley , 937 F.2d at 30 (2d Cir. 1991) ); see sheets” for the relevant period. Dkt. No. 97-5 at 126-154. also Kalwasinski , 201 F.3d at 109. I note moreover, courts Defendant McKeighan then compiled the information on have been cautioned not to “second guess” a hearing officer's the “program sheets” into a spreadsheet, so that he could decision to deny an inmate's witness requests where the readily ascertain whether plaintiff and his co-conspirators hearing officer articulates a basis for his decision. See Wolff , were together the evening of January 19, 2015. Dkt. No. 418 U.S. at 566 (explaining that courts “should not be too 97-5 at 218; see also Dkt. No. 97-6 at 18-19. The undisputed ready to exercise oversight and put aside the judgment of evidence demonstrates that a meaningful effort was made to prison administrators”). locate the information that plaintiff sought, although it was

not in the precise form requested. *13 Because no reasonable factfinder could conclude that defendant Whiteford violated plaintiff's procedural Finally, to the extent that defendant McKeighan denied due process rights by refusing to call Officer Kentzel, I plaintiff's request for certain video footage, the record is recommend that the claim against him be dismissed. clear that the evidence did not exist inasmuch as it had been

taped over in the normal course of business by the time the conspiracy had been uncovered. Accordingly, because no reasonable factfinder could conclude that defendant

c. Defendant McKeighan McKeighan violated plaintiff's procedural due process rights, I recommend that the claim against him be dismissed. Plaintiff alleges that defendant McKeighan violated his due process rights in connection with the February 2015 Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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caused the unlawful event; or (5) failed to act on information D. Supervisory Liability 18 indicating that unconstitutional acts were occurring. Iqbal v. 18 Hasty , 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other If the above-described recommendation regarding grounds sub nom. Ashcroft v. Iqbal , 556 U.S. 662 (2009); see plaintiff's due process claims is adopted by Senior also Richardson , 347 F.3d at 435; Colon v. Coughlin , 58 F.3d District Judge Sharpe, there is no remaining 865, 873 (2d Cir. 1995); Wright , 21 F.3d at 501. 19 underlying cause of action upon which to hold defendants Annucci and Venettozzi liable in

19 their capacities as supervisors. See Blyden v. Subsequent to issuance of the Second Circuit's Mancusi , 186 F.3d 252, 265 (2d Cir. 1999) decision in Colon , the Supreme Court addressed (“Of course, for a supervisor to be liable the question of supervisory liability in Ashcroft v. under Section 1983, there must have been an Iqbal , 556 U.S. 662 (2009). Although the issue has underlying constitutional deprivation.”); see also, been discussed, the Second Circuit has declined e.g., Caimite v. Venettozzi , 17-CV-0919, 2018 WL to squarely address the impact of Iqbal upon the 6069458, at *5 (Oct. 29, 2018) (Hummel, M.J.), categories of supervisory liability addressed in report and recommendation adopted by 2018 WL Colon. See, e.g., Hogan v. Fischer , 738 F.3d 509, 6068414 (Sharpe, J.). However, this ground has 519 n.3 (2d Cir. 2013) (“We express no view on the not necessarily been advanced by defendants in extent to which [ Iqbal ] may have heightened the support of their motion for summary judgment. See requirements for showing a supervisor's personal generally Dkt. No. 97. involvement with respect to certain constitutional violations[.]” (citation and internal quotation marks

*14 Defendants argue that plaintiff's supervisory liability omitted) ); see also Reynolds v. Barrett , 685 F.3d claim against defendant Annucci must be dismissed because 193, 206 n.14 (2d Cir. 2012) (“ Iqbal has, of course, there is no evidence that he was personally involved in engendered conflict within our Circuit about the the review or determination of plaintiff's appeals. Dkt. continuing vitality of the supervisory liability test No. 97-14 at 29. Defendants further argue that plaintiff's set forth in [ Colon ,] ... [b]ut the fate of Colon is not supervisory liability claims against defendant Venettozzi properly before us[.]”). must be dismissed because there is no proof that he was aware of any alleged underlying constitutional violation. Dkt. No. 97-14 at 30-31. Plaintiff asserts in his cross motion that

2. Defendant Annucci defendant Annucci “did not remedy the wrong acts” and defendant Venettozzi “affirmed or modified” the procedural

Plaintiff alleges that he wrote to defendant “Annucci, making due process violations. See generally Dkt. No. 102. him aware of the [c]onstitutional violations, conducted by his subordinates[,]” but that Annucci “failed to remedy the wrong.” Dkt. No. 102-1 at 2; see also Dkt. No. 72 at 12-14.

1. Supervisory Liability - Generally This allegation is based upon plaintiff having addressed one of his amended appeals to defendant Annucci, as well as one It is well-established that a defendant cannot be liable under additional letter that he sent to defendant Annucci. Dkt. No. section 1983 solely by virtue of being a supervisor, “ ‘and 97-3 at 344 (amended appeal dated March 9, 2015); Dkt No. [liability] cannot rest on respondeat superior.’ ” Richardson v. 97-3 at 348-49 (letter dated April 1, 2015). There is no dispute Goord , 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez that defendant Annucci did not respond to plaintiff's appeal or v. Keane , 341 F.3d 137, 144 (2d Cir. 2003) ); see also letter or undertake any investigation as a result of plaintiff's Wright , 21 F.3d at 501. To establish responsibility on the correspondence. Dkt. No. 97-13 at 2. part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly

It is well settled that Annucci's failure to respond to plaintiff's participated in the challenged conduct; (2) after learning of amended appeal and letter, without more, is not sufficient to the violation through a report or appeal, failed to remedy give rise to personal involvement under section 1983. Cole the wrong; (3) created or allowed to continue a policy or v. New York State Dep't of Corr. & Cmty. Supervision , No. custom under which unconstitutional practices occurred; (4) 14-CV-0539, 2016 WL 5394752, at *22 (Aug. 25, 2016) was grossly negligent in managing the subordinates who (Peebles, M.J. ), report and recommendation adopted by 2016 Barnes v. Annucci, Not Reported in Fed. Supp. (2019)

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WL 5374125 (N.D.N.Y. Sept. 26, 2016) (Sannes, J.); see the evidence. I affirmed the findings of also, e.g., Houston v. Schriro , No. 11-CV-7374, 2014 WL guilt. 6694468, at *14 (S.D.N.Y. Nov. 26, 2014) (“[I]gnoring a prisoner's letter or complaint is insufficient to render an official personally liable.”); Parks v. Smith , No. 08-CV-0586,

Id. at 3-4. As a result, defendant Venettozzi affirmed the 2011 WL 4055415, at *14 (N.D.N.Y. March 29, 2011) finding of guilt, but reduced plaintiff's penalty from 910 days (“A prisoner's allegation that a supervisory official failed to to twelve months of disciplinary SHU confinement. Dkt. No. respond to a grievance is insufficient to establish that official's 97-3 at 12, 341-42; Dkt. No. 97-12 at 4. personal involvement.”). As defendants observe, upon plaintiff's appeal defendant *15 For these reasons, I find that no reasonable factfinder Venettozzi did not identify any constitutional violations, could conclude, based on the record evidence, that defendant including the failure to provide plaintiff with due process of Annucci was personally involved in any of the allegations law. Dkt. No. 97-14 at 30-31. Likewise, I have concluded giving rise to this action. that no reasonable factfinder could conclude that plaintiff's due process rights were violated. See Point III.C, supra. As a result, because no constitutional violation occurred, and there was no wrong to remedy, no supervisory liability can

3. Defendant Venettozzi exist as against defendant Venettozzi. See, e.g., Martin v. With respect to defendant Venettozzi, plaintiff alleges that Oey , No. 16-CV-00717, 2017 WL 6614680, at *10 (Nov. 28, after learning of the violation of his due process rights through 2017) (Dancks, M.J.), report and recommendation adopted his appeal, defendant Venettozzi failed to remedy the wrong. by 2017 WL 6611575 (N.D.N.Y. Dec. 27, 2017) (McAvoy, Dkt. No. 102-1 at 2; see also Dkt. No. 72 at 13. According J.); Toole v. Connell , No. 04-CV-0724, 2008 WL 4186334, to plaintiff, although he alerted defendant Venettozzi as to at *1, 7 (N.D.N.Y. Sep. 10, 2008) (Kahn, J.) (supervisory the constitutional violations by way of a series of appeals, defendant cannot be liable for failing to investigate or correct defendant Venettozzi merely affirmed the disposition, while conduct that has already been found to be not actionable modifying the penalty. Dkt. No. 72 at 13; see also Dkt. No. under section 1983); Lighthall v. Vadlamudi , 04-CV-0721, 97-3 at 340-99. 2006 WL 721568, at *13 (N.D.N.Y. Mar. 17, 2006) (Mordue,

J.) (“Since no constitutional violation occurred and there Here, there is no genuine dispute of material fact was no wrong to remedy, no supervisory liability exists.”); that Venettozzi received and decided plaintiff's appeal Rambaldi v. City of Mount Vernon , 2003 WL 23744272, in connection with the February 27, 2015 disciplinary at *10 (S.D.N.Y. Mar. 31, 2003) (concluding that because determination that was issued by defendant McKeighan. See there was no wrongful conduct, there were “no ‘wrongs’ to generally Dkt. No. 97-12. According to defendant Venettozzi, remedy” by the supervisory defendants).

For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that

After reviewing the entire record defendant Venettozzi was personally involved in any of the of the hearing and considering constitutional deprivations giving rise to this action. all the grounds for overturning or modifying the determination asserted in plaintiff's appeal documents, I found

IV. SUMMARY, ORDER, AND RECOMMENDATION

that the hearing had been properly *16 According to plaintiff, following a series of incidents conducted, plaintiff had been provided that resulted in disciplinary proceedings being brought constitutionally adequate due process against him, defendants violated his First and Fourteenth of law and sufficient opportunity to Amendments rights. Discovery having closed, defendants put on a defense, and the findings of seek dismissal of plaintiff's claims on a variety of grounds, the hearing officer were supported by while plaintiff has cross moved for the entry of summary judgment. Having carefully reviewed the record before the court, defendants are entitled to the entry of summary

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period, meaning that you have seventeen days from judgment dismissing all claims. Accordingly, it is hereby the date the order, report, and recommendation was respectfully mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period

RECOMMENDED that defendants' motion for summary falls on a Saturday, Sunday, or legal holiday, then judgment (Dkt. No. 97) be GRANTED, plaintiff's cross the deadline is extended until the end of the next motion for summary judgment (Dkt. No. 102) be DENIED, day that is not a Saturday, Sunday, or legal holiday. and plaintiff's second amended complaint (Dkt. No. 72) is Fed. R. Civ. P. 6(a)(1)(C).

DISMISSED.

ORDERED that the clerk of the court is respectfully directed NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties to modify the court's records to change defendant Ollies to may lodge written objections to the foregoing report. Such “Anthony Olles”, defendant J. Whitford to “John Whiteford”, objections must be filed with the clerk of the court within and Donald Venetozzi to “Donald Venettozzi”, as set forth in FOURTEEN days of service of this report. 20 FAILURE footnote number one; and it is further

TO SO OBJECT TO THIS REPORT WILL PRECLUDE

ORDERED that the clerk of the court serve a copy of this APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. report and recommendation upon the parties in accordance P. 6(a), 6(d), 72; Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. with this court's local rules. 1993). It is further hereby 20

If you are proceeding pro se and are served with this All Citations order, report, and recommendation by mail, three

Not Reported in Fed. Supp., 2019 WL 1387460 additional days will be added to the fourteen-day End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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1. The Report–Recommendation is hereby adopted in its entirety.

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Only the Westlaw citation is currently available. 2. The defendants' motion for summary judgment (Dkt. No. United States District Court, 46) is granted and the Clerk shall enter judgment accordingly. N.D. New York. 3. The Clerk of the Court shall serve a copy of this Order upon Marc LEWIS, Plaintiff, all parties and the Magistrate Judge assigned to this case. v. MURPHY, Captain, Coxsackie Correctional

IT IS SO ORDERED.

Facility; J. Lewis, Corrections Counselor, Coxsackie Correctional Facility; Matthews, Deputy Superintendent for Administration, Coxsackie REPORT–RECOMMENDATION AND ORDER 1 Correctional Facility; Christopher Miller, Deputy Superintendent for Security, Coxsackie Correctional 1 This matter was referred to the undersigned for Facility; Eric G. Gutwein, Commissioner report and recommendation pursuant to 28 U.S.C. Hearing Officer, N.Y.S., D.O.C.C.S., Defendants. § 636(b) and N.D.N.Y.L.R. 72.3(c). No. 9:12–CV–00268 (NAM/CFH). | CHRISTIAN F. HUMMEL, United States Magistrate Judge. Signed July 24, 2014. Plaintiff pro se Marc Lewis (“Lewis”), an inmate currently in | the custody of the New York State Department of Correctional Filed July 25, 2014. and Community Supervision (“DOCCS”), brings this action Attorneys and Law Firms pursuant to 42 U.S.C. § 1983 alleging that defendants, five DOCCS employees, violated his rights under the Fourteenth

Marc Lewis, Attica, NY, pro se. Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to

Hon. Eric T. Schneiderman, Attorney General for the State Fed.R.Civ.P. 56. Dkt. No. 46. Lewis opposes and defendants of New York, Joshua E. McMahon, Esq., Assistant Attorney replied. Dkt. Nos. 57, 61. For the following reasons, it is General, of Counsel, Albany, NY, for Defendants. recommended that defendants' motion be granted.

ORDER

I. Background NORMAN A. MORDUE, Senior District Judge. The specific facts of the case are set forth in the Report– *1 The above matter comes to me following a Report– Recommendation and Order filed February 28, 2012, Recommendation by Magistrate Judge Christian F. Hummel, familiarity with which is assumed. See Dkt. No. 39 (Report– duly filed on the 27th day of June 2014. Following fourteen Recommendation); Dkt. No. 43 (Memorandum–Decision and (14) days from the service thereof, the Clerk has sent me Order). The facts are related herein in the light most favorable the file, including any and all objections filed by the parties to Lewis as the non-moving party. At all relevant times, herein. Lewis was an inmate at Coxsackie Correctional Facility (“Coxsackie”).

After careful review of all of the papers herein, including the Magistrate Judge's Report–Recommendation, and no objections submitted thereto, it is

A. November 5, 2011 Letter ORDERED that: On November 5, 2011, Lewis was watching television when non-party Correctional Officer Whit (“Whit”) changed the

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channel on the television that Lewis was watching. Dkt. No. his cell to review the misbehavior report and receive inmate 46–9 at 2. Lewis wrote a letter to non-party Superintendent assistance. Compl. ¶ 5. Martuscello (“Martuscello”) complaining about the incident and stated that Whit harassed and intimidated him. Compl. ¶ 1. Lewis indicated that he would “blow the whistle on a lot

1. Inmate Assistance of other wrong doings in this facility if need be.” Dkt. No. 46–9 at 4. Lewis further indicated that he feared correctional

Defendant Corrections Counselor Jackie Lewis (“Counselor officers would retaliate against him because he filed this Lewis”) was assigned as Lewis's employee assistant. Lewis complaint. Id. at 3. Lewis sent a copy of this letter to non- Decl. (Dkt. No. 46–14) ¶ 4. On November 10, 2011, party Commissioner Fisher. Lewis Dep. # 1 (Dkt. No. 46–6) Counselor Lewis arrived at Lewis's cell to help prepare a at 43:8–14. On November 7, 2011, Lewis was taken from his defense for his hearing. Id. ¶ 7. During the meeting, Lewis cell and told by non-party Sergeant Martin that he was being requested that Martuscello and Fischer be called as witnesses placed under keeplock 2 status for threats Lewis made against and asked for the name of the review officer who authorized his keeplock confinement. Id. ¶ 8; Lewis Dep. # 1 at 40:8–16. someone in the administration building. Id. at 27:14–22. At Counselor Lewis indicated that Murphy was the reviewing that time, Lewis had yet to receive a copy of the misbehavior report. Id. at 28:11–15. Based on the content of the November officer and took note of the witnesses whom Lewis wanted to question. Lewis Dep. # 1 at 40:15–17; Dkt. No. 46–15. Lewis 5, 2011 letter, Lewis was charged with making threats and also stated that he requested an explanation of the charges but attempting to bribe and extort personnel. Dkt. No. 46–9 at 1.

Counselor Lewis said she was not going to do that because 2 she was trying to go home. Compl. ¶¶ 7–8. Since Counselor “Keeplock” is a form of disciplinary confinement Lewis did not meet Lewis's standards for assistance, Lewis where an inmate is confined in his cell for the did not sign the inmate assistance form and Counselor Lewis duration of the disciplinary sanction. Gittens v. left the cell at that time. Id. ¶ 8. Counselor Lewis maintains Lefevre, 891 F.2d 38, 39 (2d Cir.1989) (citing that Lewis never asked her for definitions or an explanation N.Y. COMP.CODES R. & REGS. tit. 7, § 251–1.6 of the charges. Lewis Decl. ¶ 9. (2012)). B. Tier III Disciplinary Hearing 2. Hearing Extension *2 On November 10, 2011, Lewis was escorted by non- On November 10, 2011, a request for an extension of the party Correctional Officer Stevenson (“Stevenson”) to attend Tier III disciplinary hearing was filed because Lewis was his disciplinary hearing before defendant Captain Murphy going to be in court from November 14, 2011 to November (“Murphy”). Lewis Dep. # 1 at 34:8–12, 35:12–13. Murphy 18, 2011 and no staff was available to conduct the hearing started the recording, explained the hearing process, and took before that time. Dkt. No. 46–17; Compl. ¶ 10. The request Lewis's plea. Id. at 35:17–22. Lewis advised Murphy that he indicated that defendant Commissioner's Hearing Officer had not been served with a copy of the misbehavior report Gutwein (“Gutwein”) was the hearing officer and that the and had not yet been provided inmate assistance. Compl. ¶ 4; hearing had not commenced. Dkt. No. 46–17. Lewis contends Murphy Decl. (Dkt. No. 46–22) ¶ 8. Murphy attested that he that defendant Deputy Superintendent for Administration immediately stopped the hearing and directed Stevenson to Matthews (“Matthews”) had filed the request. Compl. ¶ 10. provide Lewis with a copy of the misbehavior report and to Lewis believes that the request contained false information arrange for the plaintiff to receive inmate assistance. Murphy because Murphy began the hearing on November 10, 2011 Decl. ¶¶ 8, 11. Lewis also objected to Murphy being the and Lewis was only in court from November 14, 2011 to officer who reviewed the misbehavior report and authorized November 16, 2011. Id. Matthews attested that Lewis is Lewis to be placed in keeplock pending a disciplinary hearing, mistaken about who wrote the report. Matthews Decl. (Dkt. and the hearing officer. Id. ¶ 9. According to DOCCS No. 46–16) ¶¶ 8–10. Matthews explained that although the Directive 4932, 251–2.2(f) Murphy could not serve as both request indicates “Matthew” as the contact person, extension the reviewing and hearing officer on the same misbehavior requests are filed by clerical staff in Coxsackie's Discipline report. Dkt. No. 46–12 at 4. Lewis was then brought back to Office; thus the reference to “Matthew” refers to someone in that office, and not Matthews. Id.

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Hr'g Tr. at 9. Martin explained that Lewis's November 5, *3 Later on November 10, 2011, Lewis wrote a letter 2011 letter contained statements threatening actions if certain to Martuscello explaining his November 5, 2011 letter and demands were not met and Lewis would “blow the whistle objecting to Murphy being the hearing officer. Dkt. No. 46– if need be.” Id. Lewis was afforded an opportunity to direct 19. Martuscello directed defendant Deputy Superintendent questions at Martin through Gutwein. Id. Gutwein denied Miller (“Miller”) to respond to the letter. Miller Decl. (Dkt. Lewis's request to have the definitions of bribery, extortion, No. 46–18) ¶ 7. By letter dated November 15, 2011, Miller and threats because the definitions would be irrelevant to the informed Lewis that Gutwein was assigned as the hearing incident in the report. Id . at 19. officer. Id.; Dkt. No. 46–20.

Gutwein then made a written disposition and found Lewis guilty of the charges based on: (1) the misbehavior report, which stated that Lewis would retaliate if his demands were

3. Hearing on November 21, 2011 not met; (2) review of the November 5, 2011 letter stating that Lewis will retaliate by “blowing the whistle on the wrong

On November 17, 2011, a second request to extend the doings by staff”; (3) Martin's testimony stating that the letters date of the disciplinary hearing to November 21, 2011 was contained an ultimatum; (4) Lewis's Testimony stating that filed because no hearing officer was available to conduct the hearing was commenced previously in an improper and the hearing before that time. Dkt. No. 46–13. On November untimely manner; and (5) Lewis's disciplinary history. Hr'g 21, 2011, Gutwein conducted the disciplinary hearing for Tr. at 20. Gutwein sentenced Lewis to seven months in the Lewis. Hr'g Tr. (Dkt. No. 46–10) at 2. 3 Lewis pleaded not Special Housing Unit (“SHU”), 4 along with seven months guilty to the charges against him. Id. at 3. Lewis objected to: without packages, commissary privileges, phone privileges, (1) Murphy commencing a disciplinary hearing concerning and loss of good time credits. Id. Gutwein's determination and the same misbehavior report on November 10, 2011; (2) sentence was made to impress upon Lewis that it is a serious Murphy being both the reviewing and hearing officer; (3) violation to threaten employees, which would not be tolerated Gutwein commencing the hearing more than seven days after at the correctional facility and that Lewis should modify his placement in keeplock; and (4) Counselor Lewis providing behavior in the future. Gutwein Decl. ¶ 12. inadequate assistance because she did not fulfill his requests. Id. at 4.

4 SHUs exist in all maximum and certain medium 3 security facilities. The units “consist of single- The page numbers following “Hr'g Tr.” refer to occupancy cells grouped so as to provide the pagination of the header numbers generated by separation from the general population ....“ N .Y. CM/ECF, not the individual transcripts. COMP.CODES R. & REGS. tit 7, § 300.2(b). Lewis requested that Counselor Lewis, Murphy, Stevenson, Inmates are confined in a SHU as discipline, Fischer, Martin, and Martuscello be called as witnesses. Hr'g pending resolution of misconduct charges, for Tr. at 8. Lewis also requested that the November 5, 2011 letter administrative or security reasons, or in other be produced as evidence. Id. Gutwein noted for the record that circumstances as required. Id. at pt. 301. the November 5, 2011, letter was placed in the hearing packet and denied Lewis's request to have the log books produced as evidence. Id. at 8, 19. Gutwein denied Lewis's request to

C. SHU conditions call Murphy, Stevenson, and Counselor Lewis as witnesses on relevance grounds as Lewis wanted them to testify to the *4 On November 30, 2011, Lewis received a letter defects of the disciplinary hearing. Gutwein Decl. (Dkt. No. indicating that he had been unsatisfactorily discharged from 46–8) ¶ 28; Hr'g Tr. at 19, 20. Since Gutwein called Martin the Aggression Replacement Training (“ART”) Program to testify to the misbehavior report, Gutwein declined to call because he was going to be in SHU for seven months. Compl. Martuscello and Fischer as witnesses for their testimonies ¶ 39. Nevertheless, Lewis was able to complete this program would have been duplicative. Hr'g Tr. at 8, 19, 20. after his release from SHU. Lewis Dep. # 1 (Dkt. No. 46–6)

at 69:7–14. Gutwein produced Martin and asked him questions concerning the grounds for authoring the misbehavior report. Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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Since Lewis had his telephone privileges taken away, he was Defendants seek summary judgment dismissing the unable to call his sister who was in need of a kidney transplant. complaint in its entirety. Defs.' Mem. of Law (Dkt. No. 46–2) Lewis Dep. # 2 (Dkt. No. 46–7) at 12:6–11. Lewis also stated at 3. Defendants specifically move for summary judgment on he was in the process of filing paperwork to donate a kidney the grounds that: (1) Lewis failed to establish a due process to his sister but being in SHU prevented him from finishing claim; (2) Lewis failed to establish an actionable conspiracy it. Id. at 12:3–5, 13:2–3. By the time Lewis was released from claim; and (3) defendants are entitled to qualified immunity. SHU, his sister had received a transplant. Id. at 13:4–7. Id. Additionally, Matthews moves for summary judgment for

lack of personal involvement. Id. Lewis was also unable to interact with other inmates by attending group activities such as congregational prayer or group chow during his time in SHU. Compl. ¶ 46.

A. Legal Standard Lewis contends that he was “restrained from practicing the prerequisite [rituals] associated with performing his

*5 A motion for summary judgment may be granted if there [religious] prayers” while in SHU because the cells were is no genuine issue as to any material fact if supported by unsanitary, he had to share a cell, the correctional officers affidavits or other suitable evidence and the moving party is gave him showers whenever they wanted, and he was not entitled to judgment as a matter of law. The moving party has given a shower three times a week. Dkt. No. 57 at 15–16. the burden to show the absence of disputed material facts by Lewis claims he was prevented from practicing Islam because informing the court of portions of pleadings, depositions, and Muslims must be “in a state of purification in order to pray” affidavits which support the motion. FED. R. CIV. P. 56(c); and Islamic law states that men must not expose their body Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts from the navel to the knee. Therefore he was restrained from are material if they may affect the outcome of the case as doing “wudu,” a ritual where one must wash their whole body determined by substantive law. Anderson v. Liberty Lobby, in preparation for prayer. Id. at 16. 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

D. Appeal of the Hearing Disposition The party opposing the motion must set forth facts showing Lewis filed an appeal of the hearing disposition. Compl. that there is a genuine issue for trial. The non-moving party ¶ 34. Miller reviewed the appeal and found “the hearing must do more than merely show that there is some doubt or to be without procedural error and the resulting sanctions speculation as to the true nature of the facts. Matsushita Elec. appropriate.” Dkt. No. 46–21. Lewis appealed to non-party Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Albert Prack, the director of the Special Housing/Inmate It must be apparent that no rational finder of fact could find in disciplinary program, who reversed the guilty determination favor of the non-moving party for a court to grant a motion for on the ground that “the evidence used fails to provide enough summary judgment. Gallo v. Prudential Residential Servs., 22 information to support the charges.” Dkt. No. 57 at 49. F.3d 1219, 1223–24 (2d Cir.1994); Graham v. Lewinski, 848 Therefore, after sixty-nine days, Lewis was released from the F.2d 342, 344 (2d Cir.1988). SHU. Compl. ¶ 45.

When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d

II. Discussion Cir.2006). As the Second Circuit has stated, Lewis contends that (1) all defendants deprived him of his [t]here are many cases in which we have said that a pro se Fourteenth Amendment rights by denying him procedural litigant is entitled to “special solicitude,” ... that a pro se due process in connection with the disciplinary hearings litigant's submissions must be construed “liberally,”... and at issue and (2) defendants Miller, Matthews, Murphy, that such submissions must be read to raise the strongest and Gutwein conspired against him to cover up Murphy's arguments that they “suggest,”.... At the same time, our improper commencement of the hearing. cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se

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litigant's allegations, ... or arguments that the submissions of fact. See e.g., Brown v. Artus, 647 F.Supp.2d 190, 200 themselves do not “suggest,” ... that we should not “excuse (N.D.N.Y.2009). frivolous or vexatious filings by pro se litigants,” ... and that pro se status “does not exempt a party from compliance 5

Various courts in the Second Circuit have with relevant rules of procedural and substantive law....” postulated how, if at all, the Iqbal decision affected the five Colon factors which were traditionally

Id. (citations and footnote omitted); see also Sealed Plaintiff used to determine personal involvement. Pearce v. Sealed Defendant # 1, 537 F.3d 185, 191–92 (2d Cir.2008) v. Estate of Longo, 766 F.Supp.2d 367, 376 (“On occasions too numerous to count, we have reminded (N.D.N.Y.2011), rev'd in part on other grounds district courts that ‘when [a] plaintiff proceeds pro se, sub nom., Pearce v. Labella, 473 F. App'x 16 (2d ... a court is obliged to construe his pleadings liberally.’ Cir.2012) (recognizing that several district courts “ (citations omitted)). However, the mere existence of some in the Second Circuit have debated Iqbal 's impact alleged factual dispute between the parties will not defeat an on the five Colon factors); Kleehammer v. Monroe otherwise properly supported motion; the requirement is that Cnty., 743 F.Supp.2d 175 (W.D.N.Y.2010) (holding there be no genuine issue of material fact. Anderson, 477 U.S. that “[o]nly the first and part of the third Colon at 247–48. categories pass Iqbal's muster ....”); D'Olimpio v. Crisafi, 718 F.Supp.2d 340, 347 (S.D.N.Y.2010) (disagreeing that Iqbal eliminated Colon 's personal

B. Personal Involvement involvement standard). Lewis has failed to establish the personal involvement *6 “[P]ersonal involvement of defendants in alleged of defendant Matthews in allegedly depriving him of his constitutional deprivations is a prerequisite to an award of Fourteenth Amendment due process rights by filing a Tier damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 III hearing extension request. Lewis contends that Matthews (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 filed a Tier III hearing extension form that falsely indicated F.2d 880, 885 (2d Cir.1991)). Thus, supervisory officials Gutwein as the hearing officer, the hearing had not yet may not be held liable merely because they held a position commenced, and the dates for which Lewis would be out of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 of the facility for an unrelated trial. Compl. ¶ 10. Matthews (2d Cir.1996). However, supervisory personnel may be attested that the notation “Contact: Matthew” on the extension considered “personally involved” if: request did not refer to him. Rather, the extension requests (1) [T]he defendant participated directly in the alleged are submitted by members of Coxsackie's Discipline Office; constitutional violation; hence, it can be inferred that the notation refers to a clerical staff member in the Discipline Office. Therefore, Matthews (2) the defendant, after being informed of the violation did not participate directly in the alleged constitutional through a report or appeal, failed to remedy the wrong; violation. Matthews Decl. (Dkt. No. 46–16) ¶ 10; Dkt. No. 46–17. Furthermore, Matthews attested that he was not even

(3) the defendant created a policy or custom under aware of Lewis's disciplinary hearing or the extension request which unconstitutional practices occurred, or allowed the until after the lawsuit was filed. Matthews Decl. (Dkt. No. continuance of such a policy or custom; 46–16) ¶ 11. Accordingly, Matthews could not have failed to remedy any wrong after he was informed of the violation

(4) the defendant was grossly negligent in supervising through a report or appeal, since he was never informed of subordinates who committed the wrongful acts; or

any violation. (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating

In addition, Matthews did not exhibit deliberate indifference that unconstitutional acts were occurring. to Lewis's rights by failing to act on information indicating that unconstitutional acts were occurring because Matthews

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) had no information indicating that any wrong was occurring. (citing Williams v. Smith, 781 F.2d 319, 323–24 (2d Matthews also attested that he had no supervisory role Cir.1986)). 5 Assertions of personal involvement that are over Coxsackie's inmate disciplinary program; consequently, merely speculative are insufficient to establish a triable issue Matthews could not have created or allowed the continuation Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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of a policy or custom under which unconstitutional practices Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 occurred. Matthews Decl. ¶ 2. Lastly, since Matthews held no (1989)). The Second Circuit has articulated a two-part supervisory authority over the inmate disciplinary program, test whereby the length of time a prisoner was placed in he could not have been grossly negligent in supervising segregation as well as “the conditions of the prisoner's subordinates who committed the allegedly wrongful acts. Id. segregated confinement relative to the conditions of the Lewis points to no evidence in the record to substantiate general prison population” are to be considered. Vasquez his assertions that Matthews created the extension request. v. Coughlin, 2 F.Supp.2d 255, 259 (N.D.N.Y.1998). This Moreover, Lewis testified in his deposition and indicated in standard requires a prisoner to establish that the confinement his response papers that he voluntarily withdraws his claims or condition was atypical and significant in relation to against Matthews. Lewis Dep. # 2 (Dkt. No. 46–7) at 28; ordinary prison life. See Jenkins v. Haubert, 179 F.3d 19, Resp. (Dkt. No. 57) at 9. It is fair to conclude that a rational 28 (2d Cir.1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d finder of fact would determine that these assertions are merely Cir.1996). speculative and therefore, Lewis cannot establish the personal involvement of Matthews in the alleged unconstitutional While not a dispositive factor, the duration of a disciplinary actions. confinement is a significant factor in determining atypicality.

Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000) (citations *7 Accordingly, defendants' motion on this ground should omitted). The Second Circuit has not established “a bright line be granted. rule that a certain period of SHU confinement automatically

fails to implicate due process rights.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (citations omitted). Instead, the Second Circuit has provided guidelines that “[w]here

C. Fourteenth Amendment the plaintiff was confined for an intermediate duration— between 101 and 305 days—development of a detailed record

The Due Process Clause of the Fourteenth Amendment states of the conditions of confinement relative to ordinary prison that “[n]o State shall ... deprive any person of life, liberty, or conditions is required.” Id. at 64–65 (citing Colon, 215 F.3d property without due process of law.” U.S. CONST. amend. at 232). In the absence of a dispute about the conditions XIV § 1. It is important to emphasize that due process “does of confinement, summary judgment may be issued “as a not protect against all deprivations of liberty. It protects matter of law.” Id. at 65 (citations omitted). Conversely, where only against deprivations of liberty accomplished without due an inmate is confined under normal SHU conditions for a process of the law.” Baker v. McCollan, 443 U.S. 137, 145 duration in excess of an intermediate disposition, the length of (1979) (internal quotation and citations omitted). “A liberty the confinement itself is sufficient to establish atypicality. Id. interest may arise from the Constitution itself, ... or it may (citing Colon, 215 F.3d at 231–32). Also, “[i]n the absence of arise from an expectation or interest created by state laws a detailed factual record, cases in this Circuit typically affirm or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) dismissal of due process claims where the period of time spent (citations omitted). An inmate retains a protected liberty in SHU was short—e.g. 30 days—and there was no indication interest in remaining free from segregated confinement if the [of] ... unusual conditions.” Harvey v. Harder, No. 09–CV– prisoner can satisfy the standard set forth in Sandin v. Conner, 154 (TJM/ATB), 2012 WL 4093792, at *6 (N.D.N.Y. July 31,

515 U.S. 472, 483–84 (1995).

2012) (citing inter alia Palmer, 364 F.3d at 65–66). 6 6

1. Liberty Interest All unpublished opinions cited to by the Court in this Report–Recommendation are, unless To state a claim for procedural due process, there must otherwise noted, attached to this Recommendation. first be a liberty interest which requires protection. See *8 Defendants contend that Lewis has failed to demonstrate generally Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) that he suffered from atypical and significant confinement (“[Procedural] due process questions [are analyzed] in two and therefore cannot establish a protected liberty interest. The steps: the first asks whether there exists a liberty or property Court considers factors such as the length of time the prisoner interest which has been interfered with by the State; the was placed in segregation as well as “the conditions of the second examines whether the procedures attendant upon prisoner's segregated confinement relative to the conditions that deprivation were constitutionally sufficient.”) (citing Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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of the general prison population” to determine whether the prison life in SHU confinement. Vasquez, 2 F.Supp.2d prisoner can establish a liberty interest in remaining free at 259; Frazier, 81 F.3d at 317 (explaining that while from segregated confinement. Palmer, 364 F.3d at 64–65. prisoners in SHU may be deprived of “certain privileges The length of time in which Lewis spent in confinement was that prisoners in the general population enjoy,” there exists sixty-nine days, which is less than an intermediate amount of no liberty interest in remaining a part of the general prison time. As such, the length of time itself cannot determine that population); see also Alvarado v. Halle Hous. Assoc., 152 the confinement was atypical and significant. Therefore, the F.Supp.2d 355, 355 (S.D.N.Y.2001) (finding restrictions Court determines if the confinement is atypical and significant such as loss of phone privileges, one hour of exercise by looking at the conditions of the segregated confinement a day, and three showers per week, fail to meet Sandin compared to ordinary prison conditions. requirements).

*9 Lewis's inability to communicate with the outside world Lewis contends that his confinement was atypical and through phone or post for the purpose of transplanting his significant because he was deprived of: (1) communications kidney to his sister or otherwise is not considered atypical with the outside world; (2) an opportunity to possibly donate because loss of telephone privileges is an aspect of SHU a kidney to his sister; (3) religious practices due to the confinement in New York and courts have held that this unsanitary conditions of his confinement; (4) participation would not violate an inmate's constitutional rights. See Long in the ART program; and (5) interaction with other inmates v. Crowley, No. 09–CV–456(F), 2012 WL 1202181, at *11 during activities like group chow and congressional prayer. 7 (W.D.N.Y. March 22, 2012) (sixty days in keeplock with loss

of telephone and commissary privileges is not a protected Dkt. No. 57 at 12–14. In New York, under “normal SHU liberty interest); Borsock v. Early, No. 03–CV–395 (GLS/ conditions” an inmate is: RFT), 2007 WL 2454196, at *9 (N.D.N.Y. Aug. 22, 2007) (GLS/RFT) (finding that a ninety-day confinement in SHU

7 Lewis may be attempting to raise First Amendment with a ninety-day loss of packages, commissary and telephone claims based on the denial of attendance to privileges is insufficient to raise a liberty interest). congregated services and sanitary conditions of his SHU cell. However, these claims were

Lewis has failed to show that his unsatisfactory discharge not specifically pled in the original complaint. from his ART programming due to his placement in SHU Moreover, Lewis made no attempt to amend his posed an atypical and significant hardship. Compl. ¶ 46; complaint to include these claims. Therefore, the Thompson v. LaClair, No. 08–CV–37 (FJS/DEP), 2009 WL Court addresses these issues as arguments for 2762164, at *8 (N.D.N.Y. Jan. 30, 2009) (plaintiff's inability establishing a liberty interest for purposes of a to participate in ASAT, ART, and MAWP programs not Fourteenth Amendment claim. atypical and significant hardship); Deutsch v. U.S., 943 F.Supp. 276, 280 (W.D.N.Y.1996) (holding that prisoners

placed in a solitary confinement cell, kept in his cell for do not have a protected liberty interest in rehabilitative twenty-three hours a day, permitted to exercise in the prison programs). Moreover, Lewis was able to complete this yard for one hour a day, limited to two showers a week, and program after his release from SHU. Lewis Dep. # 1 at 69:7– denied various privileges available to general population 14. prisoners, such as the opportunity to work and obtain out- of-cell schooling. Visitors were permitted but the frequency

Lewis's claim that his exclusion from group activities posed and duration was less than in general population. The an atypical and significant hardship is also unfounded because number of books allowed in the cell was also limited. SHU confinement usually segregates the inmate from the Colon, 215 F.3d at 230; see also N.Y. COMP.CODES rest of the prison and therefore, the inmate would be unable R. & REGS. tit. 7, §§ 304.1–.14, 305.1–.6 (setting to participate in group activities. Sealey v. Coughlin, 997 forth minimum conditions of SHU confinement). Lewis's F.Supp. 316, 321 (N.D.N.Y.1998) (“plaintiff's administrative confinement was of a similar kind, with twenty-three segregation in SHU was not an atypical and significant hours a day of isolation, an hour of recreation, and denial hardship”); Edmonson v. Coughlin, 21 F.Supp.2d 242, 249, of telephone and commissary privileges. Such a claim 250 (W.D.N.Y.1998) (plaintiff's inability to participate in falls short of establishing a liberty interest as Lewis fails congregate activities such as group counseling, and religious to allege any particular condition or further deprivation outside of those generally applicable to the incidents of

Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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services during his eight months of administrative segregation [due process] rights,” they are still afforded procedural due is not a protected liberty interest). process. Wolff v.. McDonnell, 418 U.S. 539, 556 (1974). A

prisoner is “entitled to advance written notice of the charges Lastly, in his opposition papers to the instant motion, Lewis against him; a hearing affording him a reasonable opportunity claims that the unsanitary conditions of his cell posed an to call witnesses and present documentary evidence; a fair atypical and significant hardship. Lewis contends that he and impartial hearing officer; and a written statement of the was “restrained from practicing the prerequisite [rituals] disposition including the evidence relied upon and the reasons associated with performing his prayers” while in SHU for the disciplinary actions taken.” Sira v.. Morton, 380 F.3d because the cells were unsanitary, he had to share a cell, the 57, 69 (2d Cir.2004) (citations omitted). correctional officers gave him showers at their choosing, and he was not given a shower three times a week. Dkt. No. 57 at 15–16. Lewis contends that his cell always accumulated

a. Written Notice dirt and dust, was cleaned once a week with a dirty sponge without any germicidal cleaning agents, and the water used

In this case, Lewis received proper written notice. An inmate was “black from prior use of 20 or more cells.” Id. must be provided advance written notice of the charges against him at least twenty-four hours before the disciplinary

Courts have found that the denial of a clean cell and personal hearing commences. Wolff, 418 U.S. at 563–64. Notice must hygiene items, as well as double-celling in SHU, do not be written “in order to inform [the inmate] of the charges and constitute an atypical and significant hardship. See Davidson to enable him to marshal the facts and prepare a defense.” v. Murray, 371 F.Supp.2d 361, 364, 369 (W.D.N.Y.2005) Id. at 564. When Lewis was brought to the hearing before (concluding that the denial of hygiene items and cleaning Murphy on November 10, 2011, Lewis had not yet received materials is not an atypical and significant hardship); McNatt written notice of the charges. Murphy attested that once v. Unit Manager Parker, No. 99–CV–1397 (AHN), 2000 WL Lewis stated he did not receive a copy of the misbehavior 307000, at *4, *8 (D.Conn. Jan. 18, 2000) (finding stained, report or inmate assistance, Murphy stopped the hearing smelly mattresses, unclean cell, no cleaning supplies for immediately. Murphy attested that no testimony was taken, toiletries for six days, no shower shoes, and dirty showers he did not review any documentary evidence other than the during SHU confinement do not constitute a constitutional misbehavior report, and did not discuss the statements in the violation of due process); Bolton v. Goord, 922 F.Supp. misbehavior report with Lewis. Murphy Decl. ¶ 16. Lewis 604, 630 (S.D.N.Y.1998) (finding double-celling of inmates was then provided a copy of the misbehavior report and is not considered an atypical and substantial hardship). inmate assistance on the same day. On November 21, 2011, Nevertheless, a finder of fact may conclude that Lewis's cell Gutwein took over Lewis's Tier III disciplinary hearing. Even conditions in conjunction with the denial of three showers assuming Murphy had commenced the hearing, the ultimate a week to constitute an atypical and significant hardship penalty imposed on Lewis was by Gutwein based on the that amount to a protected liberty interest. See, e.g., Welch evidence presented on November 21, 2011. Lewis received a v. Bartlett, 196 F.3d 389, 393 (2d Cir.1999) (stating that copy of the misbehavior report on November 10, 2011, well allegations of “inadequate amounts of toilet paper, soap and in advance of the November 21, 2011 hearing date. As such, cleaning materials, a filthy mattress, and infrequent changes Lewis received advanced written notice of the charges against of clothes” may be a constitutional violation). Drawing every him. inference in Lewis's favor, these conditions were present during the entirety of Lewis's SHU confinement. Moreover,

Accordingly, defendants' motion on this ground should be defendants do not specifically address these allegations with granted. argument or evidence. Therefore the Court will proceed as though Lewis has established a protected liberty interest.

b. Opportunity to Call Witnesses and Present Documentary Evidence 2. Procedural Due Process Lewis contends that he was deprived of an opportunity to call *10 Defendants argue that Lewis was afforded ample due all his requested witnesses and present some documentary process. While inmates are not given “the full panoply of evidence. However, “[i]t is well settled that an official Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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may refuse to call witnesses as long as the refusal is constitutional right to a fair and impartial hearing officer. See, justifiable [such as] ... on the basis of irrelevance or lack of e.g., Sira v. Morton, 380 F.3d 57, 69 (2d Cir.2004). However, necessity.” Scott v. Kelly, 962 F.2d 145, 146–47 (2d Cir.1992). “[t]he degree of impartiality required of prison officials does With respect to documentary evidence, Lewis requested the not rise to the level of that required of judges ... [as i]t is admission of the logbooks as evidence to show that he had well recognized that prison disciplinary hearing officers are already been taken for a disciplinary hearing regarding the not held to the same standard of neutrality as adjudicators same misbehavior report. Hr'g Tr. at 19. Gutwein correctly in other contexts.” Allen v. Cuomo, 100 F.3d 253, 259 (2d denied this request because they were irrelevant to the charges Cir.1996) (citations omitted). The Supreme Court held “that in the misbehavior report and would not have aided in Lewis's the requirements of due process are satisfied if some evidence defense to such charges. Gutwein Decl. ¶¶ 33–34. As for the supports the decision by the [hearing officer] ..” and the November 5, 2011 letter, Gutwein allowed for a copy of it to Second Circuit has held that the test is whether there was “ be placed in the hearing packet as evidence. Hr'g Tr. at 8. ‘reliable evidence’ of the inmate's guilt.” Luna v. Pico, 356

F.3d 481, 487–88 (2d Cir.2004); see also Superintendent, *11 As for witnesses, Gutwein permitted Martin to testify Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). at Lewis's disciplinary hearing but denied the request for Murphy, Stevenson, and J. Lewis on relevance grounds As discussed supra, “[i]t is well settled that an official may because their testimonies would have concerned the alleged refuse to call witnesses as long as the refusal is justifiable defects in the disciplinary hearing rather than the charges [such as] ... on the basis of irrelevance or lack of necessity.” giving rise to the hearing. Gutwein Decl. ¶ 28. Furthermore, Scott v. Kelly, 962 F.2d 145, 146–47 (2d Cir.1992). Therefore, since Martin was to testify to the content of the November Gutwein was within his discretion to deny the calling of 5, 2011 letter, Gutwein denied testimonies from Martuscello certain witnesses and the admission of certain evidence. and Fischer on the grounds that they would be unnecessary and duplicative. Id. ¶ 32. *12 Even though Lewis's guilty determination was reversed,

it is not clear evidence that Gutwein was not a fair and Lewis was provided with an opportunity to question Martin impartial hearing officer. The determination was reversed on through Gutwein. “While inmates do have the right to the grounds that there was insufficient evidence to support question witnesses at their disciplinary hearings, that right the charges, not on any procedural defects. Dkt. No. 57 at 49. is not unlimited and its contours are under the discretion The record shows no indication that Gutwein was biased and of prison officials.” Rivera v.. Wohlrab, 232 F.Supp.2d 117, failed to serve a fair and impartial hearing officer. It is unclear 125 (S.D.N.Y.2002). Thus, Gutwein retained the authority to to the Court how the denial of the requested definitions served administer the questioning in a manner he saw fit. Gutwein as evidence of bias on Gutwein's part. Rather, it is clear from did not permit Lewis to ask every question, but Gutwein the hearing transcript that Gutwein allowed Lewis to state all offered reasoning for the denial of certain questions that of his objections for the record and question Martin as much Lewis wanted to ask. Hr'g Tr. at 9–18. A review of the as he needed to. See generally Hr'g Tr. hearing transcript shows that Lewis was permitted to question Martin rather extensively until Lewis was finished. Id. As Gutwein had reliable evidence of Lewis's guilt, which is such, Lewis was provided an opportunity to call witnesses and presented in his statement of the evidence relied upon. present documentary evidence. Sira, 380 F.3d at 69. Gutwein relied on the statements in the November 5,

2011 letter that stated Lewis would ‘blow the whistle’ on Accordingly, defendants' motion on this ground should be wrongdoings in the facility and Martin's testimony regarding granted. the ultimatums made by Lewis. Hr'g Tr. at 20–21. Lewis had

admitted to writing the November 5, 2011 letter. Id. at 6. Gutwein's determination was made to impress upon Lewis that it is a serious violation to threaten employees, which

c. Fair and Impartial Hearing Officer would not be tolerated at the correctional facility and that he should modify his behavior in the future. Lewis points

Lewis contends that Gutwein was not an impartial hearing to no evidence in the record to show that Gutwein came officer because Gutwein had not allowed Lewis to call his to his determination improperly. As such, despite Lewis's requested witnesses and denied him the standard and legal contentions of bias, the record is clear that there is no definitions of bribery, extortion, and threats. Prisoners have a Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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question of material fact regarding the process that Lewis was Counselor Lewis denies that she was asked to give provided. explanations of the charges and notes that the alleged request

is not indicated on the assistant form. Lewis Decl. ¶ 9; Dkt. Accordingly, defendants' motion on this ground should be No. 46–17. Gutwein had also denied Lewis's request for the granted. definitions of threats, bribery, and extortion during the hearing

on relevance grounds. Taking Lewis's version of events as true, even if Counselor

d. Written Statement of Disposition Lewis failed to provide such definitions of the charges, Lewis does not demonstrate that he was somehow prejudiced as a

It is undisputed that Lewis received a written statement result of this error, and does not show that he was unable of the hearing disposition. On November 21, 2011, Lewis to present a defense or that the outcome of the hearing was present when Gutwein rendered his decision on the would have been different had Counselor Lewis provided misbehavior report. Hr'g Tr. at 20–21. The record indicates such definitions. Clark v. Dannheim, 590 F.Supp.2d 426, 429– that Lewis received a written statement of the evidence relied 31 (W.D.N.Y.2008) (“To establish a procedural due process upon and the reasons for the disciplinary action. Id.; Dkt. No. claim in connection with a prison disciplinary hearing, an 46–11 at 9. Thus, Lewis was provided with a written statement inmate must show that he was prejudiced by the alleged of the Tier III disciplinary hearing disposition. Sira, 380 F.3d procedural errors, in the sense that the errors affected the at 69. outcome of the hearing.” (citation omitted)). Accordingly, defendants' motion on this ground should be Furthermore, Lewis was able to present a defense and granted. pose questions to Martin that evinced an understanding of the charges. See generally Hr'g Tr. at 5–18. For example, Lewis asked Martin whether the November 5, 2011 letter

e. Inmate Assistance contained any threats of harm, which suggests that Lewis had some understanding of what constitutes “threat.” Id. at

“An inmate's right to assistance with his disciplinary hearing 9. Lewis then asked “did I—anything of value to or from— is limited.” Neree v. O'Hara, No. 09–CV–802 (MAD/ATB), Martuscello, yourself or anyone,” which shows that Lewis 2011 WL 3841551, at *13 (N.D.N.Y. July 20, 2011) ( Silva understood the nature of the extortion charge. Id. at 10. Lastly, v. Casey, 992 F.2d 20, 22 (2d Cir.1993)). This Circuit has Lewis asked “did I give or attempt to give—money, gifts,— held that an assistant is constitutionally necessary when the or anything worth—value ... to ... Superintendent Martuscello plaintiff is confined in SHU and unable to marshal evidence and—or—administrator ....“ This demonstrates that Lewis and present a defense. Id. (citation omitted). In such a case, had an understanding of what bribery meant. Id. at 11. the assistant need only perform what the plaintiff would have done but need not go beyond the inmate's instructions. Lewis

Lewis also alleged that Counselor Lewis failed to interview v. Johnson, No. 08–CV–482 (TJM/ATB), 2010 WL 3785771, Martuscello or Fischer but does not show how this would at *10 (N.D.N.Y. Aug. 5.2010) (citing Silva, 992 F.2d at have changed the outcome of the hearing or how this failure 22). Furthermore, “any violations of this qualified right are prejudiced him as a result. Therefore, any shortcomings in reviewed for ‘harmless error.’ “ Clyde v. Schoellkopf, 714 the assistance rendered by Counselor Lewis was harmless F.Supp.2d 432, 437 (W.D.N.Y.2010) (citing Pilgrim v. Luther, error and does not rise to the level of a due process violation. 571 F.3d 201, 206 (2d Cir.2009)). Lewis was confined in SHU Hernandez v. Selsky, 572 F.Supp.2d 446, 455 (S.D.N.Y.2008) from November 7, 2011, onward and thus was entitled to an (plaintiff failed to show how outcome of hearing would have inmate assistant. Dkt. No. 46–12 at 5; N.Y. COMP.CODES been different had employee assistant interviewed witnesses, R. & REGS. tit. 7 § 251–4.1(a)(4). and thus any alleged inadequate assistance was harmless error not warranting denial of summary judgment). Additionally,

*13 Lewis alleges that he was deprived of adequate even though Gutwein failed to provide an explanation of inmate assistance. Lewis first met with his inmate assistant, the charges, Lewis was not prejudiced as a result because Counselor Lewis, on November 10, 2011. According to Gutwein described in his hearing disposition the evidence Lewis, Counselor Lewis refused to give him definitions of he relied upon to determine that Lewis was guilty. An the charges against him and interview potential witnesses. Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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explanation of these charges to Lewis would not have Lewis's Tier III hearing was timely commenced. Although changed the evidence which Gutwein had relied upon. As Lewis's hearing was initially required to commence by such, Lewis's due process claim based on inadequate inmate November 14, 2011, an extension was granted until assistance must fail. November 18, 2011 because Lewis was scheduled to be out

of the facility from November 14, 2011 through November *14 Accordingly, defendants' motion for on this ground 18, 2011, and no staff was available to conduct the hearing should be granted. before that time period. Gutwein Decl. ¶ 21; Dkt. No. 46–

13. A second request was made on November 17, 2011 because no hearing officer was available to conduct plaintiff's hearing until November 21, 2011. Gutwein Decl. ¶ 22; Dkt.

f. Timeliness No. 46–13. DOCCS Central Office Special Housing Unit granted the facility permission to commence Lewis's hearing

Lewis contends that the Tier III disciplinary hearing by November 21, 2011 and the hearing commenced on that concerning the November 7, 2011 misbehavior report was not date. Dkt. No. 46–13. Therefore, the hearing was commenced commenced in a timely manner because his hearing did not in a timely manner in accordance with the pertinent New York begin until November 21, 2011. Where an inmate is confined regulations. pending a disciplinary hearing, the hearing must commence within seven days of his initial confinement and conclude

Accordingly, defendants' motion on this ground should be within fourteen days of the writing of the misbehavior report. granted. N.Y. COMP.CODES R. & REGS. tit. 7 § 251–5.1(a)(b); 8 Dkt. No. 46–12 at 5–6. The Commissioner of Correctional Services or his designee must authorize any delay beyond those time limits. N.Y. COMP.CODES R. & REGS. tit. 7 § D. Conspiracy 251–5.1(a)(b); Dkt. No. 46–12 at 5–6.

Lewis claims that defendants Murphy, Miller, and Gutwein conspired to deny him procedural due process. To establish

8 Section 251–5.1, states that a claim under Section 1985(3), a plaintiff must allege that (a) Where an inmate is confined pending a (1) an agreement existed between two or more state actors to disciplinary hearing or superintendent's hearing, act in concert to inflict an unconstitutional injury on plaintiff, the hearing must be commenced as soon as is and (2) an overt act was committed in furtherance of that reasonably practicable following the inmate's goal. Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324–25 initial confinement pending said disciplinary (2d Cir.2002). Conclusory, vague, and general allegations are hearing or superintendent's hearing, but, in no insufficient to support a conspiracy claim. Ciambriello, 292 event may it be commenced beyond seven days F.3d at 325. Therefore, the plaintiff must provide some details of said confinement without authorization of the of the time, place, and the alleged affects of the conspiracy, commissioner or his designee. which would include facts to demonstrate that there was an (b) The disciplinary hearing or superintendent's agreement between the defendants to achieve some unlawful hearing must be completed within 14 days goal. Warren v. Fischl, 33 F.Supp.2d 171, 177 (E.D.N.Y.1999) following the writing of the misbehavior (citations omitted). report unless otherwise authorized by the commissioner or his designee. Where a delay

In this case, defendants all deny conspiring to cover up the is authorized, the record of the hearing should hearing that was allegedly commenced by Murphy. Lewis reflect the reasons for any delay or adjournment, Dep. # 2 at 1–8; Gutwein Decl. ¶ 39; Miller Decl. ¶ 17; and an inmate should ordinarily be made aware Matthews Decl. ¶ 12; Murphy Decl. ¶ 11. Lewis points to no of these reasons unless to do so would jeopardize evidence in the record to show that there was an agreement institutional safety or correctional goals. between the defendants to deprive him of his constitutional (c) Violation hearings must be completed within rights. Lewis alleges that the defendants conspired to cover seven days of the writing of the misbehavior up Murphy's attempt to start the Tier III disciplinary hearing report. because Murphy could not have served as the hearing officer. N.Y. COMP.CODES R. & REGS. tit. 7 § 251–5.1. Murphy stated that he stopped the hearing once he realized Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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that Lewis had not received a copy of the misbehavior report. their official duties. As such, Lewis's conspiracy claim fails Lewis was provided a copy and the hearing commenced on as a matter of law. November 21, 2011 with Gutwein as the hearing officer. Therefore, there was no wrongdoing on Murphy's part for the Accordingly, defendants' motion on this ground should be defendants to cover up. granted. *15 Lewis alleges that there must have been an agreement to conspire against him because of the alleged discrepancies

E. Qualified Immunity and false statements in the extension requests, Miller's letter ruling on the appeal, and other prison forms. These allegations

Defendants contend that even if Lewis's § 1983 Fourteenth are conclusory and do not provide any evidence that the Amendment and conspiracy claims are substantiated, they defendants made an actual agreement to deprive Lewis of are nevertheless entitled to qualified immunity. Qualified his constitutional rights. Furthermore, as discussed supra, immunity generally protects governmental officials from civil there was no deprivation of Lewis's constitutional rights and liability “insofar as their conduct does not violate clearly therefore there can be no valid conspiracy claim. established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

Moreover, Lewis's conspiracy claim fails on the grounds 457 U.S. 800, 818 (1982); Aiken v. Nixon, 236 F.Supp.2d 211, that it is barred by the intra-corporate conspiracy doctrine. 229–30 (N.D.N.Y.2002) (McAvoy, J.), aff'd, 80 F. App'x 146 The doctrine states that “officers, agents and employees of (2d Cir.2003). However, even if the constitutional privileges a single corporate entity are legally incapable of conspiring “are so clearly defined that a reasonable public official would together.” Nassau Cnty. Employee “L” v. Cnty. of Nassau, know that his actions might violate those rights, qualified ... 345 F.Supp.2d 293, 304 (E.D.N.Y.2004) (internal citations immunity might still be available ... if it was objectively and quotation marks omitted). The doctrine applies when reasonable for the public official to believe that his acts did officers and officials are working in the scope of their official not violate those rights.” Kaminsky v. Rosenblum, 929 F.2d duties. Id. Although the doctrine began in cases involving 922, 925 (2d Cir.1991); Magnotti v. Kuntz, 918 F.2d 364, 367 corporations, the doctrine has been extended where there (2d Cir.1990) (internal citations omitted)). A court must first are allegations of conspiracy between a public entity and its determine whether, if plaintiff's allegations are accepted as employees. Id.; see also Everson v. New York City Transit true, there would be a constitutional violation. Saucier v. Katz, Auth., 216 F.Supp.2d 71, 76 (E.D.N.Y.2002) (collecting 533 U.S. 194, 201 (2001). Only if there is a constitutional cases). This doctrine would therefore exclude conspiracy violation does a court proceed to determine whether the claims against employees of DOCCS working within the constitutional rights were clearly established at the time of the scope of their employment. Hartline v. Gallo, 546 F.3d 95, alleged violation. Aiken, 236 F.Supp.2d at 230. 99, n. 3 (2d Cir.2008) (citations omitted); Little v. City of New York, 487 F.Supp. 426, 441–42 (S.D.N.Y.2007) (citations

*16 Here, the second prong of the inquiry need not be omitted). There is an exception to the doctrine when the addressed with respect to Lewis's Fourteenth Amendment individuals of the conspiracy are “pursuing personal interests and conspiracy claims against the defendants because, as that are separate and apart from the entity.” Nassau Cnty. discussed supra, it has not been shown that defendants Employee “L”, 345 F.Supp.2d at 304. Furthermore, personal violated Lewis's Fourteenth Amendment rights or conspired bias is not considered a personal interest and is not within the against Lewis to violate his Fourteenth Amendment rights. exception to the intra-corporate conspiracy doctrine. Everson, 216 F.Supp.2d at 76 (citations omitted).

Accordingly, defendants' motion on this ground should be granted.

In this case, Lewis's allegations of conspiracy are against defendants who were all employees of DOCCS, which is one public entity, who were acting within the scope of

III. Conclusion their employment when they filed extension requests and other prison forms. Therefore, they are legally incapable of

For the reasons stated above, it is hereby RECOMMENDED conspiring against each other. Lewis makes no allegation that that defendants' motion for summary judgment (Dkt. No. 46) the defendants were pursuing personal interest apart from is GRANTED. Lewis v. Murphy, Not Reported in F.Supp.3d (2014)

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984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may 72, 6(a), 6(e). lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court “within fourteen (14) days after being served with a copy

Dated: June 27, 2014. of the ... recommendation.” N.Y.N.D.L.R. 72 .1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT

All Citations

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

Not Reported in F.Supp.3d, 2014 WL 3729362 PRECLUDE APPELLATE REVIEW. Roldan v. Racette, End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Liao v. Malik, Not Reported in Fed. Supp. (2016)

2016 WL 1128245

Currently pending before the court is a motion brought by the

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defendant Malik requesting the entry of summary judgment Only the Westlaw citation is currently available. dismissing plaintiff's remaining claim. For the reasons set United States District Court, N.D. New York. forth below, I recommend that defendant's motion, which plaintiff has not opposed, be granted.

Shihsiang LIAO, a/k/a Shih- Siang Shawn Liao, Plaintiff,

v. I. BACKGROUND 2 Faisal MALIK, 1 Defendant. 2 In light of the procedural posture of this case, the following recitation is derived from the record

1 The remaining defendant in this action is now before the court, with all inferences and identified in plaintiff's complaint as S. Malik. ambiguities resolved in plaintiff's favor. Terry v. Dkt. No. 1 at 3 . It is clear from his motion Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). papers, however, that defendant's first name is Prior to his release from prison in or about September 2014, "Faisal." See, e.g., Dkt. No. 41-2 at 1 . The clerk Dkt. No. 25, plaintiff was an inmate held in the custody of of the court is respectfully directed to adjust

the DOCCS. 3 See generallyDkt. No. 1. At the times relevant the court's records accordingly. to his remaining claim, plaintiff was confined initially Civil Action No. 9:13-CV-1497 (GTS/DEP) in the Ogdensburg Correctional Facility (“Ogdensburg”), | located in Ogdensburg, New York, and later the Gouverneur Signed 02/26/2016 Correctional Facility (“Gouverneur”), located in Gouverneur, New York. Id. ; Dkt. No. 41–6 at 19. Attorneys and Law Firms 3 It appears that following his release from prison in FOR PLAINTIFF: SHIHSIANG LIAO, Pro se, P.O. Box 472, Wassaic, NY 12592. New York, plaintiff served time in two correctional

facilities in Ohio. Dkt. Nos. 25, 30; see alsoDkt. No.

FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN,

41–6 at 129. New York State Attorney General, The Capitol, KEITH J. On November 19, 2010, plaintiff was issued a series of STARLIN, ESQ., Assistant Attorney General, Albany, NY misbehavior reports accusing him of violating prison rules 12224. arising from conduct occurring while housed in Ogdensburg. Dkt. No. 1 at 4, 21–24; Dkt. No. 41–7. The charges set forth in those misbehavior reports accused the plaintiff

REPORT AND RECOMMENDATION

of (1) soliciting goods or services without consent from the superintendent or his designee; (2) the unauthorized

DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE

exchange of personal items without authorization; (3) possession of contraband; (4) taking state property; (5) *1 This is a civil rights action brought by pro se plaintiff Shihsiang Liao, a former New York State prison inmate providing incomplete, misleading, and/or false statements or information; (6) impersonation; and (7) providing legal who has also identified himself as Shih–Siang Shawn assistance to another inmate without prior approval from the Liao, against four employees of the New York State superintendent or his designee. Dkt. No. 1 at 21–24; Dkt. No. Department of Corrections and Community Supervision (“DOCCS”), including its former commissioner and current 41–7. Those charges were based upon a search of plaintiff's cell, conducted on November 19, 2010, and the resulting acting commissioner, pursuant to 42 U.S.C. § 1983. While confiscation of several prohibited items. Dkt. No. 1 at 4, 21– his complaint contains additional claims, the sole remaining 24; Dkt. No. 41–7;see alsoDkt. No. 41–6 at 17–19. cause of action in this case is asserted against defendant Faisal Malik based on allegations that he denied plaintiff due process Following the issuance of the misbehavior reports, plaintiff while assisting him in preparing for a disciplinary hearing was transferred to a special housing unit (“SHU”) in by failing to interview and obtain witnesses identified by Gouverneur to await a Tier III disciplinary hearing concerning plaintiff. Liao v. Malik, Not Reported in Fed. Supp. (2016)

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the pending charges. 4 Dkt. No. 41–6 at 16, 19. In preparation the exception of the charge of unlawful soliciting. Dkt. No.

41–8 at 28. Based upon that finding, Hearing Officer Abar for the Tier III hearing, defendant Faisal Malik, who at the imposed a penalty that included six months of disciplinary time was a vocational instructor at the facility, was assigned SHU confinement, with a corresponding six-month loss of to assist plaintiff. Dkt. No. 1 at 7; Dkt. No. 41–2 at 1, 6– recreation, packages, commissary, and telephone privileges, 7. After receiving the assignment, defendant Malik met with and additionally recommended that plaintiff forfeit three plaintiff on November 22, 2010. Dkt. No. 41–2 at 7; Dkt. No. months of good time credits. Id. The hearing officer's 41–6 at 28. While the parties generally disagree as to what determination was administratively reversed on May 9, 2012, occurred after their meeting on November 22, 2010, both based upon a review by Corey Bedard, the DOCCS's Acting plaintiff and defendant appear to agree that plaintiff provided Director of Special Housing/Inmate Disciplinary Program. defendant with several names of individuals who he wished Dkt. No. 1 at 38. to have testify on his behalf at the upcoming disciplinary hearing. Dkt. No. 1 at 7; Dkt. No. 41–2 at 7; Dkt. No. 41– 6 at 21. One of the individuals was identified by plaintiff as

II.

PROCEDURAL HISTORY Ronlad Gantt, an inmate in Ogdensburg. Dkt. No. 41–2 at 7. Plaintiff commenced this action on or about December Another potential witness was Tom Lawrence, the facility law 5, 2013. Dkt. No. 1. As defendants, plaintiff's complaint librarian at Ogdensburg. Id. ; see alsoDkt. No. 41–6 at 32. The names K. Trimm, a corrections sergeant; Faisal Malik, a other witnesses plaintiff identified to defendant Malik during civilian employee; Ann Charlebois, the former DOCCS their meeting were (1) May Liao, plaintiff's sister, who lived Acting Superintendent; Brian Fischer, the former DOCCS in Seattle, Washington; (2) Scot Liao, plaintiff's father, who Commissioner; and Anthony J. Annucci, the Acting DOCCS lived in Taiwan; (3) Ronald Abraham, an administrative law Commissioner, and sets forth several causes of action against judge who lived in Brooklyn, New York; (4) Imam Settles, those individuals. See generally id. Upon initial review the Imam assigned to Ogdensburg; and (5) an individual of plaintiff's complaint and accompanying application for plaintiff indicated worked as a volunteer for an organization leave to proceed in forma pauperis (“IFP”), pursuant to 28 called Chan Meditation. Dkt. No. 1 at 26; Dkt. No. 41–2 U.S.C. §§ 1915(e) and 1915A, Chief District Judge Glenn T. at 7; Dkt. No. 41–3. Plaintiff expected that defendant Malik Suddaby issued a decision and order on June 4, 2014, granting would contact each of the individuals and ensure that they plaintiff's IFP application and dismissing all claims with the would be available to testify at the hearing by way of personal exception of plaintiff's procedural due process cause of action appearance, telephone, or written affidavit. Dkt. No. 41–6 at against defendant Malik. Dkt. No. 11. 40–41. On July 9, 2015, following the close of discovery, defendant 4 The DOCCS conducts three types of inmate Malik moved for summary judgment, requesting dismissal disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; of plaintiff's remaining claim against him on a variety see also Hynes v. Squillace, 143 F.3d 653,

of grounds. Dkt. No. 41. That motion, to which plaintiff 655 n.1 (2d Cir. 1998). Tier I hearings address has failed to respond, is now ripe for determination and the least serious infractions and can result in has been referred to me for the issuance of a report and minor punishments such as the loss of recreation recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and privileges. Hynes, 143 F.3d 655 n.1. Tier II hearings

Northern District of New York Local Rule 72.3(c). See involve more serious infractions, and can result in Fed.R.Civ.P. 72(b). penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the

III.

DISCUSSION most serious violations and can result in unlimited SHU confinement and the loss of “good time”

A. Plaintiff's Failure to Oppose Defendant's Motion credits. Id. Before turning to the merits of defendant's motion, a threshold *2 A Tier III hearing was conducted by Hearing Officer issue to be addressed is the legal significance of plaintiff's Randy Abar, beginning on November 30, 2010, to address the failure to oppose defendant's motion, and specifically whether charges lodged in the misbehavior reports dated November that failure should be construed as a consent to the dismissal 19, 2010. Dkt. No. 41–8. On December 2, 2010, at the close of his complaint. of the hearing, plaintiff was found guilty on all counts, with Liao v. Malik, Not Reported in Fed. Supp. (2016)

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Pursuant to Local Rule 7.1(b)(3), by failing to oppose to respond in opposition to the motion to dismiss, I find defendant's motion, plaintiff has effectively consented to the that defendant's motion is facially meritorious. Jackson, 766 granting of the relief sought. That rule provides as follows: F.3d at 194. Accordingly, I recommend that the court grant

defendant's motion on this basis. It should also be noted that there are additional consequences

Where a properly filed motion is flowing from plaintiff's failure to file an opposition to unopposed and the Court determines defendant's Local Rule 7.1(a)(3) Statement of Material that the moving party has met its Facts. Local Rule 7.1 provides, in relevant part, that “[t]he burden to demonstrate entitlement to Court shall deem admitted any properly supported facts the relief requested therein, the non- set forth in the Statement of Material Facts that the moving party's failure to file or serve opposing party does not specifically controvert.” N.D.N.Y. any papers as this Rule requires shall L.R. 7.1(a)(3) (emphasis in original). Courts in this district be deemed as consent to the granting have routinely enforced this rule in cases where a non- or denial of the motion, as the case may movant has failed to properly respond. See, e.g., Elgamil be, unless good cause is shown. v. Syracuse Univ., No. 99–CV–0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure

N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, of forbearance when defending against summary judgment 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district motions. Jemzura v. Public Serv. Comm'n, 961 F.Supp. 406, courts may enter summary judgment in favor of the 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro moving party where the non-moving party fails to respond se litigants, however, does not extend to relieving them of the in opposition, but not without first “ensur[ing] that each ramifications associated with the failure to comply with the statement of material fact is support by record evidence court's local rules. Robinson v. Delgado, No. 96–CV–0169, sufficient to satisfy the movant's burden of production” and 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., “determin[ing] whether the legal theory of the motion is adopting report and recommendation by Hurd, M.J.). Stated sound”). differently, “a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary

In this case, plaintiff has not responded to defendant's judgment.” Latouche v. Tompkins, No. 09–CV–0308, 2011 motion. The motion was properly filed by defendant Malik, WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.). and defendant, through his motion, has met his burden of demonstrating entitlement to the relief requested. With

Here, because plaintiff was warned of the consequences of respect to the question of whether defendant has met his failing to properly respond to defendant's Local Rule 7.1 burden, I note that the “burden of persuasion is lightened Statement, Dkt. No. 41 at 3, and he has failed to do so, such that, in order to succeed, his motion need only be I recommend that the court deem the facts contained in 'facially meritorious.' ” See Rodriguez v. Goord, No. 04–CV– defendant's Local Rule 7.1(a)(3) Statement as having been 0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007) admitted to the extent they are supported by accurate record (Scullin, J., adopting report and recommendation by Lowe, citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see M.J.) (finding that whether a movant has satisfied its burden also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). As to demonstrate entitlement to a dismissal under Local Rule to any facts not contained in defendant's Local Rule 7.1(a) 7.1(b)(3) “is a more limited endeavor than a review of a (3) Statement, in light of the procedural posture of this case, contested motion to dismiss” (citing cases)). 5 the court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of plaintiff. Terry, 336

5 Copies of all unreported decisions cited in this F.3d at 137. document have been appended for the convenience of the pro se plaintiff.

B. Summary Judgment Standard *3 Because defendant has accurately cited both proper Summary judgment motions are governed by Rule 56 of legal authority and evidence in the record supporting the the Federal Rules of Civil Procedure. Under that provision, grounds on which his motion is based, and plaintiff has failed the entry of summary judgment is warranted “if the movant Liao v. Malik, Not Reported in Fed. Supp. (2016)

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shows that there is no genuine dispute as to any material As to the first element, in Sandin v. Conner, 515 U.S. 472 fact and the movant is entitled to judgment as a matter of (1995), the Supreme Court determined that, to establish law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. a liberty interest in the context of a prison disciplinary 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. proceeding resulting in removal of an inmate from the general 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion prison population, a plaintiff must demonstrate that (1) the Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004). A fact state actually created a protected liberty interest in being free is “material” for purposes of this inquiry if it “might affect the from segregation and (2) the segregation would impose an outcome of the suit under the governing law.” Anderson, 477 “atypical and significant hardship on the inmate in relation U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 to the ordinary incidents of prison life.” Sandin, 515 U.S. (2d Cir. 2005). A material fact is genuinely in dispute “if the at 483–84; Tellier, 280 F.3d at 79–80; Hynes, 143 F.3d evidence is such that a reasonable jury could return a verdict at 658. The prevailing view in this circuit is that, by its for the nonmoving party.” Anderson, 477 U.S. at 248. regulatory scheme, the State of New York has created a liberty

interest in remaining free from disciplinary confinement, *4 A party moving for summary judgment bears an initial thus satisfying the first Sandin factor. See, e.g ., LaBounty burden of demonstrating that there is no genuine dispute v. Coombe, No. 95–CV–2617, 2001 WL 1658245, at *6 of material fact to be decided with respect to any essential (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94–CV– element of the claim in issue; the failure to meet this burden 0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; J.). Accordingly, I must next examine whether the allegations Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden related to the conditions of plaintiff's SHU confinement rise to is met, the opposing party must show, through affidavits or the level of an atypical and significant hardship under Sandin. otherwise, that there is a material dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 Atypicality in a Sandin inquiry is normally a question of U.S. at 250. law. 6 Colon v. Howard, 215 F.3d 227, 230–31 (2d Cir.

2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). When deciding a summary judgment motion, a court must “[W]hether the conditions of a segregation amount to an resolve any ambiguities, and draw all inferences, in a light 'atypical and significant hardship' turns on the duration of most favorable to the non-moving party. Anderson, 477 U.S. the segregation and a comparison with the conditions in the at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d general population and in other categories of segregation.” 133, 137–38 (2d Cir. 1998). The entry of summary judgment Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998) (citing is justified only in the event of a finding that no reasonable Brooks v. DiFasi, 112 F.3d 46, 48–49 (2d Cir. 1997)). In cases trier of fact could rule in favor of the non-moving party. Bldg. involving shorter periods of segregated confinement where Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, the plaintiff has not alleged any unusual conditions, however, 507–08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 a court may not need to undergo a detailed analysis of these (finding summary judgment appropriate only when “there can considerations. Arce, 139 F.3d at 336; Hynes, 143 F.3d at 658. be but one reasonable conclusion as to the verdict”). 6 In cases where there is factual dispute concerning the conditions or duration of confinement,

C. Analysis of Plaintiff's Procedural Due Process Claim however, it may nonetheless be appropriate to In his remaining claim, plaintiff contends that defendant submit those disputes to a jury for resolution. Colon Malik deprived him of procedural due process as guaranteed v. Howard, 215 F.3d 227, 230–31 (2d Cir. 2000); under the Fourteenth Amendment while assisting him in

Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). preparing for his Tier III disciplinary hearing. Dkt. No. 1 at 7– 8. To prevail on a section 1983 due process claim arising out

*5 As to the duration of the disciplinary segregation, of a disciplinary hearing, a plaintiff must show that he both restrictive confinement of less than 101 days, on its own, does (1) possessed an actual liberty interest and (2) was deprived not generally rise to the level of an atypical and significant of that interest without being afforded sufficient process. hardship. Davis, 576 F.3d at 133. Accordingly, when the Tellier v. Fields, 280 F.3d 69, 79–80 (2d Cir. 2000); Hynes duration of restrictive confinement is less than 101 days, proof v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. of “conditions more onerous than usual” is required. Davis, Coughlin, 91 F.3d 349, 351–52 (2d Cir. 1996). 576 F.3d at 133 (citing Colon, 215 F.3d at 232–33 n.5). The Liao v. Malik, Not Reported in Fed. Supp. (2016)

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court must examine “the [actual] conditions of [the plaintiff's] approximately four days later; (2) was permitted confinement 'in comparison to the hardships endured by to choose non-legal books to read once per week prisoners in general population, as well as prisoners in when a corrections officer would do rounds with administrative and protective confinement, assuming such a cart of books; (3) was permitted to shower three confinements are imposed in the ordinary course of prison times per week; (4) was provided access to the administration.' ” Davis, 576 F.3d at 134 (quoting Welch outdoors for a period of recreation time one hour v. Bartlett, 196 F.3d 389, 392–93 (2d Cir. 1999)). On the per day; (5) ate three meals per day; and (6) other hand, the Second Circuit has found that disciplinary was allowed to write, send, and receive mail and segregation under ordinary conditions of more than 305 days otherwise correspond with corrections staff by way rises to the level of atypicality. See Colon, 215 F.3d at 231 of “interview slips.” Dkt. No. 41–6 at 119–26. (“Confinement in normal SHU conditions for 305 days is

The procedural safeguards to which a prison inmate is entitled in our judgment a sufficient departure from the ordinary before being deprived of a constitutionally cognizable liberty incidents of prison life to require procedural due process interest are well established under Wolff v. McDonnell, 418 protections under Sandin .”). U.S. 539 (1974). In its decision in Wolff, the Court held that the constitutionally mandated due process requirements

In this instance, although Hearing Officer Abar sentenced include (1) written notice of the charges to the inmate; (2) plaintiff to six months of disciplinary SHU confinement, the opportunity to appear at a disciplinary hearing and a plaintiff testified at his deposition that he served reasonable opportunity to present witnesses and evidence approximately five months, or 150 days, in the SHU, having in support of his defense, subject to a prison facility's been released early for good behavior. Dkt. No. 41–6 at 118. legitimate safety and penological concerns; (3) a written Because this period of disciplinary confinement falls between statement by the hearing officer explaining his decision and 101 and 305 days, in order to determine whether plaintiff the reasons for the action being taken; and (4) in some suffered an atypical hardship, and therefore has been deprived circumstances, the right to assistance in preparing a defense. a liberty interest, the court is required “to articulate specific Wolff, 418 U.S. at 564–69; see also Luna v. Pico, 356 findings of the conditions of the imposed confinement relative F.3d 481, 487 (2d Cir. 2004). To pass muster under the to the ordinary prison conditions[.]” Reynoso v. Selsky, 292 Fourteenth Amendment, it is also required that a hearing F. App'x 120, 123 (2d Cir. 2008). While plaintiff's testimony officer's disciplinary determination garners the support of from his deposition suggests that the conditions of his SHU at least “some evidence.” Superintendent, Mass. Corr. Inst., confinement were not extraordinary in any way, 7 defendant Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at has not provided the court any evidence with respect to the 487–88. conditions of ordinary prison life in support of his motion. Because the court is without this evidence, it cannot undertake

*6 Plaintiff's only contention against defendant Malik is the type of specific fact-finding required to determine, on centered upon the duty under Wolff to provide assistance summary judgment, whether plaintiff suffered an atypical and in preparing a defense. As the Second Circuit has noted, significant hardship during his confinement. See Reynoso, “[p]rison authorities have a constitutional obligation to 292 F. App'x at 123 (reversing the district court where it

provide assistance to an inmate in marshaling evidence and had neglected “to articulate findings as to why the 150– presenting a defense when he is faced with disciplinary day total sentence was not 'atypical and significant' ” and charges.” Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). commenting that “[s]uch a determination is anything but That requirement is particularly acute when an inmate faces simple, and cannot be resolved summarily”). For this reason,

obstacles in defending himself, including “being confined I have assumed, for purposes of this report, that plaintiff full-time to SHU[.]” Eng, 858 F.2d at 897. Although the was deprived of a liberty interest by way of his five-month Second Circuit in Eng specifically declined to define the SHU confinement and have proceeded to analyze whether extent of an assistant's obligations in helping an inmate to defendant Malik provided plaintiff with constitutionally

prepare for a disciplinary hearing, it offered the following adequate assistance prior to his disciplinary hearing. observation: 7 Plaintiff testified that, while confined in the SHU, he (1) requested legal materials from the law Although this is not the occasion to define the assigned assistant's library daily and that they were delivered to him

Liao v. Malik, Not Reported in Fed. Supp. (2016)

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precise role and the contours of the assistant's obligations, such help In support of his motion, defendant Malik, a vocational certainly should include gathering instructor who is periodically assigned to assist inmates evidence, obtaining documents and in connection with disciplinary hearings and has received relevant tapes, and interviewing DOCCS training for serving in that role, has submitted a witnesses. At a minimum, an assistant declaration detailing his efforts to assist plaintiff in mounting should perform the investigatory tasks a defense to the charges against him. See generallyDkt. No. which the inmate, were he able, could 41–2. According to that declaration, after being assigned to perform for himself. the matter, defendant Milak met with plaintiff on November

22, 2010, to discuss the charges against him. Dkt. No. 41– 2 at 6–7. After reviewing the charges and insuring that plaintiff understood them, defendant Malik inquired as to

Id . at 898; accord, Samuels v. Selsky , 166 F. App'x 552, 556 what assistance plaintiff desired. Id. at 7. Liao identified (2d Cir. 2006). 8 several witnesses who he contemplated calling as witnesses at the hearing, including inmate Gantt; Ogdensburg Law

8 The constitutional requirement to provide an Librarian Tom Lawrence; May Liao, plaintiff's sister; Scot assistant to an inmate to aid in preparing for a Liao, plaintiff's father; Ronald Abraham, an administrative disciplinary hearing is echoed in New York by law judge; Imam Settles assigned to Ogdensburg; and an regulation. 7 N.Y.C.R.R. §§ 251–4.1, 251–4.2; unidentified individual who plaintiff referred to as a volunteer see also Brooks v. Prack, 77 F.Supp.3d 301, 315 at Chan Meditation. Id. ; see alsoDkt. No. 41–3. Plaintiff told (W.D.N.Y.2014); Fernandez v. Callens, No. 06– defendant Malik that he would like all of those individuals CV–0506, 2010 WL 4320362, at *9 (W.D.N.Y. to testify at the upcoming hearing, either in person or by Oct. 29, 2010). phone, notwithstanding that plaintiff's sister lived in the State of Washington, plaintiff's father was located in Taiwan, and

The scope of the assistance that must be provided to an Ronald Abraham resided in Brooklyn. Dkt. No. 41–2 at accused inmate, as contemplated under Wolff and Eng, is 7. Uncertain of the extent of his obligation with regard to not unlimited, and clearly does not require the assignment plaintiff's requested witnesses, defendant Malik contacted the of counsel or of the functional equivalent of a private prison disciplinary office and learned that inmate Gantt had investigator. See Samuels, 166 F. App'x at 556 (“The required been released on November 17, 2010. Id. at 8; see alsoDkt. assistance does not equate to legal counsel.”); Fernandez, No. 41–4. Defendant was informed by the disciplinary officer 2010 WL 4320362, at *9 (“The Supreme Court has held on duty that employee assistants are not required to track that a prisoner's right to assistance as a matter of federal down non-inmate potential witnesses outside of the facility or constitutional law is more limited, determining that the to arrange for or schedule the testimony of non-inmates who institutional concerns implicated in prison administration are “outside the correctional facility.” Dkt. No. 41–2 at 8. would not be furthered by entitling inmates to legal counsel in the form of a retained or assigned attorney.”); Gates v. Selsky,

*7 Immediately following his discussion with the No. 02–CV–0496, 2005 WL 2136914, at *6 (W.D.N.Y. Sept. disciplinary office, defendant Malik reports that he returned 2, 2005) (citing cases). The assigned assistant is required to plaintiff's cell and informed him of Gantt's release from only to perform those functions that the plaintiff would have, Ogdensburg, and advised plaintiff that he would have to had he not been hampered through SHU confinement, and provide contact information for the other desired witnesses need not go beyond the inmate's instructions. See Silva v. who were not inmates and/or working in a DOCCS facility. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (“[A]n assistant must Dkt. No. 41–2 at 9. Defendant Malik informed plaintiff “that be assigned to the inmate to act as his surrogate – to do he would then have to tell the hearing officer that he wanted what the inmate would have done were he able.” (emphasis them to testify, that the hearing officer would then decide in original)); accord, Samuels, 166 F. App'x at 556; see also if they could testify, and that if he/she decided to allow Lewis v. Murphy, No. 12–CV–0268, 2014 WL 3729362, at them to testify, their testimony would then be scheduled and *12 (N.D.N.Y. July 24, 2014) (Mordue, J., adopting report arranged.” Id. According to defendant, plaintiff responded by and recommendation by Hummel, M.J.). Significantly, any providing defendant Malik the phone number for his sister, claim of deprivation of assistance is reviewed for harmless and defendant wrote that number down on the assistant form. error. Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009). Liao v. Malik, Not Reported in Fed. Supp. (2016)

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Id. ; Dkt. No. 41–3. Plaintiff also told defendant that he would or investigator for prisoners. Wolff, 418 U.S. at 570; Samuels, obtain the contact information for the other witnesses, aside 166 F. App'x at 556; Gates, 2005 WL 2136914, at *6. Setting from Tom Lawrence, from his sister. Dkt. No. 41–2 at 9– aside plaintiff's unsupported allegations that defendant Malik 10. Plaintiff “did not tell [defendant Malik] that he needed did not assist him in any way, the uncontroverted record assistance with anything else,” and defendant then asked evidence in this case reflects that defendant met with plaintiff plaintiff to sign and date the assistant form, and plaintiff ahead of the hearing, explained to him the charges, asked for complied. Id. at 10. Defendant Malik did not hear anything a list of potential witnesses, clarified his role as plaintiff's further from plaintiff in connection with his assignment as assistant with the disciplinary office, and informed plaintiff plaintiff's assistant. Id. at 10. that he would be responsible for gathering the contact

information for the witnesses that were not employed at Although plaintiff's version of the interaction with defendant Ogdensburg and then requesting them as witnesses during Malik on November 22, 2010, differs to some degree, the the hearing. SeeDkt. No. 41–2. This conduct satisfies the due factual disputes are not material. Plaintiff contends that process to which plaintiff was entitled. In any event, even defendant Malik forced plaintiff to sign the assistant form at assuming defendant Malik's assistance fell short, any error the end of their meeting, which plaintiff alleges lasted only was harmless in light of Hearing Officer Abar's rejection fifteen minutes, by threatening plaintiff with an additional of plaintiff's requests to call the potential witnesses plaintiff misbehavior report for failing to comply with a direct order. alleges defendant Malik should have contacted prior to the Dkt. No. 1 at 7–8; Dkt. No. 41–6 at 23. Additionally, plaintiff hearing. 9 Dkt. No. 41–6 at 99; Dkt. No. 41–8 at 2, 3, 4, 16, 26. alleges that he did not see or speak with defendant Malik again

Based upon the foregoing, I recommend defendant Malik's after their first meeting. Dkt. No. 41–6 at 29. Defendant Malik motion be granted. 10 disputes these allegations by plaintiff. Dkt. No. 41–2 at 9–11. 9 At the hearing, plaintiff did not request to call Imam Even assuming plaintiff's allegations are true – that he was Settles or the individual referred to by plaintiff as a forced to sign the assistant form and did not see or hear from volunteer at for Chan Meditation as witnesses. See defendant Malik again after their first meeting – there is no generallyDkt. No. 41–8. record evidence that supports plaintiff's claims that defendant Malik did nothing to assist him. In fact, on the first day of

10 In light of my recommendation that defendant's the disciplinary hearing, plaintiff was under the impression motion be granted on the merits, I have not that defendant Malik was contacting witnesses for him. Dkt. addressed the additional arguments set forth in his No. 41–6 at 58. While defendant Malik has offered a detailed motion. With respect to whether plaintiff exhausted account of his efforts to provide plaintiff assistance, Dkt. No. the available administrative remedies prior to filing 41–2, plaintiff has failed to adduce any evidence, nor is there this action, however, it is worth noting that there any in the record, that suggests defendant Malik provided is no dispute that plaintiff failed to file a grievance plaintiff with constitutionally inadequate assistance. It is through the DOCCS's inmate grievance program clear from plaintiff's deposition testimony that he expected regarding the alleged inadequate assistance he defendant Malik to undertake the role of plaintiff's advocate received from defendant Malik. Dkt. No. 41–6 at by contacting his requested witnesses, explaining plaintiff's 104. Plaintiff's vague and unsupported allegations circumstances, and arranging for them to testify in person, by that he did not file a grievance because he phone, or by way of a prepared affidavit. Dkt. No. 41–6 at34– “was afraid of retaliation” is not sufficient to 36, 38–41. Additionally, plaintiff expected defendant Malik excuse that failure. See, e.g., Baines v. McGinnis, to arrange a settlement of the misbehavior report between 766 F.Supp.2d 502, 504 (W.D.N.Y.2011) (citing him and facility security to avoid the need for a disciplinary McCloud v. Tureglio, No. 07–CV–0650, 2008 hearing. Id. at 84. WL 1772305, at *11 (N.D.N.Y. Apr. 15, 2008) (Mordue, J., adopting report and recommendation

Plainly, plaintiff's expectations for his assigned assistant were by Lowe, M.J.)). While it is true that an appeal unreasonable and exceeded the constitutional requirements from a disciplinary hearing that raises the precise under Wolff and Eng . Both the Supreme Court and courts procedural infirmities asserted in a section 1983 in this circuit have unequivocally held that the constitution action may be sufficient to exhaust administrative does not require inmate assistants to serve as legal counsel remedies, LaBounty v. Johnson , 253 F.Supp.2d Liao v. Malik, Not Reported in Fed. Supp. (2016)

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has failed to oppose defendant's motion, and I find that it 496, 502 n. 5 (W.D.N.Y.2013), there is no record is facially meritorious, I recommend that it be granted on evidence reflecting whether plaintiff raised his this basis. Moreover, the record before the court, including claim regarding defendant Malik in his appeal a declaration from defendant Malik detailing his efforts on of Hearing Officer Abar's determination that was plaintiff's behalf, demonstrates both that there are no genuine ultimately reversed. It seems unlikely that plaintiff disputes of material fact for trial and that no reasonable would have included this ground as a basis for factfinder could conclude that defendant deprived plaintiff of his appeal in light of his insistence that he did procedural due process. Accordingly, it is hereby respectfully not file a grievance through the facility because of a fear of retaliation and that, by naming a

RECOMMENDED that defendant's motion for summary particular person in a grievance or complaint, he judgment (Dkt. No. 41) be GRANTED and that plaintiff's would be targeted by corrections officers. See Dkt. remaining claim in this action be DISMISSED. No. 41–6 at 138–40, 156–57, 162. Accordingly, while I do not recommend dismissal of defendant's

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties complaint on this basis, and do not intend to may lodge written objections to the foregoing report. Such render any findings on this issue, it does appear objections must be filed with the clerk of the court within likely that plaintiff's complaint is procedurally FOURTEEN days of service of this report. FAILURE barred based on his failure to exhaust the available

TO SO OBJECT TO THIS REPORT WILL PRECLUDE

administrative remedies prior to filing suit. APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

IV.

SUMMARY AND RECOMMENDATION *8 Defendant has moved for summary judgment dismissing the sole remaining claim in this action, relating to plaintiff's

All Citations allegation that he was denied procedural due process as a result of defendant's failure to render proper assistance to Not Reported in Fed. Supp., 2016 WL 1128245 him in preparing for a disciplinary hearing. Because plaintiff End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

ORDERED, that the Report-Recommendation (Dkt. No. 34) is APPROVED and ADOPTED in its ENTIRETY; and it

2007 WL 4555932

is further Only the Westlaw citation is currently available. United States District Court, ORDERED, that Defendants' Motion for summary judgment N.D. New York. (Dkt. No. 32) is GRANTED; and it is further Bashan TAYLOR, Plaintiff, ORDERED, that the Clerk serve a copy of this Order on all v. parties. Dale ARTUS, Superintendent, Clinton Correctional Facility; Lieutenant Armsteal, Tier Two Hearing

IT IS SO ORDERED.

officer; Renown, Correctional Sergeant; Castiron, Correctional Officer; Christian, Correctional Officer; and Mahuta, Correctional Officer., Defendants.

REPORT-RECOMMENDATION

No. 9:05-CV-0271 (LEK/GHL). GEORGE H. LOWE, United States Magistrate Judge. | Dec. 19, 2007. This action has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn,

Attorneys and Law Firms Senior United States District Judge, pursuant to 28 U.S.C. § Bashan Taylor, Ray Brook, NY, pro se. 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Plaintiff Bashan Taylor (“Plaintiff”), currently Hon. Andrew M. Cuomo, Attorney General of the State of an inmate at Adirondack Correctional Facility, commenced New York, Jeffrey P. Mans, Esq., Assistant Attorney General, this pro se civil rights action pursuant to 42 U.S.C. § 1983. of Counsel, Albany, NY. Liberally construed, Plaintiff's Amended Complaint alleges that seven employees of Clinton Correctional Facility

DECISION AND ORDER (“Clinton C.F.”)-Superintendent Dale Artus, Correctional Lieutenant Armsteal, Correction Sergeant Renown, and LAWRENCE E. KAHN, District Judge. Correctional Officers Castiron, Chapman, Christian, and Mahuta (“Defendants”)-violated his rights under the

*1 This matter comes before the Court following a First, Eighth and Fourteenth Amendments when, between Report-Recommendation filed on November 5, 2007, by the approximately August 13, 2004, and June 2, 2005, they Honorable George H. Lowe, United States Magistrate Judge, committed various acts of misconduct, including (1) issuing pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the unjustified misbehavior reports charging him with variety of Northern District of New York. Report-Rec. (Dkt. No. 34). infractions (e.g., burning incense in his cell, not attending a mandatory meal, not responding to “call out[s]” to

Within ten days, excluding weekends and holidays, after a “attend [ ] law library”), (2) not following the proper party has been served with a copy of a Magistrate Judge's procedures at prison disciplinary hearings, resulting in his Report-Recommendation, the party “may serve and file disciplinary convictions, (3) refusing to help him when he specific, written objections to the proposed findings and complained about the aforementioned misbehavior reports recommendations,” FED. R. CIV. P. 72(b), in compliance and disciplinary convictions, (4) threatening to beat him, with L.R. 72.1. No objections have been raised in the allotted (5) denying him access to the facility's law library, and (6) time with respect to Judge Lowe's Report-Recommendation. depriving him of various pieces of his personal property (e.g., Furthermore, after examining the record, the Court has taking money out of his facility bank account due to his determined that the Report-Recommendation is not subject to “[disciplinary] tickets,” and taking various legal papers that attack for plain error or manifest injustice. he had been instructed to leave outside a mess hall). ( See generally Dkt. No. 9 [Plf.'s Am. Compl.].)

Accordingly, it is hereby Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

*2 Currently pending before the Court is Defendants' motion 3

Fed.R.Civ.P. 56(e) (“When a motion for summary for summary judgment pursuant to Rule 56 of the Federal judgment is made [by a defendant] and supported Rules of Civil Procedure. (Dkt. No. 32.) Despite having been as provided in this rule, the [plaintiff] may not twice advised of the potential consequences of failing to rest upon the mere allegations ... of the [plaintiff's] respond to Defendants' motion (Dkt. No. 32, Part 1; Dkt. No. pleading, but the [plaintiff's] response, by affidavits 33), Plaintiff has not responded. For the reasons that follow, or as otherwise provided in this rule, must set forth I recommend that Defendants' motion be granted. In the specific facts showing that there is a genuine issue alternative, I recommend that the Court revoke Plaintiff's in for trial. If the [plaintiff] does not so respond, forma pauperis status as having been improvidently granted, summary judgment, if appropriate, shall be entered and dismiss his Amended Complaint without prejudice to against the [plaintiff].”); see also Matsushita Elec. refiling upon payment of the filing fee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

I. APPLICABLE LEGAL STANDARDS

4 Fed.R.Civ.P. 56(e) (“When a motion for summary A. Legal Standard Governing Unopposed Motion for judgment is made [by a defendant] and supported Summary Judgment Under Rule 56 of the Federal as provided in this rule, the [plaintiff] may not Rules of Civil Procedure rest upon the mere allegations ... of the [plaintiff's] Under Rule 56 of the Federal Rules of Civil Procedure, pleading ....”); Matsushita, 475 U.S. at 585-86; see summary judgment is warranted if “the pleadings, also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, depositions, answers to interrogatories, and admissions on 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party 5

Ross v. McGinnis, 00-CV-0275, 2004 WL is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 1125177, at *8 (W.D.N.Y. Mar.29, 2004) [internal 56(c). In determining whether a genuine issue of material 1 quotations omitted] [emphasis added]. fact exists, the Court must resolve all ambiguities and draw What this somewhat complex burden-shifting standard means all reasonable inferences against the moving party. 2 is that, where a plaintiff has failed to respond to a defendant's motion for summary judgment, “[t]he fact that there has been

1 no response to a summary judgment motion does not ... [by A fact is “material” only if it would have some itself] mean that the motion is to be granted automatically.” 6 effect on the outcome of the suit. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505,

Rather, practically speaking, the Court must (1) determine 91 L.Ed.2d 202 (1986). what material facts, if any, are disputed in the record presented on the defendants' motion, and (2) assure itself that, based

2 Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d on those undisputed material facts, the law indeed warrants Cir.1997) [citation omitted]; Thompson v. Gjivoje, judgment for the defendants. 7 However, where a plaintiff has 896 F.2d 716, 720 (2d Cir.1990) [citation omitted]. failed to respond to a defendant's statements of material fact However, when the moving party has met its initial burden contained in its Statement of Material Facts (a/k/a its “Rule of establishing the absence of any genuine issue of material 7.1 Statement”), the facts as set forth in that Statement will fact, the nonmoving party must come forward with “specific be accepted as true 8 to the extent that (1) those facts are facts showing that there is a genuine issue for trial.” 3 The supported by the evidence in the record, 9 and (2) the non- nonmoving party must do more than “rest upon the mere moving party, if he is proceeding pro se, has been specifically allegations ... of the [plaintiff's] pleading” or “simply show advised of the potential consequences of failing to respond to that there is some metaphysical doubt as to the material the movant's motion for summary judgment. 10 Here, I note facts.” 4 Rather, “[a] dispute regarding a material fact is that Plaintiff has been twice so advised-first by Defendants genuine if the evidence is such that a reasonable jury could on or about December 29, 2006, and then by the Court on or return a verdict for the nonmoving party.” 5 about July 3, 2007. 11 Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

6 citation to evidence in the record supports the

Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). assertion.”) [internal quotation marks and citations 7 omitted]; Govan v. Campbell, 289 F.Supp.2d 289, See Champion, 76 F.3d at 486 (“Such a motion may 295 (N.D.N.Y.2003) (Sharpe, M.J.) (“In this case, properly be granted only if the facts as to which [the plaintiff] did not file a statement of undisputed there is no genuine dispute show that ... the moving facts in compliance with Local Rule 7.1(a)(3). party is entitled to a judgment as a matter of law.”)

Consequently, the court will accept the properly [internal quotation marks and citation omitted]; supported facts contained in the defendants' 7.1 Allen v. Comprehensive Analytical Group, Inc., statement.”) [emphasis added]; Adirondack Cycle 140 F.Supp.2d 229, 232 (N.D.N.Y.2001) (Scullin, & Marine, Inc. v. Am. Honda Motor Co., Inc., C.J.) (stating that, where a plaintiff has failed

00-CV-1619, 2002 U.S. Dist. LEXIS 4386, at to respond to a defendant's motion for summary *2-3, 2002 WL 449757 (N.D.N.Y. Mar. 18, 2002) judgment, “[t]he Court must review the merits (McAvoy, J.) (“Local Rule 7.1 requires a party of Plaintiff's claims”). This requirement (that the opposing summary judgment to respond to the Court determine, as a threshold matter, that the

statement of undisputed material facts submitted movant's motion has merit) is also recognized by by the movant. To the extent such facts are not Local Rule 7.1(b)(3) of the Local Rules of Practice controverted, the properly supported facts will for this Court, which provides that “the nonmoving be taken as true.”) [emphasis added; citation party's failure to file or serve ... [opposition]

omitted]; cf. Fed.R.Civ.P. 83(a)(1) (“A local rule papers ... shall be deemed as consent to the shall be consistent with ... Acts of Congress granting ... of the motion ... unless good cause is and rules adopted under 28 U.S.C. §§ 2072 and shown,” only where the motion has been “properly 2075 [which include the Federal Rules of Civil filed” and “the Court determines that the moving

Procedure] ....”); Fed.R.Civ.P. 56(e) (requiring that, party has met its burden to demonstrate entitlement “if the non-movant does not ... respond [to a to the relief requested therein.” N.D.N.Y. L.R. summary judgment motion], summary judgment, 7.1(b)(3) [emphasis added].

if appropriate, shall be entered against the non- 8 See N.D.N.Y. L.R. 7.1(a)(3) ( “Any facts set forth movant,” and requiring that, as a threshold matter, in the Statement of Material Facts shall be deemed the motion for summary judgment must be “made admitted unless specifically controverted by the and supported as provided in this rule”) [emphasis opposing party.” ). added]. 9 10 See Vermont Teddy Bear Co., Inc. v. 1-800 See Champion v. Artuz, 76 F.3d 483, 486 (2d Beargram Co., 373 F.3d 241, 243 (2d Cir.2004) Cir.1996); cf. N.D.N.Y. L.R. 56.2 (imposing on (“[W]here the non-movant party chooses the movant duty to provide such notice to pro se perilous path of failing to submit a response to opponent). a summary judgment motion, the district court 11 (Dkt. No. 32, Part 1, at 1-2 [Defendants' Notice may not grant the motion without first examining of Motion, filed 12/29/06, specifically advising the moving party's submission to determine if Plaintiff of consequences of failing to respond it has met its burden of demonstrating that no to their motion, including the consequences of material issue of fact remains for trial.... If the

failing to respond to their Rule 7.1 Statement evidence submitted in support of the summary of Material Facts], accord, Dkt. No. 33, at 2-3 judgment motion does not meet the movant's [Order of Court, filed 7/3/07, sua sponte giving burden of production, then summary judgment Plaintiff an additional 30 days in which to respond must be denied even if no opposing evidentiary

to Defendants' motion, and advising him of the matter is presented.... [I]n determining whether the consequences of failing to oppose their motion, moving party has met this burden of showing the including the consequences of failing to respond to absence of a genuine issue for trial, the district their Rule 7.1 Statement of Material Facts].) court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 Statement. It must be satisfied that the

Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

*3 Implied in the above-stated standard is the fact that,

B. Legal Standard Governing Unopposed Motion to where a non-movant fails to respond to a motion for Dismiss for Failure to State a Claim Under Rule 12(b) summary judgment, a district court has no duty to perform (6) of the Federal Rules of Civil Procedure an independent review of the record to find proof of a To the extent that a defendant's motion for summary judgment factual dispute, even if that non-movant is proceeding pro under Rule 56 of the Federal Rules of Civil Procedure se. 12 However, in the event the district court chooses to is based solely on the allegations asserted in a plaintiff's conduct such an independent review of the record, any complaint, such a motion is functionally the same as a verified complaint filed by the plaintiff should be treated as an motion to dismiss for failure to state a claim under Rule affidavit. 13 Here, I note that Plaintiffs' Amended Complaint 12(b)(6). In such a circumstance, “a trial judge may dismiss does not contains a verification pursuant to 28 U.S.C. § for failure to state a cause of action upon motion for 1746. 14 summary judgment.” 15 Here, I note that several portions of Defendants' Memorandum of Law argue that various of

12 Plaintiff's claims should be dismissed due to his failure to state See Amnesty Am. v. Town of W. Hartford, 288 a claim upon which relief may be granted. 16 F.3d 467, 470 (2d Cir.2002) (“We agree with those circuits that have held that Fed.R.Civ.P. 56 does not impose an obligation on a district court to perform

15 Schwartz v. Compagnise General Transatlantique, an independent review of the record to find proof 405 F.2d 270, 273-74 (2d Cir.1968) [citations of a factual dispute.”) [citations omitted]; accord, omitted], accord, Katz v. Molic, 128 F.R.D. 35, Lee v. Alfonso, No. 04-1921, 2004 U.S.App. LEXIS 37-38 (S.D.N.Y.1989) (“This Court finds that ... 21432, 2004 WL 2309715 (2d Cir. Oct. 14, a conversion [of a Rule 56 summary judgment 2004), aff'g, 97-CV-1741, 2004 U.S. Dist. LEXIS motion to a Rule 12(b)(6) motion to dismiss the 20746, at *12-13, 2004 WL 5477530 (N.D.N .Y. complaint] is proper with or without notice to the Feb. 10, 2004) (Scullin, J.) (granting motion for parties.”). summary judgment); Fox v. Amtrak, 04-CV-1144, 16 2006 U.S. Dist. LEXIS 9147, at *1-4, 2006 WL ( See, e.g., Dkt. No. 32, Part 21, at 9-12, 15-20 395269 (N.D.N.Y. Feb. 16, 2006) (McAvoy, J.) [Defs.' Mem. of Law].) (granting motion for summary judgment); Govan Moreover, I note that, even where a defendant has not v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. advanced such a failure-to-state-a-claim argument on a Oct.29, 2003) (Sharpe, M.J.) (granting motion for motion for summary judgment, a district court may, sua summary judgment); Prestopnik v. Whelan, 253 sponte, address whether a pro se prisoner has failed to state a F.Supp.2d 369, 371-372 (N.D.N.Y.2003) (Hurd, claim upon which relief may be granted. 17

J.).

13 See Patterson v. County of Oneida, 375 F.3d 17 The authority to conduct this sua sponte analysis is 206, 219 (2d. Cir.2004) (“[A] verified pleading ... derived from two sources: (1) 28 U.S.C. § 1915(e) has the effect of an affidavit and may be relied (2)(B)(ii), which provides that “the court shall upon to oppose summary judgment.”); Fitzgerald dismiss [a] case [brought by a prisoner proceeding v. Henderson, 251 F.3d 345, 361 (2d Cir.2001) in forma pauperis ] at any time if the court (holding that plaintiff “was entitled to rely on determines that ... the action ... is frivolous or [his verified amended complaint] in opposing malicious[,] ... fails to state a claim on which summary judgment”), cert. denied, 536 U.S. 922, relief may be granted[,] ... or ... seeks monetary 122 S.Ct. 2586, 153 L.Ed.2d 776 (2002); Colon relief against a defendant who is immune from v. Coughlin, 58 F.3d 865, 872 (2d Cir.1993) (“A such relief”; and (2) 28 U.S.C. § 1915A(b), which verified complaint is to be treated as an affidavit for provides that, “[o]n review, the court shall ... summary judgment purposes.”) [citations omitted]. dismiss the [prisoner's] complaint, or any portion 14 of the complaint, if the complaint ... is frivolous, (Dkt. No. 1.) malicious, or fails to state a claim upon which relief may be granted ....”

Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

For these reasons, it is appropriate to briefly summarize requirement of disclosing sufficient information to the recently clarified legal standard governing Rule 12(b) put defendant on fair notice); In re Methyl Tertiary (6) motions to dismiss. Under Rule 12(b)(6) of the Federal Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348, Rules of Civil Procedure, a defendant may move to dismiss a 370 (S.D.N.Y.2005) ( “Although Rule 8 does not complaint for “failure to state a claim upon which relief can be require plaintiffs to plead a theory of causation, it granted.” Fed.R.Civ.P. 12(b)(6). It has long been understood does not protect a legally insufficient claim [under that a defendant may base such a motion on either or both Rule 12(b)(6) ].”) [citation omitted]; Util. Metal of two grounds: (1) a challenge to the “sufficiency of the Research & Generac Power Sys., 02-CV-6205, pleading” under Rule 8(a)(2); 18 or (2) a challenge to the legal 2004 U.S. Dist. LEXIS 23314, at *4-5, 2004 WL

2613993 (E.D.N.Y. Nov. 18, 2004) (distinguishing cognizability of the claim. 19 between the legal sufficiency of the cause of action under Rule 12[b][6] and the sufficiency

18 See 5C Wright & Miller, Federal Practice and of the complaint under Rule 8[a] ); accord, Procedure § 1363 at 112 (3d ed. 2004) (“A Straker v. Metro Trans. Auth., 331 F.Supp.2d 91, motion to dismiss for failure to state a claim for 101-02 (E.D.N.Y.2004); Tangorre v. Mako's, Inc., relief under Rule 12(b)(6) goes to the sufficiency 01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at of the pleading under Rule 8(a)(2).”) [citations *6-7, 2002 WL 313156 (S.D.N.Y. Jan. 30, 2002) omitted]; Princeton Indus., Inc. v. Rem, 39 B.R. (identifying two sorts of arguments made on a Rule 140, 143 (Bankr.S.D.N.Y.1984) (“The motion 12[b][6] motion-one aimed at the sufficiency of the under F.R.Civ.P. 12(b)(6) tests the formal legal pleadings under Rule 8[a], and the other aimed at sufficiency of the complaint as to whether the the legal sufficiency of the claims). plaintiff has conformed to F.R.Civ.P. 8(a)(2) which Rule 8(a)(2) requires that a pleading include “a short and plain calls for a ‘short and plain statement’ that the statement of the claim showing that the pleader is entitled to pleader is entitled to relief.”); Bush v. Masiello, relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must “give the 55 F.R.D. 72, 74 (S.D.N.Y.1972) (“This motion defendant fair notice of what the plaintiff's claim is and the under Fed.R.Civ.P. 12(b)(6) tests the formal legal grounds upon which it rests.” 20 The purpose of this rule is sufficiency of the complaint, determining whether to “facilitate a proper decision on the merits.” 21 A complaint the complaint has conformed to Fed.R.Civ.P. 8(a) (2) which calls for a ‘short and plain statement that that fails to comply with this rule “presents far too a heavy the pleader is entitled to relief.’ ”). burden in terms of defendants' duty to shape a comprehensive

defense and provides no meaningful basis for the Court to 19 See Swierkiewicz v. Sorema N.A., 534 U.S. 506, assess the sufficiency of [plaintiff's] claims.” 22 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“These allegations give respondent fair notice of what

20 Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 125 petitioner's claims are and the grounds upon which S.Ct. 1627, 1634, 161 L.Ed.2d 577 (2005) (holding they rest.... In addition, they state claims upon

that the complaint failed to meet this test) (quoting which relief could be granted under Title VII and Conley v. Gibson, 355 U.S. 41, 47 [1957] ); see also the ADEA.”); Wynder v. McMahon, 360 F.3d 73, Swierkiewicz, 534 U.S. at 512 (quoting Conley, 80 (2d Cir.2004) (“There is a critical distinction 355 U.S. at 47); Leatherman v. Tarrant County between the notice requirements of Rule 8(a)

Narcotics Intelligence and Coordination Unit, 507 and the requirement, under Rule 12(b)(6), that a U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 plaintiff state a claim upon which relief can be (1993) (quoting Conley, 355 U.S. at 47). granted.”); Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir.2002) (“Of course, none of this is to say that

21 See Swierkiewicz, 534 U.S. at 514 (quoting Conley, a court should hesitate to dismiss a complaint when 355 U.S. at 48). the plaintiff's allegation ... fails as a matter of law.”) 22 [citation omitted]; Kittay v. Kornstein, 230 F.3d

Gonzales v. Wing, 167 F.R.D. 352, 355 531, 541 (2d Cir.2000) (distinguishing between (N.D.N.Y.1996) (McAvoy, J.), aff'd, 113 F.3d a failure to meet Rule 12[b][6]'s requirement 1229 (2d Cir.1997) (unpublished table opinion). of stating a cognizable claim and Rule 8[a]'s Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

Consistent with the Second Circuit's application of after Swierkiewicz, of certain cases from within § 0.23 of the Rules of the U.S. Court of Appeals the Second Circuit interpreting Rule 8(a)(2). See for the Second Circuit, I cite this unpublished table Khan v. Ashcroft, 352 F.3d 521, 525 (2d Cir.2003) opinion, not as precedential authority, but merely (relying on summary affirmances because “they to show the case's subsequent history. See, e.g., clearly acknowledge the continued precedential Photopaint Tech., LLC v. Smartlens Corp., 335 F.3d effect” of Domond v. INS, 244 F.3d 81 [2d 152, 156 (2d Cir.2003) (citing, for similar purpose, Cir.2001], after that case was “implicitly overruled unpublished table opinion of Gronager v. Gilmore by the Supreme Court” in INS v. St. Cyr, 533 U.S. Sec. & Co., 104 F.3d 355 [2d Cir.1996] ). 289 [2001] ).

The Supreme Court has long characterized this pleading *4 Most notably, in the recent decision of Bell Atl. requirement under Rule 8(a)(2) as “simplified” and Corp. v. Twombly, the Supreme Court, in reversing an “liberal,” and has repeatedly rejected judicially established appellate decision holding that a complaint had stated a pleading requirements that exceed this liberal requirement. 23 claim upon which relief could be granted, “retire[d]” the

famous statement by the Court in Conley v. Gibson, 355 However, it is well established that even this liberal notice U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that pleading standard “has its limits.” 24 As a result, several “a complaint should not be dismissed for failure to state Supreme Court and Second Circuit decisions exist, holding a claim unless it appears beyond doubt that the plaintiff that a pleading has failed to meet this liberal notice pleading can prove no set of facts in support of his claim which standard. 25 would entitle him to relief.” --- U.S. ----, ---- - ----, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007). 26 Rather than

23 See, e.g., Swierkiewicz, 534 U.S. at 513-14 (noting turning on the conceivability of an actionable claim, the Court that “Rule 8(a)(2)'s simplified pleading standard clarified, the Rule 8 standard turns on the “plausibility” of applies to all civil actions, with limited exceptions an actionable claim. Id. at 1965-74. More specifically, the [including] averments of fraud or mistake.”). Court held that, for a plaintiff's complaint to state a claim, his “[f]actual allegations must be enough to raise a right

24 2 Moore's Federal Practice § 12.34[1][b] at 12-61 to relief above the speculative level [to a plausible level],” (3d ed.2003). assuming, of course, that all the allegations in the complaint 25 are true. Id. at 1965 [citations omitted]. What this means, on See, e.g., Bell Atl. Corp. v. Twombly, ---U.S. ----, a practical level, is that there must be “plausible grounds to ---- - ----, 127 S.Ct. 1955, 1964-74, 167 L.Ed.2d infer [actionable conduct],” or, in other words, “enough fact 929 (2007) (pleading did not meet Rule 8[a] to raise a reasonable expectation that discovery will reveal [2]'s liberal requirement), accord, Dura Pharm., evidence of [actionable conduct].” Id. 125 S.Ct. at 1634-35, Christopher v. Harbury, 536 U.S. 403, 416-22, 122 S.Ct. 2179, 153

26 L.Ed.2d 413 (2002), Freedom Holdings, Inc. v. The Court in Twombly further explained: “The Spitzer, 357 F.3d 205, 234-35 (2d Cir.2004), phrase is best forgotten as an incomplete, negative Gmurzynska v. Hutton, 355 F.3d 206, 208-09 gloss on an accepted pleading standard: once (2d Cir.2004). Several unpublished decisions exist a claim has been adequately stated, it may be from the Second Circuit affirming the Rule 8(a) supported by showing any set of facts consistent (2) dismissal of a complaint after Swierkiewicz. with the allegations in the complaint.... Conley, See, e.g., Salvador v. Adirondack Park Agency then, described the breadth of opportunity to of the State of N.Y., No. 01-7539, 2002 WL prove what an adequate complaint claims, not the 741835, at *5 (2d Cir. Apr.26, 2002) (affirming minimum standard of adequate pleading to govern pre- Swierkiewicz decision from Northern District a complaint's survival.” Twombly, 127 S.Ct. at of New York interpreting Rule 8[a][2] ). Although 1969. these decisions are not themselves precedential

Having said that, it should be emphasized that, “[i]n authority, see Rules of the U.S. Court of Appeals reviewing a complaint for dismissal under Rule 12(b)(6), the for the Second Circuit, § 0.23, they appear to court must accept the material facts alleged in the complaint acknowledge the continued precedential effect, as true and construe all reasonable inferences in the plaintiff's Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

favor.” 27 Moreover, it should be noted that “[t]his standard 853203, at *3 (S.D.N.Y. Feb.9, 2007); Lopez v.

Wright, 05-CV-1568, 2007 WL 388919, at *3, is applied with even greater force where the plaintiff alleges n. 11 (N.D.N.Y. Jan.31, 2007) (Mordue, C.J., civil rights violations or where the complaint is submitted pro adopting report-recommendation of Lowe, M.J.); se.” 28 In other words, while all pleadings are to be construed Richards v. Goord, 04-CV-1433, 2007 WL 201109, liberally, pro se civil rights pleadings are generally to be at *5 (N.D.N.Y. Jan.23, 2007) (Kahn, J., adopting construed with an extra degree of liberality. Indeed, generally report-recommendation of Lowe, M.J.); Ariola v. “courts must construe pro se pleadings broadly, and interpret Onondaga County Sheriff's Dep't., 04-CV-1262, them to raise the strongest arguments that they suggest.” 29 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan.10, In addition, when addressing a pro se complaint, generally a 2007) (Hurd, J., adopting report-recommendation district court “should not dismiss without granting leave to of Lowe, M.J.); Collins, 2007 WL 37404, at amend at least once when a liberal reading of the complaint *4 (Kahn, J., adopting report-recommendation of gives any indication that a valid claim might be stated.” 30 Lowe, M.J.). However, when a plaintiff is proceeding pro se, “all normal 32 Cuoco, 222 F.3d at 112 (finding that repleading rules of pleading are not absolutely suspended.” 31 For would be futile) [citation omitted]; see also Cortec example, an opportunity to amend should be denied where Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, “the problem with [plaintiff's] causes of action is substantive” 48 (2d Cir.1991) (“Of course, where a plaintiff such that “[b]etter pleading will not cure it.” 32 is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with

27 prejudice.”) (affirming, in part, dismissal of claim Hernandez v. Coughlin, 18 F.3d 133, 136 (2d with prejudice) [citation omitted]. Cir.1994) (affirming grant of motion to dismiss) [citation omitted]; Sheppard v. Beerman, 18 F.3d

Finally, it is important to observe that “[w]here a properly 147, 150 (2d Cir.1994). filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement 28 Hernandez, 18 F.3d at 136 [citation omitted]; see to the relief requested therein, the non-moving party's failure also Deravin v. Kerik, 335 F.3d 195, 200 (2d to file or serve any papers as required by this Rule shall be Cir.2003) [citations omitted]; Vital v. Interfaith deemed as consent to the granting or denial of the motion, Med. Ctr., 168 F.3d 615, 619 (2d Cir.1999) [citation as the case may be, unless good cause be shown.” N.D.N.Y. omitted]. L.R. 7.1(b)(3). The Court's consideration of whether a movant 29 has met its burden “to demonstrate entitlement” to the Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000) relief requested under Local Rule 7 .1(b)(3) is a more (finding that plaintiff's conclusory allegations of a limited endeavor than a consideration of a contested motion due process violation were insufficient) (internal requesting such relief. 33 quotation and citation omitted). 30 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) 33 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 (internal quotation and citation omitted); see also U.S. Dist. LEXIS 16258, at *7-8, 2003 WL Fed.R.Civ.P. 15(a) (leave to amend “shall be freely 22143709 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) given when justice so requires”). (before an unopposed motion to dismiss may be 31 Stinson v. Sheriff's Dep't of Sullivan County, 499 granted under Local Rule 7.1[b][3], “the court must review the motion to determine whether F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980); accord, it is facially meritorious” ) (emphasis added) Standley v. Dennison, 05-CV-1033, 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. Aug.21, 2007) (citations omitted); Race Safe Sys., Inc. v. Indy (Sharpe, J., adopting report-recommendation of Racing League, 251 F.Supp.2d 1106, 1109-10 Lowe, M.J.); Muniz, 2007 WL 2027912, at *2 (N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and (McAvoy, J., adopting report-recommendation of Lowe, M.J.); DiProjetto v. Morris Protective Serv., whether record supported plaintiff's claims, in 489 F.Supp.2d 305, 307 (W.D.N.Y.2007); Cosby deciding unopposed motion to dismiss, under Local v. City of White Plains, 04-CV-5829, 2007 WL Rule 7.1[b][3] ); see also Wilmer v. Torian, 96-

Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2, had been taken against him. ( See Dkt. No. 32, Part 21, at 9-20 1997 WL 640982 (N.D.N.Y. Aug. 29, 1997) (Hurd, [Defs.' Mem. of Law].) I will address each of these arguments M.J.) (applying prior version of Rule 7.1[b] [3], in turn (to the extent that I need to do so). but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the

A. Whether Plaintiff's Amended Complaint Should Be reasons set forth in defendants' motion papers), Dismissed Due to a Failure to Exhaust His Available adopted by 1997 U.S. Dist. LEXIS 16340, at *2 Administrative Remedies (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Defendants correctly recite the law governing prisoners' Carter v. Superintendent Montello, 95-CV-989, exhaustion of available administrative remedies. ( See Dkt. 1996 WL 589372, 1996 U.S. Dist. LEXIS 15072, at No. 32, Part 21, at 9-11 [Defs.' Mem. of Law].) *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).

The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners who bring suit in federal court must first

II. ANALYSIS

exhaust their available administrative remedies: “No action *5 Because Plaintiff has failed to respond to Defendants' shall be brought with respect to prison conditions under § motion (despite having been twice advised of the adverse 1983 ... by a prisoner confined in any jail, prison, or other consequences of failing to so respond), the task before the correctional facility until such administrative remedies as are Court is to determine whether Defendants have met their available are exhausted.” 42 U .S.C. § 1997e. lightened burden on their motion. See, supra, Parts I.A., I.B. of this Report-Recommendation.

The Second Circuit has held that a three-part inquiry is appropriate where a defendant contends that a prisoner has

Defendants' motion is premised on the following five legal failed to exhaust his available administrative remedies, as arguments, which are set forth in their Memorandum of required by the PLRA. See Hemphill v. State of New York, Law: (1) all of Plaintiff's claims should be dismissed because 380 F.3d 680, 686, 691 (2d Cir.2004). First, “the court he failed to allege facts plausibly suggesting, and/or failed must ask whether [the] administrative remedies [not pursued to adduce any evidence establishing, that he exhausted his by the prisoner] were in fact ‘available’ to the prisoner.” available administrative remedies before filing this action Hemphill, 380 F.3d at 686 [citation omitted]. Second, if in federal court; (2) Plaintiff's due process claim (under those remedies were available, “the court should ... inquire the Fourteenth Amendment) should be dismissed because as to whether [some or all of] the defendants may have (a) he has adduced no evidence that he had a liberty forfeited the affirmative defense of non-exhaustion by failing interest protected by the Fourteenth Amendment, and (b) to raise or preserve it ... or whether the defendants' own in any event, he has adduced no evidence that he was not actions inhibiting the [prisoner's] exhaustion of remedies afforded all the process that he was due at his disciplinary may estop one or more of the defendants from raising the hearings; (3) Plaintiff's deprivation-of-property claim (under plaintiff's failure to exhaust as a defense.” Id. [citations the Fourteenth Amendment) should be dismissed because omitted]. Third, if the remedies were available and some (a) he fails to allege facts plausibly suggesting that any of the defendants did not forfeit, and were not estopped Defendant was personally involved in the deprivation of his from raising, the non-exhaustion defense, “the Court should property, and (b) in any event, he fails to adduce evidence consider whether ‘special circumstances' have been plausibly establishing that he availed himself of the state-provided post- alleged that justify the prisoner's failure to comply with the deprivation remedy for such a deprivation of property, i.e., administrative procedural requirements.” Id. [citations and the filing of an action in the New York State Court of Claims; internal quotations omitted]. (4) Plaintiff's denial-of-access-to-the-courts claim (under the First Amendment) should be dismissed because he has failed to allege facts plausibly suggesting that he suffered any injury

1. Availability as a result of that denial; and (5) any retaliation claim (under *6 Defendants do not, in their motion papers, offer the First Amendment) that Plaintiff is attempting to assert specific evidence (such as the affidavit of the supervisor or should be dismissed because he has failed to allege facts coordinator of the Clinton C.F. Inmate Grievance Program) plausibly suggesting that he had been engaging in activity that that, during the time in question, there was a working is protected by the First Amendment before adverse action grievance program specifically at Clinton C.F. Granted, in his Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

original Complaint, which was verified, Plaintiff answered plaintiff's original complaint was verified ... and he “yes” to the question, “Is there a prisoner grievance procedure amended his complaint in response to this court's at [Clinton Correctional Facility]?” (Dkt. No. 1, ¶ 4.a. order, this court will liberally construe the amended [Plf.'s Verified Compl., dated 2/22/04].) Ordinarily, a sworn complaint to be verified as well.”), rev'd on other allegation such as this is sufficient to constitute evidence grounds, 188 F.3d 513 (9th Cir.Cal.1999). Here, I for purposes of a motion for summary judgment. 34 The note that Plaintiff's unsworn Amended Complaint

(which was filed in response to the Court's Order, problem is that, after making this sworn allegation in his and which alleges that Defendant Artus did not help original Complaint, Plaintiff filed an Amended Complaint Plaintiff after receiving one or more writings from which was not verified (and which, in any event, made no Plaintiff) appears consistent with Plaintiff's sworn such allegation). It is rather well settled that an amended original Complaint (which specifically alleges that, complaint supersedes the original complaint for all pleading during the time in question, there was a grievance purposes (unless the amended complaint has incorporated program available at Clinton C.F.). ( Compare Dkt. a portion of the original complaint by specific reference). No. 9, ¶ 1 [Plf.'s Am. Compl.] with Dkt. No. 1, ¶ However, it appears to be a matter of some dispute whether 4.a. [Plf.'s Compl.].) an unsworn amended complaint renders a sworn original complaint as without any evidentiary value whatsoever for

Fortunately for Defendants, the Court need not resolve this purposes of a summary judgment motion. 35 issue in order to decide Defendants' motion. This is because, in order for Defendants to meet their modest threshold burden with respect to this first inquiry on a motion for

34 See, supra, note 13 of this Report- summary judgment, it does not appear that they need to Recommendation. adduce evidence that, during the time in question, there 35 was a working grievance program specifically at Clinton On the one hand, there are cases holding that C.F. Rather, it appears sufficient for a defendant to adduce an unsworn amended complaint renders a sworn evidence merely that, during the time in question, the New original complaint as without evidentiary value York State Department of Correctional Services (“DOCS”) for purposes of a summary judgment motion. See, had available to inmates, in general, an Inmate Grievance e.g., Hatcher v. Fields, No. 96-7085, 1997 WL Program. 36 Here, Defendants have adduced at least some 431784, at *2, n. 2 (10th Cir. Aug.1, 1997); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994). On the evidence of such a fact. 37 other hand, there are cases holding that a sworn original complaint retains its evidentiary value, for

36 See, e.g., Wilkinson v. Banks, 02-CV-0361, purposes of a summary judgment motion, even 2007 WL 2693636, at *7-8 (W.D.N.Y. Sept.10, after the filing of an unsworn amended complaint. 2007) (granting defendants' motion for summary See, e.g., Morrison v. Fox, 05-CV-3394, 2007 U.S. judgment after, inter alia, [1] noting that Dist. LEXIS 73328, at *3, n. 1, 2007 WL 2908480 defendants had, through an affidavit of Thomas (D.S.C. Oct. 1, 2007) (“[I]n light of the Plaintiff's Eagen, adduced evidence indicating the existence pro se status, the Court considers any factual of DOCS' Inmate Grievance Program, and [2] allegations set forth in the Plaintiff's unverified finding that plaintiff had adduced no evidence amended complaint that mirror the allegations set suggesting that the Program was not available to forth in his initial verified complaint as evidence him during the time in question). Indeed, some for purposes of evaluating the Defendants' motion authority exists suggesting that this is the sort of for summary judgment.”); White v. Simpson, 04- fact of which a court might take judicial notice. CV-0728, 2006 WL 1007527, at *2, n. 4 (N.D.Tex. See Wegman v. Grimmke, 03-CV-2345, 2004 WL Apr.18, 2006) (even where plaintiff submitted 2202642, at *4 (W.D.N.Y. Sept.30, 2004) (granting an unsworn amended complaint, the court relied defendants' motion for summary judgment after, on his sworn original complaint, for purpose inter alia, [1] appearing to take judicial notice of of summary judgment motion); cf. Hoskins v. the existence of DOCS' Inmate Grievance Program, Alameda County Sheriff's Deputies, 96-CV-0428, and [2] finding that plaintiff had adduced no 1998 U.S. Dist. LEXIS 12404, at *6, 1998 WL 470480 (N.D.Cal. Aug. 5, 1998) (“Because

Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

evidence suggesting that the Program was not C. For Tier I violation hearings, the appeal is to the facility available to him during the time in question). Superintendent or a designee pursuant to 7 N.Y.C.R.R. 37 ( See Dkt. No. 32, Part 3, ¶ 1-2 [Affid. of Def. § 252.6. Eagen, swearing that, inter alia, he is the “Director

Individual decisions or dispositions regarding inmate of the Inmate Grievance Program of the New York misbehavior reports and hearings, or inmate grievances, are State Department of Correctional Services,” that he not considered grievable matters; however, the policies, rules is the “custodian of the records maintained by the and procedures of the disciplinary and grievance programs Central Office Review Committee,” and that the may be the subject of a grievance. See 7 N.Y.C.R.R. § 701.3(e) Committee's computer database contains records (1), (2); see also N .Y. Dep't Corr. Serv. Directive No. 4040 of all appeals received from “the facility Inmate at III.E. Generally, if a prisoner has failed to follow each of Grievance Program Offices” since 1990].) these steps prior to commencing litigation, he has failed to The steps involved in this Inmate Grievance Program are well exhaust his administrative remedies. Rodriguez v. Hahn, 209 established: F.Supp.2d 344, 347-48 (S.D.N.Y.2002); Reyes v. Punzal, 206 F.Supp.2d 431, 433 (W.D.N.Y.2002).

First, an inmate is to file a In their motion papers, Defendants have adduced evidence complaint with the Grievance Clerk. establishing that, despite this available grievance procedure, An inmate grievance resolution Plaintiff never filed any grievance appeal with CORC during committee (“IGRC”) representative the time in question (or at any time). (Dkt. No. 32, Part 3, ¶ 3 has seven working days to informally [Affid. of Eagen].) Plaintiff has adduced no record evidence resolve the issue. If there is no controverting this fact. 38 resolution, then the full IGRC conducts a hearing and documents

38 Indeed, in his original Complaint, which (again) the decision. Second, a grievant was verified, Plaintiff asserts facts indicating may appeal the IGRC decision to that the highest level of DOCS staff to which the superintendent, whose decision he appealed any Inmate Grievance Resolution is documented. Third, a grievant Committee decision was the office of the Clinton may appeal to the central office C.F. Superintendent. (Dkt. No. 1, ¶ 4.c.(i) [Plf.'s review committee (“CORC”), which Verified Compl.].) must render a decision within twenty working days of receiving the appeal,

As a result, I find that, despite the fact that administrative and this decision is documented. remedies were indeed available to Plaintiff, he failed to pursue those remedies.

White v. The State of New York, 00-CV-3434, 2002 U.S. Dist. 2. Forfeiture/Estoppel LEXIS 18791, at *6, 2002 WL 31235713 (S.D.N.Y. Oct. I find no evidence in the record that Defendants forfeited 3, 2002) (citing N.Y. COMP.CODES R. & REGS. tit. 7, § the affirmative defense of non-exhaustion by failing to raise 701.7). DOCS also has a separate and distinct administrative or preserve it. ( See Dkt. No. 28, Part 1, ¶¶ 16-17 [Defs.' appeal process for inmate misbehavior hearings: Answer, raising exhaustion as a defense].) Nor do I find any A. For Tier III superintendent hearings, the appeal is to evidence in the record that Defendants' own actions somehow inhibited Plaintiff's exhaustion of remedies sufficient to estop the Commissioner's designee, Donald Selsky, D.O.C.S. one or more of the Defendants from raising Plaintiff's failure Director of Special Housing/Inmate Disciplinary Program, pursuant to 8 N.Y.C.R.R. § 254.8; to exhaust as a defense. Granted, I acknowledge that, in

his Amended Complaint, Plaintiff alleges that, at various *7 B. For Tier II disciplinary hearings, the appeal is to points in time, (1) Defendant Castiron “threatened to beat the facility Superintendent pursuant to 7 N.Y.C.R.R. § [Plaintiff],” (2) Defendant Renown “threatened” Plaintiff, 253.8; and and (3) Defendant Amsteal “act[ed] crazy.” (Dkt. No. 1, Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

¶¶ 5, 7, 10 [Plf.'s Am. Compl.].) However, Plaintiff has 14, 16, 18 [Affid. of Jarvis, attaching, as exhibits, Plaintiff's adduced no evidence in support of the alleged actions. The disciplinary hearing dispositions, showing sentences imposed Amended Complaint does not constitute such evidence since as a result of his disciplinary convictions].) And Plaintiff has it is not verified. And, while the original Complaint is verified, adduced no evidence controverting that fact. it contains absolutely no factual assertions regarding such actions. ( See Dkt. No. 1, ¶¶ 6-7 [Plf.'s Compl.].) 39

As the Second Circuit has held, “separate SHU sentences should be aggregated for purposes of the Sandlin inquiry when they constitute a sustained

3. Special Circumstances period of confinement.” Giano v. Selsky, 238 F.3d Finally, I find no evidence in the record establishing 223, 226 (2d Cir.2001) [internal quotations and (or even factual allegations in Plaintiff's Amended citations omitted; emphasis added]. Complaint plausibly suggesting) the existence of any special circumstances that would justify Plaintiff's failure to comply 40

See Giano, 238 F.3d at 226 (aggregating 670 with the administrative procedural requirements. days in administrative segregation at Attica C.F. to 92 days in administrative segregation

As a result, I recommend that Plaintiff's Amended Complaint at Clinton C.F., which segregation immediately be dismissed due to his failure to adduce any evidence that he followed the prior segregation, where it was clear exhausted his administrative remedies before filing this action that the subsequent segregation was “simply a in federal court. continuation” of the prior segregation because “the two periods of confinement were based on the same administrative rationale and ... the conditions

B. Defendants' Other Asserted Grounds for Dismissal of Giano's confinement were ... identical at both *8 Because I find that Defendants' have met their modest facilities”); Sealey v. Giltner, 197 F.3d 578, 580, burden with regard to their first ground for dismissal (i.e., 587-88 (2d Cir.1999) (taking 83-day sentence in Plaintiff's failure to exhaust his available administrative SHU imposed by Defendant Giltner at April 16 remedies before filing this action in federal court), I need not, disciplinary hearing, and aggregating it to 18- and do not, reach the merits of their other arguments, except day sentence in SHU that plaintiff had served to make the following two observations. immediately prior to April 16 disciplinary hearing, but not aggregating it to sentence that resulted from

First, with respect to Defendants' argument that Plaintiff has a subsequent disciplinary hearing conducted by a adduced no evidence that he had a liberty interest protected different hearing officer ); cf. Sims v. Artuz, 230 by the Fourteenth Amendment, Defendants appear to be F.3d 14, 18-19, 23-24 (2d Cir.2000) (leaving it correct when they argue that, for several separate periods to district court to explore whether to aggregate of confinement to be considered together (for purposes of any of the 60-day to 360-day sentences from applying Sandlin v. Connor, 515 U.S. 472 [1995] ), those seven disciplinary hearings that occurred within separate periods of confinement must be consecutive. (Dkt. a four-and-one-half-month period, where all of No. 32, Part 21, at 12-14 [Defs.' Mem. of Law].) In particular, those sentences were contiguous, two of them the precise issue, in such a circumstance, is whether the were administered by the same disciplinary hearing disciplinary confinements in question constitute a “sustained” officer, and two others were also administered by period of confinement such that they may be aggregated for the same disciplinary hearing officer). purposes of the Due Process Clause. 39 Generally, it appears Second, with respect to Defendants' argument that from Second Circuit decisions that separate SHU sentences Plaintiff's denial-of-access-to-the-courts claim (under the constitute a “sustained” period of confinement when (1) they First Amendment) should be dismissed because he has failed are contiguous and (2) they either (a) were imposed by the to allege facts plausibly suggesting that he suffered any same disciplinary hearing officer or (b) were based on the injury as a result of that denial, Defendants are correct same administrative rationale and are executed under the when they argue that, to be viable, such a claim must allege same conditions. 40 Here, Defendants have adduced evidence facts plausibly suggesting that Plaintiff suffered an injury that the five periods of confinement in question were not as a result of the denial. It is well settled that inmates contiguous or consecutive. ( See Dkt. No. 32, Parts 10, 12, have a First Amendment right of access to the courts that Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

requires states “to give prisoners a reasonably adequate Been Improvidently Granted, and Dismiss Plaintiff's opportunity to present claimed violations of fundamental Amended Complaint Without Prejudice to Refiling constitutional rights.” 41 “However, this right is not ‘an Upon Payment of the Filing Fee

*9 Finally, in the interest of thoroughness, I think it is abstract, freestanding right to a law library or legal assistance’ appropriate to mention an alternative ground for dismissal of and cannot ground a Section 1983 claim without a showing Plaintiff's Amended Complaint. Under the so-called “Three of ‘actual injury.” ‘ 42 As a result, to state a claim for denial Strikes Rule” set forth in the federal statute governing in of access to the courts, a plaintiff must assert non-conclusory forma pauperis proceedings, in no event shall a prisoner be allegations demonstrating both (1) that the defendant acted permitted to bring an action in forma pauperis deliberately and maliciously, and (2) that the plaintiff suffered an actual injury. 43 It is worth noting that “[t]his actual injury requirement ‘is not satisfied by just any type of

if the prisoner has, on 3 or more frustrated legal claim,’ because the Constitution guarantees prior occasions, while incarcerated or only the tools that ‘inmates need in order to attack their detained in any facility, brought an sentences, directly or collaterally, and in order to challenge action or appeal in a court of the the conditions of their confinement.” 44 “ ‘Impairment of United States that was dismissed on any other litigating capacity is simply one of the incidental the grounds that it ... fails to state (and perfectly constitutional) consequences of conviction a claim upon which relief may be and incarceration.’ ” 45 Here, Plaintiff does not allege facts granted, unless the prisoner is under plausibly suggesting that he suffered any injury as a result of imminent danger of serious physical injury. being denied the ability to go to the facility's law library and being deprived of certain of his legal materials. ( See generally Dkt. No. 9 [Plf.'s Am. Compl.].) Even if he had alleged such facts, he has not adduced any evidence in support of such an

28 U.S.C. § 1915(g). The power of a federal district court allegation. to invoke this rule is not limited to the outset of a litigation but extends all throughout the pendency of the proceeding.

41 In other words, specifically, federal district courts have the Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, authority to rescind or revoke the in forma pauperis status 52 L.Ed.2d 72 (1977), modified on other grounds, that it has previously bestowed upon a plaintiff, where it Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, discovers that the status was improvidently granted, even if 135 L.Ed.2d 606, (1996); see also Bourdon v. the courts exercise that authority well into the pendency of Loughren, 386 F.2d 88, 92 (2d Cir.2004) [citations the proceedings. 46 omitted]. 42 Collins v. Goord, 438 F.Supp.2d 399, 415 46 Northern District of New York: See Flemming (S.D.N.Y.2006) (quoting Lewis v. Casey, 518 U.S. v. Goord, 06-CV-0562, 2007 WL 3036845, 343, 351 [1996] ). at *2 (N.D.N.Y. Oct.16, 2007) (Mordue, C.J., 43 adopting Report-Recommendation by Homer, Lewis, 518 U.S. at 353; Renelique v. Duncan, 03- M.J.); Standley v. Dennison, 05-CV-1033, 2007 CV-1256, 2007 WL 1110913, at *9 (N.D.N.Y. WL 2406909, at *13-14 (N.D.N.Y. Aug.21, 2007) Apr.12, 2007) (Strom, J.); Howard v. Leonardo, (Sharpe, J., adopting Report-Recommendation 845 F.Supp. 943, 946 (N.D.N.Y.1994) (Hurd, of Lowe, M.J.); Gamble v. Monette, 06- M.J.).

CV-0136, 2007 WL 2089697, at *1-4 (N.D.N.Y. 44 Collins, 423 F.Supp.2d at 415-16 (quoting Lewis, July 20, 2007) (Kahn, J., adopting Report- 518 U.S. at 355). Recommendation of DiBianco, M.J.); Pettus v. Brown, 06-CV-0152, 2007 WL 1791120, at *2-3

45 Id. (N.D.N.Y. June 19, 2007) (Mordue, C.J., adopting Report-Recommendation of Homer, M.J.); Gill v.

C. Whether, in the Alternative, the Court Should Pidlypchak, 02-CV-1460, 2006 WL 3751340, at Revoke Plaintiff's In Forma Pauperis Status as Having Taylor v. Artus, Not Reported in F.Supp.2d (2007)

2007 WL 4555932

See Taylor v. Second Dept. Appellate Div., 05- *5 (N.D.N.Y. Dec.19, 2006) (Scullin, J.); Polanco CV-4791 (E.D.N.Y.) (Dearie, C.J.) (dismissing v. Burge, 05-CV-0651, 2006 WL 2806574, at Plaintiff's Complaint for failure to state a claim *2 (N.D.N.Y. Sept.28, 2006) (Kahn, J., adopting on October 17, 2005); Taylor v. Gemill, 05- Report-Recommendation by Homer, M.J.). CV-6093 (E.D.N.Y.) (Dearie, C.J.) (dismissing Western District of New York: See Polanco Plaintiff's Complaint for failure to state a claim v. Hopkins, 03-CV-6661, 2007 WL 914023, at on January 17, 2006) Taylor v. Artis, 05- *3-6 (W.D.N.Y. Mar.23, 2007). CV-1569 (N.D.N.Y.) (Sharpe, J.) (dismissing Eastern District of New York: See Plaintiff's Complaint for failure to state a claim McFadden v. Parpan, 16 F.Supp.2d 246, 247 on May 10, 2006); Taylor v. Bisceglia, 06- (E.D.N.Y.1998); see also Rolle v. Nassau County CV-0277 (N.D.N .Y.) (Mordue, C.J.) (dismissing Correctional Facility, 01-CV-2414, Order, at Plaintiff's Amended Complaint for failure to state 2 (E.D.N.Y. filed Nov. 17, 2004) (“A court a claim on May 10, 2007); see also Taylor may revoke the in forma pauperis status it v. Bennett, 05-CV-10709 (S.D.N.Y.) (Berman, previously bestowed upon a [plaintiff], where J.) (granting defendants' “motion to dismiss” that status is later determined to be ‘improvident’ Plaintiff's Amended Complaint on January 24, ”) [citation omitted], accord, Rolle v. Kurtzrock, 2007, but not indicating grounds for dismissal). 03-CV-1789, Order (E.D.N.Y. filed June 17, 2004). 48

28 U.S.C. § 1915(g); see also Malik v. McGinnis, District of Connecticut: See Demos v. John 293 F.3d 559, 561 (2d Cir.2002) (examining Doe, 118 F.Supp.2d 172, 174 (D.Conn.2000). plaintiff's allegations in order to determine if Here, the Court granted Plaintiff's request to proceed in forma plaintiff's case fell within the exception to the three pauperis on July 7, 2005. (Dkt. No. 10, at 3.) However, strikes rule for prisoners in “imminent danger of it is clear from the United States Courts' Public Access to serious physical injury”). Court Electronic Records (“PACER”) Service that, as of

As a result, I recommend that, in the alternative, the Court July 7, 2005, Plaintiff had already received three “strikes” should revoke Plaintiff's in forma pauperis status and dismiss for purposes of 28 U.S.C. § 1915(g). Specifically, Plaintiff's Plaintiff's Amended Complaint without prejudice to refiling Complaint in the prisoner civil-rights action of Taylor v. upon payment of the filing fee. Goldman, 04-CV-1212 (E .D.N.Y.), was dismissed by Order of Chief Judge Raymond J. Dearie, of the Eastern District

ACCORDINGLY, it is of New York, on April 8, 2004, for failure to state a claim upon which relief may be granted. His Complaint in the

RECOMMENDED that Defendants' motion for summary prisoner civil-rights action of Taylor v. Zubizarreta, 04- judgment (Dkt. No. 32) be GRANTED. CV-1565 (E.D.N.Y.), was dismissed, also by Order of Chief Judge Dearie, on August 12, 2004, for failure to state a claim

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the upon which relief may be granted. And his Complaint in parties have ten days within which to file written objections the prisoner civil-rights action of Taylor v. Goldman, 04- to the foregoing report. Such objections shall be filed with CV-5121 (E.D.N.Y.), was dismissed, also by Order of Chief the Clerk of the Court. FAILURE TO OBJECT TO THIS Judge Dearie, on December 3, 2004, for failure to state a claim

REPORT WITHIN TEN DAYS WILL PRECLUDE

upon which relief may be granted. 47 Finally, I find nothing APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, on the face of the Amended Complaint indicating that Plaintiff 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human is in “imminent danger of serious physical injury.” 48

Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b); Fed.R.Civ.P. 6(a), 6(e), 72.

47 I note that, after Plaintiff's in forma pauperis status was (improvidently) granted in this case

All Citations on July 7, 2005, he earned at least four more “strikes,” for purposes of 28 U.S.C. § 1915(g). Not Reported in F.Supp.2d, 2007 WL 4555932

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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Peter M. Sigona and Richard D. Ruston, III at that hearing “contradicts the reports that [Magistrate Judge Peebles] relied

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on in making [his] decision.” Plaintiff gives no specifics and Only the Westlaw citation is currently available. thus appears to be interposing a general objection directed to the issues of excessive force and failure to intervene. His This decision was reviewed by West editorial objection does not refer to the issue of medical indifference. staff and not assigned editorial enhancements.

United States District Court, Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de N.D. New York. novo those parts of a report and recommendation to which a party specifically objects. Where, as here, a party interposes

Terry CICIO, Plaintiff, only general objections to a report and recommendation, the v. Court reviews for clear error or manifest injustice. See Davis GRAHAM; Peter M. Sigona; Richard D. Ruston, III; v. Chapple, 2010 WL 145298, *2 (N.D.N.Y. Jan.8, 2010), Phil J. Manna; A. Vega; and Ryerson, Defendants. Brown v. Peters, 1997 WL 599355,*2-* 3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir.1999). Failure to object to

No. 9:08-CV-534 (NAM/DEP). any portion of a report and recommendation waives further | judicial review of the matters therein. See Roldan v. Racette, March 15, 2010. 984 F.2d 85, 89 (2d Cir.1993). Attorneys and Law Firms The Court accepts and adopts Magistrate Judge Peebles' Report and Recommendation. In view of plaintiff's objection, Terry Cicio, Malone, NY, pro se. which, as noted, appears to be directed to the evidence on the Hon. Andrew M. Cuomo, Office of the Attorney General, issues of excessive force and failure to intervene, the Court State of New York, Adrienne J. Kerwin, Esq., of Counsel, briefly revisits these issues. Although plaintiff interposes only Albany, NY, for Defendants. a general objection on these issues, in light of his pro se status and the nature of the objection, the Court conducts a de novo review. Plaintiff requests the Court to obtain the transcript of

MEMORANDUM-DECISION AND ORDER the disciplinary hearing and contends that the testimony given by Sigona and Ruston at that hearing contradicts the reports HON. NORMAN A. MORDUE, Chief Judge. relied on by Magistrate Judge Peebles; however, as explained below, the award of summary judgment to defendants is based

*1 Plaintiff, an inmate in the custody of the New York State on plaintiff's own evidence. Department of Correctional Services (“DOCS”), brought this action for declaratory and monetary relief under 42

The record evidence pertinent to the excessive force and U.S.C. § 1983, claiming excessive use of force, failure to failure to intervene claims is briefly summarized as follows. intervene, and denial of adequate medical care stemming In a declaration supporting the motion for summary judgment, from a disturbance involving 17 or more inmates occurring Sigona, a sergeant at ACF, states: in a “holding pen” or “cage” at Auburn Correctional Facility (“ACF”) on March 7, 2006. Plaintiff moved for summary

*2 On March 7, 2006, I was supervising the hospital depot judgment (Dkt. No. 35) and defendants cross-moved for area at Auburn. While waiting with a group of inmates in summary judgment (Dkt. No. 38). Upon referral of the the holding pen in the hospital depot, inmate Baer became motions pursuant to 28 U.S.C. § 636(b)(1)(B) and Local disruptive and began threatening staff. Baer ignored several Rule 72.3(c), United States Magistrate Judge David E. orders by me to cease his behavior. I then entered the Peebles issued a Report and Recommendation (Dkt. No. 41) holding pen with Officers Manna and Ruston with the recommending that this Court deny plaintiff's motion, grant intention of removing inmate Baer. defendants' motion, and dismiss the action. All of the inmates in the pen were ordered to one side of Plaintiff has submitted an objection (Dkt. No. 42). Plaintiff the pen, while Baer remained on the other. Inmate Green states that the Court should have reviewed the transcripts from refused to move, so I guided him to the side directed. his disciplinary hearing, because the testimony of defendants Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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While I was guiding inmate Green, plaintiff Cicio then Once they started pulling [Green] out [of the pen], other lunged at Officer Manna, striking him with a closed fist officers barged into the cage. I don't know if done purposely and knocking him to the ground. I immediately went to or not, but I was pushed into the sergeant, and from there I Officer Manna's aid and assisted with gaining control of was given an assault charge and taken down. Cicio by taking control of Cicio's right side. Officer Manna

* * * and I then escorted a struggling Cicio out of the pen, after which Cicio and Officer Manna fell to the floor. Once

... [Baer] was sitting there [in the middle of the pen] when Cicio stopped struggling, he was removed from the area Green was being taken out. After I was pushed to the and taken to medical for examination. sergeant, I don't know what happened. The declaration from defendant Philip J. Manna, a corrections Plaintiff's deposition testimony continued: officer at ACF, is consistent with Sigona's declaration. Q. Was Green eventually taken out? Plaintiff's complaint states that defendant Sigona pushed A. Yes. plaintiff into defendant Manna “who then grabbed plaintiff by the hair and began to pull plaintiff towards [the] holding pen

Q. Okay. Now, was he still in the cage when you got pushed door at which point plaintiff was thrown to the floor and kneed into the sergeant? in [the] nose.” The complaint further states that, after plaintiff was brought to his feet and escorted out of the immediate area,

A. I am not sure. defendant Manna “once again grabbed plaintiff by his hair and pushed plaintiff's face into [the] wall.” According to plaintiff, Q. It was all happening at the same time? Sigona and Ruston “stood and watched the incident” and did

A. Yes. not “intervene[ ] to stop the assault.” Q. Did you see any officers go to Baer to get him up and Plaintiff testified in his deposition that there were 17 or 18 out? inmates in the holding pen awaiting transport; that there were no corrections officers in the pen but there were some in the

A. Not specifically, because by this time it was just chaos in vicinity; that another inmate George Baer started “cursing up the cage. I was on the floor somewhere. I don't know where. a storm” at a corrections officer; and that the sergeant told Baer to “cut it out,” to which Baer responded, “No.” The Q. How many officers were taking out Green? sergeant then said, “Take him out of there,” ordered Baer to

A. When I first seen, I only saw one before everything just- come up front, and ordered everyone else to the back of the pen. Instead of coming up front, Baer “sat down in the middle

Q. When the sergeant said, “Take him of there,” meaning of the cage.” Plaintiff stated that everyone else went to the Baer, how many officers entered the pen? back of the pen except plaintiff and inmate Green; according to plaintiff, they could not go back because “there was no

A. At the time, there was about five or six. more room.” As plaintiff describes it: Q. They entered at the time just to remove Baer because of There wasn't any more room. And he [Green] was standing the goings on? directly in front of Inmate Baer. So they started taking A. Yes. Green out of the holding pen, and that's where everything just a whole jumble of things happened. I ended up getting

Q. Was one of them the sergeant? mixed up in that, because one of officers tried to barge in there and push me into the sergeant, and then I got into a

A. Yes. There was a sergeant in there. use of force behind it. So a whole lot of events that took place after one move. Q. So the sergeant and/or three or four officers? *3 * * * A. Quite a few, yes. Something like that.

Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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Q. Okay. So they enter. Then Green is told to move. He Q. Okay. At what point in time did you-at some point in doesn't. Somebody, was it one of those officers that entered time did you see the report? that tried to remove Green?

*4 A. I saw the reports after I got my misbehavior report, A. The first officer that enters, the one that ... talked to him and I got my assistance, and I asked for the use of force at first trying to remove him. I don't know which officer report, and the unusual incident report, and everything else. that was.

Q. Okay. Now, once you were taken to the floor, then what Q. Okay. But no additional officers to deal with Green, it happened? Take me through it totally. was somebody in there from Baer?

A, Once I was taken to the floor, another CO kneed me in A. Right. Once Green, once they saw an officer pulling the nose. I don't know who. Green out of the cage, that's when more officers entered the

Q. You don't think it was the same person that took you to cage. the floor? A. I doubt it. Q. So I think, and when I try to recap what you just said, I Q. All right. Okay. am not trying to put words in your mouth, but tell me if I am doing it wrong. I am trying to make sure I get it right.

A. And once I was lifted, I was pulled [from] the cage by You said five or six officers came in to deal with Baer; is my hair. At the time I had a lot of hair. I was pulled out [of] that right? the cage by my hair, and then I hit the floor again. A. Something close to, right. Q. Okay. Now when you hit the floor again, were you taken to the floor? Do you know how that happened, the second

Q. How many more entered once Green became an issue? hitting of the floor? A. I have no idea, because by that time I was into the A. I am not sure. sergeant and on the floor. Q. Okay. Q. Okay. All right. So somebody, as they are rushing in, whether intentional or not, you don't know, pushed you into

A. I am not sure. the sergeant? Q. You ended up on the floor? A. Right. A. I just ended up on the floor with a couple C.O.s on top Q. Then what happened? of me. I don't know if they fell, if I fell. I have no idea. A. From there, I was taken down. I got kneed in the nose. Q. There were other officers on the floor with you? Q. Do you know who took you to the floor? A. Right. A. I am only going by the reports. Plaintiff explained that he was then removed from the scene, taken upstairs to “their SHU” and given a ticket. He was

Q. Okay. placed in a different holding pen where a nurse came to see A. I don't know specifically. Only in the reports that they him within 15 or 20 minutes. According to plaintiff, he told wrote do I know any names. the nurse that his nose hurt, he had pains in his right wrist,

which was swollen, and some of his hair “had got pulled out Q. Okay. in back.” He was not bleeding. He requested and was denied pain medication, although at some later time he was given

A. But other than that, at the time of the incident, I didn't ibuprofen. He had headaches “off and on” for two or three know anything. weeks and his wrist was swollen for a few days, although it did not limit any of his activities.

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When the disputed facts are viewed most favorably to plaintiff and considered in combination with the undisputed facts, the In addition to his objection to the Report and record shows the following: a group of 17 or 18 inmates was Recommendation (Dkt. No. 42), plaintiff has filed what confined in the pen; one inmate, Baer, became disruptive and appears to be an appeal from the Report and Recommendation refused to comply with Sergeant Sigona's direction to stop; (Dkt. No. 43). Because Magistrate Judge Peebles did not issue five or six corrections officers entered the pen to remove Baer; any order which could be the subject of the appeal, the appeal the other inmates were directed to move to the back of the pen; is denied. In the event that plaintiff wishes to appeal from there was not room for Green and plaintiff to do so; Green was this Memorandum-Decision and Order, he should follow the told to move but did not do so; and corrections officers began procedure set forth in the Civil Appeals Packet, which will be removing Green. The evidence further shows that at that point provided to him with this decision. “just a whole jumble of things happened”; more corrections officers entered the pen; as they were entering, one of them- It is therefore intentionally or not-pushed plaintiff into Sergeant Sigona; it was “chaos” in the pen; a corrections officer took plaintiff to ORDERED that United States Magistrate Judge David E. the floor; and plaintiff then “got kneed in the nose,” probably Peebles's Report and Recommendation (Dkt. No. 41) is by a different corrections officer. Plaintiff was then pulled out accepted and adopted; and it is further of the pen. In his complaint he states that Officer Manna again grabbed him by the hair and pushed his face into the wall, ORDERED that the appeal (Dkt. No. 43) from the Report and whereas in his deposition, plaintiff stated that he was pulled Recommendation is denied; and it is further out of the pen by his hair and “ended up on the floor again” with a couple of corrections officers on top of him, and added: ORDERED that plaintiff's motion for summary judgment “I don't know if they fell, if I fell.” He was then removed (Dkt. No. 35) is denied; and it is further and taken to SHU, where a nurse examined him within 20 minutes. ORDERED that defendants' cross motion for summary

judgment (Dkt. No. 38) is granted and the complaint *5 The Court agrees with Magistrate Judge Peebles that dismissed on the merits; and it is further defendants are entitled to summary judgment dismissing plaintiff's claims of excessive force. It is undisputed that the ORDERED that the Clerk is directed to provide plaintiff with force used on plaintiff on March 7, 2006 occurred in the a Civil Appeals Packet. context of a disturbance involving 17 or 18 inmates in a holding pen. In plaintiff's own word, it was “chaos.” Indeed, IT IS SO ORDERED. plaintiff states that when he was pushed into Sergeant Sindona it may have been unintentional, and that, when he went to the floor a second time, it may have been because he and/

REPORT AND RECOMMENDATION

or the corrections officers fell. In view of this evidence and the minimal nature of plaintiff's injuries, no rational trier

DAVID E. PEEBLES, United States Magistrate Judge. of fact could conclude that plaintiff was subjected to force Plaintiff Terry Cicio, a New York State prison inmate who that was malicious or sadistic for the purpose of causing is proceeding pro se and in forma pauperis, has commenced plaintiff harm and not in a good faith effort to maintain this action pursuant to 42 U.S.C. § 1983, claiming deprivation discipline. See Wright v. Goord, 554 F.3d 255, 268-69 (2d of his civil rights. In his complaint plaintiff asserts that he Cir.2009). For the same reason, there is no basis for a claim

was assaulted by one of the defendants while two others stood of failure to intervene. Moreover, no rational trier of fact by and failed to intervene, and that following the assault could find that plaintiff suffered a serious medical need. As to medical personnel at the prison facility where the incident the other issues raised, the Court agrees with the Report and took place failed to provide requested medical treatment Recommendation. Accordingly, the Court hold that plaintiff

for his resulting injuries. Plaintiff's complaint seeks both has failed to establish that he is entitled to summary judgment; declaratory and monetary relief. defendants have demonstrated their entitlement to summary judgment; and plaintiff has failed to show the existence of a material question of fact. Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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*6 Currently pending before the court are cross-motions Plaintiff contends that during the ensuing events he was for summary judgment. Plaintiff initiated the motion process, pushed into defendant Manna, who then grabbed him by the moving for summary judgment and claiming that the evidence hair and began to pull him toward the cell door, resulting in the record supports a finding in his favor on the issue in Cicio being thrown to the floor and kneed in the nose. of liability and that no reasonable factfinder could conclude Complaint (Dkt. No. 1) Statement of Facts ¶ 4; Cicio Decl. otherwise. Defendants have responded by both opposing (Dkt. No. 40-2) ¶ 4. Plaintiff maintains that after regaining plaintiff's motion and seeking summary judgment dismissing his footing he was again grabbed by the hair and pushed face plaintiff's complaint. In their motion defendants assert that first into the wall. Complaint (Dkt. No. 1) Statement of Facts based upon the record now before the court no reasonable ¶ 5. Plaintiff asserts that while this was occurring defendants factfinder could find in plaintiff's favor on any of his claims Sigona and Ruston stood by and watched without coming to and that, in any event, they are deserving of qualified his assistance. Id. immunity from suit under the circumstances presented.

*7 Defendants offer a markedly different version of the Having carefully reviewed the record considered in light relevant events. According to the defendants, while they were of the arguments of the parties, for the reasons that follow attempting to extricate the disruptive inmate from the holding I recommend that defendants' motion be granted and that cell Manna issued a direct order to the plaintiff to move plaintiff's motion be denied. to the back of the cage. Plaintiff's Exh. D (Dkt. No. 35-2)

Disregarding the order, plaintiff blocked Corrections Officer Manna's path, lunged at him and struck him with a closed fist

I.

BACKGROUND knocking him to the floor. Id.; see also, Manna Decl. (Dkt. The facts forming the basis for plaintiff's claims are No. 38-9) ¶ 4; Sigona Decl. (Dkt. No. 38-8) ¶ 5. Cicio then not particularly complex, although the parties have given began yelling to the other inmates in the cage, encouraging conflicting accounts of the relevant events, particularly with them to join in, exclaiming, “let's get them.” Plaintiff's Exh. D regard to the circumstances surrounding the use of force by (Dkt. No. 35-2). At that point, defendants Manna and Sigona prison officials of force against Cicio. attempted to subdue Cicio, who continued to struggle and resist, resulting in Cicio and Officer Manna falling to the floor.

Plaintiff is a prison inmate entrusted to the care and custody Manna Decl. (Dkt. No. 38-9) ¶¶ 4-5; Sigona Decl. (Dkt. No. of the New York State Department of Correctional Services 38-8) ¶ 5. (“DOCS”); at the times relevant to his complaint, Cicio was housed at the Auburn Correctional Facility (“Auburn”),

As a result of the incident a misbehavior report was located in Auburn, New York. See generally Complaint subsequently issued by Corrections Officer Manna charging (Dkt. No. 1). On March 7, 2006, while plaintiff was Cicio with disciplinary infractions, including 1) assault on among a group of between sixteen and eighteen inmates staff; 2) prison takeover; 3) engaging in violent conduct; 4) confined in the Auburn hospital depot awaiting transfer out inciting inmates; 5) disobeying a direct order; 6) physically a disruption occurred involving a fellow prisoner. Complaint interfering with an employee; and 7) impeding inmate (Dkt. No. 1) Statement of Facts ¶ 1; Sigona Decl. (Dkt. movement. Mann Decl. (Dkt. No. 38-9) ¶ 7. Following No. 38-8) ¶ 3; Manna Decl. (Dkt. No. 38-9) ¶ 3; see also a Tier III disciplinary hearing commenced on March 13, Kerwin Aff. (Dkt. No. 38-3) Exh. K (transcript of plaintiff's 2006, plaintiff was found guilty of five of the six violations deposition, conducted on May 15, 2009 and hereinafter cited including, inter alia, assault on staff. Kerwin Aff. (Dkt. as “Plaintiff's Dep. Tr.” at pp. 8-10). Defendants Sigona, No. 38-3) Exh. I. As a result of that determination plaintiff Manna and Ruston, all three of whom are employed as received a series of sanctions which, after being modified corrections workers at the facility, responded to the incident, on appeal, included twelve months of confinement in a entering the cell and ordering all of the inmates to retreat facility special housing unit (“SHU”) with a corresponding to the back. Complaint (Dkt. No. 1) Statement of Facts ¶ loss of packages, commissary, and telephone privileges, and 2, Manna Decl. (Dkt. No. 38-9) ¶ 3; Sigona Decl. (Dkt. an additional recommendation that plaintiff forfeit twelve No. 38-8) ¶ 3. While those corrections officers attempted months of good time credits. Id. to remove the dissident inmate from the cell plaintiff Cicio became involved. It is at this point that the parties' versions

Following the incident plaintiff was immediately removed of the relevant events significantly diverge. from the area and taken to be examined by facility medical Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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personnel. Manna Decl. (Dkt. No. 38-9) ¶ 6. Plaintiff was on April 3, 2006. While plaintiff claims to have appealed examined by defendant A. Vega, a registered nurse, within that determination on June 12, 2006, presumably to the fifteen to twenty minutes after the incident. Cicio Decl. (Dkt. DOCS Central Office Review Committee (“CORC”), the No. 40-2) ¶ 5; Plaintiff's Dep. Tr. at p. 22. During that record contains no further indication of whether that appeal examination Nurse Vega observed a reddened area on the was in fact taken, and if so, the result. See Complaint bridge of plaintiff's nose and noted his reports of minor pain (Dkt. No. 1) Statement of Facts ¶ 18. According to prison in the nose and head areas. Plaintiff's Dep. Tr. at pp. 25-26; officials at Auburn, their research of relevant records at the see also Kerwin Aff. (Dkt. No. 38-3) Exhs. B and H. Plaintiff facility failed to disclose additional documents regarding was not treated for his injuries nor was he scheduled to see a plaintiff's exhaustion of remedies and, significantly, to show doctor. Complaint (Dkt. No. 1) Statement of Facts ¶ 8. that plaintiff appealed to Superintendent Graham from the

disposition of his claimed use of force grievance. See Graham Plaintiff claims that following the incident he submitted sick Decl. (Dkt. No. 38-7) ¶ 4. call slips on March 8, 9, 13 and 19, 2006, requesting medical intervention to address his injuries. Complaint (Dkt. No. 1)

II.

PROCEDURAL HISTORY Statement of Facts ¶¶ 9, 11-12 and 15. Plaintiff contends, Plaintiff commenced this action on April 28, 2008. 1 however, that those sick call slips were not processed by As defendants, plaintiff's complaint names Auburn defendant Ryerson, the nurse administrator at Auburn. Id. ¶ Superintendent Harold D. Graham; Corrections Sergeant 22. Defendant Ryerson denies that allegation and counters that based upon her review of all sick call slips received Peter M. Sigona; Corrections Officers Richard D. Ruston during the time period involved, there is no record of plaintiff and Phil J. Manna; Registered Nurse A. Vega; and Nurse Administrator Ryerson. The complaint alleges varying claims having requested sick call at any time between March 8 and against those defendants including for the alleged use of March 20, 2006. Ryerson Decl. (Dkt. No. 38-10) ¶ 4.

excessive force and failure to protect the plaintiff from the use *8 As is the case with regard to plaintiff's substantive of force as well as indifference to his medical needs arising from the incident. 2 See generally Complaint (Dkt. No. 1). allegations, the parties disagree over the procedural steps taken by the plaintiff to seek internal review of the relevant events. Plaintiff contends that following the incident he filed

1 This action was filed in the Western District of two separate grievances, filing the first on March 14, 2006, New York but was subsequently transferred here and both related to the failure of prison officials to permit him by order issued on May 2, 2008 by Chief District to attend sick call. Complaint (Dkt. No. 1) Statement of Facts Judge Richard J. Arcara. Dkt. Nos. 1, 3. ¶¶ 14, 16. Plaintiff does not assert in his complaint that he 2 filed a grievance regarding the alleged use of force and failure

In his motion submission, plaintiff also claims to of prison officials to intervene on his behalf, although in an have asserted a cause of action for violation of affirmation in opposition to defendants' summary judgment procedural due process, based upon the defendants' motion Cicio succinctly states “[p]laintiff filed grievances on alleged failure to process and investigate his both incidents, only one was responded to.” See Cicio Aff. grievances. Plaintiff's Memorandum (Dkt. No. (Dkt. No. 39) ¶ 3. Plaintiff's motion submission also includes 35-3) at p. 2. Such a claim, if indeed present a handwritten memorandum, dated March 14, 2006 and in this action, is nonetheless subject to dismissal, addressed to the facility inmate grievance review committee since it is well established that a prison inmate (“IGRC”), citing the events including the alleged assault by has no cognizable constitutional right of access to prison officials. See Plaintiff's Exhs. (Dkt. No. 35-3) p. 24 of the grievance process or to have grievances which 27. have been filed investigated. Avent v. Doe, No. 9:05-CV-1311, 2008 WL 877176, at *8 (N.D.N.Y.

According to the defendants, the sole grievance filed by Mar.31, 2008) (Scullin, S.J. & DiBianco, M.J.) plaintiff regarding the incident was submitted on March (citing Torres v. Mazzuca, 246 F.Supp.2d 334, 342 24, 2006 and was denied by the facility IGRC on April 3,

(S.D.N.Y.2003)).

2006 after plaintiff was transferred out of Auburn. Graham Issue was initially joined in the action by defendant Manna Decl. (Dkt. No. 38-7) ¶ 6. That denial was subsequently through his filing of an answer on September 25, 2008. Dkt. affirmed by defendant Graham, the Superintendent at Auburn, No. 23. Following the denial of their pre-answer motion Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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seeking dismissal of plaintiff's claims against them on a 82-83 (2d Cir.2004). A fact is “material”, for purposes of this variety of bases, see Dkt. Nos. 29, 32, an answer was filed inquiry, if it “might affect the outcome of the suit under the on behalf of the remaining defendants on February 25, 2009. governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Dkt. No. 30. see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d

Cir.2005) (citing Anderson). A material fact is genuinely in *9 On July 15, 2009, following pretrial discovery, plaintiff dispute “if the evidence is such that a reasonable jury could filed a motion for summary judgment in his favor. Dkt. return a verdict for the nonmoving party.” Anderson, 477 U.S. No. 35. While plaintiff's motion appears to focus on the at 248, 106 S.Ct. at 2510. defendants' use of force, it purports to seek summary judgment on all of his claims. See id . On September 28, 2009, A party moving for summary judgment bears an initial burden defendants responded in opposition to plaintiff's motion and of demonstrating that there is no genuine dispute of material in support of a cross-motion requesting judgment dismissing fact to be decided with respect to any essential element of all of plaintiff's claims against them as a matter of law. Dkt. the claim in issue; the failure to meet this burden warrants No. 38. In their motion, defendants argue that 1) plaintiff's denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. deliberate medical indifference claim is legally deficient at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this based both upon his inability to establish the existence of a initial burden is met, the opposing party must show, through serious medical need and the lack of evidence of indifference affidavits or otherwise, that there is a material issue of fact for on the part of defendants Vega or Ryerson, the two medical trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at personnel against whom the claim appears to have been 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though lodged; 2) plaintiff's claim surrounding the alleged use of pro se plaintiffs are entitled to special latitude when defending a excessive force and failure to intervene lacks merit; 3) against summary judgment motions, they must establish more plaintiff's claims against Superintendent Graham are subject than mere “metaphysical doubt as to the material facts.” to dismissal based upon his lack of personal involvement Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. in the constitutional deprivations alleged; and 4) in any 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); but event defendants are entitled to qualified immunity from suit. see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Plaintiff has since responded in opposition to defendants' Cir.1999) (noting obligation of court to consider whether pro motion and in further support of his initial summary judgment se plaintiff understood nature of summary judgment process). motion. Dkt. Nos. 38, 39, 40.

*10 When deciding a summary judgment motion, a court The parties' cross-motions, which are now fully briefed and must resolve any ambiguities and draw all inferences from ripe for determination, have been referred to me for the the facts in a light most favorable to the nonmoving party. issuance of a report and recommendation, pursuant to 28 Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, U.S.C. § 636(b)(1)(B) and Northern District of New York 137-38 (2d Cir.1998). The entry of summary judgment is Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b). warranted only in the event of a finding that no reasonable

trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan,

III.

DISCUSSION 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary

A. Summary Judgment Standard judgment is appropriate only when “there can be but one Summary judgment motions are governed by Rule 56 of reasonable conclusion as to the verdict”). the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when “the pleadings, the

In a case such as this, where parties have interposed discovery and disclosure materials on file, and any affidavits cross-motions for summary judgment, each motion must be show that there is no genuine issue as to any material fact independently assessed, using this standard as a backdrop. See and that the movant is entitled to judgment as a matter of Light Sources, Inc. v. Cosmedico Light, Inc., 360 F.Supp.2d law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 432, 434 (D.Conn.2005). U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of

B. Excessive Force/ Failure To Intervene Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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At the heart of plaintiff's complaint is his claim that on (citing Hudson, 503 U.S. at 7-8, 112 S.Ct. at 999 and Blyden March 7, 2006 he was subjected to an unprovoked attack v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). As was recently by defendant Manna and that defendants Sigona and Ruston emphasized by the United States Supreme Court in Wilkins v. watched and failed to take any measures to end the assault Gaddy, however, after Hudson the “core judicial inquiry” is and that, as a result, he suffered physical injuries. Plaintiff focused not upon the extent of the injury sustained, but instead claims that the record supports his excessive force and failure whether the nature of the force applied was nontrivial. --- U.S. to intervene claims as a matter of law. Defendants counter - - - - , --- S.Ct. ----, --- L.Ed.2d - - - - , 2010 WL 596513, at *3 by arguing that no reasonable factfinder could conclude, (Feb. 22, 2010) (per curiam). Accordingly, when considering based upon the record now before the court, that plaintiff's the subjective element of the governing Eighth Amendment constitutional rights were violated, even assuming the truth of test a court must be mindful that the absence of serious injury, his version of the relevant events. though relevant, does not necessarily negate a finding of

wantonness since, as the Supreme Court has noted, 1. Excessive Force Plaintiff's excessive force claim must be analyzed under [w]hen prison officials maliciously the Eighth Amendment, which proscribes punishments that and sadistically use force to cause involve the “unnecessary and wanton infliction of pain” and harm, contemporary standards of are incompatible with “the evolving standards of decency that decency always are violated.... This mark the progress of a maturing society.” Estelle v. Gamble, is true whether or not significant 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291, 50 L.Ed.2d injury is evident. Otherwise, the 251 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, Eighth Amendment would permit any 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle ). physical punishment, no matter how While the Eighth Amendment does not mandate comfortable diabolic or inhuman, inflicting less prisons, neither does it tolerate inhumane treatment of than some arbitrary quantity of injury. those in confinement; thus, the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976,

Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations omitted); 128 L.Ed.2d 811 (1994) (citing Rhodes v. Chapman, 452 U.S. Velasquez v. O'Keefe, 899 F.Supp. 972, 973 (N.D.N.Y.1995) 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981)). (McAvoy, C.J.) (quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000); see Romaine v. Rewson, 140 F.Supp.2d 204, 211

A plaintiff's constitutional right against cruel and unusual (N.D.N.Y.2001) (Kahn, J.). Even a de minimis use of physical punishment is violated by an “unnecessary and wanton force can constitute cruel and unusual punishment if it is infliction of pain.” Whitley, 475 U.S. at 319, 106 S.Ct. at 1084 “repugnant to the conscience of mankind.” Hudson, 503 U.S. (citations and quotations omitted); Griffen v. Crippen, 193 at 9-10, 112 S.Ct. 1000 (citations omitted). F.3d 89, 91 (2d Cir.1999). The lynchpin inquiry in deciding claims of excessive force against prison officials is “whether

With its focus on the harm done, the objective prong of the force was applied in a good-faith effort to maintain or restore inquiry is contextual and relies upon “contemporary standards discipline or maliciously and sadistically for the very purpose of decency.” Wright, 554 F.3d at 268 (quoting Hudson, 503 of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, U.S. at 8, 112 S.Ct. at 1000) (internal quotations omitted)). 112 S.Ct. 995, 998-999, 117 L.Ed.2d 156 (1992) (applying When addressing this component of an excessive force claim Whitley to all excessive force claims); Whitley, 475 U.S. at under the Eighth Amendment calculus, the court can consider 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d the extent of the injury suffered by the inmate plaintiff. While 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom ., the absence of significant injury is certainly relevant, it is John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 not dispositive. Hudson, 503 U.S. at 7, 112 S.Ct. at 999. The (1973)). extent of an inmate's injury is but one of the factors to be considered in determining a prison official's use of force was

*11 Analysis of claims of cruel and unusual punishment “unnecessary and wanton”; courts should also consider the requires both objective examination of the conduct's effect need for force, whether the force was proportionate to the and a subjective inquiry into the defendant's motive for his or need, the threat reasonably perceived by the officials, and her conduct. Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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what, if anything, the officials did to limit their use of force. by Sergeant Sigona, pulled out of the holding pen by his Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (citing Johnson, hair, and thrown to the floor and kneed in the nose. During 481 F.2d at 1033). “But when prison officials use force his deposition, however, plaintiff testified that five or six to cause harm maliciously and sadistically, ‘contemporary corrections officers rushed into the holding pen directing him standards of decency are always violated.... This is true to move to the back, which he could not do because there whether or not significant injury is evident.’ “ Wright, 554 was no room. Plaintiff's Dep. Tr. at pp. 16 and 51. From F.3d at 268-69 (quoting Hudson, 503 U.S. at 9, 112 S Ct. at there, plaintiff is not exactly sure what happened; he does not 1000). That is not to say, however, that “every malevolent know whether he was pushed intentionally, only that “[he] touch by a prison guard gives rise to a federal cause of was taken down ... [and] ... kneed in the nose.” Id. at p. 16. action.” Griffen, 193 F.3d at 91 (citing Romano v. Howarth, Additionally, at the time of the incident, plaintiff did not know 998 F.2d 101, 105 (2d Cir.1993)); see also Johnson, 481 F.2d who the officers involved were, who “took him down”, or at 1033 (“Not every push or shove, even if it later may seem who kneed him in the nose, and could not say whether there unnecessary in the peace of a judge's chambers, violates a were also officers on the floor with him. 4 Id. at pp. 16-17, 52. prisoner's constitutional rights”).

Plaintiff further testified that after he fell to the floor, he was lifted and pulled out of the cage by his hair, and then he hit the

*12 Addressing the objective prong of the Eighth floor again. Id. at p. 18. Again, plaintiff admittedly does not Amendment analysis, the fact that Cicio suffered minor know how he ended up on the floor a second time, or whether though discernable injuries from the use of force distinguishes he fell or the corrections officers fell on him, although he this case from others in which the lack of injury has recalls that he was on the floor with a couple of corrections justified summary judgment dismissing excessive force officers on top of him. Id. claims under the Eighth Amendment. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (the fact

4 Plaintiff later learned the names of the officers he that the plaintiff, who claims he was “bumped, grabbed, identified in his complaint when he received a copy elbowed, and pushed” by the defendants did not rise to a of the misbehavior report that was issued to him as level of constitutional significance since plaintiff did “not a result of the incident. Plaintiff's Dep. Tr. at p. 17. maintain that he experienced any pain or injury as a result of the physical contact”); Cunningham v. Rodriguez, No. 01 Under the circumstances presented, even accepting as true Civ. 1123, 2002 WL 31654960, at *5 (S.D.N.Y. Nov. 22, plaintiff's version of the events, when considering the four factors informing the subjective analysis no reasonable 2002). 3 Under the circumstances now presented it would

factfinder could conclude that the force applied was malicious be inappropriate to find, as a matter of law, that objectively or sadistic for the purpose of causing plaintiff harm and plaintiff's injuries were not sufficiently serious to rise to a not in a good faith effort to maintain discipline. Moreover, constitutionally cognizable level. considering the extent of the force applied and the relatively minor injuries suffered even by plaintiff's account, coupled

3 Copies of all unreported decisions cited in this with the lack of evidence of malicious motives on the part document have been appended for the convenience of the corrections officers involved, I recommend a finding of the pro se plaintiff. [Editor's Note: Appended that the use of force was truly de minimis and did not abridge decisions deleted for Westlaw purposes.] plaintiff's Eighth Amendment rights. 5 Turning to the subjective element, the record is devoid of any evidence from which a reasonable factfinder could conclude

5 By plaintiff's own account, the injures suffered as that this element of plaintiff's excessive force claim against a result of the incident were minor. See Plaintiff's Manna has been met. Rather than representing an unprovoked Dep. Tr. at pp. 21-26. use of force, by plaintiff's own version, the use of force against the plaintiff occurred during a period of turmoil

2. Failure to Intervene when one or more disruptive inmates in a group of between *13 A corrections worker who, though not participating, sixteen and eighteen combined in a single holding cell became if present when an assault upon an inmate occurs unruly and were being urged to lash out against corrections may nonetheless bear responsibility for any resulting officers. Plaintiff alleges in his complaint and states in a constitutional deprivation. See Anderson v. Branen, 17 F.3d sworn declaration that he was pushed into a corrections officer 552, 557 (2d Cir.1994). It is well-established that a law Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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enforcement official has an affirmative duty to intervene indifference claims as a matter of law due to his failure to on behalf of an individual whose constitutional rights are assert the existence of a serious medical need and additionally being violated in his or her presence by other officers. See for lack of any evidence to satisfy the subjective element of Mowry v. Noone, No. 02-CV-6257 Fe, 2004 WL 2202645, the controlling test. at *4 (W.D.N.Y. Sept.30, 2004); see also Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001) (“Failure to intercede *14 Claims that prison officials have intentionally results in [section 1983] liability where an officer observes disregarded an inmate's medical needs are encompassed excessive force being used or has reason to know that it will within the Eighth Amendment's prohibition of cruel and be.”) (citations omitted). In order to establish liability on the unusual punishment. Estelle, 429 U.S. at 104, 97 S.Ct. at part of a defendant under this theory, a plaintiff must prove the 291 (1976). The Eighth Amendment's prohibition of cruel use of excessive force by someone other than the individual and unusual punishment proscribes punishments that involve and that the defendant under consideration 1) possessed the “unnecessary and wanton infliction of pain” and are actual knowledge of the use by another corrections officer incompatible with “the evolving standards of decency that of excessive force; 2) had a realistic opportunity to intervene mark the progress of a maturing society.” Id.; see also Whitley, and prevent the harm from occurring; and 3) nonetheless 475 U.S. at 319, 106 S.Ct. at 1084 (citing, inter alia, Estelle ). disregarded that risk by intentionally refusing or failing to While the Eighth Amendment does not mandate comfortable take reasonable measures to end the use of excessive force. prisons, neither does it tolerate inhumane treatment of See Curley, 268 F.3d at 72; see also Espada v. Schneider, those in confinement; thus the conditions of an inmate's 522 F.Supp.2d 544, 555 (S.D.N.Y.2007). Mere inattention confinement are subject to Eighth Amendment scrutiny. or inadvertence, it should be noted, does not rise to a level Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, of deliberate indifference sufficient to support liability for 128 L.Ed.2d 811 (1994) (citing Rhodes v. Chapman, 452 U.S. failure to intervene. See, e.g., Schultz v. Amick, 955 F.Supp. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981)). 1087, 1096 (N.D.Iowa 1997) (noting that “liability in a § 1983 ‘excessive force’ action cannot be founded on mere A claim alleging that prison conditions violate the Eighth negligence”) (citing, inter alia, Daniels v. Williams, 474 U.S. Amendment must satisfy both an objective and subjective 327, 335-36, 106 S.Ct. 662, 667, 88 L.Ed.2d 662 (1986)). requirement-the conditions must be “sufficiently serious”

from an objective point of view, and the plaintiff must Based upon my finding that plaintiff's Eighth Amendment demonstrate that prison officials acted subjectively with rights were not violated through the actions of defendant “deliberate indifference”. See Leach v. Dufrain, 103 Manna, there can be no cognizable claim for liability on the F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson part of defendants Sigona and Ruston for failure to intervene v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 and protect plaintiff from the constitutional violation. See (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, Curley, 268 F.3d at 72. I therefore recommend that plaintiff's at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.); claims against those defendants be dismissed as well. see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321,

115 L.Ed.2d 271. Deliberate indifference exists if an official “knows of and disregards an excessive risk to inmate health

C. Medical Indifference or safety; the official must both be aware of facts from which The second component of plaintiff's complaint alleges that the inference could be drawn that a substantial risk of serious defendants Vega and Ryerson failed to provide him with harm exists, and he must also draw the inference.” Farmer, needed medical treatment. Plaintiff's claim against Nurse 511 U.S. at 837, 114 S.Ct. at 1978; Leach, 103 F.Supp.2d at Vega apparently stems from her failure, upon examining Cicio 546 (citing Farmer); Waldo, 1998 WL 713809, at *2 (same). immediately following the March 7, 2006 incident, to arrange for him to see a doctor or to prescribe pain medication. The allegations against defendant Nurse Administrator Ryerson 1. Serious Medical Need result from her alleged failure to process sick call slips In order to state a medical indifference claim under the submitted on several occasions following the incident by Eighth Amendment, a plaintiff must allege a deprivation plaintiff. While plaintiff's summary judgment motion does not involving a medical need which is, in objective terms, “ speak directly to this claim, he apparently seeks summary ‘sufficiently serious' “. Hathaway v. Coughlin, 37 F.3d 63, 66 judgment on the issue of liability on this claim as well. For (2d Cir.1994) (quoting Wilson, 501 U.S. at 298, 111 S.Ct. at their part, defendants urge dismissal of plaintiff's medical 2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S. Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). A medical a substantial risk of serious harm exists, and he [or she] must need is serious for constitutional purposes if it presents “ ‘a also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. condition of urgency’ that may result in ‘degeneration’ or at 1979; Leach, 103 F.Supp.2d at 546 (citing Farmer, 511 U.S. ‘extreme pain’.” Chance v. Armstrong, 143 F.3d 698, 702 (2d at 837, 114 S.Ct. at 1979); Waldo, 1998 WL 713809, at *2 Cir.1998) (citations omitted). A serious medical need can also (same). exist where “ ‘failure to treat a prisoner's condition could result in further significant injury or the unnecessary and It should be noted that the Eighth Amendment does not wanton infliction of pain’ “; since medical conditions vary in afford prisoners a right to medical treatment of their choosing; severity, a decision to leave a condition untreated may or may the question of which diagnostic techniques and treatments not be unconstitutional, depending on the facts. Harrison v. should be administered to address an inmate's medical Barkley, 219 F.3d 132, 136-37 (2d Cir.2000) (quoting, inter condition is a “classic example of a matter for medical alia, Chance, 143 F.3d at 702). Relevant factors informing judgment”, and, accordingly, prison medical personnel are this determination include whether the plaintiff suffers from vested with broad discretion to determine what method of an injury that a “ ‘reasonable doctor or patient would find care and treatment to provide to their patients. Estelle, 429 important and worthy of comment or treatment’ “, a condition U.S. at 107, 97 S.Ct. at 293; Chance, 143 F.3d at 703 that “ ‘significantly affects' “ a prisoner's daily activities, or (citation omitted); Rosales v. Coughlin, 10 F.Supp.2d 261, “ ‘the existence of chronic and substantial pain.’ “ Chance, 264 (W.D.N.Y.1998) (citation omitted). 143 F.3d at 701 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. The record now before the court fails to substantiate plaintiff's Apr.3, 2002) (Sharpe, M.J.) (citation omitted). claims of deliberate indifference. Even if plaintiff could

establish the existence of a serious medical need, the record *15 The record in this case fails to establish that does not provide a basis for a reasonable factfinder to plaintiff experienced a serious medical need of constitutional conclude that either defendant Vega or defendant Ryerson proportions as a result of the incident complained of. Plaintiff was deliberately indifferent to such a need. Plaintiff's claim alleges that during the incident he suffered from a swollen against Nurse Vega is that on one occasion she failed to and painful wrist as well as head pain. Complaint (Dkt. No. provide pain medication or to refer the plaintiff to a physician 1) Statement of Facts ¶ 6; see also Plaintiff's Dep. Tr. at pp. as a result of his injuries. Such an allegation of a single 21-22, 24-26. The record, including plaintiff's submission in instance of delayed or denied medical care does not establish support of his summary judgment motion and later opposition constitutional claim of medical deliberate indifference. See to defendants' motion, fails to provide further elaboration and Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.2003). contains no evidence of any extreme pain or degeneration. Instead, the record discloses only injuries of a transitory *16 Turning to the allegations against defendant Ryerson, nature which are insufficient to establish existence of a those stem from an alleged failure to process sick call slips serious medical need of constitutional proportions. Ford v. on four or five occasions following the March 7, 2006 Phillips, No. 05 Civ. 6646(NRB), 2007 WL 946703, at *12 incident. Even assuming the existence of a serious medical (S.D.N.Y. Mar.27, 2007) (finding that minor bruising, slight condition prompting the need for medical care and defendant bleeding, and abrasions are no injuries that may produce Ryerson's failure to process sick call slips over a brief death, degeneration or extreme pain and that no reasonable period of time, these facts alone do not suffice to establish juror could find otherwise). a deliberate indifference claim as against defendant Ryerson

since there is no evidence suggesting that the minimal delay caused any significant adverse effect to plaintiff's

2. Deliberate Indifference health. See Bumpus v. Canfield, 495 F.Supp.2d 316, 324 In addition to establishing the existence of a serious medical (W.D.N.Y.2007). Accordingly, I recommend dismissal of need, to prevail on an Eighth Amendment claim a plaintiff plaintiff's deliberate indifference claim against defendant must also establish indifference to that condition on the part Ryerson on this alternative basis. of one or more of the defendants. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Deliberate indifference, in a constitutional sense, exists if an official “knows of and disregards an excessive D. Personal Involvement risk to inmate health or safety; the official must both be In their motion defendants assert that even if plaintiff aware of facts from which the inference could be drawn that could establish a cognizable excessive force or deliberate Cicio v. Graham, Not Reported in F.Supp.2d (2010)

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indifference claim, his cause of action against defendant dismissing plaintiff's claim against defendant Graham, Graham, the superintendent at Auburn, is legally insufficient finding that the proof at trial could potentially establish that based upon his lack of personal involvement in any conduct defendant Graham learned, through the appeal of plaintiff's forming the basis for those claims. grievance denial, that he was deprived of medical care at

a point when he had an opportunity to cure that alleged Personal involvement of defendants in alleged constitutional constitutional deficiency. See Report and Recommendation deprivations is a prerequisite to an award of damages under dated February 10, 2009 (Dkt. No. 29) at pp. 17-21. The more section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) fully developed record now before the court, however, firmly (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d establishes that this is not the case. There is no indication Cir.1991)) and McKinnon v. Patterson, 568 F.2d 930, 934 that defendant Graham was aware of plaintiff's circumstances (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 prior to plaintiff's appeal on April 12, 2006 of the IGRC's L.Ed.2d 792 (1978)). In order to prevail on a section 1983 grievance denial. See Graham Decl. (Dkt. No. 38-7) ¶ 6. By cause of action against an individual a plaintiff must show that point, plaintiff had been transferred out of Auburn, and some tangible connection between the constitutional violation thus even if defendant Graham was placed on notice of a alleged and that particular defendant. See Bass v. Jackson, 790 constitutional deprivation in the form of denial of adequate F.2d 260, 263 (2d Cir.1986). medical treatment, he was no longer in a position to cure

that deficiency. Id. Accordingly, because the record fails to Importantly, a supervisor like Superintendent Graham cannot disclose any basis on which defendant Graham could be held be liable for damages under section 1983 solely by virtue of liable for the constitutional violations alleged, there is an being a supervisor; there is no respondeat superior liability independent, alternate basis for dismissing plaintiff's claims under section 1983. Richardson v. Goord, 347 F.3d 431, 435 against him. (2d Cir.2003); Wright, 21 F.3d at 501. Vague and conclusory allegations that a supervisor has failed to train or properly

IV. SUMMARY AND RECOMMENDATION

monitor the actions of subordinate employees will not suffice The record in this case discloses no basis on which to establish the requisite personal involvement and support a a reasonable factfinder could conclude that plaintiff's finding of liability. Pettus v. Morgenthau, 554 F.3d 293, 300 constitutional right to be free from cruel and unusual (2d Cir.2009) (“To the extent that [a] complaint attempts to punishment was violated by defendant Manna during the assert a failure-to-supervise claim ... [that claim is insufficient course of the March 7, 2006 incident and that defendants where] it lacks any hint that [the supervisor] acted with Sigona and Ruston failed to intervene to prevent such deliberate indifference to the possibility that his subordinates a violation. The record similarly discloses no basis on would violate [plaintiff's] constitutional rights.”). Culpability which a reasonable factfinder could conclude that plaintiff on the part of a supervisory official for a civil rights suffered injuries of constitutional significance as a result violation can, however, be established in one of several ways, of that incident or that the defendants were subjectively including when that individual 1) has directly participated indifferent to the medical needs presented by those injuries. in the challenged conduct; 2) after learning of the violation Finally, the record discloses no basis on which a reasonable through a report or appeal, has failed to remedy the wrong; factfinder could assign liability on the part of defendant 3) created or allowed to continue a policy or custom under Graham, as superintendent of the Auburn Correctional which unconstitutional practices occurred; 4) was grossly Facility. Accordingly, it is hereby respectfully negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating

RECOMMENDED that defendants' motion for summary that unconstitutional acts were occurring. Iqbal v. Hasty, 490 judgment (Dkt. No. 38) be GRANTED and that plaintiff's F.3d 143, 152-53 (2d Cir.2007), rev'd on other grounds, sub complaint be dismissed in its entirety, and that based upon that nom., Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 2931 (2009); determination plaintiff's summary judgment motion (Dkt. No. see also Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; 35) be DENIED. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties *17 In my earlier report and recommendation, addressing a may lodge written objections to the foregoing report. Such pre-answer dismissal motion filed by certain of the defendants objections must be filed with the clerk of the court within including Superintendent Graham, I recommended against FOURTEEN days of service of this report. FAILURE Cicio v. Graham, Not Reported in F.Supp.2d (2010) 2010 WL 980272 TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

All Citations 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993). Not Reported in F.Supp.2d, 2010 WL 980272 It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Austin v. Pappas, Not Reported in F.Supp.2d (2008)

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Magistrate Judge Lisa M. Smith for review pursuant to 28 U.S.C. § 636(b)(1). On August 2, 2007, Magistrate Judge

2008 WL 857528

Smith issued a thorough Report and Recommendation (“R Only the Westlaw citation is currently available. & R”), concluding that this Court should grant Defendants' United States District Court, Motion for Summary Judgment on the ground that Plaintiff S.D. New York. has failed to demonstrate that there exists a genuine issue of material fact as to whether his constitutional rights were

Richard AUSTIN, Plaintiff, violated. Plaintiff was advised of his right to file objections to v. the R & R, but he did not do so. Brian PAPPAS, John Does, Yonkers Police Commissioner Charles C. Coles, 1 On August 8, 2005, Plaintiff's claim against Westchester County, Defendants. Westchester County was dismissed by the No. 04-CV-7263 (KMK)(LMS). Honorable Gerald E. Lynch, to whom this case was | initially assigned. On February 28, 2006, the case March 31, 2008. was transferred to White Plains and reassigned to Judge Colleen McMahon. The case was reassigned Attorneys and Law Firms to the undersigned on August 6, 2007. Mr. Richard Austin, Stormville, NY, pro se. A district court reviewing a report and recommendation “ ‘may accept, reject, or modify, in whole or in part, the Rory Carleton McCormick, Esq., Corporation Counsel, City findings or recommendations made by the magistrate judge.’ of Yonkers, Yonkers, NY, for Defendants. “ Donahue v. Global Home Loans & Fin., Inc., No. 05- CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)

ORDER ADOPTING REPORT & RECOMMENDATION (1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to a magistrate judge's report KENNETH M. KARAS, District Judge. and recommendation. The objections must be “specific” and “written,” and must be made “within 10 days after

*1 Richard Austin (“Plaintiff”) filed this suit pursuant to being served with a copy of the recommended disposition.” 42 U.S .C. § 1983 (“Section 1983”) against Yonkers Police Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Officer Brian Pappas (“Defendant Pappas”), several John Doe Yonkers Police Officers (“John Doe Defendants”), former

Where a party does not submit an objection, “ ‘a district court Yonkers Police Commissioner Charles C. Cola (“Defendant need only satisfy itself that there is no clear error on the face Cola”) (whose name is misspelled in Plaintiff's Complaint of the record.’ “ Donahue, 2007 WL 831816, at *1 (quoting as Charles C. Coles), and Westchester County (collectively, Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)). In “Defendants”), alleging violations of Plaintiff's civil rights addition, a party's failure to object waives that party's right under the First, Fourth, Fifth, Eighth, and Fourteenth to challenge the report and recommendation on appeal. See Amendments of the United States Constitution, along with Fed. Deposit Ins. Corp. v. Hillcrest Assocs., 66 F.3d 566, 569 various supplemental state law claims. 1 (Compl.¶¶ 17, (2d Cir.1995) (“Our rule is that ‘failure to object timely to a 19.) Plaintiff alleged that these violations occurred when magistrate's report operates as a waiver of any further judicial Defendants failed to protect Plaintiff from Franklyn Kelley, a review of the magistrate's decision.’ “ (quoting Small v. Sec'y private individual who physically attacked Plaintiff during the of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989))). course of Plaintiff's May 16, 2003 arrest. ( Id. ¶ 10.) Plaintiff alleged that Defendant Pappas and the John Doe Defendants

*2 Here, Plaintiff has not filed objections to the R & R. handcuffed him and pinned him to the ground while Franklyn Accordingly, the Court has reviewed the R & R for clear error Kelley repeatedly kicked and punched Plaintiff in the face. only. In so doing, the Court adopts the conclusion reached in ( Id. (“The officers did nothing to protect the plaintiff from this the R & R that Defendants' Motion for Summary Judgment vicious assault, even though plaintiff was helpless and in their should be granted, but the Court does so in part on different custody [.]”).) Defendants moved for summary judgment, grounds than those relied on in the R & R. and this Motion was referred by Judge McMahon to Chief Austin v. Pappas, Not Reported in F.Supp.2d (2008)

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First, the Court agrees with Magistrate Judge Smith that by failing to act on information Defendants' noncompliance with Local Civil Rule 56.2 indicating that unconstitutional acts should be overlooked because any prejudice resulting from were occurring.’ noncompliance was cured by the following: (i) Magistrate Judge Smith advised Plaintiff of the nature of summary judgment during a March 23, 2007 conference; and (ii)

Id. at 127 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Magistrate Judge Smith annexed a Rule 56.2 notice to the Cir.1995)); accord Hayut v. State Univ. of N.Y., 352 F.3d R & R, a document to which Plaintiff was free to file 733, 753 (2d Cir.2003); Schiller v. City of New York, No. 04- objections. See Narumanchi v. Foster, No. 02-CV-6553, 2006 CV-7922, 2008 WL 200021, at *4 (S.D.N.Y. Jan. 23, 2008); WL 2844184, at *2 (E.D.N.Y. Sept. 29, 2006) (refusing to Fair v.. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *4 deny defendant's motion for summary judgment based on (S.D.N.Y. Sept. 28, 2006). Further, a Section 1983 plaintiff failure of defendant to comply with Local Civil Rule 56.2 must “allege a tangible connection between the acts of the because “[a]ny prejudice to pro se plaintiffs [was] cured” by defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d court's actions). 260, 263 (2d Cir.1986); see also Fair, 2006 WL 2801999, at *4 (citing Bass ).

As expressed in the R & R, though Plaintiff did not file any opposition to Defendants' Motion for Summary Judgment,

*3 In support of their Motion for Summary Judgment, Defendants were still required to meet their burden of Defendants submitted evidence that Defendant Pappas did not demonstrating to the Court that “no material issue of fact directly participate in the arrest of Plaintiff, but he instead remains for trial.” See Amaker v. Foley, 274 F.3d 677, 681 (2d arrested Plaintiff's accomplice. For example, on April 8, 2004, Cir.2001). The Court finds no clear error in Magistrate Judge at a hearing before the Honorable Richard A. Molea of the Smith's determination that Defendants satisfied this burden. Westchester County Court, Defendant Pappas testified that he remained with Plaintiff's accomplice while other officers

With respect to Defendants Pappas and Cola, the Court finds arrested Plaintiff. (Defs.' Affirmation in Supp., Ex. J, 50-51.) that Plaintiff has failed to offer any evidence demonstrating Further, in response to interrogatories served on him by that they were personally involved in the alleged violation of Plaintiff, Defendant Pappas stated that he “did not observe Plaintiff's constitutional rights. The “ ‘personal involvement what transpired during the course of plaintiff's arrest.” ( Id., of defendants in alleged constitutional deprivations is a Ex. L.) Finally, Defendants offer a police report indicating prerequisite to an award of damages under § 1983.’ “ Back v. that “Pappas was detaining [Plaintiff's accomplice] in the Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 garage area, as additional units arrived and placed [Plaintiff] (2d Cir.2004) (quoting McKinnon v. Patterson, 568 F.2d 930, into custody.” ( Id., Ex. C.) 934 (2d Cir.1977)). For purposes of Section 1983 liability, personal involvement can be established by evidence that:

Plaintiff has failed to offer any evidence refuting Defendant Pappas' version of events. In other words, Plaintiff has offered no evidence demonstrating that Defendant Pappas

‘(1) the defendant participated directly was actually one of the officers who arrested him and in the alleged constitutional violation, allegedly pinned him to the ground while Kelley assaulted (2) the defendant, after being informed him. In fact, during his deposition testimony, Plaintiff of the violation through a report admitted that he was not sure whether Defendant Pappas or appeal, failed to remedy the was one of the police officers who arrested him, and that wrong, (3) the defendant created the reason Defendant Pappas was named as a defendant in a policy or custom under which the present suit was because Plaintiff had seen his name unconstitutional practices occurred, or on Plaintiff's felony complaint. ( Id., Ex. G, 32-35.) As allowed the continuance of such a such, the unrefuted evidence before the Court demonstrates policy or custom, (4) the defendant that Defendant Pappas was not one of the officers directly was grossly negligent in supervising involved in Plaintiff's arrest. Plaintiff therefore has failed subordinates who committed the to satisfy a prerequisite to liability under Section 1983- wrongful acts, or (5) the defendant namely that Defendant Pappas had personal involvement exhibited deliberate indifference ... in the alleged violation of Plaintiff's constitutional rights.

Austin v. Pappas, Not Reported in F.Supp.2d (2008)

2008 WL 857528

See Back, 365 F.3d at 122. Thus, Plaintiff's claim against 554745, at *6 (S.D.N.Y. Feb. 26, 2003) (“[P]laintiff has Defendant Pappas must be dismissed. put forth no evidence pointing to defendant ['s] personal

involvement in plaintiff's alleged deprivation of rights .... Plaintiff alleged that Defendant Cola, Yonkers Police Plaintiff's conclusory allegations regarding defendant['s] Commissioner at the time of Plaintiff's 2003 arrest, violated alleged supervisory role, without more, cannot withstand Plaintiff's constitutional rights by “authoriz[ing], tolerat[ing], summary judgment.”). Further, nothing in the record, even as institutionalized practices, and ratif[ying] the misconduct drawing all inferences in Plaintiff's favor, suggests any [of Defendant Pappas and John Doe Defendants].” (Compl.¶ tangible connection between Defendant Cola's training or 14.) More specifically, Plaintiff charges Defendant Cola with supervision of subordinate officers and the alleged violation failure to properly: (1) discipline subordinate officers; (2) take of Plaintiff's rights. In fact, the record contains no evidence adequate precautions in hiring subordinate officers; (3) report with regard to Defendant Cola whatsoever. Without such criminal acts by police personnel to the Westchester County evidence, no reasonable jury could conclude that Defendant District Attorney; and (4) establish a system for dealing Cola had personal involvement in the alleged violation of with complaints about police misconduct. ( Id. ) Plaintiff does Plaintiff's constitutional rights, which means that Plaintiff not assert that Defendant Cola directly participated in the has failed to satisfy a prerequisite to Section 1983 liability, violation of his constitutional rights; instead, Plaintiff urges and therefore that Defendant Cola is entitled to summary the Court to find Defendant Cola liable under Section 1983 judgment in his favor. See Davis v. Kelly, 160 F.3d 917, based on his role as supervisor of Defendant Pappas and the 921 (2d Cir.1998) (“After an opportunity for discovery, John Doe Defendants. undisputed allegations that [a] supervisor lacked personal

involvement will ultimately suffice to dismiss that official “It is well settled, however, that the doctrine of respondeat from the case.”). superior standing alone does not suffice to impose liability for damages under section 1983 on a defendant acting in In sum, the Court finds that Plaintiff has failed to establish the a supervisory capacity.” See Hayut, 352 F.3d at 753 (citing personal involvement of Defendants Pappas and Cola in the Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). alleged violation of his rights. For reasons set forth more fully Instead, it is necessary to establish a supervisory official's in the R & R, the Court also dismisses the Complaint as to the personal involvement in the alleged constitutional violation. John Doe Defendants because Plaintiff's time limit to amend See id.; Fair, 2006 WL 2801999, at *4. the Complaint in order to substitute in named defendants has

lapsed. Therefore, the Court finds it unnecessary to reach *4 Plaintiff has failed to provide the Court with any the question of whether Plaintiff has adequately established evidence from which a reasonable jury could conclude that an underlying violation of his constitutional rights. Finally, Defendant Cola was personally involved in the alleged having determined that no cognizable federal claims exist, the violation of Plaintiff's constitutional rights. Plaintiff has Court will follow Magistrate Judge Smith's recommendation offered no evidence demonstrating that Defendant Cola was in declining to exercise jurisdiction over the state law claims. aware of and failed to remedy constitutional violations by subordinate officers, or that he acted in a grossly negligent *5 Accordingly, it is hereby: or deliberately indifferent manner in supervising or training subordinate officers. There is also no evidence in the record ORDERED that the Report and Recommendation dated to support a theory that Defendant Cola created a policy August 2, 2007, is ADOPTED on the grounds set forth in this or custom that fostered and led to the alleged violation of Order; and it is further Plaintiff's rights. See Hayut, 352 F.3d at 754 (finding as fatal to plaintiff's Section 1983 claim the fact that there ORDERED that Defendants' Motion for Summary Judgment existed “no evidence that, after becoming aware of the pursuant to Federal Rule of Civil Procedure 56 is GRANTED. alleged harassment, any of the [supervisory officials] failed to respond or remedy the situation, that any of these [supervisory The Clerk of Court is respectfully directed to enter judgment officials] created or allowed a policy to continue under which in favor of Defendants, to terminate Defendant's Motion (Dkt. alleged harassment could occur, or that they were grossly No. 28), and to close this case. negligent in monitoring [the alleged harasser's] conduct”); Harris v. City of New York, No. 01-CV-6927, 2003 WL

SO ORDERED.

Austin v. Pappas, Not Reported in F.Supp.2d (2008)

2008 WL 857528

All Citations Not Reported in F.Supp.2d, 2008 WL 857528 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Henderson v. Annucci, Not Reported in Fed. Supp. (2016) 2016 WL 3039687

BACKGROUND KeyCite Yellow Flag - Negative Treatment Distinguished by Animashaun v. Afify, W.D.N.Y., July 2, 2020 Plaintiff commenced this civil rights action pursuant to 42 U.S.C. § 1983 alleging that while he was incarcerated at

2016 WL 3039687

the Attica Correctional Facility, Correction Officer Dunford Only the Westlaw citation is currently available. sexually assaulted him during a frisking on September 10, United States District Court, W.D. New York. 2013. He asserts that after being cut down from a suicide attempt, Officer Dunford pulled up the waistband of his Thomas Adam HENDERSON, Plaintiff, underwear so as to give him a “wedgie”, and then swiped v. his fingers between plaintiff's butt cheeks “roughly pressing” Anthony ANNUCCI, et al., Defendants. against his anus. Complaint [1], p. 11. After complaining about this conduct, plaintiff states that he was informed that 14-CV-445A this procedure is known as a “credit card check”, performed to | Signed 03/14/2016 determine if an inmate is hiding weapons. Id. at 11, 13, 14, 17. Plaintiff argues that the procedure constitutes a sexual assault. Attorneys and Law Firms He also asserts that the “credit card check” procedure was Thomas Adam Henderson, Alden, NY, pro se. performed on him twice during a pat frisk on October 22, 2013 by Corrections Officer J. Hoinski. 2 Id. at p. 13. Finally,

Christopher L. Boyd, NYS Attorney General's Office, Buffalo, NY, for Defendants. plaintiff alleges that Correction Officer B. Naab performed

the “credit card check” on him on May 16, 2014. Id. at pp. 16-17.

REPORT, RECOMMENDATION AND ORDER

2 The allegations in the plaintiff's original complaint JEREMIAH J. MCCARTHY, United States Magistrate Judge attribute this conduct to “John Doe Number 1”. Id. at 13. John Doe Number 1 was later identified

*1 This case has been referred to me by Hon. Richard J. as Officer Hoinski. See Decision & Order of Hon. Arcara for supervision of pretrial proceedings, including the Elizabeth A. Wolford dated December 29, 2014 preparation of a Report and Recommendation on dispositive [11]. motions. [23]. 1 Plaintiff Thomas Adam Henderson brought Plaintiff claims that he complained to New York State this action pursuant to 42 U.S.C. § 1983 claiming that his civil Department of Corrections and Community Supervision rights were violated when the defendants allegedly assaulted (“DOCCS”) Commissioner Anthony Annucci, DOCCS Chief him on September 10, 2013, October 22, 2013 and May 16,

Inspector General Vernon J. Fonda, Attica Correctional 2014. Complaint [1], pp. 11,13. Before me are defendants' Facility Superintendent Mark L. Bradt, and others about the motion to dismiss [22], plaintiff's motion to amend the conduct which he considered to be sexual assaults. Id. at pp. complaint [31], and plaintiff's motion for appointment of 12, 15. He argues that these supervisory defendants failed counsel [32].

to properly investigate and respond to his complaints in violation of his Eighth Amendment rights. Id. at 12. 3

1 Bracketed references are to the CM/ECF docket entries.

3 Plaintiff's original complaint asserted various other For the reasons stated below, I recommend that defendants' claims against numerous defendants which did not motion to dismiss be granted in part and denied in part, the survive the initial screening in this case. Plaintiff's plaintiff's motion to amend be granted in part and denied in claims that defendants failed to comply with part, and that plaintiff's motion for the appointment of counsel the requirements of the Prison Rape Elimination be denied. Act of 2003 (“PREA”) were dismissed because PREA does not create a private right of action.

Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

2016 WL 3039687

Decision and Order of Hon. Richard J. Arcara a plausible claim for relief will ... be a context-specific task filed November 17, 2014 (“November 17, 2014 that requires the reviewing court to draw on its judicial Decision & Order”) [7], p. 7. Also, plaintiff's experience and common sense”. Ashcroft v. Iqbal, 556 U.S. claims based upon a failure to investigate, 662, 679 (2009) (internal citation omitted). “While legal failure to intercede, harassment, retaliation, and conclusions can provide the framework of a complaint, failure to provide medical treatment against they must be supported by factual allegations. When there defendants Superintendent Dale Artus, Capt. are well-pleaded factual allegations, a court should assume Brown Lieut.Kaczmarek, Sgt.Olles, Sgt. Brown, their veracity and then determine whether they plausibly Sgt.Diehl, Officer Higgins, Officer Andrews, give rise to an entitlement to relief”. Id.; see also Bell Officer Sippel, and Nurse Kekich were all Atlantic Corp. v. Twombly, 550 U.S. 544, 565-66 (2007) dismissed. Id. at pp. 11-19. (factual allegations must be enough to raise a right to relief

above the speculative level, on the assumption that all the *2 In his original complaint, plaintiff stated that he did not allegations in the complaint are true (even if doubtful in fact)). file a grievance as to any of the incidents because he did Under Iqbal, factual allegations must be sufficient to support not believe he had to file a grievance. Instead, he contended necessary legal conclusions. Iqbal, 556 U.S. at 680-81. “A that he complied with DOCCS Directive 4028A. Id. at pp. court ‘can choose to begin by identifying pleadings that, 5, 19. The defendants move to dismiss on the grounds that

because they are no more than conclusions, are not entitled to plaintiff failed to exhaust his administrative remedies. Motion the assumption of truth’ ”. Hayden v. Paterson, 594 F.3d 150, to Dismiss [22-1], p. 4. Subsequently, the plaintiff sought 161 (2d Cir. 2010). The court must then consider the factual leave to amend his Complaint to allege that he did, in fact, allegations in the complaint to determine if they plausibly file a grievance regarding one of the three “credit card suggest an entitlement to relief. Iqbal, 556 U.S. at 681; see check” incidents. Plaintiff's Motion to Amend [31], p.3. The also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). defendants oppose that motion. Thus, while the pleading standard under Fed. R. Civ. P. (“Rule”) 8 does not require detailed factual allegations, it

DISCUSSION

demands more than unadorned, conclusory accusations. A pleading that offers labels and conclusions or a formulaic

A. Standard of Review recitation of the elements of a cause of action is not The defendants move to dismiss the claims in the Complaint sufficient. To survive a motion to dismiss, a complaint must pursuant to Rule 12 of the Federal Rules of Civil Procedure. contain sufficient factual matter, accepted as true, to state The court accepts the material facts alleged in the complaint a claim to relief that is plausible on its face. A claim has as true and draws all reasonable inferences in favor of the facial plausibility when the plaintiff pleads factual content plaintiff and against the defendants. See Chance v. Armstrong, that allows the court to draw the reasonable inference 143 F.3d 698, 701 (2d Cir. 1998). However, legal conclusions,

that the defendant is liable for the misconduct alleged. deductions or opinions couched as factual allegations are not The plausibility requirement is not akin to a probability given a presumption of truthfulness. Albany Welfare Rights requirement, but it asks for more than a sheer possibility that Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. a defendant has acted unlawfully. Where a complaint pleads 1972). The court is required to read the complaint broadly

facts that are merely consistent with a defendant's liability, it and with great latitude on a motion to dismiss. Yoder v. stops short of the line between possibility and plausibility of Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. entitlement to relief. Iqbal, 556 U.S. at 681. 1985). The court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally

B. Exhaustion of Administrative Remedies sufficient”. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. *3 The Prison Litigation Reform Act of 1995 (“PLRA”), 1985). 42 U.S.C. § 1997e(a), states in relevant part, “[n]o action shall be brought with respect to prison conditions under

The Supreme Court has clarified the pleading standard section 1983 of this title, or any other Federal law, by a required to withstand a motion to dismiss. “[O]nly a prisoner confined in any jail, prison, or other correctional complaint that states a plausible claim for relief survives a facility until such administrative remedies as are available motion to dismiss. Determining whether a complaint states are exhausted”. 42 U.S.C. § 1997e(a). This administrative Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

2016 WL 3039687

exhaustion requirement “applies to all inmate suits about Inmate Grievance Resolution Committee (“IGRC”). See 7 prison life, whether they involve general circumstances or N.Y.C.R.R. § 701.5(a). Second, if the inmate is dissatisfied particular episodes, and whether they allege excessive force with the IGRC decision, he may appeal to the prison or some other wrong”. Porter v. Nussle, 534 U.S. 516, 532 superintendent. Id., § 701.5(c). Finally, DOCCS permits an (2002). inmate to appeal the superintendent's written decision to the

Central Office Review Committee (“CORC”). Id., § 701.5(d). “Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, On May 15, 2014, DOCCS amended Directive 4040, relating Congress afforded corrections officials time and opportunity to sexual abuse and sexual harassment complaints. As to address complaints internally before allowing the initiation revised, Directive 4040 states: of a federal case”. Nussle, 534 U.S. at 524-25. The act's

“The Department has zero tolerance for sexual abuse and “dominant concern [is] to promote administrative redress, sexual harassment. Consistent with this policy and the filter out groundless claims, and foster better prepared Prison Rape Elimination Act (PREA) Standards (28 C.F.R. litigation of claims aired in court” (id. at 528), and clarify § 115.52(a)), an inmate is not required to file a grievance the contours of the controversy once it is litigated. Id. at 525. concerning an alleged incident of sexual abuse or sexual In Woodford v. Ngo, 548 U.S. 81, 83-84, 90, 126 (2006), harassment to satisfy the [PLRA] exhaustion requirement the Court held that the exhaustion requirement of the PLRA (42 U.S.C. § 1997e(a)) before bringing a lawsuit regarding cannot be satisfied by an “untimely or otherwise procedurally an allegation of sexual abuse as long as the matter was defective administrative grievance or appeal”, and that the reported as set forth below.” PLRA requires “proper exhaustion”, which “means using all steps that the agency holds out, and doing so properly (so that

*4 See DOCCS Directive 4040, Plaintiff's Opposition to the agency addresses the issues on the merits)”. Motion to Dismiss, [27], Exhibit B, p.1. Although exhaustion under the PLRA is an affirmative Under the revised procedure, an allegation of sexual abuse defense, not a jurisdictional requirement, see Jones v. Bock, shall be deemed exhausted for purposes of the PLRA “if 549 U.S. 199, 211 (2007), a demonstrated failure to exhaust official documentation confirms that: warrants dismissal of the plaintiff's claims. Jones, 549 U.S. at 216; see also Wilson v. Yussuff, 2015 WL 77433, *5

(1) An inmate who alleges being the victim of sexual abuse (E.D.N.Y. 2015) (holding that court must dismiss action or sexual harassment reported the incident to facility staff; where inmate did not exhaust administrative remedies). in writing to Central Office staff; to any outside agency that the Department has identified as having agreed to receive

However, the exhaustion requirement may be excused under immediately forward inmate reports of sexual abuse and the following circumstances: “(1) administrative remedies sexual harassment to agency officials under the PREA are not available to the prisoner; (2) defendants have either Standards (28 C.F.R. § 115.51(b)); or to the Department's waived the defense of failure to exhaust or acted in such a Office of the Inspector General; or way as to estop them from raising the defense; or (3) special (2) A third-party reported that an inmate is the victim circumstances, such as a reasonable misunderstanding of the

of sexual abuse and the alleged victim confirmed the grievance procedure, justify the prisoner's failure to comply allegation upon investigation.” with the exhaustion requirement”. Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). Id. C. Available Grievance Procedure

D. Plaintiff's Efforts to Exhaust as to Defendants DOCCS maintains a three-tiered administrative review and Dunford, Hoinski and Nabb appeals system for prisoner grievances. See N.Y. Comp. The defendants' motion to dismiss is based entirely on the Codes R. & Regs. § 701.5. Prior to pursuing a § 1983 argument that plaintiff failed to exhaust his administrative action in federal court, a prisoner in the DOCCS system remedies by filing grievances relating to the three “credit must exhaust all three levels. See Porter, 534 U.S. at 524. card check” incidents set forth in the complaint. Defendants' First, an inmate may file an inmate grievance complaint form

Motion to Dismiss [22]. As noted above, plaintiff's original or a written grievance (if forms are not available) with the Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

2016 WL 3039687

complaint states that he did not utilize the three-tiered administrative grievance procedure to complain about the 5

Plaintiff argues that because claims of sexual September 10, 2013, October 22, 2013 and May 16, 2014 abuse are sensitive and should be dealt with incidents. Complaint [1], pp. 5, 19. Instead, plaintiff argued confidentially, he should be excused from the that he was not required to utilize the grievance procedure exhaustion requirement. Plaintiff's Memorandum because of Directive 4028A. Id. In response to the motion of Law [27], pp. 4-6. He provides no authority in to dismiss, plaintiff also points to the revised language of support of this proposition. While the interests of Directive 4040 as eliminating the need to follow the inmate confidentiality may have motivated the revision of grievance procedure. Plaintiff's Opposition to Motion to Directive 4040, as discussed in Omaro, prior to the Dismiss [27], p. 5. May 15, 2014 revision the plaintiff was required to utilize the inmate grievance process. Omaro, 68 F.

Directive 4028A addresses sexual abuse prevention and Supp. 3d. at p. 367. intervention (staff on inmate). The argument that Directive *5 Unlike Omaro, however, this case involves the 4028A eliminated the need to utilize the inmate grievance application of the revised language in Directive 4040, and procedure was asserted, but rejected, in Omaro v. Annucci, to that extent, appears to be a case of first impression. 68 F. Supp.3d. 359 (W.D.N.Y. 2014). 4 In that case, Omaro's Omaro did not discuss the revised language of Directive claim that he was sexually assaulted in connection with 4040, which was raised for the first time in this case by the the pat-frisk procedure was remarkably similar to the plaintiff in response to the defendants' motion to dismiss. claims asserted in this case. Id. at p. 361. In response Plaintiff's Opposition to Motion to Dismiss [27], Exhibit B. to the defendant's motion that plaintiff failed to exhaust Neither party has presented authority interpreting the revised his administrative remedies, Omaro argued that pursuant to language of Directive 4040. In their reply, defendants do PREA and Directive 4028A, he was not required to utilize not dispute that Directive 4040, as revised, alleviates an the grievance procedure with respect to his sexual assault inmate's need to exhaust the normal grievance procedure claim. Id. at 364-65. The court held that nothing in the text or with respect to sexual assault and sexual harassment claims. legislative history of PREA suggested that it was intended to

Instead, the defendants argue that the revised language of abrogate the PLRA's exhaustion requirement. Id. at 364 citing Directive 4040 does not apply here because the plaintiff's Porter v. Howard, 531 Fed. Appx. 792, 793 (9th Cir. 2013)

allegations are insufficient to constitute a sexual assault under (plaintiff provides no support for his contention that he was PREA. Defendants Reply in support of Motion to Dismiss excused from the requirement that he file an administrative [28], pp. 3-4. Defendants construe plaintiff's claims as merely grievance by operation of PREA). challenging the “pat-frisk” procedure, and argue that such a claim would have to be pursued in the inmate grievance

4 The plaintiff in Omaro was an Attica inmate process through exhaustion to satisfy the PLRA. Id. at pp. 5-6. Derrick R. Omaro, 92A0608. Omaro, 68 F. Supp. 3d. at 359. Henderson, identifies inmate Omaro as

Plaintiff's claims relating to the “credit card check” procedure one of his witnesses in this case. Complaint [1], p. as set forth in the complaint, however, are presented as sexual 19.

assault claims. For example, plaintiff alleges that “Defendant Dunford's sexual abuse cause[d] me pain, suffering and

Similarly, the court in Omaro determined that nothing in the mental distress”. Complaint [1], p. 11, ¶ 2. He claims that text of Directive 4028A suggested that it was intended to limit he complained to defendant Annucci and others regarding or abrogate the administrative remedies available to an inmate the “sexual misconduct of staff-on-inmate sexual abuse”. Id. who alleged sexual misconduct by a staff member. Omaro, at p. 12, ¶6. Plaintiff characterizes the defendants' conduct 68 F. Supp. 3d at 365. The court found that Directive 4028A as constituting sexual assault or sexual abuse throughout addressed the manner in which a complaint of staff-on-inmate his complaint. Id. at p. 13, ¶¶10, 13, 14, 15; p. 14, ¶¶ 16, sexual misconduct may be initiated and obligations of the staff 17, 18, 19, 21; p. 15, ¶¶ 22, 23, 24, 26, 27; p. 16, ¶¶ following such a complaint, but did not establish or address 29, 30, 31; p. 18, ¶¶ 43, 44, 45, 46. The conduct being an inmate's administrative remedies once such a complaint challenged involves corrections staff contacting plaintiff's has been made. Id. at p. 366. 5 Thus, the court held that the genitals, which, depending upon the manner in which plaintiff's unexhausted claims were precluded by the PLRA.

performed, could arguably fall within the scope of conduct Id. at p. 368. that can be construed as “sexual” in nature. Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

2016 WL 3039687

brought by an inmate under the Fourth and Eighth Whether these allegations by plaintiff are sufficient to Amendments. establish a “sexual assault” or “sexual harassment” under

8 It is likely that by the time there was a resolution, PREA (or the Fourth and Eighth Amendments) is not either administrative or judicial, as to whether the currently before me. The defendants' motion to dismiss plaintiff's claims qualify as a “sexual assault” under raised solely the issue of whether plaintiff had exhausted the PREA, an inmate's time to commence the typical inmate grievance procedure. Defendants' Motion to Dismiss grievance process would have passed. [22]. The defendants did not put plaintiff on notice that their argument in support of dismissal was based upon the *6 Directive 4040 was revised with respect to sexual assault fact that plaintiff's allegations were insufficient to constitute claims on May 15, 2014. Plaintiff's Opposition to Motion sexual conduct under PREA. In any event, while I take no

to Dismiss [27], Exhibit B. Although the defendants note position as to whether the plaintiff's allegations allege sexual that the amendment has not been incorporated into the conduct sufficient to state a claim under the Fourth or Eighth New York Code, Rules and Regulations ( see 7 N.Y.C.R.R. Amendments, 6 inasmuch as they are presented as “sexual 701, et seq. ), they do not argue that the revision is not in

effect. Indeed, defendants acknowledge that if the revised assault” claims, the revised language of Directive 4040 language of Directive 4040 applies, plaintiff's claim against applies. 7 An inmate would be placed in an untenable position defendant Nabb involving the May 16, 2014 incident has if he were required to adjudicate whether his allegations of been exhausted. Defendants' Reply in Support of Motion to sexual assault were sufficient under PREA prior to relying Dismiss [28], p. 6. Because plaintiff reported the May 16, upon the language in Directive 4040 alleviating the need 2014 incident involving defendant Nabb to the facility staff to utilize the normal grievance procedure. 8 Here, plaintiff in a letter dated May 19, 2014 (Complaint [1], Exhibit P), this presented his claims as sexual assault claims. Although the claim is deemed exhausted pursuant to Directive 4040. sufficiency of those claims is uncertain, the language in Directive 4040 clearly states that an inmate need not utilize

Because the September 10, 2013 and October 22, 2013 the grievance procedure to exhaust such claims prior to incidents preceded the revision of Directive 4040, plaintiff bringing a federal court action for redress. was required to exhaust the typical inmate grievance process with respect to those incidents. 9 Plaintiff makes no attempt

6 With respect to the plaintiff's pat-frisk claims, to argue that he exhausted the inmate grievance process with Judge Arcara dismissed the claims to the extent respect to his September 10, 2013 claim. That claim against that they were asserted under PREA, but allowed defendant Dunford should be dismissed with prejudice. 10 In them to proceed as asserted under the Fourth his motion to amend the complaint [31], plaintiff asserts that and Eighth Amendments. November 17, 2014 he did, in fact, exhaust the inmate grievance process with Decision & Order [7], p. 7. The defendants respect to his claim relating to the October 22, 2013 involving are free to file a motion to dismiss or for defendant Hoinski. As discussed below, the plaintiff will be summary judgment challenging the sufficiency allowed to amend the complaint to assert the exhaustion of of the plaintiff's allegations with respect to any that claim. surviving Fourth and Eighth Amendment claims. 7 9 Although the revised language in Directive 4040 The plaintiff argues that the revision of Directive refers to PREA, assuming notice was provided 4040 eliminated the deadline for reporting sexual as set forth in the directive, Directive 4040

abuse, and therefore, he can cure the failure states that “an inmate is not required to file a to exhaust his claims by reporting the incidents grievance concerning an alleged incident of sexual now under the terms of the directive. Plaintiff's abuse or sexual harassment to satisfy [the PLRA] Opposition to Motion to Dismiss [27], p.11. As exhaustion requirement ... before bringing a lawsuit

discussed more fully below, plaintiff has presented regarding an allegation of sexual abuse”. Plaintiff's no authority suggesting that the revisions in Opposition to Motion to Dismiss [27], Exhibit B. Directive 4040 apply retroactively to incidents Thus, this language applies to sexual assault claims prior to the effective date. To the contrary, the

case law suggests that Directive 4040 is applied Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

2016 WL 3039687

as it was in effect at the time of the incident at damage suffered by the inmate. Therefore, a issue. See Smith v. Kelly, 985 F. Supp. 2d 275, supervisor may be liable for her failure to remedy 285 (N.D.N.Y. 2013) (referring to the version of a violation only in those circumstances where Directive 4040 that was in effect at the time in the violation is ongoing and the defendant has question); Goodson v. Silver, 2012 WL 4449937, an opportunity to stop the violation after being *8 (N.D.N.Y. 2012) (court decision based upon the informed of it. Similarly, liability may attach version of DOCCS' Directive 4040 in effect during when a supervisor fails to act on reports of a the time in question). staff member's previous assaults on the plaintiff

and the plaintiff is assaulted again by that same 10 Plaintiff asserts, generally, that his failure to staff member”. November 17, 2014 Decision & exhaust any of his claims can be cured. Plaintiff's Order [7], p.10 citing Rahman v. Fisher, 607 F. Reply in Support of Motion to Amend [37], p. 9. Supp. 2d 580, 585 (S.D.N.Y. 2009). Given the However, plaintiff's time to file a grievance relating preliminary stage of the litigation, Judge Arcara to the September 10, 2013 incident has long passed. allowed these claims to proceed to service. Id. at p. Although plaintiff cites to Bridgeforth v. Barlett, 11. The plaintiff's exhaustion of these claims was 686 F. Supp.2d 238 (W.D.N.Y. 2010) in support not addressed in that decision. of his right to cure, that case actually supports *7 The plaintiff does not argue that he has exhausted his the dismissal of plaintiff's claim with prejudice. claims against defendants Annucci, Fonda, Bradt or Hughes Bridgeforth, 686 F. Supp.2d, at 240 (“Since the by naming them in any grievance. In response to the motion to time limits for plaintiff to file an administrative

dismiss, plaintiff asserts generally that, because the revisions appeal have long since passed, administrative to Directive 4040 stated that a “sexual abuse or sexual remedies are no longer available to him, as a harassment complaint may be submitted at any time”, he can result of his own inaction. This case, then, is cure any failure to exhaust by now filing a complaint under precisely the kind of case that the PLRA was Directive 4040. Plaintiff's Opposition to Motion to Dismiss intended to foreclose. It is therefore dismissed with [27], p. 11. Initially, it is not clear that the revised procedure prejudice”). set forth in Directive 4040, which eliminates the need to follow the typical inmate grievance procedure with respect

E. Failure to Exhaust as to Defendants Annucci, Fonda, to sexual assault and sexual harassment claims, applies to Bradt and Hughes claims against supervisory officials for failing to remedy or Defendants also seek to dismiss the claims against defendants take corrective action regarding such a claim. Annucci, Fonda, Bradt and Hughes because plaintiff has not exhausted administrative remedies by naming those

In any event, as noted above, plaintiff has not cited, and defendants in any grievance relating to the “credit card check” I have not found, any authority supporting the retroactive incidents. Defendants' Reply in Support of Motion to Dismiss application of a revised DOCCS directive. Instead, although [28], p.8-10. These claims survived the initial screening only not discussed in depth, the courts in Smith and Goodson to the extent that they alleged that the defendants “were expressly applied the version of Directive 4040 which was in made aware of the sexually assaultive pat-frisks but failed to effect at the time of the incidents in question in those cases. remedy them or take any corrective action”. November 17, 2014 Decision & Order [7], pp. 10, 22. 11

As a general rule, a new statutory provision does not apply retroactively to conduct that occurred prior to the

11 provision's enactment. As the Supreme Court has noted, “the Judge Arcara cited Colon v. Coughlin, 58 F.3d 865, 873 (2nd Cir. 1995) for the proposition that presumption against retroactive legislation is deeply rooted in our jurisprudence” Landgraf v. USI Film Products, 511 U.S. a prison official who is made aware of a violation 244, 265, (1994). For example, the revision of § 1997e(a) but fails to remedy the wrong may be determined which instituted the mandatory exhaustion requirement of the to be “personally involved” and subject to § 1983 liability. However, he noted that “[r]eceiving PLRA, was not applied retroactively. Shariff v. Coombe, 2002 WL 1392164, *3 (S.D.N.Y. 2002). post hoc notice does not constitute personal involvement in the unconstitutional activity and cannot be said to have proximately caused the

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This is not a case where the revision of Directive 4040 merely inmate grievance process with respect to the October 22, 2013 clarified ambiguous language of the prior regulation. See incident. Id., Exhibits A-D. Leshinsky v. Telvent GIT, S.A., 873 F. Supp.2d 582 (S.D.N.Y. 2012). Instead, the revision of Directive 4040 sets forth a new *8 Plaintiff's proposed amended complaint is substantively procedure relating to the reporting and processing of sexual identical to his original complaint except that he has modified abuse and sexual harassment claims. The new procedure his allegations regarding the exhaustion of administrative bypasses the previously required inmate grievance procedure remedies and has removed some of the allegations and claims altogether and institutes an expedited process for the lodging previously dismissed by Judge Arcara. 12 and investigation of a sexual abuse or sexual harassment claim. The revised language does not expressly or indirectly

12 Plaintiff's proposed amended complaint is type- suggest that it is to be applied in a retroactive manner to written, as opposed to the original hand written incidents predating the revision. The parties have submitted complaint. Proposed Amended Complaint [37-1]. no authority suggesting that DOCCS intended the revision to Under the heading “Defendant's Information”, apply retroactively to conduct occurring years earlier. plaintiff did not include information relating to the previously dismissed defendants with the

Since the record does not reflect any intention that the revision exception of Dale Artus., Id., p.2. The proposed of Directive 4040 be applied retroactively, I find that it does amended complaint eliminated ¶5 of the original not apply to incidents predating the date of the revision. With complaint, making the paragraph numbers of the respect to the post-revision “credit card check” incident of proposed amended complaint one off from those May 16, 2014, the plaintiff's letters dated May 19, 2014 and in the original complaint. Paragraph numbers May 20, 2014 (Complaint [1], Exhibits P and Q) relating to between the two documents re-synchronized at ¶42 this incident do not name or discuss the conduct of defendants after plaintiff split the substance of the original Annucci, Fonda, Bradt or Hughes. Thus, even if the procedure ¶40 into two paragraphs (¶¶40-41) of the proposed set forth in Directive 4040, as revised, applied to claims amended complaint. Plaintiff's amended complaint against supervisory officials, it was not utilized by plaintiff to identified the “John Doe” defendant as Hoinski (¶¶ complain of conduct by these defendants. 10-14, 20, 24, 29, 30, 35-36). Plaintiff's amended complaint also occasionally included expanded

Because plaintiff has failed to exhaust his administrative or enhanced allegations without changing the remedies with respect to defendants Annucci, Fonda, Bradt substance of his claims ( see i.e. ¶ 30). and Hughes, the claims against these defendants should be dismissed with prejudice. Rule 15(a) provides that leave to amend should be “freely

given when justice so requires”. New York State National Organization for Women v. Cuomo, 182 F.R.D. 30, 36

F. Motion to Amend Complaint (S.D.N.Y. 1998); see also Forbes & Wallace, Inc. v. Chase Plaintiff moves to amend his complaint, principally to modify Manhattan Bank, 79 F.R.D. 563, 565 (S.D.N.Y. 1978). It the assertion in his original complaint that he did not exhaust has long been “well-established that ‘outright dismissal for his administrative remedies. Plaintiff's Motion to Amend reasons not going to the merits is viewed with disfavor in [31], p. 3. He states that because he had been transferred the federal courts.’ ” Harrison v. Enventure Capital Group, between facilities and or prison cells several times since Inc., 666 F. Supp. 473, 479 (W.D.N.Y. 1987). For this reason, the underlying incidents, he misplaced or lost various legal “dismissals for insufficient pleadings are ordinarily with leave documents. Id. at p. 4. Further, he asserts that because he to replead”. Stern v. General Electric Co., 924 F.2d 472, was reprocessed at one point and provided with a new 477 (2d Cir. 1991). Leave to amend a pleading need not be inmate number, some of the documentation related to these granted, however, if it would be futile to do so. See O'Hara v. claims was filed under a previous inmate number. Id. Thus, Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002). plaintiff seeks to amend the complaint to assert that he has administratively exhausted the grievance process with

Defendants oppose the motion to amend on several grounds. respect to the October 22, 2013 incident and his claim against Defendants' Opposition to Motion to Amend [34]. First, Hoinski. Id. at pp. 3-4. Attached as exhibits to plaintiff's defendants argue that plaintiff's motion should be denied motion are documents supporting plaintiff's utilization of the because he failed to attach a proposed amended complaint Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

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to the motion papers. Defendant's Opposition to Motion to The prejudice alleged by the defendants is insufficient to Amend [34] p., 2. “A movant's failure to submit a proposed warrant denial of plaintiff's motion to amend the complaint. amended complaint constitutes sufficient grounds to deny a Initially, it should be noted that defendants had access to motion to amend”. Murray v. New York, 604 F.Supp.2d 581, plaintiff's inmate grievance records, and could have checked 588 (W.D.N.Y. 2009) (citing LaBarbara v. Ferran Enterprises those records prior to filing any motions regarding exhaustion Inc., 2009 WL 367611, *3 (E.D.N.Y. 2009) (“In order to in this case. The plaintiff has asserted that he had lost meet the requirements of particularity in a motion to amend, or misplaced much of the documentation relating to his a complete copy of the proposed amended complaint must claims due to a series of transfers between correctional accompany the motion so that both the court and the opposing facilities or jail cells. Defendants have not rebutted this party can understand the exact changes sought.”)). Where, contention, which plaintiff offers as his explanation as to why however, “the movant's papers adequately explain the basis his original complaint contained an “erroneous statement” for, and nature of, the proposed amendment, ... the failure to regarding exhaustion. Plaintiff's Motion to Amend [31], attach a proposed amended complaint to the motion is not p. 3-4. Defendants have not articulated a sufficient basis necessarily fatal”. Murray, 604 F.Supp.2d at 588. to conclude that the plaintiff's allegations in the original

complaint were made in bad faith. Finally, defendants' claim The determination whether to deny a motion to amend of prejudice is undermined by the fact that this motion to based upon such a failure the subject to the discretion of dismiss will result in my recommendation that several of the court. Id. Here, plaintiff's motion papers sufficiently plaintiff's claims be dismissed. articulated the basis for his motion to amend such that the defendants were able to respond to the substance of the Defendants also argue that plaintiff's motion to amend should proposed changes. Moreover, plaintiff attached a proposed not be granted because plaintiff has not alleged that he has amended complaint to his Memorandum of Law in reply to received a final decision from the Central Office Review defendant's opposition. See Proposed Amended Complaint Committee (“CORC”) with respect to his grievance relating attached to Plaintiff's Reply in Support of Motion to Amend to the October 22, 2013 incident. Defendants Opposition [37-1]. Under these circumstances, plaintiff's failure to attach to Motion to Amend [34], p. 4-5. This argument is also a proposed amended complaint to his initial motion papers is unpersuasive. Plaintiff has submitted documentation from the not fatal to the motion. Director of the Inmate Grievance Program, dated January

24, 2014, stating that his grievance was still pending before *9 Defendants also argue that plaintiff's motion to amend CORC. Plaintiff's Motion to Amend [31], Exhibit D. This the complaint should be denied based upon “futility, bad- correspondence was in response to plaintiff's January 20, faith, undue delay or undue prejudice to the opposing party”. 2014 letter noting that his grievance had already been pending Defendants' Opposition to Motion to Amend [34], p. 3. 13 before CORC for more than 60 days without a decision. Id.,

Exhibit C. Defendants state that they made the motion to dismiss based upon plaintiff's affirmative statements in the complaint that he

It appears by this documentation, the validity of which has had not exhausted the inmate grievance process with respect not been challenged by the defendant, that plaintiff has to his claims. Defendants claim that they would not have filed been waiting for more than two years for a decision from a motion to dismiss “[h]ad plaintiff not made these affirmative CORC with respect to this grievance. Defendants cannot rely statements in his complaint” and that allowing plaintiff to upon CORC's refusal to render a decision with respect to amend the complaint would prejudice the defendants because plaintiff's grievance for two years as support for an argument they would be required to bring another motion to dismiss. Id. that plaintiff has failed to exhaust his administrative remedy Defendants allege that the “striking reversal” as to exhaustion because he has not been provided with a final decision. by the plaintiff “suggests the possibility of bad-faith”. Id. As discussed in Rossi v. Fishcer, 2015 WL 769551, *4-5

(S.D.N.Y. 2015):

13 Although defendants mention “futility” in their opposition, they do not assert the insufficiency of

“A number of federal circuit courts have held that a failure the plaintiff's allegations of sexual assault as a to respond to a grievance within the time limit prescribed basis to deny the proposed amended complaint. by the prison grievance process renders an administrative Defendants' Opposition to Motion to Amend [34].

remedy unavailable for purposes of exhaustion.... While the Second Circuit has not directly addressed this issue,

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it has treated [cases holding that such a failure renders because it was filed beyond the 15-day limitations the administrative remedy unavailable] favorably. See period. The district court granted summary [Hemphill v. New York],380 F.3d 680, 686 n. 6 (2004) judgement on the grounds that plaintiff failed to (noting that when an inmate does not receive a response exhaust his administrative remedies. The Ninth to a grievance there may be a question as to whether Circuit reversed finding that plaintiff had exhausted administrative remedies were available); Giano v. Goord, his remedies because no such remedies remained 380 F.3d 670, 677 (2d Cir. 2004) (citing favorably to available to him. The Supreme Court vacated that [Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998)] decision, holding that “proper exhaustion demands and [Foulk v. Carrier, 262 F.3d 687, 698 (8th Cir. 2001] compliance with an agency's deadlines and other with regard to availability of administrative remedies)). critical procedural rules because no adjudicative The Second Circuit in [Abney v. McGinnis, 380 F.3d 663, system can function effectively without imposing 668 (2nd Cir. 2004)] cited to Hemphill for the proposition some orderly structure on the course of its that ‘exhaustion may be achieved in situations where prison proceedings”. Woodford, 548 U.S. at 90-91. Here, officials fail to timely advance the inmate's grievance’. 380 unlike Woodford, the failure to achieve complete F.3d at 667.” exhaustion is due to the inaction by the prison

grievance officials, not because of any failure on *10 See also Peoples v. Fischer, 2012 WL 1575302, *6 the part of plaintiff. In any event, I do not believe (S.D.N.Y. 2012) on reconsideration in part, 898 F.Supp.2d that Woodford stands for the proposition that 618 (S.D.N.Y. 2012) (“When a prisoner complies with all CORC can frustrate or unduly delay an inmate's of the administrative requirements and makes a good-faith ability to bring a federal claim to address an effort to exhaust, he should not be denied the opportunity to alleged constitutional violation by refusing to issue pursue his grievance in federal court simply because the final a final decision for several years so as to preclude administrative decision maker has neglected to issue a final exhaustion under the PLRA. administrative determination”); Dimick v. Baruffo, 2003 WL Since plaintiff has been awaiting a decision from CORC for 660826, *4 (S.D.N.Y. 2003) (holding that plaintiff's claims

more than two years with respect to his grievance relating to were properly exhausted where CORC rendered an untimely the October 22, 2013 incident, such an administrative remedy decision and plaintiff filed his complaint almost two months is no longer available to him for purposes of exhaustion after CORC had been required to respond pursuant to the under the PLRA. Plaintiff's motion to amend the complaint prison grievance procedures). 14 is granted to the extent plaintiff seeks to assert allegations that he exhausted his administrative remedies with respect to

14 But see Bennett v. Wesley, 2013 WL 1798001, the October 22, 2013 incident involving defendant Hoinski. *6 (S.D.N.Y. 2013) (“[T]he Court of Appeals Plaintiff's motion to amend is denied to the extent the has not adopted the position that a delay in amended complaint seeks to reassert claims against Dale responding to a grievance demonstrates per se Artus (or any other defendants) which were previously unavailability.”) ( quoting Mateo v. O'Connor., dismissed by Judge Arcara. 2012 WL 1075830, *7 (S.D.N.Y. 2012)); Rivera v. Anna M. Kross Ctr., 2012 WL 383941, *4–5 In light of the age of this case, and to expedite further (S.D.N.Y. 2012) (asserting that the Second Circuit proceedings in this matter, I direct that the Clerk of the Court has declined to hold that administrative remedies separately file the Proposed Amended Complaint [37-1] are deemed unavailable when a plaintiff receives as the Amended Complaint in this matter. The Amended no response from prison authorities within the Complaint does not add any new claims or parties. All of the prescribed time limits.). Also, some courts have defendants in this case are represented by counsel. By virtue questioned whether the equitable exclusions from of its attachment to the plaintiff's motion papers, and by the exhaustion set forth in Hemphill remain viable filing directed above, the defendants will have received a copy after the Supreme Court's decision in Woodford. of the Amended Complaint. The defendants shall answer, or The Second Circuit has declined to address this otherwise respond, to the Amended Complaint within 30 days question. See Amador et al. v. Andrews et al., 655 of the date it is filed by the Clerk of the Court as directed F.3d 89, 102-03 (2nd Cir. 2011). In Woodford, above. plaintiff's grievance was administratively rejected

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articulate his factual and legal arguments. Plaintiff's motion G. Motion for Appointment of Counsel for appointment of counsel is denied at this time without *11 Plaintiff also moves for the appointment of counsel prejudice, subject to renewal at a later date. It is plaintiff's [32]. There is no constitutional right to appointed counsel in responsibility to retain an attorney or press forward with this civil cases. However, under 28 U.S.C. § 1915(e), the Court lawsuit pro se. 28 U.S.C. § 1654. may appoint counsel to assist indigent litigants. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter

CONCLUSION

is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984).

For these reasons, I recommend that defendant's motion to dismiss [22] be granted in part and denied in part as

The factors to be considered in deciding whether or not follows: the motion should be granted as to plaintiff's claim to assign counsel include the following: (1) whether the against defendant Dunford relating to the September 10, 2013 indigent's claims seem likely to be of substance; (2) whether incident, and plaintiff's supervisory claims against defendants the indigent is able to investigate the crucial facts concerning Annucci, Fonda, Bradt and Hughes, but denied as to plaintiff's his claim; (3) whether conflicting evidence implicating the claims against defendants Nabb and Hoinski. Also, plaintiff's need for cross-examination will be the major proof presented motion [31] to amend the complaint is granted in part and to the fact finder; (4) whether the legal issues involved are denied in part such that plaintiff may amend the complaint complex; and (5) whether there are any special reasons why to assert that he has exhausted administrative remedies with appointment of counsel would be more likely to lead to a just respect to the October 22, 2013 incident involving defendant determination. Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Hoinski, but may not reassert previously dismissed claims Cir. 1997). and is otherwise denied. Plaintiff's motion for appointment of counsel [32] is denied.

In considering a motion for the appointment of counsel, the court may also consider the merits of the plaintiff's claim.

*12 Unless otherwise ordered by Judge Arcara, any The Second Circuit has held that “every assignment of a objections to this Report and Recommendation must be filed volunteer lawyer to an undeserving client deprives society of with the clerk of this court by March 31, 2016 (applying the a volunteer lawyer available for a deserving cause.” Cooper time frames set forth in Rules 6(a)(1)(C), 6(d), and 72(b) v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).

(2)). Any requests for extension of this deadline must be Therefore, the court must first look to the “likelihood of made to Judge Arcara. A party who “fails to object timely ... merit” of the underlying dispute, Cooper, 877 F.2d at 174, and waives any right to further judicial review of [this] decision”. “even though a claim may not be characterized as frivolous,

Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); counsel should not be appointed in a case where the merits Thomas v. Arn, 474 U.S. 140, 155 (1985). of the ... claim are thin and his chances of prevailing are therefore poor.” Carmona v. United States Bureau of Prisons, Moreover, the district judge will ordinarily refuse to consider 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal

de novo arguments, case law and/or evidentiary material where petitioner's appeal was not frivolous but nevertheless which could have been, but were not, presented to the appeared to have little merit). See also Smolen v. Corcoran, magistrate judge in the first instance. Patterson-Leitch Co. v. 2013 WL 4054596 (W.D.N.Y.,2013) (In deciding whether to Massachusetts Municipal Wholesale Electric Co., 840 F. 2d grant a request to appoint pro bono counsel, district courts 985, 990-91 (1st Cir. 1988). should evaluate several factors, including the merits of the claim, the factual issues and complexity of the case, plaintiff's

The parties are reminded that, pursuant to Rule 72(b) and ability to present the case, and the plaintiff's inability to obtain (c) of this Court's Local Rules of Civil Procedure, written counsel.). objections shall “specifically identify the portions of the proposed findings and recommendations to which objection

I have reviewed the facts presented herein in light of is made and the basis for each objection ... supported by the factors required by law as discussed above. At this legal authority”, and must include “a written statement either time, it does not appear the legal issues presented are certifying that the objections do not raise new legal/factual unduly complex. Plaintiff's filings in this case reflect that arguments, or identifying the new arguments and explaining he understands the issues presented and can adequately Henderson v. Annucci, Not Reported in Fed. Supp. (2016)

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why they were not raised to the Magistrate Judge”. Failure to

All Citations comply with these provisions may result in the district judge's refusal to consider the objections.

Not Reported in Fed. Supp., 2016 WL 3039687 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Sheffer v. Fleury, Slip Copy (2019)

2019 WL 4463672

Decision and Order. Bond, Fleury, Martuscello, Prack, and Smith then moved for summary judgment under Federal Rule

2019 WL 4463672

of Civil Procedure 56(a), arguing that Plaintiff had failed to Only the Westlaw citation is currently available. exhaust his administrative remedies as required by the Prison United States District Court, N.D. New York. Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. See Defs.' Mem. at 9; Dkt. No. 30 (“Defendants' Reply”) at 9–

Joshua SHEFFER, Plaintiff, 10. In the alternative, Defendants requested an opportunity to v. depose Plaintiff on the limited issue of exhaustion followed Correction Officer FLEURY, et al., Defendants. by an evidentiary hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), and Martuscello, Prack, and Smith 9:18-CV-1180 (LEK/DJS) moved to dismiss under Federal Rule of Civil Procedure | 12(b)(6) for lack of personal involvement. Defs.' Mem. at 9. Signed 09/18/2019 Plaintiff does not oppose the motion to dismiss by Prack and Attorneys and Law Firms Martuscello, but opposes the remainder of the motions. Dkt. No. 31-3 (“Plaintiff's Response”) at 10. The Honorable Daniel

Joshua Sheffer, Marcy, NY, pro se. J. Stewart, United States Magistrate Judge, issued a Report- Recommendation and Order in response to Defendants'

Konstandinos D. Leris, New York State Attorney General, motions, Dkt. No. 39 (“Report-Recommendation”), to which Albany, NY, for Defendants. Defendants timely objected, Dkt. No. 40 (“Objections”). For the following reasons, the Court approves and adopts the Report-Recommendation in its entirety.

DECISION AND ORDER

1 Lawrence E. Kahn, U.S. District Judge Doe was subsequently identified as Correction Sergeant Michael Walantus. Dkt. No. 14.

I. INTRODUCTION

2 *1 Pro se plaintiff Joshua Sheffer brought this action Doe and Sullivan have not yet been served under 42 U.S.C. § 1983 alleging, inter alia, that officials or appeared in this action, see Dkt. No. 24-9 at New York's Upstate Correctional Facility (“Upstate”) (“Defendants' Memorandum”) at 3, n.1, n.2; Dkt. violated his Eighth Amendment rights when they failed to No. 14; Dkt. No. 19, and take no part in the protect him from a series of sexual assaults by his bunkmate motions that are the subject of this Decision and in September 2017. Dkt. No. 1 (“Complaint”). After a Order. Therefore, when the Court writes generally sufficiency review by the Court pursuant to 28 U.S.C. §§ of “Defendants” in this Decision and Order, it refers 1915(e)(2)(B) and 1915A, Plaintiff's failure-to-protect claims to Bond, Fleury, Martuscello, Prack, and Smith. proceeded against the following defendants: Correction When discussing an individual defendant's motion, Officer Travis Bond (“Bond”), Correction Sergeant the Court refers to the defendant by name. John Doe (“Doe”), 1 Correction Officer Nicholas Fleury (“Fleury”), New York State Department of Corrections and II. BACKGROUND Community Supervision (“DOCCS”) Deputy Commissioner *2 The facts and allegations in this case were detailed in for Administration Daniel Martuscello, III (“Martuscello”), the November 2018 Decision and Order and the Report- DOCCS Director of Special Housing Units Albert Prack Recommendation. See Nov. 2018 Decision and Order at 3–6; (“Prack”), Offender Rehabilitation Counselor Luann Smith R. & R. at 2–4. Familiarity is assumed. (“Smith”), and DOCCS Policy and Complaint Review Chairperson Frances Sullivan (“Sullivan”). 2 Dkt. No. 8

A. Magistrate Judge Stewart's Report- (“November 2018 Decision and Order”). In the same Recommendation order, the Court dismissed Plaintiff's failure-to-protect Magistrate Judge Stewart recommended: (1) denying claims against DOCCS, Correction Officer Chase, and Defendant's Motion for Summary Judgment because Plaintiff acting Upstate Superintendent Donald Uhler, and dismissed had exhausted his administrative remedies under the Prison Plaintiff's sexual harassment claims brought against only two Rape Elimiation Act (“PREA”), 34 U.S.C. § 30301, et seq., defendants, Doe and Correction Officer Labarge. Nov. 2018 Sheffer v. Fleury, Slip Copy (2019)

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and DOCCS Directive 4040 § 701.3(i), which establishes proposed findings and recommendations.” Fed. R. Civ. P. the exhaustion requirements for inmate complaints of 72(b); L.R. 72.1(c). If objections are timely filed, a court sexual abuse or harassment; (2) denying Smith's Motion “shall make a de novo determination of those portions of the to Dismiss because Plaintiff had pled sufficient facts to report or specified proposed findings or recommendations to demonstrate Smith's personal involvement in the alleged which objection is made.” 28 U.S.C. § 636(b). However, if no Eighth Amendment violation; and (3) granting the Motion objections are made, or if an objection is general, conclusory, to Dismiss by Prack and Martuscello, which Plaintiff did perfunctory, or a mere reiteration of an argument made to the not oppose. R. & R. at 17. Magistrate Judge Stewart did magistrate judge, a district court need review that aspect of a not address Defendants' request to depose Plaintiff nor their report-recommendation only for clear error. Barnes v. Prack, request for a Messa hearing. Id. No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,

2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07 (N.D.N.Y. 2008), abrogated on other grounds, Widomski v. State Univ.

B. Defendants' Objections to the Report- of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also Recommendation Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, With regard to their Motion for Summary Judgment, the Court at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party's reads Defendants' Objections to argue that Plaintiff has failed objections to a Report and Recommendation must be specific to exhaust his administrative remedies because the exhaustion and clearly aimed at particular findings in the magistrate's procedure for incidents of sexual assault found in § 701.3(i) proposal....”). “A [district] judge ... may accept, reject, or does not apply to Plaintiff's claims. Objs. at 2–5. Specifically, modify, in whole or in part, the findings or recommendations Defendants object that § 701.3(i) does not apply to Plaintiff's made by the magistrate judge.” § 636(b). failure-to-protect claim because the claim is not “necessarily intertwined” with the underlying sexual assault allegation, as Magistrate Judge Stewart held it was. Id. at 4. Additionally, B. Legal Standard for Summary Judgment Defendants take issue with a factual finding by Magistrate *3 Under Federal Rule of Civil Procedure 56(a), summary Judge Stewart that Plaintiff told Bond on September 25, judgment is appropriate only where “there is no genuine 2017 that he feared he would be “sexually assaulted” by his dispute as to any material fact and the movant is entitled bunkmate. Id. at 2 (citing R. &. R. at 3). They argue that to judgment as a matter of law.” The moving party bears Plaintiff failed to produce evidence proving that he told any the burden to demonstrate through “pleadings, depositions, defendant at any time about his fears of sexual assault. Objs. answers to interrogatories, and admissions on file, together at 3. with ... affidavits, if any,” that there is no genuine issue of

material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. As for the Motion to Dismiss, Smith objects generally that 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 Plaintiff pled insufficient facts to plausibly show that Smith (1986)). To defeat a motion for summary judgment, the non- was personally involved in the events underlying this dispute. movant must set out specific facts showing that there is a Id. at 5. More specifically, Smith argues that Plaintiff never genuine issue for trial and cannot rest merely on allegations alleged that he told her he was afraid of being sexually or denials of the facts submitted by the movant. Fed. R. Civ. assaulted by his bunkmate, and she questions Magistrate P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Judge Stewart's “reliance” on two letters Plaintiff alleges he Cir. 2003) (“Conclusory allegations or denials are ordinarily sent to Smith regarding his fears. Id. at 5–6. Thus, Smith not sufficient to defeat a motion for summary judgment argues, Plaintiff has not plausibly alleged that Smith was when the moving party has set out a documentary case.”); personally involved in the alleged failure to protect Plaintiff Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525–26 from his bunkmate. (2d Cir. 1994). To that end, sworn statements are “more than

mere conclusory allegations subject to disregard ... [sworn statements] are specific and detailed allegations of fact, made

III. STANDARD OF REVIEW

under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion,” and the credibility of

A. Review of Report-Recommendation such statements is better left to a trier of fact. Scott, 344 F.3d Within fourteen days after a party has been served with at 289 (citations omitted). a copy of a magistrate judge's report-recommendation, the party “may serve and file specific, written objections to the Sheffer v. Fleury, Slip Copy (2019)

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“[T]he trial court's task at the summary judgment motion Magistrate Judge Stewart's recommendation that the claims stage of the litigation is carefully limited to discerning against Martuscello and Prack be dismissed, R. & R. at 12– whether there are any genuine issues of material fact to be 13, and adopts the recommendation. tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” *4 Turning to Defendants' Motion for Summary Judgment Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d and Smith's Motion to Dismiss, after reviewing the papers and 1219, 1224 (2d Cir. 1994). When considering a motion for the Report-Recommendation, the Court finds no clear error summary judgment, the court must resolve all ambiguities and in the unobjected-to portions of the Report-Recommendation. draw all reasonable inferences in favor of the non-movant. And, after reviewing de novo the portions of the Report- Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 Recommendation to which Defendants object, the Court finds F.3d 736, 742 (2d Cir. 1998). Furthermore, where a party is no error. Magistrate Judge Stewart employed the proper legal proceeding pro se, the court must “read his supporting papers standards, accurately recited the facts alleged, and correctly liberally, and ... interpret them to raise the strongest arguments applied the law to those facts. As a result, the Court accepts that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d and adopts the Report-Recommendation for the reasons stated Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d therein. The Court adds the following discussion. Cir. 1995). Nonetheless, summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational

A. Denial of Defendants' Motion for Summary trier of fact to find for the non-moving party.” Matsushita Judgment Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 Defendants moved for summary judgment on the grounds (1986). that Plaintiff failed to exhaust his administrative remedies through the DOCCS Inmate Grievance Program (“IGP”), as

C. Legal Standard for Motion to Dismiss was required under the PLRA. Defs.' Mem. at 7–11; Defs.' To survive a motion to dismiss under Federal Rule of Civil Reply at 4–8. The PLRA provides that “[n]o action shall be Procedure 12(b)(6), “a complaint must contain sufficient brought with respect to prison conditions under section 1983 factual matter ... ‘to state a claim to relief that is plausible of this title, or any other Federal law, by a prisoner confined on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) in any jail, prison, or other correctional facility until such (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 administrative remedies as are available are exhausted.” 42 (2007)). “A claim has facial plausibility when the plaintiff U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § pleads factual content that allows the court to draw the 1997e(a) is mandatory, Ross v. Blake, 136 S. Ct. 1850, 1856 reasonable inference that the defendant is liable for the (2016), and must be “proper,” which means using all steps misconduct alleged.” Id. In assessing whether this standard of the agency's administrative process and complying with has been met, courts “must accept all allegations in the “deadlines and other critical procedural rules,” Woodford v. complaint as true and draw all inferences in the light Ngo, 548 U.S. 81, 94 (2006). most favorable to the non-moving party[ ]....” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (internal To satisfy the PLRA's exhaustion requirement, an inmate- citation omitted). Where, as here, the complaint was filed pro plaintiff in DOCCS' custody must typically follow the se, it must be construed liberally with “special solicitude” IGP's three-step process, which involves filing an initial and interpreted “to raise the strongest claims that it suggests.” grievance with the IGP clerk at the prison where the Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal inmate is incarcerated and, in the case of an adverse ruling, quotation marks and citation omitted). Nonetheless, a pro se two subsequent levels of appeals. See DOCCS Directive complaint must state a “plausible claim for relief.” See Harris 4040 § 701.5; N.Y. Comp. Codes R. & Regs. tit. 7, § v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). 701.5; Carleton v. Annucci, No. 17-CV-245, 2018 WL

7917921, at *5–6 (N.D.N.Y. Nov. 21, 2018), report and recommendation adopted, 2019 WL 422530 (N.D.N.Y. Feb.

IV. ANALYSIS

4, 2019) (describing three-step process in detail). Generally, As an initial matter, and before turning to the balance of a plaintiff must properly appeal through all three levels of the Report-Recommendation, the Court notes that Plaintiff review before seeking relief in a federal court under § 1983. has not opposed the motion to dismiss by Martuscello and See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. Prack. Pl.’s. Resp. at 9. The Court finds no clear error in 2006). Sheffer v. Fleury, Slip Copy (2019)

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a jail official legally accountable for the sexual abuse.” R. However, for complaints regarding sexual abuse or & R. at 8–9 (citing Abreu v. Miller, 2018 WL 5660409, at harassment, DOCCS has established a different procedure. *4 (N.D.N.Y. Aug. 16, 2018)), report and recommendation See DOCCS Directive 4040 § 701.3(i); N.Y. Comp. Codes adopted, 2018 WL 4502007 (N.D.N.Y. Sept. 20, 2018), R. & Regs. tit. 7, § 701.3(i). Revised in 2014 pursuant to order amended and superseded on reconsideration on other the Prison Rape Elimination Act (“PREA”), see Henderson grounds, 2019 WL 761639 (N.D.N.Y. Feb. 21, 2019) (finding v. Annucci, No. 14-CV-445A, 2016 WL 3039687, at *3 that allegations that an inmate was a victim of a “non-sexual (W.D.N.Y. Mar. 14, 2016), Directive 4040 § 701.3(i) creates physical assault” could be subject to § 701.3(i)’s relaxed a relaxed exhaustion requirement for allegations concerning exhaustion requirement where, at the summary judgment incidents of sexual assault. Specifically, “an inmate is not stage, it was not clear “that the physical assault was discrete required to file a grievance concerning an alleged incident from the sexual assault”). Because Plaintiff grieved that of sexual abuse or sexual harassment to satisfy the [PLRA] DOCCS employees failed to protect him from sexual abuse by exhaustion requirement.” Directive 4040 § 701.3(i) (citations his bunkmate, Magistrate Judge Stewart held that Plaintiff's omitted). Instead, failure-to-protect claim was necessarily intertwined with the

underlying sexual assault and, thus, subject to § 701.3(i)’s relaxed exhaustion requirement. R. & R. at 8–9. And because “[t]here appears to be no question that Plaintiff alleged to

[A]ny allegation concerning an prison officials that he was the victim of a sexual assault ... incident of sexual abuse or sexual [Plaintiff's] report was [thus] documented as required” and harassment shall be deemed exhausted “was sufficient to exhaust his administrative remedies.” R. if official documentation confirms & R. at 8 (citing Medina v. Kaplan, 2018 WL 797330, at *5 that: an inmate who alleges being (S.D.N.Y. Feb. 8, 2018)). On this basis, the Magistrate Judge the victim of sexual abuse or sexual recommended denying Defendants' Motion for Summary harassment reported the incident to Judgment. R. & R. at 9. facility staff; in writing to Central Office Staff; to any outside agency

Defendants appear to raise two objections to this that the Department has identified recommendation. First, they dispute Magistrate Judge as having agreed to receive and Stewart's determination that Plaintiff's failure-to-protect immediately forward inmate reports of allegations against Defendants are necessarily intertwined sexual abuse and sexual harassment with the sexual assault committed by Plaintiff's bunkmate. to agency officials under the PREA Second, they object to the Magistrate Judge's factual finding Standards; or to the Department's that Plaintiff informed DOCCS employees that he was in fear Office of the Inspector General. of sexual assault. 3 The Court addresses these objections in turn.

Id. (citations omitted). If an inmate does file a grievance 3 regarding a complaint of sexual abuse or sexual harassment, The Court has reversed the order of Defendants' “[t]he complaint shall be deemed exhausted upon filing.” Id. objections for analytical clarity. Finally, “[a] sexual abuse or sexual harassment complaint may be submitted at any time.” Id.

1. Plaintiff's Failure-to-Protect Claim Is *5 Magistrate Judge Stewart found that Plaintiff had Necessarily Intertwined with His Claim properly exhausted his remedies under the relaxed procedures that His Bunkmate Sexually Assaulted Him found in § 701.3(i). The Magistrate Judge held that an

The crux of Defendants' objection is that “plaintiff[’s] “incident” of sexual abuse under § 701.3(i) could include alleg[ations] that defendants failed to protect him from being “not only the acts of sexual abuse by an inmate or a sexually assaulted by another inmate” are “not necessarily corrections officer, but also other events which are necessarily intertwined with the alleged sexual assault or harassment intertwined with such a claim, such as a physical assault committed by Plaintiff's bunkmate.” Objs. at 4. The Court during the course of the abuse; the failure of correctional staff disagrees. 4 to intervene to stop the rape; or acts or failures to act making Sheffer v. Fleury, Slip Copy (2019)

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4 5

Defendants' objection on this point is not a model of The Court notes that case law interpreting the 2014 clarity. For example, Defendants state that “[w]hile revisions to Directive 4040 is limited. See Abreu, the alleged underlying assault on plaintiff by his 2018 WL 5660409, at *2; Fox v. Lee, No. 15- bunkmate was sexual in nature, the defendants CV-390, 2018 WL 8576600, at *10 (N.D.N.Y. Dec. object because the nature of the assault, in this 18, 2018), report and recommendation adopted, circumstance, is not subject to the sexual abuse 2019 WL 1323845 (N.D.N.Y. Mar. 25, 2019); provisions of Directive 4040.” Objs. at 4. It is Lewis v. Martinez, No. 15-CV-55, 2018 WL unclear to the Court how “the nature of the assault” 7917916, at *7 (N.D.N.Y. Nov. 9, 2018), report perpetrated by Plaintiff's bunkmate—an assault and recommendation adopted, 2019 WL 642678 that Defendants do not dispute involved coerced (N.D.N.Y. Feb. 15, 2019), reconsideration denied, sexual acts—could not be subject to “the sexual 2019 WL 2105562 (N.D.N.Y. May 14, 2019); abuse provisions of Directive 4040.” Additionally, Allen v. Graham, No. 16-CV-47, 2017 WL Defendants argue that “plaintiff was required to 9511168, at *6–7 (N.D.N.Y. Sept. 26, 2017), report utilize the three-step grievance procedure with and recommendation adopted, 2017 WL 5957742 respect to his claims of harassment and threats (N.D.N.Y. Dec. 1, 2017); McCray v. City of against defendants,” Objs. at 4, without explaining Albany, No. 13-CV-949, 2017 WL 1433336, at which “claims of harassment and threats” they *2 (W.D.N.Y. Apr. 24, 2017); Henderson, 2016 mean. It is possible to read the objection to refer WL 3039687, at *3–4; Medina, 2018 WL 797330, to Plaintiff's claims in his grievance that, inter at *5. A review of this case law reveals no alia, Correction Officer Chase stated “he will get rulings contrary to Magistrate Judge Stewart's [Plaintiff], one way or the other,” Compl. ¶ 23, interpretation. or that certain correction officers tampered with

Turning to Defendants' objection, to the extent the objection is Plaintiff's clothes and food and prevented him from a general one—that a “failure-to-protect” claim can never be accessing his “legal work,” “religious articles,” and necessarily intertwined with an underlying sexual assault— the law library, see generally Dkt. No. 24-4 at such an interpretation does not comport with the language of 1–2, Dkt. No. 31-1 at 1 (together, the “October § 701.3(i). When explaining which allegations are subject to § 1 Grievance”), claims that either were never at 701.3(i)’s special exhaustion requirements, the section cites to issue in or have already been dismissed from this Directive 4027A, “Sexual Abuse Prevention & Intervention case, see generally Compl.; Nov. 2018 Decision – Inmate-on-Inmate” and Directive 4028A, “Sexual Abuse and Order. Or, the objection could refer specifically Prevention & Intervention – Staff-on-Inmate.” Directive to allegations, such as Fleury's threat to lodge 4040 § 701.3(i) (emphasis added). In turn, Directive 4027A Plaintiff with the “perfect bunkie,” Compl. ¶ 22; “provides information concerning ... the prevention of ... Oct. 1 Grievance at 1, that are directly relevant to allegations of inmate-on-inmate sexual abuse ...” and states the failure-to-protect claim at issue. Despite this that, “[all] allegations of sexual abuse, sexual harassment, lack of clarity, the Court has construed Defendant's or retaliation against ... an inmate ... will be thoroughly objections as generously as possible, and it still investigated.” Directive 4027A. This suggests that § 701.3(i) finds them wanting. was intended to cover allegations that DOCCS employees *6 As an initial matter, Defendants did not object failed to prevent inmate-on-inmate sexual abuse, exactly to Magistrate Judge Stewart's interpretation that claims the issue raised in this case. Moreover, the Court agrees “necessarily intertwined” with an underlying sexually with Magistrate Judge Stewart that reading § 701.3(i) to abusive act fall under § 701.3(i)’s relaxed exhaustion encompass failure-to-protect claims “is not only consistent requirements. Objs. at 4 (“[D]efendants assume, for the with its language, but also comports with its purpose in purposes of this motion, that allegations that are ‘necessarily attempting to prevent [sexual assault].” R. & R. at 9. intertwined’ with sexual assault or sexual harassment are encompassed within [the § 701.3(i)] exception of the Defendants also object specifically that Plaintiff's “allegations exhaustion requirement.”). As such, the Court reviews this against the defendants in this case are not necessarily determination only for clear error, and it finds none. 5 intertwined” with the underlying sexual assault. Objs. at

4. In making this objection, Defendants rely on a letter Sheffer v. Fleury, Slip Copy (2019)

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Plaintiff received from the IGP supervisor at Upstate, “advising [Plaintiff] that the PREA portions of his complaint 6

Because Defendants submitted an incomplete copy were deemed exhausted and the additional allegations of of Plaintiff's grievance in support of their Motion harassment, retaliation, and threats by staff” were under for Summary Judgment, the October 1 Grievance is investigation. Id. (citing Dkt. No. 29-1 (the “IGP Letter”) found in two places in the record: Docket Number at 6). Defendants claim that there “is no ambiguity” that 24-4 at pages one to two and Docket Number 31-1 the “PREA portions” of Plaintiff's complaint referenced at page one. For purposes of clarity in pagination, in the letter included only “his complaint that he was this Decision and Order treats Docket Number 24-4 assaulted by his cellmate on three occasions.” Objs. at as pages one and two, and Docket Number 31-1 as 4. Defendants thereby suggest that Plaintiff's failure-to- page three. protect claim falls within the “additional allegations of For these reasons, the Court agrees with Magistrate Judge harassment, retaliation, and threats by staff” referenced in Stewart's holding that Plaintiff's failure-to-protect claim is the IGP Letter and imply that such treatment by the IGP necessarily intertwined with his underlying allegation of supervisor is dispositive. Id. (“[T]he portions of [Plaintiff's] sexual assault by his bunkmate, that § 701.3(i) therefore grievance subject to the PLRA's exhaustion requirements encompasses Plaintiff's failure-to-protect claim, and that – his complaints of harassment and threats against the Plaintiff successfully exhausted this claim pursuant to the § defendants – were forwarded to the Superintendent [in 701.3(i) procedure when he filed a grievance with DOCCS accordance with DOCCS' standard appeals procedure] ... officials. thus, it is respectfully submitted that plaintiff was required to utilize the three-step grievance procedure with respect to his claims of harassment and threats against defendants.”).

2. The Factual Finding that Plaintiff Told *7 Assuming, arguendo , DOCCS' treatment of an inmate Bond About His Fear of “Sexual Assault” grievance were binding upon this Court, this argument fails In describing the facts of this case, Magistrate Judge Stewart on its own terms. The portions of the record Defendants cite

wrote that “Plaintiff informed Bond that he feared he would to support their claim that there is “no ambiguity about which be sexually assaulted.” R. & R. at 3. Defendants object to part [of Plaintiff's] grievance was deemed exhausted” are far this statement, arguing that “there is nothing in the record to from unambiguous. See IGP Letter (stating without further suggest that plaintiff complained to any ... defendant[ ] at any explanation that “your PREA allegations will be deemed

time that he was in fear of being sexually abused.” Objs. at exhausted upon filing....”); see generally Oct. 1 Grievance 2. In doing so, Defendants urge the Court to read Plaintiff's (describing in detail Plaintiff's experience at Upstate and Complaint narrowly. The Court declines. listing grounds for complaint, including, inter alia, that correction officers tampered with Plaintiff's clothes, failed to

As an initial matter, while Defendants' objection on this provide him with a mattress and necessary toiletries when point is certainly relevant to the merits of Plaintiff's failure- he first arrived at Upstate, prevented him from accessing his to-protect claim, 7 it is less obviously relevant to the “legal work,” “religious articles,” and the law library, and that Correction Officer Chase threatened to “make [Plaintiff's]

question of exhaustion. Under § 701.3(i)’s relaxed exhaustion breakfast tray special and Defendant Fleury threatened to procedure, which the Court has already determined governs lodge Plaintiff with the “perfect bunkie”). 6 Given the litany Plaintiff's claim, filing an official grievance ex post regarding a failure-to-protect from sexual assault is sufficient to of allegations contained in Plaintiff's grievance, Magistrate exhaust administrative remedies. See 701.3(i) (“Any inmate Judge Stewart correctly noted that Plaintiff could “reasonably grievance filed regarding a complaint of sexual abuse or interpret” the “PREA allegations” referenced in the IGP

sexual harassment shall ... be deemed exhausted upon filing Letter to encompass his failure-to-protect claim, and the for PLRA purposes.”). Here, there is no dispute that Plaintiff “additional allegations of harassment, retaliation, and threats” filed such a grievance, explicitly naming Fleury and Smith. to refer to his claims about the correction officers tampering Defs.' Mem. at 5 (“[P]laintiff filed a grievance with the with his food, clothes, and possessions. See R. & R. at 9.

Upstate grievance office against defendants C.O. Fleury and The IGP Letter was ambiguous enough that “it would be Smith relating to his failure to protect claims.”); Dkt. No. 24-2 justifiable for [Plaintiff] to rely” on the IGP Letter's statement (“Declaration of Donna Wilcox in Support of Defendant's “that his PREA allegations had been deemed exhausted.” Id. Sheffer v. Fleury, Slip Copy (2019)

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Motion for Summary Judgment”) ¶ 14 (same). And while the Defendants bear the burden of proving a failure to exhaust. grievance does not name Bond, see Oct. 1 Grievance at 2 (“On See Grant v. Kopp, No. 17-CV-1224, 2019 WL 368378, at *4 September 25, 2017 ... I told the C.O. that walked by that I (N.D.N.Y. Jan. 3, 2019), report and recommendation adopted, can't live [with my bunkmate]....”); cf. Compl ¶ 26 (“On or 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (“[T]he failure about September 25, 2017 ... Plaintiff told defendant Bond ... to exhaust administrative remedies is an affirmative defense that he cannot live in this cell....”), it was not required to, see and ... the party asserting failure to exhaust ... typically bears Shepherd v. Lempke, No. 10-CV-1524, 2016 WL 8732639, the ultimate burden of proving its essential elements.”) (citing at *6 (N.D.N.Y. Oct. 28, 2016), report and recommendation Jones, 549 U.S. at 216). However, they have submitted no adopted in part, rejected in part, 2017 WL 1187859 (N.D.N.Y. evidence contradicting Plaintiff's allegations. See generally Mar. 30, 2017) (“[I]nmate-plaintiffs need not identify each Defs.' Mem.; Defs.' Reply. Instead, they point out that and every defendant implicated in a civil rights lawsuit in nowhere in his grievance letters or in his Complaint does grievances that predate the lawsuit.”) (citing Jones v. Bock, Plaintiff use the precise words “sexual assault” when he 549 U.S. 199, 217 (2007)). Therefore, by filing this grievance, describes his communications with the guards at Upstate, Plaintiff properly exhausted his remedies under § 701.3(i). or with any other DOCCS official. Objs. at 2–3. Thus, Since Defendants have moved for summary judgment solely Defendants argue, “plaintiff did not complain to Bond that on the basis of a failure to exhaust remedies, Defs.' Mem. at he was in fear of being sexually assaulted rather than merely 3; Defs.' Reply at 1, other issues not germane to exhaustion assaulted,” nor did he “advise[ ] any defendant that he was in are not before the Court at this time. fear of being sexually assaulted by his bunkmate.” Objs. at 3.

The Court declines to read Plaintiff's evidence so narrowly. 7 See Green v. Leubner, No. 07-CV-1035, 2009 While the Court acknowledges that Plaintiff's pleadings and WL 3064749, at *6 (N.D.N.Y. Sept. 22, 2009) the available record evidence do not conclusively indicate (Kahn, J.) (describing how a failure-to-protect that Plaintiff voiced an explicit fear of sexual assault to any claim requires a prison official to have “sufficient defendant, at this stage of the litigation, it is reasonable culpable intent,” which occurs when the official has to infer that Plaintiff did. Defendants do not dispute that “knowledge that an inmate faces a risk of serious Plaintiff told Bond he feared being “assaulted” by his harm and ... disregards that risk by failing to take bunkmate. Objs. at 3; see also Compl. ¶ 26. Additionally, reasonable measures to abate the harm”). the record indicates that, throughout this period, Plaintiff was *8 Yet, entertaining this objection, the Court sees no concerned about his risk of sexual abuse and harassment error in the recitation of the facts found in the Report- because of “several of [Plaintiff's] personal characteristics,” Recommendation. Magistrate Judge Stewart found, and the Defs.' Mem. at 4 (citing Compl. ¶¶ 34, 36), including his record demonstrates, that Plaintiff attempted to express his sexual orientation and his previous sexual victimization, Oct. fears to DOCCS employees on at least four occasions. See 1 Grievance at 2; Am. Grievance at 2–3. It also appears R. & R. at 2–3. On September 18, 2017, Plaintiff told Smith that Plaintiff was concerned about sexual violence when he “I fear for my safety and ... I am being harassed by the reported to Smith on September 18, 2017 how Doe had staff.” Oct. 1 Grievance at 1–2; see also Dkt. No. 31-1 at 2– misrepresented Plaintiff's history of sexual victimization on 4 (“Amended Grievance”) (“[I] told [Defendant Smith] that I Plaintiff's 3278RC form, which is used to determine if an fear for my life and safety.”). Later that day, Plaintiff mailed inmate is susceptible to being sexually abused while in prison. letters to Martuscello, Prack, Smith, and Sullivan expressing Compl. ¶ 24; Oct. 1 Grievance at 1–2. the same concerns. Compl. ¶ 25. Then, on September 25, 2017, after Plaintiff received his new bunkmate, he told Bond

Given these contextual factors, and in light of the liberal that he “can't live” with his new bunkmate, Oct. 1 Grievance reading afforded to a pro se litigant's papers, Burgos, 14 at 2; Am. Grievance at 3, and that he feared being “assaulted.” F.3d at 790, the Court finds it reasonable to infer that when Compl. ¶ 26. That same day, Plaintiff was sexually assaulted Plaintiff told Bond he feared “assault” and Smith he feared by his bunkmate, Compl. ¶ 27; Oct. 1 Grievance at 1–2; Am. for his safety, these conversations encompassed Plaintiff's Grievance at 3, after which he placed letters to Martuscello, fear of sexual assault. See also Hailey v. N.Y. City Transit Prack, and Smith in the feed up slot to his cell door informing Auth., 136 F. App'x. 406, 407–08 (2d Cir. 2005) (“The them of the assault, Compl. ¶ 28. rule favoring liberal construction of pro se submissions is especially applicable to civil rights claims.”). The legal

Sheffer v. Fleury, Slip Copy (2019)

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definition of “assault” is capacious, see Assault, Black's Law letter Plaintiff sent to Smith later that day. Smith appears to Dictionary (11th ed. 2019) (listing definitions and noting suggest that if she did not know Plaintiff was at risk or in that “assault” is popularly defined as “any attack”), and fear of sexual assault, she could not be personally involved encompasses Plaintiff's sexual assault by his bunkmate. It in failing to protect him. See Green, 2009 WL 3064749, at would be unreasonable to expect a non-lawyer, pro se litigant *6 (quotations omitted) (“In the failure-to-protect context, to appreciate the legal niceties that distinguish the different a prison official ... has sufficient culpable intent if [s]he forms of assault. For these reasons, and “[r]esolv[ing] all has knowledge that an inmate faces a risk of serious harm ambiguities and draw[ing] all reasonable inferences in favor and [s]he disregards that risk by failing to take reasonable of the non-movant,” as the Court must do on a motion for measures to abate the harm.”). Yet as described above, and in summary judgment, Berhanu v. New York State Ins. Fund., light of the liberal pleading requirements due pro se litigants, 13 F. App'x 30, 31 (2d Cir. 2001), it is reasonable to infer see Hill, 657 F.3d at 122, Plaintiff has pled sufficient facts that Plaintiff related his fear of sexual assault to DOCCS to support the reasonable inference that when he told—and employees. Therefore, the Court adopts Magistrate Judge wrote to—Smith that he was in “fear[ ] for his life and safety, Stewart's factual findings in their entirety. because of the threats made by defendant[ ] Fleury,” Compl.

¶ 24, that fear encompassed sexual assault. B. Denial of Smith's Motion to Dismiss Further, Smith argues that Plaintiff has alleged no facts *9 In recommending that the Court deny Smith's motion indicating that she failed to respond to a second letter Plaintiff to dismiss, Magistrate Judge Stewart concluded that Plaintiff allegedly sent her the day he was sexually assaulted by his had pled sufficient facts to plausibly show that Smith was bunkmate. Objs. at 5. She points out that the day after Plaintiff “personally involved” in the failure to protect Plaintiff from wrote this letter, he was placed in a new cell without a sexual assault by his bunkmate. R. & R. at 15–16. Smith bunkmate. Id. at 5–6 (citing Compl. ¶ 30). Though Smith does objects to this conclusion. not spell out the implication of this point, the Court reads it to suggest that she might have stepped in to protect Plaintiff from

“[P]ersonal involvement of defendants in alleged his bunkmate and that, therefore, Magistrate Judge Stewart's constitutional deprivations is a prerequisite to an award of “reliance” on the letter was misplaced. Objs. at 5–6. However, damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 the Court does not read the Report-Recommendation as (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 relying unduly on this or any other letter. Instead, Magistrate (2d Cir. 1994)). An official may implicate her or himself Judge Stewart considered the letters in conjunction with the in “constitutional wrongdoing if [she or] he ... ‘exhibited conversation Plaintiff had with Smith on September 18 and deliberate indifference ... by failing to act on information gave the letters their appropriate weight. R. & R. at 13– indicating that unconstitutional acts were occurring’ or would 16. And while it is possible the Complaint could be read to occur.” Tubbs v. Venettozzi, No. 19-CV-126, 2019 WL suggest that, after receiving the second letter, Smith stepped 2610942, at *3 (N.D.N.Y. June 26, 2019) (Kahn, J.) (quoting in to arrange Plaintiff's transfer to a new bunk, such a reading Vincent v. Yelich, 718 F.3d 157, 173 (2d Cir. 2013)); see would be inappropriate on a motion to dismiss. See NYSE also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) Specialists Sec. Litig., 503 F.3d at 95 (on a motion to dismiss, (deliberate indifference “requires that the charged official the Court must “draw all inferences in the light most favorable act or fail to act while actually aware of a substantial risk to the non-moving party....”). Nor would it address the earlier that serious inmate harm will result.”). Moreover, the § letter or conversation, which alone are adequate to support 1983 plaintiff must show a “tangible connection” between Magistrate Judge Stewart's recommendation. See, e.g., Ferrer the acts of the defendant and the plaintiff's injuries. Bass v. v. Fischer, No. 13-CV-31, 2014 WL 1763383, at *3 (N.D.N.Y. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). By contrast, a mere May 1, 2014) (plaintiff's allegations that he sent multiple “linkage” to the unlawful conduct through “the prison chain letters to a named defendant, the defendant was “fully aware” of command” is insufficient to show a defendant official's of his situation, and the defendant failed to respond to the personal involvement in that unlawful conduct. Richardson v. letters or take appropriate action was sufficient to defeat Goord, 347 F.3d 431, 435 (2d Cir. 2003). defendant's motion to dismiss); Whitley v. Ort, 2018 WL 4684144, at *7 (S.D.N.Y. Sept. 28, 2018) (nurse allegedly

Smith argues that Plaintiff never alleged that he told her failed to provide plaintiff with medical treatment and take he was afraid of being sexually assaulted by his bunkmate, either in their September 18, 2017 conversation or in the Sheffer v. Fleury, Slip Copy (2019)

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action under the PREA after plaintiff told nurse in person he certain correction officer to defendant prison official). Under had been sexually assaulted). these circumstances, Price is inapposite. *10 Smith relies on Price v. Oropallo, No. 13-CV-563, 2014 Smith's remaining objections largely restate points raised WL 4146276 (N.D.N.Y. Aug. 19, 2014) to argue that, where in Defendants' Motion for Summary Judgment and Reply. an inmate-plaintiff sends a letter to prison officials regarding Compare Objs. at 5–6 (“Plaintiff did not allege that defendant the inmate's fear of a bunkmate, and where the officials had Smith: (1) knew plaintiff was going to be placed with a no “knowledge of, or personal involvement in” placing the bunkmate that would sexually assault him; (2) made the bunkmates together, nor were the officials “aware of” the decision to place plaintiff's bunkmate in his cell with him; bunkmate's dangerousness, the plaintiff's case cannot survive (3) was ever informed who plaintiff's bunkmate was; or (4) summary judgment. See Defs.' Mem. at 12 (citing Price at was aware of whether his bunkmate had any prior record of *9-10). However, Price is distinguishable. violence or sexual assault.”) with Defs. Mem. at 12 (“[T]here

are no allegations in the Complaint which plausibly suggest Price was decided on summary judgment rather than, as that defendant[ ] Smith ...: (1) made the decision to place here, a motion to dismiss, a distinction that matters because plaintiff's bunkmate in his cell with him; (2) were ever “personal involvement is a question of fact.” See Grullon informed who plaintiff's bunkmate was; or (3) were aware v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013). of whether his bunkmate had any prior record of violence or In Grullon, the Second Circuit reversed the district court's sexual assault.”) and Reply at 9 (“[P]laintiff has not alleged dismissal of an inmate's § 1983 claim because an earlier any facts plausibly suggesting that defendant Smith: (1) made case “invoked by the district court” in granting the defendant the decision to place plaintiff's bunkmate in his cell with him; prison warden's motion to dismiss, Sealey v. Giltner, 116 F.3d or (2) was aware of whether his bunkmate had any prior 47 (2d Cir. 1997), “did not involve a dismissal pursuant to record of violence or sexual assault.”). Accordingly, the Court Rule 12(b)(6) for failure to state a claim,” but instead “was reviews these portions of the Report-Recommendation only dismissed on summary judgment.” Id. The Second Circuit for clear error and—for the reasons stated above and in the had affirmed Sealey on summary judgment because “the Report-Recommendation—finds none. record ... showed that [the Sealey defendant] had in fact taken steps to have the prisoner's grievance resolved.” Id.

C. Defendant's Requests to Depose Plaintiff and for an By contrast, since there was no equivalent factual record Evidentiary Hearing in Grullon itself, and thus no evidence as to whether the *11 The Federal Rules of Civil Procedure require that Grullon defendant had responded to the inmate's complaints, a party obtain leave of court when seeking to depose the Second Circuit reversed the district court's finding of no an individual “confined in prison.” Fed. R. Civ. P. 30(a) personal involvement. Id. Here, there is likewise no evidence (2)(B). Additionally, because “exhaustion is a matter of as to what action Smith may or may not have taken in response judicial administration,” a plaintiff “is not entitled to a jury to Plaintiff's communications with her. trial relating to his exhaustion of administrative remedies.” Woodward v. Lytle, No. 16-CV-1174, 2018 WL 6179427, at

Further, solely at issue in Price was the defendant prison *3 (N.D.N.Y. Nov. 27, 2018) (citing Messa, 652 F.3d at 308– officials' failure to protect the plaintiff from a physical 10). For this reason, “the court, not a jury, determines factual assault by his cellmate. But, in this case, Plaintiff also disputes regarding an inmate's alleged failure to exhaust.” Id. alleges that Smith failed to protect him from retaliatory action by other correction officers, which took the form

The Report-Recommendation does not address Defendants' of putting Plaintiff in harm's way for sexual assault. See request for “an opportunity to depose Plaintiff on the limited Compl. ¶ 24 (“Plaintiff told defendant, [sic] Smith that he issue of exhaustion followed by an evidentiary hearing fears for his life and safety, because of the threats made by pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011),” defendant[ ] Fleury....”); see also Hayes v. Dahkle, 2018 WL in the event their summary judgment motion is denied. 7356343, at *18–19 (N.D.N.Y. Dec. 11, 2018), report and See generally R. & R. Presumably, this is because such a recommendation adopted, 2019 WL 689234 (N.D.N.Y. Feb. deposition and hearing would be unnecessary. As Magistrate 19, 2019) (finding personal involvement at the motion to Judge Stewart explains in the Report-Recommendation: dismiss stage where plaintiff expressed his fear regarding a Sheffer v. Fleury, Slip Copy (2019)

2019 WL 4463672

ORDERED , that the Report-Recommendation (Dkt. No. 39) is APPROVED and ADOPTED in its entirety ; and it is

There appears to be no question that further Plaintiff alleged to prison officials that he was the victim of a sexual

ORDERED , that Defendants' Motion for Summary assault and that he received notice Judgment (Dkt. No. 24) is DENIED ; and it is further from the IGP Supervisor stating his PREA claim has been exhausted for

ORDERED , that Defendants Martuscello and Prack's Motion PLRA purposes, and thus his report to Dismiss (Dkt. No. 24) is GRANTED ; and it is further was documented as required. Pursuant to DOCCS Directive 4040 that was

ORDERED , that the Clerk shall terminate Defendants sufficient to deem his claims regarding Martuscello and Prack from this action; and it is further the alleged sexual assault exhausted. This was sufficient to exhaust his

ORDERED , that Defendant Smith's Motion to Dismiss (Dkt. administrative remedies. No. 24) is DENIED ; and it is further ORDERED , that Defendants' request to depose Plaintiff on

R. & R. at 8 (citations omitted). The Court agrees with this the limited issue of exhaustion of remedies followed by an explanation and finds that a deposition and Messa hearing evidentiary hearing pursuant to Messa v. Goord, 652 F.3d 305 on exhaustion issues are unnecessary at this time. Should (2d Cir. 2011) (Dkt. No. 24) is DENIED with leave to renew Defendants submit evidence calling into question whether upon the submission of sufficient evidence; and it is further Plaintiff “allege[d] being the victim of sexual abuse or sexual harassment [and] reported the incident to facility staff,” ORDERED , that the Clerk serve a copy of this Decision and Directive 4040 § 701.3(i), they are free to renew the request Order on all parties in accordance with the Local Rules. then.

IT IS SO ORDERED.

V. CONCLUSION

Accordingly, it is hereby: All Citations

Slip Copy, 2019 WL 4463672 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

On June 29, 2000, while confined at Shawangunk, in the Northern District, Holmes was involved in an altercation

2005 WL 2839123

that resulted in the issuance of an inmate misbehavior Only the Westlaw citation is currently available. report (“IMR”) for property damage and possession of stolen United States District Court, property. Amended Complaint (“Am.Compl.”), ¶ 20. In S.D. New York. addition, Holmes received a second IMR for staff assault, possession of contraband, fighting, refusal to obey a direct

Brandon HOLMES, Plaintiff, order, and refusal to submit to a search. Id. As a result of v. the IMRs, Correction Captain William C. Connolly issued a Correction Officer J. GRANT, et al., Defendants. mechanical restraint, and an exercise deprivation order. Id. at ¶ 23. A Tier III disciplinary hearing was held on July 5, 2000,

No. 03CIV3426RJHRLE. on the administrative charges. Id. at ¶ 21. Over Holmes's | objections, Connolly was designated as the presiding officer Oct. 25, 2005. at the hearing. Id. at ¶ 25. Connolly found Holmes guilty, and sentenced him to five years in the SHU. Id. at ¶ 41.

REPORT AND RECOMMENDATION

On August 30, 2000, while serving the SHU sentence, ELLIS, Magistrate J. Holmes was transferred to the Southport Correctional Facility (“Southport”), a SHU facility in the Western District. Id. at ¶ 46. At Southport, Holmes was required to wear full

I. INTRODUCTION

mechanical restraints during recreation. Id. at ¶ 48. Holmes further alleges that he was denied all exercise, and recreation

*1 Plaintiff Brandon Holmes brings this pro se action under privileges after an altercation with a correction officer. Id. at 42 U .S.C. § 1983 for alleged First, Eighth, and Fourteenth ¶ 50. Amendment violations. Holmes asks the Court to transfer him to a correctional facility proximate to New York City,

On September 18, 2000, after serving fifty days in the SHU, grant him injunctive and declaratory relief against the New the Shawangunk Tier III hearing determination was reversed. York State Department of Correctional Services (“DOCS”) Id. at ¶ 31-33. Holmes, however, remained in disciplinary for unconstitutional practices, and grant him compensatory confinement because he was issued two new IMRs while and punitive damages for defendants' conspiracy to violate his serving the Shawangunk sentence. Id. at ¶ 45. Holmes served constitutional rights. Holmes alleges that defendants confined a thirty-day SHU sentence that commenced on September him in the special housing unit (“SHU”), and sentenced him 18, 2000. Defendants' Memorandum of Law in Support of to keeplock (cell confinement) in retaliation for challenging their Motion to Change Venue and/or Dismiss the Complaint a disciplinary hearing determination in the Shawangunk (“Def.Mem.”) at 2. From September 25, 2000, to October Correctional Facility (“Shawangunk”). Defendants contend 18, 2000, Holmes served his SHU sentence in the Eastern that Holmes's confinement in keeplock and the SHU was Correctional Facility (“Eastern”). Id. at ¶ 52. He also served disciplinary. a thirty-day keeplock sentence at Eastern that commenced on October 18, 2000. Holmes maintains that conditions

This case was referred to the undersigned on June 11, 2003. at Eastern contravene the Eighth Amendment's provision On January 16, 2004, defendants moved to change venue against cruel and unusual punishment. Am. Compl., ¶ 52-61. to the Northern, or Western District of New York pursuant For security purposes, Eastern has a “nightlight policy” to 28 U.S.C. § 1391(b) and 28 U.S.C. § 1404(a), and to that entails twenty-four hour lighting. Id. Holmes alleges dismiss the complaint pursuant to Rule 12(b)(6) of the Federal that Eastern's lighting policy resulted in “fatigue ... loss of Rule of Civil Procedure. The undersigned recommends that appetite, vomiting, migraine headaches, anxiety, elevation of defendants's motion to dismiss the complaint be GRANTED. blood pressure ... and a violent aggravation of rashes.” Id. Holmes also asserts that the lighting conditions so interfered with his mental state as to function as a violation of due

II. BACKGROUND

process. Id. As a result of the Shawangunk incident, criminal felony assault charges were filed against Holmes by multiple

Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

defendants. Holmes claims that the allegations were false, ninety days of good time credits. Id. On July 13, 2001, after and a result of malicious prosecution. Id. at 99-102. Homes serving almost sixty days in the SHU, this determination was was acquitted on June 22, 2001. Id. In addition, he alleges reversed. Id. that Eastern's lighting policy impaired his appearance before a grand jury. On November 7, 2000, Holmes was transferred On July 23, 2001, Holmes was scheduled to be transferred to the Sing Sing Correctional Facility (“Sing Sing”), in the from Upstate to Clinton Correctional Facility (“Clinton”). Id. Southern District, to complete his keeplock sentence. Def. at ¶ 83. Holmes maintains that upon his arrival at Clinton, Mem. at 5. Holmes was released from keeplock on November important legal material was missing from his personal 17, 2000. Am. Compl., ¶ 126. property. Id. *2 One month after his release from keeplock, Holmes received an IMR at Sing Sing charging him with loss/damage

III. DISCUSSION

of property, no identification card, messhall violation, and impersonation. Id. at ¶ 130-31. Although Holmes admits that

A. Rule 12(b)(6) Standard he did not have his identification card, and that he received The Court may dismiss a complaint, pursuant to Rule 12(b) food from a neighbor, he contends that the IMR was the (6), if it “appears beyond doubt that the plaintiff can prove no result of a conspiracy against him. Id. On December 22, 2000, set of facts in support of his claim which would entitle him a Tier III hearing was held, and Holmes was sentenced to to relief.” Thomas v. City of New York, 143 F.3d 31, 36-37 “counsel and reprimand.” Id. at ¶ 132. On March 1, 2001, (2d Cir.1998) (citation omitted). The Court must determine Holmes received an IMR as a result of an altercation with whether the complaint is legally sufficient. See Goldman v. inmate LaFontaine. Id. at ¶ 138. Holmes maintains that the Selden, 754 F.2d 1059, 1067 (2d Cir.1985). In accessing the charges were fabricated, Id. at ¶ 139-47, and that this sequence sufficiency of the pleadings, the Court must accepts all factual of events was a direct result of appealing the Shawangunk allegations in the complaint as true. Id. The Court must also Tier III determination. At the Tier III hearing, Holmes was “resolve all ambiguities and draw all reasonable inferences found guilty, and sentenced to ninety days in keeplock, and against the moving party.” Forsyth v. Fed'n of Employment the loss of nine months of good-time credit. Id. at 147. On & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005) (citation March 19, 2001, he was transferred from Sing Sing to the omitted). Upstate Correctional Facility (“Upstate”), a SHU facility in the Northern District. Id. at ¶ 72. Holmes claims that the

B. Exhaustion of Administrative Remedies transfer was another element in the retaliatory conspiracy *3 Defendants contend that this action should be against him. He maintains that, based on his successful appeal dismissed in its entirety because Holmes has only exhausted of the Shawangunk hearing, he was subject to harassment and administrative remedies for some, but not all of his threats at Upstate, including not having access to his personal

claims. The Prison Litigation Reform Act, 42 U.S.C. § property, and having his personal property vandalized. Id. 1997e(a), requires Holmes to exhaust “such administrative at ¶ 72-74. He was also served meals with food missing. remedies as are available.” Booth v. Churner, 532 U.S. Id. In response to his inquiries, Holmes was asked why he 731, 733-34 (2001). In this case, Holmes was required “assault [ed] staff.” Id. He interprets this as a reference to

to seek administrative relief under the Inmate Grievance Shawangunk. Program (“IGP”). See Soto v. Belcher, 339 F.Supp.2d 592, 595 (S.D.N.Y.2004). Under the IGP an inmate must first file a On May 17, 2001, Holmes was transferred from Upstate to complaint with the Inmate Grievance Resolution Committee the Five Points Correctional Facility (“Five Points”), in the

(“IGRC”) within fourteen days of the alleged occurrence. Western District. Id. at ¶ 156. At Five Points, Holmes was See 7 N.Y.C.R.R. § 701.7(a)(1). After a hearing, an inmate involved in an altercation with inmate LaFontaine, the same may appeal to the superintendent within four working days person with whom he had fought at Sing Sing. Id. at ¶ 157-58. after receipt of the IGRC's response. Upon receipt of the Because of this incident, Holmes received a new IMR. Id.

superintendent's response, an inmate may then appeal to the Holmes alleges that the subsequent Tier III disciplinary Central Office Review Committee (“CORC”) within four hearing contained numerous due process violations. Id. at ¶ days. Once the inmate appeals to the CORC, the IGP appeal 160-66. On May 25, 2005, Holmes was found guilty of violent process is exhausted. conduct, and sentenced to ninety days in the SHU, and loss of Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

Cir.1988). I recommend, therefore, that the Court dismiss the The record shows that Holmes is familiar with the IGP, conspiracy claims. and that he has filed numerous grievances. Nevertheless, he failed to exhaust administrative remedies for a number

D. Retaliation Claim of claims in his petition. Holmes makes no allegation that Holmes maintains that he was subject to adverse treatment he attempted to file a grievance concerning: 1) defendants's in retaliation for challenging the Shawangunk Tier III alleged use of excessive force during the June 29, 2000 hearing determination, and that defendants transferred him incident at Shawangunk, Def. Mem. at 14; 2) defendants's in retaliation for exercising his constitutional rights. In order alleged use of falsified records in the Shawangunk Tier for the retaliation claim to survive dismissal, Holmes must III hearing, id. ¶ 45; 3) his malicious prosecution, id. ¶¶ advance non-conclusory allegations demonstrating that: 1) 97-116; and 4) the receipt of two IMRs at Shawangunk for the conduct, or speech was protected; 2) that defendants took allegedly asserting his constitutional rights, id. ¶ 45. Holmes adverse action against him; and 3) that there was a causal contends that he did not file grievances because he feared connection between the protected conduct, and the adverse for his safety, and that defendants conspired to obstruct his action. See Diesel v. Town of Lewisboro, 232 F.3d 92, 107 access to court. In light of Holmes's repeated use of the (2d Cir.2000); see also Graham v. Henderson, 89 F.3d 75, IGP to appeal Tier III hearing determinations, the Court 79 (2d Cir.1996) (citation omitted). Moreover, “retaliation finds these arguments unpersuasive. The record shows that claims by prisoners are prone to abuse since prisoners his grievances were addressed, and that as a result of his can claim retaliation for every decision they dislike.” Id. grievance efforts, two Tier III determinations were reversed. (citation omitted). The record shows that Holmes's extended Accordingly, I recommend that the Court dismiss all of confinement in the SHU and keeplock was the result Holmes's unexhausted claims. of his conduct-namely, involvement in altercations with other inmates, and violation of DOCS's rules. Defendants

C. Conspiracy Claim had a good faith basis for confining him. “New York Holmes alleges that there is a conspiracy to retaliate against prison regulations permit inmates to be confined in SHU him for his successful appeal of the Shawangunk Tier for disciplinary confinement, administrative segregation, III determination. He must “proffer more than conclusory protective custody, detention, keeplock confinement and allegations in order to support a civil rights conspiracy for any other reason, with the approval of the deputy complaint.” Hyman v. Holder, 2001 WL 262665, at *5 commissioner of facility operations.” Baker v. Finn, 2001 WL (S.D.N.Y. Mar. 15, 2001) (citation omitted). He must 1338919, at *4 (S.D.N.Y. Oct. 31, 2001) (citation omitted). also demonstrate an agreement between defendants. See Holmes's retaliation claim against defendants is, therefore, Whitfield v. Forest Electrical Corp., 772 F.Supp. 1350, 1353 without merit, and should be dismissed by the Court. (S.D.N.Y.1991). Holmes has failed to meet this standard. The record does not show that an agreement existed between

E. Denial of Due Process defendants to harass or confine Holmes, or that he suffered Holmes alleges that his Tier III disciplinary hearing at Sing adverse actions as a result of such agreement. Rather, the Sing violated his due process rights. Holmes lost nine months record shows that Holmes's confinement was disciplinary. of good time credit as a result of the Sing Sing determination. Defendants had a good faith basis for discipline regardless of See Am. Compl. at ¶ 147. Although Holmes does not seek the alleged conspiratorial intent. restoration of his good time credits, his claim, if successful, would invalidate his disciplinary hearing. The Court cannot

*4 In support of his conspiracy claim, Holmes maintains that entertain Holmes's claim. See Pittman v. Forte, 2002 WL correction officers made conspiratorial admissions. He asserts 31309183, at *2 (N.D.N.Y. July 11, 2002); see also Heck v. that in response to an inquiry a “correction sergeant ... told Humphrey, 512 U.S. 477 (1994). Since the Sing Sing Tier [him] [he] pissed someone off by vindicating [his] rights and III determination has not been reversed, “judgment in favor conceded the correctness of [his] argument (against excessive of the plaintiff would necessarily imply the invalidity of confinement).” Am. Compl. at 127. Even assuming arguendo his conviction or sentence; if it would, the complaint must that these unconfirmed admissions of guilt are true, there is no be dismissed unless the plaintiff can demonstrate that the indication that discoverable evidence exists. The Court cannot conviction or sentence has already been invalidated.” Id. at give great weight to unsupported allegations of conspiratorial 487. I recommend, therefore, that this claim be dismissed. admissions. See Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

F. Conditions of Confinement *5 Holmes also contends that his due process rights were Holmes contends that the confinement conditions in the violated at the Shawangunk and Five Points Tier III hearings. Shawangunk SHU violate the Eighth Amendment. “Disputes Unlike Sing Sing, both the Shawangunk and Five Points about conditions may not be resolved over summary Tier III hearing determinations were reversed, and Holmes's judgment, but where the conditions are undisputed, the claims are not precluded by Heck v. Humphrey. However, Sandin issue should be resolved by the Court as a matter of Holmes must demonstrate that his treatment was atypical, law.” Palmer v. Richards, 364 F.3d 60, (2d Cir.2004) (citation and that he endured a significant deprivation of a liberty omitted). Since Holmes failed to substantiate his allegation, I interest in relation to the ordinary incidents of prison life. See recommend that this claim be dismissed. Sandin v. Conner, 515 U.S. 472, 486 (1995). Holmes must also establish that, “[t]he state has granted its inmates, by

*6 Holmes alleges that the placement of two inmates per regulation or statute, a protected liberty interest in remaining cell at Five Points is a violation of the Eighth Amendment's free from confinement or restraint.” Frazier v. Coughlin, 81 provision against cruel and unusual punishment. This F.3d 313, 317 (2d Cir.1996). If a prisoner satisfies both of argument has no merit. Confinement in a double-occupancy these elements, then he or she must prove that “the deprivation cell is a part of normal conditions in the general population of the liberty interest occurred without due process of law.” or the SHU. See Scott v. Gardner, 287 F.Supp.2d 477, 494 Williams v.. Goord, 111 F.Supp.2d 280, 288 (S.D.N.Y.2000) (S.D.N.Y.2003). This policy, therefore, does not rise to the (citation omitted). level of a constitutional violation, and this claim should be dismissed.

The record does not show that Holmes endured a deprivation of due process at either Shawangunk or Five Points.

Holmes further contends that he was forced to exercise with The length of his confinement at both Shawangunk and mechanical restraints at Southport. However, there is no Five Points is insufficient to constitute a deprivation of evidence that he filed a grievance to address this claim. a liberty interest. At Five Points, Holmes served only Since Holmes failed to exhaust administrative remedies, I forty-nine days in the SHU before the administrative recommend that the Court dismiss this claim. determination was reversed. Am. Compl. ¶ 160-66. At Shawangunk, he served a total of eighty-one days in

Holmes has also alleged injuries resulting from the twenty- the SHU. See Def. Mem. at 22. However, for twenty- four hour lighting policy at Eastern. Am. Compl. at ¶ 55. one days Holmes was administratively confined pending a He claims that Eastern's lighting policy is a violation of the disciplinary determination for the Shawangunk altercation. Eighth Amendment. See Id.; see also Amaker v. Goord, 2002 Administrative confinement is authorized and not punitive. WL 523371 at *6 (S.D.N.Y. Mar. 29, 2002). To succeed on See Torres v. Mazzuca, 246 F.Supp.2d 334 (S.D.N.Y.2003). this claim, Holmes must “demonstrate exposure to [harm] that Holmes, therefore, only served sixty days in the SHU at poses an unreasonable risk of serious damage to future health, Shawangunk before his administrative determination was and that the risk is not one that today's society chooses to reversed. “Although there is no bright-line rule for what tolerate.” Zaire v. Artuz, 2003 WL 230868 at *4 (S.D.N.Y. length of confinement would constitute an atypical and Feb. 3, 2003) (citation omitted). He has failed to substantiate significant hardship, and although this determination requires his allegations, and the Court should dismiss this claim. a fact-intensive inquiry by the district court, the decisions in this Circuit generally require that the duration of SHU confinement be at least 100 days in order to be considered

G. Due Process and Access to Court an atypical and significant hardship.” Palmer v. Goss, 2003 Holmes alleges that he was denied access to court. WL 22327110, at *6 (S.D.N.Y. Oct. 10, 2003); see also Cox He maintains that defendants lost important documents- v. Malone, 199 F.Supp.2d 135 (S.D.N.Y.2002). The length including DOCS grievances and trial transcripts-as part of Holmes's confinement at Shawangunk and Five Points is, of the retaliatory conspiracy against him. Holmes has a therefore, insufficient to constitute a deprivation of a liberty constitutional right to reasonable access to the courts. See interest. I recommend that his due process claims, arising Dugar v. Coughlin, 613 F.Supp. 849, 853 (S.D.N.Y.1985) from his Tier III hearings at Shawangunk and Five Points, be (citation omitted). However, since Holmes failed to exhaust dismissed. administrative remedies, I recommend that the Court dismiss this claim.

Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

The abuse of process must result in actual or special damages. Id. Enduring mechanical restraints is not a cognizable injury,

H. Malicious Prosecution but rather a normal aspect of prison life. The abuse of process As a result of the Shawangunk incident, criminal felony claim should be dismissed. assault charges were filed against Holmes by multiple defendants. Holmes claims that the allegations were false, and a result of malicious prosecution, a state law claim. Am. J. Motion to Change Venue Compl., ¶ 99-102. Holmes was acquitted on June 22, 2001. If Holmes's complaint is not dismissed, defendants ask the Defendants argue that the Court does not have jurisdiction Court to grant a change of venue. Def. Mem. at 11-13. Holmes over Holmes's state law claims. Relying on New York State alleges that this action is properly venued in the Southern Correction Law § 24, defendants maintain that state law District because of the events at Sing Sing, which are a part claims attached to a § 1983 action must be dismissed. See of a broader department-wide conspiracy to retaliate against Baker v. Coughlin, 77 F.3d 12, 16 (2d Cir.1996). The Court him for the Shawangunk incident. Holmes's Memorandum of disagrees. By its terms § 24 shields defendants acting “within Law in Opposition to defendant's Motion to Dismiss And/ the scope of [their] employment and in the discharge of [their] Or Change of Venue (“Holmes's Mem .”) at 23. Defendants duties.” Ierardi v. Sisco, 119 F.3d 183, 187 (2nd Cir.1997). contend that the events at Sing Sing are not a substantial Defendants's decision to file criminal felony assault charges part of the experience giving rise to the claims. Under 28 against Holmes after the Shawangunk incident is clearly U.S.C. § 1404(a), the Court has discretion in deciding a not “within the scope of their official duties as correction motion for change of venue. In considering a motion for officers.” Id. at 187-9. By electing to proceed outside of transfer, the courts consider: 1) whether the action could have the DOCS, defendants acted beyond the scope of the public been brought in the transferee forum; 2) the convenience policy protections of § 24. Defendants contention that this of witnesses and parties; 3) the interest of justice. Id.; see Court lacks jurisdiction over Holmes's malicious prosecution also Thomas v. Coombe, 1998 WL 391143 at *6 (S.D.N.Y. claim is, therefore, without merit. July 13, 1998). The record shows that the alleged cause of

the conspiracy-namely, the incident at Shawangunk-occurred *7 Nevertheless, examining Holmes's malicious prosecution in the Northern District. Further, most defendants are in claim in light of defendants' motion to dismiss, I recommend the Northern District, and Holmes is currently confined in that the claim be dismissed. “To succeed on a claim a facility in the Western District. It is counterintuitive for for malicious prosecution, the plaintiff must show that a the Court to order the vast majority of parties, including prosecution was initiated against him, that it was brought Holmes, to appear in the Southern District to litigate a with malice but without probable cause to believe that it dispute that arose primarily in the Northern District. See could succeed and that the prosecution terminated in favor Alexander v. Selsky 2004 WL 941803, at *4 (W.D.N.Y. Mar. of the accused plaintiff.” Boyd v. City of New York, 336 24, 2004). I recommend that if the Court does not dismiss F.3d 72, 76 (2d Cir.2003). Although eventually acquitted, the Holmes's complaint in its entirety, that defendant's motion for record shows that Holmes was indicted on two charges by a change of venue be GRANTED, and any remaining claims a grand jury. Accordingly, there was probable cause to lead be transferred to the Northern District. “a reasonably prudent person to believe the plaintiff guilty.” Id. Holmes's Fourth Amendment claim regarding the alleged malicious prosecution, should be dismissed.

IV. CONCLUSION

*8 The undersigned recommends that defendants's motion I. Malicious Abuse of Process to dismiss the complaint be GRANTED. Alternatively, if the The gist of an action for abuse of process is the improper use Court does not dismiss Holmes's complaint in its entirety, I of process after it is issued. See Tedeschi v. Smith Barney, recommend that defendant's motion for a change of venue be 548 F.Supp. 1172, 1174 (S.D.N.Y.1982). Holmes does not GRANTED, and any remaining claims be transferred to the allege that defendants misused the process, but claims an Northern District. Pursuant to Rule 72, Federal Rules of Civil improper motive for filing the suit. A bad motive alone cannot Procedure, the parties shall have ten (10) days after being support a claim for abuse of process. Perry v. Manocherian, served with a copy of the recommended disposition to file 675 F.Supp. 1417, 1429 (S.D.N .Y.1987) (citation omitted). written objections to this Report and Recommendation. Such Moreover, Holmes has not demonstrated a cognizably injury. Holmes v. Grant, Not Reported in F.Supp.2d (2005)

2005 WL 2839123

474 U.S. 140, 142 (1985); Small v. Sec'y of Health & Human objections shall be filed with the Clerk of the Court and served Serv., 892 F.2d 15, 16 (2d Cir.1989) ( per curiam ); 28 U.S.C. on all adversaries, with extra copies delivered to the chambers § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). of the Honorable Richard J. Howell, 500 Pearl Street, Room 1950, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of

All Citations those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn,

Not Reported in F.Supp.2d, 2005 WL 2839123 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Holland v. Goord, Not Reported in F.Supp.2d (2006)

2006 WL 1983382

Ramadan. Id. In that regard, plaintiff asserts that observance of Ramadan requires that Muslims not eat food or drink water

2006 WL 1983382

from sunrise to sunset. (Motion in Opposition to Motion Only the Westlaw citation is currently available. to Dismiss (# 12) (“Pl.'s Response”), at 11.) Additionally, United States District Court, plaintiff maintains that Muslims observing Ramadan are W.D. New York. forbidden to expose any private part of their bodies during daytime. ( Id. at 6.) Consequently, plaintiff states that when

Darryl HOLLAND, Plaintiff, he was offered water, he refused to undergo a urinalysis. v. (Compl. at 7.) Plaintiff was then put in keeplock for violating Glenn GOORD, Thomas Schoellkopf, rule 180.14 (urinalysis testing violation). ( Id. at 13.) Plaintiff Anthony F. Zon and J. Barbara, Defendants. contends that while under keeplock, he was unable to attend Muslim services and classes, and that he was unable to

No. 05-CV-6295. celebrate the end of Ramadan. ( Id. ) | July 13, 2006. As to a second cause of action, plaintiff alleges that on Attorneys and Law Firms November 23, 2003, he was subjected to a disciplinary hearing. ( Id . ) Plaintiff asserts he attempted to call the Darryl Holland, Romulus, NY, pro se. Imam 1 as a witness in this hearing. (Pl.'s Response, at 11.) Plaintiff contends that he wanted the Imam to testify that the Tamara B. Christie, A.A.G., New York State Attorney observance of Ramadan required Muslims to fast and that General's Office, Rochester, NY, for Defendants. prohibited them from showing their private parts during the daylight hours. ( Id. ) The hearing resulted in a guilty verdict, and, as a consequence, plaintiff served seventy-seven days in

DECISION and ORDER keeplock. (Defs.' Mem. of Law (# 10), at 1.) On January 21, 2004, Superintendent Zon accepted plaintiff's appeal in part, SIRAGUSA, J. determining that the urinalysis could have been taken after dark, after the fast had ended. (Comp. at 19.)

INTRODUCTION

1 *1 This prisoner civil rights case, brought pursuant to 42 An Imam is defined as “a prayer leader of the U.S.C. § 1983 (2003), is before the Court on defendants' mosque.” Webster's Dictionary 600 (9th ed.1991). motion to dismiss plaintiff's complaint pursuant to Federal As to a third cause of action, plaintiff alleges that the above- Rule of Civil Procedure 12(b)(6). For the reasons stated stated punishments imposed upon him constituted cruel and below, the motion is granted in part and denied in part. unusual punishment. (Compl. at 7.) He does not further elaborate on this Eighth Amendment claim.

BACKGROUND In their motion to dismiss, defendants argue that plaintiff can prove no set of facts in support of his claim which In his form complaint filed on April 3, 2005, plaintiff makes would entitle him to relief. Specifically, they state that: (1) only one claim: that his Constitutional rights under the First, defendants were acting in their official capacity, and all claims Eighth and Fourteenth Amendments were violated. However, against defendants in their official capacity are barred by the Court will divide his one claim into three separate causes the Eleventh Amendment, (2) the claims against defendants of action for the analysis of defendants' motion. Goord and Zon should be dismissed because they had no personal involvement; and (3) there was no Due Process

As to a first cause of action, plaintiff, who is a practicing violation because plaintiff's confinement did not rise to an Muslim, alleges that he was ordered to undergo a urinalysis atypical and significant hardship required to implicate the by defendant Corrections Officer J. Barbara (“Barbara”) on Fourteenth Amendment. February 5, 2004 at Wende Correctional Facility. (Compl. at 7.) Plaintiff maintains that he was unable to provide a sample because of the fasting requirements of the Islamic holiday of Holland v. Goord, Not Reported in F.Supp.2d (2006)

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567 F.2d 551, 553 [2d Cir.1977]; Koch v. Yunich, 533 F.2d 80, 85 (2d Cir.1976); Powell v. Jarvis, 460 F.2d 551, 553 [2d

STANDARDS OF LAW

Cir.1972] ). Section 1983 *2 Plaintiff brings this action pursuant to 42 U.S.C. § 1983.

Parisi v. Coca-Cola Bottling Co., 995 F.Supp. 298, 300-01 In order to state a claim under § 1983, plaintiff must allege

(E.D.N.Y.1998).

(1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such

Complaints prepared by pro se plaintiffs should be construed conduct deprived plaintiff of a right, privilege, or immunity liberally and held to “ ‘less stringent standards than formal secured by the Constitution or laws of the United States. pleadings drafted by lawyers.’ “ Scott v. Gardner, 287 Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993). F.Supp.2d 477, 483 (S.D.N.Y.2003) (citations omitted). Pro se complaints should thus be interpreted “ ‘to raise the strongest arguments that they suggest.’ “ Knight v. Keane,

Rule 12(b)(6) Standard 247 F.Supp.2d 379, 383 (S.D.N.Y.2002) (quoting Burgos v. In considering a motion for dismissal under Rule 12, Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). However, the defendant must show that plaintiff can prove no set of complaint “ ‘must contain specific allegations of fact which facts in support of his claim which would entitle him to indicate a deprivation of constitutional rights; allegations relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 which are nothing more than broad, simple and conclusory U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL statements are insufficient to state a claim under § 1983.’ “ PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). “In Torres, 246 F.Supp.2d at 338 (quoting Alfaro Motors, Inc. v. considering a motion to dismiss for failure to state a claim Ward, 814 F.2d 883, 887 (2d Cir.1987)). under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint

First Amendment Standard by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, *3 Plaintiff alleges that his First Amendment right to freely 773 (2d Cir., 1991).The Court must view the complaint, and exercise his religion has been infringed. As the Second Circuit draw all reasonable inferences, in the light most favorable to Court of Appeals held almost thirty years ago in Burgin v. the non-moving party. Id.; see also 2 MOORE'S FEDERAL Henderson, 536 F.2d 501 (1976): PRACTICE, § 12.34[1] [b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide it is now common ground that a convicted “a short and plain statement of the claim showing that the defendant still has constitutional rights pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and that “all when the prison gate closes behind pleadings shall be so construed as to do substantial justice,” him .... And in the last decade or so, Fed.R.Civ.P. 8(f). On a Rule 12(b)(6) motion, the issue before law suits by prisoners of various faiths the Court “is not whether a plaintiff will ultimately prevail, have resulted in a number of decisions but whether the claimant is entitled to offer evidence to defining their rights .... Four years ago, support the claim.” Villager Pond, Inc. v. Town of Darien, 56 this court held that limitations upon F.3d 375, 378 (2d Cir.1995). freedom of religion can be imposed only Finally, while the plaintiff need not set out in detail the facts if the state regulation has an important upon which he bases a claim, he must provide the “defendant objective and the restraint of religious fair notice of the nature of the claim and the grounds upon liberty is reasonably adapted to achieving which it rests.” Washington v. James, 782 F.2d 1134, 1140 (2d that objective. Cir.1986) ( quoting Conley v. Gibson, 355 U.S. 41, 47 [1957] ). Where the allegations are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, they are meaningless as a practical

Burgin, 536 F.2d at 502-03 (quoting LaReau v. MacDougall, matter and legally insufficient to state a claim. Barr v. Abrams, 473 F.2d 974, 979 (1972)) (other internal citations omitted). 810 F.2d 358, 363 (2d Cir.1987)( citing Ostrer v. Aronwald, More recently, the Court of Appeals held that, Holland v. Goord, Not Reported in F.Supp.2d (2006)

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The reasonableness of a prison regulation is measured by constitutional dimensions. Id. at 104. Subjectively, plaintiff the three-step analysis outlined by the Supreme Court in must prove that defendants acted wantonly. Id. Turner [v. Safley, 482 U.S. 78], 89-91 [1987] .... First, we ask “whether the governmental objective underlying the *4 On the objective issue, not every contact is serious regulations at issue is legitimate and neutral, and [whether] enough to reach constitutional dimensions. See Johnson v. the regulations are rationally related to that objective.” Glick, 481 F.2d 1028, 1033 (2d Cir.1973). As Judge Friendly Thornburgh v. Abbott, 490 U.S. 401, 414 (1989). Second, we wrote in Glick, “not every push or shove, even if it may look to see “whether there are alternative means of exercising later seem unnecessary in the peace of a judge's chambers, the right that remain open to prison inmates.” Id. at 417 violates a prisoner's constitutional rights.” Id. “The Eighth (citations and internal quotation marks omitted). Third, we Amendment's prohibition of ‘cruel and unusual’ punishments examine “the impact that accommodation of the asserted necessarily excludes from constitutional recognition de constitutional right will have on others (guards and inmates) minimis uses of physical force, provided that the use of force in the prison.” Id. at 418. is not of a sort ‘repugnant to the conscience of mankind.”

Hudson v. McMillian, 503 U.S. 1, 9-10 (1982) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir.2004) (some citations omitted).

With regard to the subjective component of the test, plaintiff must prove that the defendants acted maliciously. See Romano

The United States Supreme Court addressed the question v. Howarth, 998 F.2d 101, 104-05 (2d Cir.1993). In other of what constitutes a religion for purposes of the First words, plaintiff must show that defendants acted wantonly Amendment in the case of Thomas v. Review Bd. of Ind. and sadistically to cause harm. See Brown v. Busch, 954 Employment Sec. Div., 450 U .S. 707 (1981). The Court stated: F.Supp. 588, 594 (W.D.N.Y.1997). As the Second Circuit advised in Romano v. Howarth,

the determination of what is a “religious” belief or practice is more often than

To determine whether the defendants not a difficult and delicate task, as acted maliciously, a jury should consider the division in the Indiana Supreme the following factors: the extent of Court attests. However, the resolution the plaintiff's injuries; the need for of that question is not to turn upon the application of force; the correlation a judicial perception of the particular between that need and the amount belief or practice in question; religious of force used; the threat reasonably beliefs need not be acceptable, logical, perceived by the defendants; and any consistent, or comprehensible to others efforts made by the defendants to temper in order to merit First Amendment the severity of a forceful response. If protection. an evaluation of these factors leads the jury to conclude that the defendants acted maliciously, wantonness has been established. And an Eighth Amendment

Thomas, 450 U.S. at 714 (footnote omitted). violation has occurred. If, on the other hand, reflection upon these factors leads the jury to find that the defendants

Eighth Amendment Standard acted in a good-faith effort to maintain The standard for an Eighth Amendment violation claim and restore discipline, no constitutional is well settled. See Romano v. Howarth, 998 F.2d 101 violation has occurred because the (2d Cir.1993). In that case, the court stated that Eighth subjective component of the claim has Amendment claims comprise both an objective and subjective not been satisfied. component. Objectively, plaintiff must establish that the injury is sufficiently serious or harmful enough to reach Holland v. Goord, Not Reported in F.Supp.2d (2006)

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*8 (S.D.N.Y. May 16, 1996); Frazier v. Coughlin, 81 F.3d Romano v. Howarth, 998 F.2d at 105. 313 (2d Cir.1996) (plaintiff's sentence fell within expected parameters of sentence imposed by court); Carter, 905 F.Supp. 99 (no protected liberty interest in not being assigned

Procedural Due Process Standard to SHU). The Second Circuit has not established a bright- The Court need not conduct an analysis of whether the line rule regarding the length or type of disciplinary sanction protective procedures afforded to plaintiff at his disciplinary that meets the Sandin standard. However, the Circuit has hearing passed constitutional muster “unless ‘there exists a suggested that SHU confinement for a period of less than 101 liberty or property interest which has been interfered with days would not meet the standard, and emphasized that when by the State.’ “ 2 Carter v. Carriero, 905 F.Supp. 99, 103 undertaking a Sandin analysis, a court must examine “the (W.D.N.Y.1995) (quoting Kentucky Dep't of Corrections v. extent to which the conditions of the disciplinary segregation Thompson, 490 U.S. 454, 460 (1989)). Whether a prison differ from other routine conditions and ... the duration of the inmate has received procedural due process involves a “two- disciplinary segregation imposed compared to discretionary pronged inquiry: (1) whether the plaintiff had a protected confinement.” Wright v. Coughlin, 132 F.3d 133, 136 (2d liberty interest in not being confined ... and, if so, (2) whether Cir.1998); Colon v. Howard, 215 F.3d 227, 231-32 (2d the deprivation of that liberty interest occurred without due Cir.2000). process of law.” Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997). Moreover, in Sandin v. Conner, 515 U.S. 472 (1995), the Eleventh Amendment Standard Supreme Court held that a prisoner cannot claim a protected Defendants raise an Eleventh Amendment defense. The liberty interest unless he demonstrates that he was subjected Supreme Court held that a claim for damages against state to “atypical and significant hardship[s] ... in relation to the officials in their official capacity is considered to be a claim ordinary incidents of prison life.” Sandin, 515 U.S. at 484. To against the State and is therefore barred by he Eleventh meet the Sandin atypical and significant hardship standard, Amendment. Kentucky v. Graham, 473 U.S. 159, 165-167 n. a disciplinary sanction must be clearly “onerous.” Jenkins v. 14 (1985). Haubert, 179 F.3d 19, 28 (2d. Cir.1999).

Personal Involvement of Supervisory Officials 2 Pursuant to 42 U.S.C. § 1997e(a) (2003), “no action For a claim against state officials in their personal capacity to shall be brought with respect to prison conditions survive, a plaintiff must demonstrate “personal involvement under section 1983 of this title, or any other Federal of defendants in alleged constitutional deprivations ....“ Colon law, by a prisoner ... until such administrative v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citation omitted); remedies as are available are exhausted.” This see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.1973) section has been interpreted as an affirmative (“The rule in this circuit is that when monetary damages defense, one which is waived if not raised by are sought under § 1983, the general doctrine of respondeat defendants. See Jenkins v. Haubert, 179 F.3d 19, superior does not suffice and a showing of some personal 28-29 (2d Cir.1999); accord Perez v. Wisconsin responsibility of the defendant is required.”). Department of Corrections, 182 F.3d 532, 536 (7th Cir.1999). Defendants have not raised this issue

Personal involvement of a supervisory official may be by way of a motion to dismiss, or in their answer, established: or by the summary judgment motion now before the Court. Thus, the Court finds defendants have

[B]y evidence that: (1) the [official] waived the exhaustion requirement. participated directly in the alleged *5 Although Special Housing Unit (“SHU”) confinement constitutional violation, (2) the [official], may impose hardships that are atypical or significantly after being informed of the violation different from the burdens of ordinary prison confinement, through a report or appeal, failed to SHU confinement in New York “generally does not impose remedy the wrong, (3) the [official] [an] atypical and significant hardship because it remains created a policy or custom under which within the normal range of prison custody.” Trice v. Clark, unconstitutional practices occurred, or No. 94-CV-6871 (SAS), 1996 U.S. Dist. LEXIS 6644 at Holland v. Goord, Not Reported in F.Supp.2d (2006)

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allowed the continuance of such a policy through plaintiff's appeal of his disciplinary hearing, Zon or custom, (4) the [official] was grossly accepted plaintiff's grievance in part, resulting in a reversal negligent in supervising subordinates and expungement. (Compl. at 21.) Plaintiff has not alleged who committed the wrongful acts, or that Goord was informed of the violation. Third, a plaintiff (5) the [official] exhibited deliberate may assert that the defendants created a policy or custom indifference to the rights of [others] by under which unconstitutional practices occurred, or allowed failing to act on information indicating the continuance of such a policy or custom. Id. Here, plaintiff that unconstitutional acts were occurring. has not advanced that either Zon or Goord created a policy or

custom under which the allegedly unconstitutional practices occurred. Fourth, a plaintiff may assert that the defendants were grossly negligent in supervising subordinates who committed the wrongful acts. Id. Here, plaintiff does not

*6 Johnson v. Newburgh Enlarged School Dist., 239 F.3d allege any facts suggesting that either Zon or Goord was 246, 254 (2d Cir.2001) (alterations in original) (quoting grossly negligent. Fifth, a plaintiff may assert that the Colon, 58 F.3d at 873). defendants exhibited deliberate indifference to the rights of others by failing to act on information indicating that unconstitutional acts were occurring. Id. Here, Zon did act on

DISCUSSION

information of the allegedly unconstitutional act by accepting plaintiff's grievance in part. As to Goord, as indicated above,

In their motion to dismiss, defendants argue that because there is no allegation that he was ever informed of the conduct plaintiff has sued all defendants in their official capacities of which plaintiff complains. Consequently, since plaintiff has only, plaintiff's claims are barred by the Eleventh failed to allege personal involvement by either Goord or Zon Amendment. Plaintiff responds that although he listed through any of the five avenues available, his § 1983 claims defendants with their names and titles, he did not specify against them are dismissed. the capacity in which he was suing them. (Pl.'s Resp. at 5). Even though it appears that plaintiff has sued defendants

*7 Next, defendants claim plaintiff has failed to plead in their official capacities only, and would therefore be a Due Process violation. (Defs.' Mem. of Law, at 4.) As precluded from recovery under § 1983, the Court has an previously indicated, the Second Circuit has suggested that obligation to give a liberal reading to pro se pleadings. SHU confinements shorter than 101 days are not, in and of Accordingly, the Court will consider plaintiff's claims to themselves, enough to show that conditions suffered by a have been made against defendants in both their official and plaintiff constitute an “atypical and significant hardship” on personal capacities. The claims against defendants in their an inmate in relation to the ordinary incidents of prison life. official capacities are dismissed as barred by the Eleventh McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). Amendment, and the Court will consider plaintiff's claims Here, plaintiff was sentenced to seventy-seven days in against defendants in their individual capacities on the merits. keeplock (Compl. at 7). However, time is not the only factor. See Lovelace v. Peters, No. 85-cv-8724, 1988 U.S. Dist. The conditions of confinement are an equally important LEXIS 5598 at * 3 (N.D. Ill. June 6, 1988). consideration in determining whether a confinement in SHU rises to the level of an “atypical and significant hardship.”

Defendants Goord and Zon argue that plaintiff's complaint Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004). Plaintiff fails to allege specific facts showing that they had claims the time served in keeplock deprived him of “all personal responsibility for the alleged actions. As discussed privileges (TV, phone, packages and commissary).” (Compl. above, there are five separate ways to establish personal at 7.) He states he was also unable to go to Muslim services involvement. First, a plaintiff may assert that the defendants and classes and unable to celebrate the end of Ramadan. participated directly in the alleged constitutional violation. (Id.) Recent case law has helped define what conditions of Johnson, 239 F.3d at 254. Here, plaintiff has not stated that confinement rise to the level of an “atypical and significant either Zon or Goord had any direct participation in a claimed hardship.” In Sealey, 197 F.3d at 581, the plaintiff alleged that constitutional violation. Second, a plaintiff may assert that the he was confined in SHU to his cell for twenty-three hours defendants, after being informed of the violation through a per day, could take no more than three showers per week, report or appeal of the disciplinary action, failed to remedy the had limited library privileges and no telephone privileges. wrong. Id. Here, upon being informed of the alleged violation Holland v. Goord, Not Reported in F.Supp.2d (2006)

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of his First Amendment claim that would entitle him to relief. Furthermore, he alleged that there was no quiet bell in the Their motion to dismiss that claim is therefore denied. SHU, so it was noisy most of the time and on occasion, inmates threw feces at other inmates. Id. The Sealey court

*8 Upon granting a motion to dismiss for failure to state held that these conditions did not rise to a level of “atypical a claim upon which relief can be granted, it is within the and significant hardship.” Id. at 589. Likewise, in Arce v. discretion of the district court to allow leave to replead. Walker, 139 F.3d 329, 332 (2d Cir.1998) the Second Circuit Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 held that deprivation of exercise and access to communal (2d Cir.1991); see Ronzani v. Sanofi S.A., 899 F.2d 195, 198 religious services did not rise to a level of “a typical and (2d Cir.1990); Devaney v. Chester, 813 F.2d 566, 569 (2d significant hardship.” Therefore, the Court finds that the Cir.1987); Pross v. Katz, 784 F .2d 455, 459-60 (2d Cir.1986). allegations in the case at bar do not rise to the standard of If there is a chance that “the defect can be cured and there “atypical and significant hardship [s].” McEachin v. Selsky, is no prejudice to the defendant, leave to amend at least No. 9:04-CV-0083, 2005 U.S. Dist. LEXIS 40898 at *33 once should normally be granted as a matter of course.” (N.D.N.Y. March 23, 2005) (loss of packages, commissary Oliver Schools, Inc. v. Foley, 930 F.2d 248, 253 (2d Cir.1991). and phone are acceptable and normal SHU conditions and not Although plaintiff's complaint fails to adequately plead a considered unusual and unduly harsh); Valentino v. Jacobson, Due Process and Eighth Amendment violation, the possibility No. 97 Civ. 7615(WK), 1999 U.S. Dist. LEXIS 368 at *6 exists that plaintiff could allege sufficient facts to support (S.D.N.Y. January 14, 1999) (inmate put for 57 days in such claims. Further, this case is in its early stages and no punitive segregation and denied access to religious services answer has been filed. Accordingly, this Court grants plaintiff did not amount to an atypical and significant hardship). leave to replead. However, plaintiff is cautioned that if the Accordingly, plaintiff's Due Process claim is also dismissed. amended complaint does not adequately plead constitutional violations, the insufficiently pleaded claims may be dismissed

Plaintiff's Eighth Amendment claim is likewise dismissed. with prejudice. Plaintiff alleges no facts which would satisfy either the objective or subjective prong of the standard stated above. Finally, defendants' alleged limitations upon plaintiff's CONCLUSION freedom of religion implicate the First Amendment. As

Defendants' motion (# 9) to dismiss is granted in part. All discussed above, defendants must show that the collection claims against defendants in their official capacities are of plaintiff's urine sample met an important and neutral dismissed. Additionally, plaintiff's Due Process and Eighth objective, that no alternative means were available to meet Amendment claims are dismissed, without prejudice. Plaintiff that objective and that an accommodation would have may have until August 7, 2006, to file an amended complaint negatively impacted others (guards and inmates) in the repleading those claims if he so chooses. Plaintiff is reminded prison. Shakur, 391 F.3d at 113. First, defendants make no that an amended complaint is meant to completely replace arguments concerning the governmental objective underlying the pending complaint, and thus, he must include his First the uranalysis. Second, defendants had alternative means of Amendment claim in any amended complaint he files with the collecting plaintiff's urine merely by waiting until sunset, as Court. conceded by Zon in his ruling on plaintiff's appeal to his disciplinary hearing. (Compl. at 19.) Finally, defendants do

IT IS SO ORDERED.

not contend that an “accommodation would have negatively impacted others (guards and inmates) in the prison.” Shakur, 391 F.3d at 113. Therefore, the Court finds defendants have

All Citations not shown that plaintiff can prove no set of facts in support Not Reported in F.Supp.2d, 2006 WL 1983382 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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in nature such as the voluntary dismissal without prejudice of plaintiff's “defamation of character” and “[loss of] religious

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services” claims, and it is further Only the Westlaw citation is currently available. United States District Court, ORDERED, that Defendants' motion for summary judgment N.D. New York. (dkt.No.38) is GRANTED and that all of the claims asserted in Plaintiff's Amended Complaint (Dkt. No. 9) is

Prince PILGRIM, Plaintiff, DISMISSED with prejudice, and it is further v. P. BRUCE, Correction Officer, Great Meadow ORDERED, that the court certifies in writing, for the C.F.; Murphy, Sergeant, Great Meadow C.F.; purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken Harvey, Hearing Officer, Great Meadow C.F.; from this order in this action would not be taken in good faith, Gary Greene, Superintendent, Great Meadow and it is further C.F.; Glenn Goord, Commissioner of Docs; and Donald Selsky, Director of Docs Special

ORDERED, that the Clerk enter judgment in favor of the Housing/Inmate Discipline Program, Defendants. defendants against the plaintiff. Civil Action No. 9:05-cv-198 (GLS/GHL). | IT IS SO ORDERED May 7, 2008. ORDER and REPORT-RECOMMENDATION Attorneys and Law Firms GEORGE H. LOWE, United States Magistrate Judge. Prince Pilgrim, Dannemora, NY, pro se. This pro se prisoner civil rights action has been referred Hon. Andrew M. Cuomo, Attorney General for the State of to the undersigned for Report and Recommendation by New York, Steven H. Schwartz, Assistant Attorney General, the Honorable Gary L. Sharpe, United States District of Counsel, Albany, NY, for Defendants. Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Currently pending before the Court is Defendants' motion

ORDER

for summary judgment, and Plaintiff's cross-motion for an Order (1) reopening the discovery period in this GARY L. SHARPE, District Judge. action so that Plaintiff may serve interrogatories on *1 The above-captioned matter comes to this court Defendants, (2) adjourning the Court's decision regarding following a Report-Recommendation by Magistrate Judge Defendants' motion, pending Plaintiff's receipt their responses George H. Lowe, duly filed February 21, 2008. Following to his referenced interrogatories, as well as responses ten days from the service thereof, the Clerk has sent the file, to various outstanding discovery demands, (3) imposing including any and all objections filed by the parties herein. sanctions against Defendants for intentionally failing to provide Plaintiff with the discovery mandated by the

No objections having been filed, and the court having Court's discovery order of March 14, 2007, and (4) reviewed the Magistrate Judge's Report-Recommendation for permitting Plaintiff to withdraw his claims of defamation and clear error, it is hereby interference with his right to participate in religious services. ( Id. ) (Dkt.Nos.38, 41.) For the reasons set forth below, I deny

ORDERED, that the Report-Recommendation of Magistrate Plaintiff's cross-motion to the extent that it requests non- Judge George H. Lowe filed February 21, 2008 is dispositive relief, I recommend that the Court deny Plaintiff's ACCEPTED in its entirety for the reasons state therein, and cross-motion to the extent that it requests dispositive relief, it is further and I recommend that the Court grant Defendants' motion for summary judgment with regard to all of the claims asserted

ORDERED, that Plaintiff's cross-motion (Dkt. No. 41) is in Plaintiff's Amended Complaint. DENIED to the extent that it requests relief that is dispositive Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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Plaintiff's rights under the Fifth, Eighth and Fourteenth

I. BACKGROUND

Amendments by deliberately failing to provide Plaintiff with adequate legal assistance before, and during, Plaintiff's

A. Plaintiff's Claims disciplinary hearing on March 22, 2004, and March 26, 2004 *2 Prince Pilgrim (“Plaintiff”) filed his Complaint in this ( id. at ¶¶ 13-16, 19-20, 29); action on February 14, 2005, and his Amended Complaint on July 18, 2005. (Dkt.Nos.1, 9.) Generally, in his Amended

(3) Defendant Andrew Harvey (a hearing officer) violated Complaint, Plaintiff alleges that, while he was incarcerated at Plaintiff's rights under the Fifth, Eighth and Fourteenth Great Meadow Correctional Facility (“Great Meadow C.F.”) Amendments by (a) failing to ensure that Defendants between December of 2003 and June of 2004, six employees provided Plaintiff with all documents necessary to marshal a of the New York State Department of Correctional Services defense at his disciplinary hearing, (b) failing to grant him (“DOCS”) 1 violated his constitutional rights in a variety of an extension of time to prepare for the hearing, (c) failing ways, all revolving around a false and retaliatory misbehavior to dismiss the charges against Plaintiff due to the lack of report that was filed against Plaintiff which, after an allegedly legal assistance he had received, (d) failing to conduct a procedurally defective disciplinary hearing, resulted in a hearing within seven days of the incident, (e) fabricating an disciplinary conviction and punishment. ( See generally Dkt. “extension request,” which falsely stated that Plaintiff had No. 9, Part 1 [Plf.'s Am. Compl.].) requested an extension of time before the hearing so that he could meet with his legal assistant, (f) failing to conduct a

1 fair and impartial hearing on March 22, 2004, and March These six employees are as follows: (1) Phillip 26, 2004, (g) failing to sustain Plaintiff's objection to the Bruce, a correction officer at Great Meadow use of Defendant Bruce as a witness at the hearing, (h) C.F., (2) B. Murray, a sergeant at Great Meadow C.F., misidentified by Plaintiff as Sergeant wrongfully convicting Plaintiff of the offenses with which he had been charged, and (i) imposing on Plaintiff an overly “Murphy,” (3) Andrew Harvey, a hearing officer at harsh disciplinary sentence ( id. at ¶¶ 19-20, 22-24, 31); Great Meadow C.F ., (4) Gary Greene, the Great Meadow C.F. Superintendent, (5) Glenn Goord, the DOCS Commissioner, and (6) Donald Selsky, *3 (4) Defendant Gary Greene (the Great Meadow C.F. Sperintendent) violated Plaintiff's rights under the Fifth, the Director of the DOCS Special Housing/Inmate Eighth and Fourteenth Amendments by (a) “refus[ing] to Grievance Program. (Dkt. No. 9, Part 1 [Plf.'s Am. intervene” in the “foreseeable conflict” between Defendant Compl.]; Dkt. Nos. 16, 17, 19 [Acknowledgments of Service for Defs. Harvey, Murray, and Bruce].) Bruce and Plaintiff, despite knowing of some or all of

Plaintiff's grievances against Defendant Bruce, (b) failing More specifically, Plaintiff alleges as follows: to protect Plaintiff from the filing of a false and retaliatory misbehavior report by Defendant Bruce, and (c) “engaging

(1) Defendant Phillip Bruce (a correctional officer) violated [in] and influencing a predetermination of guilt[ ]” with Plaintiff's rights under the First, Fifth, Eighth and Fourteenth respect to disciplinary charges pending against Plaintiff by Amendments by (1) refusing to permit Plaintiff “to go to [a] “moving [him] unlawfully to long term keep lock housing” notary” on December 23, 2003, (2) “singl [ing]” Plaintiff out on March 19, 2004 (three days before his disciplinary hearing of a group of inmates going to recreation on February 22, commenced), or at least failing to rectify that unjustified 2004, (3) “conspir[ing]” with and “instruct[ing] a co-worker transfer after learning about it through a letter from Plaintiff to harass Plaintiff through the disguise [sic] of a pat-frisk” on ( id. at ¶¶ 1-2, 6-7, 12, 16-19, 21, 33); March 10, 2004, (4) “singl[ing]” him out of a group of inmates going to mess hall in order to subject him to a harassing

(5) Defendant Glenn Goord (the DOCS Commissioner) and retaliatory pat-frisk on March 11, 2004, and (5) filing a violated Plaintiff's rights under the Fifth, Eighth and false misbehavior report against Plaintiff on March 11, 2004, Fourteenth Amendments by (a) “refus[ing] to intervene” in retaliation against him for having filed grievances against in the “foreseeable conflict” between Defendant Bruce and Defendant Bruce on December 23, 2003, February 22, 2004, Plaintiff, despite knowing of some or all of Plaintiff's and March 10, 2004 ( id. at ¶¶ 1, 5, 8-11, 13, 27); grievances against Defendant Bruce, (b) failing to protect Plaintiff from the filing of a false and retaliatory misbehavior

(2) Defendant B. Murray (a correctional sergeant, report by Defendant Bruce, and (c) failing to reverse misidentified by Plaintiff as Sergeant “Murphy”) violated Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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Plaintiff's disciplinary conviction on appeal ( id. at ¶¶ 5, 8, 12, this action) previously faced at least five motions for 25, 35); and summary judgment, and responded to at least four of those

motions, in other prisoner civil rights cases. 2 Moreover, (6) Defendant Donald Selsky (the Director of the when Plaintiff received a copy of Defendants' motion for DOCS Special Housing/Inmate Grievance Program) violated summary judgment, he was (and is still) incarcerated in a New Plaintiff's rights under the Fifth, Eighth and Fourteenth York State correctional facility whose law library contains a Amendments by failing to reverse Plaintiff's disciplinary copy of both the Local Rules of Practice for this Court and conviction on appeal ( id. at ¶¶ 25, 37). this District's Pro Se Manual, both of which advise pro se prisoner-plaintiffs of the consequences of failing to properly

Finally, Plaintiff alleges that each of the six Defendants, oppose a defendant's motion for summary judgment. through their various forms of misconduct, caused Plaintiff to suffer, inter alia, “defamation of character” and “[loss of]

2 See, e.g., Pilgrim v. Wright, 01-CV-0098 religious services.” ( Id. at ¶¶ 27, 29, 31, 33, 35, 37.) (N.D.N.Y.) ( pro se civil rights action in which Plaintiff responded to defendants' motion for summary judgment on 9/23/02); Pilgrim v. Brown,

B. Defendants' Motion and Plaintiff's Cross-Motion 01-CV-0700 (N.D.N.Y.) ( pro se civil rights action Defendants filed their motion for summary judgment on in which Plaintiff had to, but failed to, respond August 30, 2007. (Dkt. No. 38.) Generally, Defendants' to defendants' motion for summary judgment motion for summary judgment is premised on eight grounds: by 1/31/03); Pilgrim v. Luther, 01-CV-8995 (1) Plaintiff's asserted failure to exhaust his available

(S.D .N.Y.) ( pro se civil rights action in which administrative remedies with regard to various of his claims Plaintiff responded to defendants' two motions prior to filing this action in federal court; (2) Plaintiff's for summary judgment on 5/24/02, 7/16/02, asserted failure to state an actionable claim of defamation; and 10/14/04); Pilgrim v. Wolczyl, 02-CV-0901 (3) Plaintiff's asserted failure to state an actionable claim of

(N.D.N.Y.) ( pro se civil rights action in which the denial of his right to participate in religious services; Plaintiff responded to defendants' motion for (4) Plaintiff's asserted failure to state an actionable claim summary judgment on 4/29/05). of conspiracy; (5) Plaintiff's asserted failure to allege facts plausibly suggesting, or adduce evidence establishing, the

Despite having received this detailed notice and liberal personal involvement of Defendant Greene (a supervisor) in deadline-extension, Plaintiff failed to respond to the any of the constitutional violations alleged; (6) the protection substance of Defendants' motion for summary judgment. from liability that Defendants Goord, Greene, Selsky, Harvey Rather, on November 41, 2007, Plaintiff filed “response” and Murphy assertedly enjoy under the circumstances, papers that contained a cross-motion. (Dkt. No. 41.) The pursuant to the doctrine of qualified immunity; (7) Plaintiff's cross-motion requested four types of relief from the Court: asserted failure to state an actionable due process claim due (1) the reopening of the discovery period in this action so to his failure to allege facts plausibly suggesting that he that Plaintiff may serve interrogatories on Defendants; (2) an enjoyed a protected liberty interest in remaining free from the adjournment of the Court's decision regarding Defendants' disciplinary confinement alleged; and (8) Plaintiff's asserted motion, pending Plaintiff's receipt of their responses to failure to adduce evidence establishing a claim of retaliation his referenced interrogatories, as well as responses to by Defendant Bruce. (Dkt. No. 38, Part 15, at 2-25 [Defs.' various outstanding discovery demands; (3) the imposition Memo. of Law].) of sanctions against Defendants for intentionally failing to provide Plaintiff with the discovery mandated by the Court's

*4 Defendants' motion included a detailed notification of discovery order of March 14, 2007; and (4) the withdrawal the consequences of failing to respond to their motion. of his claims of defamation and interference with his right to (Dkt. No. 38, Part 1.) Plaintiff clearly read, and understood, participate in religious services. ( Id. ) this notification since he requested (and was granted) a liberal extension of the deadline by which he had to II. ANALYSIS respond to Defendants' motion. (Dkt. No. 40 [Request and Order granting Plf. a 54-day extension of the response

A. Plaintiff's Cross-Motion deadline].) Moreover, Plaintiff, who is no stranger to the court system, had (when he filed his response papers in Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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affidavits to be obtained or depositions 1. Request for Reopening of Discovery to be taken or discovery to be had or Plaintiff requests to reopen discovery in this action so that may make such other order as is just. he can file various interrogatories. (Dkt. No. 41.) I deny that request based on the fact that Plaintiff has failed to show the sort of cause that is required to support the granting of such a

Fed.R.Civ.P. 56(f). “To request discovery under Rule 56(f), request under Fed.R.Civ.P. 7, 16, 26 and/or 33. a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts

Among other things, Plaintiff has not identified (1) what are reasonably expected to raise a genuine issue of material information he would attempt to elicit from Defendants fact; (3) what efforts the affiant has made to obtain them; and through his interrogatories ( see Dkt. No. 41), (2) why he (4) why the affiant's efforts were unsuccessful.” Gualandi v. needs that information ( id. ), or (3) why he delayed in making Adams, 385 F.3d 236, 244 (2d Cir.2004) [citation omitted], a motion to reopen discovery until now-approximately ten accord, Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 months after the close of discovery in this action, which F.3d 136, 146, n. 3 (2d Cir.2001) [citation omitted]. occurred on April 14, 2007 ( see Dkt. No. 26 [Order filed 10/30/06, resetting deadline for close of discovery as

Here, Plaintiff has failed to satisfy the first, second, and 1/17/07]; Dkt. No. 32[Order filed 3/14/07, directing Defs. to third requirements. First, Plaintiff has failed to demonstrate respond to Plf.'s outstanding discovery requests by 4/14/07]; precisely which of his discovery demands are allegedly Dkt. No. 33 [Defs.' Status Report filed 4/12/07, attaching outstanding. ( See Dkt. No. 41) I have sua sponte compared copies of discovery provided to Plf.] ). Defendants' supplemental discovery responses and my discovery Order of March 14, 2007, and I am unable to

*5 I note that the one-page letter that Plaintiff submitted find any reason to believe that Defendants' supplemental to the Court on or about August 30, 2007, requesting an discovery responses were deficient in any regard. ( Compare extension of 60 days by which to file a motion to compel Dkt. No. 33, Parts 3-6 [Defs.' Status Report] with Dkt. No. Defendants to produce documents in response to Plaintiff's 32 [Order].) I note that, taking into account the 89 pages of outstanding discovery demands did not constitute a motion to documents that Defendants provided to Plaintiff on April 12, reopen discovery in this action so that Plaintiff could serve 2007, Defendants have now provided Plaintiff with some 171 interrogatories on Defendants. (Dkt. No. 39.) pages of documents in response to his discovery demands. ( See Dkt. No. 33, Parts 4, 6.) Despite his possession of these documents, he has adduced no evidence in opposition to

2. Request for Stay of Decision Regarding Summary Defendants' motion for summary judgment. Judgment Motion Plaintiff also requests an adjournment of the Court's decision Second, Plaintiff has not demonstrated how the (unidentified) regarding Defendants' motion for summary judgment pending information sought is reasonably expected to create a genuine Plaintiff's receipt of his outstanding discovery demands. (Dkt. issue of material fact on any of the issues presented by No. 41.) I deny this request based on the fact that Plaintiff has Defendants' on their motion. An opposing party's “mere failed to show the sort of cause that is required to support the hope” that further evidence may develop to create a genuine granting of such a request under Fed.R.Civ.P. 56(f). issue of fact is an insufficient basis upon which to justify the granting of such a stay. Contemporary Mission, Inc. v.

Rule 56(f) provides as follows: USPS, 648 F.2d 97, 107 (2d Cir.1981) [citation omitted]; accord, Sanders v. Quickstak, Inc., 889 F.Supp. 128, 132 (S.D.N.Y.1995); Witter v. AbbellHowe Co., 765 F.Supp. 1144,

Should it appear from the affidavits 1150 (W.D.N.Y.1991); Dixon v. Bowen, 126 F.R.D. 483, 486 of a party opposing the motion [for (S.D.N.Y.1989). Here, a “mere hope” of such further evidence summary judgment] that the party is all that Plaintiff has offered. cannot for reasons stated present by affidavit facts essential to justify the

*6 Moreover, I note that Defendants' motion-although it party's opposition, the court may is submitted as a “motion for summary judgment” under refuse the application for judgment or Fed.R.Civ.P. 56-is almost entirely based on arguments that may order a continuance to permit Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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Plaintiff's Amended Complaint fails to state a claim upon March 14, 2007. (Dkt. No. 41.) I deny this request based on which relief may be granted under Fed.R.Civ.P. 12(b) the fact that Plaintiff has failed to show the sort of cause that (6). ( See generally Dkt. No. 38, Part 15, at 2-25 [Defs.' is required to support the granting of such a request under Memo. of Law].) Of course, such arguments are entirely Fed.R.Civ.P. 16, 26, and/or 37. I note that, as explained above permissible under Fed.R.Civ.P. 56, 3 and the issues presented in Part II.A.2. of this Order and Report-Recommendation,

Plaintiff has not even shown that Defendants indeed failed by such arguments are purely legal in nature and in no to provide Plaintiff with the discovery mandated by the way evidentiary in nature (all material facts alleged in Court's discovery order of March 14, 2007. He certainly Plaintiff's Amended Complaint being accepted as true, and has not shown that any such failure was willful. Under the all reasonable inferences construed in Plaintiff's favor). 4 As circumstances, I find that this request is so lacking in merit a result, it would appear extremely unlikely that any further as to be frivolous. evidence developed by Plaintiff during discovery could defeat the vast majority of Defendants' arguments, which, again, are based on the factual assertions contained within the four

4. Request to Withdraw Two Claims corners of Plaintiff's Amended Complaint. Finally, Plaintiff requests the withdrawal of his claims of defamation and interference with his right to participate

3 in religious services. (Dkt. No. 41.) The relief requested Schwartz v. Compagnise General Transatlantique, in this portion of Plaintiff's cross-motion (i.e., dismissal) 405 F.2d 270, 273-74 (2d Cir.1968) (“Where is dispositive in nature. However, the dismissal requested appropriate, a trial judge may dismiss for failure to

by Plaintiff is voluntary in nature. Authority exists for the state a cause of action upon motion for summary proposition that a magistrate judge may decide such a request judgment.”) [citations omitted], accord, Katz v. without issuing a report-recommendation. 5 However, out of Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56

an abundance of caution, I will express my conclusion with summary judgment motion to a Rule 12(b)(6) regard to this request as part of a recommendation to District motion to dismiss the complaint] is proper with or Judge Sharpe, rather than as an Order. without notice to the parties.”).

5 4 See 28 U.S.C. § 636(b)(1)(A) (providing that a Hernandez v. Coughlin, 18 F.3d 133, 136 (2d district judge “may designate a magistrate to hear Cir.1994) (affirming grant of motion to dismiss) and determine any pretrial matter,” with certain [citation omitted]; Sheppard v. Beerman, 18 F.3d enumerated exceptions-including a decision on a 147, 150 (2d Cir.1994). motion “to involuntarily dismiss an action” ). Third, Plaintiff has failed to explain why he delayed *7 Plaintiff's request, which is more properly construed approximately four-and-a-half months in complaining about as one for voluntary dismissal of these two claims without the discovery responses Defendants sent Plaintiff on April prejudice, is governed by, or at least guided by, Fed.R.Civ.P. 12, 2007, causing Defendants to go to the effort and expense 41(a). I say “guided” because Fed.R.Civ.P. 41(a) speaks of of preparing and filing a motion for summary judgment the dismissal of “actions,” not “claims.” In any event, under on August 30, 2007. ( See Dkt. No. 41; compare Dkt. No. the principles set forth by that Rule, since Defendants have 33, Part 2 [Defs.' Status Report filed 4/12/07, attaching already filed an Answer in this action, Plaintiff may not obtain Declaration of Service.] with Dkt. No. 39 [Plf.'s Request dated the dismissal of the two claims without either (1) a stipulation 8/30/07, asking for an “extension” of the deadline by which of dismissal signed by all parties who have appeared in the he must file a motion to compel].) I note that the docket is action (which he has not filed), or (2) an Order of the Court conspicuously absent of any motion to compel, or motion for issued “upon such terms and conditions as the court deems sanctions, by Plaintiff during the referenced four-and-a-half- proper.” Fed.R.Civ.P. 41(a)(1),(2). month period. ( See generally Docket Sheet.) Simply stated, I do not believe it would be at all proper 3. Request for Sanctions to permit Plaintiff to expressly assert claims of “defamation Plaintiff also requests the imposition of sanctions against of character” and interference with his right to “religious Defendants for intentionally failing to provide Plaintiff with services,” 6 sit idly by as Defendants defend themselves the discovery mandated by the Court's discovery order of Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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against those claims, 7 and then snatch those claims from the Fed.R.Civ.P. 56(c). In determining whether a genuine issue of

material 8 fact exists, the Court must resolve all ambiguities jaws of Defendants' properly filed and facially meritorious motion for summary judgment, just so that this extremely and draw all reasonable inferences against the moving party. 9 litigious plaintiff may again assert them in another action. The claims have been litigated and should be decided.

8 A fact is “material” only if it would have some effect on the outcome of the suit. Anderson v.

6 In his Amended Complaint, filed on June 18, Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2005, Plaintiff expressly alleges that each of 91 L.Ed.2d 202 (1986). six Defendants, through their various forms of 9 Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d misconduct, caused Plaintiff to suffer, inter alia, Cir.1997) [citation omitted]; Thompson v. Gjivoje, “defamation of character” and “[loss of] religious services.” (Dkt. No. 9, Part 1, ¶¶ 27, 29, 31, 33, 35, 896 F.2d 716, 720 (2d Cir.1990) [citation omitted]. 37 [Plf.'s Am. Compl.].)

However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material 7 I note that in their Answer, filed on February 16, fact, the nonmoving party must come forward with “specific 2006, Defendants interposed defenses regarding, facts showing that there is a genuine issue for trial.” 10 The inter alia, Plaintiff's Amended Complaint to the nonmoving party must do more than “rest upon the mere extent that it asserted “state law claims” and claims allegations ... of the [plaintiff's] pleading” or “simply show for “mental or emotional injury.” (Dkt. No. 21, Part that there is some metaphysical doubt as to the material 1, ¶¶ 15, 23 [Defs.' Answer to Plf.'s Am. Compl.].) facts.” 11 Rather, “[a] dispute regarding a material fact is Even if Plaintiff did not appreciate the reasonable meaning of the words he expressly used in his genuine if the evidence is such that a reasonable jury could Amended Complaint, these defenses should have return a verdict for the nonmoving party.” 12 alerted him as to the way in which Defendants were reasonably interpreting those words, and the

10 Fed.R.Civ.P. 56(e) (“When a motion for summary effort and expense to which the words would judgment is made [by a defendant] and supported put them during discovery. I note also that the as provided in this rule, the [plaintiff] may not discovery period in this action was more than a year rest upon the mere allegations ... of the [plaintiff's] long. ( Compare Dkt. No. 23 [Pretrial Scheduling pleading, but the [plaintiff's] response, by affidavits Order filed 4/10/06, initially setting discovery or as otherwise provided in this rule, must set forth deadline as 10/30/06] with Dkt. No. 32 [Order filed specific facts showing that there is a genuine issue 3/14/07, extending deadline by which Defs. had to for trial. If the [plaintiff] does not so respond, respond to Plf.'s outstanding discovery demands to summary judgment, if appropriate, shall be entered 4/14/07].) against the [plaintiff].”); see also Matsushita Elec. For these reasons, I recommend that the Court deny that Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. request based on the fact that Plaintiff has failed to show the 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 sort of cause that is required to support the granting of such a (1986). request under Fed.R.Civ.P. 7(b) and 41(a)(2). 11 Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made [by a defendant] and supported

B. Defendants' Motion for Summary Judgment as provided in this rule, the [plaintiff] may not rest upon the mere allegations ... of the [plaintiff's]

1. Legal Standard Governing Unopposed Motion for pleading ....”); Matsushita, 475 U.S. at 585-86; see Summary Judgment also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, Under Fed.R.Civ.P. 56, summary judgment is warranted if 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.” Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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12 moving party, if he is proceeding pro se, has been specifically

Ross v. McGinnis, 00-CV-0275, 2004 WL advised of the consequences of failing to respond to the 1125177, at *8 (W.D.N.Y. Mar.29, 2004) [internal movant's motion for summary judgment. 17 quotations omitted] [emphasis added]. What this burden-shifting standard means when a plaintiff 15 See N.D.N.Y. L.R. 7.1(a)(3) ( “Any facts set forth has failed to properly respond to a defendant's motion for in the Statement of Material Facts shall be deemed summary judgment is that “[t]he fact that there has been admitted unless specifically controverted by the no [such] response ... does not ... [by itself] mean that the

opposing party.” ) [emphasis in original]. motion is to be granted automatically.” 13 Rather, practically speaking, the Court must (1) determine what material facts, 16

See Vermont Teddy Bear Co., Inc. v. 1-800 if any, are disputed in the record presented on the defendants' Beargram Co., 373 F.3d 241, 243 (2d Cir.2004) motion, and (2) assure itself that, based on those undisputed (“[W]here the non-movant party chooses the material facts, the law indeed warrants judgment for the perilous path of failing to submit a response to defendants. 14 However, the plaintiff's failure to respond to a summary judgment motion, the district court the defendant's motion for summary judgment lightens the may not grant the motion without first examining defendant's burden on the motion. the moving party's submission to determine if it has met its burden of demonstrating that no

13 material issue of fact remains for trial.... If the Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). evidence submitted in support of the summary 14 See Champion, 76 F.3d at 486 (“Such a motion may judgment motion does not meet the movant's properly be granted only if the facts as to which burden of production, then summary judgment there is no genuine dispute show that ... the moving must be denied even if no opposing evidentiary party is entitled to a judgment as a matter of law.”) matter is presented.... [I]n determining whether the [internal quotation marks and citation omitted]; moving party has met this burden of showing the Allen v. Comprehensive Analytical Group, Inc., absence of a genuine issue for trial, the district 140 F.Supp.2d 229, 232 (N.D.N.Y.2001) (Scullin, court may not rely solely on the statement of C.J.) (stating that, where a plaintiff has failed undisputed facts contained in the moving party's to respond to a defendant's motion for summary Rule 56.1 Statement. It must be satisfied that the judgment, “[t]he Court must review the merits citation to evidence in the record supports the of Plaintiff's claims”). This requirement (that the assertion.”) [internal quotation marks and citations Court determine, as a threshold matter, that the omitted]; Govan v. Campbell, 289 F.Supp.2d 289, movant's motion has merit) is also recognized 295 (N.D.N.Y.2003) (Sharpe, M.J.) (“In this case, by Local Rule 7.1(b)(3) of the Local Rules of [the plaintiff] did not file a statement of undisputed Practice for this Court, which provides that “the facts in compliance with Local Rule 7.1(a)(3). non-moving party's failure to file or serve ... Consequently, the court will accept the properly [opposition] papers ... shall be deemed as consent to supported facts contained in the defendants' 7.1 the granting ... of the motion ... unless good cause is statement.”) [emphasis added]; Adirondack Cycle shown,” only where the motion has been “properly & Marine, Inc. v. Am. Honda Motor Co., Inc., filed” and “the Court determines that the moving 00-CV-1619, 2002 U.S. Dist. LEXIS 4386, 2002 party has met its burden to demonstrate entitlement WL 449757 at *2-3 (N.D.N.Y. Mar. 18, 2002) to the relief requested therein.” N.D.N.Y. L.R. (McAvoy, J.) (“Local Rule 7.1 requires a party 7.1(b)(3) [emphasis added]. opposing summary judgment to respond to the

statement of undisputed material facts submitted *8 More specifically, where a plaintiff has failed to respond by the movant. To the extent such facts are not to a defendant's statement of material fact contained in its controverted, the properly supported facts will Statement of Material Facts (a/k/a its “Rule 7.1 Statement”), be taken as true.”) [emphasis added; citation the facts as set forth in that Rule 7.1 Statement will be omitted]; cf. Fed.R.Civ.P. 83(a)(1) (“A local rule accepted as true 15 to the extent that (1) those facts are shall be consistent with ... Acts of Congress supported by the evidence in the record, 16 and (2) the non- and rules adopted under 28 U.S.C. §§ 2072 and Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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2075 [which include the Federal Rules of Civil appropriate, shall be entered against the adverse Procedure] ....”); Fed.R.Civ.P. 56(e) (requiring that, party.”) [emphasis added]; see, e.g., Beers v. GMC, “if the non-movant does not ... respond [to a 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at summary judgment motion], summary judgment, *27-31 (N.D.N.Y. March 17, 1999) (McCurn, if appropriate, shall be entered against the non- J.) (deeming plaintiff's failure, in his opposition movant,” and requiring that, as a threshold matter, papers, to oppose several arguments by defendants the motion for summary judgment must be “made in their motion for summary judgment as consent and supported as provided in this rule”) [emphasis by plaintiff to the granting of summary judgment added]. for defendants with regard to the claims that the

arguments regarded, under Local Rule 7.1[b][3]; 17 See Champion v. Artuz, 76 F.3d 483, 486 (2d Devito v. Smithkline Beecham Corp., 02-CV-0745, Cir.1996); cf. N.D.N.Y. L.R. 56.2 (imposing on 2004 WL 3691343, at *3 (N.D.N.Y. Nov.29, 2004) movant duty to provide such notice to pro se (McCurn, J.) (deeming plaintiff's failure to respond opponent). to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the

Similarly, where a plaintiff has failed to respond to court should exclude [the expert's] testimony” on a defendant's properly filed and facially meritorious that ground). memorandum of law (submitted in support of its motion for summary judgment), the plaintiff is deemed to have

19 Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. “consented” to the legal arguments contained in that LEXIS 16258, 2003 WL 22143709, at *7-8 memorandum of law under Local Rule 7.1(b)(3) of the (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before Local Rules of Practice for this Court. 18 Stated another a motion to dismiss may be granted under Local way, where a defendant has properly filed a memorandum Rule 7.1[b][3], “the court must review the motion of law (in support of a properly filed motion for summary to determine whether it is facially meritorious” ) judgment), and the plaintiff has failed to respond to that [emphasis added; citations omitted]; accord, Topliff memorandum of law, the only remaining issue is whether the v. Wal-Mart Stores East LP, 04-CV-0297, 2007 legal arguments advanced in the defendant's memorandum U.S. Dist. LEXIS 20533, 2007 WL 911891, at *28 of law are facially meritorious. 19 A defendant's burden in & n. 43 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); making legal arguments that are facially meritorious has Hynes v. Kirkpatrick, 05-CV-0380, 2007 U.S. Dist. appropriately been characterized as “modest.” 20 LEXIS 24356, at *5-6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v. Kooi, 04-CV-1311, 2007 U.S. Dist. LEXIS 26583, 2007 WL 951447,

18 N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed at *28-29 & n. 40 (N .D.N.Y. Feb. 12, 2007) (Lowe, motion is unopposed and the Court determines that M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 the moving party has met its burden to demonstrate (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele entitlement to the relief requested therein, the non- v. Pelkey, 03-CV-0170, 2006 U.S. Dist. LEXIS moving party's failure to file or serve any papers as 95065, 2006 WL 3940592, at *5 & n. 2 (N.D.N.Y. required by this Rule shall be deemed as consent to Dec. 19, 2006) (Lowe, M.J.), adopted by 2007 U.S. the granting or denial of the motion, as the case may Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, be, unless good cause be shown .”); N.D.N.Y. L.R.

J.).

7.1(a) (requiring opposition to motion for summary 20 judgment to contain, inter alia, a memorandum

See Ciaprazi v. Goord, 02-CV0915, 2005 WL of law); cf. Fed.R.Civ.P. 56(e) (“When a motion 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, for summary judgment is made and supported as J.; Peebles, M.J.) (characterizing defendants' provided in this rule, an adverse party may not threshold burden on a motion for summary rest upon the mere allegations or denials of the judgment as “modest”) [citing Celotex Corp. adverse party's pleading, but the adverse party's v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. response ... must set forth specific facts showing 2548, 91 L.Ed.2d 265 (1986) ]; accord, Saunders that there is a genuine issue for trial. If the adverse v. Ricks, 03-CV-0598, 2006 WL 3051792, at party does not so respond, summary judgment, if *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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J., adopting Report-Recommendation of Lowe, 2. First Ground for Dismissal of Plaintiff's Amended M.J.), Smith v. Woods, 03-CV-0480, 2006 WL Complaint: Facial Merit of Defendants' Unopposed 1133247, at *17 & n. 109 (N.D.N.Y. Apr.24, Motion for Summary Judgment 2006) (Hurd, J., adopting Report-Recommendation As an initial matter, I find that Defendants' motion papers of Lowe, M.J.); cf. Race Safe Sys. v. Indy were “properly filed” for purposes of Local Rule 7.1(b)(3). Racing League, 251 F.Supp.2d 1106, 1109-1110 N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is (N.D.N.Y.2003) (Munson, J.) (reviewing whether unopposed and the Court determines that the moving party record contradicted defendant's arguments, and has met its burden to demonstrate entitlement to the relief whether record supported plaintiff's claims, in requested therein, the non-moving party's failure to file or deciding unopposed motion to dismiss, under Local serve any papers as required by this Rule shall be deemed as Rule 7.1[b][3] ); Wilmer v. Torian, 96-CV-1269, consent to the granting or denial of the motion, as the case 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. may be, unless good cause be shown.”). For example, their Aug. 29, 1997) (Hurd, M.J.) (applying prior version Statement of Material Facts-to the extent one is even needed of Rule 7.1[b][3], but recommending dismissal to decide Defendants' arguments that Plaintiff has failed to because of plaintiff's failure to respond to motion state a claim upon which relief may be granted-contains 16 to dismiss and the reasons set forth in defendants' assertions of fact, each of which is supported by an accurate motion papers), adopted by 1997 U.S. Dist. LEXIS record citation. ( See Dkt. No. 38, Part 2 [Defs.' Rule 7.1 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, Statement].) Moreover, Defendants' motion is, as it must be, J.); accord, Carter v. Superintendent Montello, 95- supported by a memorandum of law that contains a table CV-989, 1996 U.S. Dist. LEXIS 15072, at *3 of contents and citations to legal authorities, and that does (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by not exceed 25 pages in length. (Dkt. No. 38, Part 15 [Defs.' 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.). Memo. of Law].) Implied in the above-stated standard is the fact that, where a non-movant fails to respond to a motion for summary

Moreover, I find that Plaintiff was advised of the judgment, a district court has no duty to perform an consequences of failing to properly respond to Defendants' independent review of the record to find proof of a factual motion for summary judgment and, clearly, he understood dispute, even if that non-movant is proceeding pro se. 21 those consequences, for the reasons stated above in Part I.B. of this Order and Report-Recommendation. However, despite

21 having received this detailed notice and liberal deadline- See Amnesty Am. v. Town of W. Hartford, 288 extension, Plaintiff failed to respond to the substance of F.3d 467, 470 (2d Cir.2002) (“We agree with Defendants' motion for summary judgment. (Dkt. No. 41.) those circuits that have held that Fed.R.Civ.P. 56 does not impose an obligation on a district court

*9 As a result, the only issue remaining before the Court to perform an independent review of the record is whether the legal arguments advanced in Defendants' to find proof of a factual dispute.”) [citations Memorandum of Law are facially meritorious. 22 After omitted]; accord, Lee v. Alfonso, No. 04-1921, 2004 U.S.App. LEXIS 21432, 2004 WL 2309715 reviewing these legal arguments, and the undisputed facts (2d Cir. Oct. 14, 2004), aff'g, 97-CV-1741, 2004 upon which they rely, I find that each of these legal arguments U.S. Dist. LEXIS 20746, at *12-13 (N.D.N .Y. is, at the very least, facially meritorious, for the reasons stated Feb. 10, 2004) (Scullin, J.) (granting motion for by Defendants in their Memorandum of Law. ( See Dkt. No. 38, Part 15, at 2-25 [Defs.' Memo. of Law].) I note that several summary judgment); Fox v. Amtrak, 04-CV-1144, 2006 U.S. Dist. LEXIS 9147, 2006 WL 395269, cases exist from this District granting summary judgment at *1-4 (N.D.N.Y. Feb. 16, 2006) (McAvoy, J.) against a pro se litigant based on a similar facial analysis of (granting motion for summary judgment); Govan Defendants' unopposed motion papers. 23 v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. Oct.29, 2003) (Sharpe, M.J.) (granting motion for

22 See, supra, note 19 of this Order and Report- summary judgment); Prestopnik v. Whelan, 253 Recommendation. F.Supp.2d 369, 371-372 (N.D.N.Y.2003) (Hurd,

J.).

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23 Various of His Claims Prior to Filing this Action in

See, e.g., Race Safe Sys. v. Indy Racing Federal Court League, 251 F.Supp.2d 1106, 1109-1110 Defendants accurately describe the Prison Litigation Reform (N.D.N.Y.2003) (Munson, J.) (reviewing whether Act's exhaustion requirement, and New York State DOCS' record contradicted defendant's arguments, and formal grievance process. ( See Dkt. No. 38, Part 15, at 2-5 whether record supported plaintiff's claims, in [Defs.' Memo. of Law] .) For the sake of brevity, I will deciding unopposed motion to dismiss, under Local not repeat these well-known points of law. I will only add Rule 7.1[b][3] ); Wilmer v. Torian, 96-CV-1269, that the Second Circuit has held that a three-part inquiry is 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. appropriate where a defendant contends that a prisoner has Aug. 29, 1997) (Hurd, M.J.) (applying prior version failed to exhaust his available administrative remedies, as of Rule 7.1[b][3], and recommending dismissal required by the PLRA. 25 First, “the court must ask whether because of plaintiff's failure to respond to motion [the] administrative remedies [not pursued by the prisoner] to dismiss and the reasons set forth in defendants' were in fact ‘available’ to the prisoner.” 26 Second, if those motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14, 1997) (Pooler, remedies were available, “the court should ... inquire as to J.); accord, Carter v. Superintendent Montello, 95-

whether [some or all of] the defendants may have forfeited CV-989, 1996 U.S. Dist. LEXIS 15072, at *3 the affirmative defense of non-exhaustion by failing to raise (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by or preserve it ... or whether the defendants' own actions 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.). inhibiting the [prisoner's] exhaustion of remedies may estop

one or more of the defendants from raising the plaintiff's For these reasons, I recommend that the Court grant failure to exhaust as a defense.” 27 Third, if the remedies were Defendants' motion for summary judgment. available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, “the

3. Alternative Ground for Dismissal of Plaintiff's Court should consider whether ‘special circumstances' have Amended Complaint been plausibly alleged that justify the prisoner's failure to Because I have already found that an adequate ground comply with the administrative procedural requirements.” 28 exists upon which to base a recommendation that Plaintiff's Amended Complaint be dismissed, I do not believe there is

25 See Hemphill v. State of New York, 380 F.3d 680, a need to proceed to a more in-depth analysis of Defendants' 686, 691 (2d Cir.2004). arguments in favor of dismissal. Furthermore, I recommend that the Court decline to sua sponte conduct such a detailed

26 Hemphill, 380 F.3d at 686 (citation omitted). analysis, especially given the backlog of prisoner civil rights cases on its docket. 24 However, in the interest of aiding the 27

Id. [citations omitted]. Court should it decide to conduct such an analysis, I have 28 Id. [citations and internal quotations omitted]. subjected Defendants' legal arguments to the more rigorous scrutiny that would be appropriate on a contested motion, and

*10 Here, Defendants essentially argue that administrative I find that I am persuaded by those legal arguments, which remedies were available to Plaintiff, but he failed to pursue I list and discuss below. ( See Dkt. No. 38, Part 15, at 2-25 (and exhaust) them. (Dkt. No. 38, Part 15, at 6-8 [Defs.' [Defs.' Memo. of Law].) Memo. of Law].) Defendants further argue that no special circumstances exist justifying this failure. ( Id. at 8.)

24 I note that the Second Circuit had, between 2000 Although I agree with the main thrust of this argument (i.e., and 2005, the longest median time to disposition that several of Plaintiff's claims should be dismissed due for prisoner civil rights cases, among the twelve to Plaintiff's failure to exhaust his available administrative circuits (including the D.C. Circuit)-specifically, remedies before filing this action in federal court), I 9.8 months, as compared to a national average of disagree somewhat with Defendants' reasoning. Specifically, 5.7 months. I disagree with Defendants' argument to the extent that it is based simply on the allegations of Plaintiff's Amended

(i) Plaintiff's Asserted Failure to Exhaust His Complaint (i.e., on a failure-to-state-a-claim analysis). Available Administrative Remedies with Regard to Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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of pleadings) has remained reticent or outright silent about For some years now, it has been the majority rule (followed any efforts he did or did not take to appeal the denial of any by the Second Circuit) that a prisoner's fulfillment of his grievance or complaint to CORC. ( See Dkt. No. 9, Part 1 duty to exhaust his available administrative remedies under [Plf.'s Am. Compl.].) the Prison Litigation Reform Act (“PLRA”) is not a fact that the prisoner had to plead in order to state a claim *11 Fortunately for Defendants, they also assert an argument under 42 U.S.C. § 1983 but a fact that may be challenged based on the uncontroverted record evidence in this action by a defendant through an affirmative defense (such as on (i.e., on a summary-judgment analysis). Specifically, they a motion for summary judgment pursuant to Fed.R.Civ.P. argue that the uncontroverted record evidence in this action 56, or a motion to dismiss for lack of subject-matter establishes that Plaintiff never appealed to CORC the denial jurisdiction pursuant to Fed.R.Civ.P. 12[b][1] ) established by of any grievances regarding several of his claims against the PLRA. See, e.g., Jenkins v. Haubert, 179 F.3d 19, 28-29 Defendant Bruce. ( See Dkt. No. 38, Part 15, at 6-8 [Defs.' (2d Cir.1999) (“Because, under the PLRA, a prisoner must Memo. of Law].) In support of this argument, Defendants exhaust administrative remedies before filing a § 1983 suit ..., have adduced the Declaration of Karen R. Bellamy, the a defendant in a prisoner § 1983 suit may also assert as an Director of the Inmate Grievance Program for the New affirmative defense the plaintiff's failure to comply with the York State DOCS. (Dkt. No. 38, Part 9 [Decl. of Bellamy].) PLRA's requirements.”); Snider v. Melindez, 199 F.3d 108, Exhibit 1 to that Declaration attaches a computer printout 114 (2d Cir.1999) (“A court may not dismiss for failure to demonstrating that Plaintiff never appealed to CORC the exhaust administrative remedies unless the court determines denial of any grievances regarding the following four claims: that such remedies are available. Snider's answers [on a form (1) Defendant Bruce's (alleged) refusal to permit Plaintiff complaint] cannot establish that.”). “to go to [a] notary” on December 23, 2003; (2) Defendant

Bruce's (alleged) “singl[ing]” Plaintiff out of a group of Last year, the Supreme Court upheld this interpretation of inmates going to recreation on February 22, 2004; (3) the exhaustion requirement, prohibiting circuits (such as the defamation by any Defendant; and (4) interference, by any Sixth, Tenth and Eleventh Circuits) from using exhaustion Defendant, with Plaintiff's right to participate in religious as a heightened pleading requirement in prisoner civil rights services. ( Id. at ¶ 3 [citing, and attaching, Ex. 1 to Decl. of case. See Jones v. Block, 549 U.S. 199, 127 S.Ct. 910, Bellamy].) 29 914-915, 918-923, 166 L.Ed.2d 798 (2007). A prisoner has no independent duty to plead facts plausibly suggesting that he

29 As for Plaintiff's claims regard the (allegedly) exhausted his available administrative remedies, in order to harassing pat-frisks on March 10 and 11, 2004, the state an actionable claim under 42 U.S.C. § 1983. Block, 127 computer printout provided by Ms. Bellamy does S.Ct. at 919-21. “[T]his is not to say that failure to exhaust indicate that, on March 13, 2003, Plaintiff filed a cannot be a basis for dismissal for failure to state a claim.” grievance at Great Meadow C.F. (GM-34283-03) Id. at 921. If a prisoner chooses to plead facts regarding entitled “Moorish Pat Frisk.” ( Id. at 4 [Ex. 1 to exhaustion, and those facts plausibly suggest that he failed Decl. of Bellamy].) Of course, I am giving Plaintiff to exhaust his available administrative remedies, then his the benefit of the doubt here, since the title of his Complaint may be dismissed for failure to state a claim. Id. grievance suggests that the pat frisk at issue was at 920-21. objectionable because of it was due to Plaintiff's apparent Muslim religion, and not due to Plaintiff's

Simply stated, if a prisoner says nothing or little about having filed grievances against Defendant Bruce. exhaustion in his pro se civil rights complaint, he is likely I note that the computer printout establishes that, during the protected from a Fed.R.Civ.P. 12(b)(6) motion to dismiss premised on failure to exhaust. However, if he says too much 2002-2003 period, the grievance procedure at Great Meadow about exhaustion in that complaint so that his non-exhaustion C.F. was working properly so as to be available to Plaintiff. I note also that no record evidence (nor even a conclusory is readily apparent, he may “plead himself out of court,” as allegation) exists suggesting that any Defendant in this matter, the saying goes. I find that this is not what has happened here. While Plaintiff alleges that he sent various officials through his own actions, inhibited Plaintiff's exhaustion of letters of complaint about certain actions (allegedly) taken by remedies so as to estop that Defendant from raising Plaintiff's failure to exhaust as a defense. Finally, I note also that Defendant Bruce, Plaintiff (an experienced litigant and drafter Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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no record evidence exists supporting a conclusion that any the speculative level [to a plausible level],” or, special circumstances existed that justified any attempts by in other words, there must be “plausible grounds Plaintiff to appeal the denial of any complaint to Defendant to infer [actionable conduct]”), accord, Iqbal v. Goord rather than to CORC, as is required by 7 N.Y.C.R.R. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (“[W]e §§ 701.5(d), 701.8(g),(h). 30 believe the [Supreme] Court [in Bell Atlantic

Corp. v. Twombly] is ... requiring a flexible ‘plausibility standard,’ which obliges a pleader to

30 ( See, e.g., Dkt. No. 38, Part 7, at 10-11 [Ex. E to amplify a claim with some factual allegations in Defs.' Motion, attaching Plf.'s letter of 2/22/04 to those contexts where such amplification is needed Def. Goord regarding Defendant Bruce's alleged to render the claim plausible.” ) [emphasis in misconduct on 2/22/04]; Dkt. No. 38, Part 8, at original]. 3-4 [Ex. F to Defs.' Motion, attaching Plf.'s letter of 3/11/04 to Def. Goord regarding “harassment &

(iii) Plaintiff's Asserted Failure to State an Actionable unlawful discrimination” by Def. Bruce].) Claim of the Denial of His Right to Participate in Based on the current record, I find that the uncontroverted Religious Services record evidence establishes that, before filing this action *12 Under even the most liberal of constructions, Plaintiff's in federal court, Plaintiff failed to exhaust his available

Amended Complaint has failed to allege facts plausibly administrative remedies regarding the following four claims: suggesting that any Defendant in this action interfered with (1) Defendant Bruce's (alleged) refusal to permit Plaintiff Plaintiff's right to participate in religious services. ( See Dkt. “to go to [a] notary” on December 23, 2003; (2) Defendant No. 9, Part 1, ¶¶ 27, 29, 31, 33, 35, 37 [Plf.'s Am. Compl.].) Bruce's (alleged) “singl[ing]” Plaintiff out of a group of

As a result, I recommend that, in the alternative, the Court inmates going to recreation on February 22, 2004; (3) dismiss this claim with prejudice. defamation by any Defendant; and (4) interference, by any Defendant, with Plaintiff's right to participate in religious (iv) Plaintiff's Asserted Failure to State an Actionable services. As a result, I recommend that the Court dismiss

Claim of Conspiracy Against Defendant Bruce those four claims with prejudice. As explained above in Part I.A. of this Order and Report- Recommendation, among Plaintiff's claims against Defendant

(ii) Plaintiff's Asserted Failure to State an Actionable Bruce is a claim that he “conspir[ed]” with and “instructed Claim of Defamation a co-worker to harass Plaintiff through the disguise [sic] of

Under even the most liberal of constructions, Plaintiff's a pat-frisk” on March 10, 2004, at Great Meadow C.F. ( See Amended Complaint has failed to allege facts plausibly Dkt. No. 9, Part 1, ¶ 8 [Plf.'s Am. Compl.].) suggesting 31 that any Defendant in this action defamed Defendants challenge the pleading sufficiency of this claim Plaintiff during the relevant time period. ( See Dkt. No. 9, to the extent that it alleges a conspiracy by Defendant Bruce. Part 1, ¶¶ 27, 29, 31, 33, 35, 37 [Plf.'s Am. Compl.].) ( See Dkt. No. 38, Part 15, at 11-12 [Defs.' Memo. of Law].) I Moreover, as Defendants argue, even if Plaintiff had stated

agree. Under even the most liberal of constructions, Plaintiff's a claim for defamation, no reason exists for the Court to Amended Complaint has failed to allege facts plausibly assert supplemental jurisdiction over that claim, under the suggesting that Defendant Bruce engaged in a conspiracy circumstances. ( See Dkt. No. 38, Part 15, at 8-10 [Defs.' with the unidentified corrections officer to harass Plaintiff by Memo. of Law].) As a result, I recommend that, in the

subjecting him to a pat-frisk on March 10, 2004. ( See Dkt. alternative, the Court dismiss Plaintiff's defamation claim No. 9, Part 1, ¶ 8 [Plf.'s Am. Compl.].) with prejudice. Moreover, I find that Plaintiff's claim fails to the extent 31

See Bell Atl. Corp. v. Twombly, --- U.S. ----, ----, he alleges that Defendant Bruce was personally involved 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) in any constitutional violation that occurred with regard to (holding that, for a plaintiff's complaint to state a the pat-frisk. As an initial matter, I note that, generally, claim upon which relief might be granted under prisoners retain only a limited Fourth Amendment privacy Fed.R.Civ.P. 8 and 12, his “[f]actual allegations interest in being free from such searches when they walk must be enough to raise a right to relief above Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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through the prison doors. 32 Plaintiff does not allege that § 1915(e)(2)(B)(ii), which provides that “the court shall

dismiss [a] case [brought by a prisoner proceeding in forma the pat-frisk violated his right to privacy under the Fourth pauperis ] at any time if the court determines that ... the Amendment. Rather, Plaintiff claims that the search was action ... is frivolous or malicious[,] ... fails to state a claim retaliatory in nature, and thus violated his First Amendment on which relief may be granted[,] ... or ... seeks monetary rights. The problem is that Plaintiff has alleged no facts in relief against a defendant who is immune from such relief”; support of his conclusory allegation that Defendant Bruce and (2) 28 U.S .C. § 1915A(b), which provides that, “[o]n “instructed” the unidentified corrections officer to perform review, the court shall ... dismiss the [prisoner's] complaint, or the pat-frisk. Nor does Plaintiff alleges any facts plausibly any portion of the complaint, if the complaint ... is frivolous, suggesting that the pat-frisk (which occurred in a maximum- malicious, or fails to state a claim upon which relief may be security correctional facility) would not have occurred even granted ....” without such an instruction. Thus, Plaintiff fails to allege facts plausibly suggesting the second and third elements of a

*13 For these reasons, I recommend that the Court dismiss retaliation claim (i.e ., the taking of adverse action against the with prejudice both Plaintiff's conspiracy claim regarding plaintiff by the defendant, and a causal connection between the pat-frisk on March 11, 2004, and the retaliation claim the plaintiff's protected speech or activity and the taking of regarding that pat-frisk. the adverse action). 33 32 (v) Plaintiff's Asserted Failure to Allege Facts

See Bell v. Wolfish, 441 U.S. 520, 556-57, 99 Plausibly Suggesting, or Adduce Evidence S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[G]iven

Establishing, the Personal Involvement of Defendant the realities of institutional confinement, any Greene (a Supervisor) in any of the Constitutional reasonable expectation of privacy that a detainee Violations Alleged retain[s] necessarily [is] of a diminished scope.”).

Defendants accurately recite the law regarding the personal 33 To prevail on a First Amendment claim under involvement of supervisory officials in constitutional 42 U.S.C. § 1983, a Plaintiff must prove by violations alleged in prisoner civil rights actions. ( See Dkt. the preponderance of the evidence that: (1) the No. 38, Part 15, at 12-14 [Defs.' Memo. of Law].) For the sake speech or conduct at issue was “protected”; (2) of brevity, I will not repeat these well-known points of law. the defendants took “adverse action” against the plaintiff-namely, action that would deter a similarly

In arguing that Defendant Greene was not personally involved situated individual of ordinary firmness from in any of the constitutional violations alleged, Defendants exercising his or her constitutional rights; and employ alternative arguments: (1) Plaintiff has failed to (3) there was a causal connection between the allege facts plausibly suggesting that Defendant Greene was protected speech and the adverse action-in other personally involved in any of the constitutional violations words, that the protected conduct was a “substantial alleged; and (2) Plaintiff has failed to adduce any evidence or motivating factor” in the defendants' decision establishing that Defendant Greene was personally involved to take action against the plaintiff. Mount Healthy in any of the constitutional violations alleged. ( Id. ) City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);

I have some reservation accepting the first argument given Gill v. Pidylpchak, 389 F.3d 379, 380 (2d Cir.2004) Plaintiff's allegations in his Amended Complaint that he (citing Dawes v. Walker, 239 F.3d 489, 492 [2d. submitted written complaints to Defendant Greene on three Cir.2001] ). Under this analysis, adverse action occasions regarding various of the claims at issue in this taken for both proper and improper reasons may be action, and that Defendant Greene responded in writing to upheld if the action would have been taken based Plaintiff on four occasions. ( See Dkt. No. 9, Part 1, ¶¶ 1, on the proper reasons alone. Graham v. Henderson, 2, 5, 6, 7, 12, 17, 18 [Plf.'s Am. Compl., alleging that he 89 F.3d 75, 79 (2d Cir.1996) (citations omitted). submitted written complaints to Def. Greene on or about 12/23/03, 2/22/04 and 3/19/04, and that Def. Greene sent

I note that, under the circumstances, the Court has the power written responses to Plf. on or about 12/26/03, 3/1/04, 3/8/04 (and duty) to sua sponte address the pleading sufficiency of and 3/19/04].) Plaintiff's other claims, under two authorities: (1) 28 U.S.C. Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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However, I have no reservation accepting the second 12/26/03 to Plf., stating “Your 12/23/04 letter argument, given the undisputed record on Defendants' to me complaining about security staff has been motion for summary judgment. More specifically, I find forwarded to DSS Vanguilder for his investigation that no rational fact-finder could conclude from Plaintiff's and response to you”]; Dkt. No. 38, Part 6, at written communications to Defendant Greene that Defendant 2 [Ex. D to Defs.' Motion, attaching Captain Greene was notified that any constitutional violations were Kelly's memorandum of 2/6/04 to Plf., reporting occurring. 34 Nor could a rational fact-finder conclude that “Superintendent Greene has referred your

recent communication regarding the above subject from Defendant Greene's (or his subordinates') written to me for an investigation and response,” and communications to Plaintiff that Defendant Greene's response that, following a thorough investigation of Plf.'s was in any way reckless or even negligent. 35 It bears complaint about the notary issue, it has been emphasizing that, following his receipt of Plaintiff's letters, concluded that there was no malfeasance by Def. Defendant Greene rather promptly assigned the matter to Bruce on 12/23/04]; Dkt. No. 38, Part 7, at 5 a subordinate officer for investigation, notified Plaintiff [Ex. E to Defs.' Motion, attaching Def. Greene's of that assignment, and then relied on the results of memorandum of 3/1/04 to Plf., stating “Your that subordinate officer's investigation. Defendants have 2/22/04 letter to me complaining about C.O. Bruce accurately cited authorities supporting the (correct) point of has been forwarded to DSS Vanguilder for his law that a superintendent's adoption of a recommendation investigation and response to you. I resent the by an investigating officer cannot by itself demonstrate statement made by you that I or members of that he failed to remedy misconduct. Shabazz v. Lee, 03- the Executive Team have condoned inappropriate CV1520, 2007 WL 119429, at *7, n. 4 (N.D.N.Y. Jan.10, behavior. I did not see a sign ‘Bruce Almighty’ 2007) (Homer, M.J.) [citations omitted]. Finally, I note that posted in the Mess Hall Foyer and, if I had, I the fact that Defendant Greene did not reverse Plaintiff's would have assumed it listed the movie to be shown disciplinary conviction (a conviction, by the way, that was not to you by that title. You are extremely paranoid subsequently overturned on appeal) 36 is not evidence of any and this latest letter to me borders on threats by constitutional violation by Defendant Greene. you. If I continue to believe you to be a threat here, I will address that issue.”]; Dkt. No. 38,

34 Part 7, at 2 [Ex. E to Defs.' Motion, attaching (Dkt. No. 38, Part 6, at 10-11 [Ex. D to Defs.' P. Vanguilder's memorandum of 3/12/04 to Plf., Motion, attaching Plf.'s letter of 12/23/03 to Def. reporting that, following a thorough investigation Greene regarding Def. Bruce's statement to Plf.

of Plf.'s complaint about the notary issue, it has on 12/23/04 that no notary was available]; Dkt. been concluded that there was no harassment by No. 38, Part 7, at 6-8, 11-13 [Ex. E to Defs.' Def. Bruce on 2/22/04] ) Motion, attaching Plf.'s letter of 2/22/04 to Def. Greene regarding his “harassment & unlawful

36 ( See Dkt. No. 38, Part 5, at 2 [Ex. C to discrimination” against Plaintiff by [1] singling Defs.' Motion, attaching appellate decision dated Plaintiff out of a group of inmates going to 6/8/04, by Def. Selsky regarding Plf.'s disciplinary recreation on 2/22/04, thus preventing him from conviction].) going to recreation, [2] “illegally” posting a sign on a menu board reading “Bruce Almighty,” and *14 For these reasons, I recommend that the Court dismiss [3] “over stepping his duties into other officers' with prejudice Plaintiff's claims against Defendant Greene duties,” for example, by “commanding two posts” based on his lack of personal involvement in any of the when he is only assigned to one such post; and constitutional violations alleged. stating, “[I]f I am attacked by this officer, I will defend my life” and requesting that action be taken

(vi) The Protection from Liability that Defendants “before something serious incidents [sic] occur Goord, Greene, Selsky, Harvey and Murphy with myself, this officer, or co-worker”].) Assertedly Enjoy Under the Circumstances, Pursuant 35 (Dkt. No. 38, Part 6, at 9 [Ex. D to Defs.' to the Doctrine of Qualified Immunity Motion, attaching Def. Greene's memorandum of

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Defendants accurately recite the legal standard governing the Defendants accurately recite the legal standard governing application of the doctrine of qualified immunity. ( See Dkt. Plaintiff's due process claim regarding the manner in which No. 38, Part 15, at 14-17 [Defs.' Memo. of Law].) For the sake his prison disciplinary hearing was conducted. ( See Dkt. No. of brevity, I will not repeat this well-known legal standard. 38, Part 15, at 17-21 [Defs.' Memo. of Law].) For the sake

of brevity, I will not repeat this well-known legal standard Applying that legal standard to the record before the Court other than to emphasize that, in order to establish that he on Defendants' motion for summary judgment, I find that no possessed a protected liberty in remaining free from the rational fact-finder could conclude from the current record disciplinary confinement at issue, Plaintiff must establish that that Defendants Goord, Greene, Selsky, Harvey or Murphy the confinement imposed on him an atypical and significant violated a clearly established statutory or constitutional right hardship in relation to the ordinary incidents of prison life. of which a reasonable corrections officer would have known, for the reasons stated by Defendants in their Memorandum of Applying this legal standard to the allegations of Plaintiff's Law. ( Id. at 15-17.) Amended Complaint, I agree with Defendants that Plaintiff

has failed to allege facts plausibly suggesting that he enjoyed Stated more simply, “officers of reasonable competence could a protected liberty interest in remaining free from the disagree on [the legality of defendant's actions].” Malley disciplinary confinement alleged, for the reasons stated by v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d Defendants in their Memorandum of Law. ( Id. at 20-21.) 271 (1986); see also Ramirez v. Holmes, 921 F.Supp. 204, Plaintiff alleges that his disciplinary conviction resulted in a 211 (S.D.N.Y.1996); Malsh v. Correctional Officer Austin, sentence of sixty (60) days of keep-lock confinement and a 901 F.Supp. 757, 764 (S.D.N.Y.1995) [citing cases]. As the corresponding loss of privileges. ( See Dkt. No. 9, Part 1, ¶¶ Supreme Court explained, 24 [Plf.'s Am. Compl.].) More specifically, Plaintiff alleges

that the conditions of his keep-lock confinement subjected Plaintiff to the following:

[T]he qualified immunity defense ... provides ample protection to all but the plainly incompetent or those *15 [L]ost telephone privileges, who knowingly violate the law .... commissary privileges, package Defendants will not be immune if, on privileges, special events privileges, an objective basis, it is obvious that regular visits, 23-hour confinement, no reasonably competent officer would one (1) Exercise period, three ten- have concluded that a warrant should minute showers weekly, deprivation of issue; but if officers of reasonable access to Law library, deprivation of competence could disagree on this Access to the Courts, Lost [sic] of Sao issue, immunity should be recognized. Shop Industry Program earnings [of]

42 cents an hour, deprivation of paying Court fees, deprivation of paying for copies of legal material, injuring

Malley, 475 U.S. at 341. eligibility for constructive transfer, defamation of character, [denial of]

For these reasons, I recommend that the Court dismiss liberty interest and religious services, with prejudice Plaintiff's claims against Defendants Goord, and that such lost [sic] was malicious, Greene, Selsky, Harvey and Murphy based on the doctrine of cruel and unusual punishment .... qualified immunity. (vii) Plaintiff's Asserted Failure to State an Actionable ( Id. at ¶¶ 27, 29, 31, 33, 35, 37.) Due Process Claim Due to His Failure to Allege Facts Plausibly Suggesting that He Enjoyed a

Both the Supreme Court and Second Circuit have made Protected Liberty Interest in Remaining Free from the clear that a “short” period of disciplinary confinement (i.e., Disciplinary Confinement Alleged under 101 days) under generally “normal” conditions (i.e., Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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even if some of those conditions are harsher than those in a co-worker to harass Plaintiff through the disguise [sic] of a disciplinary confinement or the general population) usually pat-frisk” on March 10, 2004; (4) “singl[ing]” Plaintiff out of does not rise to the level of atypicality. 37 Here, setting a group of inmates going to mess hall in order to subject him

to a harassing and retaliatory pat-frisk on March 11, 2004; aside the often-conclusory nature of Plaintiff's allegations, and (5) filing a false misbehavior report against Plaintiff on the allegations generally state the ordinary conditions of March 11, 2004, in retaliation against him for having filed disciplinary confinement in a correctional facility within the grievances against Defendant Bruce on December 23, 2003, New York State DOCS. See Colon v. Howard, 215 F.3d February 22, 2004, and March 10, 2004. ( id. Dkt. No. 9, Part 227, 230 (2d Cir.2000) (describing the following conditions 1, ¶¶ 1, 5, 8-11, 13, 27 [Plf.'s Am. Compl.].) 38 as “normal” conditions of SHU confinement in New York: “Colon was placed in a solitary confinement cell, kept in his cell for 23 hours a day, permitted to exercise in the 38

I note that Defendants characterize these five prison yard for one hour a day ..., limited to two showers discrete claims as four discrete claims, after a week, and denied various privileges available to general combining the fourth and fifth claims described population prisoners, such as the opportunity to work and above into one claim. (Dkt. No. 38, Part 15, at obtain out-of-cell schooling. Visitors were permitted, but the 23-24 [Defs.' Memo. of Law]. frequency and duration was less than in general population. *16 Defendants accurately recite the legal standard The number of books allowed in the cell was also limited. governing Plaintiff's claim of retaliation by Defendant Bruce. As to duration, Colon was required to serve 305 days ( See Dkt. No. 38, Part 15, at 21-23 [Defs.' Memo. of Law].) of the 360-day sentence imposed.”) (citing N.Y.C.R.R. §§ For the sake of brevity, I will not repeat this well-known legal 304.1-304.14). For example, conspicuously missing from this standard other than to emphasize two facts a plaintiff must litany are any allegations that, while in keeplock confinement, prove by a preponderance of the evidence in order to prevail Plaintiff was denied food, clothing, bedding, heat, running on a First Amendment claim. First, the plaintiff must prove water, toiletries, or medicine. ( Id. at ¶¶ 27, 29, 31, 33, 35, 37.) that the defendant (as opposed to some third-person) took “adverse action” against the plaintiff 39 Second, the plaintiff

37 See, e.g., Sandlin v. Conner, 515 U.S. 472, 475-476, must prove that there was a causal connection between the 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) protected speech in which the plaintiff was engaging and the (30 days of disciplinary confinement in SHU adverse action allegedly taken against him-in other words, under conditions that mirrored those of normal that the protected conduct was a “substantial or motivating administrative segregation “with insignificant factor” in the defendants' decision to take action against the exceptions” did not rise to the level of atypicality); plaintiff. 40 Under this analysis, adverse action taken for both Sealey v. Giltner, 197 F.3d 578, 589-590 (2d proper and improper reasons may be upheld if the action Cir.1999) (101 days of disciplinary confinement would have been taken based on the proper reasons alone. 41 in SHU under conditions that were “doubtless unpleasant and somewhat more severe than those of general population” did not rise to the level of 39

Mount Healthy City Sch. Dist. Bd. of Educ. v. atypicality). Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d For these reasons, I recommend that, in the alternative, the 471 (1977); Gill v. Pidylpchak, 389 F.3d 379, 380 Court dismiss with prejudice Plaintiff's due process claims. (2d Cir.2004) (citing Dawes v. Walker, 239 F.3d

489, 492 [2d. Cir.2001] ). 40 (viii) Plaintiff's Asserted Failure to Adduce Evidence Mount Healthy City Sch. Dist. Bd. of Educ., 429 Establishing a Claim of Retaliation by Defendant U.S. at 287; Gill, 389 F.3d at 380. Bruce

41 Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) As explained above in Part I.A. of this Order and Report- [citations omitted]. Recommendation, Plaintiff asserts five discrete instances of retaliation by Defendant Bruce: (1) refusing to permit Plaintiff

Applying that legal standard to the record before the Court “to go to [a] notary” on December 23, 2003; (2) “singl[ing]” on Defendants' motion for summary judgment, I find that no Plaintiff out of a group of inmates going to recreation on rational fact-finder could conclude from the current record February 22, 2004; (3) “conspir[ing]” with and “instruct[ing] Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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that Defendant Bruce retaliated against Plaintiff, for the Fed.R.Civ.P. 15(a) (leave to amend “shall be freely reasons stated by Defendants in their Memorandum of Law. given when justice so requires”). ( Id. at 23-25.) In particular, Defendants have adduced record

For the sake of brevity, I will set aside the fact that one of evidence establishing, among other things, that (1) no notary the reasons for this rule is that the pro se plaintiff should was on duty at Great Meadow C .F. on December 23, be afforded special leniency due to his lack of experience 2003, (2) Defendant Bruce was not present at Great Meadow with the court system and litigation process, and here Plaintiff C.F. when Plaintiff went to recreation at or after 2:30 p.m. need be afforded no such special leniency because he is on February 22, 2004, (3) Defendant Bruce (a correctional experienced with the court system and litigation process officer, not a correctional sergeant or lieutenant) possessed (having filed at least 11 other federal or state court actions or no authority to instruct a co-worker to pat-frisk Plaintiff appeals regarding his imprisonment). 43 on March 10, 2004 (or at any time), (4) Defendant Bruce's personal pat frisk of Plaintiff on March 11, 2004 would

43 See, e.g., Pilgrim v. Keane, 97-CV1517 (E.D.N.Y.); have occurred even without the improper motive alleged, Pilgrim v. Wright, 01-CV-0098 (N.D.N.Y.); and (5) Defendant Bruce would have filed a misbehavior report against Plaintiff on March 11, 2004, even without the Pilgrim v. Brown, 01-CV-0700 (N.D.N.Y.); Pilgrim improper motive alleged. ( Id. at 23-24 [providing accurate v. Luther, 01-CV-8995 (S.D.N.Y.); Pilgrim v. Wolczyl, 02-CV-0901 (N.D.N.Y.); Pilgrim v. Artus, citations to record evidence].) Furthermore, Plaintiff has 07-CV-1001 (N.D.N.Y.); Pilgrim v. Wright, No. failed to adduce evidence creating a genuine issue with regard to these facts. 03-0086 (2d Cir.); Pilgrim v. Greene, Index No.

505332/2003 (N.Y. Sup.Ct., Washington County); Pilgrim v. Greene, No. 95400 (N.Y.App.Div., 3d For these reasons, I recommend that the Court dismiss Dept.); Pilgrim v. Greene, Nos. 3-10, 526 (N.Y.); with prejudice Plaintiff's retaliation claim against Defendant Bruce. Pilgrim v. New York, UID 2001-005-512, Claim

No. 103678 (N.Y.Ct.Cl.). Rather, the problem with applying this leave-to-amend rule 4. Miscellaneous Issues to Plaintiff under the circumstances is that granting a pro se plaintiff an opportunity to amend is not required where

(i) Whether Any Claims Remain the plaintiff has already been given a chance to amend his I have carefully compared my detailed summary of the pleading. 44 Here, Plaintiff has already had such a chance claims asserted in Plaintiff's Amended Complaint ( see, supra, Part I.A. of this Order and Report-Recommendation) with

to amend his pleading. ( See Dkt. No. 9, Part 1 [Plf.'s Am. Defendants' meritorious arguments in favor of dismissal Compl.] .) ( see, supra, Part II .B.3. of this Order and Report- Recommendation), and I report that, should the Court adopt

44 Cagle v. Perry, 04-CV-1151, 2007 WL 3124806, this Report-Recommendation, all of the claims asserted in at *6, n. 45 (N.D.N.Y. Oct.24, 2007) (McAvoy, J., Plaintiff's Amended Complaint would be dismissed from this adopting report-recommendation of Lowe, M.J.); action. Indeed, several of those claims would be dismissed on Savage v. Brue, 05-CV-0857, 2007 WL 3047110, two or more alternative grounds. at *5, n. 35 (N.D.N.Y. Oct.18, 2007) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Koehl v. Greene, 06-CV-0478, 2007 WL 2846905,

(ii) Whether Plaintiff Should Be Afforded Another at *3, n. 13 (N.D.N.Y. Sept.26, 2007) (Kahn, J., Chance to Amend adopting report-recommendation of Lowe, M.J.); *17 Generally, when addressing a pro se complaint, a district Muniz v. Goord, 04-CV-0479, 2007 WL 2027912, court “should not dismiss without granting leave to amend at at *2, n. 14 (N.D.N.Y. July 11, 2007) (McAvoy, J., least once when a liberal reading of the complaint gives any adopting report-recommendation of Lowe, M.J.); indication that a valid claim might be stated.” 42 Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *5, n. 34 (N.D.N.Y. Jan.23, 2007) (Kahn,

42 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) J., adopting report-recommendation of Lowe, (internal quotation and citation omitted); see also M.J.); Ariola v. Onondaga County Sheriff's Dept., Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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04-CV-1262, 2007 WL 119453, at *2, n. 13 46 Cuoco, 222 F.3d at 112 (finding that repleading (N.D.N.Y. Jan.10, 2007) (Hurd, J., adopting report- would be futile) [citation omitted]; see also Cortec recommendation of Lowe, M.J.); Collins v. Fed. Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, Bur. of Prisons, 05-CV-0904, 2007 WL 37404, 48 (2d Cir.1991) (“Of course, where a plaintiff at *4, n. 30 (N.D.N.Y. Jan.4, 2007) (Kahn, J., is unable to allege any fact sufficient to support adopting report-recommendation of Lowe, M.J.); its claim, a complaint should be dismissed with Goros v. Cent. Office Review Comm., 03-CV-0407, prejudice.”) (affirming, in part, dismissal of claim 2006 WL 2794415, at *5, n. 18 (N.D.N.Y. Sept., 26, with prejudice) [citation omitted]. 2006) (Sharpe, J., adopting report-recommendation For all of these reasons, I recommend that the dismissal of of Lowe, M.J.); Williams v. Weaver, 03-CV-0912, Plaintiff's Amended Complaint be with prejudice. 2006 WL 2799417, at *4, n. 16 (N.D.N.Y. Sept. 26, 2006) (Kahn, J., adopting report-recommendation of Lowe, M.J.).

(iii) Whether the Court Should Permit Plaintiff to Moreover, even when a plaintiff is proceeding pro se, “all Supplement the Record on Any Appeal to District normal rules of pleading are not absolutely suspended.” 45 In

Court from this Report-Recommendation In light of Plaintiff's prolific nature as a litigant, I particular, an opportunity to amend should be denied where anticipate that, during his likely objections to this Report- “the problem with [plaintiff's] causes of action is substantive” Recommendation, he will attempt to supplement the record such that “[b]etter pleading will not cure it.” 46 Here, the on Defendants' Motion for Summary Judgment. I respectfully problems with Plaintiff's causes of action are substantive, not recommend that the Court, in exercising its discretion on the merely formal. Simply stated, if Plaintiff (an experienced, matter, decline to permit him to so supplement the record. prolific litigant) could have alleged sufficient facts to state viable claims, he would have done so.

The Second Circuit recognizes that the decision of whether or not to accept such evidence as resting in the sound discretion

45 Stinson v. Sheriff's Dep't of Sullivan County, 499 of the district court: “Considerations of efficiency and fairness F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980); accord, militate in favor of a full evidentiary submission for the Standley v. Dennison, 05-CV-1033, 2007 WL Magistrate Judge's consideration, and we have upheld the 2406909, at *6, n. 27 (N.D.N.Y. Aug.21, 2007) exercise of the district court's discretion in refusing to allow (Sharpe, J., adopting report-recommendation of supplementation of the record upon the district court's de novo Lowe, M.J.); Muniz, 2007 WL 2027912, at *2 review.” Hynes v. Squillance, 143 F.3d 653, 656 (2d Cir.1998) (McAvoy, J., adopting report-recommendation of (affirming decision by Scullin, J., of the Northern District of Lowe, M.J.); DiProjetto v. Morris Protective Serv., New York) [citations omitted]. 489 F.Supp.2d 305, 307 (W.D.N.Y.2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL

The Fifth Circuit has suggested four factors that a court might 853203, at *3 (S.D.N.Y. Feb.9, 2007); Lopez v. consider in deciding whether to accept additional evidence Wright, 05-CV-1568, 2007 WL 388919, at *3, after a magistrate judge's recommendation has been issued: n. 11 (N.D.N.Y. Jan.31, 2007) (Mordue, C.J., adopting report-recommendation of Lowe, M.J.); Richards v. Goord, 04-CV-1433, 2007 WL 201109,

*18 (1) the moving party's reasons at *5 (N.D.N.Y. Jan.23, 2007) (Kahn, J., adopting for not originally submitting the report-recommendation of Lowe, M.J.); Ariola v. evidence; (2) the importance of the Onondaga County Sheriff's Dept., 04-CV-1262, omitted evidence to the moving 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan.10, party's case; (3) whether the evidence 2007) (Hurd, J., adopting report-recommendation was previously available to the non- of Lowe, M.J.); Collins, 2007 WL 37404, at moving party when it responded to the *4 (Kahn, J., adopting report-recommendation of summary judgment motion; and (4) the Lowe, M.J.). likelihood of unfair prejudice to the Pilgrim v. Bruce, Not Reported in F.Supp.2d (2008)

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ACCORDINGLY, it is non-moving party if the evidence is ORDERED that Plaintiff's cross-motion (Dkt. No. 41) is accepted. DENIED to the extent that it requests relief that is non- dispositive in nature (i.e., the reopening of the discovery period in this action, the adjourning of the Court's decision

Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 regarding Defendants' motion, and the imposition of sanctions F,3d 847, 862 (5th Cir.2003) [citation omitted]. against Defendants); and it is further Here, I find that these four factors-particularly the third RECOMMENDED that Plaintiff's cross-motion (Dkt. No. and fourth factors-weigh against permitting Plaintiff to 41) be DENIED to the extent that it requests relief that is supplement the record on Defendants' motion for summary dispositive in nature (i.e., the voluntarily dismissal without judgment during any appeal to the District Court from this prejudice of Plaintiff's “defamation of character” and “[loss Report-Recommendation. This action has been pending now of] religious services” claims); and it is further since February 14, 2005, past the eighteen months envisioned by Congress when the Civil Justice Reform Act of 1990 was RECOMMENDED that Defendants' motion for summary passed. 47 Plaintiff has had a full and fair opportunity to be judgment (Dkt. No. 38) be GRANTED, and that all of the

claims asserted in Plaintiff's Amended Complaint (Dkt. No. heard on his claims, including a full and fair opportunity 9) be DISMISSED with prejudice; and it is further to (1) conduct discovery in this matter, (2) object to any (allegedly) deficient responses to his discovery demands,

RECOMMENDED that the Court DENY any request by and (3) respond with evidence and argument to Defendants' Plaintiff to supplement the record on Defendants' motion for motion for summary judgment. For whatever reason, he chose summary judgment during any appeal to the District Court not to do so, perhaps because he was too busy litigating other from this Report-Recommendation; and it is further actions, or more probably because the evidence simply did not support his claims. In any event, Defendants are entitled

*19 RECOMMENDED that the Court certify in writing, to have their motion decided within a reasonable time frame for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken and on a level playing field (based on evidence and arguments from the Court's final judgment in this action would not be to which they could properly reply). taken in good faith. 47 See Adelman v. Hobbie, 03-CV-0032, 2006 WL Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the 2639359, at *8 (N.D.N.Y. Sept.13, 2006) (Sharpe, parties have ten days within which to file written objections J., adopting Report-Recommendation by Treece, to the foregoing report. Such objections shall be filed with M.J.) (dismissing pro se civil rights action for the Clerk of the Court. FAILURE TO OBJECT TO THIS failure to prosecute under Rule 41[b] in part

REPORT WITHIN TEN DAYS WILL PRECLUDE

because “[o]ver three years has passed since this APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, litigation was commenced, well past the eighteen 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human months envisioned by Congress when the Civil Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b); Justice Reform Act of 1990 was instituted”). Fed.R.Civ.P. 6(a), 6(e), 72. For these reasons, I recommend that the Court, in exercising its discretion on the issue, deny any request by Plaintiff

All Citations to supplement the record on Defendants' motion for summary judgment, during any objections to this Report-

Not Reported in F.Supp.2d, 2008 WL 2003792 Recommendation. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Smith v. Hamilton, Not Reported in Fed. Supp. (2016)

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a claim on which relief may be granted. Dkt. No. 12. Plaintiff filed a response in opposition. Dkt. No. 23.

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Only the Westlaw citation is currently available. This matter was assigned to United States Magistrate Judge United States District Court, N.D. New York. Andrew T. Baxter, who issued a Report-Recommendation and Order on April 1, 2016, recommending that the

Jason SMITH, Plaintiff, motion be granted in part and denied in part. Dkt. No. v. 27. Magistrate Judge Baxter recommended that defendants' M. HAMILTON, Correctional Officer; Riverview motion for summary judgment as to the First Amendment Correctional Facility, et al, Defendants. retaliation claim be granted, based upon the failure to exhaust administrative remedies, and that the complaint be

9:15 -CV-0496 (BKS/ATB)

dismissed in its entirety as to defendant Hamilton and as to | a First Amendment retaliation claim. Dkt. No. 27, pp. 23-24. Signed July 11, 2016 Magistrate Judge Baxter recommended that the motion to | dismiss the due process claims against defendants Rufa, Prack Filed 07/12/2016 and Hillendbrand be denied. Dkt. No. 27, at 23-24. Magistrate Attorneys and Law Firms Judge Baxter advised the parties that under 28 U.S.C. § 636(b) (1) and Local Rule 72.1(c), they had fourteen days within Jason Smith, New York, NY 10027, Plaintiff, pro se. which to file written objections to the report, and that the failure to object to the report within fourteen days would

Oriana L. Carravetta, Esq., Hon. Eric T. Schneiderman, Office preclude appellate review. Id. of New York State Attorney General, The Capitol, Albany, NY 12224, Attorney for Defendants.

Plaintiff did not file an objection to the Report- Recommendation. 1 Defendants filed an objection to the Report-Recommendation, objecting to Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Baxter's determination that the Plaintiff had alleged a Hon. Brenda K. Sannes, U. S. District Judge sufficient liberty interest for his due process claim. Dkt. No. 29. For the reasons set forth below, the Report- Recommendation is adopted in its entirety.

*1 I. Introduction 1 Plaintiff pro se Jason Smith brought this action against The Report-Recommendation was served on defendants under 42 U.S.C. § 1983 alleging violations of his Plaintiff at Auburn Correctional Facility on April constitutional rights while he was an inmate at Riverview 1, 2016. On April 5, 2016, Plaintiff filed a notice Correctional Facility. Dkt. No. 1. In a July 27, 2015 Decision of change of address with the Court. Dkt. No. 28. and Order, the Court determined that the following claims The Clerk resent the Report-Recommendation to survived sua sponte review under 28 U.S.C. §§ 1915(e)(2) Plaintiff at his new address on April 6, 2016. (B) and 1915A(b), and required a response: (1) the Fourteenth Amendment due process claims against defendants A. Rufa, II. Standard of Review Albert Prack and C. Hillenbrand; (2) the First Amendment retaliation claim against defendant M. Hamilton; and (3) the

This court reviews de novo those portions of the Magistrate supervisory claim against defendant John Doe. Dkt. No. 5, p. Judge's findings and recommendations that have been 18. properly preserved with a specific objection. Petersen v. Astrue , 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C.

On November 6, 2015, defendants filed a motion for § 636(b)(1)(C). Findings and recommendations as to which partial summary judgment under Fed. R. Civ. P. 56 on the there was no properly preserved objection are reviewed for First Amendment retaliation claim for failure to exhaust clear error. Id. administrative remedies, and for partial dismissal under Fed. R. Civ. P. 12(b)(6) of the due process claims for failure to state Smith v. Hamilton, Not Reported in Fed. Supp. (2016)

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*2 To survive a motion to dismiss a complaint “must plead from prison prior to the expiration of a valid ‘enough facts to state a claim to relief that is plausible on sentence. Greenholtz v. Inmates of Neb. Penal and its face.’ ” J.S. v. T'Kach , 714 F.3d 99, 103 (2d Cir. 2013) Corr. Complex , 422 U.S. 1, 7 (1979); see Abed (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 v. Armstrong , 209 F.3d 63, 66-67 (2d Cir. 2000) (2007)). While the “court must accept as true all of the (“Although inmates have a liberty interest in good allegations contained in a complaint ... [t]hreadbare recitals time credit they have already earned, no such of the elements of a cause of action, supported by mere interest has been recognized in the opportunity to conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556 earn good time credit where ... prison officials have U.S. 662, 678 (2009). A complaint that is filed pro se must discretion to determine whether an inmate or class be construed liberally, “interpreting it to raise the strongest of inmates are eligible to earn good time credit.”) claims that it suggests.” J.S. v. T'Kach , 714 F.3d at 103. (citation omitted); Scarola v. Goord , 266 A.D.2d

598, 599, 698 N.Y.S. 2d 60 (3d Dep't 1999) (finding that enactment of merit time legislation, N.Y. Corr. Law § 803, did not create a constitutionally

III. Discussion protected liberty interest); Lighthall v. Vadlamudi , No. 9:04-CV-0721, 2006 WL 721568, **14-15,

The Court has reviewed Magistrate Judge Baxter's 2006 U.S. Dist. LEXIS 74734, *47 (Feb. 6, 2006) determination that plaintiff failed to exhaust his (same), report recommendation adopted by 2006 administrative remedies as to his First Amendment retaliation U.S. Dist. LEXIS 74737, (N.D.N.Y. March 17, claim for clear error, and found none. The Court accordingly 2006). adopts Magistrate Judge Baxter's Report-Recommendation in its entirety as to Defendants' motion for partial summary

As Magistrate Judge Baxter noted, to establish a due process judgment under Fed. R. Civ. P. 56 as to the First Amendment claim Plaintiff had to show: “(1) that he possessed a liberty retaliation claim and as to defendant Hamilton. interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Giano v. Selsky ,

With respect to Plaintiff's due process claim, Defendants have 238 F.3d 223, 225 (2d Cir. 2001) (citation and internal objected to Magistrate Judge Baxter's rationale for concluding quotation marks omitted); Dkt No. 27 p. 18. In this case that Plaintiff has alleged a sufficient liberty interest. Dkt. Plaintiff challenges the due process procedures regarding a No. 29, p. 1. Specifically, Defendants argue that: (1) Plaintiff disciplinary hearing that resulted in a 90-day SHU sentence. has failed to allege atypical and significant hardship for a Dkt. No. 1, pp. 4-5. 3 90-day confinement in Special Housing Unit (“SHU”); (2) the loss of conditional release or merit board eligibility does

3 The Court adopts and incorporates herein the facts not implicate a liberty interest; and (3) Plaintiff's allegation set forth in the Report-Recommendation, none of that he suffered “extreme emotional distress due to the evil which were the subject of an objection. intentions, willful and malicious conduct, and retaliation, [and] discrimination” is conclusory and irrelevant to the

*3 A prisoner “has a liberty interest that is implicated by liberty interest analysis. (Dkt. No. 29, pp. 1-2). 2 SHU confinement if it ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” J.S. v. T'Kach , 714 F.3d at 106 (quoting

2 In light of the Court's ruling regarding the Sandin v. Conner , 515 U.S. 472, 484, (1995)); see also Palmer sufficiency of the allegations of atypical conditions v. Richards , 364 F.3d 60, 64 (2d Cir. 2004). In making this of confinement, and its adoption of the Report- determination courts are to consider, “among other things, Recommendation on that basis, the Court has not the duration and conditions of confinement.” J.S. , 714 F. considered Defendants' other objections. The Court 3d at 106; Davis v. Barrett , 576 F.3d 129, 133 (2d Cir. notes that, as Magistrate Judge Baxter found, it is 2009). The conditions of confinement are to be considered not clear what Plaintiff means when he states that “in comparison to the hardships endured by prisoners in he “lost” his “Merit Board” and his “Conditional general population, as well as prisoners in administrative Release.” Dkt. No. 27, p. 21; see Dkt. No. 1, and protective confinement, assuming such confinements are pp.8-10. The Court recognizes that inmates do not imposed in the ordinary course of prison administration.” have a constitutional right to conditional release Davis , 576 F.3d at 134; Palmer , 364 F.3d at 66 n.4. Smith v. Hamilton, Not Reported in Fed. Supp. (2016)

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a protected liberty interest because there were no Although the Second Circuit has “explicitly avoided” creating allegations of unusual confinement). “a bright line rule that a certain period of SHU confinement

In this case, the duration of the confinement, 90 days, “was automatically fails to implicate due process rights,” the Court not long enough to constitute an atypical and significant has established guidelines. Palmer , 364 F.3d at 65. Where the deprivation by itself,” and the Court therefore must “look to plaintiff is confined for “an intermediate duration –between the conditions of confinement.” Palmer , 364 F.3d at 66; see 101 and 305 days – ‘development of a detailed record’ of also Davis , 576 F.3d at 133. Although there are no allegations the conditions of the confinement relative to ordinary prison regarding the conditions of Plaintiff's confinement in the body conditions is required.’ ” Id. (quoting Colon v. Howard , 215 of the verified Complaint, Plaintiff detailed conditions of his F.3d 227, 234 (2d Cir. 2000)). 4 While confinements for confinement in his prayer for relief, in connection with his less than 101 days “under normal SHU conditions may not claim for damages. Dkt. No. 1, p. 10. Plaintiff alleges that implicate a prisoner's liberty interest,” such confinements

he “was confined for 23 hours a day in a cell roughly 60 “could constitute atypical and significant hardships if the feet square for approximately 90 days with a cell mate who conditions were more severe than the normal SHU conditions you must share 10 minute showers with, with no shower of Sealy or a more fully developed record showed that even curtain, share an open toilet and sink and deprived of most relatively brief confinements under normal SHU conditions

of my personal property as well as the ability to work, were, in fact, atypical.” Palmer , 364 F.3d at 65; see Davis , 576 attend mandatory program, watch television, attend out door F.3d at 133. 5 “Disputes about conditions may not be resolved [sic] recreation in a congregated setting with the ability to engage in sports and other congregate recreational activities,

on summary judgment.” Davis , 576 F.3d at 134 (quoting associate with other prisoners, attend meals with other Palmer , 364 F.3d at 65). The district court may determine the prisoners, attend Jumah services, and extreme emotional issue of atypicality of confinement as a matter of law “[o]nly distress suffered by him due to the evil intentions, willful and when the conditions are uncontested.” Id.

malicious conduct, retaliation, discrimination as well as being denied basic rights to due process of law.” Dkt. No. 1, p. 10.

4 A longer confinement under normal SHU conditions is “a sufficient departure from the

*4 Defendants argue, without citation, that the conditions ordinary incidents of prison life to require described “are simply normal SHU conditions.” Dkt. No. 29, procedural due process protections.” Palmer , 364 p. 2 While the Court agrees that some of the conditions are F.3d at 65. normal SHU conditions, see N.Y. Comp. Codes R. & Regs. 5 tit. 7, §§ 304.1-.14, 305.1-.6 (2016); Palmer , 364 F.3d at 65 The Second Circuit has noted that “[i]n the absence n.3, the Court cannot make a determination at this stage of the of a detailed factual record, we have affirmed litigation regarding the atypicality of Plaintiff's confinement. dismissal of due process claims only in cases where It is not clear, for example, that the “deprivation of most of the period of time spent in SHU was exceedingly [plaintiff's] personal property” was a normal SHU condition. short – less than the 30 days that the Sandin plaintiff See N.Y. Comp. Codes R. & Regs. tit. 7, § 302.2 (e); see spent in SHU—and there was no indication that also Palmer , 364 F.3d at 62, 66 n.4 (affirming district court's the plaintiff endured unusual SHU conditions.” denial of defendant's motion for summary judgment in a case Palmer , 364 F.3d at 65-66; see Davis , 576 F.3d involving SHU confinement for seventy-seven days when at 133. Absent allegations in the complaint that the plaintiff alleged that he was “not permitted any personal the conditions of confinement were in some way property (including his personal food, clothing and grooming atypical, however, many courts in this Circuit have and hygiene products), and was placed in restraints whenever granted motions to dismiss claims by plaintiffs he was escorted outside his cell” and was terminated from with confinement exceeding thirty days when the a program through which he had extended visits with his plaintiffs failed to allege that the conditions of family). confinement were in some way atypical. See , e.g. , Acevedo v. Fischer , No. 12-CV-6866 RA, 2014 WL

Construing the pro se complaint liberally and to raise 5015470 at *15, 2014 U.S. Dist. LEXIS 139057, the strongest arguments it suggests, the Court concurs in at *48 (S.D.N.Y. Sept. 29, 2014) (citing cases Magistrate Judge Baxter's determination that “at this stage of involving confinements of between forty and fifty the litigation, the court cannot determine whether a liberty days which were dismissed for failure to allege Smith v. Hamilton, Not Reported in Fed. Supp. (2016)

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interest was created based on the complaint alone,” and that

ORDERED that defendant Hamilton is dismissed from this Defendant's motion to dismiss should be denied. Dkt. No. case; and it is further 27, p. 23. In so ruling, the Court expresses no opinion about whether this claim can withstand a properly filed motion for

ORDERED that defendants' motion to dismiss the summary judgment. due process claims against defendants Rufa, Prack and Hillenbrand is DENIED; and it is further

WHEREFORE , for the foregoing reasons, it is hereby ORDERED that the Clerk of Court shall provide Plaintiff ORDERED that Magistrate Judge Baxter's Report- with copies of the unpublished decisions cited in this Recommendation (Dkt. No. 27) is ADOPTED in all respects; Memorandum-Decision and Order; and it is further and it is further ORDERED that the Clerk of the Court shall serve a copy of ORDERED that defendants' motion for partial summary this Memorandum-Decision and Order in accordance with the judgment under Fed. R. Civ. P. 56 and for partial dismissal Local Rules of the Northern District of New York. under Fed. R. Civ. P. 12(b)(6) (Dkt. No. 12) is GRANTED in part and DENIED in part; and it is further

IT IS SO ORDERED.

ORDERED that defendants' motion for summary judgment as to the First Amendment retaliation claim against defendant

All Citations Hamilton is GRANTED, and that the complaint is dismissed Not Reported in Fed. Supp., 2016 WL 3823395 as against defendant Hamilton and insofar as it alleges a First Amendment retaliation claim; and it is further End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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the reasons that follow, it is recommended that Defendants' Motion be granted and the entire Complaint be dismissed.

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Only the Westlaw citation is currently available. 2 Approximately one month after Defendants filed This decision was reviewed by West editorial their Motion for Summary Judgment, all deadlines staff and not assigned editorial enhancements. were stayed to allow for the Honorable Victor Bianchini, Recalled United States Magistrate

United States District Court, Judge, to preside over a mediation session. Dkt. N.D. New York. No. 59. When that effort proved unsuccessful, the matter was referred back to this Court to address

Guy McEACHIN, Plaintiff, the pending Motion. Dkt. No. 64. v. Donald SELSKY; Jeff Minnerly; 1 Virginia Androsko; Porten, Corrections Officer, Defendants. I. BACKGROUND 1

Defendants have submitted documents to the A. Underlying Facts 3 Court which bring to light the correct spelling of this Defendant's name as “Minerly,” and

3 The Court notes that many of the essential facts not “Minnerly;” the Court will refer to this are not truly contested. Instead, the parties diverge individual by the correct spelling. See, e.g., as to the interpretation of these facts and whether Dkt. No. 55, Jeff Minerly Decl., dated May 12, constitutional rights were trespassed upon. 2009. At all times relevant to the issues raised in the Complaint, Civ. No. 9:04–CV–0083 (FJS/RFT). Plaintiff was under the custody of the New York Department of Correctional Services (DOCS) and was housed at Auburn | Correctional Facility. Dkt. No. 52, Defs.' Statement of March 30, 2010. Material Facts (hereinafter “Defs.' 7.1 Statement”) at ¶ 1. At Attorneys and Law Firms the core of this litigation are two Misbehavior Reports (MR), which according to Plaintiff, set off a series of constitutional

Guy McEachin, Comstock, NY, pro se. affronts. Hon. Andrew M. Cuomo, Attorney General of the State of The first MR was issued on January 5, 2001, by Defendant New York, Gary M. Levine, Esq., Assistant Attorney General, Corrections Officer (CO) Jeffrey Porten. Id. at ¶ 2. Rochester, NY, for Defendants. The January MR, which charges Plaintiff with violating Disciplinary Rules 106.10 (refusal to obey a direct order), 116.10 (inmates shall not misuse any type of state property),

REPORT–RECOMMENDATION and ORDER 102.10 (inmates shall not make any threats spoken, in writing or by gesture), and 107.11 (inmates shall not harass

RANDOLPH F. TREECE, United States Magistrate Judge. employees verbally or in writing), states the following: *1 Pro se Plaintiff Guy McEachin, currently incarcerated On [January 5, 2001] and approximate time of 9:00 am at Great Meadow Correctional Facility, brings a civil rights

while doing a round in A-tank on SHU–D south side[,] I action, pursuant to 42 U.S.C. § 1983, claiming violations of passed by A–3 cell and noticed the inmate's blanket on the his rights protected by the First, Fifth, Eighth, and Fourteenth floor being used as a rug. I then gave [I]nmate McEachin, Amendments. Dkt. No. 1, Compl. Throughout the protracted G. 00–A–5257 a direct order to pick the blanket up off litigation history of this lawsuit, certain claims have survived,

the floor. Inmate McEachin, G. just stood there in the cell while others have met their demise. Pending before this Court staring at me. At that time I continued my rounds on the is Defendants' Motion for Summary Judgment, pursuant to SHU–D south side. Later on while doing another round on Federal Rule of Civil Procedure 56. 2 Dkt. No. 51–58 &

SHU–D south side passing through A-tank I looked into A– 79. Plaintiff opposes the Motion. Dkt. Nos. 76 & 78. For McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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3 cell and observed inmate McEachin G.'s blanket still on 4 In their 7.1 Statement, Defendants erroneously list the floor being used as a rug. I then gave inmate McEachin, “May 8, 2001” as the date Androsko wrote her G. another direct order to pick up the blanket off the cell MR. Defs.' 7.1 Statement at ¶ 6. In fact, the actual floor. Inmate McEachin, G. then looked at me and said, MR reflects the incident date as June 9, 2001, a “Fuck you! You white piece of shit, get away from my cell point clarified by Defendants' counsel at Plaintiff's before kick [sic] your ass!” Inmate McEachin then stated, Deposition. See Dkt. No. 58–3, Gary Levine Decl., “You better watch yourself when I come out of here.” At dated June 5, 2009, Ex. A, McEachin Dep., dated that time, I continued my rounds on the south side and Dec. 2, 2008, at p. 22. notified the area supervisor of the incident at the end of the round. Later at approximately 2:00 pm while doing another

When attempting to do sick call in K tank in SHU D Inmate round on the south side, upon entering A-tank I noticed A–3 McEachin was yelling about how he wants copies of sick cell was open and the blanket still [illegible] on the floor. At call procedures and how they are to be done. He was very that time I confiscated the state blankets and returned them loud preventing this writer to hear [sic] any requests for to SHU–D P-tank property room without further incident. sick call. During his tirade he was calling me a “fucking bitch and a mother fucker.” Sick call was ended in K-tank

*2 Dkt. No. 56, Jeffrey Porten Decl., dated May 29, 2009, due to his interference and harassment. Ex. A. Id. The June MR bears the signatures of Nurse Androsko and Though the MR addresses events occurring at different times Sergeant Martins, who is not a named party in this litigation. throughout that day, the “incident time” reflected on the MR Id. is 2:00 p.m. On January 11, 2001, Defendant Jeff Minerly, Plant On June 18, 2001, Joseph Wolczyk, who is not a named party Superintendent, conducted a Tier III Disciplinary Hearing in this litigation, 5 conducted a Tier III Disciplinary Hearing on the January MR. Dkt. No. 55, Jeff Minerly Am. Decl.,

on the June MR. Defs.' 7.1 Statement at ¶ 7; see also Dkt. dated May 12, 2009, Ex. B. In support of his “not guilty” No. 58–2, Joseph Wolczyk Decl., dated Mar. 10, 2009, Exs. A plea, Plaintiff attacked the MR as non-conforming to DOCS & B. During the Hearing, Plaintiff claimed that the MR was Directives because the time reflected on the Report as the false, as evidenced by the fact that there was no sick call on the “incident time,” 2:00 p.m., was not the correct time for date in question (purportedly a weekend day) and because his all of the allegations and charges therein. As an example, copy of the MR lacked a necessary second signature, without Plaintiff noted the allegation of verbal harassment was not which, he claimed, Defendant Androsko lacked the authority alleged to have occurred at 2:00 p.m. Id. At the conclusion of to issue the Report. Wolczyk Decl., Ex. B at pp. 4, 9–10, & the Hearing, Defendant Minerly found Plaintiff guilty of all 15–17. At the conclusion of the Hearing, Officer Wolczyk charges and sentenced him to 120 days in a special housing found Plaintiff guilty of both charges and sentenced him to unit (SHU) with corresponding loss of privileges and a forty (40) days in SHU with corresponding loss of privileges recommendation of 180 days loss of good time credits. Id, Ex. and a recommendation of two months loss of good time credit. A. On February 20, 2001, McEachin's disciplinary sentence Id., Ex. A. On September 6, 2001, Defendant Selsky affirmed was affirmed on appeal by Defendant Donald Selsky, Director the Plaintiff's disciplinary sentence. Dkt. No. 58–3, Gary of Special Housing/Inmate Disciplinary Program. Id. Levine Decl., dated June 5, 2009, Ex. C, Notice to Admit, Ex. F. On January 9, 2002, Plaintiff's request for reconsideration

The second MR was issued by Defendant Nurse Virginia of his appeal was similarly denied by Defendant Selsky. Id. Androsko on June 9, 2001. 4 Dkt. No. 54, Virginia Androsko Decl., dated May 18, 2009, Ex. A. The June MR, which 5

In his Opposition to Defendants' Motion, Plaintiff charges Plaintiff with violating Disciplinary Rules 107.10 repeatedly refers to Officer Wolczyk as “Defendant (inmates shall not verbally obstruct or interfere with an Wolczyk,” however, this individual was not named employee) and 107.11 (inmates shall not verbally harass in his Original Complaint, nor has Plaintiff at any employees), states the following: time attempted to amend his Complaint to add Wolczyk as a party to this litigation. Compare Dkt. No. 76, Pl.'s Opp'n, at pp. 3, 6, & 11 (consistently

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making reference to “Defendant Wolczyk”) with Eighth and Fourteenth Amendment rights. Id. at ¶ 6J. As for Compl. at pp. 1–2 (omitting Wolczyk's name from Defendant Selsky, Plaintiff claims that because he affirmed the listed parties) & 5 (no mention of Wolczyk by the appeals of both Disciplinary Hearing Dispositions, he name nor any implication that the Hearing Officer shares responsibility for whatever constitutional rights were violated his rights at the June Hearing). affronted. Id. at ¶ 6L.

6 The factual allegations underlying Plaintiff's claims B. Procedural History are fleshed out more fully in his Response in Opposition to the Defendants' Motion for Summary

*3 This action, which began on January 23, 2004, with Judgment. In light of his pro se status, we utilize all the filing of Plaintiff's civil rights Complaint, has traversed of his submissions to present a complete discourse certain procedural obstacles, including a dispositive motion of his claims for relief. See Triestman v. Fed. and an appeal to the Second Circuit. We feel it necessary Bureau of Prisons, 470 F.3d 471, 472 & 475 (2d to recite certain aspects of this procedural history to ensure Cir.2006) (noting that pro se submissions should an understanding of what causes of action survived those be construed liberally “and interpreted so as to procedural mileposts. raise the strongest arguments that they suggest”) (internal quotation marks, alterations, and citations omitted).

1. Plaintiff's Claims We begin with a recitation of the causes of action raised 2. Magistrate Judge's and District Judge's Decisions in Plaintiff's Complaint. 6 Dkt. No. 1, Compl. As a result On June 25, 2004, Defendants filed a Motion to Dismiss, of the above described incidents, Plaintiff brought the pursuant to Federal Rule of Civil Procedure 12(b)(6), for instant action against Donald Selsky, Jeff Minerly, Virginia Androsko, and Jeffrey Porten asserting violations of his First, failure to state a claim upon which relief may be granted. Dkt. No. 14. After Plaintiff submitted his Opposition to Fifth, Eighth, and Fourteenth Amendment rights. Succinctly, the Motion, Dkt. No. 16, this Court issued a Report– Plaintiff accuses Defendant Porten of falsifying the January Recommendation and Order on March 23, 2005. Dkt. No. MR in retaliation for an altercation that occurred on December 30, 2000, between McEachin and other COs at Auburn, and 19 (hereinafter “RRO”). Contained in that decision are the following recommendations: the grievances Plaintiff filed regarding that incident. Compl. at ¶¶ 6C–6D; Dkt. No. 76, Pl.'s Resp. in Opp'n to Defs.' Mot.

1) Eleventh Amendment: All claims against the at p. 7. McEachin asserts he not only filed grievances against Defendants in their official capacity should be dismissed the COs involved in the December 30th incident, but he also pursuant to the Eleventh Amendment (RRO at pp. 5–6); initiated a federal civil rights suit against them and others in this District, McEachin v. Goord, et al., Civ. No. 9:01–

*4 2) Exhaustion of Remedies: Plaintiff properly CV–259 (LES/GJD). Pl.'s Resp. in Opp'n to Defs.' Mot. at p. exhausted his Fourteenth Amendment claims through 7. Porten's January MR was issued six days after Plaintiff's his administrative appeals of the Disciplinary Hearings, altercation with the other COs. Compl. at ¶¶ 6A, 6B, & 6F; however, he failed to exhaust his Fifth and Eighth Pl.'s Resp. in Opp'n to Defs.' Mot. at p. 7. According to Amendment claims, and it was unclear whether he McEachin, Porten's MR, and Minerly's refusal to dismiss the exhausted his First Amendment claim (RRO at pp. 6–13). false claims, resulted in violations of his First and Fourteenth Despite the mixed exhaustion action, the Court opted to Amendment rights. Compl. at ¶¶ 6C–6G. McEachin also proceed to the merits of each claim; claims that Minerly violated his Fifth and Eighth Amendment rights. Id. at ¶ 6G. As for Defendant Androsko, McEachin 3) Fifth Amendment: Plaintiff's Fifth Amendment claims claims she had no authority to issue the June MR, which he

are not cognizable and should be dismissed (RRO at pp. also charges was false, and that, in authoring the MR, she 25–26); violated the Milburn Consent Decree issued in the Southern District of New York in the class action case Milburn v. Coughlin, Civ. No. 79–CV–5077 (RJW), as well as Plaintiff's McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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4) Eighth Amendment: Plaintiff's allegations concerning 8) Retaliation: The retaliation/substantive due process the Eighth Amendment violations are conclusory and claim against Defendant Porten should survive because should be dismissed (RRO at pp. 26–28); a colorable suspicion of retaliation is set forth in the

Complaint (RRO at pp. 21–24); and 5) Personal Involvement: Defendant Selsky should be dismissed for lack of personal involvement (RRO at pp. 9) Heck Rule: Because both Disciplinary Proceedings 13–14); resulted in sanctions that affect the duration of Plaintiff's

confinement, vis-a-vis recommendations for loss of 6) Fourteenth Amendment Due Process—Androsko good time credits, Plaintiff's due process claims (both June MR: procedural and substantive) and First Amendment retaliation claim are barred by Heck v. Humphrey, 512

a) The Milburn Consent Decree did not create a U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and constitutional cause of action as a basis for § 1983 relief, Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 and, in any event, it was only applicable to Green Haven L.Ed.2d 906 (1997), thus, the only claim that would have Correctional Facility (RRO at p. 16); survived the Motion, retaliation, should be dismissed on this basis (RRO at pp. 24–25).

b) Under New York Regulations, N.Y. COMP.CODE. R. & REGS., tit. 7 § 251–3.1(a) & (b), Nurse Androsko was

Upon reviewing this Court's RRO, and the Plaintiff's permitted/directed to file a MR when appropriate (RRO Objections thereto, the Honorable Frederick J. Scullin, Jr., at p. 16); Senior United States District Judge, issued a Memorandum Decision and Order, dated August 30, 2005, dismissing the

c) Plaintiff has no constitutional right to be free from entire case. Dkt. No. 22 (hereinafter MDO). Within that being falsely accused absent an allegation of retaliation Order, Judge Scullin noted the following: (RRO at p. 17); *5 1) Eleventh Amendment: With no specific d) Plaintiff does not allege any problem with the hearing objection from Plaintiff, the claims against Defendants procedure or the process received (RRO at p. 17); in their official capacity are dismissed pursuant to the e) Plaintiff's punishment of forty days in SHU fails to Eleventh Amendment (MDO at pp. 5–6) give rise to a liberty interest under Sandin v. Conner, 515

2) Exhaustion of Remedies: With no specific objection U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) from Plaintiff, claims of Eighth Amendment violations (RRO at pp. 18–20; 7 were not exhausted and are dismissed (MDO at p. 9); 7 3) Fifth Amendment: With no objection from Plaintiff, As mentioned above, Plaintiff did not name Joseph Wolczyk as a Defendant, even though he presided the Fifth Amendment claims are dismissed (MDO at pp. 6–7); over the Disciplinary Hearing concerning the June MR. See supra note 5. In any event, our

4) Eighth Amendment: With no objection from recommendation of dismissal would have extended Plaintiff, and despite the ruling of failure to exhaust, the to any due process claim against Mr. Wolczyk Eighth Amendment claims are dismissed (MDO at pp. given the absence of a liberty interest. See infra Part 9–11);

II.B.1.

5) Heck Rule: All due process and retaliation claims Thus, it was recommended that Defendant Androsko against all Defendants are barred by Heck and Edwards, be dismissed from the action; 7) Fourteenth thus the Court declines to consider the underlying merits Amendment Due Process—Minerly Disciplinary of any of these claims (MDO at pp. 11–14). Hearing: Concerning the due process claims stemming from Porten's January MR, Plaintiff's punishment of 120 Of particular importance, because Judge Scullin ruled days in SHU, without more, did not give rise to a liberty that Heck and Edwards barred Plaintiff's due process interest under Sandin, thus the claims against Defendant and retaliation claims, he did not rule on this Court's Minerly should be dismissed (RRO at pp. 18–20); recommendations regarding the merits of these claims.

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Thereafter, a Judgment was entered in favor of Defendants opportunity to waive all claims relating to sanctions affecting and this case was closed. Dkt. No. 23. the duration of his confinement so that he may proceed with

claims challenging the sanctions affecting the conditions of his confinement. Dkt. No. 30. 9 Because McEachin did not

3. Plaintiff's Appeal to the Second Circuit challenge any other ruling rendered by Judge Scullin, those Plaintiff subsequently appealed that MDO to the Second portions were affirmed. Id. Circuit on September 26, 2005. Dkt. No. 24. During the pendency of McEachin's appeal of Judge Scullin's MDO, 9

As an aside, the Court notes that McEachin's appeal the Second Circuit issued its decision in Peralta v. Vasquez, had been dismissed by the Circuit on September 467 F.3d 98 (2d Cir.2006), which had direct implications 29, 2006, due to McEachin's failure to comply with for this case. The Peralta case concerned the situation, like the Second Circuit's Scheduling Order. Dkt. No. ours, wherein an inmate attempts to challenge a disciplinary 28. In viewing the Second Circuit's docket report proceeding that resulted in mixed sanctions—those that affect for the appeal, it appears that McEachin moved for the conditions of his confinement, such as a sentence of SHU reinstatement of his appeal, which was duly granted confinement and/or loss of privileges, and those that affect on November 17, 2006. McEachin v. Selsky, et al., the duration of his confinement, such as recommendations 06–PR–1230 (2d Cir.). The Circuit did not issue its for loss of good time credit. Peralta v. Vasquez, 467 F.3d at Mandate regarding the remand order until August 99–100. The inclusion of the latter sanction typically invoked 13, 2007. Id. Thereafter, McEachin moved for a Heck's “favorable termination rule,” resulting in dismissal rehearing en banc, which was denied on May 7, of the entire due process challenge. 8 The Second Circuit 2008, and issued as a Mandate on July 16, 2008. ruled that a prisoner who received mixed sanctions at a prison Id.; see also Dkt. No. 43. disciplinary hearing could proceed with a challenge to the sanctions, as long as the inmate agrees to waive for all time any challenge to the sanction affecting the length of his 4. Remand to District Court confinement. Id. at 104.

*6 In conformity with the Second Circuit Mandate, this Court issued an Order, dated September 26, 2007, advising

8 The “favorable termination rule” set forth in Heck Plaintiff of his opportunity to pursue his due process and v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. retaliation claims if he was willing to forego any challenge 2364, 129 L.Ed.2d 383 (1994), directs that if a to the sanctions affecting the duration of his confinement; determination favorable to the plaintiff in a § 1983 such waiver was to be in writing. Dkt. No. 31. Eventually, action would “necessarily imply the invalidity of after multiple extensions of time were provided, Plaintiff [the inmate's] conviction or sentence,” there must filed a letter, dated June 10, 2008, indicating his intention to first be a showing that the conviction or sentence waive any challenge to the sanction affecting the length of his had been reversed on direct appeal or declared confinement. Dkt. No. 40. Accordingly, Judge Scullin issued invalid in order to recover damages for an allegedly an Order dismissing Plaintiff's claims regarding the loss of unlawful conviction under § 1983. In Edwards his good time credits, and allowing Plaintiff to proceed with v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 his retaliation claim and other challenges to those sanctions L.Ed.2d 906 (1997), the Supreme Court stated that affecting the conditions of his confinement. Dkt. No. 41 at p. the “favorable termination rule” is applicable to 3. challenges made under § 1983 to procedures used in disciplinary proceedings that deprived a prisoner

After answering the Complaint and engaging in discovery, the of good time credits. Defendants filed the Motion for Summary Judgment currently On May 31, 2007, in ruling on McEachin's appeal, the Second under review. Dkt. No. 51. In his Opposition to Defendants' Circuit determined that McEachin had presented a “mixed Motion, in addition to defending his case on the merits, sanction” claim, much like what was presented in Peralta, and Plaintiff seems to attack the written waiver he previously therefore vacated the District Court's judgment dismissing submitted to the Court. See Dkt. No. 76 at p. 13, McEachin his claims under Heck and Edwards. Upon remand, the Aff., dated Oct. 23, 2009. Within his Affidavit, Plaintiff District Court was directed to provide Plaintiff with the postulates that he was “force[d] into agreeing into an unlawful McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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waiver to waive any claim against [his] recommended loss of mere conclusory allegations subject to disregard ... they are good behavior credit,” and, further decries that as a felon, he specific and detailed allegations of fact, made under penalty is somehow precluded by the Uniform Commercial Code into of perjury, and should be treated as evidence in deciding entering into a contract. Id. at ¶¶ 1–2. We will not comment a summary judgment motion” and the credibility of such on the validity of Plaintiff's understanding regarding his statements is better left to a trier of fact. Scott v. Coughlin, capability to enter into a contract as it may or may not relate 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 to his written waiver. What concerns us, however, is whether (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d by his Affidavit, Plaintiff seeks to rescind his written waiver. Cir.1995)). Dkt. No. 40. To the extent that he is seeking recission, we recommend that the prior dismissal of all claims be reinstated When considering a motion for summary judgment, the and this action dismissed. Peralta v. Vasquez, 467 F.3d at court must resolve all ambiguities and draw all reasonable 104. Notwithstanding, because it is unclear to this Court what inferences in favor of the non-movant. Nora Beverages, Plaintiff intended by this Affidavit, and in light of his pro se Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d status, we will consider the merits of his underlying claims. Cir.1998). “[T]he trial court's task at the summary judgment

motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this

II. DISCUSSION

point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d

A. Standard of Review 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must “read [his or her] supporting Pursuant to Federal Rule of Civil Procedure 56(c), summary papers liberally, and ... interpret them to raise the strongest judgment is appropriate only where “there is no genuine issue arguments that they suggest.” Burgos v. Hopkins, 14 F.3d as to any material fact and ... the moving party is entitled 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, to judgment as a matter of law.” The moving party bears 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, the burden to demonstrate through “pleadings, depositions, unsupported by the record, are insufficient to defeat a motion answers to interrogatories, and admissions on file, together for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, with [ ] affidavits, if any,” that there is no genuine issue 21 (2d Cir.1991). of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “When a party has

B. Surviving Claims moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure

After carefully reading both Judge Scullin's MDO and the 56(e) ] and has, in accordance with local court rules, served Second Circuit's Remand Order, this Court concludes that a concise statement of the material facts as to which it the following claims were not reinstated via the Remand, contends there exist no genuine issues to be tried, those facts and thus, remain dismissed: 1) official capacity claims will be deemed admitted unless properly controverted by the against all Defendants; 2) Eighth Amendment claims; and nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 3) Fifth Amendment claims. Therefore, the only claims 154 (2d Cir.1992). requiring our review are as follows: 1) due process claims against Defendant Androsko; 2) due process claims against

*7 To defeat a motion for summary judgment, the non- Defendant Minerly; 3) due process and retaliation claims movant must “set forth specific facts showing [that there is] a against Defendant Porten; and 4) supervisory liability claims genuine issue for trial,” and cannot rest “merely on allegations against Defendant Selsky. We now consider each of these or denials” of the facts submitted by the movant. FED. R. claims seriatim. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); 1. Due Process Claims Against Defendant Androsko Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525–26 (2d Cir.1994). To that end, sworn statements are “more than McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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In our March 2005 RRO, prior to rendering a ruling on the employee who has observed the incident or who has Heck and Edwards, we addressed Plaintiff's claims against ascertained the facts of the incident.” N.Y. COMP.CODE. Defendant Androsko on the merits. We reiterate that analysis R. & REGS., tit. 7 § 251–3.1(a) & (b) (emphasis added). herein. Defendant Androsko, a DOCS employee, is not only

permitted, but directed to file an MR when appropriate, even *8 The Complaint alleges that Defendant Androsko, a nurse, though she is not security staff. did not have legal authorization to issue an MR against him. Compl. at ¶¶ 6(J)-(O) & 7. McEachin's underlying Since Androsko has authority to register an MR against premise for why Androsko lacked proper authorization is McEachin, we proceed to assess his due process claim. At purportedly found in Chapter XIV of the Milburn Consent the conclusion of the June Disciplinary Hearing, Plaintiff Decree, dated August 1, 1991, which states, in part, “[i]n any was sentenced to forty (40) days in SHU with corresponding case where disciplinary action is taken against an inmate for loss of privileges. 10 We note that Plaintiff has not sued the an interaction with a health care provider, the disciplinary

Hearing Officer who presided over the Disciplinary Hearing report shall be written by security staff and not by the health regarding Androsko's June MR. See supra notes 5 & 7. care provider.” See Levine Decl., Ex. B, Milburn Consent Nevertheless, to the extent Plaintiff attempts to attribute Decree, dated Aug. 1, 1991, at p. 24. McEachin's reliance due process violations to Defendant Androsko, he has many upon the Milburn case is fatally flawed. Milburn was a hurdles to overcome. class action brought in the Southern District of New York to address several grievances at Green Haven Correctional

10 He further received a recommendation of sixty (60) Facility. Milburn v. Coughlin, 79 Civ. 5077(RJW). From days loss of good time credits, which is no longer that litigation, a series of Consent Decrees were issued that at issue in this litigation. govern the provision of health care services at Green Haven. However, the Milburn Consent Decree is not universal as *9 First and foremost, to state a due process claim under McEachin presumes, but rather, is restricted solely to the § 1983, an inmate must first establish that he enjoys a protected liberty interest. Arce v. Walker, 139 F.3d 329, 333 health care services at Green Haven, and thus is inapplicable (2d Cir.1998) (citing Kentucky Dep't of Corr. v. Thompson, to this case since the circumstances giving rise to Plaintiff's claims occurred at Auburn. Candelaria v. Coughlin, 1994 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). WL 707004, at *8 (S.D.N.Y. Dec.19, 1994) (ruling that the Inmates' liberty interests are derived from two sources: (1) the Due Process Clause of the Fourteenth Amendment; and (2) plaintiff did not have any rights under the Consent Decree state statute or regulations. Id. With regard to liberty interests because he had been moved out of Green Haven). More problematic for McEachin is the fact that the Milburn Consent arising directly under the Due Process Clause, the Supreme Decrees do not create constitutional causes of action and Court has “narrowly circumscribed its scope to protect no more than the ‘most basic liberty interests in prisoners[,]’ “ thus do not provide a basis for a § 1983 claim for damages. Arce v. Walker, 139 F.3d at 333 (quoting Hewitt v. Helms, 459 Id. at *7–8 (citing Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir.1986) & DeGidio v. Pung, 920 F.2d 525, 534 (8th U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)), and Cir.1990) for the proposition that “[r]emedial court orders limited to freedom from restraint that “exceed[ ] the sentence in ... an unexpected manner[,]” Sandin v. Conner, 515 U.S. per se ... cannot serve as a substantive basis for a § 1983 472, 478, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In this claim for damages because such orders do not create rights, privileges, or immunities secured by the Constitution and case, Plaintiff has not described the environment in SHU as laws”) (internal citations omitted)). Since Milburn has a so heinous as to invoke the protections afforded by the Due Process Clause itself. We find that his confinement in SHU limited remedial effect as to health services at Green Haven, for forty (40) days, under normal SHU conditions, did not and has no implication for this case, we must turn next to the appropriate rules and regulations that govern which DOCS implicate any liberty interest derived directly from the Due employees may file an MR. Process clause. See, e.g., Black v. Selsky, 15 F.Supp.2d 311,

314 (W.D.N.Y.1998).

The governing regulations are not merely permissive but, rather, mandatory in that “[e]very incident of inmate Turning to liberty interests created by the state, the Supreme misbehavior ... must be reported, in writing, as soon Court states that such liberty interests shall be limited solely to those deprivations which subject a prisoner to “atypical and as practicable. The misbehavior report shall be made by McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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significant hardship ... in relation to the ordinary incidents inmates do not have a “constitutionally guaranteed immunity of prison life.” Sandin v. Connor, 515 U.S. at 484; see also from being falsely or wrongly accused of conduct which may Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001) (citing result in the deprivation of a protected liberty interest[ ]”). Sandin ); Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir.1999). Thus, as long as the prison officials provided the inmate In determining whether a confinement imposes an atypical with procedural due process requirements, i.e., a hearing and significant hardship, courts are directed to look at both and an opportunity to be heard, “the filing of unfounded the duration and conditions of the confinement. Ortiz v. charges d[oes] not give rise to a per se constitutional violation McBride, 380 F.3d 649, 654–55 (2d Cir.2004) (citations actionable under section 1983.” Franco v. Kelly, 854 F.2d 584, omitted); Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) 587 (2d Cir.1988) (quoting Freeman v. Rideout, 808 F.2d at (citation omitted). With regard to duration, the Second Circuit 953); see also Wolff v. McDonnell, 418 U.S. 539, 564–66, 94 cautions there is no bright line rule stating that a certain S.Ct. 2963, 41 L.Ed.2d 935 (1974). McEachin does not charge duration of confinement in SHU automatically implicates a Androsko with authoring a false report as retaliation for his liberty interest. Palmer v. Richards, 364 F.3d at 64; Jenkins engagement in constitutionally protected activity. Nor, for v. Haubert, 179 F.3d 19, 28 (2d Cir.1999) (citations omitted). that matter, does he claim that the Hearing itself was flawed. Nevertheless, courts within the Second Circuit tend to rule, Nevertheless, based upon his allegation of falsity, we look to as a matter of law, that “disciplinary keeplock or SHU the process he received to ensure its adequacy. confinement to 60 days or less in New York prisons is not an atypical or significant hardship in relation to the ordinary The Supreme Court has set forth the Due Process incidents of prison life.” Edmonson v. Coughlin, 1996 WL requirements prisoners must be afforded in disciplinary 622626, at *4–5 (W.D.N.Y. Oct.4, 1996) (citing cases). hearings. See Wolff v. McDonnell, 418 U.S. at 564–66. In

sum, prisoners must be afforded (1) advanced written notice During his Deposition, Plaintiff was asked to expound of the charges against them at least twenty-four hours prior upon the conditions he endured while serving his forty- to the hearing; (2) the opportunity to appear at the hearing, day sentence in SHU. Levine Decl., Ex. A, Pl.'s Dep. at call witnesses, and present rebuttal evidence; and (3) a written pp. 28–29. Plaintiff described nothing more than normal statement as to the evidence relied upon and the reasons for SHU conditions. Id. Though confined to his cell most of the disciplinary action. Id.; see also Freeman v. Rideout, 808 the day, he admitted he was provided meals, mail, legal F.2d at 953. materials, medical care, and recreation, though he claimed, without substantiation or specifics, that he was occasionally In our case, notwithstanding his conclusory allegations, it denied recreation time. Id. at pp. 30–32. It is expected is clear that McEachin was provided all the process he was that confinement in SHU will be accompanied by a loss due in the form of advance written notice of the charges, of privileges that prisoners in the general population enjoy help in preparing his defense, receipt of evidence requested, and such conditions fall “within the expected parameters opportunity to be heard and present witnesses, and receipt of a of the sentence imposed by a court of law.” Frazier v. written statement of the reasons for the conviction, which was Coughlin, 81 F.3d 313, 317 (2d Cir.1996) (quoting Sandin affirmed on appeal. See generally Wolczyk Decl., Exs. A & B. v. Connor, 515 U.S. at 485 for the proposition that loss of Accordingly, McEachin's blanket claim of a false misbehavior commissary, recreation, package, and telephone privileges report, in and of itself, does not state a cognizable claim that does not amount to an atypical and significant deprivation). his due process rights were violated and it is clear that he Accordingly, we find that Plaintiff's forty-day confinement was provided constitutionally adequate process during the to SHU under normal SHU conditions did not implicate a June Hearing. In sum, we recommend that all claims against state created liberty interest, thus no due process violation is Defendant Androsko be dismissed. assessed. *10 With regard to Plaintiff's claim that the June MR was

2. Due Process Claims Against Defendant Minerly untrue, we note that the filing of a false MR by itself does not create a liberty interest as McEachin believes. Similarly,

In our March 2005 RRO, prior to rendering a ruling on prisoners have no constitutional right to be free from false Heck and Edwards, we addressed Plaintiff's claims against claims, so long as they are provided due process. Freeman v. Defendant Minerly on the merits. We reiterate that analysis Rideout, 808 F.2d 949, 951 (2d Cir.1986) (holding that prison herein. McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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Plaintiff claims that Defendant Porten issued him a false MR Following the January MR issued by Defendant Porten, as retaliation for Plaintiff having submitted grievances over Defendant Minerly conducted a Disciplinary Hearing an altercation with prison staff that occurred six days prior to wherein he found Plaintiff guilty of all charges and sentenced his alleged confrontation with Porten. In rendering our March him to 120 days in SHU with corresponding loss of 2005 RRO on the Defendants' Motion to dismiss, we noted privileges. 11 Minerly Decl., Ex. A. Plaintiff accuses Minerly that we were obligated to take the Plaintiff's allegations as true

and assess whether his retaliation claim was plausible. Under of being biased during the Hearing and violating his due that standard, we determined that the temporal proximity of process rights by finding him guilty of charges in the patently the alleged constitutionally protected activity and the Porten false and retaliatory MR authored by Defendant Porten. MR gave a thin colorable suspicion of wrongdoing, thus entitling Plaintiff to some discovery on this issue. Now, at the

11 Plaintiff also received a recommendation of 180 summary judgment stage, we are able to look at the matter days loss of good time credits, which is no longer more globally to assess whether Plaintiff has interjected a at issue in this litigation. material issue of fact, thus precluding summary judgment. *11 We incorporate the above standard regarding liberty interests and add the following to the discussion. In Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998), the Second

a. Exhaustion of Retaliation Claim Circuit ruled that in order to endure an atypical and significant hardship a court must measure the “extent to which the

We start with an issue we left undecided in March 2005— conditions of the disciplinary segregation differ from the other whether Plaintiff properly exhausted his retaliation claim. In routine prison conditions” and the duration of the disciplinary our March RRO, we stated the following standard with regard segregation imposed.” This is particularly true where the SHU to exhaustion: confinement falls within an intermediate duration between The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. 101 and 365 days. Palmer v. Richards, 364 F.3d at 64–65 (citing Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000) § 1997e(a), requires that for actions brought by prisoners under 42 U.S.C. § 1983, the inmate must first exhaust his for the proposition that any SHU confinement longer than an or her administrative remedies. The Supreme Court has intermediate duration may be a sufficient departure from the held that “the PLRA's exhaustion requirement applies to ordinary incidents of prison life).

all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether Nowhere within his Complaint, nor in other portions of the they allege excessive force or some other wrong. Porter record, does McEachin assert that his conditions in SHU were v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d outside the expected realm of ordinary incidents of prison life. Sandin v. Conner, 515 U.S. at 484–85. The loss of packages, 12 (2002). Exhaustion is similarly required even if the prisoner asserts futility as an excuse. See Booth v. Churner, commissary, and phone privileges are acceptable and normal 531 U.S. 731, 741 n. 6 (2001) (refusing to “read futility SHU conditions and not considered unusual or unduly harsh. or other exceptions into statutory exhaustion requirements Yet, even if we were to find a liberty interest was implicated, it is clear that, like in his June Disciplinary Hearing, McEachin where Congress has provided otherwise”) (cited in Marvin v. Goord, 255 F.3d 40, 43 (2d Cir.2001)).... was afforded the minimum requirements of due process in that he received advanced written notice of the charges against

*12 In New York State, the administrative remedies him, aid in rendering a defense, opportunity to be heard, consist of a three-step review process. First, a grievance and a written disposition of the decision and basis for guilt is submitted to the Inmate Grievance Review Committee determination. Wolff v. McDonnell, 418 U.S. at 556; Taylor (“IGRC”), a committee comprised of both inmates v. Rodriguez, 238 F.3d 188, 192 (2d Cir.2001); Minerly Am. and facility employees. 12 The IGRC reviews and Decl., Exs. A & B. Therefore, as to Defendant Minerly, we investigates the formal complaints and then issues a recommend that any claim against him be dismissed.

written determination. Second, if the IGRC decision is appealed, the superintendent of the facility reviews the IGRC's determination and issues a decision. Finally,

3. Retaliation Claims Against Defendant Porten if the superintendent's decision is appealed, the Cental McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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Office Review Committee (“CORC”) makes the final Porten authored the January MR; the Grievances are as administrative determination. N.Y. COMP.CODES R. & follows: 1) AUB–34251–01, Denied Proper Amount of Food; REGS. tit. 7, § 701.7. Upon exhaustion of these three and 2) AUB–34253–01, Assaulted at Strip Frisk. Id. Because levels of review, a prisoner may seek relief pursuant to § we do not have the actual Grievances, we do not know 1983 in federal court. Reyes v. Punzal, 206 F.Supp.2d 431, whether Plaintiff included his retaliation allegations therein, 432 (W.D.N.Y.2002) (citing Sulton v. Greiner, 2000 WL though it appears at least from the title of the Grievances that 1809284, at *3 (S.D.N.Y. Dec.11, 2000)); Petit v. Bender, retaliation is not the major complaint listed therein. While 2000 WL 303280, at *2–3 (S.D.N.Y. Mar.22, 2000). Plaintiff continues to maintain that he submitted grievances

on this issue, he failed to produce any copies of any such 12 grievance, or, for that matter, copies of his Hearing Appeals so The IGRC is a five-member body consisting of we could assess whether he included the complaints therein. two voting inmates, two voting staff members, and One thing we have before us is the transcript from the January a non-voting chair (who may be an inmate, staff Hearing, and, pointedly, at no point during that Hearing does member of volunteer). N.Y. COMP.CODES R. & Plaintiff allege retaliatory animus on Porten's part. In fact, the REGS tit. 7, § 701.4. only thing McEachin attacks during the Hearing is whether March RRO at pp. 6–7. the “incident time” on the MR is accurate. See Minerly Decl., Ex. B. Based upon the record before us, coupled with Plaintiff's conflicting explanations and lack of evidence to

We then noted, inter alia, Plaintiff's diametrically opposing create an issue of material fact, we find that McEachin has accounts of his exhaustion efforts with regard to his retaliation not properly exhausted his First Amendment retaliation claim claim against Defendant Porten. On the one hand, Plaintiff and it should be dismissed for that reason. claimed that his retaliation claim was not a grievable issue, which was juxtaposed against his alternate justification

*13 In the alternative, as explained below, we find that wherein he claimed that he complained to prison authorities Plaintiff's retaliation claim should be dismissed on the merits. by “fil[ing] an administrative appeal with Defendant Selsky ... and fil[ing] a Reconsideration to Defendant Selsky.” RRO at pp. 8–9 (referencing Plaintiff's Complaint at ¶ ¶ 4(b)(ii) & 4(c)(i)). Some of the confusion was created by Plaintiff when b. Merits of Retaliation Claim he lumped his First Amendment claims with his Fourteenth

It is well settled, as noted above, that prisoners have no Amendment due process claims in his Complaint. After constitutional right to be free from being falsely accused. disabusing McEachin of the fallacy of his understanding Freeman v. Rideout, 808 F.2d at 951. As long as prison of grievable/non-grievable issues, we analyzed Plaintiff's officials provided the inmate with procedural due process second explanation of exhaustion through the administrative requirements, i.e., a hearing and an opportunity to be heard, appeal process. Id. at pp. 9–10. At that time, without the full “the filing of unfounded charges d[oes] not give rise to a record to assess the viability of this claim, and giving Plaintiff per se constitutional violation actionable under section 1983.” the proper reasonable inferences, we found that a question Franco v. Kelly, 854 F.2d at 587 (quoting Freeman v. Rideout, of fact existed as to whether he properly exhausted his First 808 F.2d at 953); see also Wolff v. McDonnell, 418 U.S. at Amendment claim. Id. at pp. 11–12. 564–66. Now, with a comprehensive record before us, it remains dubious whether Plaintiff actually exhausted his

We have already assessed that Plaintiff received all the administrative remedies with regard to his retaliation claim. process due in conjunction with the January MR. Notably, In support of summary judgment, Defendants submit a however, there are substantive due process rights, rather than Declaration from Chris Lindquist, Assistant Director of procedural, which cannot be obstructed “even if undertaken Inmate Grievance Program of DOCS. Dkt. No. 58, Chris with a full panoply of procedural protections,” such as the Lindquist Decl., dated May 12, 2009. Mr. Lindquist states right of access to courts or to be free from retaliation for he is one of the custodians of the records maintained by the exercising a constitutional right. See Franco v. Kelly, 854 Central Office Review Committee (CORC), and submitted a F.2d at 589 (citation omitted). Thus, if a prisoner alleges false printout of CORC appeals filed by McEachin from Auburn disciplinary reports were filed against him in retaliation for in 2001. Id., Ex. A. Amongst the listed appeals are two exercising a valid constitutional right, the prisoner's claim Grievances filed on January 5, 2001, the same date Defendant McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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may survive a dispositive motion by properly alleging his 13

Federal Rule of Evidence 201(b) provides that “a substantive due process rights were violated. See id . at 590. judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally

The Second Circuit has made it clear that an inmate has a known within the territorial jurisdiction of the substantive due process right not to be subjected to false trial court or (2) capable of accurate and ready misbehavior charges or be harassed in retaliation for the determination by resort to sources whose accuracy exercise of a constitutional right such as petitioning the cannot reasonably be questioned.” Furthermore, a government for redress of grievances. Jones v. Coughlin, 45 court may take judicial notice on its own initiative F.3d 677, 679–80 (2d Cir.1995); Franco v. Kelly, 854 F.2d at any stage of the proceeding. FED.R.EVID. at 589–90. To state a First Amendment claim for retaliation, 201(c) & (f). The documents filed in a court satisfy an inmate must demonstrate (1) he or she was engaged in prong two, and therefore can be considered by constitutionally protected activity, (2) the defendant took this Court in considering the Motion for Summary adverse action against the plaintiff, and (3) there was a causal Judgment. See Sea Tow Servs. Int'l, Inc. v. Pontin, connection between the protected speech and the adverse 607 F.Supp.2d 378, 384 n. 10 (E.D.N.Y.2009) action in that the alleged conduct was substantially motivated (citing cases); Desclafani v. Pave–Mark Corp., by the protected activity. Morales v. Mackalm, 278 F.3d 126, 2008 WL 3914881, at *5 n. 7 (S.D.N.Y. Aug.22, 131 (2d Cir.2002), abrogated on other grounds by Porter v. 2008) (citing cases). Furthermore, these records to Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), which we take judicial notice are prison records (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001)); see which fall into the business records exception to also Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002) (alleging the hearsay rule, found in Federal Rule of Evidence false disciplinary report). 803(6), since they are “kept in the course of a regularly conducted business activity, and if it was

No evidence has been submitted in this case regarding the regular practice of that business activity to the protected conduct Plaintiff alleges to have engaged make the memorandum, report, record, or data in, thereby provoking the purported retaliatory wrath of compilation.” Indeed, all parties and the District Defendant Porten. To ensure a complete record, the Court Judge relied upon the documents submitted by takes judicial notice of documents submitted in Plaintiff's Assistant Attorney General Maria Moran in that civil rights case regarding the December 30th altercation. 13 case, which ultimately went to trial. These same See McEachin v. Goord, et al., Civ. No. 9:01–CV–259 exhibits were admitted at the trial as well. See (LES/GJD). These documents were submitted by Assistant McEachin v. Goord, et al., Civ. No. 9:01–CV–259 Attorney General Maria Moran in support of the defendants' (LES/GJD) Dkt. Nos. 75–1, Defs.' List of Exs., & motion for summary judgment and were relied upon by all

101, Ct.'s List of Exs. returned to Defs. parties and the District Judge. Id., Dkt. No. 30, Maria Moran *14 In light of this judicially noticed information, we Affirm., dated July 15, 2002 (with exhibits attached, but may for the moment concede that Plaintiff engaged in separately filed as Dkt. No. 32). Of specific relevance to constitutionally protected conduct and satisfies the first prong our case is McEachin's inmate grievance, dated January 3, of his retaliation claim. See United Mine Workers of Am., 2001, which was stamped “received” on January 5, 2001. Id., Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 Ex. C. The grievance contains the number “34253–01” and S.Ct. 353, 19 L.Ed.2d 426 (1967) (noting that the right to relays an altercation between Plaintiff and COs during a strip petition government for redress of grievances is “among the frisk on December 30, 2000. Id. Incidentally, this grievance most precious of the liberties safeguarded by the Bill of is also listed on the printout provided to the undersigned by Rights”); Franco v. Kelly, 854 F.2d at 589 (holding that, Mr. Lindquist as Grievance Number AUB–34253–01, filed within the prison context, “inmates must be permit[ted] free on January 5, 2001, entitled “Assault at Strip Frisk.” Dkt. and uninhibited access ... to both administrative and judicial No. 58–1, Lindquist Decl., Ex. A. Further substantiation is forums for the purpose of seeking redress of grievances found in the companion case with the “Use of Force Report” against state officers.”) (internal quotation marks and citation and “Misbehavior Report” generated after the December 30th omitted). And, we can easily find that the issuance of the incident. McEachin v. Goord, et al., Civ. No. 9:01–CV–259, MR is an adverse action since it is “conduct that would Moran Affirm., Exs. A & B. deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights[.]” Davis v. Goord,

McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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320 F.3d 346, 353 (2d Cir.2003) (citing Dawes v. Walker, retaliation and asserts he was not present in his cell during 239 F.3d at 493). Thus satisfying the second prong of the the time stated in the MR, thus, it is clearly false and could retaliation claim. But our analysis does not end there, for only have been issued for retaliatory purposes. See Compl. Plaintiff must satisfy the third prong by linking the adverse at ¶¶ 6A, B, & F; Levine Decl., Ex. A, Pl.'s Dep. at pp. 13 action to the protected activity. & 18–19; Dkt. No. 76 at pp. 2, 6, & 8. Plaintiff is correct

in stating he was not in his cell at 2:00 p.m. on January 5, To satisfy the third prong, a prisoner must present evidence 2001, the time the MR was written. In fact, from judicially that the defendant acted with an improper motive. Such noticed evidence, it is clear that Plaintiff was attending a evidence includes: (1) temporal proximity between the disciplinary hearing in conjunction with the December 30th protected activity and the alleged retaliatory act; (2) plaintiff's incident. See McEachin v. Goord, Civ. No. 9:01–CV–259, prior good disciplinary record; (3) plaintiff's vindication at his Dkt. No. 32, Exs. D & E (records from Plaintiff's Tier III disciplinary hearing; and (4) defendants' statements regarding Disciplinary Hearing certifying his attendance at the hearing, their motive for the discipline. See Colon v. Coughlin, 58 F.3d which commenced on January 5, 2001, at 1:49 p.m.). Indeed, 865, 872–73 (2d Cir.1995). A plaintiff may meet this burden the Porten MR corroborates Plaintiff's absence at the two by presenting circumstantial evidence of a retaliatory motive, o'clock hour. Porten Decl., Ex. A (“Later at approximately thus obviating the need for direct evidence. Bennett v. Goord, 2:00 pm ... I noticed [McEachin's] cell was open and the 343 F.3d 133, 139 (2d Cir.2003). Furthermore, in satisfying blanket still on the floor.”). Clearly, Plaintiff was absent from the causal connection requirement, the allegations must be his “open” SHU cell at that time. Plaintiff, however, does “sufficient to support the inference that the speech played a not claim he was absent during the other times identified substantial part in the adverse action.” Dawes v. Walker, 239 in the MR, like the altercation allegedly occurring at 9:00 F.3d at 492 (internal quotation marks and citations omitted) a.m., and soon thereafter. Id. From the documents submitted (cited in Davis v. Goord, 320 F.3d at 353). to the Court, including a redacted copy of the log book, it

is clear that McEachin had a brief call-out in the morning The plaintiff bears the initial burden in showing that the for an x-ray at 8:25 a.m. and returned at 8:45 a.m., just in defendant's actions were improperly motivated. In situations time for the 9:00 a.m. altercation. Minerly Am. Decl., Ex. where the defendant's actions are the result of both retaliatory B. Furthermore, Defendant Porten declares under penalty of and legitimate reasons, the burden shifts to the defendants perjury that the MR was based upon his “observed conduct” to show that they would have taken the same action absent of Plaintiff and without retaliatory animus. He also avers to the retaliatory motive. Graham v. Henderson, 89 F.3d 75, 79 have been unaware of the December 30th altercation and the (2d Cir.1996) (citing, inter alia, Mount Healthy Sch. Dist. related grievance. And, further dwindling Plaintiff's ability to v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 connect his protected activity with the adverse MR is the fact (1977)); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994) that the grievance at issue was submitted by Plaintiff on the (cited in Carpio v. Walker, 1997 WL 642543, at *6 (N.D.N.Y. very same date the MR was written, making it unlikely that Oct.15,1997)). The Second Circuit has noted that retaliation Porten would have been aware of it when he simultaneously claims are prone to abuse, therefore courts should examine wrote his MR. such claims “with skepticism and particular care.” Colon v. Coughlin, 58 F.3d at 872 (citation omitted); Dawes v. Based on the above analysis, we find that Plaintiff has not Walker, 239 F.3d at 491 (“[V]irtually any adverse action taken raised sufficient material facts with regard to the causal against a prisoner by a prison official—even those otherwise connection between his protected activity and the adverse not rising to the level of a constitutional violation—can action taken against him. Thus, his retaliation claim against be characterized as a constitutionally proscribed retaliatory Defendant Porten should be dismissed on this basis as well. act.” (citation omitted)); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).

4. Supervisory Liability of Defendant Selsky *15 As noted above, Plaintiff proffers that the January MR was false and retaliatory. During the Hearing, he only

Plaintiff seeks to hold Defendant Selsky liable solely for his attacked the time indicated on the MR. In this litigation, role in affirming the appeals of his Disciplinary Hearings. through his Complaint, during his Deposition, and in his Opposition papers, Plaintiff expounds upon his theory of McEachin v. Selsky, Not Reported in F.Supp.2d (2010)

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assessed against Defendant Selsky. Thus, any claim against It is well settled that the personal involvement of a defendant Selsky should be dismissed. is a prerequisite for the assessment of damages in a § 1983 action, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), and furthermore, the doctrine of respondeat superior is inapplicable to § 1983 claims. Polk County v. III. CONCLUSION Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509

For the reasons stated herein, it is hereby (1981) (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see

RECOMMENDED, that, to the extent Plaintiff rescinds his also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d explicit, written waiver of his challenge to the sanctions Cir.1987) (“[I]t is well settled that to state a civil rights claim affecting the duration of his confinement (Dkt. No. 40), the under § 1983, a complaint must contain specific allegations prior dismissal of all claims should be reinstated and the entire of fact which indicate a deprivation of constitutional rights; Complaint dismissed; and it is further allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under

RECOMMENDED, in the alternative, after reviewing the § 1983”) (citations omitted). merits of the underlying claims, the Defendants' Motion for Summary Judgment (Dkt. No. 51) should be granted and the

*16 The Second Circuit has stated that a supervisory entire Complaint be dismissed; and it is further defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983

ORDERED, that the Clerk of the Court serve a copy of this if he: (1) directly participated in the alleged infraction; Report–Recommendation and Order upon the parties to this (2) after learning of the violation, failed to remedy the action. wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen or custom to continue; or (4) was grossly negligent in (14) days within which to file written objections to the managing subordinates who caused the unlawful condition foregoing report. Such objections shall be filed with the Clerk or event. Williams v. Smith, 781 F.2d 319, 323–24 (2d of the Court. FAILURE TO OBJECT TO THIS REPORT Cir.1986) (citations omitted). Pointedly, “mere ‘linkage in the

WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

prison chain of command’ is insufficient to implicate a state APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 commissioner of corrections or a prison superintendent in a (2d Cir.1993) (citing Small v. Sec'y of Health and Human § 1983 claim.” Richardson v. Goord, 347 F.3d 431, 435 (2d Servs. ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § Cir.2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e). Cir.1985)); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (defendant may not be held liable simply because he holds a high position of authority).

All Citations Because, as explained fully above, no constitutional Not Reported in F.Supp.2d, 2010 WL 3259975 violations befell Plaintiff, there can be no supervisory liability End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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I. BACKGROUND 1

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1 The record herein contains few undisputed facts. Only the Westlaw citation is currently available. United States District Court, N.D. New York. Plaintiff and defendants disagree on many of the events that transpired and provide conflicting Ronnie COLE, Plaintiff, accounts of the circumstances surrounding the v. relevant incidents. In light of the procedural posture NEW YORK STATE DEPARTMENT OF of the case, the following recitation is derived from the record now before the court, with all

CORRECTIONS AND COMMUNITY

inferences drawn and ambiguities resolved in the SUPERVISION, et al., Defendants. plaintiff’s party's favor. Terry v. Ashcroft , 336 Civil Action No. 9:14-CV-0539 (BKS/DEP) F.3d 128, 137 (2d Cir. 2003). To the extent | that plaintiff's deposition testimony is at odds Signed 08/25/2016 with his memorandum of law or submissions in his statement of facts, the court will follow the West Codenotes rule that “a party may not create an issue of fact by submitting an affidavit in opposition to

Recognized as Unconstitutional a summary judgment motion that, by omission N.Y. Correct. Law § 24 or addition, contradicts the affiant's previous deposition testimony.” Raskin v. Wyatt Co. , 125 Attorneys and Law Firms F.3d 55, 63 (2d Cir. 1997). FOR PLAINTIFF: RONNIE COLE, Pro Se, 91-A-9212, Five Plaintiff is a prison inmate currently being held in the Points Correctional Facility, Caller Box 119, Romulus, NY custody of the DOCCS at the Five Points Correctional 14541. Facility (“Five Points”). Dkt. No. 54-1 at 1. 2 Plaintiff is FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN, serving a sentence for robbery, possession of stolen property, New York State Attorney General, 615 Erie Boulevard West, criminal possession of a weapon, and promoting prison Suite 102, OF COUNSEL: KEVIN M. HAYDEN, ESQ., Ass't contraband. Dkt. No. 45-15 at 1. Plaintiff's claims, however, Attorney General, Syracuse, NY 13204-2465. arise out of his previous confinement at the Walsh Regional

Medical Unit (“Walsh”) and the Upstate Correctional Facility (“Upstate”). 3 Id. at 2.

REPORT AND RECOMMENDATION

2 Citations to page numbers refer to the pagination

DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE

generated by CM/ECF, not the page numbers *1 Pro se plaintiff Ronnie Cole has commenced this action generated by the parties. asserting civil rights claims arising out of his confinement in

3 Upstate is a maximum security prison comprised the custody of the New York State Department of Corrections exclusively of special housing unit (“SHU”) cells and Community Supervision (“DOCCS”) pursuant to 42 in which inmates are confined for twenty-three U.S.C. § 1983. Plaintiff’s claims, which are multi-faceted, hours each day, primarily for disciplinary reasons. arise out of events occurring at two separate DOCCS Samuels v. Selsky , No. 01-CV-8235, 2002 WL facilities. 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). Currently pending before the court is a motion filed by A. Use of Force Incidents at Walsh defendants requesting the entry of summary judgment On October 29, 2013, defendant Corrections Officer Anthony dismissing plaintiff’s claims on a variety of grounds. For the M. Durante entered plaintiff's room to conduct a strip frisk reasons set forth below, I recommend that defendants' motion of plaintiff and a search of his area. Dkt. No. 29-1 at 15. 4 for summary judgment be granted in part, but otherwise denied. At the time, plaintiff was in his pajamas and seated in his

wheelchair. Dkt. No. 45-3 at 27. Plaintiff maintains that Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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defendant Sergeant John A. Wagner followed Durante into Plaintiff also alleges that on or around December 16, 2013, plaintiff's room in the E-Wing and blocked the door. 5 Id. he was assaulted in a room in the A-Wing at Walsh. Dkt.

No. 45-3 at 125-26. Plaintiff claims that three officers Plaintiff asserts that he attempted to comply with Durante's “waterboarded” him while defendant Lieutenant Timothy orders and began to unbutton his shirt. Id. at 29. Plaintiff Michaels was present. 7 Id. at 126. claims that Durante said “Happy Anniversary,” and struck plaintiff on the right side of his face. Id. at 30, 32. Plaintiff maintains that defendant Stephen M. LoRusso entered the 7

Plaintiff’s amended complaint neither names the room and joined defendants Durante and Wagner as they three officers nor asserts a claim against them. repeatedly hit, kicked, and punched plaintiff in the head, face, and neck. Dkt. No. 45-3 at 38-56. Defendants Durante and

B. Facts Related to Plaintiff's Medical Treatment at LoRusso then pulled plaintiff out of his wheelchair, lifted him Walsh 8 overhead, and “slammed” him into the floor causing plaintiff 8 to land on his abdomen. Id. at 52-56. As a result, plaintiff's In their motion, defendants offer a sworn affidavit urine bag broke. Id. at 53. Plaintiff asserts that restraints were from Nurse Administrator Kelly Rabideau, as applied and the assault terminated when the medical staff and well as certified copies of medical records other officers entered the room. Dkt. No. 45-3 at 57-59. submitted under seal. Dkt. No. 45-10; Dkt. No.

46. Defendants also offer a video recording that 4 allegedly contains relevant facts. Dkt. No. 48. The The record does not contain an affidavit video is certified, and plaintiff does not challenge authenticating or supporting the admissibility of the its object to the authenticity. Dkt. No. 45-6. records annexed to plaintiff's amended complaint. Regardless, the court considers these records On October 29, 2013, shortly after the use of force incident, because defendants rely upon the records in support plaintiff attempted to hang himself. Dkt. No. 45-15 at 3; Dkt. of their motion for summary judgment. See Goris No. 54-1 at 4. He was examined by defendant Nurse Priscilla v. Breslin , 2010 WL 376626, at *10, n.1 (E.D.N.Y. Peterson, who noted observing a swollen and reddened area Jan. 26, 2010) (collecting cases). over plaintiff's left eyebrow, neck, and left ankle. Dkt. No.

46 at 3. Plaintiff was thereafter placed on suicide watch. Dkt. 5 Wagner claims that he was supervising the No. 45-3 at 71; Dkt. No. 46 at 5; Dkt. No. 54-1 at 5. While “suspicion search” that was ordered based upon plaintiff was on a “one-on-one” suicide watch, his behavior information obtained by defendant Lieutenant was documented every ten minutes. Dkt. No. 46 at 5-11. Raymond Judway from a confidential informant. Dkt. No. 29-1 at 16.

On November 1, 2013, defendant Deputy Superintendent Amy A. Tousignant issued a property deprivation order *2 Defendant Durante, by contrast, has executed a sworn affidavit in which he denies having assaulted the plaintiff. 6 depriving plaintiff of “all property.” Dkt. No. 45-9 at 30-34.

Tousignant noted that plaintiff refused to follow directions, See Durante Aff. (Dkt. No. 45-14) ¶3. Durante claims and thus posed a threat to the safety and security of staff. Dkt. that plaintiff became agitated during the search and began No. 45-9 at 30. The order remained in effect until November swinging his closed fists at Durante. Id. Plaintiff struck 14, 2013. Id. at 34. Durante on the right side of his head and Durante responded by pushing the plaintiff. Id. ¶1, 3. As a result, plaintiff fell

It is at this point that the parties' versions of the relevant events backwards into a locker. Id. Durante avers that a violent again diverge. Defendants maintain that while on watch, struggle ensued during which plaintiff bit him and grabbed plaintiff received a mattress, a clean urine bag, and was able his testicles. Id. ¶4. Plaintiff was ultimately subdued, and to shower. Dkt. No. 54-1 at 5. Defendants claim that plaintiff defendants Wagner and LoRusso placed him in mechanical refused to accept meals, medication, blood work, and lab restraints. Dkt. No. 45-14 ¶4; Dkt. No. 29-1 at 16. tests. Id. at 5-11. Conversely, plaintiff maintains that when he returned to his room, it was equipped with only a mat, and

6 That affidavit, which is included with defendants' the toilet was padlocked. Dkt. No. 45-3 at 74, 85. Plaintiff motion, was given by defendant Durante in alleges that defendants refused to provide him with meals, a connection with a matter brought by the plaintiff in urine bag, or medication. Id. at 74-85. Plaintiff maintains that the New York Court of Claims. Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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he was not informed that any blood work or lab tests were with a history that included urethral stricture, a MRSA necessary. Dkt. No. 54-1 at 7. infection, anti-social behavior, neuropathy, and “TB.” Dkt.

No. 46 at 99. Defendants contend that plaintiff told staff to On October 31, 2013, plaintiff was examined by defendant “get the [expletive] away from me” while “swinging his urine Dr. Raja Mara for complaints of pain in his left eye. Dkt. No. bag around, picking at his wounds, and pulling at his catheter 46 at 1. Dr. Mara's findings were benign for a left eye injury. and dressings.” Dkt. No. 46 at 90. Plaintiff was placed on a Id. Plaintiff took his prescribed medications on that date and “watch” to be monitored for self-harm. Dkt. No. 46 at 90; Dkt. the following day, spoke with personnel from the Office of No. 54-1 at 12. Defendants assert that while plaintiff was on a Mental Health, and was removed from the watch. 9 Dkt. No. “one on one” watch, he refused to accept meals or medication,

show his wounds to staff, or have his dressings changed. Dkt. 46 at 10; Dkt. No. 54-1 at 8-9. No. 46 at 90, 91. 9 The record does not indicate what prescribed Plaintiff maintains that he was physically unable to pull at his medications were administered. catheter because he was in full restraints with waist chains *3 The parties offer conflicting accounts of plaintiff's and leg irons. Dkt. No. 54-1 at 12. Plaintiff claims that he subsequent medical treatment. Defendants claim that Dr. did not threaten self-harm and disputes the assertions that Mara examined plaintiff on November 5, 2013, and that he refused to comply with medical staff directives. Dkt. No. Cole reported that his left eye was “good.” Dkt. No. 46 54-1 at 12-13. Plaintiff asserts that defendants confiscated at 1. Defendants allege that a physical therapist attempted his wheelchair and provided an inadequate replacement. to examine plaintiff on November 18, 2013, but plaintiff Dkt. No. 45-3 at 136-141. Plaintiff also claims that he was refused to comply and demanded a wheelchair. Dkt. No. 46 denied showers and meals from December 20, 2013 through at 107. Defendants further contend that plaintiff refused to December 24, 2013. Dkt. No. 45-3 at 146; Dkt. No. 54-1 at 14. attend an audiology consultative appointment and refused to allow defendant Nurse Rebecca Dutch to conduct an annual On December 24, 2013, plaintiff was transferred from the physical examination. Dkt. No. 46 at 26, 104. Upstate infirmary to a cell, via wheelchair. Dkt. No. 46 at

97. A sick call response was prepared, directing that: (1) Plaintiff counters by claiming that Dr. Mara did not examine medications would be issued three times daily; (2) Ensure him on November 5, 2013, and that he was not informed that would be issued four time each day; (3) the catheter would he had an appointment with an audiologist or Nurse Dutch. be changed monthly; and (4) dressing supplies would be Dkt. No. 54-1 at 9. Plaintiff also claims that he did not attend provided on a daily basis. Id. at 98. A medical permit was also any examination by a physical therapist on November 18, issued for the plaintiff providing for (1) a single cell, bottom 2013. Dkt. No. 54-1 at 9-10. bunk; (2) braces for plaintiff's right and left leg; (3) bilateral

hearing aids; (4) gauze; (5) a catheter and drainage bag, (6) On December 17, 2013, plaintiff was examined by an jock strap; and (7) dentures. Id. at 14. audiologist based upon a referral from Dr. Mara and defendant Facility Health Service Director Yogendra Sharma. Dkt. No.

1. Medications and Supplies 45-15 at 11; Dkt. No. 46 at 106; Dkt. No. 54-1 at 22. The *4 From December 30, 2013 through April 4, 2014, plaintiff audiologist reported that plaintiff had bi-lateral hearing aids received replacement batteries for his hearing aid. Dkt. No. and that plaintiff's left hearing aid was cracked and needed 46 at 32, 37, 95; Dkt. No. 54-1 at 22. Plaintiff also received to be sent for repair. Dkt. No. 46 at 106. The estimated cost urine bags (with straps), 10 knee sleeves, a jock strap, dressing for the repair was $189.00. Id. Plaintiff was told that he was responsible for the cost of the repair, but refused to pay. Id. supplies, gauze, tubular dressings for his arms, Bacitracin, The left hearing aid was relinquished to the medical staff at Clobetasol ointment, and a back brace. Dkt. No. 46 at 13, Walsh. Id. 28, 33, 34, 38, 39, 40, 42, 43, 53, 62, 67, 71. A medical

permit was issued allowing plaintiff to use his wheelchair and occupy a handicapped cell. Dkt. No. 46 at 13, 67.

C. Facts Related to Medical Treatment at Upstate Plaintiff was additionally prescribed various medications, Plaintiff was transferred, with a wheelchair, to Upstate on including Zantac (used to treat ulcers), Oxybutynin (used to December 19, 2013. Dkt. No. 54-1 at 11. Upon arrival, treat overactive bladder), vitamin-C, a multi-vitamin, Celexa plaintiff was evaluated by a nurse who noted that he presented Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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(an anti-depressant), Ativan (used to treat anxiety), Prilosec, Plaintiff was scheduled for physical therapy consultations on Omeprazole, Ranitidine (used to treat ulcers), Flunisolide January 8, 2014 and February 10, 2014. Dkt. No. 46 at 103, spray, Hydroxyzine (used to treat anxiety), Diphenhydramine 108. The therapist noted, however, that plaintiff refused to (an antihistamine), and Ensure formula. Dkt. No. 46 at 35, attend on those dates. Id. Plaintiff claims that security issues 42, 51, 59, 64, 94-95. Plaintiff also received 25 mg of Atarax, prevented his attendance. Dkt. No. 54-1 at 29. On March 24, prescribed to treat his skin disorder. Id. at 64, 69. 2014 and April 43, 2014, plaintiff refused to attend physical

therapy sessions. Dkt. No. 46 at 31, 73. 10 On February 25, 2014, plaintiff refused to accept On January 14, 2014, plaintiff submitted a request for a a new urine bag and dressing and demanded an reasonable accommodation. Dkt. No. 46 at 12. In it he asked “extender” for the bag. Dkt. No. 46 at 37. The for a wheelchair that “fits” with a cushioned seat and a shower technician advised the plaintiff that “no such thing” chair. Id . On January 23, 2014, Dr. Schroyer denied plaintiff's exists. Id. request for a new wheelchair, noting that “current wheelchair From January 1, 2014 through April 4, 2014, plaintiff meets pts needs.” Id. at 12. repeatedly refused to accept his dressing supplies, meals, and medications. Dkt. No. 46 at 35, 41, 47, 49, 55-56, 67, 71,

*5 On January 17, 2014, plaintiff was treated by a nurse 123-130, 132, 133, 134, 136, 139, 140, 142-147, 153-156, for complaints of swelling in his left leg. Dkt. No. 46 at 53. 158, 159, 161; Dkt. No. 54-1 at 23. Plaintiff's prescriptions The nurse did not detect any swelling, but observed very dry for medications and Ensure formula were discontinued due to skin with open areas and “scant bloody drainage.” Id. Plaintiff non-compliance. Dkt. No. 46 at 34, 43, 45, 46. received cream for use on his arm and legs and was advised to treat the open areas with Bacitracin. Id.

2. Examinations and Consultations Defendant Nurse Practitioner Mary Kowalachuk On January 2, 2014, plaintiff was examined by Defendant (“Kowalachuk”) diagnosed plaintiff on February 4, 2014, Dr. G. Schroyer, and was diagnosed with neurodermatitis. with atopic dermatitis. Dkt. No. 46 at 42. On March 4, Dkt. No. 46 at 68, 70. Dr. Schroyer prescribed two rolls of 2014, Kowalachuk attempted to change plaintiff's catheter. cling wrap for each extremity and a tubular retainer. Id. Dr. Id. at 34. While plaintiff was advised that he must be on the Schroyer also examined plaintiff's scrotum and noted that it examination table for the nurse to perform the procedure, he was “intact with [a] thin layer of skin.” Id. at 68. Plaintiff was refused to stand from his wheelchair. Id. directed to apply ointment daily and use a jock strap, “to be changed as needed.” Id. Dr. Schroyer also ordered plaintiff's

Defendant Facility Health Service Director V. Mandalaywala catheter to be changed monthly. Dkt. No. 46 at 68. Defendants sent plaintiff to Alice Hyde Medical Center on March 22, contend that plaintiff refused all medications and dressings. 2014, after plaintiff accidentally pulled out his catheter while Dkt. No. 45-15 at 12. Plaintiff claims that he did not receive attempting to transfer from his wheelchair to the shower. Dkt. the supplies or medications. Dkt. No. 54-1 at 23-24. No. 46 at 76-84. Plaintiff was transported to the hospital for a procedure to reinsert his catheter. Id. at 32, 76-84. The On January 6, 2014, plaintiff was transported to the nurses' procedure was successful and plaintiff returned to Upstate. Id. office for a catheter change. Dkt. No. 46 at 62. When plaintiff saw the catheter that the nurse intended to use, he stated, “I

On April 7, 2014, plaintiff was transferred to Five Points. Dkt. can't use that kind, it'll give me an infection.” Id. The nurse No. 46 at 30. called the pharmacy technician to request a clear catheter, and was advised that one would need to be located. Id. Plaintiff refused the catheter change and said he would wait for a new

D. Disciplinary Hearings one to arrive. Id. The nurse told plaintiff to apply ointment to On November 1, 2013, plaintiff was issued a misbehavior the area under his scrotum. Dkt. No. 46 at 62. The notations in report charging him with assault on staff, engaging in violent plaintiff's records indicate that two packets of ointment were conduct, refusing a direct order, and failure to comply with issued, although plaintiff claims that he never received the a frisk search. Dkt. No. 29 at 14. A Tier III hearing was ointment. Dkt. No. 46 at 62; Dkt. No. 54-1 at 27. commenced on November 4, 2013 with defendant Captain Joseph Corey presiding, to address these charges. 11 Dkt. No.

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45-9 at 40. On November 15, 2013, plaintiff was removed As a result of the misbehavior report and two hearings, from the hearing allegedly due to disruptive conduct. Dkt. plaintiff remained in disciplinary SHU confinement for a total No. 29-1 at 31. Plaintiff was ultimately found guilty of all of 170 days. Dkt. No. 29 ¶28. charges. 12 Id. at 41-42. Cole was sentenced on November 20, 2013, to serve eighteen months of disciplinary confinement

II. PROCEDURAL HISTORY

in the facility's special housing unit (“SHU”), with a loss of Plaintiff commenced this action with the filing of a complaint, privileges, and a recommended loss of good time credits. Id. accompanied by an application for leave to proceed in at 40. forma pauperis (“IFP”), on May 8, 2014. Dkt. Nos. 1, 2. Following an initial review of the complaint pursuant to

11 The DOCCS conducts three types of inmate 28 U.S.C. §§ 1915(e)(2)(B), 1915A, District Judge Mae A. disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; D'Agostino issued an order granting plaintiff's IFP application see also Hynes v. Squillace , 143 F.3d 653,

and approving the filing of his complaint subject to dismissal 655 n.1 (2d Cir. 1998). Tier I hearings address of claims that arose under the Americans With Disabilities the least serious infractions and can result in Act, as amended (“ADA”), 42 U.S.C. § 12,101 et seq. , minor punishments such as the loss of recreation and claims for money damages pursuant to 42 U.S.C. § privileges. Hynes , 143 F.3d at 655 n.1. Tier II

1983 against the DOCCS and the defendants in their official hearings involve more serious infractions, and can capacities. See generally Dkt. No. 5. On June 16, 2015, result in penalties which include confinement for the court granted plaintiff's subsequent motion to amend his a period of time in the SHU. Id. Tier III hearings complaint to assert section 1983 claims against the defendants address the most serious violations and can result in

in their individual capacities and an ADA claim against the unlimited SHU confinement and the loss of “good DOCCS. See generally Dkt. No. 28. time” credits. Id. On November 13, 2015, following the close of discovery, 12 Plaintiff disputes the assertion that he was defendants moved for the entry of summary judgment disruptive or that he pled guilty to the violent seeking dismissal of the complaint on multiple grounds, conduct charge, as defendants maintain. including (1) failure to exhaust administrative remedies with Plaintiff appealed the disciplinary determination on respect to Eighth Amendment claims against defendants November 20, 2013. Id. at 27-32. Defendant Director of LoRusso and Michaels; (2) the absence of any evidence from Special Housing Albert Prack modified plaintiff's sentence which a reasonable factfinder could conclude that plaintiff on January 14, 2014. Dkt. No. 29-1 at 44. On February sustained anything other than de minimis injuries as a result 11, 2014, Prisoners' Legal Services of New York forwarded of the October 29, 2013 incident; (3) the lack of record correspondence to defendant Prack, on plaintiff's behalf, evidence to give rise to a genuine dispute of material fact requesting reconsideration of the modification. Dkt. No. 29-1 regarding whether defendants were deliberately indifferent at 46. Defendant Prack later reviewed and administratively to plaintiff's serious medical needs; (4) plaintiff's failure reversed defendant Corey's decision on March 4, 2014. Id. to demonstrate either the deprivation of a protected liberty at 59. Plaintiff was advised that a complete rehearing would interest or procedural due process associated with any such commence “within 14 days of receipt of [that] notice.” Dkt. deprivation; (5) the lack of record evidence to give rise to a No. 29-1 at 59. genuine dispute of material fact regarding whether defendants

retaliated against plaintiff in violation of his First Amendment *6 On March 20, 2014, defendant Hearing Officer Steven constitutional rights; (6) the lack of personal involvement of Bullis conducted a rehearing with respect to plaintiff's the supervisory defendants; (7) the failure to state a cause misbehavior report. Dkt. No. 29 ¶78. At the conclusion of that of action under the ADA; and (8) qualified immunity. Dkt. hearing plaintiff was found guilty of all charges. Id. Prack No. 45. Plaintiff filed his response in opposition to the reversed Bullis' findings on June 2, 2014, noting that, “[t]he motion on December 28, 2015. Dkt. No. 54. Defendants' circumstances surrounding the incident required the hearing motion, which is now fully briefed and ripe for determination, officer to get a mental health assessment.” Dkt. No. 45-13 at has been referred to me for the issuance of a report and 10. recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and

Northern District of New York Local Rule 72.3( c). See Fed. R. Civ. P. 72(b).

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his failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a). Dkt. No. 45-16 at 16-18.

III. DISCUSSION

The Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L. A. Legal Standard Governing Motions for Summary No. 104-134, 110 Stat. 1321 (1996), which imposes several Judgment restrictions on the ability of prisoners to maintain federal civil

Summary judgment motions are governed by Rule 56 of rights actions, expressly requires that “[n]o action shall be the Federal Rules of Civil Procedure. Under that provision, brought with respect to prison conditions under section 1983 the entry of summary judgment is warranted “if the movant of this title, or any other Federal law, by a prisoner confined shows that there is no genuine dispute as to any material in any jail, prison, or other correctional facility until such facts and the movant is entitled to judgment as a matter of administrative remedies as are available are exhausted. 42 law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett , 477 U.S. U.S.C. § 1997e(a); see also Woodford v. Ngo , 548 U.S. 81, 317, 322 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 84 (2006) (“Exhaustion is ... mandatory. Prisoners must now 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion exhaust all ‘available’ remedies[.]”); Hargrove v. Riley , No. Freight Line, Inc. , 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, “material” for purposes of this inquiry, if it “might affect the 2007) (“The exhaustion requirement is a mandatory condition outcome of the suit under the governing law.” Anderson , 477 precedent to any suit challenging prison conditions, including U.S. at 248; see also Jeffreys v. City of N.Y. , 426 F.3d 549, 553 suits brought under Section 1983.”). 13 This limitation is (2d Cir. 2005). A material fact is genuinely in dispute “if the intended to serve the dual purpose of affording “prison evidence is such that a reasonable jury could return a verdict officials an opportunity to resolve disputes concerning the for the nonmoving party.” Anderson , 477 U.S. at 248. exercise of their responsibilities before being haled into courtl[,]” and to improve the quality of inmate suits filed

*7 A party moving for summary judgment bears an initial through the production of a “useful administrative record.” burden of demonstrating that there is no genuine dispute Jones v. Bock , 549 U.S. 199, 204 (2007) (citations omitted); of material fact to be decided with respect to any essential see Woodford , 548 U.S. at 91-92; see also Johnson v. Testman , element of the claim in issue, and the failure to meet this 380 F.3d 691, 697 (2d Cir. 2004). “[T]he PLRA's exhaustion burden warrants denial of the motion. Anderson , 477 U.S. requirement applies to all inmate suits about prison life, at 250 n.4; Sec. Ins. Co. , 391 F.3d at 83. In the event this whether they involve general circumstances or particular initial burden is met, the opposing party must show, through episodes, and whether they allege excessive force or some affidavits or otherwise, that there is a material dispute of fact other wrong.” Porter v. Nussle , 534 U.S. 516, 532 (2002). for trial. Fed. R. Civ. P. 56(e); Celotex , 477 U.S. at 324; Anderson , 477 U.S. at 250.

13 All unreported cases cited to in this decision have When deciding a summary judgment motion, a court must been appended to this report for the convenience of resolve any ambiguities, and draw all inferences, in a light the pro se plaintiff. most favorable to the nonmoving party. Anderson , 477 U.S. The failure of a prisoner to satisfy the PLRA's exhaustion at 255; Jeffreys , 426 F.3d at 553; Wright v. Coughlin , 132 F.3d requirement gives rise to an affirmative defense that must 133, 137-38 (2d Cir. 1998). The entry of summary judgment be affirmatively raised by a defendant in response to an is justified only in the event of a finding that no reasonable inmate suit. 14 Jones , 549 U.S. at 212. In the event the trier of fact could rule in favor of the non-moving party. Bldg. defendant establishes that the inmate plaintiff failed “to Trades Employers' Educ. Ass'n v. McGowan , 311 F.3d 501, fully complete[ ] the administrative review process” prior to 507-08 (2d Cir. 2002); see also Anderson , 477 U.S. at 250 commencing the action, the plaintiff's complaint is subject (finding summary judgment appropriate only when “there can to dismissal. Pettus v. McCoy , No. 04-CV-0471, 2006 WL be but one reasonable conclusion as to the verdict”). 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford , 548 U.S. at 93 (“[W]e are persuaded that the

B. Exhaustion of Administrative Remedies PLRA exhaustion requirement requires proper exhaustion.”). As a procedural matter, defendants contend that plaintiff is “Proper exhaustion” requires a plaintiff to procedurally precluded from judicial pursuit of his Eighth Amendment exhaust his claims by “compl[ying] with the system's critical claims against defendants LoRusso and Michaels based upon Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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procedural rules.” Woodford, 548 U.S. at 95; see also Macias opaque that it becomes, practically speaking, incapable of v. Zenk , 495 F.3d 37, 43 (2d Cir. 2007). use.” Id. The Court explained that “[i]n this situation, some

mechanism exists to provide relief, that no ordinary prisoner 14 can discern or navigate it. Id. The Court went on to identify Defendants have interposed an exhaustion defense a third situation under which “prison administrators thwart in their answer. Dkt. No. 34 &18. inmates from taking advantage of a grievance process through *8 New York prison inmates are subject to an Inmate machination, misrepresentation, or intimidation.” Id. at 1860. Grievance Program (“IGP”) established by the DOCCS, which is recognized as an “available” remedy for purposes

Since the Supreme Court's decision in Ross , the Second of the PLRA. See Mingues v. Nelson , No. 96 CV 5396, Circuit has weighed in on the issue in a case involving 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing a district court's determination that a plaintiff's complaint Mojias v. Johnson , 351 F.3d 606 (2d Cir. 2003) and Snider should be dismissed for failure to exhaust remedies where v. Melindez , 199 F.3d 108, 112-13 (2d Cir. 1999)). The the inmate claimed to have submitted a grievance concerning IGP consists of a three-step review process. First, a written misconduct by corrections officers but received no response grievance is submitted to the Inmate Grievance Review to the grievance, and took no further action with respect to Committee (“IGRC”) within twenty-one days of the incident. it. Williams v. Priatno , ___ F.3d ____, No. 14-1477, 2016 7 N.Y.C.R.R. § 701.5(a). The IGRC, which is comprised of WL 3729383 (2d Cir. July 12, 2016). In Williams , plaintiff inmates and facility employees, then issues a determination alleged that on December 31, 2012, while confined in the regarding the grievance. Id. §§ 701.4(b), 701.5(b). If an Downstate Correctional Facility (“Downstate”), his personal appeal is filed, the superintendent of the facility next reviews items were searched, his legal papers were confiscated, and the IGRC's determination and issues a decision. Id. § 701.5(c). he was assaulted by corrections officers. Id. at *2. Plaintiff The third level of the process affords the inmate the right claimed that on January 15, 2013, while still at Downstate and to appeal the superintendent's ruling to the CORC, which confined in an SHU cell, he drafted a grievance detailing the makes the final administrative decision.§§ 701.4(b), 701.5(b), misconduct and gave it to a corrections officer to forward to 701.5(d). Ordinarily, absent the finding of a basis to excuse the grievance office. Id. One week later, not having received non-compliance with this prescribed process, only upon a response to the grievance, the plaintiff inquired of the exhaustion of these three levels of review may a prisoner facility superintendent, who was making rounds in the SHU, seek relief pursuant to section 1983 in a federal court. Reyes concerning the grievance, and was told that the superintendent v. Punzal , 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citing, had no knowledge of the grievance but would look into it. inter alia, Sulton v. Greiner , No. 00 Civ. 0727, 2000 WL Id. Shortly after that conversation, plaintiff was transferred 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)). into another facility. Plaintiff never received a response to the grievance, nor did he ever appeal to the superintendent and/

Despite the PLRA's mandate concerning exhaustion, there are or the CORC. circumstances under which the requirement can be excused. In its recent decision in Ross v. Blake , 136 S. Ct. 1850

*9 After discussing the Supreme Court's decision in Ross , (2016), the Supreme Court noted that the requirement hinges the Second Circuit in Williams reversed the dismissal of upon internal remedies being actually available to a plaintiff plaintiff's complaint, concluding that the pertinent provisions inmate. Ross , 136 S. Ct. 1859. When internal administrative of the IGP, providing recourse in situations such as those remedies are unavailable to an inmate, the PLRA's exhaustion presented, were opaque, therefore making the grievance requirement does not preclude commencement of an action. process unavailable to the plaintiff. Williams , 2016 WL Id. 3729383, at *5-6. Although not the centerpiece of its decision in Williams , the Second Circuit went on to note

In Ross , the Supreme Court identified three circumstances that the ambiguity associated with the prescribed mechanism in which a court could find that internal administrative for appealing a grievance that was never officially filed remedies are not available. Under the first, “an administrative and answered was compounded by plaintiff's transfer and procedure is unavailable when (despite what regulations are concluded that the procedures available to the plaintiff guidance materials may promise) it operates as a simple were so opaque and confusing as the incapable of use, dead end – with officers unable or consistently unwilling to thereby making the administrative remedies unavailable to the provide any relief to aggrieved inmates.” Ross , 136 S. Ct. plaintiff. Id. at *7. at 1859. In addition, “an administrative scheme might be so Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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he was assaulted on October 29, 2013 and complained that The initial burden of demonstrating non-exhaustion rests various DOCCS employees, including defendant LoRusso, with the defendants. Once the defendants meet this burden, failed to adhere to DOCCS policies related to searches and however, “it then becomes incumbent upon the plaintiff to property. Id. While the use of excessive force by defendant counter with a showing of unavailability...”. See, e.g., Murray LoRusso was not directly raised in plaintiff's grievances, v. Palmer , No. 03-CV-1010, 2010 WL 1235591, at *4 & n. defendant LoRusso does not dispute that he was present 17 (N.D.N.Y. Mar. 31, 2010) (Suddaby, J.); see also Calloway in plaintiff's cell on the day of the incident. As part of v. Grimshaw , No. 09-CV-1354, 2011 WL 4345299, at *5 & the investigation into the incident, LoRusso submitted a n. 5 (N.D.N.Y. Aug. 10, 2011) (Lowe, M.J.) (citing cases), statement and reported that he responded to plaintiff's room report and recommendation adopted by 2011 WL 4345296 and “immediately grabbed Cole’s left arm with both hands (N.D.N.Y. Sept. 15, 2011) (McAvoy, J.); Cohn v. KeySpan and forced it to the small of his back despite much resistance Corp. , 713 F.Supp.2d 143, 155 (E.D.N.Y. 2010) (finding that, from Cole. I then placed mechanical restraints on his left wrist in the employment discrimination context, the defendants and then assisted in rolling Cole on his left side.” Dkt. No. bear the burden of establishing the affirmative defense of 29-1 at 17. According to the November 14, 2013 use of force failure to timely exhaust his administrative remedies, but once report prepared in connection with the incident, LoRusso defendants have done so, the plaintiff must plead and prove applied force against the plaintiff, including in the form of facts supporting equitable avoidance of the defense). a body hold and mechanical restraints. Dkt. No. 45-9 at 46,

50, 51. LoRusso “maintained his hold on Cole's left hand and then forced it backward to Cole's lower back and assisted Sgt. Wagner in putting it in mechanical restraints.” Id. at 15 46,

1. Claims Against Defendant LoRusso 51. LoRusso then “rolled Cole onto his left side.” Id. While acknowledging that plaintiff did file grievances 15 generally addressing the October 2013 incident, defendant The grievances were consolidated and referenced LoRusso maintains that the grievances fail to include as Grievance No. MHK 12505-13. or reference his claim that the officer used excessive *10 Having carefully examined the exhaustion issue in light force. Rather, defendant LoRusso contends that plaintiff's of defendants' arguments, I cannot find as a matter of law that grievances against him related only to the destruction of plaintiff has failed to fully exhaust available administrative property and, as such, do not suffice to meet the applicable remedies related to defendant LoRusso prior to filing this exhaustion requirements. Dkt. No. 45-16 at 17. action. At best, drawing all inferences in plaintiff's favor, there is a triable issue as to whether plaintiff's grievance provided

Undeniably, there is no specific requirement within the IGP the requisite notice of the conduct at issue with respect to or otherwise that an inmate identify all persons alleged his claims against defendant LoRusso. See Brownwell , 446 to be responsible for the acts giving rise to his or her F.3d at 310-11. Accordingly, I recommend against dismissal constitutional claims. Espinal v. Goord , 558 F.3d 119, 126 of plaintiff's complaint on this basis. (2d Cir. 2009). A grievance, however, must be sufficiently precise and illuminating in order to place defendants on notice of what, substantively, is claimed in order to permit a proper investigation. Johnson , 380 F.3d at 697 (quoting Strong v. 2. Claim Against Defendant Michaels David , 297 F.3d 646, 650 (2d Cir. 2002)).

Defendants contend that plaintiff is barred from pursuing a claim based upon a “failure to protect” theory against

In this instance, defendant LoRusso's argument lacks merit, as defendant Michaels based upon Cole's failure to file a it overlooks both the fact that defendant LoRusso is named in grievance relating to that claim. Dkt. No. 45-16 at 18. Plaintiff plaintiff's grievances, and case law which firmly establishes asks the court to excuse his failure to exhaust the available that this alone does not necessarily provide a basis to conclude administrative remedies prior to commencing this action that a claim is unexhausted. See Brownell v. Krom , 446 F.3d and including a failure to protect claim against defendant 305, 311 n.1 (2d Cir. 2006). The undisputed record reveals Michaels because (1) he forwarded a grievance to Upstate that plaintiff filed several grievances related to the events that regarding the waterboarding incident but the grievance was transpired at Walsh on October 29, 2013. 15 Dkt. No. 29-1 at returned with the explanation that plaintiff “needed to send 33; Dkt. No. 45-9 at 5, 7, 9, 10, 11, 12. Plaintiff claimed that Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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the grievance to the facility responsible for the waterboard did not exhaust his administrative remedies, I conclude that action,” and (2) plaintiff sent a grievance to Walsh/Mohawk there appears to be a material issue of fact as to whether C.F. regarding the incident but did not receive a response. Dkt. plaintiff filed a timely initial grievance regarding his claim No. 54-2 at 16-17. against defendant Michaels or whether his failure to do so

should be excused under Ross . As was previously noted, despite an inmate's entitlement in most instances to file and pursue a grievance in accordance

C. Excessive Force Claims with the IGP, there are circumstances under which the *11 Plaintiff claims that defendants Durante, Wagner, and grievance procedure nonetheless is deemed not to have been LoRusso violated his Eighth Amendment rights through available to an inmate plaintiff. See Ross , 136 S. Ct. at their use of excessive force against him. Dkt. No. 29 ¶100. 1859-60. Thus, for example, exhaustion may be considered Defendants argue that there is no medical evidence by which unavailable where the “plaintiff filed his initial grievance with plaintiff can substantiate this claim, and that any injury he the wrong facility, and he did not explicitly ask for additional suffered was de minimis. Dkt. No. 45-16 at 15-16. time to file it properly,” but the IGP Supervisor failed “to advise plaintiff of his ability to ask for an extension”. Brooks

A plaintiff's constitutional right against cruel and unusual v. Rock , No. 11-CV-1171 (GLS/ATB), 2014 WL 1292232, at punishment is violated by an “unnecessary and wanton *11 (N.D.N.Y. March 28, 2014). infliction of pain.” Whitley v. Albers , 475 U.S. 312, 319 (quotation marks omitted); Griffin v. Crippen , 193 F.3d 89,

When, as in this case, an inmate asserts that his or her 91 (2d Cir. 1999). “A claim of cruel and unusual punishment resort to the grievance process was deterred, the question of in violation of the Eighth Amendment has two components- whether a sufficient basis to negate a finding of “availability” one subjective, focusing on the defendant's motive for his has been established entails an objective inquiry, focusing conduct, and the other objective, focusing on the conduct's upon whether “ ‘a similarly situated individual of ordinary effect.” Wright v. Goord , 554 F.3d 255, 268 (2d Cir. 2009) firmness’ [would] have deemed them available.” Hemphill , (citing Hudson v. McMillian , 503 U.S. 1, 7-8 (1992); Blyden 380 F.3d at 688 (citing Davis v. Goord , 320 F.3d 346, 353 v. Mancusi , 186 F.3d 252, 262 (2d Cir. 1999)). To satisfy the (2d Cir. 2003)). In opposition to defendants' motion, plaintiff subjective requirement in an excessive force case, the plaintiff asserts that he attempted, twice, to file a grievance against must demonstrate that “the defendant had the necessary level defendant Michaels, but his grievances were rejected. The of culpability, shown by actions characterized by wantonness record contains a January 6, 2014 letter from plaintiff to Mr. in light of the particular circumstances surrounding the J. Lovelace, Senior Investigator at the Office of the Inspector challenged conduct.” Wright , 554 F.3d at 268 (quotation General. Dkt. No. 29-1 at 101. In that correspondence, marks omitted). This inquiry turns on “whether force was plaintiff advises that he forwarded a letter on December 24, applied in a good faith effort to maintain or restore discipline 2013 regarding “crimes committed against my person” on or maliciously and sadistically for the very purpose of December 19, 2013 “before ... administrative draft out.” Id. causing harm.” Hudson , 503 U.S. at 6 (quotation marks at 101. In it, plaintiff refers to being “beat” and “drowning.” omitted); accord, Blyden , 186 F.3d at 262. The Supreme Id. Plaintiff enclosed a grievance based upon the December Court has emphasized that the nature of the force applied is 19, 2013 assault. Id. The record also contains a memorandum the “core judicial inquiry” in excessive force cases, rather dated January 6, 2014 from the IGP Office informing plaintiff than “whether a certain quantum of injury was sustained.” that Grievance No. UST 53210-14 related to harassment/ Wilkins v. Gaddy , 559 U.S. 34, 37 (2010) (per curiam). misconduct was being investigated. Dkt. No. 29-1 at 100. The Accordingly, when considering the subjective element of the record, however, does not contain a copy of that grievance. governing Eighth Amendment test, a court must be mindful that the absence of serious injury, though relevant, does not

Based upon the record, this court cannot conclude that necessarily negate a finding of wantonness. 16 Wilkins , 559 plaintiff did not properly submit a timely initial grievance regarding defendant Michaels' alleged violation of plaintiff's U.S. at 37; Hudson , 503 U.S. at 9. rights at Walsh, and that the IGP was available to him. Mindful that a court should not resolve credibility issues 16

This notwithstanding, “[n]ot every push or shove, when deciding a motion for summary judgment, and that the even if it later may seem unnecessary in the defendants bear the ultimate burden of proving that plaintiff peace of a judge's chambers, violates a prisoner's Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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constitutional rights.” Romano v. Howarth , 998 F.2d 101, 105 (2d Cir. 1993) (quotation marks As was discussed earlier, an investigation was conducted omitted); see also Griffin , 193 F.3d at 91. “The regarding the incident, during which defendants LoRusso Eighth Amendment's prohibition of cruel and and Wagner provided statements. According to defendant unusual punishments necessarily excludes from LoRusso, he responded to plaintiff's room and “immediately constitutional recognition de minimis uses of grabbed Coles left arm with both hands and forced it to physical force, provided that the use of force the small of his back despite much resistance from Cole. I is not of a sort repugnant to the conscience of then placed mechanical restraints on his left wrist and then mankind.” Hudson , 503 U.S. at 9-10 (quotation assisted in rolling Cole on his left side.” Dkt. No. 29-1 at marks omitted). 17. Additionally, defendant Wagner reported plaintiff did not

comply with Durante's directives and that, “[f]orce had to be “The objective component [of the excessive force analysis] ... used to gain control of Inmate Cole.” Dkt. No. 45-9 at 47. focuses on the harm done, in light of ‘contemporary standards of decency.’ ” Wright , 554 F.3d at 268 (quoting Hudson ,

While defendants explain that the use of force was necessary 503 U.S. at 8); see also Blyden , 186 F.3d at 263 (finding because plaintiff refused to comply with their efforts to the objective component “context specific, turning upon conduct a search and attacked him, plaintiff disputed their ‘contemporary standards of decency’ ”). In assessing this version of the events when he testified during his deposition element, a court must ask whether the alleged wrongdoing that defendants used forced against him for reasons unrelated is objectively harmful enough to establish a constitutional to restoring or maintaining discipline. Plaintiff testified that violation. Wilson v. Seiter , 501 U.S. 294, 303 (1991); accord during an illegal cell search and strip search, defendants Hudson , 503 U.S. at 8; see also Wright , 554 F.3d at 268. “But choked, kicked and punched him in the head, neck, face, legs, when prison officials use force to cause harm maliciously back and abdomen. Dkt. No. 45-3 at 32, 38, 40-43. He claims and sadistically, “contemporary standards of decency always that the defendants pulled him out of his wheelchair, picked are violated. This is true whether or not significant injury him up by his arms and “slammed” him to the ground on is evident.’ ” Wright , 554 F.3d at 268-69 (quoting Hudson , two occasions causing plaintiff's urine bag to break when he 503 U.S. at 9) (alterations omitted)). The extent of an landed on his abdomen. Id. at 52-54. Plaintiff contends that inmate's injury is but one of the factors to be considered the attack was in retaliation for filing grievances and lawsuits. in determining whether a prison official's use of force was Dkt. No. 45-3 at 25, 30, 50. “unnecessary and wanton” because “injury and force ... are imperfectly correlated[.]” Wilkins , 559 U.S. at 38. In addition,

In further support of their motion, defendants also rely upon courts consider the need for force, whether the force was a surveillance video recording from Walsh. 17 Dkt. No. proportionate to the need, the threat reasonably perceived by 48 (traditionally filed, not electronically filed). The video the officials, and what, if anything, the officials did to limit recording does not depict the use of force incident or any of their use of force. Hudson , 503 U.S. at 7; Whitley , 475 U.S. the events surrounding the excessive force claim. Instead, it at 321; Romano , 998 F.2d at 105. simply begins with plaintiff being escorted from his cell to another cell following the incident. Dkt. No. 48. As such, the

*12 In support of defendants' motion, they have included court is unable to resolve any factual issues surrounding the an affidavit from defendant Durante, in which he denies use of force or determine which version of events to credit. plaintiff's allegations and explains the necessity of applying See Comeaux v. Sutton , 496 Fed.Appx. 368, 372 (5 th Cir. force in order to maintain discipline. Dkt. No. 45-14. Durante avers that he entered plaintiff's room at approximately 9:40

2012) (holding that while the video depicted the plaintiff's a.m. to conduct a search. Dkt. No. 45-14 at 1. Plaintiff became injuries, the videotape did not offer any proof as to the need agitated, jumped out of his chair, and swung his closed fists at for or circumstances of force and thus, the court could not Durante, striking the officer in the head. Id. Durante pushed

hold that the plaintiff's version of events was inconsistent with plaintiff away, causing him to fall into a locker. Id. Durante his injuries). recounts that during a violent struggle, plaintiff grabbed his testicles and bit Durante's left hand. Dkt. No. 45-15 at 17

The video is not date or time stamped. The date on 2. Durante forced plaintiff onto the floor, chest first, and which it was recorded, however, is referenced in the maintained pressure on plaintiff's shoulders. Id. Defendants audio portion of the video. Wagner and LoRusso then applied mechanical restraints. Id. Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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Plaintiff claims that as a result of the incident he sustained excessive risk of harm to his health and safety. Hayes v. New two black eyes and suffered bruising, swelling, and pain in York City Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996). his face, back, abdomen and wrist. Dkt. No. 45-3 at 66, 68. This “reckless disregard” to a plaintiff's health and safety can Defendants argue that plaintiff's injuries were de minimis be proven by evidence establishing “a pervasive risk of harm because the medical records associated with the treatment to inmates ... and a failure by prison officials to reasonably administered by Walsh personnel and the video recording do respond to that risk.” Knowles v. N.Y. City Dep't of Corrs. , 904 not support plaintiff's allegations concerning the extent of his F. Supp. 217, 222 (S.D.N.Y. 1995) (quotation marks omitted). injuries. See generally Dkt. No. 45-2. Defendants ignore the To establish liability on the part of a defendant under this fact, however, that plaintiff's injuries are but one factor to theory, “the plaintiff must adduce evidence establishing that consider in the excessive force analysis. See Wilkins , 559 U.S. the officer had (1) a realistic opportunity to intervene and at 38 (finding that the extent of an inmate's injuries is but prevent the harm, (2) a reasonable person in the officer's one factor to consider in determining whether a defendant's position would know that the victim's constitutional rights use of force was “unnecessary and wanton” because “injury were being violated, and (3) that officer does not take and force ... are imperfectly correlated”). Although none of reasonable steps to intervene.” Henry v. Dinelle , No. 10- plaintiff's medical records reveal that he suffered anything but CV-0456, 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, minimal injuries as a result of the alleged uses of force by 2011) (Suddaby, J.) (citing Jean-Laurent v. Wilkinson , 540 the defendants, the dispositive inquiry is whether defendants F.Supp.2d 501, 512 (S.D.N.Y. 2008)). used force in a malicious and sadistic manner, rather than in a good-faith effort to maintain or restore order. On a motion Plaintiff claims that three officers, who are not named as for summary judgment, where the record evidence could defendants in this action, “held” him in the “A-Wing holding reasonably permit a rational factfinder to find that corrections closet” at Walsh and “play[ed] there [sic] game of water officers used force maliciously and sadistically, dismissal boarding.” Dkt. No. 29 at 16; see also Dkt. No. 45-3 at of an excessive force claim is inappropriate. See Wright , 126, 129. Plaintiff maintains that those unnamed individuals 554 F.3d at 269 (reversing summary dismissal the plaintiff's restrained him and placed a towel over his face while they complaint, though suggesting that prisoner's evidence of an poured water on him in an attempt to choke him. Dkt. No. 45-3 Eighth Amendment violation was “thin” as to his claim that at 128-130. According to the plaintiff, defendant Michaels a corrections officer struck him in the head, neck, shoulder, was present during the assault. Id. at 126. Defendants argue wrist, abdomen, and groin, where the Amedical records after that this claim is “wild and unsupported,” but do not offer the ... incident with [that officer] indicated only a slight any affidavit from defendant Michaels or any substantive injury”) (citing Scott v. Coughlin , 344 F.3d 282, 291 (2d Cir. argument in support of their request for dismissal of this 2003)). claim. Dkt. No. 45-16 at 18. I therefore recommend against

the entry of summary judgment dismissing plaintiff's claim *13 Based on the record now before the court, there exists against defendant Michaels for failure to protect him from a dispute of fact as to the basis for defendants' use of force. harm. From the conflicting accounts given by the parties, this case would appear to squarely present an issue of credibility not

E. Deliberate Medical Indifference Claim appropriately resolved on motion for summary judgment. In his complaint, plaintiff asserts claims addressed to the Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d Cir. 1996) (citing, sufficiency of the medical care and treatment received by him inter alia, Anderson , 477 U.S. at 255, 106 S. Ct. 2513). at the relevant times. In their motion defendants also seek Accordingly, I recommend that defendants' motion be denied dismissal of this claim as a matter of law. to the extent that it seeks dismissal of this claim. D. Failure to Protect Claim Against Defendant Michaels 1. Legal Standard Governing In their motion defendants argue that plaintiff’s claim against Deliberate Medical Indifference Claims defendant Michaels for failing to protect him from harm at the hands of three unidentified corrections officers is subject

While the Eighth Amendment “ ‘does not mandate to dismissal on the merits. A plaintiff asserting a failure to comfortable prisons,’ neither does it permit inhumane ones.” protect claim must prove that the defendant against whom Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 the claim is asserted actually knew of and disregarded an Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman , 452 U.S. significantly affects an individual's daily activities, and 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). “These whether it causes chronic and substantial pain.” Salahuddin , elementary principles establish the government's obligation 467 F.3d at 280 (quotation mark and alterations omitted). to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble , 429 U.S. 97, 102-03, 97 If, on the other hand, a plaintiff's complaint alleges that S.Ct. 285, 50 L.Ed.2d 251 (1976). Failure to provide inmates treatment was provided but was inadequate, the second with medical care, “[i]n the worst cases, ... may actually inquiry of the objective test is narrowly confined to produce physical torture or lingering death, [and] ... [i]n less that specific alleged inadequacy, rather than focusing serious cases, ... may result in pain and suffering no one upon the seriousness of the inmate's medical condition. suggests would serve any penological purpose.” Id. Salahuddin , 467 F.3d at 280. “For example, if the prisoner

is receiving ongoing treatment and the offending conduct *14 A claim alleging that prison officials have violated is an unreasonable delay or interruption in that treatment, an inmate's Eighth Amendment rights by neglecting to [the focus of the] inquiry [is] on the challenged delay or provide adequate medical care must satisfy both objective interruption in treatment, rather than the prisoner's underlying and subjective requirements. Wright v. Goord , 554 F.3d 255, medical condition alone.” Id. (quotations marks omitted). 268 (2d Cir. 2009); Price v. Reilly , 697 F.Supp.2d 344, 356 (E.D.N.Y. 2010). The Second Circuit has noted the following To satisfy the subjective requirement, a plaintiff must with respect to the objective requirement: demonstrate that the defendant had “the necessary level of

culpability, shown by actions characterized by ‘wantonness.’ ” Blyden v. Mancusi , 186 F.3d 252, 262 (2d Cir. 1999). “In medical-treatment cases ..., the official's state of mind need

[d]etermining whether a deprivation not reach the level of knowing and purposeful infliction of is an objectively serious deprivation harm; it suffices if the plaintiff proves that the official acted entails two inquiries. The first with deliberate indifference to inmate health.” Salahuddin , inquiry is whether the prisoner 467 F.3d at 280. “Deliberate indifference,” in a constitutional was actually deprived of adequate sense, “requires that the charged official act or fail to medical care. As the Supreme act while actually aware of a substantial risk that serious Court has noted, the prison official's inmate harm will result.” Id. (citing Farmer , 511 U.S. duty is only to provide reasonable at 837); see also Leach v. Dufrain , 103 F.Supp.2d 542, medical care .... Second, the 546 (N.D.N.Y. 2000) (Kahn, J.); Waldo v. Goord , No. 97- objective test asks whether the CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) inadequacy in medical care is (Kahn, J., adopting report and recommendation by Homer, sufficiently serious. This inquiry M.J.). “Deliberate indifference is a mental state equivalent requires the court to examine to subjective recklessness, as the term is used in criminal how the offending conduct is law.” Salahuddin , 467 F.3d at 280 (citing Farmer , 511 U.S. inadequate and what harm, if any, at 839-40). the inadequacy has caused or will likely cause the prisoner.

*15 It should be noted that the Eighth Amendment does not afford prisoners a right to medical treatment of their choosing; the question of what diagnostic techniques and treatments

Salahuddin v. Goord , 467 F.3d 263, 279-80 (2d Cir. 2006) should be administered to address an inmate's medical (citations omitted). condition is a “classic example of a matter for medical judgment” and, accordingly, prison medical personnel are

The second inquiry of the objective test requires a court to vested with broad discretion to determine what method of examine the seriousness of the inmate's medical condition if care and treatment to provide to their patients. Estelle , 429 the plaintiff alleges a complete failure to provide treatment. U.S. at 107, 97 S.Ct. at 293; Chance , 143 F.3d at 703 Smith v. Carpenter , 316 F.3d 178, 185-86 (2d Cir. 2003). (citation omitted); Rosales v. Coughlin , 10 F.Supp.2d 261, “Factors relevant to the seriousness of a medical condition 264 (W.D.N.Y. 1998) (citation omitted). Accordingly, mere include whether a reasonable doctor or patient would find disagreement with prison officials regarding a course of it important and worthy of comment, whether the condition Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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treatment does not implicate a constitutional right or support 18

Defendants incorrectly summarize plaintiff's a deliberate indifference claim under section 1983. United deliberate medical indifference claims against the States ex rel. Hyde v. McGinnis , 429 F.2d 864, 867 (2d Cir. Walsh defendants. Dkt. No. 45-10 at 2. They 1970) (citation omitted). contend that as a result of the use of force incident, plaintiff sustained only minor injuries that were not sufficiently serious medical conditions requiring constitutional protections. Dkt. No. 45-16 at 12.

2. Analysis However, plaintiff's Eighth Amendment claims are Addressing the first objective element of the governing test, not limited to a failure to treat the injuries allegedly defendants argue that plaintiff has failed to establish that he sustained by the plaintiff as a result of the October suffered from any serious injury and contend that there is no 29, 2013 incident. evidence that plaintiff suffered from a MRSA infection while The evidence before the court establishes that defendant confined at Walsh or Upstate. Dkt. No. 45-16 at 15. Plaintiff's Peterson examined plaintiff following the alleged assault, medical records, submitted in support of defendants' summary and documented her findings. Dkt. No. 29-1 at 12. From judgment motion, however, belie defendants' argument. October 29, 2013 through November 1, 2013, plaintiff was Those records indicate that plaintiff attempted suicide, was monitored every ten minutes while on a “suicide watch.” Dkt. positive for a MRSA infection suffered from asthma, urethral No. 46 at 5-11. After plaintiff was discharged from the watch, stricture, hearing loss, and neuropathy, and displayed an he was examined by defendant Mara, received medications anti-social personality. Dkt. No. 46 at 99. Accordingly, a and medical supplies, and attended a consultation with an reasonable factfinder could conclude that plaintiff suffered audiologist. Dkt. No. 45-3 at 79-82. from a serious medical need. See McCluskey v. Vincent , 505 Fed.Appx. 199, 202 (3d Cir. 2012) (holding that MRSA

*16 While there is a dispute regarding whether defendants is a serious medical need); Miller v. Ramineni , No. 14- failed to advise plaintiff of scheduled appointments, even CV-1351(DNH/CFH), 2016 WL 1253684, at *4 (N.D.N.Y. viewing the evidence in a light most favorable to plaintiff, Feb. 29, 2016), report and recommendation adopted, 2016 the failure to advise plaintiff of scheduled appointments does WL 1261125 (N.D.N.Y. Mar. 30, 2016) (“Several courts not constitute deliberate indifference. See Johnson v. Woods , have concluded that MRSA constitutes a sufficiently serious No. 07-CV-1018 (DNH/DRH), 2010 WL 2039164, at *13 medical condition.”) (collecting cases); see also Zimmerman (N.D.N.Y. March 2, 2010). There is no evidence from which v. Burge , No. 06 CV 0176 (GLS/GHL), 2009 WL 9054936, at a rational factfinder could conclude that defendants knew *6 (N.D.N.Y. April 20, 2009) (finding that objective element that plaintiff would suffer serious harm if they failed to was satisfied because plaintiff attempted suicide and was advise him of blood tests, an appointment with an audiologist, diagnosed with depression). a consultative appointment with a physical therapist, or the need for an annual physical examination. At best, plaintiff's allegations state claims of negligence and medical

a. Claims Against Walsh Defendants malpractice which are not cognizable under 42 U.S.C. § 1983. See, e.g., Farmer , 511 U.S. at 835 (“[D]eliberate Plaintiff claims that defendants Mara, Regional Medical indifference describes a state of mind more blameworthy than Director Marshall Trabout, Dutch, Peterson, Health Care negligence.”); Hernandez v. Keane , 341 F.3d 137, 144 (2d Cir. Assistant Joseph Henderson, and Nurse Administrator D. 2003) (“A showing of medical malpractice is ... insufficient to Williamson ignored his medical needs. In his deposition, support an Eighth Amendment claim unless the malpractice plaintiff provided greater detail concerning this claim, involves culpable recklessness.”); Morris v. Hoke , No. 87- testifying that defendants (1) refused to assess and treat his CV-7812, 1992 WL 310792, at *2 (S.D.N.Y. Oct. 21, 1992) injuries after the excessive force incident; (2) failed to provide (“[T]he [plaintiff's allegations] would underlie, at best, a state medication and medical supplies including Depends and urine claim of negligence or medical malpractice, not cognizable bags; and (3) failed to repair his hearing aids. 18 See Dkt. No. under 42 U.S.C.1983.”). 45-3 at 77, 97-105. Defendants assert that plaintiff refused to allow medical staff to administer blood tests and declined to With regard to plaintiff's allegations related to his hearing attend scheduled appointments.

aids, the record reveals that on December 17, 2013, he attended a consultative appointment with an audiologist

Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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and was advised that his left hearing aid was cracked and n. 11 (S.D.N.Y. 2007) (“Plaintiff's complaint contained no needed repair. Dkt. No. 46 at 106. Plaintiff refused to pay allegations from which it can be inferred that defendants the cast of the needed repair. Id. The record does not created, or allowed to continue, an unconstitutional policy.”); contain any evidence related to plaintiff's right hearing aid, Graham v. Poole , 476 F.Supp.2d 257, 261 (W.D.N.Y. 2007) and specifically whether it was functional at that time. On (“Plaintiff's conclusory allegation that Poole failed to provide December 30, 2013, plaintiff received new batteries for his him with adequate medical care is also insufficient to state a hearing aids. Id. at 95. Even assuming that plaintiff was claim.”). deprived of his hearing aids for any period of time, his claim is deficient based upon his failure to provide any *17 In sum, plaintiff alleges deliberate indifference against evidence establishing that he was unable to function due Walsh defendants in only a skeletal and conclusory fashion to the deprivation. See Alster v. Goord , 745 F.Supp.2d 317, and, for the most part, fails to point to specific deprivations 334 (S.D.N.Y. 2010) (finding that the plaintiff's allegations that could rise to a level of constitutional significance. Aside related to uncomfortable or inadequate hearing aids failed from plaintiff's vague and unsupported deposition testimony, to rise to the level of a constitutional violation) (citations there is no evidence that defendants were deliberately omitted); see also Fate v. Goord , 2012 WL 3104884, at *7 indifferent to plaintiff's medical needs. Accordingly, I (S.D.N.Y. July 31, 2012) (holding that the “short waiting recommend that this portion of defendants' motion be granted, period” before receiving hearing aids cannot be considered and that plaintiff’s medical indifference claims against deliberate indifference). defendants Mara, Trabout, Dutch, Peterson, Henderson and

D. Williamson be dismissed. In further support of his inadequate medical care claim, plaintiff recites facts related to the conditions of his cell. Plaintiff claims that the cell did not have a bed, his

b. Claims Against Upstate Defendants toilet was padlocked, he was denied meals, and he was forced to sleep on the floor. Dkt. No. 45-3 at 73-76. Even

Plaintiff alleges that defendants Mandalaywala, Dr. Schroyer, assuming these conditions existed, the evidence does not Kowalachuk, Smith, Michaels, and Nurse M. Williamson establish that plaintiff's medical conditions deteriorated due were also deliberately indifferent to his serious medical to those conditions. Moreover, this portion of his claim is needs, in violation of the Eighth Amendment. Specifically, also subject to dismissal since the record before the court plaintiff claims that those defendants (1) failed to treat his does not establish that any named defendant was personally MRSA infection and wounds; (2) improperly discontinued responsible for the conditions of plaintiff's cell, or that any medications; (3) confiscated plaintiff's wheelchair and denied named defendant possessed the authority to remedy those his request for a suitable replacement; (4) attempted to conditions. See Savage v. Brue , No. 05-CV-0857 (GLS/ provide a catheter that would have caused infection; and GHL), 2007 WL 3047110, at *12 (N.D.N.Y. Oct. 18, 2007) (5) failed to provide examinations or consultations with (holding that cell conditions were immaterial to Eighth specialists. Dkt. No. 29 ¶65, 104, 105; Dkt. No. 45-3 at Amendment medical claim because the complaint lacked 159-167; Dkt. No. 54-2 at 10-11. Defendants contend that allegations establishing that defendants were involved in plaintiff's care at Upstate was appropriate, and that he was decisions related to supplies or suggesting that the conditions non-compliant with his treatment. Dkt. No. 45-16 at 11-15. contributed to plaintiff's serious medical condition). Having carefully reviewed the record, I conclude that no The evidence now before the court also fails to disclose the reasonable factfinder could find that the Upstate medical precise involvement on the part of defendant D. Williamson defendants were deliberately indifferent to plaintiff's medical in the alleged deprivation of treatment, and lacks factual needs. Between December 2013 and April 2014, plaintiff assertions plausibly establishing that this defendant both was treated by prison medical staff on virtually a daily knew of and disregarded an excessive risk to plaintiff's basis for a variety of ailments. Plaintiff received vitamins, health or safety. Plaintiff vaguely testified that D. Williamson dietary supplements, and various medications to treat his skin “failed to provide adequate medical care.” Dkt. No. 45-3 at disorder, ulcer, overactive bladder, depression, and anxiety. 183-84. This conclusory allegation is insufficient to establish Dkt. No. 46 at 35, 42, 51, 59, 64, 94-95. Plaintiff also defendant D. Williamson's role in the medical indifference received dressing supplies including gauze, sleeves, tubular alleged. See Schwartz v. Dennison , 518 F.Supp.2d 560, 573 dressing, Bacitracin and Clobetasol ointment. See generally Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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Dkt. No. 46. Plaintiff was examined by Dr. Schroyer, as indifference claim against the Upstate defendants is therefore well as members of the nursing staff, and was referred to also subject to dismissal as a matter of law. a hospital to have his catheter reinserted. Dkt. No. 29-1 at 62-69. Plaintiff received a permit for a wheelchair, braces,

F. Due Process Claims Against Defendants Tousignant and knee sleeves. Plaintiff's dissatisfaction with his treatment, and Michaels type of wheelchair, and defendants' choice of a latex catheter Plaintiff claims that defendant Tousignant issued a rather than a silicone catheter falls short of establishing that deprivation order confiscating Cole’s property, bed, braces defendants acted with a sufficiently culpable state of mind. and “anything in his cell” in violation of his Fourteenth Amendment rights. 19 Dkt. No. 45-3 at 119. Plaintiff also

Addressing the discontinuance of medications, defendants explain that the decision to halt plaintiff's medications was alleges that defendant Michaels issued an order depriving based upon his non-compliance with staff directives and his plaintiff of the use of his wheelchair without affording plaintiff his due process rights. Dkt. No. 29 ¶ 58; Dkt. No. continued refusal to accept medication. Plaintiff's deliberate 45-3 at 125. indifference claims are undermined by his admission that he was not denied meals or medication, but rather, refused for fear it “would cause him more harm.” Dkt. No. 54-2 19

Defendants have not submitted any argument in at 10; see Mortimer Excell v. Fischer , No. 08-CV-0945 response to this claim. (DNH/RFT), 2009 WL 3111711, at *5 (N.D.N.Y. Sept. 24, In the prison context, it is will established that the alleged 2009) (dismissing the plaintiff's Eighth Amendment claim destruction or loss of a plaintiff's personal property will not because the plaintiff was provided with food but refused support a claim redressable under § 1983, provided that to eat it for fear that it was drugged). Even assuming adequate post-deprivation remedies are available. Hudson v. that defendants acted improperly in discontinuing plaintiff's Palmer , 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 medication, at most the error constitutes negligence, which (1984). The deprivation of property does not constitute a is not actionable under 1983. Johnson v. Connolly, No. 07- Fourteenth Amendment violation because New York provides CV-0158 (LEK/GHL), 2008 WL 724167, at *5 (N.D.N.Y. an adequate post-deprivation remedy in the Court of Claims March 17, 2008) (holding that allegations that medications with respect to property claims by prisoners. Koehl v. were improperly discontinued amounts to negligence, not Dalsheim , 85 F.3d 86, 88 (2d Cir. 1996). deliberate indifference). Here, plaintiff does not allege a destruction or loss of any *18 As to plaintiff's claim that he should have been referred personal property. Instead, he claims that he was temporarily to a urologist, a plaintiff's disagreement over the decision deprived of access to his personal property and wheelchair. of whether an evaluation by a specialist is warranted in any Even assuming the record supported plaintiff's allegations, particular case is the very kind of treatment decision which, there was an adequate post-deprivation remedy available to courts have recognized, does not alone support a cognizable the plaintiff before the New York State Court of Claims. See claim under the Eighth Amendment. Estelle , 429 U.S. at 107, Davis v. New York , 311 Fed.Appx. 397, 400 (2d Cir. 2009). 97 S.Ct. at 293; Chance , 143 F.3d at 703. There is no evidence Accordingly, I recommend dismissal of plaintiff's due process in the record to suggest that an examination by a urologist was claims related to his deprivation of property. medically necessary, or that any different treatment would have eventuated as a result of such a visit. Simply stated, plaintiff's disagreement regarding the need for referral to a

G. Due Process Claims Associated With the October 29, urologist does not state a claim against the defendants for 2013 Misbehavior Report deliberate indifference to his serious medical needs. Plaintiff claims that defendants Corey and Bullis deprived him of due process when presiding over his disciplinary

In sum, the record lacks any facts demonstrating that hearings. 20 Dkt. No. 29 at ¶103. Defendants argue that defendants' conduct exposed plaintiff to an excessive risk plaintiff's due process claim is deficient as a matter of law. of harm, or that his condition deteriorated because of the Dkt. No. 45-16 at 23-26. defendants' actions. Accordingly, no reasonable factfinder could conclude that the Upstate defendants were deliberately indifferent to plaintiff's medical needs. Plaintiff's medical Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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20 confinement, however, a court may not be required to undergo

Plaintiff also asserts supervisory claims against a detailed analysis of these considerations. Arce , 139 F.3d at Prack related to his disciplinary hearings. Those 336; Hynes , 143 F.3d at 658. claims are discussed below. See pp. ___ – ____, post.

21 In cases where there is a factual dispute concerning To successfully state a claim under 42 U.S.C. § 1983 for a the conditions or duration of confinement, denial of procedural due process, a plaintiff must show that however, it may nonetheless be appropriate to he 1) possessed an actual liberty interest, and 2) was deprived submit those to a jury for resolution. Colon v. of that interest without being afforded sufficient procedural Howard , 215 F.3d 227, 230-31 (2d Cir. 2000); safeguards. See Tellier v. Fields , 280 F.3d 69, 79-80 (2d Cir. Sealey v. Giltner , 197 F.3d 578, 585 (2d Cir. 1999). 2000) (citations omitted); Hynes v. Squillace , 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin , 91 F.3d 349, 351-52 As to the duration of the disciplinary segregation, restrictive (2d Cir. 1996). confinement of less than 101 days, on its own, does not

generally rise to the level of an atypical and significant hardship. Davis , 576 F.3d at 133. Accordingly, when the duration of restrictive confinement is less than 101

1. Liberty Interest days, proof of “conditions more onerous than usual” is required. Davis , 576 F.3d at 133 (citing Colon , 215 F.3d at *19 As to the first element, in Sandin v. Conner , 515 U.S. 232-33 n.5). In those circumstances the court must examine 472 (1995), the Supreme Court determined that, to establish “the [actual] conditions of [the plaintiff's] confinement a liberty interest in the context of a prison disciplinary ‘in comparison to the hardships endured by prisoners in proceeding resulting in removal of an inmate from the general general population, as well as prisoners in administrative prison population, a plaintiff must demonstrate that (1) the and protective confinement, assuming such confinements are state actually created a protected liberty interest in being free imposed in the ordinary course of prison administration.’ from segregation and (2) the segregation would impose an ” Davis , 576 F.3d at 134 (quoting Welch v. Bartlett , 196 “atypical and significant hardship on the inmate in relation F.3d 389, 392-93 (2d Cir. 1999)). On the other hand, the to the ordinary incidents of prison life.” Sandin , 515 U.S. at Second Circuit has found that disciplinary segregation under 483-84; Tellier , 280 F.3d at 79-80; Hynes, 143 F.3d at 658. ordinary conditions of more than 305 days rises to the level The prevailing view in this circuit is that, by its regulatory of atypicality. See Colon , 215 F.3d at 231 (“Confinement in scheme, the State of New York has created a liberty interest in normal SHU conditions for 305 days is in our judgment a remaining free from disciplinary confinement, thus satisfying sufficient departure from the ordinary incidents of prison life the first Sandin factor. See, e.g., LaBounty v. Coombe , No. 95- to require procedural due process protections under Sandin .”). CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin , No. 94-CV-0985, 2001 WL 118598, at

Defendants concede that as a result of the two disciplinary *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.). Accordingly, I must hearings and determinations, plaintiff served 170 days of next examine whether the allegations related to the conditions SHU disciplinary confinement, but allege that he was not of plaintiff's SHU confinement rise to the level of an atypical deprived of a liberty interest because during that time, “he and significant hardship under Sandin . was offered daily medical attention and meals, which he claims to have refused to eat because he did not ‘trust

Atypicality in a Sandin inquiry is normally a question of it.’ ” Dkt. No. 45-16 at 24. The record confirms that law. 21 Colon v. Howard , 215 F.3d 227, 230-31 (2d Cir. plaintiff spent 170 days in an SHU setting. Dkt. No. 29. 2000); Sealey v. Giltner , 197 F.3d 578, 585 (2d Cir. 1999). Because this period of disciplinary confinement falls between “[W]hether the conditions of a segregation amount to an 101 and 305 days, in order to determine whether plaintiff ‘atypical and significant hardship’ turns on the duration of suffered an atypical hardship, and therefore has been deprived the segregation and a comparison with the conditions in the a constitutional significant liberty interest, the court is general population and in other categories of segregation.” required “to articulate specific findings of the conditions Arce v. Walker , 139 F.3d 329, 336 (2d Cir. 1998) (citing of the imposed confinement relative to the ordinary prison Brooks v. DiFasi , 112 F.3d 46, 48-49 (2d Cir. 1997)). In cases conditions[.]” Reynoso v. Selsky , 292 Fed.Appx. 120, 123 (2d involving shorter periods of segregated confinement where Cir. 2008). While plaintiff's testimony from his deposition the plaintiff has not alleged any unusual conditions of that suggests that the conditions of his SHU confinement were Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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extraordinary, 22 defendants have not adduced any evidence with respect to the conditions of ordinary prison life in support

a. False Misbehavior Reports of their motion. Because this evidence is lacking, the court cannot undertake the type of specific fact-finding required Plaintiff alleges that defendants Corey and Bullis violated his due process rights when they conducted hearings based upon to determine, on a motion for summary judgment, whether a false misbehavior report. Dkt. No. 54-2 at 25. The mere plaintiff suffered an atypical and significant hardship during allegation of the issuance of a false misbehavior report to his disciplinary confinement. See Reynoso , 292 Fed.Appx. at 123 (reversing the district court where it had neglected “to an inmate is not cognizable under section 1983. See Boddie v. Schneider , 105 F.3d 857, 862 (2d Cir. 1997) (“[A] prison articulate findings as to why the 150-day total sentence was inmate has no general right to be free from being falsely not ‘atypical and significant’ ” and commenting that “[s]uch a accused in a misbehavior report.”). Similarly, an inmate does determination is anything but simple, and cannot be resolved summarily”). For this reason, I have assumed, for purposes not possess a due process right to be free from having a hearing officer rely upon an alleged false misbehavior of this report, that plaintiff was deprived of a liberty interest report at a disciplinary hearing. Freeman v. Rideout, 808 during the course of his 170 day SHU confinement, and will F.2d 949, 951 (2d Cir. 1986), cert. denied , 485 U.S. 982, proceed to analyze whether defendants provided plaintiff with constitutionally adequate safeguards in connection with his 108 S.Ct. 1273 (1988) (“It is well established that in the absence of other aggravating factors, an inmate enjoys no disciplinary hearings.

constitutional right against the issuance of a false misbehavior report.”). This general rule recognizes that an inmate's 22 Plaintiff testified that, while confined in the SHU, procedural due process rights are adequately safeguarded by he was denied showers, food, and water. Dkt. No. the opportunity to challenge and present evidence to rebut the 45-3 at 145-150. Plaintiff also claimed that he false accusations at a disciplinary hearing. Freeman , 808 F.2d remained on the “floor the whole time.” Id. at 147. at 953. 2. Sufficiency of Process Associated with the October 29, 2013 Misbehavior Report and Ensuing Disciplinary Hearing b. November 2013 Hearing *20 The procedural safeguards to which a prison inmate is i) Whether Plaintiff’s Claims Relating To His entitled before being deprived of a constitutionally significant First Disciplinary Hearing Are Negated By liberty interest are well-established, the contours of the requisite protections having been articulated by the Supreme The Reversal And Subsequent Second Hearing Court in Wolff v. McDonnell , 418 U.S. 539, 564-67, 94 S.Ct.

Defendants claim that the issue of whether plaintiff's due 2963, 2978-80, 41 L.Ed.2d 935 (1974). Under Wolff, the process rights were violated during the first hearing is a nullity constitutionally-mandated due process requirements include due to the subsequent reversal of the resulting determination (1) written notice of the charges; (2) the opportunity to appear and commencement of a second hearing. Dkt. No. 45-16 at at a disciplinary hearing and present witnesses and evidence, 25. In support of that position, they rely upon the Second subject to legitimate safety and penological concerns; (3) a Circuit's decisions in Horne v. Coughlin , 155 F.3d 26 (2d Cir. written statement by the hearing officer explaining his or her 1998). The underlying facts in Horne are strikingly similar decision and the reasons for the action being taken; and (4) to those in the case at bar. In that case, a first disciplinary in some circumstances, the right to assistance in preparing a hearing was conducted on December 19, 1984, resulting in a defense. Wolff , 418 U.S. at 564-67, 94 S.Ct. at 2978-80; see finding of guilt and a sentence of one year of SHU disciplinary also Eng v. Coughlin , 858 F.2d 889, 897-98 (2d Cir. 1988). confinement. Horne , 155 F. 3d at 28. That determination In order to pass muster under the Fourteenth Amendment, a was ultimately reversed in May 1985. Id. A second hearing hearing officer's disciplinary determination also must garner was conducted on May 9, 1985. Id. At the conclusion of the support of at least “some evidence.” Superintendent v. that hearing, plaintiff was again found guilty and sentenced Hill , 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). to serve three hundred days in SHU confinement, although that penalty was administratively modified to six months of SHU confinement. Id. Plaintiff in that case was credited with

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all of the time served as a result of the first hearing, and claims that defendant Corey precluded him from questioning was released thirteen days after the modification on May 28, witnesses and improperly removed him from the first hearing. 1985, after having served six months of SHU confinement, Dkt. No. 29 ¶103; Dkt. No. 54-2 at 26-27. Plaintiff argues including the time spent as a result of the first hearing. 23 that Hearing Officer Corey's failure to call an inmate, nurses,

and Imam Muhammad violated his Fourteenth Amendment Id. Under these circumstances, the Second Circuit concluded rights. Id. Plaintiff claims that Muhammad was present in that it was unnecessary to address plaintiff's procedural due his room after the assault, and would have offered testimony process claims arising out of the first hearing since “it became concerning his injuries. Dkt. No. 45-3 at 109-110. a nullity.” Id. at 31. 23

That time spent in disciplinary confinement as a aa. Right to Call Witnesses result of the first hearing was credited to the penalty ultimately dispensed after the second hearing is

Among the due process violations cited by plaintiff in support made clear in a footnote of the court's decision in of his procedural due process claim with regard to the Horne , in which it stated: first hearing is a deprivation of his right to call witnesses. It should be clear from the discussion in the While the Fourteenth Amendment guarantees an inmate's dissenting opinion that Horne did not spend right to call witnesses and present evidence in his defense five months of administrative confinement before being deprived of a cognizable liberty interest, that waiting for his second hearing. The 5 – month right is not without bounds; the law requires only that an period he spent in SHU pursuant to his first inmate be permitted to present witness testimony only where disciplinary sentence (before it was voided), “permitting him [or her] to do so will not be unduly hazardous and the few days spent thereafter awaiting the to institutional safety or correctional goals.” Hill v. Selsky , second hearing, were all credited to the service 487 F.Supp.2d 340, 342 (W.D.N.Y. 2007) (citing Wolff , 418 of his eventually six – month sentence. As a U.S. at 566, 94 S.Ct. at 2979). “[A] prisoner's request for a result his 6 months were completed and he witness can be denied on the basis of irrelevance or lack of was released from SHU thirteen days after the necessity.” Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 (2d six – month sentence was imposed on May Cir. 1991). “Prison officials may be required to explain, in a 28, 1985 [sic]. Thus, the six months to which limited manner, the reason why witnesses were not allowed Horne was ultimately sentenced was the only to testify.” Ponte v. Real , 471 U.S. 491, 497 (1985). “The time he spent in the SHU. burden is not upon the inmate to prove the official's conduct Horne , 155 F. 3d at 31, n. 4. was arbitrary and capricious, but upon the official to prove *21 In this matter, as in Horne , the record establishes that the rationality of his position.” Fox v. Coughlin , 893 F.2d 475, plaintiff was confined in the SHU as a result of penalties 478 (2d Cir. 1990). imposed following the November 2013 hearing, and remained in SHU confinement until and after the second hearing

During the first hearing, defendant Corey permitted plaintiff commenced on March 20, 2014, at which he was again found to call defendants Peterson and Judway as witnesses. Dkt. guilty. Accordingly, based upon the Second Circuit's decision No. 45-9 at 42. On November 20, 2013, defendant Corey in Horne , it is unnecessary to determine whether plaintiff was completed the required Form 2176 with an explanation of afforded due process in connection with his first hearing, and his decision not to call RN Hart, RN Schram, and Imam his claims against defendant Corey are subject to dismissal on Muhammad as witnesses. Dkt. No. 29-1 at 22. Corey noted this basis. that Hart, Schram, and Muhammad did not witness the alleged assault, and were not involved in the incident that precipitated the hearing. Id. The fact that plaintiff was not present to execute the witness interview form reflecting the

ii) Plaintiff’s Arguments Regarding The First Hearing hearing officer’s denial of plaintiff’s request to call those three Even assuming arguendo that the plaintiff's first hearing witnesses does not give rise to a due process violation. 24 was not rendered a nullity, for purposes of the plaintiff's

“[A]s long as a hearing officer articulates a reason for not procedural due process claims, I will address his substantive calling a witness that is logically related to correctional goals, arguments. In connection with the first hearing, plaintiff due process does not require that he do so during the hearing.” Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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Brooks v. Rock , No. 11-CV-1171 (GLS/ATB), 2014 WL hearing, a hearing officer has discretion to order the inmate 1292232, at *29 (N.D.N.Y. Mar. 28, 2014) (citation omitted). removed, particularly if the prisoner has been warned that

continued unruly behavior may result in his expulsion.”); 24 Mims v. Ufland , No. 07 CIV. 1926, 2008 WL 2986497, at *5 Plaintiff does not dispute that he received the form. (S.D.N.Y. Aug. 1, 2008) (citations omitted) (holding that the While the record does not clearly establish when limited right to be present at the hearing is not absolute, and plaintiff received the form, he was provided with can be waived if the inmate engages in disruptive conduct). the form at some point, as is evidenced by the fact In this district, courts have reasoned that the Supreme Court's that it was annexed as an exhibit to his amended decision in Wolff affords an inmate the limited right to be complaint. Dkt. No. 29-1 at 22. physically present at disciplinary hearings in order to exercise *22 Defendant Corey's decision not to call the requested basic due process rights. Johnson v. Doling , No. 05 CV 376 witnesses was reasonable. It is clear from plaintiff's testimony (TJM/RFT), 2007 WL 3046701, at *8-9 (N.D.N.Y. Oct. 17, that those witnesses were not present during the alleged 2007) (citations omitted). That right is “necessarily be limited assault, and the record of plaintiff's injuries and treatment by penological interests;” however, the “per se denial of adequately addressed their scope and extent. See Wolff , 418 such right would undermine the requirement that disciplinary U.S. at 466 (citing “lack of necessity” as a proper ground for hearings be held ‘at a meaningful time and in a meaningful refusing to call a potential witness at a disciplinary hearing). manner.’ ” Id. (citing, inter alia Wolff , 418 U.S. at 566 Finally, a careful review of the record does not suggest that (stating “we must balance the inmate's interest ... against the result of plaintiff's hearing would have been any different the needs of the prison, and some amount of flexibility and had defendant Corey permitted these witnesses to testify. accommodation is required”)). See Lewis v. Murphy , No. 12-CV-0268 (NAM/CFH), 2014 WL 3729362, at *13 (N.D.N.Y. July 25, 2014) (holding that

Defendants contend that plaintiff was removed from the the plaintiff alleged that his counselor failed to interview hearing due to his “beligerent [sic] and disruptive” behavior. witnesses but did not show how this shortcoming prejudiced Dkt. No. 45-9 at 42-44. Plaintiff maintains that he was the results). improperly removed from the hearing because defendant Corey “didn't like the questions I was asking.” Dkt. No. 45-3 at 111. Plaintiff avers that he did not yell, or struggle but “conduct[ed] [himself] as they were conducting themselves.”

bb. Removal from Hearing Id. at 112. While a hearing officer retains the right to remove Plaintiff claims that defendant Corey improperly ordered his a disruptive inmate based on safety concerns, see Ponte , removal from the hearing. Dkt. No. 54-2 at 26. Defendants 471 U.S. at 495, the evidence before the court does not contend that even if the court determines plaintiff's Fourteenth conclusively establish that plaintiff was disruptive during the Amendment rights were violated when excluded from the hearing. The transcript of that disciplinary hearing is not part hearing, defendant Corey is entitled to qualified immunity.

of the record before this court. Accordingly, there are genuine Dkt. No. 45-16 at 27. issues of fact as to whether plaintiff's due process rights were violated when defendant Corey removed him from the The Second Circuit has not conclusively resolved whether an disciplinary hearing. Having made that determination, I must inmate has a due process right to be present at disciplinary

turn to the issue of whether Corey is entitled to qualified proceedings, and district courts within the circuit have issued immunity with respect to this claim. varying opinions regarding the issue. See Vogelfang v. Capra , 889 F. Supp. 2d 489, 514 (S.D.N.Y. 2012) (“[T]his Court *23 “Qualified immunity shields government officials from finds it to be an open question in the Second Circuit whether

civil damages liability unless the official violated a statutory there is an independent right of a prisoner to be present at all or constitutional right that was clearly established at the times during a disciplinary hearing, or whether such a right time of the challenged conduct.” Reichle v. Howards , 132 to be present exists only insofar as it is required to enable S.Ct. 2088, 2093 (2012); see also Pearson v. Callahan , 555 the prisoner to exercise his or her rights to call witnesses

U.S. 223, 231 (2009); Sudler v. City of N.Y. , 689 F.3d 159, or present documentary evidence.”); Clark v. Dannheim , No. 174 (2d Cir. 2012). The law of qualified immunity seeks to 02-CV-6525L, 2011 WL 2973687, at *1 (W.D.N.Y. July strike a balance between “the need to hold public officials 21, 2011) (collecting cases) (“[W]here an inmate disrupts a accountable when they exercise power irresponsibly and the Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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need to shield officials from harassment, distraction, and him to believe that his conduct did not violate plaintiff's liability when they perform their duties reasonably.” Pearson, constitutional rights. As a threshold matter, at the time of 555 U.S. at 231. Government officials are shielded from the disciplinary hearing, “the contours” of the right, or liability by qualified immunity when making “reasonable limited right, of an inmate to be present at his disciplinary mistakes” concerning the lawfulness of their conduct. Sudler , hearing were not clearly established. Webb v. Selsky , No. 01- 689 F.3d at 174 (citing Saucier v. Katz , 533 U.S. 194, 206 CV-149S, 2008 WL 796179, at *7-8 (W.D.N.Y. Mar. 24, (2001), abrogated on other grounds by ( Pearson , 555 U.S. 2008). In any event, a person in defendant Corey's position 223)). Because qualified immunity is “an immunity from could have reasonably concluded that excluding plaintiff suit rather than a mere defense to liability,” Mitchell v. from the hearing would not violate any clearly established Forsyth , 472 U.S. 511, 526 (1985), the Supreme Court has constitutional right. Accordingly, I recommend a finding that “repeatedly ... stressed the importance of resolving immunity defendant Corey is entitled to qualified immunity. questions at the earliest possible stage in the litigation.” Pearson , 555 U.S. at 231 (quoting Hunter v. Bryant , 502 U.S. 224, 227 (1991) (per curiam)).

c. March 20, 2014 Hearing The determination of whether a government official is *24 Plaintiff contends that the second disciplinary hearing, immune from suit is informed by two factors. Doninger v. which was conducted on March 20, 2014 by defendant Steven Niehoff , 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the Bullis, was untimely as it did not commence within the inquiry is informed by whether the facts alleged, taken in a fourteen days prescribed by the decision on appeal and 7 light most favorable to the plaintiff, show that the conduct N.Y.C.R.R. § 251-5.1. Dkt. No. 54-2 at 25, 30. It is well- at issue violated a statutory or constitutional right, and if established that the violation of a state regulation is not so, whether that right “was clearly established at the time of cognizable under 42 U.S.C. § 1983. Cusamano v. Sobek , 604 the challenged conduct.” Terebesi v. Torreso , 764 F.3d 217, F.Supp.2d 416, 482 (N.D.N.Y. 2009) (Suddaby, J.) (collecting 230 (2d Cir. 2014) (citing Reichle , 132 S.Ct. at 2093). The cases). Plaintiff's claim of undue delay is instead subject only Supreme Court has said that an officer's “conduct violates to overarching constitutional considerations, which require clearly established law when, at the time of the challenged only that the hearing be held within a “reasonable time” conduct, the contours of a right are sufficiently clear that and not within any prescribed number of days. Russell v. every reasonable official would have understood that what he Coughlin , 910 F.2d 75, 78 n. 1 (2d Cir. 1990) (“Federal is doing violates that right.” Ashcroft v. al-Kidd , 131 S.Ct. constitutional standards rather than state law define the 2074, 2083 (2011) (quotation marks and alterations omitted). requirements of procedural due process.”); Donato v. Phillips , “To this end, a plaintiff need not show a case ‘directly on No. 04-CV-1160, 2007 WL 168238, at *6 (N.D.N.Y. Jan. point, but existing precedent must have placed the statutory 18, 2007) (McAvoy, J.) (hearing that started nine days after or constitutional question beyond debate.’ ” Terebesi, 764 plaintiff's confinement in the SHU was reasonable). Here, F.3d at 230 (quoting al-Kidd , 131 S.Ct. at 2083). However, the undisputed record establishes that second hearing was “[e]ven where the law is ‘clearly established’ and the scope commenced one day beyond the allotted time. Plaintiff has of an official's permissible conduct is ‘clearly defined,’ the failed to produce any evidence suggesting that his procedural qualified immunity defense also protects an official if it was due process rights were violated by this brief delay. ‘objectively reasonable’ for him at the time of the challenged action to believe his acts were lawful.” Higazy v. Templeton ,

During his deposition, plaintiff claimed that defendant Bullis 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). refused to allow him to question witnesses and denied him This “objective reasonableness” part of the test is satisfied due process when the hearing officer called witnesses before if “officers of reasonable competence could disagree on [the plaintiff was brought into the room. Dkt. No. 45-3 at 114. legality of the defendant's actions].” Malley v. Briggs , 475 Plaintiff does not identify the witnesses in question or provide

U.S. 335, 341 (1986).

any argument related to the substance of the testimony. “It is not a violation of due process at a disciplinary hearing to take

In this instance, even assuming plaintiff is able to establish the testimony of a witness outside the presence of an inmate.” a constitutional violation, I recommend a finding that Kalwaskinski v. Morse , 201 F.3d 103, 109 (2d Cir. 1999) defendant Corey is entitled to qualified immunity based (citations omitted). “Nor does an inmate have a constitutional upon my conclusion that it was objectively reasonable for right of confrontation.” Id. (citations omitted). Accordingly, Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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I recommend that plaintiff's due process claims related to the protected conduct was a “substantial and motivating factor second disciplinary hearing be dismissed. to the adverse action taken by prison officials.” Bennett v.

Goord , 343 F.3d at 133, 137 (2d Cir. 2003). H. Retaliation *25 With respect to the third, causation element of a In their motion, defendants also seek dismissal of retaliation retaliation claim, several factors may be considered in claims asserted by the plaintiff. When prison officials take determining whether the requisite nexus exists between the adverse action against an inmate, motivated by the inmate's plaintiff's protected activity and a prison official's actions, exercise of a constitutional right, including the free speech including “(1) the temporal proximity between the protected provisions of the First Amendment, a section 1983 retaliation activity and the alleged retaliatory act; (2) the inmate's prior claim may be sustained. See Friedl v. City of N.Y. , 210 F.3d good disciplinary record; (3) vindication at a hearing on 79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will the matter; and (4) statements by the defendant concerning lie where the government takes negative action against an his ... motivation.” Jean-Laurent v. Lane , No. 11-CV-0186, individual because of his exercise of rights guaranteed by 2013 WL 600213, at *8 (N.D.N.Y. Jan. 24, 2013). While the Constitution or federal laws.”). The Second Circuit has the chronology of events may favor the finding of a cautioned, however, that, because of “the ease with which causal connection, a plaintiff may not rely upon temporal claims of retaliation may be fabricated, courts should examine proximity alone to defeat summary judgment. Faulk v. prisoners' claims of retaliation with skepticism and particular Fisher , 545 Fed.Appx. 56, 58 (2d Cir. 2013) (finding care.” Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995); that temporal proximity between protected conduct and accord, Davis v. Goord , 320 F.3d 346, 352 (2d Cir. 2013). an adverse action constitutes circumstantial evidence of retaliation). The evidence relating to the causal connection

To establish a claim under section 1983 for unlawful must be sufficient to support an inference that the protected retaliation, a plaintiff must prove that (1) he engaged in conduct played a substantial part in the adverse action. protected conduct, (2) the defendants took adverse action Baskerville v. Blot , 224 F.Supp.2d 723, 732 (S.D.N.Y. 2002). against him, and (3) there was a causal connection between the protected activity and the adverse action-in other words,

Plaintiff has asserted retaliation claims against defendants that the protected conduct was a “substantial or motivating Durante, Wagner, LoRusso, Sharma, Trabout, Mara, J. factor” in the prison officials' decision to take action against Henderson, P. Henderson, Tousignant, M. Williamson, Smith, the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Kumar, Schroyer, Kowalachuk, and Corey. Defendants argue Doyle , 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 that plaintiff cannot support retaliation claims with the F.3d 247, 251 (2d Cir. 2007). “[P]rison officials' conduct “speculative” assertion that those defendants were motivated, constitutes an ‘adverse action’ when it would deter a similarly in general, by plaintiff's litigious behavior. Defendants situated individual of ordinary firmness from exercising his contend that plaintiff's failure to cite to any specific or her constitutional rights.” Alicea v. Howell , 387 F.Supp.2d grievances or complaints as the basis for his retaliation claim 227, 237 (W.D.N.Y. 2005) (quoting Dawes v. Walker , 239 warrants an award of summary judgment. Dkt. No. 45-16 at F.3d 489, 492 (2d Cir. 2001)). 22-23. As to the first element of the plaintiff’s retaliation claim, it is well settled that the filing of grievances and lawsuits

1. Defendant Durante constitutes protected activity for purposes of a First Amendment retaliation analysis. See Johnson v. Eggersdorf ,

Plaintiff alleges that defendant Durante used excessive force 8 Fed.Appx. 140, 144 (2d Cir. 2001) (“It is undisputed that in retaliation for plaintiff filing grievances and a lawsuit. Dkt. retaliation by prison officials against an inmate for the filing No. 54-2 at 14. The record before the court contains evidence of a grievance can act as a deprivation of a constitutionally that plaintiff filed complaints in September 2010 and October protected right.”). Turning to the second element of the 2010 related to threats, harassment, and assaults involving retaliation claim, plaintiff must establish that he suffered an Durante. Dkt. No. 29-1 at 1. In September 2010, plaintiff adverse action. See Thaddeus-X v. Blatter , 175 F.3d 378, filed a complaint in this district against “DOCS” and various 398 (6th Cir. 1999). To establish the requisite connection employees related to his confinement at Mohawk C.F. 25 between protected speech and adverse action, in order to See Cole v. New York State Dep't of Corr. Servs. , No. 10- satisfy the third element, the plaintiff must prove that the Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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CV-1098 (NAM/TWD) (Dkt. No. 1) (“ Cole I ”). On March 23, which, if true, strongly suggest that he was motivated to 2011, plaintiff's amended complaint in that case was accepted assault plaintiff for filing the lawsuit, these circumstances for filing. Id. (Dkt. No. 16). In his amended complaint, present genuine issues of material fact concerning the nexus plaintiff claimed, inter alia , that defendant Durante retaliated element of the retaliation test, thereby precluding the entry of against him and violated his Eighth Amendment rights with summary judgment in connection with plaintiff's retaliation harassment, threats, and excessive force claims arising from claim. See Roland v. McMonagle , No. 12-CV-6331, 2015 assaults that occurred in September 2010 and October 2010. WL 5918179, at *6 (S.D.N.Y. Oct. 9, 2015) (finding an Id. (Dkt. No. 16 ¶70, 74). On April 21, 2011, Durante issue of fact as to retaliation despite the gap in time between acknowledged service of the amended complaint in that the protected conduct and alleged attack as the plaintiff action. Id. (Dkt. No. 28). Plaintiff subsequently forwarded presented evidence that the defendants were aware of the a letter to defendant Superintendent Paul M. Gonyea on complaints and mocked him for filing grievances during the July 16, 2012, accusing defendants LoRusso and Durante attack). For this reason, I recommend against the entry of of harassment. Dkt. No. 29-1 at 7-10. Based upon these summary judgment dismissing plaintiff's retaliation claim circumstances, I find that plaintiff engaged in protected against defendant Durante. conduct with the filing of complaints, grievances, and a lawsuit involving defendant Durante.

2. Defendant LoRusso 25 The DOCCS was formerly known as the As it relates to defendant LoRusso, the record before the Department of Correctional Services, or “DOCS.” court does not contain any evidence that plaintiff filed a As to the second element of the plaintiff’s retaliation claim, it grievance against defendant LoRusso prior to the October is clear that “an assault by corrections officers is sufficient to 2013 incident, and LoRusso was not a named defendant in ‘chill a person of ordinary firmness from continuing to engage Cole I . For this report, I assume that plaintiff engaged in in his First Amendment activity.’ ” 26 Rivera v. Goord , 119 protected conduct, as it relates to defendant LoRusso, based F.Supp.2d 327, 339-40 (S.D.N.Y. 2000). While defendants do upon the July 2012 letter to defendant Gonyea. What is not present any further arguments in support of dismissing lacking, however, are any allegations of fact that connect plaintiff's retaliation claims, implicit in their motion is the the letter and the October 2013 incident. Plaintiff cannot suggestion that the record lacks evidence to establish the rely solely upon the temporal proximity of the complaint requisite nexus between the protected conduct and adverse and the alleged acts of misconduct by defendant LoRusso action that is, that the protected conduct was a “substantial” to survive summary judgment. Temporal proximity alone is or “motivating factor” in defendant Durante's decision to use insufficient to carry plaintiff's burden of proof beyond the force against plaintiff. pleading stage. Ethier v. City of Cohoes , No. 02-CV-1584, 2006 WL 1007780, at *7 (N.D.N.Y. Apr. 18, 2006) (McAvoy,

26 S.J.) (citing cases); Freeman v. Goord , No. 02 Civ. 9033, 2005 In their motion, defendants do not dispute that WL 3333465, at *7 (S.D.N.Y. Dec. 7, 2005). Moreover, the plaintiff suffered adverse actions. thirteen months that elapsed between the alleged protected *26 Plaintiff asserts that immediately before being conduct, in July 2012, and the October 2013 incident, without assaulted by defendant Durante, the officer stated, “Happy more is insufficient to support a finding of the requisite nexus. Anniversary” in reference to prior assaults and a lawsuit that See, e.g., Nicastro v. N.Y. City Dep't of Design & Constr. , resulted from those assaults. Dkt. No. 45-3 at 30. Plaintiff 125 Fed.Appx. 357, 358 (2d Cir. 2005) (concluding that the also testified that defendant Durante told him that the assault plaintiff could not, at the summary judgment stage, establish was “payback” for grievances. Dkt. No. 45-3 at 54. While even a prima facie case of retaliation where the adverse plaintiff has offered proof of his complaints and the filing employment action occurred “almost ten months after” the of a lawsuit against Durante, the gap between the protected plaintiff engaged in protected conduct and there was no other conduct asserted and the defendant's alleged retaliatory act evidence of causation); Figueroa v. Johnson , 109 F. Supp. is tenuous. See Butler v. Raytel Med. Corp. , 150 Fed.Appx. 3d 532, 552 (E.D.N.Y. 2015). Accordingly, I recommend 44, 47 (2d Cir. 2005) (holding that a one year gap between that plaintiff's retaliation claim against defendant LoRusso be complaint and adverse employment action is insufficient to dismissed support an inference of a causal relationship). However, when coupled with the statements attributed to Durante, Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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lawsuit. The evidence now before the court fails to establish a connection between these defendants and plaintiff's grievance

3. Defendants Sharma, Trabout, Mara, J. Henderson, and lawsuit. Simply stated, the record is devoid of any P. Henderson, Tousignant, M. Williamson, evidence from which a reasonable factfinder could conclude Smith, Kumar, Schroyer, and Kowalachuk that these defendants retaliated against plaintiff for the filing

of grievances and a lawsuit. Plaintiff also claims that defendants Sharma, Trabout, Mara, J. Henderson, P. Henderson, Tousignant, M. Williamson,

27 Smith, Kumar, Schroyer, and Kowalachuk retaliated against The record contains a copy of a CORC decision him when they confiscated his wheelchair and hearing aids, dated February 20, 2013, resolving a grievance refused to provide Depends, pajamas, or soap, failed to treat filed on July 26, 2012. Dkt. No. 29-1 at 11. The his MRSA infection, and were deliberately indifferent to his names of the Walsh medical staff and corrections medical needs. Dkt. No. 29 at ¶105; Dkt. No. 45-3 at 174. officers identified in the grievance were redacted, Plaintiff asserts that their retaliatory conduct was motivated however, and the record does not contain a copy of by plaintiff's prior grievances and lawsuit. the original grievance. Based upon the record before the court, no reasonable factfinder could conclude that plaintiff suffered any 4. Defendants Wagner and Corey significant adverse action. While, plaintiff was dissatisfied the

With regard to defendants Wagner and Corey, plaintiff has medical treatment received from prison officials, the record failed to adduce any facts indicating that he engaged in establishes a willingness on defendants' part to respond to protected conduct as it relates to these two defendants. plaintiff's medical needs. Moreover, as was discussed in depth The grievances at issue did not involve these defendants, above, plaintiff was not denied adequate or timely medical and plaintiff has failed to offer any facts indicating these attention. Under these circumstances plaintiff did not suffer defendants knew that he had engaged in protected conduct. any adverse action as a result of defendants' medical treatment Indeed, plaintiff testified that he never saw defendant Wagner and thus, as a matter of law, cannot sustain a retaliation claim before the day of the alleged assault, and never filed any based upon that treatment. grievance against defendants Corey or Wagner. Dkt. No. 45-3 at 48-49; 120-121.

*27 I note, moreover, that even assuming plaintiff suffered any negative consequences from defendants' medical

Plaintiff claims that defendant Corey was aware of his prior treatment, he has not cited to any evidence which grievances and complaints regarding harassment based upon would support the requisite nexus between his protected his position as Deputy Superintendent of Security. This conduct and the adverse action. On July 26, 2012, contention, however, is unsupported by the record or any plaintiff filed a grievance (MHK-12773-12) complaining of competent evidence, and instead appears to be the product inadequate medical treatment, harassment, food tampering, of sheer surmise on plaintiff’s part. Because the record and conspiracy. 27 Id. at 11. The record also establishes that contains no evidence from which a reasonable factfinder plaintiff filed grievances in July 2012 and November 2013 could conclude that there exists a causal connection between related to his medical care at Walsh. Dkt. No. 29-1 at 11; Dkt. plaintiff's grievances, complaints and lawsuit and adverse No. 45-9 at 9, 11. Plaintiff also filed numerous grievances action by defendant Wagner or defendant Corey, I recommend related to his medical care at Upstate. Id. at 50, 51, 57, 96. that the court grant this portion of defendants' motion and However, the record does not contain any proof from which a dismiss plaintiff's retaliation cause of action as against these reasonable factfinder could conclude that any action by these two defendants. defendants was motivated by plaintiff's filing of grievances or the commencement of Cole I . These defendants were not named as defendants in Cole I , and are not referenced

I. Personal Involvement/Supervisory Liability anywhere in plaintiff's amended complaint in that action. See Plaintiff asserts claims against defendants Judway, Upstate Cole I (Dkt. No. 16). There is no evidence of any connection Deputy Superintendent of Administration Sandra Danforth, between these defendants and defendant Durante or the prior Sharma, Gonyea, Prack, and DOCCS Acting Commissioner grievances nor, indeed, is there any record evidence that these Anthony Annucci. Those claims appear to be based solely defendants were even aware that plaintiff filed grievances or a upon their supervisory positions and plaintiff's contention Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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that those defendants were aware of ongoing constitutional In the face of defendants' summary judgment motion, in violations and failed to prevent them from continuing. See, which they assert the insufficiency of plaintiff’s allegations e.g. Dkt. No. 29 at ¶102; Dkt. No. 54-2 at 18-19; Dkt. No. 45-3 against the aforementioned supervisory defendants, plaintiff at 122, 159, 168, 170. Plaintiff also maintains that defendant must offer evidence which would implicate their personal Annucci failed to transfer him out of Walsh after plaintiff involvement in the constitutional violations. settled his prior lawsuit. Dkt. No. 54-2 at 12. Defendants argue that the record before the court fails to establish their

1. Defendant Judway involvement in any constitutional violations. Plaintiff claims that defendant Judway was personally involved in the use of force incident, and cites to Judway's

“Personal involvement of defendants in alleged constitutional testimony during the November 2013 disciplinary hearing as deprivations is a prerequisite to an award of damages under support for that allegation. Plaintiff maintains that Judway [42 U.S.C.] 1983.” Wright v. Smith , 21 F.3d 496, 501 (2d testified that he authorized defendants Durante and Wagner Cir. 1994) (citing Moffitt v. Town of Brookfield , 950 F.2d to “get Cole by any means necessary.” Dkt. No. 45-3 at 880, 885 (2d Cir. 1991)); McKinnon v. Patterson , 568 F.2d 66. Unfortunately, the record now before the court does 930, 934 (2d Cir. 1977). As the Supreme Court has noted, a not contain either a transcript from that hearing or an defendant may only be held accountable for his own actions affidavit from defendant Judway. Though admittedly tenuous, under section 1983. See Ashcroft v. Iqbal , 556 U.S. 662, assuming there was a constitutional violation related to the 683 (2009) (“[P]etitioners cannot be held liable unless they use of force incident, it is conceivable that a reasonable themselves acted on account of a constitutionally protected factfinder could credit plaintiff’s claim and conclude that characteristic.”). In order to prevail on a section 1983 cause defendant Judway was personally involved. This could of action against an individual, a plaintiff must show “a suffice to potentially support a finding of the requisite tangible connection between the acts of a defendant and the personal involvement on the part of defendant Judway to injuries suffered.” Bass v. Jackson , 790 F.2d 260, 263 (2d support a finding of liability against him. For this reason, I Cir. 1986). “To be sufficient before the law, a complaint have recommended a finding that plaintiff has raised genuine must state precisely who did what and how such behavior questions of material fact regarding defendant Judway's is actionable under law.” Hendrickson v. U.S. Attorney Gen. , personal involvement, sufficient to avoid summary judgment No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, on this basis. 1994). *28 It is well-established that individuals who are sued in their capacities as supervisors, cannot be liable for damages

2. Defendant Gonyea under section 1983 solely by virtue of being a supervisor. Plaintiff alleges that defendant Gonyea received notice that See Richardson v. Goord , 347 F.3d 431, 435 (2d Cir. 2003)

defendants Durante and LoRusso were threatening and (“[L]iability ... cannot rest on respondeat superior.”); Wright , harassing plaintiff in July 2012. Defendants' motion does not 21 F.3d at 501. To establish responsibility on the part of a contain any declaration or affidavit from defendant Gonyea. supervisory official for a civil rights violation, a plaintiff must Rather, defendants summarily state, without reference to the demonstrate that the individual (1) directly participated in

July 2012 letter, that Gonyea is being sued solely due to the challenged conduct; (2) after learning of the violation his position in the prison hierarchy. The court finds that through a report or appeal, failed to remedy the wrong; (3) defendants have failed to sustain their initial burden of created or allowed to continue a policy or custom under proving that there are no material issues of fact with respect to which unconstitutional practices occurred; (4) was grossly

Gonyea's personal involvement. Accordingly, I recommend negligent in managing the subordinates who caused the defendants' motion with respect to defendant Gonyea be unlawful event; or (5) failed to act on information indicating denied. that unconstitutional acts were occurring. Iqbal v. Hasty , 490 F.3d 143, 152-53 (2d Cir. 2007), see also Richardson , 347 F.3d at 435; Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995); Wright , 21 F.3d at 501.

3. Defendant Prack Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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Plaintiff's claims against defendant Prack arise from the two from plaintiff; and (4) failed to transfer plaintiff out of Walsh disciplinary hearings conducted to address the November after becoming aware of the prior lawsuit. Dkt. No. 45-3 at 1, 2013 misbehavior report, and his role in reviewing the 121-122; Dkt. No. 54-23 at 12. resulting determinations. Plaintiff appealed the disciplinary determinations by defendants Corey and Bullis, and With regard to the failure to transfer plaintiff, “[a] supervisor's defendant Prack responded to those internal appeals. Dkt. No. failure to transfer a prisoner out of a facility may constitute 29-1 at 44, 59; Dkt. No. 45-13 at 10; Dkt. No. 54-2 at 18. With deliberate indifference where the supervisor 1) knows that the respect to the first disciplinary hearing, for the same reasons conditions of confinement expose the prisoner to serious risk cited in support of my recommendation that plaintiff's claims of harm, and 2) the supervisor has the authority to transfer against defendant Corey be dismissed, I also recommend the prisoner to another facility.” Kane v. Pierce , No. 106- dismissal of all claims against defendant rack arising out of CV-01564, 2009 WL 189955, at *3 (E.D. Cal. Jan. 26, 2009), that first disciplinary hearing. Turning to the second hearing, report and recommendation adopted , 2009 WL 674127 (E.D. I have found no basis to conclude that the second hearing Cal. Mar. 16, 2009) (citations omitted). was conducted in a manner that failed to comport with due process. Accordingly, I recommend the court also grant Plaintiff's claims against Annucci are based upon plaintiff's defendants' motion with respect to plaintiff's due process unsupported assumption that Annucci received plaintiff's claim asserted against Prack arising from the second hearing. letters. Dkt. No. 45-3 at 123 (“I wrote him several times. See, e.g., Lopez v. Whitmore , No. 13-CV-0952 (BKS/ATB), He would refer back to the facility. He did nothing.”). 2015 WL 4394604, at *11 (July 16, 2015) (dismissing due Indeed, there is no record evidence, including any testimony process claim against defendant Prack “[b]ecause his only from plaintiff, regarding where, when, or by what means involvement in plaintiff's claims was to affirm the results of a plaintiff forwarded a letter or complaint directly to Annucci. disciplinary hearing that th[e] court ... found comported with In any event, even assuming that Annucci received plaintiff's due process”). letters, Annucci's failure to respond to them is not sufficient

to give rise to personal involvement under section 1983. Parks v. Smith , No. 08-CV-0586 (TJM/GHL), 2011 WL 4055415, at *14 (N.D.N.Y. March 29, 2011) (“A prisoner's

4. Defendants Danforth and Sharma allegation that a supervisory official failed to respond to a grievance is insufficient to establish that official's personal *29 Plaintiff asserts supervisory liability claims against involvement.”). defendant Sharma based upon his position as the Health Service Director at Walsh. Dkt. No. 45-3 at 170. Plaintiff

For these reasons, I find that no reasonable factfinder could also claims that defendant Danforth was responsible for conclude, based on the record evidence, that defendant investigating plaintiff's complaints against the medical staff. Annucci was personally involved in any of the allegations Id. at 159. As was discussed above, I have recommended a giving rise to this action. finding that plaintiff failed to raise an issue of material fact with respect to his Eighth Amendment medical indifference claims, and that they are subject to dismissal. Accordingly,

J. Defendant Judway for the reasons set forth in Part III(I)(3) above, I recommend Plaintiff claims that defendant Judway failed to adhere to that the portion of defendants' motion for summary judgment DOCCS policy when he authorized a strip search of the seeking dismissal of plaintiff's supervisory claims against plaintiff without preparing the appropriate paperwork. Dkt. defendants Danforth and Sharma be granted. No. 29 at 49-51; Dkt. No. 45-3 at 66. The allegations in plaintiff's amended complaint related to defendant's failure to adhere to DOCCS's regulations or policies do

5. Defendant Annucci not give rise to a cognizable claim under section 1983. See Bolden v. Alston , 810 F.2d 353, 358 (2d Cir. 1987) At his deposition, plaintiff testified that he is suing Acting (“State procedural requirements do not establish federal Commissioner Annucci in this action for four reasons, constitutional rights.”); Barnes v. Henderson , 628 F.Supp.2d alleging that Annucci (1) is at the top of the chain of command 407, 411 (W.D.N.Y. 2009) (“[A] violation of New York State as Deputy Commissioner of DOCCS; (2) failed to investigate regulations concerning disciplinary hearings does not in itself the alleged assault on plaintiff; (3) failed to respond to letters establish a due process violation.”). I therefore recommend Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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the dismissal of plaintiff's claims against defendant Judway II ”), the court dismissed ADA claims brought by the plaintiff, based upon his alleged failure to comply with DOCCS finding that he did not have a hearing disability. See Cole v. policies and procedures. Goord , 2009 WL 2601369, at *8 (S.D.N.Y. Aug. 25, 2009).

In doing so the court reasoned: K. ADA Claims 28 28 Defendants acknowledge that Cole Plaintiff does not specify what portions of the ADA has some difficulty hearing and are triggered by defendants' actions. Reading his has been diagnosed with non- amended complaint liberally, it appears that he significant bilateral hearing loss by brings this complaint under Title II of the Act. the audiologists who have examined *30 Title II of the ADA prohibits discrimination on the basis him. ( See Def. Rule 56.1 Statement, of disability by public entities, providing that “no qualified & 8.) But Cole has not demonstrated individual with a disability shall, by reason of such disability, that this hearing loss “substantially be excluded from participation in or be denied the benefits limits” a major life activity as of the services, programs, or activities of a public entity, or required by the ADA. With the be subjected to discrimination by any such entity.” 42 U.S.C. hearing aids which defendants § 12132; Reg'l Econ. Cmty. Action Program, Inc. v. City of provided for him and which he Middletown, 294 F.3d 35, 45 (2d Cir. 2002). The protections wears daily, Cole can hear “clear[ly offered under Title II extends to inmates in state correctional and] pick[ ] up everything.” Because facilities like Upstate. See Pa. Dep't of Corrs. v. Yeskey , 524 measures taken to correct or U.S. 206, 213 (1998) (“[T]he plain text of Title II of the ADA mitigate a physical impairment are unambiguously extends to state prison inmates[.]”). relevant to whether an impairment substantially limits a major life

To establish a violation under the ADA, a plaintiff must activity, Sutton v. United Air Lines, demonstrate that (1) he is a qualified individual with a Inc. , 527 U.S. 471, 482-83, 119 disability; (2) the defendant is subject to the ADA; and (3) S.Ct. 2139, 144 L.Ed.2d 450 (1999); he was denied the opportunity to participate in or benefit see also Fall v. New York State from defendants' services, programs, or activities, or were United Teachers , 289 Fed. Appx. otherwise discriminated against by defendants, by reason of 419, 421 (2d Cir. 2008) (finding a disability. Henrietta D. , 331 F.3d at 272. The ADA defines that plaintiff did not assert, or a “disability” in part as a “physical or mental impairment that support with credible evidence, the substantially limits one or more of the major life activities proposition that her hearing loss of such individual.” 42 U.S.C. § 12102(A). A “qualified was substantial when the corrective individual with a disability” is one “who, with or without measures were employed), Cole has reasonable modifications to rules, policies or practices, the no hearing disability for purposes of removal of architectural, communication, or transportation the ADA. barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a

Id. (internal citations omitted). public entity.” 42 U.S.C. § 12131(2). Issue preclusion, often referred to as collateral estoppel, bars Plaintiff claims that his hearing impairment was diagnosed by a party that had a full and fair opportunity to litigate an issue prison officials and known to all defendants, and constitutes of fact or law from relitigating the same issue once it has been a disability. Dkt. No. 54-2 at 20; Dkt. No. 29-1 at 79-81. decided against that party. Proctor v. LeClaire , 715 F.3d 402, Defendants argue that the issue of whether plaintiff's hearing

414 (2d Cir. 2013); McKithen v. Brown , 481 F.3d 89, 105 (2d loss is a disability for the purposes of the ADA has already Cir. 2007), cert denied , 552 U.S. 1179, 128 S.Ct. 1218, 170 been resolved by the United States District Court for the L.Ed.2d 59 (2008). Issue preclusion applies when Southern District. Dkt. No. 45-16 at 20. In Cole v. Goord, et. al. , No. 05 Civ 2902 (S.D.N.Y. filed August 29, 2009) (“ Cole Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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loss constitutes a disability under the ADA – was decided against him. There is nothing to suggest that plaintiff was not afforded a full and fair opportunity to litigate that claim in the

*31 (1) the identical issue was prior proceeding. Even though Cole II was brought against raised in a previous proceeding; (2) different defendants, because the Southern District concluded the issue was actually litigated and that plaintiff did not suffer from a hearing disability for the decided in the previous proceeding; purposes of the ADA, that determination is entitled to full (3) the party had a full and fair faith and precludes plaintiff from mounting a challenge in opportunity to litigate the issue; and this court. See Garrett v. Angelone , 940 F.Supp. 933, 940-41 (4) the resolution of the issue was (W.D. Va. 1996) (“Because the factual issue of discrimination necessary to support a valid and on the basis of handicap at Deep Meadow was litigated final judgment on the merits. and decided by the Eastern District in the previous action, [the plaintiff] is estopped from rearguing this factual issue in any later litigation.”). Moreover, there is nothing in the

Ball v. A.O. Smith Corp. , 451 F.3d 66, 69 (2d Cir. 2006) record to suggest that plaintiff's hearing loss has materially (quotation marks omitted); accord, Proctor , 715 F.3d at 414; deteriorated. Indeed, in opposition to defendants' motion, see also McKithen , 481 F.3d at 105. plaintiff relies solely upon medical evidence from 2004 and 2009. Dkt. No. 29-1 at 79-81. Accordingly, I find no basis

The burdens applicable to the factors informing the issue of to disagree with the Southern District's determination, and collateral estoppel are variously allocated. The party seeking on this basis I recommend granting defendants' motion for to invoke issue preclusion bears the burden of demonstrating summary judgment dismissing plaintiff's ADA claims under that the nature of the issues are identical, and “they were the doctrine of collateral estoppel. necessarily decided in the prior action.” Kulak v. City of N.Y. , 88 F.3d 63, 72 (2d Cir. 1996). The burden of demonstrating that the prior action did not afford a full and fair opportunity

L. Negligence Claims to litigate the issue, however, rests with the party opposing Plaintiff claims that defendants Mandalaywala, Kowalachuk, application of the doctrine. Kulak , 88 F.3d at 72. The Smith, Schroyer, and Danforth were negligent when they determination of whether the previous action provided a failed to order “follow-up examinations” and provide plaintiff full and fair opportunity to litigate requires consideration of with treatment by a urologist. Dkt. No. 29 ¶106. several factors, including *32 By statute, New York vests state employees, including correctional employees, with immunity from suits for

the nature of the forum and the damages arising from conduct performed within the scope of importance of the claim in the their employment. N.Y. Corr. Law § 24. The relevant statute prior litigation, the incentive and provides as follows: initiative to litigate and the actual 1. No civil action shall be brought in any court of the extent of litigation, the competence state, except by the attorney general on behalf of the and expertise of counsel, the state, against any officer or employee of the department, availability of new evidence, the which for purposes of this section shall include members differences in the applicable law

of the state board of parole, in his or her personal and the foreseeability of future capacity, for damages arising out of any act done or litigation.

the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.

Shell v. Brun , 362 F.Supp.2d 398, 400 (W.D.N.Y. 2005) (quoting Ryan v. N.Y. Tel. Co. , 62 N.Y.2d 500, 501 (1984)).

2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the

From the record now before the court, it is clear that plaintiff employment and in the discharge of the duties of any raised the claim now being asserted in Cole II , and that the officer or employee of the department shall be brought precise issue now presented – that is, whether his hearing Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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and maintained in the court of claims as a claim against continued to dismiss those claims under Corrections Law the state. § 24.” Rounds v. Thompson , No. 12-CV-0953, 2013 WL

3187074, at *4 (N.D.N.Y. June 20, 2013) (Sharpe, J.); see N.Y. Correct. Law § 24; see also lerardi v. Sysco , 119 also May v. Donneli , No. 06-CV-0437, 2009 WL 3049613, at F.3d 183, 186-87 (2d Cir. 1997). Section 24 thus precludes *5 (N.D.N.Y. Sept. 18, 2009) (Sharpe, J., adopting report and claims against corrections personnel brought against them recommendation by Treece, M.J.) (“A claim brought pursuant in any court in their personal capacities arising out of the to state law does not implicate the Supremacy Clause, and discharge of their duties. Baker v. Couglin , 77 F.3d 12, 14-15 therefore, the Haywood decision does not affect the question (2d Cir. 1996). Because “a federal court applying pendent of whether this Court has proper jurisdiction to hear [a] jurisdiction is forced to apply state substantive law to a pendent state law claim.”). state claim, this would result in inmates being prohibited from advancing such pendent claims along with their federal

*33 To determine whether section 24 is applicable to a claims in federal court.” O'Diah v. Fischer , No. 08-CV-0941, corrections officer's alleged misconduct, “courts generally 2012 WL 987726, at *21 (N.D.N.Y. Feb. 28, 2012) (Homer, look at the factors associated with New York's scope M.J.), report and recommendation adopted by 2012 WL of employment analysis.” Ierardi , 119 F.3d at 187 n. 3 976033 (N.D.N.Y. Mar. 22, 2012) (McAvoy, J.). Additionally, (citing Johnson v. N.Y. State Dep't of Corr. Servs. & Cmty. because the New York State Court of Claims is one of “limited Supervision , No. 11-CV-0079, 2013 WL 5347468, at *3 jurisdiction,” hearing only claims against New York State, (W.D.N.Y. Sept. 23, 2013)). Those factors include: “[section] 24 amounts to a grant of immunity for corrections officers sued in their personal capacities for claims arising out of the discharge of their duties.” Rucano v. Koenigsmann , No.

the connection between the time, 12-CV-0035, 2014 WL 1292281, at *15 (N.D.N.Y. Mar. 31, place and occasion for the act; the 2014) (D'Agostino, J.). 29 history of the relationship between employer and employee as spelled

29 out in actual practice; whether To be sure, the immunity afforded under section the act is one commonly done 24 is by no means absolute. Actions taken by by such an employee; the extent corrections employees occurring during the course of departure from normal methods of their employment but wholly outside of their of performance; and whether the scope of employment, for example, lack the specific act was one that the protection of that provision. The circumstances employer could reasonably have presented in Ierardi , for example, involving a claim anticipated. of sexual harassment by a special education teacher employed by the DOCCS against a corrections officer assigned to the same facility, serve to aptly illustrate the type of situation in which section 24 Johnson , 2013 WL 5347468, at *3 (citing Riviello v. Waldron , would not afford protection. Ierardi , 119 F.3d at 391 N.E.2d 1278, 128 (N.Y. 1979)). Ultimately, “an employee 188-89. will be considered within the scope of his employment so long

as he is discharging his duties, no matter how irregularly, or In 2009, the Supreme Court held that section 24 violates wi what disregard of instructions.” Cepeda v. Coughlin , 513 the Supremacy Clause to the extent it delegates to the New N.Y.S.2d 528, 530 (N.Y. 1987) (quotation marks omitted). York State Court of Claims jurisdiction to adjudicate civil rights cases arising under section 1983. Haywood v. Drown ,

In this case, all of plaintiff's allegations against the defendants 556 U.S. 729, 734-36 (2009). While the Supreme Court now under consideration stem from events that occurred concluded that section 24 violates the Supremacy Clause at Upstate while all defendants were on duty. Because as it applies to claims brought under section 1983, it did each defendant in this case was “discharging his [or her] not find the statute unconstitutional when applied to claims duties” relating to plaintiff's medical treatment, I find that the arising under New York State law. Accordingly, “courts in allegations in the amended complaint plausibly suggest that this District have held that the Haywood decision does not defendants were acting within the scope of their employment affect the question of the district court's jurisdiction to hear as DOCCS employees while undertaking the conduct alleged pendent state law claims against DOCCS employees and have Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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by plaintiff Cepeda , 513 N.Y.S.2d at 530. For this reason, I further find that plaintiff's claims of deliberate indifference I recommend that plaintiff's negligence claims arising under against Walsh and Upstate employees are deficient because, New York law be dismissed. even when accepted as true and interpreted in his favor,

the evidence fails to reflect deliberate indifference to his condition, instead merely reflecting a disagreement and

IV. SUMMARY AND RECOMMENDATION

plaintiff's dissatisfaction with the course of his treatment. Plaintiff's amended complaint in this action contains an Additionally, I conclude that plaintiff's due process claims amalgamation of claims against various defendants ranging against Tousignant, Michaels, and Bullis; retaliation claims from the Acting Commissioner of the DOCCS down to against LoRusso, Wagner, Sharma, Trabout, Mara, J. corrections officers and medical personnel employed at the Henderson, P. Henderson, Tousignant, M. Williamson, Smith, facilities in which he was confined at the relevant times. All Kumar, Schroyer, Kowalachuk, and Corey; ADA claims; and of plaintiff's claims relate to or stem from the alleged use of claims that defendant Judway violated DOCCS rules and excessive force at Walsh and plaintiff's medical treatment at policy are deficient as a matter of law, and thus I recommend Walsh and Upstate. Having thoroughly reviewed the record that summary judgment be entered dismissing those claims. I now before the court, I find that the record discloses the also recommend a finding that plaintiff's state law negligence existence of fact issues regarding whether plaintiff failed to claims are subject to dismissal based on N.Y. Correction Law exhaust his administrative remedies with respect to his claims § 24. against defendants LoRusso and Michaels. Turning to the merits of plaintiff's claims, I find the existence of genuine

It is therefore hereby respectfully issues of material fact precluding the entry of summary judgment dismissing plaintiff's excessive force cause of

RECOMMENDED that defendants' motion for summary action against defendants Durante, LoRusso, and Wagner; judgment (Dkt. No. 45) be GRANTED, in part, and failure to protect claim against defendant Michaels; and that plaintiff's claims against defendants DOCCS, Annucci, retaliation claims asserted against defendant Durante. 30 Prack, Bullis, Corey, Tousignant, Sharma, Trabout, Mara, Dutch, Peterson, P. Henderson, D. Williamson, J. Henderson,

30 Danforth, Mandalaywala, Schroyer, Kowalachuk, Smith, and As the foregoing indicates, I have found that M. Williamson be DISMISSED and that plaintiff's retaliation if the November 2013 were not viewed as a claims against LoRusso and Wagner be DISMISSED, but that nullity, summary judgment dismissing that claim the motion otherwise be DENIED in all respects, and that as against defendant Corey would be precluded the matter proceed with regard to plaintiff's excessive force based upon the finding of material issues of claims against defendants Durante, Wagner, and LoRusso; fact surrounding plaintiff's removal from that retaliation claims against defendant Durante; supervisory proceeding. I nonetheless recommended a finding, claims against defendants Judway and Gonyea; and failure to however, under the circumstances of this case, that protect claim against defendant Michaels based upon events defendant Corey is entitled to qualified immunity occurring at Walsh. since no reasonable person in his circumstances would conclude that removing plaintiff from

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties the disciplinary hearing would clearly violate may lodge written objections to the foregoing report. Such established constitutional principles. objections must be filed with the clerk of the court within *34 Turning to plaintiff's claims against defendants Gonyea FOURTEEN days of service of this report. FAILURE and Judway, I find that plaintiff has demonstrated a

TO SO OBJECT TO THIS REPORT WILL PRECLUDE

sufficiently plausible basis for finding the requisite degree APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. of personal involvement in the actions taken by these two 6(a), 6(d), 72; Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993). defendants to avoid summary judgment. I also find, however, that neither plaintiff's amended complaint nor the record

It is hereby ORDERED that the clerk of the court serve a before the court discloses any basis for finding personal copy of this report and recommendation upon the parties in involvement on the part of defendants Annucci and Prack in accordance with this court's local rules. the constitutional deprivations alleged. Dated: August 25, 2016. Cole v. New York State Department of Corrections and..., Not Reported in Fed....

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All Citations Not Reported in Fed. Supp., 2016 WL 5394752 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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fourteen (14) days within which to file written objections to the foregoing

KeyCite Yellow Flag - Negative Treatment report. Such objections shall be filed Distinguished by Morehouse v. York, N.D.N.Y., January 7, 2016 with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT

2015 WL 4394604 WITHIN FOURTEEN DAYS WILL Only the Westlaw citation is currently available.

PRECLUDE APPELLATE REVIEW.

United States District Court, Roldan v. Racette, 984 F.2d 85, 89 N.D. New York. (2d Cir.1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15

Edgardo L. LOPEZ, Plaintiff, (2d Cir.1989)); 28 U.S.C. § 636(b)(1); v. Fed.R.Civ.P. 6(a), 6(d), 72. N. WHITMORE, et. al., Defendants. No. 9:13–CV–952 (BKS/ATB). | Dkt. No. 83, p. 24. A copy of the Report–Recommendation Signed July 16, 2015. was mailed to Lopez's last known address via certified mail. Dkt. No. 83. Lopez's copy of the Report–Recommendation Attorneys and Law Firms was returned to the Court marked “Return to sender, unable to forward.” Dkt. No. 85.

Edgardo L. Lopez, Last Known Address, Syracuse, NY, pro se.

On June 8, 2015, Lopez filed a notice of change of address and a request for an extension of time to respond to the Report–

Hon. Eric T. Schneiderman, New York State Attorney Recommendation. Dkt. Nos. 86–87. Lopez noted that he General, Christopher W. Hall, Assistant Attorney General, received the Report–Recommendation that day at the public The Capitol, Albany, NY, for Defendants. counter in the courthouse. Dkt. No. 87. The Court granted Lopez's request for an extension of time and, in a text order dated June 8, 2015, extended the due date for filing objections

ORDER

to June 22, 2015. The text order was mailed to Lopez's last known address. Lopez's copy of the text order was returned

Hon. BRENDA K. SANNES, District Judge. to the Court marked “Return to sender, not deliverable as *1 Plaintiff Edgardo L. Lopez, a former New York addressed, unable to forward.” Dkt. No. 89. State inmate, commenced this civil rights action under 42 U.S.C. § 1983 raising federal and state claims against New

In a Decision and Order on June 29, 2015, the Court reminded York State Department of Correction officials arising out Lopez of his obligation to notify the Court of any change in of plaintiff's confinement at Marcy Correctional Facility. address, see Local Rule 10.1(c)(2), and provided Lopez an Dkt. Nos. 1, 32. On October 9, 2014, defendants filed additional fourteen days to file his current address and any a motion for summary judgment which was referred to objections to the Report and Recommendation. Dkt. No. 90, United States Magistrate Judge Andrew T. Baxter. Dkt. Nos. pp. 2–4. The Court advised Lopez that if he failed to comply 69, 83. On May 20, 2015, Judge Baxter issued a Report– with the Decision and Order, the Court would “consider the Recommendation, recommending that defendants' motion Report and Recommendation as unopposed and review for for summary judgment be granted, and that plaintiff's First clear error only.” Dkt. No. 90, p. 4. The Decision and Order Amendment and Eighth Amendment claims be dismissed was served on Lopez via certified mail at his last known without prejudice to refiling and that plaintiff's due process address. Dkt. No. 90. On July 8, 2015, the Court received an and state law claims be dismissed with prejudice. Dkt. No. 83, executed return receipt of delivery. Dkt. 91. Lopez has not, to p. 24. Judge Baxter advised the parties that: date, filed any objections to the Report–Recommendation. *2 Accordingly, as no objections to the Report–

Pursuant to 28 U.S.C. § 636(b)(1) and Recommendation have been filed and the time for filing objections has expired, the Court reviews the Report– Local Rule 72.1(c), the parties have

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Recommendation for clear error. See Glaspie v. N.Y.C. Dep't (Amended Compl ., Dkt. No. 32, ¶¶ 26–55). Plaintiff amended of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, his complaint in November 2013 to further allege that the at *1, 2010 U.S. Dist. LEXIS 131629, at *2–3 (S.D.N.Y. disciplinary hearing related to these charges violated his due Nov. 30, 2010) (explaining that when no objections to report process rights. ( Id. ¶¶ 60–74). Plaintiff also raises several state and recommendation are made, “the Court may adopt [it] law tort claims in connection with the alleged assault. ( Id. ¶ if there is ‘no clear error on the face of the record.’ ”) 77, 80, 82). (quoting Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005)). Having reviewed the Report and Presently before the court is the defendants' motion for Recommendation in its entirety and having found no clear summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. No. 69). error, it is hereby: Plaintiff has opposed the motion. (Dkt. No. 73) 1 . Defendants

did not submit a reply. ORDERED that the Report–Recommendation (Dkt. No. 83) is ADOPTED in its entirety for the reasons stated therein;

1 Plaintiff requested oral argument on defendant's and it is further motion. That request is denied, and this court will make its report and recommendation based upon

ORDERED that the defendants' motion for summary the parties' papers and the record. judgment (Dkt. No. 69) is GRANTED; and it is further For the reasons set forth below, this court recommends that ORDERED that plaintiff's due process and state law claims defendants' summary judgment motion be granted. Plaintiff's are DISMISSED with prejudice; and it is further claims should be dismissed because no rational fact finder

could conclude that he exhausted his administrative remedies as to the assault and retaliation claims as required before filing ORDERED that plaintiff's remaining claims under 42 U.S.C. § 1983 relating to assault and retaliation are DISMISSED an action under 42 U.S.C. § 1983, or that plaintiff failed to without prejudice to refiling; and it is further receive all the process that he was due during his disciplinary

hearing. Plaintiff's state law claims, raised pursuant to the court's supplemental jurisdiction, should also be dismissed. ORDERED that the Clerk of the Court shall close this case; and it is further ORDERED that the Clerk of the Court shall serve a copy of

DISCUSSION

this Order as well as the Report–Recommendation (Dkt. No. 83) upon all parties in accordance with the local rules.

I. Summary Judgment *3 Summary judgment is appropriate where there exists no

IT IS SO ORDERED.

genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir.2006). “Only disputes over [“material”] facts

REPORT–RECOMMENDATION

that might affect the outcome of the suit under the governing ANDREW T. BAXTER, United States Magistrate Judge. law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. This matter has been referred to me for Report and 2505, 91 L.Ed.2d 202 (1986). It must be apparent that no Recommendation, pursuant to 28 U.S.C. § 636(b) and Local rational finder of fact could find in favor of the non-moving Rules N.D.N .Y. 72.3(c) by the Honorable Brenda K. Sannes, party for a court to grant a motion for summary judgment. United States District Judge. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).

In this civil rights action, plaintiff claims that in May 2013, several correctional officers assaulted him during his

The moving party has the burden to show the absence of confinement at the Marcy Correctional Facility (“Marcy”) in disputed material facts by informing the court of portions retaliation for filing a grievance, and then issued several false of pleadings, depositions, and affidavits which support the disciplinary charges against plaintiff to cover up their actions. motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party had completed the administrative grievance process for satisfies its burden, the nonmoving party must move forward these claims prior to commencing this federal proceeding. with specific facts showing that there is a genuine issue for Accordingly, this court recommends that plaintiff's First trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, Amendment retaliation claims and Eighth Amendment cruel the nonmoving party must do more than “simply show that and unusual punishment claims be dismissed for failure to there is some metaphysical doubt as to the material facts.” exhaust administrative remedies. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). 2

Defendants assert that plaintiff has failed to However, in determining whether there is a genuine issue state a claim in connection with the misbehavior of material fact, a court must resolve all ambiguities, and reports, since plaintiff's allegations of retaliation draw all inferences, against the movant. See United States v. are conclusory and defendant was found guilty Diebold, Inc. ., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d based upon the evidence at his disciplinary hearing. 176 (1962); Salahuddin, 467 F.3d at 272. (Def. Mem. of Law, Dkt. No. 69–4, at 8–10). In his response, plaintiff has requested that the

To be sufficient to create a “factual issue,” in the context of court dismiss the claim for retaliatory misbehavior a summary judgment motion, an allegation in an affidavit reports in order to focus on the assault claim. or verified complaint must not be conclusory or overly (Pl.'s Mem of Law, Dkt. No. 73–1, at 9). Because general. Smith v. Woods, 9:03–CV–480 (DNH/GHL), 2006 I am recommending that defendants be granted WL 1133247, at *3 & n. 10 (N.D.N .Y. Apr. 24, 2006). Even summary judgment on the retaliation claim due where a complaint or affidavit contains specific assertions, the to plaintiff's failure to exhaust administrative allegations “may still be deemed conclusory if [they are] (1) remedies, I do not need to address whether ‘largely unsubstantiated by any other direct evidence’ and (2) summary judgment should be granted on the merits ‘so replete with inconsistencies and improbabilities that no on this claim. reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.’ “

A. Legal Standards Id., 2006 WL 1133247, at *3 & n. 11 (quoting Jeffreys v. City The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. of New York, 426 F.3d 549, 554–55 (2d Cir.2005) (“While § 1997e(a), requires an inmate to exhaust all available it is undoubtedly the duty of district courts not to weigh the administrative remedies prior to bringing a federal civil rights credibility of the parties at the summary judgment stage, in the action. This requirement applies to all inmate suits about rare circumstance where the plaintiff relies almost exclusively prison life, whether they involve general circumstances or on his own testimony, much of which is contradictory and particular episodes, and regardless of the subject matter of incomplete, it will be impossible for a district court to the claim. See Giano v. Goord, 380 F.3d 670, 675–76 (2d determine whether ‘the jury could reasonably find for the Cir.2004) (citing Porter v. Nussle, 534 U.S. 516, 532, 122 plaintiff,’ ... and thus whether there are any “genuine” issues S.Ct. 983, 152 L.Ed.2d 12 (2002) (exhaustion requirement of material fact, without making some assessment of the applies, inter alia, to excessive force claims)). Inmates plaintiff's account.”)). must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.

II. Exhaustion of Administrative Remedies *4 Plaintiff has alleged that he was the victim of two separate

The failure to exhaust is an affirmative defense that must be assaults by Marcy Correctional Officers on the morning of raised by the defendants. Jones v. Bock, 549 U.S. 199, 216, May 7, 2013. (Amended. Compl., Dkt No. 32, ¶¶ 31–38, 43). 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Johnson v. Testman, Plaintiff further alleges that the assaults were in retaliation for 380 F.3d 691, 695 (2d Cir.2004). As an affirmative defense, a prior grievance which he had submitted against one or more it is the defendants' burden to establish that plaintiff failed to of the defendants, and that the defendants then issued him meet the exhaustion requirements. See, e.g, Key v. Toussaint, disciplinary tickets for failing to obey orders and possessing 660 F.Supp.2d 518, 523 (S.D.N.Y.2009) (citations omitted). a weapon in order to cover up their actions 2 . ( Id. ¶ 55). Based on the record discussed below, the court concludes

The Supreme Court held that, in order to properly exhaust that no reasonable fact finder could conclude that the plaintiff an inmate's administrative remedies, he must complete Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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the administrative review process in accordance with the 3

See Hemphill v. State of New York, 380 F.3d applicable state rules. Jones v. Bock, 549 U.S. at 218– 680 (2d Cir.2004) (remanding case to determine 19 (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. if defendant's alleged threats constituted “special 2378, 165 L.Ed.2d 368 (2006)). In Woodford, the Court circumstances” justifying plaintiff's failure to held that “proper” exhaustion means that the inmate must exhaust); Abney v. McGinnis, 380 F.3d 663 complete the administrative review process in accordance (2d Cir.2004) (whether failure to exhaust may with the applicable procedural rules, including deadlines, as a be justified because plaintiff obtained favorable prerequisite to bringing suit in federal court. 548 U.S. at 90– rulings on his grievances, but the relief that he 103. was supposed to obtain was never forthcoming); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004)

The grievance procedure in New York is a three-tiered (whether including claims in a disciplinary appeal process. The inmate must first file a grievance with the may suffice for the exhaustion requirement); Ortiz Inmate Grievance Resolution Committee (“IGRC”). N.Y. v. McBride, 380 F.3d 649 (2d Cir.2004) (complete Comp.Codes R. & Regs. tit. 7, §§ 701.5(a)(1) and (b). dismissal is not required when plaintiff brings both An adverse decision of the IGRC may be appealed to the exhausted and unexhausted civil rights claims). superintendent of the relevant facility. Id. § 701.5(c). Adverse 4 decisions at the superintendent's level may be appealed to the See, e.g., Newman v. Duncan, 04–CV–395 (TJM/ Central Office Review Committee (“CORC”). Id. § 701.5(d). DRH), 2007 WL 2847304, at * 2 n. 4 (N.D.N.Y. The court also notes that the regulations governing the Inmate

Sept. 26, 2007); Shariff v. Coombe, 655 F.Supp.2d Grievance Program encourage the inmate to “resolve his/ 274, 285–86 n. 7 (S.D.N.Y.2009). her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels

B. Application (informal or formal) prior to submitting a grievance.” Id. § Plaintiff filed a grievance on June 17, 2013, after 701.3(a) (Inmate's Responsibility). being transferred to Downstate Correctional Facility (“Downstate”), alleging that on May 7, 2013, certain Marcy

*5 At the same time that the Second Circuit decided Correctional Officers verbally and physically abused him Giano, it also decided four related cases, clarifying the following a pat-down frisk while plaintiff was en route from law in the Second Circuit regarding the PLRA's exhaustion the Marcy housing unit to the facility's infirmary. (Def. requirement, and specifying various instances in which the Statement of Material Facts, Dkt No. 69–1, ¶ 4; Pl's Resp. requirement could be waived or excused. 3 Based on these to Def. Statement of Material Facts, Dkt. No. 73, 4). This grievance was acknowledged and forwarded for investigation cases, the Second Circuit developed a “three part inquiry” to determine whether an inmate has fulfilled the PLRA by IGRC on June 19, 2013. (Dkt. No. 73–2, Pl's Ex. 3(B)). On September 17, 2013, the Downstate Superintendent denied exhaustion requirement. See Brownell v. Krom, 446 F.3d 305, plaintiff's grievance. (Hall Aff, Dkt. No. 69–3, Ex. 3; Dkt 311–12 (2d Cir.2006) (citing Hemphill, 380 F.3d at 686). No. 73–2, Pl's Ex. 3(C)). On September 23, 2013, Plaintiff The inquiry asks (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own appealed this determination to the Central Office Review Committee. Id. On June 11, 2014, CORC issued its decision actions inhibiting exhaustion estops them from raising the denying the grievance, the final step in the administrative defense; and (3) whether “special circumstances” justify the process. (Dkt. No. 73–2, Pl's Ex. 3(D)). inmate's failure to comply with the exhaustion requirement. Id. Whether the Hemphill test survives following the Supreme While the administrative grievance process was ongoing, Court's decision in Woodford, has been a matter of some Plaintiff commenced this litigation on August 12, 2013, discussion. 4 Although the Second Circuit has not explicitly

alleging essentially the same facts as his grievance. (Dkt. No. held that Hemphill remains good law, it has applied the three- 1, Compl.). Plaintiff later submitted an Amended Complaint part inquiry in post- Woodford cases. See, e.g., Messa v. Goord, dated November 3, 2013 which restated the assault and 652 F.3d 305, 309 (2d Cir.2011); Davis v. State of New York, retaliation claims and added a due process claim arising out 311 F. App'x 397, 399 (2d Cir.2009). of the related disciplinary hearing. (Dkt. No. 32, Amended Compl.)

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In their motion for summary judgment, defendants argue that Superintendent to timely respond to a grievance or plaintiff failed to exhaust his administrative remedies relating first level appeal may be appealed to the next level, to his assault and retaliation claims prior to commencing this including the CORC, in order to properly complete federal litigation 5 . Plaintiff argues that his administrative the grievance process. Accord, Murray v. Palmer,

9:03–CV–1010 (GTS/GHL), 2010 WL 1235591,

remedies were exhausted upon filing his grievance on *2 & nn. 4, 6 (N.D.N.Y. March 31, 2010). June 17, 2013, and that “[i]t is common knowledge that one not need to wait on the CORC decision in order to In applying the Second Circuit's three-party inquiry, plaintiff file a civil action against New York State Department of

has offered no evidence to suggest that the grievance process Corrections and Community Supervision (N.Y.SDOCCS) was unavailable to him, that the defendants are estopped employees for committing such brutally physical body harm from asserting the defense of failure to exhaust, or that there upon plaintiff.” (Pl's Mem. of Law, Dkt. No. 73–1, at 7). are any other special circumstances under Hemphill and its Plaintiff also asserts that his administrative grievance was not

progeny that would excuse plaintiff's failure to exhaust his resolved within a reasonable time, as it took three months administrative remedies. to receive the Downstate Superintendent's determination, and another ten months before the CORC determination was In support of defendants' motion, Jeffrey Hale, the DOCCS issued. ( Id. at 8).

Assistant Director of the Inmate Grievance Program (“IGP”) and the custodian of records for CORC, which maintains

5 files of grievance appeals by inmates, submitted a declaration Defendants had previously raised the failure to based upon his review of those records. (Dkt. No. 69–2). Ass't exhaust administrative remedies as an affirmative Dir. Hale certified that CORC records contained five separate defense in their answer to the Amended Complaint. grievances filed by plaintiff for the period between September (Dkt. No. 37, Def.Answer, 12). 2012 and May 2014. (Hale Decl., Dkt. No. 69–2, ¶¶ 6–7, 10, *6 “The PLRA's exhaustion requirement applies to all and Ex. B.). inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege

During his August 26, 2014 deposition, plaintiff excessive force or some other wrong.” Porter, 534 U.S. acknowledged that he was familiar with the DOCCS at 532. Plaintiff did not complete the state administrative grievance process and understood that CORC is the final grievance process for the assault and retaliation claims administrative step for deciding an inmate grievance. before commencing this litigation, and therefore failed to (Hall Aff, Dkt No. 69–3, Ex. 1 at 18). While plaintiff exhaust his administrative remedies in accordance with asserts that he was discouraged from reporting the alleged the PLRA. The only excuse offered by plaintiff, that the assaults immediately afterwards by threats from one or administrative grievance process took an unreasonably long more of the defendants, plaintiff not only filed a detailed time, is unavailing. (Pl's Mem. of Law, Dkt. No. 73–1, at 8). administrative grievance, but also raised the assault and If the superintendent failed to timely respond to plaintiff's retaliation allegations during his disciplinary hearing. See, grievance, Plaintiff needed to appeal that failure to the CORC e.g., Black v. Fischer, No. 12 Civ. 2341, 2013 WL 1314940, before commencing this litigation. “If a plaintiff receives no at *8–9 (S.D.N.Y. Mar. 28, 2013) (the plaintiff's claim that response to a grievance and then fails to appeal it to the next he was deterred from pursuing grievances by threats from a level, he has failed to exhaust his administrative remedies as defendant was overcome by the fact that plaintiff filed other required by the PLRA.” Croswell v. McCoy, 01–CV–0547, grievances and complaints during the relevant time period). 2003 WL 962534, at *4 (N.D.N.Y. Mar.11, 2003) (Sharpe, M.J.). 6

It is true that under certain circumstances, an inmate may exhaust his administrative remedies by raising his claim

6 during a related disciplinary proceeding. Giano, 380 F.3d at The New York regulations specifically state that if 678–79; Johnson, 380 F.3d at 697. However, such exhaustion a grievance is not decided within the time limits is essentially limited to instances in which (1) the inmate provided, the inmate may appeal to the next step. 7 reasonably believed that his “only available remedy” was N.Y.C.R.R. § 701.6(g)(ii)(2). In Pacheco v. Drown, to raise his claim as part of a tier disciplinary hearing, 9:06–CV–20, 2010 WL 144400, at *19 & n. 21 and (2) the inmate articulated and pursued his claim in the (N.D.N.Y. Jan.11, 2010), U.S. District Judge Glenn disciplinary proceeding in a manner that afforded prison Suddaby held that the failure by the IGRC or the Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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officials the time and opportunity to thoroughly investigate the due process issue. See Chavis v. Goord, No. 9:00–CV– that claim. Murray, No. 9:03–CV–1010 (GTS/GHL), 2010 1418 (LEK/DEP), 2007 WL 2903950 (N.D.N.Y.2007) (citing WL 1235591, at *3 (collecting cases). Here, where plaintiff Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d filed a grievance eleven days after the hearing, there is no 418 (1995)). Defendants seek summary judgment on the indication that he reasonably believed that the disciplinary merits of this claim, arguing that plaintiff was afforded all hearing was his only available remedy. In addition, the process that was due. disciplinary hearing officer, defendant Cavaleri, informed plaintiff that his testimony regarding the assault was “not In response, plaintiff has requested that the court dismiss his credible,” and plaintiff declined to call any witnesses or due process claim, in order to focus on the alleged assault. question any witnesses. (Hall Aff., Dkt. No. 69–3, Ex. 4). However, since plaintiff's request for dismissal comes after No rational fact-finder could conclude that plaintiff had the defendants have answered (Dkt. No. 37) and moved for articulated or pursued his claim in a manner that afforded summary judgment (Dkt. No. 69), and the parties have not prison officials an opportunity to investigate his claim. stipulated to dismissal, plaintiff has no right to a voluntary

dismissal. Fed.R.Civ.P. 41(a)(1). Instead, dismissal lies in the *7 During the pendency of this litigation, plaintiff received discretion of the court. See Fed.R.Civ.P. 41(a)(2) (“Except as a decision by the CORC, dated June 11, 2014, upholding provided in Rule 41(a)(1), an action may be dismissed at the the Superintendent's denial of the grievance. (Dkt. No. 73– plaintiff's request only by court order, on terms that the court 2, Pl's Ex. 3(C)). While it is true that this decision means considers proper.”); see also Lebewohl v. Heart Attack Grill that plaintiff has now exhausted his administrative remedies, LLC, 890 F.Supp.2d 278, 304 (S.D.N.Y.2012) (“A trial court the Second Circuit has held that a plaintiff must exhaust has great discretion in considering whether to grant a motion his remedies before filing his federal action, and that the for voluntary dismissal under the rule.”). court must dismiss plaintiff's complaint notwithstanding his subsequent exhaustion. Neal v. Goord, 267 F.3d 116, 122–23 The circumstances of this case weigh heavily in favor (2d Cir.2001). of denying plaintiff's motion for voluntary dismissal and

deciding defendants' motion for summary judgment on the Because plaintiff failed to exhaust his administrative remedies due process claim. These claims have been pending since by failing to wait for the CORC's decision, this court is 2013, and the parties have engaged in discovery, including constrained to recommend dismissing this complaint without the deposition of plaintiff. (Hall Aff., Dkt. No. 69–3, Ex. prejudice. Plaintiff may immediately re-file his action on 1). Defendants filed a summary judgment motion, fully the First and Eighth Amendment claims because he has supported by numerous affidavits and exhibits, to dismiss now exhausted his remedies. As in Neal, plaintiff may find plaintiff's claims with prejudice, in October 2014. (Dkt. that requiring him to initiate a new law suit is “judicially No. 69). Plaintiff, who requested permission in November inefficient.” Id., 267 F.3d at 123. However, the Second Circuit 2013 specifically to add the due process claims, provides no specifically rejected such an argument, finding that “if during justification for withdrawing these claims, other than stating the pendency of a suit, the administrative process were to that his “complaint is not about the Tier Hearing nor Due produce results benefitting plaintiff, the federal court will Process regarding the tier hearing, but the factual facts that have wasted its resources adjudicating claims that could have the defendants physically assaulted plaintiff....” (Pl.'s Mem. been resolved within the prison grievance system at the of Law, Dkt. 73–1, at 3). outset.” Id.

*8 At this stage of the proceedings, it would be unfair and unduly prejudicial to the defendants to allow plaintiff

II. Due Process–Disciplinary Hearing to withdraw his due process claim, particularly given the potential that plaintiff may re-file this litigation in order to

A. Plaintiffs Request for Voluntary Dismissal raise the now administratively exhausted assault claims. See, Plaintiff amended his complaint in November 2013 to add e.g., Murray v. Fischer, No. 9:11–CV–225 (GLS/ATB), 2015 a due process cause of action alleging deficiencies in the WL 457693, at *2–3) (denying prisoner's motion to dismiss disciplinary hearing arising out of the incidents at Marcy. certain claims without prejudice and granting defendants' (Dkt. No. 32). The Amended Complaint was filed after motion for summary judgment instead); Emory v. New York, plaintiff's administrative appeal was denied, and therefore No. 11–CV–1774, 2013 WL 1881009, at *3 (E.D.N.Y. May plaintiff has exhausted his administrative remedies as to Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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6, 2013) (denying plaintiffs' motion to dismiss action without *9 The due process protections afforded inmates facing prejudice where plaintiffs failed to proffer reasons why their disciplinary hearings that affect a liberty interest include “voluntary” dismissal came so late in the litigation, and advance written notice of the charges, a fair and impartial only after the defendants marshaled strong arguments in hearing officer, a hearing that affords the inmate the favor of dismissal in substantive motions, both because it opportunity to call witnesses and present documentary reflects plaintiffs' lack of diligence and because it may subject evidence, and a written statement of the evidence upon which defendants to the burden of relitigating these same claims); the hearing officer relied in making his determination. Sira Krivchenko v. Clintondale Aviation, Inc., No. 1:13–CV–820 v. Morton, 380 F.3d 57, 69 (2d Cir.2004) (citing, inter alia, (TJM), 2014 WL 4684808, at *4 (N.D.N.Y. Sept.18, 2014) Wolff v. McDonnell, 418 U.S. 539, 563–67, 94 S.Ct. 2963, 41 (denying voluntary motion to dismiss action, filed without L.Ed.2d 935 (1974)). The hearing officer's findings must be adequate explanation after defendant filed a motion for supported by “some reliable evidence.” Id. ( citing, inter alia, summary judgment motion, because it indicates an “an undue Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 vexatiousness” and could potentially subject the defendants L.Ed.2d 356 (1985)). to the burden of unnecessary relitigation). The court will now address the merits of plaintiff's due process claims. In certain cases, an inmate has a limited right to assistance

with his disciplinary hearing. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993). An assistant has been held to be

B. Legal Standards constitutionally necessary in cases in which a plaintiff is In order to begin a due process analysis, the court first confined in SHU, illiterate, or unable to grasp the complexity determines whether plaintiff had a protected liberty interest of the issues, and therefore, unable to marshal evidence and in remaining free from the confinement that he challenges present a defense. Id. (citation omitted). In those cases, the and then determines whether the defendants deprived plaintiff assistant must do what the plaintiff would have done if he of that liberty interest without due process. Giano v. Selsky, were able, but need not go beyond the inmate's instructions. 238 F.3d 223, 225 (2d Cir.2001); Bedoya v. Coughlin, 91 F.3d Id. 349, 351 (2d Cir.1996). In Sandin v. Conner, the Supreme Court held that although states may still create liberty interests protected by due process, “these interests will be generally C. Application limited to freedom from restraint which, while not exceeding Since the disciplinary hearing resulted in a one year sentence the sentence in such an unexpected manner as to give rise to the special housing unit (“SHU”), plaintiff is considered to protection by the Due Process Clause of its own force ...., to have a liberty interest subject to due process protection. nonetheless imposes atypical and significant hardship on the Plaintiff alleges that defendants issued him fabricated inmate in relation to the ordinary incidents of prison life.” disciplinary tickets to cover up the alleged retaliatory assault, Sandin, 515 U.S. at 483–84. leading to procedural due process and privacy violations.

It is well established that fabricated or false disciplinary The Second Circuit has explicitly avoided a bright line rule charges do not violate an inmate's due process rights, so long that a certain period of confinement in a segregated housing as an inmate received a proper disciplinary hearing, with unit automatically gives rise to due process protection. See a determination based upon “some evidence.” See Freeman Sims v. Artuz, 230 F.3d 14, 23 (2d Cir.2000); Colon v. v. Rideout, 808 F.2d 949, 951 (2d Cir.1986). Therefore, Howard, 215 F.3d 227, 234 (2d Cir.2000). Instead, cases the analysis focuses on the disciplinary hearing itself, and in this circuit have created guidelines for use by district this court recommends that defendants' motion for summary courts in determining whether a prisoner's liberty interest judgment be granted. was infringed. Palmer v. Richards, 364 F.3d 60, 64–66 (2d Cir.2004). A confinement longer than an intermediate one,

1. Adequacy of Assistance at the Hearing and under “normal SHU conditions” is “a sufficient departure Because he was transferred to the SHU after disciplinary from the ordinary incidents of prison life to require procedural charges relating to the threatening notes were filed against due process protections under Sandin.” Colon, 215 F.3d at him, plaintiff was entitled to assistance in preparing for his 231 (finding that a prisoner's liberty interest was infringed by hearing. Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir.1998) (citing 305–day confinement). Shorter confinements under normal Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir.1988)). Plaintiff SHU conditions may not implicate a prisoner's liberty interest. alleges that he requested assistance, but that the employee Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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assistant, who is not named as a defendant, refused to help Pierson, 426 F.3d 187, 201 (2d Cir.2005) (citing Whalen, plaintiff locate relevant documents and threatened physical 429 U.S. at 598–600). The right to privacy has also been violence. (Amended Compl., Dkt. No. 32, ¶ 68). “characterized as a right to ‘confidentiality,’ which ‘includes

the right to protection regarding information about the state At the beginning of the disciplinary hearing, defendant of one's health.’ “ Matson v. Bd. of Ed. of City School Dist. Cavaleri inquired about the pre-hearing assistance, and asked of New York, 631 F.3d 57, 64 (2d Cir.2011) (quoting inter alia whether plaintiff wanted to identify any witnesses or make Doe, 15 F.3d at 267). any other requests before the hearing commenced. (Hall Aff., Dkt. No. 69–3, Ex. 4 at 4). At the close of the hearing, With respect to the “disclosure” of medical information, an plaintiff was also given an opportunity to raise any issues on inmate's privacy right varies with the inmate's condition, the record. ( Id. at 36). Plaintiff declined to raise any issues with a greater interest in preventing the disclosure of highly before or after the hearing about the quality or conduct of sensitive conditions. Id. (citations omitted). Prison officials his pre-hearing assistant. Plaintiff's bare allegations in the may impinge upon the inmate's privacy right only to the Amended Complaint, which do not identify the offending extent that their actions are “reasonably related to legitimate officer, are not sufficient to overcome defendants' motion penological interests.” Powell v. Schriver, 175 F.3d 107, 112 for summary judgment. See Flaherty v. Coughlin, 713 (2d Cir.1999). F.2d 10, 13 (2d Cir.1983) (“mere conclusory allegations or denials are insufficient to withstand a motion for summary The Second Circuit has concluded that the OMH policy judgment once the moving party has set forth a documentary of offering such testimony outside the patient's presence case”). Moreover, even assuming for purposes of this motion during a prison disciplinary proceeding is constitutionally that plaintiff's allegations are accurate, plaintiff waived any valid and does not violate any due process right. See Powell v. objection to inadequate assistance when he failed to raise the Coughlin, 953 F.2d 744, 749 (2d Cir.1991). As the disclosure issue during the disciplinary hearing. Jackson v. Johnson, 30 of unfavorable mental health evaluations in an inmate's F.Supp.2d 613, 619 (S.D.N.Y.1998) (plaintiff waived right presence will likely impair the inmate-clinician relationship, to object to allegedly inadequate assistance when he did not and the disclosure of favorable evaluations may encourage raise the issue when questioned by hearing officer); Hailey inmates to “act out” in order to obtain such findings, v. Provost, No. 94–CV–1616 (RSP/DS), 1997 WF 627547 at the policy of hearing mental health testimony outside the *2 & n. 3 (N.D.N.Y., Oct. 9, 1997) (inmate waived right to inmate's presence, followed in this case, is reasonably related effective employee assistance by specifically answering “no to legitimate penological interests and is an appropriate sir” after hearing officer asked if he needed any additional measure. Id. assistance).

3. “Some” Evidence Standard 2. Use of OMH Information Plaintiff alleges that defendant Cavaleri was biased, that *10 Plaintiff alleges that defendant Cavaleri's consideration plaintiff's guilt was not based upon reliable evidence, of testimony from State Office of Mental Health (“OMH”) and that Cavaleri failed to consider plaintiff's testimony, staff regarding plaintiff's psychiatric and medical history particularly about injuries following the alleged assault. violated his due process right to privacy. (Amended Compl., (Amended Compl., Dkt. No. 32, 74). Defendants argue Dkt. No. 32, 71). Defendant Cavaleri advised plaintiff during that the disciplinary hearing transcript shows that defendant the hearing that such testimony was admitted and would be Cavaleri explained plaintiff his rights, read him the charges considered, but did not disclose the contents of that evidence. and took his not guilty plea. (Def. Mem. of Law at 10– Following policy, the OMH testimony was heard without the 12). Plaintiff was allowed to offer testimony, and given plaintiff present. (Hall Aff., Dkt. No. 69–3, Ex. 4 at 36). the opportunity to call and question witnesses. (Hall Aff.,

Dkt. No. 69–3, Ex. 4 at 8–22). Plaintiff declined to propose In the United States Constitution, there exists a right to questions for any witness. ( Id. ). When the witness testimony privacy, protecting an individual's interest in avoiding the was concluded, plaintiff was given an opportunity to rebut disclosure of personal matters. Doe v. City of New York, their statements. ( Id. at 26–30). After plaintiff raised the issue 15 F.3d 264, 267 (2d Cir.1994) (citing Whalen v. Roe, 429 of injuries suffered in the alleged assault, defendant Cavaleri U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). This reviewed plaintiff's medical records with the assistance of a right is protected by the Due Process Clause. O'Connor v. physician's assistant. ( Id. at 35). When issuing his disposition, Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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defendant Caveleri noted the consistent testimony of seven Mar. 17, 2011) (Rep't.-Rec.) (lengthy discussion of witnesses, and the lack of any evidence that would support personal involvement as it relates to the affirmance plaintiff's testimony ( Id. at 39). of a disciplinary hearing and determination that

such a claim would survive a motion to dismiss); *11 As the hearing officer, Defendant Cavaleri was Rodriguez v. Selsky, No. 9:07–CV–432, 2011 WL authorized to make credibility determinations. See Lewis v. 1086001, at *4–7 (N.D.N.Y. Jan.25, 2011) (Rep't– Johnson, No. 9:08–CV–482 (TJM/ATB), 2010 WL 3785771, Rec.), adopted, 2011 WL 830639 (N.D.N.Y., at *11 n. 25 (N.D.N.Y. Aug.5, 2010) (“the Second Circuit Mar.3, 2011). has required that a hearing examiner make an independent assessment of the credibility of certain sources of evidence III. State Law Claims at a prison disciplinary hearing”), Rep't. Rec. adopted, 2010

Plaintiff asserts a number of tort claims including assault and WL 3762016, at *1 (N.D.N.Y. Sept.20, 2010). It is well battery, invasion of privacy, sexual harassment, infliction of settled, however, “that prison disciplinary officers are not held mental, emotional and physical distress and negligence in to the same standard of neutrality as adjudicators in other connection with the incidents at Marcy, all arising out of New contexts.” Alien v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996).

York State statutory and common law. (Am. Compl., Dkt No. “The degree of impartiality required of prison officials does 32, 77, 79, 80, 82). Defendants have moved for summary not rise to the level of that required of judges generally.” Id. judgment dismissing these claims, arguing that pursuit of such An inmate's own subjective belief that the hearing officer was tort claims in this action is statutorily precluded pursuant to biased is insufficient to create a genuine issue of material fact.

New York Corrections Law § 24. (Def. Mem. of Law, Dkt. Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir.1989); Clyde v. No. 69–4, at 12–13). Plaintiff counters that the United States Schoellkopf, 714 F.Supp.2d 432, 437–38 (W.D.N.Y.2010). Supreme Court ruled Corrections Law § 24 unconstitutional,

and that, in any case, state law immunity does not extend to The constitutional standard for sufficiency of evidence in excessive force claims, which fall outside the ordinary scope a prison disciplinary hearing is whether there is “some” or of a correctional officer's employment duties. (Pl.'s Mem. of “a modicum” of evidence to support the hearing officer's Law, Dkt. No. 73–1, at 9–12). determination. Sira v. Morton, 380 F.3d 57, 76 (2d Cir.2004) (citing Superintendent v. Hill, 472 U.S. 445, 454, 105

*12 New York Corrections Law § 24 precludes “the S.Ct. 2768, 86 L.Ed.2d 356 (1985)). In this case, there assertion of claims against corrections officers in any court, was sufficient evidence supporting the hearing officer's including the federal courts,” by designating the New York determination. Defendant Cavaleri specifically noted the State Court of Claims as the only available venue to bring consistent testimony of seven witnesses, and the lack of

a claim for damages arising out of the acts committed by evidence to support plaintiff's testimony, which was deemed corrections officers within the scope of their employment.” not credible. Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir.1996). The record evidence supports the conclusion that plaintiff's

In Haywood v. Drown, 556 U.S. 729, 129 S.Ct. 2108, 173 due process rights were satisfied in his disciplinary hearing. L.Ed.2d 920 (2009), cited by plaintiff in his response (Pl's Accordingly, this court recommends that defendants' motion Mem. of Law, Dkt. No. 73–1, at 11), the Supreme Court held for summary judgment as to plaintiff's due process claims that New York Corrections Law § 24 was unconstitutional against defendant Cavaleri be granted. Because his only

to the extent that it precludes inmates from pursuing § 1983 involvement in plaintiff's claims was to affirm the results of a actions in state or federal court. However, plaintiff overstates disciplinary hearing that this court has found comported with the scope of Haywood as it pertains to this litigation. due process, summary judgment should also be granted with respect to defendant Prack 7 .

Although the Haywood decision found New York Corrections Law § 24 to be in violation of the Supremacy Clause, it did so only with respect to claims brought under federal law, such as

7 The court notes that if plaintiff had stated a valid § 1983. In applying supplemental jurisdiction, federal courts due process claim, the fact that defendant Prack are bound to apply state substantive law to claims brought affirmed the disciplinary finding could constitute pursuant to state statute or common law. Baker, 77 F.3d at sufficient personal involvement. See Thomas v. 15. The courts of this district have unanimously held that Calero, No. 09–CV–5209, at *11–18 (S .D.N.Y. Lopez v. Whitmore, Not Reported in F.Supp.3d (2015)

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claims in light of the recommendations of dismissal of all the Haywood decision does not affect the question of the federal causes of action in plaintiff's amended complaint. See district court's jurisdiction to hear pendent state law claims 28 U.S.C. § 1367(c)(3) (the district court may decline to against DOCCS officials. See, e.g., Rucano v. Koenigsmann, exercise supplemental jurisdiction over a claim if all other No. 9:12–CV–35 (MAD/RFT), 2014 WL 1292281, *16 claims over which the court has original jurisdiction have (N.D.N.Y., Mar.31, 2014); Rounds v. Thompson, No. 9:12– been dismissed); City of Chicago v. International College of CV–953, 2013 WL 3187074 at *4 (N.D.N.Y.2013) (collecting Surgeons, 522 U.S. 156, 172, 118 S.Ct. 523, 139 L.Ed.2d 525 cases). If a state would not recognize a plaintiff's right to bring (1997); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.1994). a state claim in state court, a federal court must not allow that claim to be appended to a federal law claim in federal court.

*13 WHEREFORE, based on the findings above, it is Baker, 77 F.3d at 15. RECOMMENDED, that defendants' motion for summary Plaintiff alleges that he was assaulted during a pat-down judgment (Dkt. No. 69) be GRANTED, and that plaintiff's by correctional officers as he traversed a prison walkway, First Amendment and Eighth Amendment Claims be and then again while being transported and questioned about

DISMISSED WITHOUT PREJUDICE TO REFILING,

the incident. (Amended Compl. Dkt No. 32, ¶ 24–43). and that plaintiff's due process and state law claims be Transporting an inmate and subduing that individual, should

DISMISSED WITH PREJUDICE.

a disciplinary issue arise, is ‘common conduct by a DOCCS officer or sergeant.’ “ Crosby v. Russell, No. 9:10–CV–595,

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the 2014 WL 3809129, *5 (N.D.N.Y.2014) (quoting Johnson v. parties have fourteen (14) days within which to file written N.Y. State Dep't of Corr. Servs. & Cmty. Supervision, No. objections to the foregoing report. Such objections shall be 11–CV–0079, 2013 WL 5347468, at *3 (W.D.N.Y. Sept. 23, filed with the Clerk of the Court. FAILURE TO OBJECT 2013)). Ultimately, “an employee will be considered within

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

the scope of his employment so long as he is discharging his PRECLUDE APPELLATE REVIEW. Roldan v. Racette, duties, ‘no matter how irregularly, or with what disregard of 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec. of Health & instructions.’ “ Id., 2014 WL 3809129, *6 (quoting Cepeda Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b) v. Coughlin, 128 A.D.2d 995, 996, 513 N.Y.S.2d 528 (3d (1); Fed.R.Civ.P. 6(a), 6(e), 72. Dep't 1987)). Therefore, based upon the allegations in the amended complaint, this court recommends that defendants' motion for summary judgment as to plaintiff's state law claims

Filed May 20, 2015 be granted, without leave to amend. All Citations Even if New York Corrections Law § 24 did not apply, this Not Reported in F.Supp.3d, 2015 WL 4394604 court would still recommend dismissal of plaintiff's state law End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

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2019 WL 2516605 I. Background Only the Westlaw citation is currently available. United States District Court, N.D. New York. A. Facts Gregory CUCCHIARA, Plaintiff, In support of the motion, Defendant filed a Statement of v. Material Facts. 3 See Dkt. No. 34-1. The facts are reviewed C.O. DUMONT, 1 Defendant. in the light most favorable to Cucchiara as the non-moving party. See subsection II (A) infra. At the time of the incident

1 Dumont is the only remaining Defendant in described in the Complaint, Cucchiara was confined at Great this matter. Therefore, the caption includes Meadow Correctional Facility (“Great Meadow C.F.”). See only Dumont. generally, Compl. 9:18-CV-0182 (GLS/CFH) 3 Local Rule 7.1(a)(3) states: | Summary Judgment Motions Signed 04/26/2019 Any motion for summary judgment shall contain a Statement of Material Facts. The

Attorneys and Law Firms Statement of Material Facts shall set forth, in numbered paragraphs, each material fact Gregory Cucchiara, 16-A-0922, Elmira Correctional Facility, P.O. Box 500, Elmira, New York 14902, Plaintiff pro se. about which the moving party contends there

exists no genuine issue. Each fact listed shall OF COUNSEL: RYAN L. ABEL, ESQ., Assistant Attorney set forth a specific citation to the record General, Attorney General for the State of New York, where the fact is established. The record for The Capitol, Albany, New York 12224-0341, Attorney for purposes of the Statement of Material Facts Defendants. includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. The opposing party shall file a response to the

REPORT-RECOMMENDATION AND ORDER 2 Statement of Material Facts. The non-movant's response shall mirror the movant's Statement 2 of Material Facts by admitting and/or denying This matter was referred to the undersigned for each of the movant's assertions in matching Report-Recommendation and Order pursuant to 28 numbered paragraphs. Each denial shall set forth U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). a specific citation to the record where the factual issue arises. The non-movant's response may

Christian F. Hummel, U.S. Magistrate Judge also set forth any additional material facts that the non-movant contends are in dispute. Any *1 Plaintiff pro se Gregory Cucchiara (“Cucchiara”), an facts set forth in the Statement of Material Facts inmate who was, at all relevant times, in the custody of shall be deemed admitted unless specifically the New York Department of Corrections and Community controverted by the opposing party. Supervision (“DOCCS”), brings this action pursuant to 42 N.D.N.Y. L.R. 7.1(a)(3). U.S.C. § 1983 against Defendant C.O. Dumont (“Defendant” or “Dumont”) for violations of his rights under the Eighth

Plaintiff alleges that on February 26, 2017, he and Defendant Amendment. Dkt. No. 2 (“Compl.”). Presently before the were involved in a use of force incident. Compl. at 4. At Court is Defendant's motion for summary judgment. Dkt. approximately 6:00 p.m., as plaintiff was leaving the mess No. 34. Cucchiara opposed the motion, and Defendant hall to return to his housing block, an officer ordered him submitted a reply. Dkt. Nos. 36, 37. For the following reasons, to place his hands on the wall of the rotunda. Id.; Dkt. No. it is recommended that Defendant's motion for summary 34-3 at 49-53. Cucchiara complied and Defendant searched judgment be granted. his pockets. Dkt. No. 34-3 at 53, 63. Defendant removed an empty medicine bottle from Cucchiara's right pocket. Id. at

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53, 58-59. When Cucchiara yelled out, Defendant punched him in the back of his head. Id. at 53. Defendant continued to 1. Motion for Summary Judgment punch Cucchiara and “slammed” him to the floor. Id.; Compl. at 4. Another officer arrived and kicked Cucchiara's hip while

“A court shall grant summary judgment if the movant shows Defendant continued to “beat” his ribs. Dkt. No. 34-3 at that there is no genuine dispute as to any material fact and 53-54; Compl. at 4. As a result of the incident, Cucchiara the movant is entitled to judgment as a matter of law.” suffered injuries to his left hip. Compl. at 4; Dkt. No. 34-3 FED. R. CIV. P. 56(a). The moving party has the burden of at 32. showing the absence of disputed material facts by providing the Court with portions of “pleadings, depositions, answers

*2 In April 2017, Cucchiara was transferred out of Great to interrogatories, and admissions on file, together with the Meadow C.F. Dkt. No. 34-5 at ¶ 10; Dkt. No. 34-7 at ¶ 12. affidavits, if any,” which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may affect the outcome of the case as determined by substantive

B. Procedural History law, such that “a reasonable jury could return a verdict for On January 19, 2018, the United States District Court for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 the Southern District of New York (“Southern District”) U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In received the Complaint in the within action. 4 Dkt. No. 2. By determining whether summary judgment is appropriate, [the

Court will] resolve all ambiguities and draw all reasonable Order filed on January 24, 2018, Chief United States District inferences against the moving party.” Skubel v. Fuoroli, 113 Judge Colleen McMahon of the Southern District transferred F.3d 330, 334 (2d Cir. 1997). this action to the Northern District of New York (“Northern District”). Dkt. No. 4 (“Transfer Order”). On review of the

To avoid summary judgment, a non-moving party “must do Complaint, the Court directed Defendant to respond to the more than simply show that there is some metaphysical doubt Eighth Amendment claim. Dkt. No. 12. On May 3, 2018, as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 Defendant filed an Answer to the Complaint. 5 Dkt. No. 17. (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v. On November 30, 2018, Cucchiara appeared at a deposition. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 Dkt. No. 34-3. On March 13, 2019, Defendant filed the within L.Ed.2d 538 (1986)) (internal quotation marks omitted). A motion pursuant to Fed. R. Civ. P. 56 seeking judgment as a non-moving party must support such assertions by evidence matter of law with respect to Cucchiara's Eighth Amendment showing the existence of a genuine issue of material fact. See claim. Dkt. No. 24. id. “When no rational jury could find in favor of the non- moving party because the evidence to support is so slight,

4 Cucchiara was confined at Auburn Correctional there is no genuine issue of material fact and a grant of Facility at the time he filed the Complaint. summary judgment is proper.” Gallo v. Prudential Services, Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

5 In the Answer, Defendant pleaded, inter alia, the affirmative defense that Cucchiara failed to exhaust

*3 Where, as here, a party seeks judgment against a pro se his administrative remedies. Dkt. No. 17 at¶ 14. litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

II. Discussion 6 [t]here are many cases in which we have said that a pro se 6 All unpublished opinions cited in this Report- litigant is entitled to “special solicitude,” ... that a pro se Recommendation and Order, unless otherwise litigant's submissions must be construed “liberally,” ... and noted, have been provided to plaintiff. that such submissions must be read to raise the strongest

arguments that they “suggest,” .... At the same time, our cases have also indicated that we cannot read into pro se

A. Legal Standards submissions claims that are not “consistent” with the pro se litigant's allegations, ... or arguments that the submissions

Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

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themselves do not “suggest,” ... that we should not “excuse 34-3. Additionally, the undersigned notes that “[a] verified frivolous or vexatious filings by pro se litigants,” ... and complaint is to be treated as an affidavit ... and therefore that pro se status “does not exempt a party from compliance will be considered in determining whether material issues with relevant rules of procedural and substantive law .... of fact exist....” Colon v. Coughlin, 58 F.3d 865, 872 (2d

Cir. 1995) (citations omitted). Here, Cucchiara's Complaint Id. (citations and footnote omitted); see also Sealed Plaintiff was properly verified by declaration under 28 U.S.C. § 1746. v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008). Compl. at 10; see LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (holding that use of the language “under penalty of perjury” substantially complies with 28 U.S.C. § 1746). As such, the facts set

2. N.D.N.Y. Local Rule 7.1(a)(3) forth in Defendant's Rule 7.1 Statement of Material Facts are Local Rule 7.1(a)(3) requires a party moving for summary accepted as true to the extent that they are not disputed by judgment to file and serve a Statement of Material Facts. Cucchiara's sworn deposition testimony or facts set forth in See N.D.N.Y. L.R. 7.1(a)(3). “The Statement of Material

the verified Complaint. N.D.N.Y.L.R. 7.1(a)(3) (“The Court Facts shall set forth, in numbered paragraphs, each material shall deem admitted any properly supported facts set forth fact about which the moving party contends there exists no in the Statement of Facts that the opposing party does not genuine issue.” Id. The opposing party is required to file specifically controvert.”) (emphasis omitted). a response to the Statement of Material facts “admitting and/or denying each of the movant's assertions in matching numbered paragraphs.” Id. “The Court shall deem admitted B. Exhaustion any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically

*4 Defendant contends that the motion for summary controvert.” Id. (emphasis omitted). judgment must be granted because Cucchiara failed to exhaust his administrative remedies through available

In response to Defendant's motion, plaintiff filed a one- grievance procedures. See Dkt. No. 34. The Prison Litigation page letter that failed to respond to Defendant's Statement of Reform Act (“PLRA”) requires that a prisoner exhaust Material Facts. Dkt. No. 36. Defendant argues that because any administrative remedies available to him or her before plaintiff has failed to file a response to his Statement of bringing an action for claims arising out of his or her Material Facts, the facts set forth therein must be deemed incarceration. See Porter v. Nussle, 534 U.S. 516, 524, 122 admitted. Dkt. No. 37 at 4. The undersigned is not required S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v. Ngo, to “perform an independent review of the record to find proof 548 U.S. 81, 82, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). of a factual dispute.” Prestopnik v. Whelan, 253 F. Supp 2d The exhaustion requirement applies “to all inmate suits about 369, 371 (N.D.N.Y. 2003) (concluding that the “plaintiff's prison life, whether they involve general circumstances or suggestion that the transcript and videotape of the [incident] particular episodes, and whether they allege excessive force be reviewed to identify support for her Statement of Material or some other wrong.” Porter, 534 U.S. at 532, 122 S.Ct. Facts Not in Dispute does not cure her failure to comply 983. Further, the exhaustion requirement applies even where with Rule 7.1(a)(3).”). Although the defendant argues, and the the prisoner seeks relief not available in the administrative Local Rules provide, that the Court shall deem admitted any grievance process, such as monetary damages. Id. at 524, 122 facts the nonmoving party fails to “specifically controvert,” S.Ct. 983. To exhaust administrative remedies, the inmate pro se plaintiffs are afforded special solicitude in this District must complete the full administrative review process set forth and within the Second Circuit. N.D.N.Y. L.R. 7.1(a)(3); Dkt. in the rules applicable to the correctional facility in which No. 37 at 6; see subsection II.A. supra. he or she is incarcerated. See Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation

Even in the absence of a response, Defendant is entitled omitted). to judgment only if the material facts demonstrate his entitlement to judgment as a matter of law. See Champion

Although the Supreme Court has deemed exhaustion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); FED. R. CIV. mandatory, the Second Circuit has recognized that “certain P. 56(c). A copy of Cucchiara's deposition transcript was caveats apply.” Ruggiero v. Cty. of Orange, 467 F.3d annexed as an exhibit to Defendant's motion. Dkt. No. 170, 175 (2d Cir. 2006) (citation omitted). The Supreme Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

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Court recently held that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136 1. Did Plaintiff Exhaust his Administrative Remedies? 8 S. Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). Thus, the “special circumstances” exception in Hemphill v. New York, 380 F.3d

8 First, the inmate must file a complaint with an 680, 686 (2d Cir. 2004) is no longer consistent with the inmate grievance program (“IGP”) clerk within statutory requirements of the PLRA. Williams v. Priatno, 829 twenty-one days of the alleged incident. N.Y. F.3d 118, 123 (2d Cir. 2016). 7 COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1). An IGP representative has sixteen calendar days

7 In Williams v. Priatno, the Second Circuit debated to informally resolve the issue. Id. § 701.5(b)(1). Ross’s effect on Hemphill’s estoppel exception. If no informal resolution occurs, the IGRC must See Williams, 829 F.3d at 123. The Williams Court hold a hearing within sixteen days of receipt of stated that “Ross largely supplants our Hemphill the grievance and must issue a written decision inquiry by framing the exception issue entirely within two working days after the conclusion within the context of whether administrative of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the remedies were actually available to the aggrieved determination is unfavorable to the inmate, the inmate.” Id. (citing Ross, 136 S. Ct. at 1858-59). inmate may appeal the IGRC's determination to the facility superintendent within seven calendar days

Although Ross eliminates the “special circumstances” of receipt of the determination. Id. § 701.5(c)(1). If exception, courts must still consider the PLRA's “textual the superintendent's determination is unfavorable, exception to mandatory exhaustion.” Ross, 136 S. Ct. at the inmate may appeal to CORC within seven days 1858. Under this exception, courts must determine whether after receipt of the superintendent's determination. administrative remedies were “available” to a prisoner. Id. Id. §§ 701.5(d)(i)-(ii). CORC must “review each The Supreme Court identified three circumstances where appeal, render a decision on the grievance, and administrative remedies may be unavailable to a prisoner. transmit its decision to the facility, with reasons First, “an administrative procedure is unavailable when stated, for the [inmate], the grievance clerk, the (despite what regulations or guidance materials may promise) superintendent, and any direct parties within thirty it operates as a simple dead end — with officers unable (30) calendar days from the time the appeal was or consistently unwilling to provide any relief to aggrieved received.” Id. § 701.5(d)(3)(ii). Parties do not inmates.” Id. at 1859 (citing Booth v. Churner, 532 U.S. dispute that at all relevant times, DOCCS had in 731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). place a three-step inmate grievance program. N.Y. “Next, an administrative scheme might be so opaque that COMP. CODES R. & REGS. tit. 7, § 701.5. it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison

*5 In support of the motion for summary judgment, administrators thwart inmates from taking advantage of a Defendant provided the Declaration of Shelley Mallozzi grievance process through machination, misrepresentation, or (“Mallozzi”), the Director of the Inmate Grievance Program intimidation.” Id. at 1860. (“IGP”) for DOCCS. Dkt. No. 34-5. Mallozzi avers that “[a]n allegation of excessive force may be the subject for the three

If it is found that the plaintiff has not exhausted all available step grievance process[.]” Dkt. No. 34-5 at ¶ 8. Mallozzi administrative remedies, his or her case should be dismissed reviewed Central Office Review Committee (“CORC”) without prejudice. See Standard Inv. Chartered, Inc. v. Nat'l records for determinations upon grievance appeals brought by Ass'n of Sec's. Dealers, Inc., 560 F.3d 118, 124 (2d Cir. 2009) Cucchiara and found no grievance appeals from 2017 to the (citation omitted). Since “[f]ailure to exhaust administrative present. Id. at ¶ 9. Defendant also submitted the Declaration remedies is often a temporary, curable procedural flaw,” and of Alexandra Mead (“Mead”), the IGP Supervisor at Great “[i]f the time permitted for pursuing administrative remedies Meadow C.F. Dkt. No. 34-7. Mead reviewed Great Meadow has not expired, a prisoner ... can cure the defect by exhausting C.F. records and found no grievances filed by Cucchiara [the available remedies] and reinstating his suit.” Berry v. related to allegations of excessive force on or around February Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider v. 26, 2017. Id. at ¶ 13. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)). Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

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Cucchiara testified that he did not file a grievance related to the incident. 9 Dkt. No. 34-3 at 84. During the deposition Here, with regard to plaintiff's alleged letters, even assuming

Cucchiara wrote to the Inspector General and “Albany,” it is Cucchiara was asked the following questions and gave the well-settled in this Circuit that a plaintiff's letters to prison following responses: officials or other officials outside the grievance chain of Q. Did you file a grievance with respect to this incident at command are insufficient to properly exhaust administrative issue here? remedies. See Geer v. Chapman, No. 9:15-CV-952 (GLS/ ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016), A. No. all -- all I did was -- was say that they beat me up report and recommendation adopted, 2016 WL 6090874 for nothing, that's it. (N.D.N.Y. Oct. 18, 2016) (citing Macias v. Zenk, 495 F.3d 37, 44-45 (2d Cir. 2007) (“It is well-settled that writing letters to

Q. Who did you say that to? prison officials, or other officials, is insufficient to properly exhaust administrative remedies.”)). Thus, to the extent that

A. Sergeant Boiling, I think. Cucchiara did send letters, 10 these letters are insufficient to Dkt. No. 34-3 at 84. constitute proper exhaustion. Q. Okay. So you never filed anything in writing regarding 10 this prior to commencing the lawsuit itself? Cucchiara has not proffered evidence of such letters. A. I told a whole bunch of people. I told -- I told -- there's With respect to letters plaintiff alleges that he sent to a -- the Superintendent, construing his submission liberally, Cucchiara argues that he exhausted the remedies available Q. Okay. to him related to excessive force because he utilized the A. -- a mental counsel -- counselor or you see some type expedited administrative process. of shrink or something like that. His -- his name -- his name is Ford --

Where the grievance involves allegations of employee excessive force, as alleged by Cucchiara, there is an expedited

Dkt. No. 34-3 at 86. administrative process. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.8; see Torres v. Carry, 691 F. Supp. 2d 366,

9 In the Complaint, Cucchiara claims that he filed 369-70 (S.D.N.Y. 2009). Complaints and grievances of this a grievance at Auburn C.F. related to religious nature are forwarded directly to the superintendent of the claims. Compl. at 6-7. The record does not indicate

facility. See Bell v. Napoli, No. 9:17-CV-850 (ATB), 2018 when this grievance was filed and Cucchiara does WL 6506072, at *2 (N.D.N.Y. Dec. 11, 2018). In such cases not allege that the grievance addressed the 2017 use the superintendent is required to order an investigation and of force incident. render a decision within twenty-five (25) days. N.Y.C.R.R.,

title 7, § 701(a)-(f). If the superintendent fails to respond In opposition to Defendant's motion, Cucchiara provided a within the required twenty-five (25) time limit the inmate submission that is at odds with his deposition testimony. To may appeal his grievance to the CORC. Disagreement with wit, Cucchiara claims that he wrote “several times about the [ ] the superintendent's decision in the expedited review process incident” to the Superintendent and did not receive a response. also requires an appeal to the CORC. See id. § 701.8(g)-(h); Dkt. No. 36. Cucchiara also maintains that he wrote “a dozen see also Espinal v. Goord, 588 F.3d 119,125 (2d Cir. 2009) times” to the Inspector General and “on several occasions” to (explaining IGP and the expedited procedure for harassment “Albany.” Id. claims and its appeal mechanism through the CORC). The Second Circuit has long recognized this procedure as an

As an initial matter, the undersigned notes that “[a] party “available remedy” for purposes of the PLRA. See Hall v. may not create an issue of fact by submitting an affidavit in Cnty. of Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL opposition to a summary judgment motion that, by omission 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013). or addition, contradicts the affiant's previous deposition testimony.” Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997). Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

2019 WL 2516605

*6 Cucchiara did not provide any evidence of a complaint, administrative remedies, there is no genuine dispute that grievance, or any subsequent appeal. 11 Even assuming that Cucchiara failed to exhaust administrative remedies related to

the 2017 use of force incident. Cucchiara forwarded letters to the Superintendent and that the letters were received, as discussed supra, DOCCS records do not show any grievances that were appealed regarding an excessive force incident. See Dkt. No. 34-5. Cucchiara

2. Availability of Administrative Remedies testified that he did not appeal to CORC because he “didn't even know [CORC] existed.” Dkt. No. 34-3 at 86. To the Construing the Complaint liberally, Cucchiara urges the Court to excuse his failure to exhaust because he feared extent that Cucchiara contends that he was unaware of the retaliation. 12 Compl. at 7-8. Specific threats of retaliation or grievance procedures, a plaintiff's “failure to exhaust his remedies cannot be excused merely because he did not know

intimidation by prison employees can render administrative there were any other steps in the grievance procedure.” remedies unavailable. See Ross, 136 S. Ct. at 1860 & n.3. Cobbs v. Lamare, No. 9:14-CV-96 (MAD/TWD), 2015 WL However, a generalized fear of retaliation is insufficient to 2452323, at *6 (N.D.N.Y. May 21, 2015) (citation and internal overcome a failure to exhaust administrative remedies. See quotation marks omitted). Accordingly, plaintiff's letters do Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 not constitute proper exhaustion. WL 4411338, at *5 (N.D.N.Y. July 5, 2016). 11 12 See Footnote 8, supra. In the Complaint, as a “reason[ ] why [he] did not file a grievance,” Cucchiara stated, “I was

Furthermore, insofar as Cucchiara argues that he sufficiently left susceptible [sic] attack through practical magic exhausted his administrative remedies because he verbally with the lack of my amulet.” Compl. at 7. complained to several officials, “[t]he law is well-settled that informal means of communicating and pursuing a grievance,

Here, Cucchiara testified that, on two prior occasions, when even with senior prison officials, are not sufficient under the he filed grievances, “they almost got [him] killed.” Dkt. PLRA.” Timmons v. Schriro, No. 14-CV-6606, 2015 WL No. 34-3 at 85. Cucchiara claims that corrections officers 3901637, at *3 (S.D.N.Y. June 23, 2015) (citation omitted). ordered other inmates to beat him, denied him medical Additionally, here, where Cucchiara's litigation history treatment, and stole his property. Compl. at 7-8. Cucchiara indicates that he was fully aware that verbal complaints do does not state how any specific threat impacted his ability not excuse an inmate from pursuing the grievance procedure, to exhaust administrative remedies related to the events such a claim is not reasonable. During the deposition, that occurred on February 26, 2017. On review of the Cucchiara testified that he previously commenced a civil record, the undersigned concludes that much of Cucchiara's action in the Southern District alleging violations of his fear is generalized. Indeed, Cucchiara offers no evidence constitutional rights while he was in the custody of the New establishing that he was threatened by any officers after the York City Department of Corrections. Dkt. No. 34-3 at 8, February 26, 2017 incident. See Salmon, 2016 WL 4411338, 31; see Cucchiara v. Hollingsworth, et al., No. 15-CV-314, at *5 (stating there must be affirmative actions or specific 2016 WL 6068193 (S.D.N.Y. Oct. 14, 2016). In that action, instances of physical assault or threats of retaliation for Cucchiara claimed that his “grievances and complaints to plaintiff to show unavailability of the grievance process); ‘capt[a]ins and staff’ were ‘ignored.’ ” Id. at *7. In a 2016 Harrison v. Stallone, No. 9:06-CV-902(LEK/GJD), 2007 WL Decision and Order on the defendants' motion for summary 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) (“It has been judgment on the issue of exhaustion, the Court dismissed the held that a ‘general fear’ of retaliation is not sufficient to claims against certain defendants explaining that Cucchiara's excuse the exhaustion requirement ... If an inmate could verbal complaints, “do[ ] not excuse his failure to pursue all simply state that he feared retaliation, there would no point in four steps of the IGRP — he was still required to timely having a grievance procedure.”) (citations omitted) (emphasis request a formal hearing before the IGRC, to appeal to omitted). Moreover, insofar as Cucchiara suggests that he the commanding officer, and ultimately, to the CORC.” Id. feared physical retaliation if he were to file a grievance, such a (citation omitted). claim is further countered by the fact that the Complaint fails to mention any fear of retaliation.

Because Cucchiara's letters and verbal complaints, outside of the grievance process, are insufficient to exhaust his Cucchiara v. Dumont, Not Reported in Fed. Supp. (2019)

2019 WL 2516605

objections to the foregoing report. Such objections shall be *7 In sum, because Cucchiara fails to plausibly present filed with the Clerk of the Court. FAILURE TO OBJECT questions of fact regarding his failure to exhaust his remedies,

TO THIS REPORT WITHIN FOURTEEN (14) DAYS

it is recommended that Defendant's motion for summary WILL PRECLUDE APPELLATE REVIEW . Roldan v. judgment be granted. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED R. CIV. P. 6(a), 6(e),

III. Conclusion 72. 13 WHEREFORE , based on the findings set forth above, it is 13 hereby: If you are proceeding pro se and are served with this Order by mail, three additional days will be added RECOMMENDED , that Defendant's motion for summary to the fourteen-day period, meaning that you have judgment (Dkt. No. 34) be: GRANTED ; and it is further seventeen days from the date the Order was mailed

to you to serve and file objections. FED. R. CIV. P. RECOMMENDED , that the Complaint be DISMISSED 6(d). If the last day of that prescribed period falls without prejudice ; and it is further on a Saturday, Sunday, or legal holiday, then the

deadline is extended until the end of the next day ORDERED , that copies of this Report-Recommendation and that is not a Saturday, Sunday, or legal holiday. Id. Order be served on the parties in accordance with the Local § 6(a)(1)(C). Rules.

All Citations IT IS SO ORDERED . Not Reported in Fed. Supp., 2019 WL 2516605 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Geer v. Chapman, Not Reported in Fed. Supp. (2016)

2016 WL 6090874

No. 32.) Following fourteen days from the service thereof, the Clerk has sent the file, including any and all objections filed

2016 WL 6090874

by the parties herein. Only the Westlaw citation is currently available. United States District Court, N.D. New York. No objections having been filed, and the court having reviewed the Report-Recommendation for clear error, it is

Pakenauth GEER, Plaintiff, hereby v. Officer CHAPMAN et al., Defendants. ORDERED that the Report-Recommendation (Dkt. No. 32) is ADOPTED in its entirety; and it is further 9:15-cv-952 (GLS/ATB) | ORDERED that defendants' motion for summary judgment Signed 10/18/2016 (Dkt. No. 23) be GRANTED ; and it is further Attorneys and Law Firms ORDERED that the plaintiff’s amended complaint, (Dkt. No.

FOR THE PLAINTIFF: PAKENAUTH GEER, 05-A-1952,

6), is DISMISSED IN ITS ENTIRETY ; and it is further

BUFFALO FEDERAL DETENTION FACILITY, 4250

Federal Drive, Batavia, New York 14020.

ORDERED that the Clerk is directed to close the case; and it is further

FOR THE DEFENDANTS: HON. ERIC T.

SCHNEIDERMAN, New York State Attorney General,

ORDERED that the clerk of the court serve a copy of this The Capitol, OF COUNSEL: MICHAEL G. MCCARTIN, order upon the parties in accordance with this court’s Local Assistant Attorney General, Albany, New York 12224. Rules. ORDER IT IS SO ORDERED. Gary L. Sharpe, Senior District Judge October 18, 2016. *1 The above-captioned matter comes to this court All Citations following an Report-Recommendation by Magistrate Judge Andrew T. Baxter, duly filed on September 26, 2016. (Dkt. Not Reported in Fed. Supp., 2016 WL 6090874 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

2017 WL 2791063

has expired and plaintiff has not filed a motion to amend his complaint.

KeyCite Yellow Flag - Negative Treatment Presently pending is defendants' motion for summary Distinguished by Sawyer v. Locy, N.D.N.Y., December 16, 2020 judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(a) for plaintiff's failure to exhaust

2017 WL 2791063

administrative remedies before commencing this action. Dkt. Only the Westlaw citation is currently available. No. 26. Plaintiff filed a response in opposition to defendants' United States District Court, N.D. New York. motion. Dkt. No. 34. Defendants filed a reply. Dkt. No. 39. Edy RODRIGUEZ, Plaintiff, v. J. CROSS, Sergeant, Clinton I. Background Correctional Facility; et al., Defendants. The facts are reviewed in the light most favorable to plaintiff No. 15-CV-1079 (GTS/CFH) as the non-moving party. See subsection II(A) infra. At | the relevant times giving rise to plaintiff's claims, plaintiff Signed 05/09/2017 was an inmate incarcerated at Clinton Correctional Facility (“Clinton”).

Attorneys and Law Firms On July 10, 2014, plaintiff wrote a letter to Sgt. Cross Edy Rodriguez, East Elmhurst, NY, pro se. “complaining about being harassed” by staff at Clinton. Ryan E. Manley, Harris, Conway & Donovan, Christopher J. Compl. at 4. Plaintiff further alleges that he was taken out of Hummel, New York State Attorney General, Albany, NY, for his cell on July 14, 2014, brought to the second floor of the Defendants. facility's hospital, and subjected to a “beating” by defendants.

Compl. at 4-5. Sgt. Cross grabbed him by the hair; Sgt. Furnia punched him; and C.O. Falcon and C.O. Roberts punched him in the face, back, and neck. Id. at 4. Plaintiff alleges “each

REPORT-RECOMMENDATION AND ORDER 1 one of the blows” he suffered was from the named defendants, as well as other officers he cannot identify by name. Id. at 1 This matter was referred to the undersigned for 5-6. After the alleged incident, plaintiff was seen by a nurse report and recommendation pursuant to 28 U.S.C. with “about ten” officers present in the room, where he admits § 636(b) and N.D.N.Y.L.R. 72.3(c). “having no choice,” but to tell the nurse that officers had just beat him up. See Affirmation of Christopher J. Hummel

Christian F. Hummel, U.S. Magistrate Judge (“Hummel Aff.”), Dkt. No. 26-1, Exhibit (“Exh.”) A 3 at 59-60. 4 *1 Plaintiff pro se Edy Rodriguez (“Plaintiff”), an inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision

3 Exhibit A to the Affirmation of Christopher J. (“DOCCS”), brings this action pursuant to 42 U.S.C. § Hummel is a transcript of plaintiff's deposition, 1983, alleging that Sergeant (“Sgt.”) J. Cross, Sgt. R. Furnia, held on September 19, 2016 at Great Meadow Correction Officer (“C.O.”) G. Falcon, and C.O. J. Roberts Correctional Facility. See Dkt. No. 26-1. (collectively “Defendants”) violated his constitutional rights 4 under the First and Eighth Amendments. Dkt. No. 1

When citing documents within the record, the (“Compl.”). 2 Court uses the page numbers generated by CM/

ECF.

2 On March 27, 2017, this Court granted plaintiff an While at Clinton, plaintiff filed five grievances. See extension until May 1, 2017 to file a motion to Declaration of Christine Gregory (“Gregory Decl.”), Dkt. amend his complaint. Dkt. No. 38. The deadline No. 26-3 Exh. A at 6. Only one grievance was appealed.

Declaration of Jeffrey Hale (“Hale Decl.”), Dkt. No. 26-2 ¶¶ 12-13. The subject matter of the single appealed grievance

Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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does not concern the matter before the Court. Id. ¶ 12. The 5

All unpublished opinions cited to by the Court only grievance filed that is pertinent to the pending motion in this Report-Recommendation and Order are, was filed on July 29, 2014. See Gregory Decl. Exh. B at 8. unless otherwise noted, attached to this Report- This grievance alleges that plaintiff suffered “an assault by Recommendation and Order. (C.O.)” and, following the assault, did not receive appropriate Plaintiff alleges that defendants retaliated against him in medical care. Id. The investigation into the July 29, 2014 violation of the First Amendment, used excessive force grievance concluded that plaintiff saw his medical provider, against him in violation of the Eighth Amendment, and and medicine was given to him without any further action. Id. violated his Due Process rights under the First and Fourteenth at 10. The investigation did not mention anything about an Amendments. See Compl. at 7. Defendants argue that assault. Id. plaintiff's complaint should be dismissed in its entirety as plaintiff failed to exhaust his administrative remedies with

*2 Plaintiff alleges that he filed a grievance regarding the respect to the causes of action outlined in the Complaint. See incidents described in his complaint, but an unidentified Defendants' Memorandum of Law, Dkt. No. 26-5 at 3. Sergeant destroyed the grievance. Compl. at 2. He also alleges that he was beaten by correction staff for filing the grievance. Id. Plaintiff also states that he filed a handwritten grievance (not on a grievance form) on July 19, 2014, regarding the July

A. Legal Standard For Motions 14, 2014 incident. See Hummel Aff. Exh. A at 93. Plaintiff Pursuant to Fed. R. Civ. P. 56(a) alleges that he sent a copy of this grievance to his mother and “A court shall grant summary judgment if the movant shows instructed her to send it directly to Clinton “[f]rom outside.” that there is no genuine dispute as to any material fact and Id. at 94. Defendants have no record of this grievance being

the movant is entitled to judgment as a matter of law.” filed. See Gregory Decl. Exh. A at 6. Plaintiff never inquired FED. R. CIV. P. 56(a). The moving party has the burden of further about the July 19, 2014 grievance, but maintains that showing the absence of disputed material facts by providing he has handwritten copies of the grievance since he did not the Court with portions of “pleadings, depositions, answers have access to carbon paper when he originally drafted this

to interrogatories, and admissions on file, together with the grievance. See Hummel Aff. Exh. A at 94-95, 96-97. The affidavits, if any,” which support the motion. FED. R. CIV. July 19, 2014 grievance was drafted while plaintiff was in P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). keeplock. Id. at 93.

A fact is material if it may affect the outcome of the case as determined by substantive law, such that “a reasonable jury

Plaintiff further alleges, in his response to defendants' motion could return a verdict for the nonmoving party.” Anderson for summary judgment, that defendants have total control v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “In over facility mail and any failure to exhaust administrative determining whether summary judgment is appropriate, [the remedies occurred because defendants strategically removed

Court] will resolve all ambiguities and draw all reasonable grievances from the mailbox to cover up their use of excessive inferences against the moving party.” Skubel v. Fuoroli, 113 force against plaintiff. See Dkt. No. 34 at 4. Plaintiff F.3d 330, 334 (2d Cir. 1997). further alleges a general belief that there is a pattern of prison officials threatening and retaliating against inmates

To avoid summary judgment, a non-moving party “must for filing grievances, thus making administrative remedies do more than simply show that there is some metaphysical unavailable. Id. at 6. Lastly, plaintiff alleges that there is doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d an “unwritten posture” at Clinton where inmates are not 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., given grievance forms unless they provide a clear description

Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A of their complaint, or the complaint does not involve staff non-moving party must support such assertions by evidence misconduct. Id. at 8.

showing the existence of a genuine issue of material fact. Carey, 923 F.2d at 19. “When no rational jury could find in favor of the non-moving party because the evidence to

II. Discussion 5 support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v.

Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

2017 WL 2791063

Prudential Services, Ltd. Partnership, 22 F.3d, 1219, 1224 (2d 170, 175 (2d Cir. 2006) (citation omitted). Until recently, Cir. 1994). courts in this District followed a three-part test established

by the Second Circuit in Hemphill v. New York, 380 F.3d *3 Where, as here, a party seeks judgment against a pro se 680, 686 (2d Cir. 2004). Under the test established in litigant, a court must afford the non-movant special solicitude. Hemphill, a plaintiff's failure to exhaust could be excused See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 if a plaintiff established that his or her failure to exhaust (2d Cir. 2006). As the Second Circuit has stated, was justified by “special circumstances.” Id. However, the

Supreme Court recently held that “[c]ourts may not engraft an [t]here are many cases in which we have said that a pro se unwritten ‘special circumstances’ exception onto the PLRA's litigant is entitled to “special solicitude,” ... that a pro se exhaustion requirement.” Ross v. Blake, 136 S. Ct. 1850, litigant's submissions must be construed “liberally,” ... and 1862 (2016). As such, the special circumstances exception that such submissions must be read to raise the strongest previously promulgated by the Second Circuit in Hemphill arguments that they “suggest,” .... At the same time, our is no longer consistent with the statutory requirements of the cases have also indicated that we cannot read into pro se PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016). submissions claims that are not “consistent” with the pro se litigant's allegations, ... or arguments that the submissions

*4 Although the Supreme Court's decision in themselves do not “suggest,” ... that we should not “excuse Ross eliminates the “special circumstances” exception frivolous or vexatious filings by pro se litigants,” ... and promulgated by Hemphill, courts must still consider the that pro se status “does not exempt a party from compliance PLRA's “textual exception to mandatory exhaustion.” with relevant rules of procedural and substantive law” .... Ross, 136 S. Ct. at 1858. Under this exception, courts must determine whether administrative remedies were

Id. (citations and footnote omitted); see also Sealed Plaintiff “available” to a prisoner. Id. The Supreme Court identified v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008). three circumstances where administrative remedies may

be unavailable to a prisoner. First, “an administrative procedure is unavailable when (despite what regulations or

B. Exhaustion of Administrative Remedies guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling The Prison Litigation Reform Act (“PLRA”) requires that a to provide any relief to aggrieved inmates.” Id. at 1859 prisoner exhaust any administrative remedies available to him (citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)). or her before bringing an action for claims arising out of his or “Next, an administrative scheme might be so opaque that her incarceration. Porter v. Nussle, 534 U.S. 516, 524 (2002); it becomes, practically speaking, incapable of use.” Id. see also Woodford v. Ngo, 548 U.S. 81, 82 (2006). The Lastly, administrative remedies are unavailable where “prison exhaustion requirement applies “ ‘to all inmate suits about administrators thwart inmates from taking advantage of a prison life, whether they involve general circumstances or grievance process through machination, misrepresentation, or particular episodes, and whether they allege excessive force intimidation.” Id. at 1860. or some other wrong.’ ” Mauldin v. Kiff, No. 11-CV-107- A, 2014 WL 2708434, at *4 (W.D.N.Y. June 16, 2014)

Here, there is no genuine dispute that at all relevant times, (quoting Porter, 534 U.S. at 532). Further, the exhaustion DOCCS had in place a three-step inmate grievance program. requirement applies even where the prisoner seeks relief N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. First, not available in the administrative grievance process, such the inmate must file a complaint with an inmate grievance as monetary damages. Porter, 534 U.S. at 524. To exhaust program (“IGP”) clerk within twenty-one days of the alleged administrative remedies, the inmate must complete the full incident. Id. at § 701.5(a)(1). An IGP representative has administrative review process set forth in the rules applicable sixteen calendar days to informally resolve the issue. Id. at to the correctional facility in which he or she is incarcerated. § 701.5(b)(1). If no informal resolution occurs, the Inmate Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation Grievance Review Committee (“IGRC”) must hold a hearing omitted). within sixteen days of receipt of the grievance and must issue a written decision within two working days after the

Although the Supreme Court has deemed exhaustion conclusion of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the mandatory, the Second Circuit has recognized that “certain determination is unfavorable to the inmate, the inmate may caveats apply.” Ruggiero v. County of Orange, 467 F.3d Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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appeal the IGRC's determination to the facility superintendent within seven calendar days of receipt of the determination. *5 After the alleged incident of excessive force, plaintiff Id. § 701.5(c)(1). If the superintendent's determination is was seen by a nurse in a room with “about ten” officers unfavorable to the inmate, the inmate may appeal to the present, where he admits “having no choice” but to tell the Central Office Review Committee (“CORC”) within seven nurse that the officers had beat him up. Hummel Aff. Exh. days after receipt of the superintendent's determination. Id. A at 59-60. Plaintiff alleges filing grievances on July 19, §§ 701.5(d)(i)-(ii). CORC must “review each appeal, render 2014 and July 29, 2014 that mention the assault. See id. at a decision on the grievance, and transmit its decision to the 93; Gregory Decl. Exh. B at 6, 8-10. Defendants state that facility, with reasons stated, for the [inmate], the grievance there is no record of appeal on any grievances pertaining clerk, the superintendent, and any direct parties within thirty to the alleged assault. Gregory Decl. ¶ 15. While plaintiff's (30) calendar days from the time the appeal was received.” complaints were aired verbally and in writing, plaintiff failed Id. § 701.5(d)(3)(ii). to utilize the procedures required to exhaust administrative

remedies. Timmons v. Schriro, No. 14-CV-6606(RJS), 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal means of communicating and

1. Application pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA.”). Thus, there is no

First, the Court will address whether there is any genuine genuine dispute that plaintiff failed to exhaust administrative dispute that plaintiff failed to exhaust his administrative remedies. remedies. Courts in the Second Circuit have consistently held that any informal resolutions or relief outside of

As a result, the Court must determine whether administrative the administrative procedures do not satisfy exhaustion remedies were in fact available to plaintiff. See Ross, 136 S. requirements. See, e.g., Macias v. Zenk, 495 F.3d 37, 43 Ct. at 1858 (“An inmate ... must exhaust available remedies, (2d Cir. 2007) (holding that regardless of whether prison but need not exhaust unavailable ones”); Mena v. City officials know of plaintiff's complaints in a “substantive of New York, No. 13-cv-2430(RJS), 2016 WL 3948100, sense,” procedural exhaustion of remedies must still occur); at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct. Ruggiero v. Cty. of Orange, 467 F.3d 170, 177-78 (2d Cir. at 1862) (“[T]he lone surviving exception to the PLRA's 2006); Perez v. City of N.Y., No. 14 CIV. 07502(LGS), 2015 exhaustion requirement is that embedded in its text: that an WL 3652511, at *4 (S.D.N.Y. June 11, 2015) (“Plaintiff's inmate need only exhaust those administrative remedies that allegation that he advised others of his grievance does not are ‘available’ to him.”). Plaintiff sets forth three factual excuse his failure to exhaust the administrative process.”). arguments as to why administrative remedies were not available to him. First, plaintiff alleges that the grievance

Here, subsequent to the alleged events giving rise to the matter procedures were unavailable to him because he was denied before the Court, plaintiff states he and family members access to paper and writing instruments. See Compl. at 3. contacted the Inspector General's Office to complain about Next, plaintiff alleges that he was physically beaten when he prison conditions and concerns of plaintiff's safety. See attempted to take steps to utilize the grievance process. Id. Hummel Aff. Exh. A at 89, 90. Such correspondence does Lastly, plaintiff suggests that he never received a response to not satisfy exhaustion and falls outside of the grievance his grievance, his mail was tampered with, and his letters were procedures. See Geer v. Chapman, No. 9:15-CV-952(GLS/ not delivered. See Hummel Aff. Exh. A at 91-92, 94. ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016), report and recommendation adopted, No. 9:15- CV-952 (GLS/ATB), 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (“It is well-settled that writing letters to prison

a. Lack of Paper and Pen to officials, or other officials, is insufficient to properly exhaust Complete Grievance Procedures administrative remedies.”); Salmon v. Bellinger, No. 9:14- CV-0827(LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y. The third prong of Ross is triggered by plaintiff's argument July 5, 2016), report and recommendation adopted by, that he was denied access to pen and paper, as it shows No. 9:14-CV-0827(LEK/DJS), 2016 WL 4275733 (N.D.N.Y. an alleged attempt to stop him from taking part in the Aug. 12, 2016) (holding that letters sent to the Inspector grievance process. When a plaintiff-inmate asserts that General do not satisfy exhaustion procedures). a defendant-facility withheld pens, courts have granted Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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summary judgment against a plaintiff when “the record does security reasons, or in other circumstances as not show that “[p]laintiff indicated to prison officials that required. Id. at pt. 301. he needed a pen so he could file a grievance or that prison

7 Both the August and November grievances are officials refused to provide him a pen for this purpose.” Mena unrelated to the cause of action before the Court. v. City of N.Y., No. 12 CIV. 6838(GBD), 2013 WL 3580057, Gregory Decl. Exh. A at 6. at *2 (S.D.N.Y. July 10, 2013). When an inmate argues that a correction officer denies him access to pen or paper, even

*6 Lastly, in his response to defendants' motion for summary assuming the allegations are true, courts examine whether the judgment, plaintiff alleges that there is an “unwritten posture” inmate was drafting other documents during the same time at Clinton where inmates are not given grievance forms unless period, or whether they were able to access materials from they provide a clear description of their complaint, or if their other sources. See Williams v. Ramos, No. 13 CV 826(VLB),

complaint does not involve staff misconduct. Dkt. No. 34 2015 WL 864888, at *3 (S.D.N.Y. Feb. 9, 2015) (“It is at 8. Such general allegations without any factual support unclear how plaintiff was able to submit [other] grievances are insufficient to show that procedures were unavailable, if defendants took his pens and paper and threatened him ... coupled with the fact that, grievances can and have been Moreover, when defendants allegedly stole his pens and

submitted by plaintiff on plain paper. N.Y. COMP. CODES papers, plaintiff testified he was able to file grievances on R. & REGS. tit. 7, § 701.5(a)(1) (“If this form is not readily his commissary sheet.”); Lahoz v. Orange Cty. Jail, No. 08 available, a complaint may be submitted on plain paper.”); CIV. 4364(RWS), 2010 WL 1789907, at *3 (S.D.N.Y. Apr. see Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y. 29, 2010) (stating that an inmate was not deprived of writing

2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (granting materials when he drafted a handwritten letter during the same summary judgment where plaintiff does not allege that any time period as the grievance process). specific officer thwarted his efforts to timely file a grievance);

Hummel Aff. Exh. A at 94. Here, the Court notes contradictory statements within the complaint pertaining to plaintiff's access to writing Even if the Court assumes that plaintiff was denied access to instruments or paper. When prompted as to why facts relating pen and paper while in the SHU, the grievances filed in July to the complaint were not presented in the grievance program, 2014 were filed within the twenty-one calendar days required, plaintiff asserts that he was denied a paper or pen. Compl. at

and his subsequent failure to exhaust administrative remedies 3. However, plaintiff also states that he wrote a grievance, the regarding those grievances is unaffected by any denial of pen grievance was destroyed by a Sergeant, and he was beaten in and paper that occurred in the past. Thus, the Court rejects retaliation for writing the grievance. See id. at 2. The only plaintiff's argument as there is no genuine dispute of fact time plaintiff asserts that he was denied a paper and pen was

that administrative remedies were unavailable due a lack of when he was taken to the Special Housing Unit (“SHU”) 6 on writing instruments or paper. July 14, 2014 after the alleged incident. See id. at 3; Hummel Aff. Exh. A at 68. In fact, records indicate that plaintiff filed grievances on July 19, July 29, August 4, and November 19 of

b. Allegation that Grievance Was that same year. 7 Gregory Decl. Exh. A at 6. Plaintiff does not Not Received and Mail Tampering allege any difficulties obtaining a pen and paper after the July Courts have long held that where an inmate does not receive 2014 SHU stay, but rather, admits having “a piece of paper a response to a written grievance, the inmate must appeal that an inmate had and a pen” on at least one occasion. See to the next level of review. See Khudan v. Lee, No. 12- id. at 94. cv-8147(RJS), 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17, 2015) (dismissing a plaintiff's complaint where plaintiff failed

6 SHUs exist in all maximum and certain medium to appeal to the next level of review after not receiving security facilities. The units “consist of single- a response to his filed grievance); see also Veloz v. New occupancy cells grouped so as to provide separation York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 from the general population....” N.Y. COMP. Fed.Appx. 39 (2d Cir. 2006) (“[P]laintiff's allegation that CODES R. & REGS. tit. 7, § 300.2(b). Inmates are these particular grievances were misplaced or destroyed by confined in a SHU as discipline, pending resolution correctional officers ultimately does not relieve him of the of misconduct charges, for administrative or requirement to appeal these claims to the next level once it Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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became clear to him that a response to his initial filing was an example where plaintiff successfully sent legal mail to his not forthcoming.”). mother). However, recent decisions by courts in the Second Circuit *7 In plaintiff's response in opposition to defendants' have addressed the availability of administrative remedies motion for summary judgment, he raises general complaints when an inmate's grievance is unfiled and unanswered. These about defendants having total control over facility mail cases have focused on the second prong of the Ross test, and defendants strategically removing grievances from the where a grievance process becomes unusable for an inmate. mailbox to cover up their excessive use of force against Ross, 136 S. Ct. at 1859. In Williams v. Priatno, the Second plaintiff and other inmates. See Dkt. No. 34 at 2. Plaintiff's Circuit held that when an inmate's grievance is not filed, bare assertions do not excuse exhaustion requirements. “the regulations plainly do not describe a mechanism for Courts in this Circuit have continuously held that mere appealing a grievance.” See 829 F.3d at 126. Thus, “the contentions or speculation of grievances being misplaced process to appeal an unfiled and unanswered grievance is by officers do not create a genuine issue of material fact prohibitively opaque, such that no inmate could actually when there is no evidence to support the allegations. Khudan, make use of it.” Id. The Williams ruling relied upon a 2016 WL 4735364, at *6 (citations omitted) (holding that scenario where an inmate is housed in a SHU and personally under Ross, mere stand alone contentions of mail tampering gives a grievance to a correction officer, as required by without support and particularity cannot deem administrative grievance procedures. Id. at 120-21. Additionally, adding remedies unavailable); Veloz, 339 F. Supp. 2d at 516 (holding to the “opaque” nature of the procedures, the plaintiff in that summary judgment is proper where the plaintiff contends Williams followed up when he did not receive a response that officers misplaced his grievances, but offers no evidence after a week, but was subsequently transferred one week later to support his claim). In Khudan, the court did not consider without any resolution or knowledge of his grievance being or rely upon conclusory allegations when plaintiff attested he filed. Williams, 829 F.3d at 120-21. Ultimately, the Williams “was informed by other [unnamed] inmates that grievances Court held that “in giving his grievance to the correction routinely go ‘missing.’ ” Khudan, 2016 WL 4735364, at *6. officer, [the plaintiff] exhausted all administrative remedies This is similar to plaintiff's conclusory theory of injustice that were available to him.” Id. at 126. and displeasure with mail procedures, and other “recurrent

pattern[s]” in New York correctional facilities. Dkt. No. 34 Here, in his September 19, 2016 deposition, plaintiff sets at 2, 4; see Khudan, 2016 WL 4735364, at *6 (“Plaintiff's forth facts suggesting prison staff filtered his mail and “when accusations, which ‘stand alone’ and are ‘unsupported,’ they [saw] grievances” they were thrown to the side, not are insufficient to withstand summary judgment.”) (quoting delivered, “and were never [ ] seen.” See Hummel Aff. Exh. Bolton v. City of N.Y., No. 13-CV-5749(RJS), 2015 WL A at 91-92. The grievance that plaintiff allegedly filed on 1822008, at *2 (S.D.N.Y. Apr. 20, 2015)). July 19, 2014 was sent to the Clinton grievance office by his mother. Id. at 94. Plaintiff never received a response on Courts have denied a defendant's motion for summary the grievance or followed up on the status of the grievance. judgment when faced with an unanswered and unfiled Id. Without concrete facts, plaintiff states that his grievance grievance drafted in SHU. See, e.g., Juarbe v. Carnegie, was not resolved because “no civilian ... picks up your No. 9:15-CV-01485(MAD/DEP), 2016 WL 6901277, at grievances. It's officers.” Id. at 91. Plaintiff's allegations of *1, 4 (N.D.N.Y. Nov. 23, 2016). This is distinguishable mail tampering are conclusory and weakened by the fact that from plaintiff's alleged July 19, 2014 grievance drafted in other correspondence, including complaints, were sent and keeplock. 8 Such a difference in inmate housing supports received during the general time period material to the issues

the notion that, “the Second Circuit's decision hinged on before the Court. Johnson v. Fraizer, No. 16-CV-6096(CJS), the ‘extraordinary circumstances’ specific to the case before 2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016) (“Plaintiff it.” Mena v. City of N.Y., No. 13-CV-2430(RJS), 2016 WL makes only a conclusory statement that his mailing was not 3948100, at *5 (S.D.N.Y. July 19, 2016) (quoting Williams, allowed to leave the facility[,] ... his contention ... is belied by 829 F.3d at 119); see N.Y. COMP. CODES R. & REGS. tit. his admission that he was able to send other complaints about 7, § 701.7 (explaining that there are different grievance filing the matter to various New York State officials at around the procedures for an inmate housed in the SHU). Inmates not same time.”); see Hummel Aff. Exh. A at 89, 94 (providing housed in the SHU are in a different position to SHU inmates when determining if grievance procedures are “essentially

Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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unknowable” or unavailable. Id. at *5 (quoting Ross v. Blake, fear of retaliation is insufficient to overcome a failure to 136 S. Ct. at 1859). exhaust administrative remedies. Salmon, 2016 WL 4411338,

at *5. Estoppel is found where “verbal and physical threats 8 of retaliation, physical assault, denial of grievance forms “Keeplock is a form of disciplinary confinement or writing implements, and transfers” occur showing that segregating an inmate from other inmates and defendants acted affirmatively to prevent an inmate from depriving him of participation in normal prison availing him or herself of the grievance procedures. Id. at activities.” Green v. Bauvi, 46 F.3s 189, 192 (2d *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 1995); N.Y. COMP. CODES R. & REGS. tit.

Cir. 2011)). In Riles, the Second Circuit affirmed a district 7, § 301.6. court's ruling that prison officials' alleged threats did not Plaintiff never followed up on the July 19, 2014 grievance. interfere with exhaustion efforts when plaintiff stated he was Hummel Aff. Exh. A at 94-95. However, on July 29, 2014, threatened “if he pushed the issue,” but then subsequently he filed a grievance in the facility that included medical filed a grievance in spite of the alleged threats. See Riles v. complaints, but also a reference to the alleged assault Buchanan, 656 Fed.Appx. 577, 581 (2d Cir. 2016) (summary on July 14, 2014. See Gregory Decl. Exh. B at 8. The order). Clinton grievance department received and responded to this grievance. Id. This grievance was not appealed. Id.

Relying on Ross, courts have carved out factual limitations to ¶ 15. Even assuming, as the Court must on this motion, the third prong of unavailability concerning fear of retaliation. that plaintiff's allegations of mail tampering are true, he See, e.g., Aviles v. Tucker, No. 14-CV-08636(NSR), 2016 did not exhaust his administrative remedies when he failed WL 4619120, at *3-4 (S.D.N.Y. Sept. 1, 2016) (citing Ross, to appeal the July 29, 2014 grievance to the next level of 136 S. Ct. at 1860). In Aviles, the court noted a longstanding review. The fact that this grievance was subsequently filed rule that general beliefs of retaliation or fears do not excuse and not appealed within close proximity to the July 19, the exhaustion requirement. Aviles, 2016 WL 4619120, at *4 2014 grievance, coupled with three unrelated grievances filed (citations omitted). Circumstances that have met the threshold within the next year, demonstrates that plaintiff's situation of unavailability by means of intimidation have included does not rise to the level where the grievance process widespread beatings with assertions of fear for one's life, is “opaque,” unavailable, or unascertainable. See Hill v. in conjunction with the plaintiff withholding all complaints Tisch, No. 02CV3901(DRH/AYS), 2016 WL 6991171, at *7 until he was transferred to a different facility. See, e.g., id. (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to (quoting Thomas v. Cassleberry, No. 03-cv-6394L, 2007 WL demonstrate that the grievance “procedures were essentially 1231485, at *2 (W.D.N.Y. Apr. 24, 2007)). Allegations of unknowable”); Gregory Decl. Exh. A at 6. threats are conclusory where a plaintiff's allegation “does not indicate who threatened him, when he was threatened, or how he was threatened.” See Johnson v. Fraizer, No. 16- CV-6096(CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1,

c. Allegation that Plaintiff Suffered 2016). In contrast, this Court has denied a summary judgment Retaliation and Physical Beatings motion when a plaintiff alleged he was threatened by a Plaintiff's pleadings also suggest an inquiry under the third specific correction that the officer would “break [plaintiff's] prong of Ross, whether “machination, misrepresentation,

bones,” and another specific correction officer threatened to or intimidation” occurred. See Ross, 136 S. Ct. at 1860. beat plaintiff “a [sic] inch from life” if he filed a grievance. Specifically, plaintiff alleges that he did not comply with the Galberth v. Durkin, No. 914CV115(BKS/ATB), 2016 WL grievance procedures because he was subjected to physical 3910270, at *3 (N.D.N.Y. July 14, 2016). beatings, retaliation, and intimidation after complaining about conditions at Clinton. See Compl. at 3, 4, 7. For these reasons, Here, plaintiff offers conclusory allegations in his complaint he believed the grievance procedures were unavailable. See that “[he] was beaten” while attempting to access Clinton's id. at 2-3. grievance program. Compl. at 2, 3. Plaintiff offers no

information of when or how he was threatened or beaten *8 Specific threats of retaliation or intimidation by prison after the July 14, 2014 incident. Some instances of threats employees can render administrative remedies unavailable. alleged by plaintiff refer to a time period before he filed a Ross, 136 S. Ct. at 1860 & n.3. However, a generalized grievance and he does not state how any specific threat or Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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subsequent act of violence impacted his ability to exhaust complaints in full substance, including the identification of administrative remedies related to the events that occurred those who committed acts against him. See, e.g., Hummel on July 14, 2014. See Aviles, 2016 WL 4619120, at *4 Aff. Exh. A at 93; Gregory Decl. Exh. A at 8. Similarly in (finding grievance procedures available where plaintiff offers Johnson v. Fraizer, the Court rejected plaintiff's argument that conclusory allegations of fear and does not substantiate what administrative remedies were unavailable where the plaintiff specific fears or past acts preclude him from advancing alleged he was threatened by correction officers but continued in grievance procedures); Harrison v. Stallone, No. 9:06- to make and send formal complaints to prison officials and CV-902(LEK/GJD), 2007 WL 2789473, at *5 (N.D.N.Y. other New York State officials. Johnson v. Fraizer, No. 16- Sept. 24, 2007) (“It has been held that a ‘general fear’ CV-6096 (CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. of retaliation is not sufficient to excuse the exhaustion 1, 2016). By plaintiff's own admission, it is clear that he requirement.... If an inmate could simply state that he feared sought to file the initial grievance and tell others about his retaliation, there would no point in having a grievance complaints, which disprove any claim of intimidation or procedure.”) (citations omitted); see, e.g., Hummel Aff. Ex. fear of retaliation. Quick v. Omittee, No. 14-CV-1503(TJM/ A at 58. Much of plaintiff's fear is generalized. For instance, CFH), 2016 WL 5219732, at *4 (N.D.N.Y. Aug. 11, 2016), he notes that corrections officers become agitated when they report and recommendation adopted, No. 914CV1503 (TJM/ see legal mail and “that's when harassment comes.” Hummel CFH), 2016 WL 5107125 (N.D.N.Y. Sept. 20, 2016) (holding Aff. Ex. A at 92. By his own admission, plaintiff denies any that fear of physical retaliation or assaults does not deem actual physical force being used against him that prohibited grievance procedures unavailable when plaintiff continuously him from taking part in the grievance program. Hummel Aff. sought to file complaints with officials). Like in Quick, where Ex. A at 99; see Salmon, 2016 WL 4411338, at *5 (stating the plaintiff filed formal internal grievances and the grievance there must be affirmative actions or specific instances of procedures were deemed available, here the plaintiff alleges physical assault or threats of retaliation for plaintiff to show drafting two internal grievances outlining the alleged July 14, unavailability of the grievance process). 2014 incident. See id. at * 4; Hummel Aff. Exh. A at 93;

Gregory Decl. Exh. B at 8. Thus, plaintiff has not shown that *9 The Court notes that plaintiff directly contradicted administrative remedies were unavailable due to intimidation allegations in his complaint by statements made in his and threats. deposition. While the complaint alleges conclusory instances of being “beaten by staff,” plaintiff admits that other than In conclusion, the Court finds that defendants have met their being cut on his face by an inmate in the yard on October burden in showing that there is no genuine issue of material 5, 2015, there has not been any other physical force used fact as to plaintiff's failure to exhaust administrative remedies. against him by inmates or correction officers since July 14, Accordingly, the Court recommends that defendants' motion 2014. Hummel Aff. Ex. A at 99; Compl. at 3. This statement be granted. contradicts plaintiff's allegations of being beaten by staff. See Williams v. Doe, No. 12-CV-1147(HKS), 2016 WL 4804057, at *5 (W.D.N.Y. Sept. 14, 2016) (granting a motion for

III. Conclusion summary judgment after noting that any triable issue of fact on exhaustion of administrative remedies can be eliminated

For the reasons stated above, it is hereby when plaintiff's prior representations to the court are “flatly RECOMMENDED that defendants' motion for summary contradict[ed]”).

judgment (Dkt. No. 26) on plaintiff Edy Rodriguez's complaint (Dkt. No. 1) be GRANTED ; and it is further Further, this Court finds that plaintiff's failure to follow the grievance procedures cannot be excused by fears or

RECOMMENDED that plaintiff Edy Rodriguez's intimidation, when he simultaneously made his complaints complaint (Dkt. No. 1) be DISMISSED in its entirety, known through other means. After the alleged incident, without prejudice; and it is further plaintiff was seen by a nurse in a room with “about ten” officers, where he admits “having no choice,” but to tell the

ORDERED, that the Clerk of the Court serve a copy of nurse that they had beaten him. Hummel Aff. Exh. A at 57-58. this Report-Recommendation and Order upon the parties in Plaintiff also aired his complaints and concerns in writing this action, pursuant to local rules. outside of the grievance procedures, clearly identifying his Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

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Small v. Sec'y of HHS, 892 F. 2d 15 (2d Cir. 1989); 28 U.S.C. Pursuant to 28 U.S.C. § 636(b)(1), the parties may § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN

All Citations

FOURTEEN DAYS WILL PRECLUDE APPELLATE

REVIEW. Roldan v. Racette, 984 F. 2d 85, 89 (2d Cir. 1993); Not Reported in Fed. Supp., 2017 WL 2791063 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

2017 WL 2790530

1 The Court notes that Assistant Attorney General 2017 WL 2790530 Christopher J. Hummel is of no relation to U.S. Magistrate Judge Christian F. Hummel. Only the Westlaw citation is currently available. United States District Court, N.D. New York. After carefully reviewing the relevant papers herein, including Magistrate Judge Hummel’s thorough Report-

Edy RODRIGUEZ, Plaintiff, Recommendation, the Court can find no clear-error in v. the Report-Recommendation. 2 Magistrate Judge Hummel J. CROSS, Sergeant, Clinton Corr. Fac.; R. employed the proper standards, accurately recited the facts, Furnia, Sergeant, Clinton Corr. Fac.; G. Falcon, and reasonably applied the law to those facts. (Dkt. No. Corr. Officer, Clinton Corr. Fac.; and J. Roberts, 40.) As a result, the Report-Recommendation is accepted Corr. Officer, Clinton Corr. Fac., Defendants. and adopted in its entirety for the reasons set forth therein; Defendants' motion for summary judgment is granted; and

9:15-CV-1079 (GTS/CFH)

Plaintiff’s Complaint is dismissed in its entirety without | prejudice. Filed 06/27/2017 2 Attorneys and Law Firms When no objection is made to a report- recommendation, the Court subjects that report-

EDY RODRIGUEZ, No. 8951602009, Anna M. Kross recommendation to only a clear error review. Fed. Center, 18-18 Hazen Street, East Elmhurst, New York 11370, R. Civ. P. 72(b), Advisory Committee Notes: 1983 Pro Se. Addition. When performing such a “clear error” review, “the court need only satisfy itself that there

HON. ERIC T. SCHNEIDERMAN, OF COUNSEL:

is no clear error on the face of the record in order to CHRISTOPHER J. HUMMEL, ESQ. Assistant Attorney accept the recommendation.” Id. ; see also Batista General, The Capitol Albany, New York 12224, Attorney v. Walker , 94-CV-2826, 1995 WL 453299, at *1 General for the State of New York, Counsel for Defendants. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is

DECISION and ORDER made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). HON. GLENN T. SUDDABY, Chief United States District Judge

ACCORDINGLY , it is *1 Currently before the Court, in this pro se prisoner ORDERED that Magistrate Judge Hummel’s Report- civil rights action filed by Edy Rodriguez (“Plaintiff”) Recommendation (Dkt. No. 40) is ACCEPTED and against the four above-captioned employees of the New ADOPTED in its entirety; and it is further York State Department of Corrections and Community Supervision at Clinton Correctional Facility in Dannemora,

ORDERED that Defendants' motion for summary judgment New York (“Defendants”), are Defendants' motion for (Dkt. No. 26) is GRANTED ; and it is further summary judgment seeking dismissal of Plaintiff’s Complaint for failure to exhaust his administrative remedies, and United

ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is States Magistrate Judge Christian F. Hummel’s Report- DISMISSED in its entirety without prejudice; and it is further Recommendation recommending that Defendants' motion be granted and that Plaintiff’s Complaint be dismissed in its

ORDERED that the Clerk of the Court shall enter Judgment entirety without prejudice. 1 (Dkt. Nos. 26, 40.) Plaintiff has for Defendants and close this action. not filed an Objection to the Report-Recommendation despite having received an extension of the filing deadline, which has expired. (Dkt. No. 42.) All Citations

Not Reported in Fed. Supp., 2017 WL 2790530 Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)

2017 WL 2790530

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. McLean v. LaClair, Slip Copy (2021) 2021 WL 671650

II. BACKGROUND 2021 WL 671650 Only the Westlaw citation is currently available. A. Factual Background United States District Court, N.D. New York. 1. Medical Transport Incident Jermell MCLEAN, Plaintiff, v. The facts are detailed in the Report-Recommendation, Darwin LACLAIR, et al., Defendants. familiarity with which is assumed. For convenience, the Court summarizes facts relevant to this Memorandum-Decision and

9:19-CV-1227 (LEK/ATB)

Order, while noting factual disputes. | Signed 02/22/2021 On July 29, 2019, Plaintiff was transported by Correction Officers Theodore Harris and Todd Raymond to Alice Hyde

Attorneys and Law Firms Hospital for a surgical procedure to repair the torn anterior Jermell McLean, Malone, NY, pro se. cruciate ligament in his left knee. FAC ¶ 10. 2 Harris and Raymond remained with Plaintiff “the entire time, during pre- Lauren Rose Eversley, New York State Attorney General, operative preparation, surgery, recovery, and post-operative Albany, NY, for Defendants. discharge examination and instructions.” Id. ¶ 11. “Both Harris and Raymond were present when the hospital staff gave [P]laintiff specific instructions to not bear any weight on

MEMORANDUM-DECISION AND ORDER

[his left] leg, to allow the surgical adhesive time to cure and to allow the ligament to knit back together.” Id. ¶ 12.

Lawrence E. Kahn, Senior U.S. District Judge 2 I. INTRODUCTION

Because Plaintiff has sworn to the allegations in *1 Pro se plaintiff Jermell McLean brings this action against his First Amended Complaint on penalty of perjury, several officials at Franklin Correctional Facility (“Franklin the Court treats the First Amended Complaint as C.F.”), asserting Eighth Amendment claims related to the the legal equivalent of an affidavit, for evidentiary alleged denial of his medical needs while he was incarcerated purposes. See Colon v. Coughlin, 58 F.3d 865, there. Dkt. No. 9 (“First Amended Complaint” or “FAC”). 1 872 (2d Cir. 1995) (“A verified complaint is to Defendants filed a combined motion for summary judgment be treated as an affidavit for summary judgment and motion to dismiss. Dkt. Nos. 17 (“Motion”); 17-3 purposes, and therefore will be considered in (“Tavernier Declaration”); 17-4 (“Seguin Declaration”); 20 determining whether material issues of fact exist, (“Response”); 21 (“Reply”). In a Report-Recommendation provided that it meets the other requirements for issued on August 5, 2020, the Honorable Andrew T. Baxter,

an affidavit under Rule 56(e).”). The Court does United States Magistrate Judge, granted Defendants’ motion so even though the First Amended Complaint is for summary judgment on exhaustion grounds, while also not notarized. See, e.g., Franco v. Kelly, 854 F.2d reaching the substance of Plaintiff's claim against Defendant 584, 587 (2d. Cir. 1988) (noting that documents Darwin LaClair, dismissing it for failure to state a claim.

sworn under penalty of perjury may suffice for Dkt. No. 22 (“Report-Recommendation”). Plaintiff filed summary judgment purposes even if they do objections. Dkt. No. 23 (“Objections”). For the reasons that not meet all of the formal requirements of a follow, the Court rejects the Report-Recommendation with notarized affidavit) (citing Pfeil v. Rogers, 757 respect to exhaustion, while adopting its conclusion regarding

F.2d 850, 859, 859 n.15 (7th Cir. 1985)); Tolbert Plaintiff's claim against LaClair. v. Koenigsmann, No. 13-CV-1577, 2018 U.S. Dist. LEXIS 36451, at *6 n.8 (N.D.N.Y. Mar. 2, 1 2018) (“Although plaintiff's amended complaint Plaintiff refers to this document as his “First is not notarized, in light of his pro se status, I Amended Complaint”; thus, the court will do the have considered it as the legal equivalent of an same. affidavit for purposes of the pending summary McLean v. LaClair, Slip Copy (2021)

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judgment motion.”); BMS Entm't/Heat Music LLC v. Bridges, No. 04-CV-2584, 2005 WL 2482493, As Plaintiff entered the prison, he “felt something snap, and at *2 n.1 (S.D.N.Y. Oct. 7, 2005) (accepting as a immediately felt an intense heightened pain, and burning in declaration under 28 U.S.C. § 1746 an affidavit that the surgery area ... shooting up into his hip and down to was not notarized but “certified” that “each of the his foot.” Id. ¶ 30. Once Plaintiff reached a metal bench on statements contained herein is true to the best of my the other side of the Administration Building, a non-party information and belief” and contained a “penalty of correction officer arrived at the scene and “call[ed] medical perjury” clause). [to] have them bring a wheelchair for the rest of plaintiff's

journey to the medical unit[.]” See id. at ¶ 28. *2 Following the surgery, hospital staff attempted to provide Plaintiff with metal crutches. See id. ¶ 13. However, one of the Since his return from the hospital, Plaintiff “has suffered correction officers, citing a policy of Superintendent Darwin

and continues to suffer constant pain and burning sensations LaClair, told the hospital staff that Plaintiff “could not have in [his] knee, trouble sleeping, w[a]lking, standing, and metal crutches, and ... would be given a pair of [permitted] performing every day tasks.” Id. ¶ 32. Plaintiff has also crutches ... when he arrived at the facility.” See id. Plaintiff “developed a mold-like rash covering the skin on his left hip, left the hospital at approximately 3:35 p.m. Id. ¶ 14. which was not there prior to the surgery.” Id. ¶ 33. For “reasons unknown to [Plaintiff],” his transport van, upon

Plaintiff avers that he might not have been harmed had arriving back at Franklin C. F., was unable to enter the prison LaClair: (1) instituted a policy that allowed Plaintiff to bring complex through the “Truck-Trap, which is the way prisoners metal crutches into Franklin C. F.; (2) “properly trained” are commonly transported and returned.” Id. ¶ 22. Had the Harris and Raymond on how to handle inmates in Plaintiff's van been able to proceed through this entrance, it could have

condition; and (3) instituted a policy that paid Harris and dropped Plaintiff off at the medical unit. See id. ¶ 23. Upon Raymond for waiting with Plaintiff until the Truck-Trap realizing that he would not receive pay for waiting until the

accepted the van. See id. at p. 2, 3 ¶¶ 21, 46. Truck-Trap accepted the van, Raymond remarked, “We have to get [Plaintiff] to medical fast so we can get the hell out

3 of here.” Id. ¶ 17. Harris replied, “[Y]eah, I'm not staying While the First Amended Complaint is here any longer if I am not getting paid for it.” Id. Harris and largely organized in numbered paragraphs, some Raymond then parked the van in Franklin C. F.’s front parking allegations appear in an introductory section prior lot and told Plaintiff he had to walk to the prison. See id. ¶ 24. to the first numbered paragraph. *3 Plaintiff brings medical indifference claims against Before exiting the van, Plaintiff “protest[ed] about being Harris, Raymond, and LaClair. See Dkt. No. 11 (“April 2020 made to walk on [his] recently repaired leg in direct Order”) at 7. contradiction of the discharge instructions.” Id. ¶ 25. In response to Plaintiff's concerns, Raymond stated, “ ‘Come on, you can make it with my help,’ and Harris added that Raymond “was giving [Plaintiff] a ‘direct order[.]’ ” Id. 2. Grievance Process

The grievance procedure in New York is a three-tiered As Plaintiff exited the van, Raymond “did not brace the process. The inmate must first file a grievance with the Inmate plaintiff to prevent him from bearing weight on the leg,” Grievance Resolution Committee (“IGRC”). N.Y. Comp. because the handcuffs on Plaintiff's wrists, which were Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse affixed to a “[b]lack [b]ox” and a “[b]elly [c]hain,” prevented decision of the IGRC may be appealed to the Superintendent Raymond from physically supporting Plaintiff's arm. See of the Facility. Id. § 701.5(c). Adverse decisions at the id. ¶¶ 26–27 (internal quotation marks omitted). Instead, Superintendent's level may be appealed to the Central Office Raymond “merely ‘guided’ plaintiff's arm” as Plaintiff Review Committee (“CORC”). Id. § 701.5(d). stepped down from the van. See id. ¶ 26. Harris and Raymond then “forced the plaintiff to walk on his left leg, without

As the magistrate judge notes, in the First Amended the aid of any crutches, cane or a wheelchair, through the Complaint and Response, Plaintiff provides a detailed Administration Building, to a holding area, a distance of account of his attempts to file grievances and appeals between 500-1000 feet.” Id. ¶ 24 (emphasis in original). McLean v. LaClair, Slip Copy (2021)

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regarding the incident in question. See R. & R. at 9. As

B. The Motion, Response, Report-Recommendation, summarized in the Report-Recommendation: and Objections Plaintiff states that on July 29, 2019, the same day of the incident in question, and while he was in the infirmary,

1. Motion he wrote a grievance on plain paper because he did not have a grievance form. (FAC ¶ 35). Plaintiff states that he

Defendants move for summary judgment on exhaustion placed the grievance in an envelope, addressed it to the IGP grounds and move to dismiss Plaintiff's claim against LaClair. Supervisor, sealed the envelope, and gave it to a corrections Regarding exhaustion, they argue that Plaintiff failed to file officer to place in the mail because there is no mail box or or appeal any grievance pertaining to the events giving rise “grievance box” in the infirmary. (Id.) Plaintiff states that to his claims. See Mot. at 6–10. In support of this contention, he wrote the grievance “quickly” because he did not know Defendants offer the following evidence. Inmate Grievance how many days he would be in the infirmary. (Id.) In the Program (“IGP”) Coordinator Judy Tavernier attests that upon FAC, he states that he kept a copy of the grievance, and a review of all grievances filed at Franklin C.F. between he has submitted it as an exhibit to his opposition papers. January 1, 2016 the date she signed her declaration, June (FAC ¶ 36 & Dkt. No. 20, Ex. A). 10, 2020, she uncovered no grievances filed by Plaintiff. See Tavernier Decl. ¶¶ 10, 15. IGP Assistant Director Rachel

Plaintiff states that he received no response to this Seguin attests that upon a review of all grievance appeals grievance. (FAC ¶ 36). Plaintiff states that, on August for the current year and the four previous calendar years, she 14, 2019, he mailed a letter to the IGP Supervisor, along did not uncover any grievance appeal filed by Plaintiff. See with a copy of the grievance, explaining that he had not Seguin Decl. ¶¶ 8, 12. Attached as an exhibit to her declaration received a response, and he was “construing the failure is a computer print-out from the CORC database, dated June or refusal to respond as a denial and appealing to the 4, 2020, which shows no appeals filed by Plaintiff. See id., Superintendent.” (FAC ¶ 37). Plaintiff has attached a copy Ex. A. of this letter to his opposition papers. ( [Resp.], Ex. B). Defendants also argue that LaClair lacks personal Plaintiff claims that he received no response to his August involvement in the alleged constitutional violations. See id. 14, 2019 letter. (FAC ¶ 38). As a result, plaintiff states that at 10–12. Defendants do not address the merits of Plaintiff's he wrote another letter to the IGP Supervisor at Franklin, claims against Harris or Raymond. See generally id. dated September 3, 2019. (FAC ¶ 38). Plaintiff states that he attached another copy of the July 29, 2019 grievance to the September 3rd letter. (Id.) Plaintiff claims that in the September 3rd letter, he “explain[ed] that he was

2. Response construing the subsequent failure or refusal to answer the In his Response, Plaintiff argues that the factual contentions appeal letter as a denial of same, and appealing to the that he submitted his grievance and that he submitted his CORC by said letter.” (Id.) Plaintiff has not included a copy

appeals are consistent with Defendants’ contentions that they of this letter in his opposition papers. have no record of the grievance or appeals having been filed. Plaintiff then states that he did not receive a response to See Resp. at 2. Plaintiff asks the Court to infer that prison the September 3rd letter. (FAC ¶ 39). He claims that on officials somehow thwarted the filing of his grievance and September 27, 2019, he had one of his family members appeals after Plaintiff attempted to submit them. See id. at contact the CORC in Albany. (Id.) Plaintiff states that 3. On this basis, Plaintiff argues that he should be excused his “family member” spoke to “a Ms. Mary Furcinetti from the exhaustion requirement, as the grievance process (phonetic),” who was “very nice,” and who “looked in was “unavailable.” See id. at 2–3; see also Riles v. Buchanan, the computer,” and verified that no grievance, written by 656 F. App'x 577, 580 (2d Cir. 2016) (“An administrative plaintiff, had been filed “by the IGP Supervisor,” nor was procedure is unavailable when ... ‘prison administrators it ever forwarded to the CORC. (FAC ¶ 40). thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’ ”)

*4 R. & R. at 9–11. (quoting Ross v. Blake, 136 S.Ct. 1850, 1859–60 (2016)). McLean v. LaClair, Slip Copy (2021)

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Plaintiff presents the following evidence supporting his factual claim that he submitted his grievance and appeals: (1)

4. Objections his sworn complaint, in which he attests that he did so, see FAC ¶¶ 35–40; (2) a copy of his grievance, Resp. Ex. A; and

In his Objections, Plaintiff reiterates an argument from his (3) a copy of his August 14, 2019 letter to the IGP Supervisor Response regarding exhaustion. Namely, he clarifies that, appealing his grievance to the Superintendent, Resp. Ex. B. while he does not dispute that his grievance was never filed, he, in fact, gave the grievance to the officer on duty at the

Plaintiff does not address Defendants’ arguments regarding infirmary and asked him to submit it: “I gave my grievance the merits of Plaintiff's claims against LaClair. See generally to the officer that was working that day. I don't know why it Resp. was never filed and why it's not in their system. But I know I put one in.” Objs. at 1. Regarding his claim against LaClair, Plaintiff restates his

3. Report-Recommendation allegation that in denying Plaintiff metal crutches, Harris The magistrate judge recommended granting summary and Raymond were following a facility policy instituted by judgment on exhaustion grounds. In doing so, the magistrate LaClair. Id. at 1–2. 4 judge relied on a string of lower court cases in this Circuit doing the same when a plaintiff offered only “bare” or

4 Plaintiff also offers arguments relevant to Harris “unsupported” assertions that he submitted a grievance but and Raymond's liability. See id. The Court that it was never filed. See R. & R. at 12–15 (citing Davis v. disregards these arguments, because Defendants Grant, No. 15-CV-5359, 2019 WL 498277, at *10 (S.D.N.Y. did not move for dismissal or summary judgment Feb. 8, 2019) (“Plaintiff's bare assertions that he submitted

on grounds related to the merits of those claims. his grievances but never received a response fall squarely into the category of assertions that courts in the Second Circuit

III. STANDARDS OF REVIEW

have found do not excuse the exhaustion requirement.”); Engles v. Jones, No. 13-CV-6461, 2018 WL 6832085, at *10

A. Report-Recommendation (W.D.N.Y. Dec. 28, 2018) (“Plaintiff's unsupported assertion Within fourteen days after a party has been served with that he filed a grievance but that it was somehow lost a copy of a magistrate judge's report-recommendation, the or destroyed is insufficient to establish a genuine issue party “may serve and file specific, written objections to the of material fact.”); Scott v. Kastner Smith, 298 F. Supp. proposed findings and recommendations.” Fed. R. Civ. P. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently 72(b); L.R. 72.1(c). If objections are timely filed, a court held ... that an inmate's general claim that his grievance “shall make a de novo determination of those portions of the was lost or destroyed does not excuse the exhaustion report or specified proposed findings or recommendations to requirement.”) (internal quotation marks omitted); Mims v. which objection is made.” 28 U.S.C. § 636(b). However, if no Yehl, No. 13-CV-6405, 2014 WL 4715883, at *4 (W.D.N.Y. objections are made, or if an objection is general, conclusory, Sept. 22, 2014) (inmate's “unsupported statement” that he perfunctory, or a mere reiteration of an argument made to has submitted a grievance is “insufficient at the summary the magistrate judge, a district court need review that aspect judgment stage”); Veloz v. New York, 339 F. Supp. 2d 505, of a report-recommendation only for clear error. Barnes v. 516 (S.D.N.Y. 2004) (“[An] inmate's unsupported claims that Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. his grievances were lost at the Grievance Committee Office Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07 or destroyed by officers ... fails to excuse [the] inmate from (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. fully grieving remedies[.]”) (internal citation omitted)). State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014). “A [district] judge ... may accept, reject, or modify, in whole or in

*5 Regarding the merits of Plaintiff's claim against LaClair, part, the findings or recommendations made by the magistrate the magistrate judge determined that Plaintiff's allegations judge.” § 636(b). were too vague and conclusory to establish supervisory liability under any of the routes recognized in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). See id. at 16–19.

B. Summary Judgment McLean v. LaClair, Slip Copy (2021)

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Federal Rule of Civil Procedure 56 instructs courts to grant exhaustion analysis, by straying from well-established summary judgment if “there is no genuine dispute as to any summary judgment principles. material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if 5

Since Plaintiff did not respond to Defendants’ it “might affect the outcome of the suit under the governing motion to dismiss Plaintiff's claims against law,” and a dispute is “ ‘genuine’ ... if the evidence is LaClair, Plaintiff's arguments with respect to that such that a reasonable jury could return a verdict for the claim could be construed, alternatively, as “new” nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 arguments improperly introduced in objections. U.S. 242, 248 (1986). Thus, while “[f]actual disputes that See Ross v. Koenigsmann, No. 14-CV-1321, are irrelevant or unnecessary” will not preclude summary 2016 WL 5408163, at *2 (N.D.N.Y. Sept. 28, judgment, “summary judgment will not lie if ... the evidence 2016) (“[A] district court will ordinarily refuse to is such that a reasonable jury could return a verdict for the consider an argument that could have been, but was nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d not, presented to the magistrate judge in the first 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact instance.”). Either way, the Court would review could find in favor of the nonmoving party should summary this aspect of the Report-Recommendation for clear judgment be granted.”). error. See Barnes, 2013 WL 1121353, at *1. The magistrate judge placed a greater evidentiary burden *6 The party seeking summary judgment bears the burden of on Plaintiff than he is required to meet to survive summary informing the court of the basis for the motion and identifying judgment. With respect to the parties’ factual disagreement those portions of the record that the moving party claims will over whether Plaintiff submitted his initial grievance, the demonstrate the absence of a genuine issue of material fact. Court notes that this dispute essentially boils down to a Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Similarly, clash of sworn statements. Plaintiff attests that he gave his a party is entitled to summary judgment when the nonmoving grievance to the correction officer on duty at the infirmary party has failed “to establish the existence of an element on July 29, 2019, FAC ¶ 35, and Defendants submit a sworn essential to that party's case, and on which that party will bear statement indicating that a review of their records revealed the burden of proof at trial.” Id. at 322. that no grievance was filed, see Tavernier Decl. ¶¶ 10, 15. To the extent that these statements are in contradiction, the Court

In attempting to repel a motion for summary judgment after cannot resolve this contradiction at the summary judgment the moving party has met its initial burden, the nonmoving stage, because the Court is prohibited from making credibility party “must do more than simply show that there is some determinations. See, e.g., Gen. Elec. Capital Corp. v. NET metaphysical doubt as to the material facts.” Matsushita Elec. Transportation, Inc., No. 04-CV-316, 2006 WL 8447262, at Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). *3 (D. Conn. May 4, 2006) (“In ruling on summary judgment, At the same time, a court must resolve all ambiguities and the Court cannot credit averments made in plaintiff's affidavit draw all reasonable inferences in favor of the nonmoving over that of the defendants.”); Lupyan v. Corinthian Colleges, party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. Inc., 761 F.3d 314, 320-321 (3d Cir. 2014) (“[A] single, 133, 150 (2000). Hence, “a court's duty in reviewing a non-conclusory affidavit or witness's testimony, when based motion for summary judgment is ‘carefully limited’ to finding on personal knowledge and directed at a material issue, is genuine disputes of fact, ‘not to deciding them.’ ” Macera v. sufficient to defeat summary judgment. This remains true Vill. Bd. of Ilion, No. 16-CV-668, 2019 U.S. Dist. LEXIS even if the affidavit is ‘self-serving.’ ”) (internal citations 169632, at *26 (N.D.N.Y. Sept. 30, 2019) (Kahn, J.) (quoting omitted); Curry v. City of Syracuse, 316 F.3d 324, 333 Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d (2d Cir. 2003) (noting that “credibility assessments, choices 1219, 1224 (2d Cir. 1994)). between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a

IV. DISCUSSION motion for summary judgment”). As Plaintiff's Objections reiterate arguments he has already presented, the Court reviews the Report-Recommendation *7 The magistrate judge cites a number of cases in which for clear error. 5 Having done so, the Court concludes courts granted summary judgment when a plaintiff offered

only “bare” or “unsupported” assertions that he submitted a that the magistrate judge committed clear error in his grievance but that it was never filed. See R. & R. at 12–15. McLean v. LaClair, Slip Copy (2021)

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But Plaintiff's factual contention that he gave his grievance to a correction officer is supported—by a sworn statement based 6

Citing Bailey v. Fortier, No. 09-CV-0742, 2012 on personal knowledge. See supra note 2; Fed. R. Civ. P. 56(c) WL 6935254, at *5-6 (N.D.N.Y. Oct. 4, 2012), (4). This is sufficient in itself to enable Plaintiff to survive report and recommendation adopted, 2013 WL summary judgment. The Court notes, however, that Plaintiff's 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v. factual contention is also supported by a dated, handwritten Plumley, No. 12-CV-422, 2015 WL 4326762, copy of his grievance. See Resp., Ex. A. The magistrate judge at *7-8 (N.D.N.Y. July 14, 2015), report and apparently determined that this piece of evidence should be recommendation adopted, 2013 WL 1305338 discounted in determining whether Plaintiff meets his burden (N.D.N.Y. Mar. 18, 2013). on summary judgment, citing one other case in this District for This burden-shifting framework does not ultimately mandate support. See R. & R. at 13 (citing Means v. Olmstead, No. 17- a greater evidentiary showing from Plaintiff than would CV-746, 2019 WL 4395289, at *7 (N.D.N.Y. June 3, 2019), otherwise be required at summary judgment. A presumption report and recommendation adopted, 2019 WL 3451127, at is not a form of super-evidence that heightens the opposing *2 (N.D.N.Y. July 31, 2019)). But Means offers no reasoning party's evidentiary burden in rebuttal. Indeed, a presumption or legal authorities to support this legal conclusion, see id., is not evidence at all, but rather merely “an assumption of which appears to entail the improper weighing of evidence fact resulting from a rule of law which requires such fact and assessment of credibility, see Curry, 316 F.3d at 333. to be assumed from another fact or group of facts found Especially given that Defendants in this case have not even or otherwise established in the action.” 21B Charles Alan addressed the authenticity of Plaintiff's copy of his grievance, Wright & Kenneth W. Graham, Jr., Federal Practice and it is improper for the Court to discount Plaintiff's claim that Procedure § 5124 (2d ed. 2005); see also Texas Dep't of this is a genuine, contemporaneous copy. Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n.10 (1981) (describing presumption as “legally mandatory inference”);

The magistrate judge appears to have applied a burden- Emhart Industries, Inc. v. Universal Instruments Corp., No. shifting framework that courts in this District generally 89-CV-6, 1992 U.S. Dist. LEXIS 13458, at *10 (N.D.N.Y. employ in adjudicating PLRA exhaustion at the summary June 22, 1992) (“[A] presumption is not evidence.”) (quoting judgment stage. As Judge Suddaby has explained: A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 [T]he defendant bears the burden of proving that the F.2d 1020, 1037–38 (1992)). A presumption's “only effect is administrative remedies available to the plaintiff were to require the party contesting it to produce enough evidence not exhausted prior to the initiation of a civil action. substantiating the presumed fact's absence to withstand a See, e.g., Howard v. Goord, No. 98-CV-7471, 1999 WL motion for summary judgment[.]” Lupyan, 761 F.3d at 320; 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). However, see also ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 149 once a defendant has produced reliable evidence that (2d Cir. 2007) (“Courts and commentators are in general such remedies were generally available, and the plaintiff agreement that proffered evidence is sufficient to rebut nevertheless failed to exhaust those remedies, the plaintiff a presumption as long as the evidence could support a must then counter the defendant's proof by showing that, as reasonable jury finding of the nonexistence of the presumed to him or her, the remedy was unavailable. Smith v. Kelly, fact.”) (collecting authorities) (internal quotation marks 985 F.Supp.2d 275, 284 (N.D.N.Y. 2013). “As a result, omitted). “[A] presumption vanishes upon the introduction of practically speaking, while the burden on this affirmative evidence sufficient to support a finding of the nonexistence of defense remains at all times on the defendant, the plaintiff the presumed fact.” Punchgini, Inc., 482 F.3d at 148 (internal may sometimes have to adduce evidence in order to defeat quotation marks omitted). it.” Id. ... [W]hile the burden of production may shift to a plaintiff when a court considers whether the grievance *8 In other words, once Defendants introduced evidence process was unavailable, the ultimate burden of proof with that they generally operated a functioning grievance system, respect to the exhaustion defense remains, at all times, with see Seguin Decl. ¶¶ 5–6, Plaintiff could not have survived the defendant. 6 summary judgment simply by pointing to Defendants’ failure

to introduce evidence that this process was available to Coleman v. Nolan, No. 15-CV-40, 2018 WL 4732778, at him specifically. Rather, in order to make the presumption *4 (N.D.N.Y. Oct. 2, 2018) (other internal quotation marks of availability “vanish,” Plaintiff had to produce competent omitted). evidence supporting unavailability. But once he did so, by McLean v. LaClair, Slip Copy (2021)

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submitting a sworn statement that he gave his grievance to print-out from the CORC database, dated June 4, 2020, which a correction officer, he was not then required to produce shows no appeals to the CORC filed by Plaintiff. See id., Ex. a greater quantum of evidence than normally required of A. a non-movant at the summary judgment stage. Since a sworn statement based on personal knowledge is generally Here, there is again a clash of sworn statements: Plaintiff sufficient when opposed only by a movant's conflicting sworn attests that he attempted to submit the appeals, and statement, Plaintiff's evidence is sufficient here. Defendants attest that they were never filed. As discussed,

the Court cannot credit Defendants’ sworn statements over Moreover, all of the Court's foregoing analysis rests on an Plaintiff's. See Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. assumption that is unjustifiably charitable to Defendants— 2004) (“Most letters are delivered, but some aren't, and so if namely, that there is a conflict between Plaintiff's sworn there is a sworn denial of receipt the trier of fact has to weigh statement that he gave his grievance to a correction officer the credibility of the denial in light of the fact that the vast for submission and Defendants’ statement that the grievance majority of letters are delivered and that the intended recipient was never filed. As Plaintiff correctly argues, these competing has a strong incentive to lie.”). 7 Defendants additionally sworn statements are not necessarily inconsistent. See Resp.

present documentary evidence that Plaintiff's appeals were at 2–3; Objs. at 1. Since the Court is required to draw not filed, namely the CORC print-out. See Seguin Decl., Ex. reasonable inferences in Plaintiff's favor, the Court must infer A. Importantly, while Defendants state in conclusory fashion that the grievance was never filed because prison authorities that they infallibly maintain records of all grievances and did not file it, not because Plaintiff did not attempt to submit appeals, they do not specifically represent that the CORC it. See Zulu v. Barnhart, No. 16-CV-1408, 2019 WL 2997226, print-out is a log of all incoming mail, or describe Defendants’ at *13 (N.D.N.Y. Apr. 22, 2019) (“Defendants’ evidence is mail-processing practices in a manner that would support an largely consistent with plaintiff's claim that, for whatever inference that the absence of a record of Plaintiff's appeals reason, the timely grievances that he attempted to submit being filed reliably indicates non-receipt of his letters. See while confined to the SHU at Marcy were not filed. The Seguin Decl. ¶ 8 (“[T]he CORC computer database contains absence of any official records of plaintiff's initial attempts records of appeals of grievances received from facility Inmate to grieve the incident comports with plaintiff's assertion that Grievance Program offices[.]”); Tavernier Decl. ¶ 10 (“All once he handed a grievance through the feed-up hatch in the documents ... related to a particular grievance ... are stored SHU, it was out of his possession and it was not filed.”), report in the Franklin grievance office in the regular course of and recommendation adopted, No. 16-CV-1408, 2019 WL that office's activities as they are created or received.”); cf. 2150628 (N.D.N.Y. May 17, 2019). Defendants have, thus, Lupyan, 761 F.3d at 322 (“When the intended recipient is failed to demonstrate the absence of a material factual dispute. a commercial or legal entity, it may be routine business practice to log incoming mail. In such cases, the absence

The Court reaches the same conclusion with respect to of an entry in a mail log near the time that mail would Plaintiff's appeals. Plaintiff attests that, on August 14, 2019, likely have arrived, can be used to establish that mail was he mailed a letter to the IGP supervisor, along with a copy of not received.”); Guerra v. CONRAIL, 936 F.3d 124, 137 (3d his grievance, explaining that he had not received a response Cir. 2019) (“OSHA's denial of receipt is strengthened by its and that he was “construing the failure or refusal to respond practice of tracking correspondence and its unavailing search as a denial and appealing to the Superintendent.” FAC ¶ 37. for a trace of Guerra's letter.”). As before, there is no necessary Plaintiff has submitted a copy of this letter. Resp., Ex. B. inconsistency between Plaintiff's claim that he mailed the Plaintiff additionally attests that he wrote another letter to the appeals and Defendants’ claim that they were never filed; and IGP Supervisor on September 3, 2019, explaining “that he the Court must grant Plaintiff the favorable inference that his was construing the subsequent failure or refusal to answer grievance was sent and received, but not filed, for reasons out the appeal letter as a denial of same, and appealing to the of his control. 8 CORC by said letter.” Id. ¶ 38. Plaintiff has not submitted a copy of the September 3, 2019 letter. Seguin attests that

7 In a variety of legal contexts, Courts adjudicate upon a review of all grievance appeals for the current year disputes over whether a letter was sent or received and the four previous calendar years, she did not uncover any by employing the “mailbox rule,” according to grievance appeals filed by Plaintiff. See Seguin Decl. ¶¶ 8, which “[a] rebuttable presumption of receipt 12. Attached as an exhibit to her declaration is a computer McLean v. LaClair, Slip Copy (2021)

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[arises] on evidence that a properly addressed piece of fact as to whether the grievance process was available of mail is placed in the care of the postal service.” and whether plaintiff attempted to exhaust his administrative Witt v. Roadway Express, 136 F.3d 1424, 1429– remedies[.]”), report and recommendation adopted, No. 15- 30 (10th Cir. 1998); see also Godfrey v. United CV-1339, 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018); States, 997 F.2d 335, 338 (7th Cir. 1993); Anderson Thaxton v. Simmons, No. 10-CV-1318, 2013 WL 4806457, v. United States, 966 F.2d 487, 491 (9th Cir. 1992). at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists Plaintiff's sworn statement that he mailed the letters as to whether [p]laintiff never filed his initial grievance on would establish his entitlement to this presumption, April 29, as [d]efendants claim, or that, as [p]laintiff claims, which Defendants would have the burden to rebut. he filed a timely grievance that was lost or tampered with by See, e.g., United States v. Ekong, 518 F.3d 285, [d]efendants. Such credibility assessments are to be resolved 287 (5th Cir. 2006) (“A sworn statement is credible by a trier of fact.”). evidence of mailing for the purposes of the mailbox rule.”); Schikore v. BankAmerica Supplemental In order to determine whether Plaintiff properly exhausted Ret. Plan, 269 F.3d 956, 964 (9th Cir. 2001) (same); administrative remedies, the Court must hold a hearing, at Witt, 136 F.3d at 1430 (“Because the presumption which a fact-finder can assess the credibility of witnesses is rebuttable ... evidence denying receipt creates a and the relative weight of the evidence the parties present. credibility issue that must be resolved by the trier See, e.g., Woodward v. Lytle, No. 16-CV-1174, 2019 of fact.”) (citing Rosenthal v. Walker, 111 U.S. 185, WL 2527342, at *8 (N.D.N.Y. May 24, 2019), report 193–94 (1884); Anderson, 966 F.2d at 491–92; 9 and recommendation adopted, No. 16-CV-1174, 2019 WL Wigmore, Evidence § 2519). 2524756 (N.D.N.Y. June 19, 2019) (issuing a decision on

exhaustion subsequent to a hearing); see also Messa v. 8 Defendants also argued that, even assuming Goord, 652 F.3d 305, 310 (2d Cir. 2011) (affirming the arguendo that Plaintiff had properly filed his constitutionality of adjudicating PLRA exhaustion issues by grievance and appeals, his claims should be denied bench trial). for failure to exhaust, because he did not file his complaint in this action after waiting thirty days

With respect to the magistrate judge's conclusion that the from his final appeal. See Reply at 2–3. In addition claim against LaClair should be dismissed due to his lack of to being improperly raised for the first time in personal involvement, the Court concurs and finds no clear a reply, this argument is meritless, because the error. complaint was filed on October 4, 2019, Docket, which is more than thirty days after September 3, 2019, the date on which Plaintiff attests he filed his V. CONCLUSION final appeal, FAC ¶ 38. Accordingly, it is hereby:

*9 Accordingly, Defendants have failed to demonstrate ORDERED , that the Report-Recommendation (Dkt. No. 22) the absence of a material factual dispute as to whether the is REJECTED in part and ADOPTED in part . Defendant's grievance process at Franklin C.F. was “unavailable” due Motion (Dkt. No. 17) is denied as to exhaustion and granted to the machinations or misrepresentations of prison officials as to Plaintiff's Eighth Amendment claim against LaClair; and who inhibited the filing of Plaintiff's submissions. See Riles, it is further 656 F. App'x at 580; see also Gill v. Frawley, No. 02- CV-1380, 2006 U.S. Dist. LEXIS 101694, at *44 (N.D.N.Y.

ORDERED , that the Clerk TERMINATE LaClair from the May 9, 2006) (noting that “[s]ome courts have suggested that docket; and it is further an inmate has exercised a reasonable effort to exhaust his administrative remedies when he has tried to properly file

ORDERED , that the Clerk serve a copy of this a grievance and that grievance has been lost or destroyed Memorandum-Decision and Order on the parties in by a prison official,” and collecting cases); Fann v. Graham, accordance with the Local Rules. No. 15-CV-1339, 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) (“Viewing the facts in the light most favorable to

IT IS SO ORDERED.

plaintiff, the record suggests that plaintiff's grievances were submitted, but were unfiled and unanswered, creating an issue McLean v. LaClair, Slip Copy (2021)

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All Citations Slip Copy, 2021 WL 671650 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Fann v. Graham, Not Reported in Fed. Supp. (2018)

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120. Plaintiff and defendant opposed the respective motions, and defendant filed a reply. Dkt. Nos. 124, 125, 126. For the

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following reasons, it is recommended that defendants' motion Only the Westlaw citation is currently available. be granted in part and denied in part, and plaintiff's motion United States District Court, N.D. New York. be denied. Jermaine FANN, Plaintiff, v. H. GRAHAM, Superintendent Auburn I. Arguments Correctional Facility, et al., Defendants. A. Plaintiff's Motion for Summary Judgment No. 9:15-CV-1339 (DNH/CFH) | In support of his Motion for Summary Judgment, plaintiff Signed 01/11/2018 filed a Statement of Material Facts. 2 On review of plaintiff's Attorneys and Law Firms Motion for Summary Judgment, the facts will be related herein in the light most favorable to defendants as the Jermaine Fann, 430 Main Street, Apt. 306, Dunkirk, New nonmoving party. See subsection II (A) infra; Rattner v. York 14048, pro se. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether there is a genuine issue

Hon. Eric T. Schneiderman, Attorney General for the State as to any material fact, the court is required to resolve all of New York, OF COUNSEL: WILLIAM A. SCOTT, ambiguities and draw all factual inferences in favor of the ESQ., NICOLE E. HAIMSON, ESQ., Assistant Attorneys party against whom summary judgment is sought.”). On May General, The Capitol, Albany, New York 12224, Attorney for 10, 2015, plaintiff filed a grievance against C.O. Thomas for Defendants. denying him the right to attend morning breakfast. Dkt. No. 119-2 ¶¶ 7-8. On June 6, 2015, C.O. Thomas approached plaintiff regarding the May 10, 2015 grievance. Id. ¶ 10.

REPORT-RECOMMENDATION AND ORDER 1 The next day, C.O. Thomas informed plaintiff that he was confined to his cell because of the grievance plaintiff filed

1 This matter was referred to the undersigned for against him. Id. ¶ 11. C.O. Thomas then issued plaintiff a Report-Recommendation and Order pursuant to 28 false misbehavior report because of plaintiff's May 10, 2015 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c). grievance against him. Id. ¶ 12. On June 12, 2015, plaintiff

received thirty days confinement and loss of all privileges pursuant to C.O. Thomas' June 7, 2015 misbehavior report. Christian F. Hummel, U.S. Magistrate Judge Id. ¶ 13. *1 Plaintiff pro se Jermaine Fann (“plaintiff”), a former inmate who was, at all relevant times, in the custody of the

2 Local Rule 7.1(a)(3) states: New York State Department of Corrections and Community Summary Judgment Motions Supervision (“DOCCS”), brings this action pursuant to 42 Any motion for summary judgment shall U.S.C. § 1983, alleging that defendants Superintendent contain a Statement of Material Facts. The (“Supt.”) H. Graham, Deputy Superintendent (“DSS”) Fagan, Statement of Material Facts shall set forth, Lieutenant (“Lieut.”) Ouimetto, Sergeant (“Sgt.”) Ederer, in numbered paragraphs, each material fact Corrections Officer (“C.O.”) M. Cornell, C.O. Lovejoy, C.O. about which the moving party contends there Steinberg, C.O. C. Thomas, and C.O. R.F. Schramm—who, at exists no genuine issue. Each fact listed shall all relevant times, were employed at the Auburn Correctional set forth a specific citation to the record Facility (“Auburn”)—violated his constitutional rights under where the fact is established. The record for the First, Fourth, and Fourteenth Amendments. Dkt. No. purposes of the Statement of Material Facts 79. (“Am. Compl.”). Presently pending before the Court are includes the pleadings, depositions, answers to plaintiff's Motion for Summary Judgment and defendants' interrogatories, admissions and affidavits. Motion for Summary Judgment, both filed pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 56. Dkt Nos. 119, Fann v. Graham, Not Reported in Fed. Supp. (2018)

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The opposing party shall file a response to the On October 1, 2015, “Albany” reversed the July 28, 2015 Statement of Material Facts. The non-movant's disciplinary decision. Id. ¶ 41. response shall mirror the movant's Statement of Material Facts by admitting and/or denying In opposition, defendants argue that the Court should each of the movant's assertions in matching deny plaintiff's motion because plaintiff's motion papers numbered paragraphs. Each denial shall set forth “affirmatively demonstrate” that his claims are without merit, a specific citation to the record where the factual and, therefore, should be dismissed. Dkt. No. 124-1 at 6. issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute. Any

B. Defendants' Motion for Summary Judgment facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically

In support of their Motion for Summary Judgment, defendants controverted by the opposing party. filed a Statement of Material Facts. Dkt. No. 120-1. The facts N.D.N.Y. L.R. 7.1(a)(3). relating to defendants' Motion for Summary Judgment are related herein in the light most favorable to plaintiff as the

*2 On June 3, 2015, C.O. Cornell and C.O. Steinberg nonmoving party. See subsection II (A), infra; Rattner, 930 performed an “unreasonable” visual body cavity search— F.2d at 209 (“In assessing the record ... to determine whether also known as a “strip frisk” or “strip search”—on plaintiff there is a genuine issue as to any material fact, the court “under filthy prison conditions.” Dkt. No. 119-2 ¶¶ 14-15, 17. is required to resolve all ambiguities and draw all factual The strip frisk room “was filthy, bug infested, and extremely inferences in favor of the party against whom summary cold.” Id. ¶ 16. Supt. Graham, who has worked at Auburn judgment is sought.”). On June 3, 2015, plaintiff alleges that for ten-and-a-half years, knew Auburn corrections officers C.O. Cornell and C.O. Steinberg strip frisked him. Dkt. No. were conducting unreasonable searches. Id. ¶ 18-19. The 120-1 ¶ 11. C.O. Cornell conducted a pat frisk on that date, same day, plaintiff filed a grievance against C.O. Cornell and but did not perform a strip frisk. Id. ¶ 12. C.O. Steinberg did C.O. Steinberg alleging an unreasonable strip frisk. Id. ¶ 20. not perform a pat frisk or strip frisk on plaintiff on June 3, On June 13, 2015, C.O. Cornell “responded to the plaintiff's 2015. Id. ¶ 13. [ ] grievance.” Id. ¶ 21. On July 8, 2015, C.O. Cornell confronted plaintiff regarding the June 3, 2015 grievance

On June 7, 2015, C.O. Thomas issued plaintiff a Tier plaintiff filed against him. Id. ¶ 22. On July 9, 2015, Sgt. II disciplinary ticket for sleeping during morning count. Ederer authorized C.O. Cornell to perform a visual body Dkt. No. 120-1 ¶ 18. On June 12, 2015, Lieut. Ouimette cavity search on plaintiff. Id. ¶¶ 29, 32. During the strip frisk, commenced a Tier II disciplinary hearing. Id. ¶ 19. During the C.O. Cornell “made statements” to plaintiff regarding the hearing, Lieut. Ouimette denied plaintiff's request to call Supt. June 3, 2015 grievance that plaintiff filed against him. Id. ¶ Graham as a witness because he did not issue the disciplinary 28. C.O. Cornell was not supervised during the strip frisk, ticket, and was not present during the incident that resulted nor did he conduct the search in a “suitable and comfortable in the ticket. Id. ¶¶ 20-21. Although Lieut. Ouimette denied location.” Id. ¶¶ 30, 31. plaintiff's request, he allowed plaintiff to testify that he had filed a prior grievance against C.O. Thomas. Id. ¶¶ 22, 23.

The same day, C.O. Cornell and C.O. Lovejoy conducted a Lieut. Ouimette found plaintiff guilty, and sentenced him to cell search of plaintiff's cell. Dkt. No. 119-2 ¶ 33. During thirty days keeplock. 3 the search, C.O. Cornell, C.O. Lovejoy, and C.O. Schramm destroyed plaintiff's legal materials and medication. Id. ¶ 34. C.O. Lovejoy escorted plaintiff to the hospital for a urine 3

“Keeplock is a form of disciplinary confinement test. Id. ¶ 35. C.O. Lovejoy and C.O. Schramm “harassed segregating an inmate from other inmates and and threatened the plaintiff for his grievance activities.” Id. depriving him of participation in normal prison ¶ 36. C.O. Cornell “planted drugs on the plaintiff for filing activities.” Green v. Bauvi, 46 F.3d 189, 192 (2d [a] grievance.” Id. ¶ 37. On July 10, 2015, C.O. Cornell Cir. 1995); N.Y. COMP. CODES R. & REGS. tit. issued plaintiff a misbehavior report in retaliation for his 7, § 301.6. June 3, 2015 grievance that plaintiff filed against him. Id. ¶¶ *3 On July 9, 2015, Sgt. Ederer authorized C.O. Cornell 38-39. On July 28, 2015, “plaintiff was found guilty of the and C.O. Lovejoy to conduct a cell search of plaintiff's cell. false misbehavior report written by [C.O.] Cornell.” Id. ¶ 40. Fann v. Graham, Not Reported in Fed. Supp. (2018)

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Dkt. No. 120-1 ¶ 27. In conjunction with the cell search, C.O. the Court with portions of “pleadings, depositions, answers Cornell performed a pat frisk of plaintiff. Id. ¶ 28. During to interrogatories, and admissions on file, together with the the pat frisk, C.O. Cornell found a “green leafy substance” affidavits, if any,” which support the motion. FED. R. CIV. on plaintiff that was later found to be marijuana, along with P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 a “suspicious lump” in plaintiff's “groin area.” Id. ¶ 29. C.O. S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may Cornell requested permission to conduct a strip frisk. Id. ¶ affect the outcome of the case as determined by substantive 30. C.O. Cornell found no further contraband during the strip law, such that “a reasonable jury could return a verdict for frisk. Id. ¶ 31. C.O. Cornell was the only officer present during the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 plaintiff's strip frisk. Id. ¶ 32. C.O. Lovejoy completed the U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In search of plaintiff's cell and found no other contraband. Id. determining whether summary judgment is appropriate, [the ¶ 34. Because plaintiff possessed marijuana, Auburn staff Court will] resolve all ambiguities and draw all reasonable took plaintiff to the hospital for urine sample testing. Id. ¶ inferences against the moving party.” Skubel v. Fuoroli, 113 35. Plaintiff tested positive for marijuana use. Id. ¶ 36. C.O. F.3d 330, 334 (2d Cir. 1997). Cornell issued plaintiff a misbehavior report for possession and use of marijuana. Id. ¶ 37. To avoid summary judgment, a non-moving party “must do

more than simply show that there is some metaphysical doubt On July 14, 2015, Lieut. Ouimette commenced a Tier III as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 disciplinary hearing regarding the July 9, 2015 misbehavior (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v. report. Dkt. No. 120-1 ¶ 38. At the outset, Lieut. Ouimette Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 dismissed the drug use charge because plaintiff had already L.Ed.2d 538 (1986)) (internal quotation marks omitted). A tested positive for marijuana use within the past thirty days, non-moving party must support such assertions by evidence and the July 9, 2015 test results could not be validated. showing the existence of a genuine issue of material fact. Id. Id. ¶¶ 39-40. Lieut. Ouimette found plaintiff guilty of drug “When no rational jury could find in favor of the non-moving possession, and sentenced him to ninety days keeplock. Id. ¶ party because the evidence to support is so slight, there is 41. The disciplinary disposition was reversed on appeal, and no genuine issue of material fact and a grant of summary plaintiff served approximately sixty days in keeplock. Id. ¶ 42. judgment is proper.” Gallo v. Prudential Services, Ltd. P'ship,

22 F.3d 1219, 1224 (2d Cir. 1994). In opposition, plaintiff argues that the Court should deny defendants' motion because: (1) he exhausted his Where, as here, a party seeks judgment against a pro se administrative remedies; and (2) he has stated claims against litigant, a court must afford the non-movant special solicitude. the defendants. Dkt. No. 125. In reply, defendants contend See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 that plaintiff failed to exhaust his administrative remedies. (2d Cir. 2006). As the Second Circuit has stated, Dkt. No. 126.

*4 [t]here are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” ... that a pro se litigant's submissions must be construed “liberally,” ... and

II. Discussion 4 that such submissions must be read to raise the strongest arguments that they “suggest,”.... At the same time, our

4 All unpublished opinions cited in this Report- cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se Recommendation and Order, unless otherwise litigant's allegations, ... or arguments that the submissions noted, have been provided to plaintiff.

themselves do not “suggest,” ... that we should not “excuse frivolous or vexatious filings by pro se litigants,” ... and

A. Legal Standards that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law.... “A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and

Id. (citations and footnote omitted); see also Sealed Plaintiff the movant is entitled to judgment as a matter of law.” v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008). FED. R. CIV. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing Fann v. Graham, Not Reported in Fed. Supp. (2018)

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must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he

B. Exhaustion or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation omitted).

As a threshold matter, defendants contend that plaintiff has failed to exhaust his administrative remedies. Dkt. No.

Although the Supreme Court has deemed exhaustion 120-4 (“Def. Mem. of Law”) at 10-13. Defendants argue mandatory, the Second Circuit has recognized that “certain that because plaintiff failed to exhaust his administrative caveats apply.” Ruggiero v. Cty. of Orange, 467 F.3d remedies as to Supt. Graham, DSS Fagan, Sgt. Ederer, C.O. 170, 175 (2d Cir. 2006) (citation omitted). The Supreme Lovejoy, and C.O. Schramm, any claims involving those Court recently held that “[c]ourts may not engraft an defendants should be dismissed. Def. Mem. of Law at 13. unwritten ‘special circumstances’ exception onto the PLRA's Defendants further argue that plaintiff failed to exhaust his exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136 administrative remedies as to the July 9, 2015 incident. S.Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). Thus, the “special Id. 5 Plaintiff contends that he properly filed a grievance circumstances” exception in Hemphill v. New York, 680 F.3d regarding the July 9, 2015 incident. Dkt. No. 125 at 7-8.

680, 686 (2d Cir. 2004) is no longer consistent with the Plaintiff also claims that he was aware “of the facility attitude statutory requirements of the PLRA. Williams v. Priatno, 829 toward the grievance program” and “properly followed all F.3d 118, 123 (2d Cir. 2016). 6 steps to exhaust his claims.” Id. at 8. Plaintiff argues that “the [d]efendants failure to properly deliver and or have

6 a program where grievances are safe and secure does not In Williams v. Priatno, the Second Circuit debated fall at [his] feet, [and] should not be an escape route for Ross's effect on Hemphill’s estoppel exception. See claims to be dismissed.” Id. In reply, defendants argue Williams, 829 F.3d at 123. The Williams Court that plaintiff supports his “conclusory allegation” that he stated that “Ross largely supplants our Hemphill exhausted his administrative remedies with “handwritten inquiry by framing the exception issue entirely letters that, by [p]laintiff's own acknowledgement [sic], were within the context of whether administrative never acknowledged as received by DOCCS.” Dkt. No. 126 remedies were actually available to the aggrieved at 4. Defendants contend that plaintiff's prior grievance filings inmate.” Id. (citing Ross, 136 S.Ct. at 1858-59). and Jeffery Hale and Cheryl Parmiter's declarations invalidate *5 Although Ross eliminates the “special circumstances” plaintiff's claim of unavailability. Id. exception, courts must still consider the PLRA's “textual exception to mandatory exhaustion.” Ross, 136 S.Ct. at 5 Defendants concede that plaintiff exhausted his 1858. Under this exception, courts must determine whether administrative remedies regarding C.O. Cornell administrative remedies were “available” to a prisoner. Id. and C.O. Steinberg's June 3, 2015 strip frisk, and The Supreme Court identified three circumstances where C.O. Thomas' June 7, 2015 misbehavior report. administrative remedies may be unavailable to a prisoner. Def. Mem. of Law at 13. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise)

The Prison Litigation Reform Act (“PLRA”) requires that a it operates as a simple dead end—with officers unable or prisoner exhaust any administrative remedies available to him consistently unwilling to provide any relief to aggrieved or her before bringing an action for claims arising out of his or inmates.” Id. at 1859 (citing Booth v. Churner, 532 U.S. her incarceration. See Porter v. Nussle, 534 U.S. 516, 524, 122 731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). S.Ct. 983, 152 L.Ed.2d 12 (2002); see also Woodford v. Ngo, “Next, an administrative scheme might be so opaque that 548 U.S. 81, 82, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). it becomes, practically speaking, incapable of use.” Id. The exhaustion requirement applies “to all inmate suits about Lastly, administrative remedies are unavailable where “prison prison life, whether they involve general circumstances or administrators thwart inmates from taking advantage of a particular episodes, and whether they allege excessive force grievance process through machination, misrepresentation, or or some other wrong.” Porter, 534 U.S. at 532, 122 S.Ct. intimidation.” Id. at 1860. 983. Further, the exhaustion requirement applies even where the prisoner seeks relief not available in the administrative grievance process, such as monetary damages. Id. at 524, 122 S.Ct. 983. To exhaust administrative remedies, the inmate Fann v. Graham, Not Reported in Fed. Supp. (2018)

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Insofar as plaintiff seeks relief against Supt. Graham for supervisory liability and Lieut. Ouimetto for Fourteenth

1. Did Plaintiff Exhaust his Administrative Remedies? Amendment due process, plaintiff has failed to exhaust his administrative remedies. DOCCS records establish that

Although plaintiff seems to suggest that the Auburn grievance plaintiff did not name either Supt. Graham or Lieut. process was unavailable, there is no genuine dispute that at Ouimetto in grievances pertaining to the conduct at issue. all relevant times, DOCCS had in place a three-step inmate See Dkt. No. 120-30; Dkt. No. 120-29 (“Hale Decl.”) grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, at 4 (detailing plaintiff's subject grievances). Notably, in § 701.5. 7 opposition, plaintiff does not allege that he exhausted his administrative remedies as to Supt. Graham or Lieut.

7 First, the inmate must file a complaint with an Ouimetto, and does not claim that defendants prevented or inmate grievance program (“IGP”) clerk within obstructed him from filing grievances against Supt. Graham twenty-one days of the alleged incident. N.Y. or Lieut. Ouimetto. Further, there is nothing in the record COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1). indicating that Supt. Graham, Lieut. Ouimetto, or any other An IGP representative has sixteen calendar days defendant prevented him from filing grievances. See Dkt. to informally resolve the issue. Id. § 701.5(b)(1). No. 125 at 8 (noting, in plaintiff's exhaustion section, that If no informal resolution occurs, the IGRC must he “properly exhausted” claims against defendants Cornell, hold a hearing within sixteen days of receipt of Lovejoy, Ederer, and Schramm). 8 Therefore, because the grievance and must issue a written decision plaintiff failed to exhaust his administrative remedies as to within two working days after the conclusion Supt. Graham and Lieut. Ouimetto, it is recommended that of the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the defendants' Motion for Summary Judgment, insofar as it determination is unfavorable to the inmate, the relates to claims against Supt. Graham and Lieut. Ouimetto, inmate may appeal the IGRC's determination to the be granted. facility superintendent within seven calendar days of receipt of the determination. Id. § 701.5(c)(1). If

8 Plaintiff testified that he filed a grievance the superintendent's determination is unfavorable, against Supt. Graham for failure to release him the inmate may appeal to CORC within seven days from keeplock, such conduct—by plaintiff's own after receipt of the superintendent's determination. admission—is not related to the instant case. Dkt. Id. §§ 701.5(d)(i)-(ii). CORC must “review each No. 120-3 (“Pl. Dep.”) at 125, 222; Dkt. No. appeal, render a decision on the grievance, and 120-34. transmit its decision to the facility, with reasons stated, for the [inmate], the grievance clerk, the superintendent, and any direct parties within thirty

c. July 9, 2015 Incident (30) calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii).

*6 Plaintiff claims that on July 14, 2015, he filed a grievance regarding the July 9, 2015 “retaliatory cell search, visual body cavity search, urine test, verbal threats, harassment, and

a. DSS Fagan the false misbehavior report.” Am. Compl. ¶ 169. Plaintiff testified that he handed this grievance to the “rounds officer”

Plaintiff concedes that he did not exhaust his administrative while he was on keeplock confinement. Dkt. No.120-3 (“Pl. remedies as to claims against DSS Fagan, and that summary Dep.”) at 213. On July 17, 2015, after he did not receive a judgment should be granted. Dkt. No. 125 at 9. Accordingly, copy of the grievance or a grievance number, plaintiff filed a it is recommended that defendants' Motion for Summary second grievance. Am. Compl. ¶ 171. Plaintiff testified that he Judgment, insofar as it relates to claims against DSS Fagan, handed the second grievance to the sergeant on duty. Pl. Dep. be granted. at 217. On August 13, 2015, after not receiving a response from Auburn's IGRC, plaintiff filed a notice of appeal “in accordance with the rules and regulations” requesting that his

b. Supt. Graham and Lieut. Ouimetto grievance be sent to CORC. Am. Compl. ¶ 177. Fann v. Graham, Not Reported in Fed. Supp. (2018)

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Defendants contend that plaintiff never filed a grievance with Viewing the facts in the light most favorable to plaintiff, the respect to the July 9, 2015 strip frisk by C.O. Cornell, cell record suggests that plaintiff's grievances were submitted, but search by C.O. Cornell, C.O. Lovejoy, C.O. Schramm, and were unfiled and unanswered, creating an issue of fact as Sgt. Ederer, destruction of property by C.O. Cornell and to whether the grievance process was available and whether C.O. Schramm, and a falsified misbehavior report. Def. Mem. plaintiff attempted to exhaust his administrative remedies of Law at 12-13. Auburn's IGP Supervisor Cheryl Parmiter as to C.O. Cornell, C.O. Lovejoy, C.O. Schramm, and Sgt. declared that a search of the DOCCS database confirms Ederer in relation to the July 9, 2015 incident. See Williams, that, although plaintiff filed six grievances while housed at 829 F.3d at 126 (concluding that “the process to appeal an Auburn, five were filed prior to July 9, 2015. Dkt. No. unfiled and unanswered grievance is prohibitively opaque, 120-35 (“Parmiter Decl.”) at 3. The grievance filed after such that no inmate could actually make use of it.”); Thaxton July 9, 2015 does not relate to the wrongdoings plaintiff v. Simmons, No. 9:10-CV-1318 (MAD/RFT), 2013 WL alleged occurred on July 9, 2015. Id. at 4. DOCCS' Assistant 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact Director of IGP Jeffery Hale declared that a search of the exists as to whether [p]laintiff never filed his initial grievance CORC database confirms that “plaintiff filed a number of on April 29, as [d]efendants claim, or that, as [p]laintiff grievance appeals with CORC, but none of those appeals claims, he filed a timely grievance that was lost or tampered concern matters stemming from incidents of an allegedly with by [d]efendants. Such credibility assessments are to be improper strip frisk, an allegedly improper cell search, or the resolved by a trier of fact.”). Accordingly, the undersigned issuance of an allegedly false misbehavior report on July 9, recommends that defendants' Motion for Summary Judgment 2015.” Hale Decl. at 4. However, plaintiff has proffered a on plaintiff's claims arising from the July 9, 2015 incident be copy of the July 17, 2015 grievance alleging that “several denied, without prejudice and with the opportunity to renew officers” 9 subjected him “to an unnecessary pat frisk, strip, by way of an exhaustion hearing, should defendants request

such a hearing. frisk, cell search, verbal threats, and an [sic] urine test and false report.” Dkt. No. 125-2 at 18. Plaintiff further provides his August 13, 2015 notice of appeal to CORC, which details plaintiff's attempts to exhaust his administrative remedies and

C. Fourth Amendment expresses his desire to further “appeal to the next level of *7 Plaintiff alleges that C.O. Cornell and C.O. Steinberg review.” Id. 10

violated his Fourth Amendment rights during a June 3, 2015 strip search. Dkt. No. 119-3 (“Pl. Mem. of Law”) at 4-5.

9 In New York State, the IGP regulations do not Defendants argue that the strip frisk never occurred, and in require that an inmate's grievance contain the name the alternative, neither C.O. Cornell nor C.O. Steinberg had of the offending corrections officer. See Espinal v. physical contact with plaintiff. Def. Mem. of Law at 19. Goord, 558 F.3d 119, 126 (2d Cir. 2009). “[T]he The Fourth Amendment establishes that “[t]he right of the IGP regulations offer the general guidance that people to be secure in their persons ... against unreasonable a grievance should ‘contain a concise, specific searches and seizures[ ] shall not be violated.” U.S. CONST. description of the problem,’ ... and the complaint amend. IV. However, inmates are generally not afforded the form does not instruct the inmate to name the same privacy rights as non-inmates because “[l]oss of ... officials allegedly responsible for misconduct.” Id. privacy [is an] inherent incident[ ] of confinement.” Bell (internal citations omitted). Therefore, an inmate v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d “is not required to name responsible parties in a 447 (1979); Perez v. N.Y.S. Dep't of Corr. Servs., No. 9:08- grievance in order to exhaust his administrative CV-1031, 2010 WL 1235637, at *5 (N.D.N.Y. Mar. 17, remedies.” Id. 2010). “Strip frisks pass constitutional muster, even if the 10 strip frisk is conducted without probable cause, so long as Plaintiff's July 2015 grievance involves staff the search is reasonable and not abusive.” Shabazz v. Pico, misconduct or harassment, which follows an 994 F.Supp. 460, 473 (S.D.N.Y. 1998) (citing Bell, 411 U.S. expedited procedure and is immediately sent to at 558-60, 93 S.Ct. 1713). In assessing reasonableness under the superintendent for review. See N.Y. COMP. the Fourth Amendment, “[c]ourts must consider the scope of CODES R. & REGS. tit. 7, § 701.8(a), (b); Dkt. No.

the particular intrusion, the manner in which it is conducted, 125-2 at 18. the justification for initiating it, and the place in which it Fann v. Graham, Not Reported in Fed. Supp. (2018)

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is conducted.” Bell, 441 U.S. at 558, 99 S.Ct. 1861. C.O. him. Pl.'s Mem. of Law at 6-7. Defendants argue that plaintiff Cornell concedes that he pat frisked plaintiff on June 3, 2015, “has no viable claim for Officer Thomas' filing of a false but denies conducting a strip frisk. Def. Mem. of Law at 19; misbehavior report [because] [h]e was granted a hearing on Dkt. No. 120-18 (“Cornell Decl.”) ¶ 4. C.O. Steinberg denies the charges and does not raise any viable claim that such strip frisking plaintiff on June 3, 2015. Def. Mem. of Law at hearing failed to provide him due process.” Def.'s Mem. 19; Dkt. No. 120-21 (“Steinberg Decl.”) ¶ 4. C.O. Steinberg of Law at 20. Moreover, defendants argue that the only further states that he did not witness C.O. Cornell pat frisk evidence plaintiff offers of C.O. Thomas' retaliation are the plaintiff on June 3, 2015. Steinberg Decl. ¶ 4. inadmissible declarations of inmates who purported to have

overheard conversations between C.O. Thomas and plaintiff. The record contains disputed issues of material fact as to Dkt. No. 124-1 at 8-9. whether the June 3, 2015 strip frisk occurred, and if it did occur, whether the strip frisk was reasonable under the Fourth *8 Courts are to “approach [First Amendment] retaliation Amendment. However, even assuming the strip frisk occurred claims by prisoners ‘with skepticism and particular care[.]’ as plaintiff alleges, and occurred without probable cause, ” See, e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. plaintiff fails to establish that the June 3, 2015 strip frisk was 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d unreasonable. Plaintiff testified that the June 3, 2015 search Cir. 2001), overruled on other grounds by Swierkiewicz v. was illegal, in part, because C.O. Cornell conducted it in Sorema, N. A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 a “racist manner” by forcing plaintiff to “have [his] hands (2002)). A retaliation claim under Section 1983 may not be above [his] head, strapped to some bars, standing naked.” conclusory and must have some basis in specific facts that are Pl. Dep. at 222-23. DOCCS Directive 4190 states that a not inherently implausible on their face. See Ashcroft v. Iqbal, corrections officer may require an inmate to “lift[ ] his arms 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); to expose his armpits” during a strip frisk. Dkt. No. 120-8 South Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, at 6. Plaintiff has not further demonstrated how standing 110 (2d Cir. 2009). “To prove a First Amendment retaliation with his “hands above [his] head, strapped to some bars” claim under Section 1983, a prisoner must show that ‘(1) constitutes racist conduct on behalf of C.O. Cornell or C.O. that the speech or conduct at issue was protected, (2) that Steinberg. Pl. Dep. at 222-23. Moreover, there is no indication the defendant took adverse action against the plaintiff, and that C.O. Cornell or C.O. Steinberg exceeded the scope of (3) that there was a causal connection between the protected the strip frisk, as plaintiff concedes that neither C.O. Cornell speech and the adverse action.’ ” Espinal v. Goord, 558 F.3d or C.O. Steinberg made physical contact with him during 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 the frisk. Pl. Dep. at 152. Insofar as plaintiff suggests that F.3d 379, 380 (2d Cir. 2004), overruled on other grounds by C.O. Cornell and C.O. Steinberg violated DOCCS Directive Swierkiewicz, 534 U.S. at 560, 122 S.Ct. 999). 4190 by conducting the strip search in the alleged unsanitary area at issue in C-Block, C.O. Cornell and C.O. Steinberg's To satisfy the first element of a retaliation claim, a plaintiff failure to follow a DOCCS directive does not amount to must show that he engaged in a protected activity. See Espinal, a constitutional violation. See Burroughs v. Petrone, 138 558 F.3d at 128. The Second Circuit has concluded that use of F.Supp.3d 182, 219 (N.D.N.Y. 2015); Sanders v. Gifford, No. the prison grievance system constitutes a protected activity. 11-CV-0326, 2014 WL 5662775, at *4 (N.D.N.Y. Nov. 4, See Gill, 389 F.3d at 384; Franco v. Kelly, 854 F.2d 584, 2014). Therefore, viewing the facts in the light most favorable 589 (2d Cir. 1988) (“Moreover, intentional obstruction of a to plaintiff, plaintiff fails to establish that the June 3, 2015 prisoner's right to seek redress of grievances is precisely the strip frisk was unreasonable. Accordingly, it is recommended sort of oppression that section 1983 is intended to remedy.”) that plaintiff's Motion for Summary Judgment as to the June (alteration and internal quotation marks omitted); see also 3, 2015 strip search be denied, and defendants' Motion for Roseboro v. Gillespie, 791 F.Supp.2d 353, 367 (S.D.N.Y. Summary Judgment be granted. 2011) (finding that the filing of a grievance is a protected

activity); Mateo v. Fischer, 682 F.Supp.2d 423, 433 (S.D.N.Y. 2010) (same). Plaintiff states that he filed a grievance against C.O. Thomas on May 10, 2015. Pl.'s Mem. of Law at 6-7;

D. First Amendment Dkt. No. 119-4 at 4. Thus, plaintiff satisfies the first prong of the test as he has engaged in a protected activity. See id.; Gill,

Plaintiff claims that C.O. Thomas subjected him to a false 389 F.3d at 384. misbehavior report in retaliation for filing a grievance against Fann v. Graham, Not Reported in Fed. Supp. (2018)

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A defendant's retaliatory filing of a falsified misbehavior Plaintiff alleges that on May 10, 2015, he filed a grievance report that results in disciplinary segregated confinement against C.O. Thomas. Pl.'s Mem. of Law at 6-7; Dkt. No. constitutes adverse action. See Gill, 389 F.3d at 384 (finding 119-4 at 4. On June 6, 2015, C.O. Thomas submitted a that a false misbehavior report that resulted in the plaintiff's memorandum to the Auburn IGP denying the allegations set placement in keeplock constituted adverse action); Gayle v. forth in the grievance. Dkt. No. 119-4 at 6. The following day, Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (emphasis added) C.O. Thomas confined plaintiff to his cell. Pl.'s Mem. of Law (“An allegation that a prison official filed false disciplinary at 7. When plaintiff questioned why he was confined, C.O. charges in retaliation for the exercise of a constitutionally Thomas stated, “you filed [a] grievance, this is what you had protected right, such as the filing of a grievance, states asked for.” Id. C.O. Thomas issued plaintiff a misbehavior a claim under § 1983.”). “[T]he mere allegation that a report for failure to comply with facility count procedures false misbehavior report has been issued to an inmate, (112.21) and refusing a direct order (106.10) stemming from standing alone, does not rise to [a] level of constitutional plaintiff's failure to wake up during morning count. Id.; Dkt. significance.” Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM/ No. 119-4 at 15. Lieut. Ouimette conducted a disciplinary DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) hearing on June 12, 2015 and sentenced plaintiff to thirty days (citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)). keeplock. Id. at 17. However, a plaintiff's allegation that a defendant issued a false misbehavior report in response to the plaintiff's protected Defendants argue that plaintiff “provides no admissible activity can support a claim of unlawful retaliation. Id. (citing evidence in support of this claim and Officer Thomas has Franco v. Kelly, 854 F.2d 584, 589 (2d. Cir. 2008)). The specifically denied the allegations of retaliation.” Dkt. No. plaintiff bears the burden of establishing that “the protected 124-1 at 8. Defendants also discredit plaintiff's reliance conduct was a substantial or motivating factor in the prison on Kenneth Boyd's Declaration, which they contend is officials' decision to discipline the plaintiff.” Gayle, 313 F.3d “insufficient and inadmissible as it is based upon his own at 682. supposition regarding Officer Thomas' mental state and his

alleged conversations with the Plaintiff.” Id. at 9. Although defendants are correct that “[a]ffidavits submitted in support of or in opposition to the summary judgment motion must

In determining whether a causal ‘be made on personal knowledge, ... [and] set forth facts as connection exists between the would be admissible in evidence,’ ” plaintiff's submission of plaintiff's protected activity and a the Boyd Declaration is not fatal to his claim. Patterson v. prison official's actions, a number of County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) factors may be considered, including: (quoting FED. R. CIV. P. 56(e)). Indeed, the record establishes (i) the temporal proximity between that plaintiff has presented sufficient circumstantial and direct the protected activity and the alleged evidence to raise a material question of fact whether C.O. retaliatory act; (ii) the inmate's Thomas retaliated against him. prior good disciplinary record; (iii) vindication at a hearing on the matter;

Plaintiff has suggested facts supporting two of the factors and (iv) statements by the defendant set forth in Baskerville. Baskerville, 224 F.Supp.2d at 732. concerning his motivation. Plaintiff filed a grievance against C.O. Thomas on May 10, 2015. Pl.'s Mem. of Law at 6-7; Dkt. No. 119-4 at 4. On June 6, 2015, C.O. Thomas submitted a memorandum to the

*9 Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y. Auburn IGP in conjunction with the grievance investigation 2002). “The causal connection must be sufficient to support

denying the allegations against him. Dkt. No. 119-4 at 6. The an inference that the protected conduct played a substantial next day, C.O. Thomas filed an allegedly false misbehavior part in the adverse action.” Id. In assessing temporal report. Pl.'s Mem. of Law at 7; Dkt. No. 119-4 at 15. proximity, the Second Circuit has held that, generally, to

C.O. Thomas learned of plaintiff's grievance, at the latest, establish a temporal proximity sufficient to support an on June 6, 2015, and issued the misbehavior report on inference of causal connection, there may be no more than June 7, 2015; therefore, the temporal proximity sufficiently six months between the temporal proximity and the adverse supports an inference of causal connection. See Washington v. action. See Espinal, 558 F.3d at 129. Fann v. Graham, Not Reported in Fed. Supp. (2018)

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Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017) (summary order)

(2) Insofar as it seeks dismissal of plaintiff's supervisory (finding that the defendant's questioning of the plaintiff about liability claim against Supt. Graham; a grievance he filed, and subsequently filing an allegedly false misbehavior report against the plaintiff two days later

(3) Insofar as it seeks dismissal of plaintiff's Fourteenth supports an inference of causal connection). Moreover, upon Amendment due process claim against Lieut. Ouimette, confining plaintiff in his cell, C.O. Thomas stated, “you filed [a] grievance, this is what you had asked for.” Pl.'s Mem. of

(4) Insofar as it seeks dismissal of plaintiff's Fourth Law at 7. In support of that contention, plaintiff has proffered Amendment unreasonable search claim against C.O. the sworn affidavit of inmate Rodolfo Casiano, who testified Cornell and C.O. Steinberg, that he was housed in a neighboring cell and witnessed the conversation between plaintiff and “the officer that worked

the motion be GRANTED , and the claims be DISMISSED that day.” Dkt. No. 119-4 at 8. Mr. Casiano states that he with prejudice; and it is further heard C.O. Thomas make the abovementioned comment, as well as the statement, “it's funny how things work.” Id.

RECOMMENDED , that defendants' Motion for Summary Although C.O. Thomas denies issuing the misbehavior report Judgment (Dkt. No. 120) be DENIED IN PART : in retaliation for plaintiff's grievance, affording plaintiff (1) Insofar as it seeks dismissal of plaintiff's First special solicitude, a question of material fact is raised as to

Amendment retaliation claim against C.O. Thomas, the whether C.O. Thomas had retaliatory intent. See Washington, motion be DENIED , 681 Fed.Appx. at 46. Defendants do not argue that plaintiff would have been issued a misbehavior report but for the

(2) Insofar as it seeks dismissal of plaintiff's First and exercise of his First Amendment rights. See Gayle, 313 F.3d Fourth Amendment claims against C.O. Cornell, C.O. a 682 (“The burden then shifts to the defendant to show that Lovejoy, C.O. Schramm, and Sgt. Ederer for the incidents the plaintiff would have received the same punishment even occurring on July 9, 2015, the motion be DENIED , without absent the retaliatory motivation.”). Arguably, defendants prejudice, to defendants renewing this argument and may be suggesting that plaintiff received a misbehavior report requesting a hearing to assess whether plaintiff exhausted because he slept through the morning facility count; however, his administrative remedies, and it is further, as plaintiff denies this conduct, a material fact is in dispute. See Dkt. No. 119-4 at 15. Because a genuine issue of material ORDERED , that the Clerk of the Court serve a copy of fact exists with regard to C.O. Thomas' retaliatory intent, it is

this Report-Recommendation and Order on all parties in recommended that plaintiff's Motion for Summary Judgment accordance with Local Rules. be denied, and defendants' Motion for Summary Judgment be denied as to plaintiff's First Amendment claim against C.O.

IT IS SO ORDERED . Thomas. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written

III. Conclusion objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT

*10 WHEREFORE , for the reasons stated herein, it is

TO THIS REPORT WITHIN FOURTEEN (14) DAYS

hereby WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.

RECOMMENDED , that plaintiff's Motion for Summary Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. Judgment (Dkt. No. 119) be DENIED ; and it is further 1989)); 28 U.S.C. § 636(b)(1); FED R. CIV. P. 6(a), 6(e), 72. 11

RECOMMENDED , that defendants' Motion for Summary Judgment (Dkt. No. 120) be GRANTED IN PART:

11 If you are proceeding pro se and are served with this (1) Insofar as it seeks dismissal of plaintiff's supervisory Order by mail, three additional days will be added liability claims against Deputy Superintendent Fagan; to the fourteen-day period, meaning that you have seventeen days from the date the Order was mailed

Fann v. Graham, Not Reported in Fed. Supp. (2018)

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that is not a Saturday, Sunday, or legal holiday. Id. to you to serve and file objections. FED. R. CIV. P. § 6(a)(1)(C). 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the

All Citations deadline is extended until the end of the next day Not Reported in Fed. Supp., 2018 WL 1399331 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Fann v. Graham, Not Reported in Fed. Supp. (2018)

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2018, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that

2018 WL 1399340

defendants' motion for summary judgment be granted in Only the Westlaw citation is currently available. part and denied in part, and plaintiff's motion for summary United States District Court, N.D. New York. judgment be denied in its entirety. Plaintiff and defendants filed timely objections to the Report-Recommendation, and

Jermaine FANN, Plaintiff, defendants submitted an additional though untimely response v. to plaintiff's objections. H. GRAHAM, Superintendent Auburn Correctional Facility; Lt. Ouimette 1 , Lieutenant, Auburn Based upon a careful review of the Report-Recommendation Correctional Facility; Sgt. Ederer, Sergeant, Auburn and the portions to which the parties objected, the Report- Correctional Facility; M. Cornell, Correctional Recommendation is accepted in whole. See 28 U.S.C. § Officer, Auburn Correctional Facility; Lovejoy, 636(b)(1). Correctional Officer, Auburn Correctional Facility; Therefore, it is Steinberg, Correctional Officer, Auburn Correctional Facility, formerly known as Stienberg; C. Thomas, ORDERED that Correctional Officer, Auburn Correctional Facility; R. F. Schramm, Correctional Officer and Certified

1. Plaintiff's motion for summary judgment is DENIED in its Drug Tester, Auburn Correctional Facility, formerly entirety; known as R. F. Shramm; and Fagan, Deputy Superintendent of Security, Auburn Correctional 2. Defendants' motion for summary judgment is GRANTED Facility, in his official capacity, Defendants. in part and DENIED in part; 1 The Clerk is directed to amend the docket to 3. Plaintiff's supervisory liability claims against defendants reflect the correct spelling of Lt. Ouimette's

Fagan and Graham are DISMISSED with prejudice; name. 4. Plaintiff's Fourteenth Amendment due process claim 9:15-CV-1339 (DNH/CFH) against defendant Ouimette is DISMISSED with prejudice; | Signed 03/19/2018 5. Plaintiff's Fourth Amendment unreasonable search claims against defendants Cornell and Steinberg are DISMISSED Attorneys and Law Firms with prejudice; JERMAINE FANN, 430 Main Street-Apt. #306, Dunkirk, 6. Defendants' motion for summary judgment is DENIED NY 14048, pro se. as to plaintiff's First Amendment retaliation claim against defendant Thomas; and

HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, OF COUNSEL: WILLIAM A. SCOTT,

7. Defendants' motion for summary judgment is DENIED ESQ., NICOLE E. HAIMSON, ESQ., Ass't Attorneys without prejudice as to plaintiff's First and Fourth General, The Capitol, Albany, NY 12224, Attorney for Amendment claims against defendants Cornell, Lovejoy, Defendants. Schramm, and Ederer for the incidents occurring on July 9, 2015, to defendants renewing this argument and requesting a hearing to assess whether plaintiff exhausted his

DECISION and ORDER administrative remedies. DAVID N. HURD, United States District Judge

IT IS SO ORDERED.

*1 Pro se plaintiff Jermaine Fann brought this civil rights action pursuant to 42 U.S.C. § 1983. On January 11, Fann v. Graham, Not Reported in Fed. Supp. (2018)

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All Citations Not Reported in Fed. Supp., 2018 WL 1399340 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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indifference claim against Defendant Garneau. See Dkt. No. 50–5. In a May 23, 2013 Report–Recommendation and Order,

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Magistrate Judge Treece recommended that Defendants' Only the Westlaw citation is currently available. motion for summary judgement be granted. United States District Court, N.D. New York. Currently before the Court are Plaintiff's objections to Magistrate Judge Treece's Report–Recommendation and

Ronnie THAXTON, Plaintiff, Order. v. A. SIMMONS, Corrections Officer, Upstate Correctional Facility, Bush, Corrections Officer, Upstate Correctional Facility, K. Garneau, Nurse, II. BACKGROUND

Upstate Correctional Facility, John Doe, Corrections Plaintiff's claims arose from events between January 12, Officer, Upstate Correctional Facility, Defendants. 2009, and April 28, 2009, while he was in the custody of the New York State Department of Corrections and

No. 9:10–CV–1318 (MAD/RFT). Community Supervision (“DOCCS”) as an inmate in the | Upstate Correctional Facility (“Upstate C.F.”). See Dkt. No. Sept. 9, 2013. 50–1 at ¶ 1. Attorneys and Law Firms On January 12, 2009, Plaintiff filed a grievance, which Ronnie Thaxton, Ossining, NY, pro se. the parties have agreed implicated Defendant Simmons, complaining about receiving his meals later than other

Office of the New York State Attorney General, Christopher prisoners. See id. at ¶¶ 2–3. On April 6, Defendant Simmons W. Hall, AAG, of Counsel, Albany, NY, for Defendants. delivered Plaintiff's evening meal which contained several strands of hair. See id. Plaintiff complained to Defendant

Hon. Eric T. Schneiderman, Attorney General of the State Simmons about the hair and he promptly gave Plaintiff of New York, Christopher W. Hall, Esq., Assistant Attorney another tray of food. See Dkt. No. 50–3 at 25. 1 Plaintiff General, of Counsel, Albany, NY, for Defendants. did not see anyone place the hair in his meal, did not see Defendant Simmons remove the plastic wrap from the meal, and Defendant Simmons stated that he had not “played”

MEMORANDUM–DECISION AND ORDER

with Plaintiff's food. See id. at 26, 28. Plaintiff contends that MAE A. D'AGOSTINO, District Judge. Defendant Simmons placed the hair in the food as a means of retaliating against him for the January 12 grievance. See id. at 31.

I. INTRODUCTION

*1 Pro se plaintiff, Ronnie Thaxton, brought this civil 1 To avoid confusion, any time the Court references a rights action pursuant to 42 U.S.C. § 1983 alleging (1) specific page number for a document on the docket, Defendant Simmons retaliated against Plaintiff because of the Court will cite to the page number assigned by past grievances he filed, (2) Defendants Bush and Doe the Court's electronic filing system. deprived Plaintiff of nutritional meals, and (3) Defendant On April 28, 2009, Defendants Bush and Doe served Plaintiff Garneau violated Plaintiff's First and Eighth Amendment his evening meal containing a piece of metal in his sardines. rights by his deliberate indifference to Plaintiff's serious See Dkt. No. 50–1 at ¶¶ 16–17, 25. Defendant Doe did not medical needs. See Dkt. No. 60 at 1. Defendants have moved touch the food and only delivered Plaintiff his Kool–Aid and for summary judgment on the grounds that (1) Plaintiff failed hot water. See Dkt. No. 50–3 at 39. Plaintiff did not see to exhaust the available administrative remedies regarding his Defendant Bush tamper with the food and discovered the claims against Defendants Bush and Garneau, (2) Defendants piece of metal when he bit into his sardine sandwich. See id. Bush and Simmons were not personally involved in the at 38. Plaintiff “noticed drops of blood in the food” after the claimed constitutional violations, and (3) Plaintiff did not suffer a serious injury to support his medical deliberate Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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piece of metal cut his mouth, at which point he called for for clear error. O'Diah v. Mawhir, No. 9:08–CV–322, 2011 medical attention. See id. at 45. WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and

footnote omitted). After the appropriate review, “the court Defendant Nurse Garneau and Sergeant Lombard came to may accept, reject, or modify, in whole or in part, the findings Plaintiff's cell within twenty minutes of his request for or recommendation made by the magistrate judge.” 28 U.S.C. medical attention. See id. at 34. Defendant Garneau did not § 636(b) (1). inspect Plaintiff's mouth, but stated that there was not much damage and that Plaintiff should not “be a cry baby.” See id. at A court may grant a motion for summary judgment only if 34. Plaintiff's bleeding completely stopped within an hour and it determines that there is no genuine issue of material fact was not “actually a cut anymore” within three or four days. to be tried and that the facts as to which there is no such See id. at 50. Plaintiff experienced slight difficulty eating and issue warrant judgment for the movant as a matter of law. sleeping directly after the incident, but was able to get the See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d “right amount” of food and sleep. See id. at 54, 56. Plaintiff Cir.1994) (citations omitted). When analyzing a summary requested sick call at the Attica Correctional Facility (“Attica judgment motion, the court “cannot try issues of fact; it can C.F.”) about a week after the incident. See id. at 54. There, only determine whether there are issues to be tried.” Id. at 36– he saw another nurse and a dentist and neither reported any 37 (quotation and other citation omitted). Moreover, it is well- lasting injuries or effects from the incident. See id. settled that a party opposing a motion for summary judgment

may not simply rely on the assertions in its pleadings. See *2 In a May 23, 2013 Report–Recommendation and Order, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, Magistrate Judge Treece recommended that the Court grant 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)(e)). Defendants' motion for summary judgment and close this case. See Dkt. No. 60. In his objections to the Report– In assessing the record to determine whether any such issues Recommendation and Order, Plaintiff generally just reiterates of material fact exist, the court is required to resolve all arguments he made in opposing the motion for summary ambiguities and draw all reasonable inferences in favor of judgment. See Dkt. No. 61. Specifically, Plaintiff presents the nonmoving party. See Chambers, 43 F.3d at 36 (citing the following arguments: (1) the metal placed in his sardine Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 sandwich deprived him of the “minimal civilized measures S.Ct. 2502, 2513–14, 91 L.Ed.2d 202 (1986)) (other citations of life's necessities which was nutritionally adequate food omitted). Where the non-movant either does not respond that is ‘prepared’ and ‘served’ under conditions which do to the motion or fails to dispute the movant's statement of not present imminent danger to health and well being of material facts, the court may not rely solely on the moving inmates who consume it;” (2) Defendant Garneau violated his party's Rule 56.1 statement; rather the court must be satisfied Eighth Amendment rights when she refused to examine or that the citations to evidence in the record support the treat his injuries; and (3) that the injury to his mouth lasted movant's assertions. See Giannullo v. City of N.Y., 322 F.3d approximately thirty days and he was prescribed Tylenol for 139, 143 n. 5 (2d Cir.2003) (holding that not verifying in the the injury, which shows that it was more than a de minimis record the assertions in the motion for summary judgment injury. See Dkt. No. 61 at 2–4. “would derogate the truth-finding functions of the judicial

process by substituting convenience for facts”). *3 “[I]n a pro se case, the court must view the submissions

III. DISCUSSION

by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’ “ Govan v. Campbell, 289

A. Standard of review F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Haines v. When a party files specific objections to a magistrate judge's Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 report-recommendation, the district court makes a “de novo (1972)) (other citations omitted). The Second Circuit has determination of those portions of the report or specified opined that the court is obligated to “make reasonable proposed findings or recommendations to which objection allowances to protect pro se litigants” from inadvertently is made.” 28 U.S.C. § 636(b)(1). However, when a party forfeiting legal rights merely because they lack a legal files “[g]eneral or conclusory objections or objections which education. Govan v. Campbell, 289 F.Supp.2d 289, 295 merely recite the same arguments [that he presented] to the (N.D.N.Y.2007) (qquoting Traguth v. Zuck, 710 F.2d 90, magistrate judge,” the court reviews those recommendations Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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95 (2d Cir.1983)). “However, this does not mean that a from using administrative grievance pro se litigant is excused from following the procedural procedures, and (3) whether special requirements of summary judgment. See id. at 295 (citing circumstances have been plausibly Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, * alleged that justify the prisoner's 1 (S.D.N.Y. May 16, 2001)). Specifically, “a pro se party's failure to comply with administrative ‘bald assertion,’ completely unsupported by evidence” is not procedural requirements.” sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).

*4 Singh v. Goord, 520 F.Supp.2d 487, 495–96 (S.D.N.Y.2007) (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004)).

B. Exhaustion The Prison Litigation Reform Act (“PLRA”) states that “no

In the current case, Defendants claim that Plaintiff failed to action shall be brought with respect to prison conditions under exhaust all available administrative remedies in his claims section 1983 of this title, or any other Federal law, by a against Defendants Bush and Garneau for meal tampering prisoner confined in any jail, prison, or other correctional and deliberate indifference because he did not file a timely facility until such administrative remedies as are available grievance with the IGRC. See Dkt. No. 50–5 at 10. Plaintiff are exhausted.” 42 U .S.C. § 1997e(a). This exhaustion contends that he filed a timely grievance and that special requirement applies to all suits brought by inmates regarding circumstances prevented him from complying with the aspects of prison life. See Porter v. Nussle, 534 U.S. 516, 532, administrative procedural requirements. See Dkt. No. 54 at 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). 11–13. New York State has a three-step administrative review Plaintiff claims that on April 29, 2009, he filed a grievance for process. First, a grievance is submitted to the Inmate both incidents and sent the superintendent a letter describing Grievance Resolution Committee (“IGRC”) which reviews the events. Plaintiff has provided a copy of both the grievance and investigates the formal complaint before issuing a written and the letter to support his claim. See Dkt. No. 55 at 4– determination. See N.Y. COMP.CODES R. & REGS. tit. 7, 5, 8–9. On June 1, 2009, Plaintiff followed up his grievance § 701.5(b). Second, if the IGRC decision is appealed, the by requesting an update on its status and received notice on superintendent of the facility issues a decision after reviewing June 8 stating “there is no grievance on file” concerning his the IGRC's determination. See id. at § 701.5(c). Third, if the complaints allegedly filed on April 29, and that “[Plaintiff's] superintendent's decision is appealed, the final administrative complaint is being returned to [him] to file at [his] present decision is made by the Central Office Review Committee facility.” See id. at 7. On June 16, 2009, Plaintiff filed (“CORC”). See id. at § 701.5(d). If all three of these levels another grievance with the IGRC at Lakeview Correctional of review are exhausted, then the prisoner may seek relief in Facility about the April 28 incidents which was denied federal court pursuant to § 1983. See Bridgeforth v. Bartlett, because of untimely service. See id. at 8, 10. Plaintiff then 686 F.Supp.2d 238, 239 (W.D.N.Y.2010) (citing Porter v. appealed this decision to the superintendent, who affirmed the Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 IGRC decision. See id. at 10. On June 22, Plaintiff made a (2002)). final appeal to the CORC who affirmed the superintendent's decision. See id. at 13.

In determining whether a prisoner has failed to exhaust all available administrative remedies, the Second Circuit has

While an untimely grievance does not properly exhaust instructed the district courts to consider: available administrative remedies under the PLRA, a question of fact exists as to whether Plaintiff never filed his initial grievance on April 29, as Defendants claim, or that, as

“(1) whether administrative remedies Plaintiff claims, he filed a timely grievance that was lost or were actually available, (2) whether tampered with by Defendants. Such credibility assessments the defendants forfeited their right to are to be resolved by a trier of fact. Accordingly, the Court raise the affirmative defense or by their finds that a material issue of fact exists as to whether Plaintiff's own actions precluded the plaintiff failure to exhaust administrative remedies should be excused Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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due to special circumstances. Therefore, Defendants' motion for summary judgment is DENIED on exhaustion grounds. Based upon the evidence presented, no rational juror could

conclude that Defendant Bush was personally involved in contaminating Plaintiff's food simply because he delivered

C. Personal Involvement the meal and then “smirked” after Plaintiff complained of the The Second Circuit has held that “personal involvement metal. Therefore, Defendants' motion for summary judgment of defendants in alleged constitutional deprivations is a on this claim is GRANTED, and Plaintiff's claim against prerequisite to an award of damages under § 1983.” Wright Defendant Bush is DISMISSED. v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations omitted). Further, in regards to § 1983, “the doctrine of respondeat superior cannot be applied ... to satisfy the prerequisite of D. Deliberate Indifference personal involvement.” Kinch v. Artuz, No. 97 CIV. 2419, In order for a plaintiff to effectively state an Eighth 1997 WL 576038, *2 (S.D.N.Y. Sept.15, 1997). Therefore, “a Amendment claim for denial of adequate medical care, plaintiff must plead that each Government-official defendant, he must demonstrate that the prison officials acted with through the official's own individual actions, has violated the “deliberate indifference to serious medical needs.” Estelle constitution.” Ashcroft v. Iqbal, 556, U.S. 662, 676 (2009). v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976). This does not mean that every prisoner that has not received adequate medical attention has an Eighth

1. Defendant Simmons Amendment claim, but rather the alleged conduct must be *5 Plaintiff contends that, on April 6, Defendant Simmons “repugnant to the conscience of mankind” and constitute “an delivered him a tray of food covered with hair in retaliation unnecessary and wanton infliction of pain.” Id. at 105–06. for a grievance Plaintiff had previously filed. Plaintiff did not see Defendant Simmons place hair on the food or see him

The deliberate indifference standard for denial of medical remove the plastic wrap from the food. See Dkt. No. 50–3 at care requires demonstration of (1) a sufficiently serious 26. According to Plaintiff, Defendant Simmons stated that he depravation, and (2) deliberate indifference with a did not play with Plaintiff's food, and if he did, “[Plaintiff] “sufficiently culpable state of mind.” Hathaway v. Coughlin, would know it.” See id. Plaintiff further testified that “the only 37 F.3d 63, 66 (2d Cir.1994) (citation omitted). The first reason why I held [Simmons] responsible is because he's the element is an objective standard to assess the seriousness one that's giving me the tray.” See id. at 28. of a prisoner's medical condition. See Brock v. Wright, 315 F.3d 158, 162 (2d Cir.2003) (citation omitted). This standard

Based upon the evidence presented, no rational juror could includes consideration of “(1) whether a reasonable doctor conclude that Defendant Simmons was personally involved or patient would perceive the medical need in question as in tampering with Plaintiff's food on April 6 merely because ‘important and worthy of comment or treatment,’ (2) whether he served the food that day. Therefore, Defendants' motion the medical condition significantly affects daily activities, for summary judgment on this matter is GRANTED, and and (3) ‘the existence of chronic and substantial pain.’ “ Id. Plaintiff's claim against Defendant Simmons is DISMISSED. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir.1992)) (other citation omitted). The Second Circuit has recognized that dental injuries may require unique attention

2. Defendant Bush due to the likelihood of continuing pain and discomfort, Similar to the claims against Defendant Simmons, Plaintiff however, “not all claims regarding improper dental care will claims Defendant Bush contaminated his food by placing a be constitutionally cognizable.” Chance v. Armstrong, 143 piece of metal in the meal served on April 28. See id. at 38. F.3d 698, 703 (2d Cir.1998). While the decision of whether Plaintiff testified that Defendant Bush delivered his meal on or not to treat a prisoner's injury may rely on an assessment this date, but Plaintiff did not see Defendant Bush tamper of its seriousness at the moment it occurs, “in most cases, the with the food. See id . Plaintiff assumed Defendant Bush was actual medical consequences that flow from the alleged denial responsible for the metal because of “the relationship of ... of care will be highly relevant to the question of whether the the officers and when I told him that I had the metal in there, denial of treatment subjected the prisoner to a significant risk the smirk, the look that he had, that's what made me think he of serious harm.” Smith v. Carpenter, 316 F.3d 178, 187 (2d purposely put it in there, because he was smirking like it was Cir.2003). a joke or something.” See id. Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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*6 The second element of the deliberate indifference serve the Doe Defendant, Plaintiff has failed to do so. Rule 4 standard is a subjective test requiring the plaintiff to show of the Federal Rules of Civil Procedure states that the plaintiff that the defendant acted with the requisite culpable state of is responsible for service of the summons and complaint on mind. This state of mind is similar to criminal recklessness each defendant within 120 days of filing the complaint. See and requires “something more than mere negligence ... [but] FED. R. CIV. P. 4(c)(1), (m). The Northern District of New something less than acts or omissions for the very purpose York requires that the plaintiff must effectuate service within of causing harm or with knowledge that harm will result.” sixty days. The Court may, upon motion or its own initiative, Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 dismiss a case without prejudice as to any defendant that has L.Ed.2d 811 (1994). not been properly served. See id. at 4(m). Since Plaintiff has

failed to timely identify and serve the John Doe Defendant In this case, it is uncontroverted that Defendant Garneau and no valid cause of action has been asserted, all claims responded to Plaintiff's cell after he cut his mouth biting into against Defendant John Doe are DISMISSED. a piece of metal on April 28, 2009. It is also uncontroverted that Defendant Garneau did not inspect Plaintiff's mouth and told him not to “be a cry baby.” See Dkt. No. 50–3 at 34.

IV. CONCLUSION

Plaintiff testified that he experienced “pain in [his] teeth” and that, while he “was not leaking blood, [he] was cut, you

*7 After carefully considering Magistrate Judge Treece's know in the mouth.” See id. at 49. The bleeding in Plaintiff's Report–Recommendation, Plaintiff's objections thereto, and mouth completely stopped within one hour and the cut healed the applicable law, and for the reasons stated herein, the Court without medical attention within three or four days. See id. hereby at 50. Plaintiff experienced some mild difficulty eating and sleeping directly after the incident but was still able to get the

ORDERS that Magistrate Judge Treece's May 23, 2013 “right amount” of food and sleep. See id. at 54, 56. About a Report–Recommendation and Order is ADOPTED in its week after the incident, when Plaintiff requested sick call, his entirety for the reasons stated therein; and the Court further injury was “no longer a cut” and a subsequent examination by a dentist revealed no dental injuries. See id. at 54.

ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety; and the Court further

While Plaintiff claims that his injury was sufficiently serious to require medical care, “[t]he mere fact that plaintiff

ORDERS that the Defendant John Doe is DISMISSED due disagrees with defendants about the nature of his condition to Plaintiff's failure to timely identify and serve him; and the does not give rise to a genuine issue of material fact.” Tindal Court further v. Goord, 530 F.Supp.2d 465, 467 (W.D.N.Y.2008) (citing Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998)). Based

ORDERS that the Clerk of the Court shall enter judgment in on the evidence presented, no reasonable juror could conclude Defendants' favor and close this case; and the Court further that Plaintiff's injury, which stopped bleeding within an hour and completely healed on its own accord within three or four

ORDERS that the Clerk of the Court shall serve a copy days, was objectively a sufficiently serious injury. Since the of this Memorandum–Decision and Order on all parties in Court finds that Plaintiff did not suffer a sufficiently serious accordance with Local Rules. medical injury, the Court need not determine if Defendant Garneau's actions of ignoring medical complaints and calling IT IS SO ORDERED. Plaintiff a “cry baby” rise to the requisite culpable state of mind of deliberate indifference. Therefore, Defendants' motion for summary judgment on this claim is GRANTED

REPORT–RECOMMENDATION and ORDER and the claims against Defendant Garneau are DISMISSED. RANDOLPH F. TREECE, United States Magistrate Judge. E. Defendant Doe Pro se Plaintiff Ronnie Thaxton brings this civil rights In Plaintiff's October 31, 2010 complaint, he named a John

action, pursuant to 42 U.S.C. § 1983, alleging that (1) Doe Defendant. While the Court has reminded Plaintiff Defendant Simmons retaliated against him for grievances several times that he must ascertain the true identity of, and Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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Plaintiff filed against him, (2) Defendants Bush and Doe Cir.2003) (“Conclusory allegations or denials are ordinarily deprived him of nutritional meals, and (3) Defendant Garneau not sufficient to defeat a motion for summary judgment was deliberately indifferent to his serious medical needs, when the moving party has set out a documentary case.”); in violation of his First and Eighth Amendment rights. See Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525–26 Dkt. No. 1, Compl. 1 Defendants have moved for Summary (2d Cir.1994). To that end, sworn statements are “more than

mere conclusory allegations subject to disregard ... they are Judgment on the grounds that (1) Plaintiff failed to exhaust specific and detailed allegations of fact, made under penalty his administrative remedies regarding his claims against of perjury, and should be treated as evidence in deciding Defendants Bush and Garneau, (2) Defendants Simmons a summary judgment motion” and the credibility of such and Bush were not personally involved in any constitutional statements is better left to a trier of fact. Scott v. Coughlin, violations, and (3) Plaintiff did not suffer a sufficiently serious 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 injury to support his medical deliberate indifference claim (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d against Defendant Garneau. See generally Dkt. No. 50–5, Cir.1995)). Defs.' Mem. of Law. We recommend that Defendants' Motion be GRANTED.

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable

1 Plaintiff's Complaint contained additional claims inferences in favor of the non-movant. Nora Beverages, and Defendants. However, the claims and Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Defendants outlined above are all that remain after Cir.1998). “[T]he trial court's task at the summary judgment the Court's initial review of the Complaint and motion stage of the litigation is carefully limited to discerning Defendants' Motion to Dismiss. See Dkt. Nos. 6, whether there are any genuine issues of material fact to be Mem.-Dec. and Order, dated Mar. 29, 2011, & 31, tried, not to deciding them. Its duty, in short, is confined at this Rep.-Rec. and Order, dated Jan. 5, 2012. point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is

I. STANDARD OF REVIEW

proceeding pro se, the court must “read [his or her] supporting papers liberally, and ... interpret them to raise the strongest

Pursuant to FED. R. CIV. P. 56(a), summary judgment is arguments that they suggest.” Burgos v. Hopkins, 14 F.3d appropriate only where “there is no genuine dispute as to any 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, material fact and the movant is entitled to judgment as a matter 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, of law.” The moving party bears the burden to demonstrate unsupported by the record, are insufficient to defeat a motion through “pleadings, depositions, answers to interrogatories, for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, and admissions on file, together with [ ] affidavits, if any,” 21 (2d Cir.1991). that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “When a party has moved for summary

II. DISCUSSION

judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e) ] and has, in

A. Summary of Facts accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no

The following facts are uncontroverted. genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.” Glazer

Plaintiff's claims arise out of events which occurred while he v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992). was an inmate at Upstate Correctional Facility (“UCF”), in the custody of the New York State Department of Corrections and

*8 To defeat a motion for summary judgment, the non- Community Supervision (“DOCCS”). Dkt. No. 50–1, Defs.' movant must set out specific facts showing that there is a Statement of Material Facts Pursuant to Local Rule 7.1(A) genuine issue for trial, and cannot rest merely on allegations (3) (hereinafter “Defs.' 7.1 Statement”), at ¶ 1; see generally or denials of the facts submitted by the movant. FED. R. CIV. Compl. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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On January 12, 2009, Plaintiff filed a grievance, complaining is similarly required even if the prisoner asserts futility that he was getting his meals later than other prisoners; as an excuse. See Booth v. Churner, 531 U.S. 731, 741 although not mentioned by name, it is agreed by the parties n. 6 (2001) (refusing to “read futility or other exceptions that this grievance implicated Defendant Simmons. Defs.' into statutory exhaustion requirements where Congress has 7.1 Statement at ¶¶ 2 & 3. On April 6, Plaintiff found provided otherwise”) (cited in Marvin v. Goord, 255 F.3d 40, several strands of hair in the evening meal that Defendant 43 (2d Cir.2001)). Accordingly, the exhaustion requirements Simmons had delivered to him. He talked to Defendant apply even where the grievance process does not permit an Simmons about the hair and Defendant Simmons stated that award of money damages and the prisoner seeks only money he had not “played” with Plaintiff's food, and if he had that damages, provided the grievance tribunal has the authority Plaintiff “would know it.” Id. at ¶¶ 7–10. Plaintiff did not see to take some responsive action. See Thomas v. Wright, 2002 Defendant Simmons tamper with his meal. Id. at ¶ 13. After WL 31309190, at *5 (N.D.N.Y. Oct.11, 2002) (citing Booth Plaintiff complained, Defendant Simmons gave him another v. Churner, 531 U.S. 731 (2001)). food tray. Id. at ¶ 15.

In New York State, the administrative remedies consist *9 On April 28, 2009, Defendants Bush and Doe served of a three-step review process. First, a grievance is Plaintiff his dinner meal. Id. at ¶¶ 16 & 25. Plaintiff later submitted to the Inmate Grievance Resolution Committee found a piece of metal in his food when he bit into his sardine (“IGRC”), a committee comprised of both inmates and sandwich. Id. at ¶ 17. Plaintiff “noticed drops of blood in the facility employees. 3 N.Y. COMP.CODES R. & REGS. tit. food,” and requested medical attention. Id. at ¶¶ 17 & 31.

7, § 701.5(b). The IGRC reviews and investigates the formal Defendant Bush then left to get a sergeant and a nurse. Id. at complaints and then issues a written determination. Id. ¶ 23. Plaintiff did not see Defendant Bush nor Defendant Doe Second, if the IGRC decision is appealed, the superintendent tamper with his meal. Id. at ¶¶ 20 & 25. of the facility reviews the IGRCs determination and issues a decision. Id. at § 701.5(c). Finally, if the superintendent's

Thereafter, Defendant Nurse Garneau and Sergeant decision is appealed, the Cental Office Review Committee Lombard 2 appeared at Plaintiff's cell. Id. at ¶ 27. Plaintiff (“CORC”) makes the final administrative determination. Id. requested that Defendant Garneau examine his mouth, to at § 701.5(d). Only upon exhaustion of these three levels which Defendant Garneau stated that “she did not see much of review may a prisoner seek relief pursuant to § 1983 in damage,” that Plaintiff should not “be a cry baby,” and then federal court. Bridgeforth v. .Bartlett, 686 F.Supp.2d 238, 239 “walked off” without examining Plaintiff's mouth. Id. at ¶¶ (W.D.N.Y.2010) (citing, inter alia, Porter v. Nussle, 534 U.S. 29–30. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)); see also

Neal v. Goord, 267 F.3d 116, 121 (2d Cir.2001), overruled on 2 other grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. Sergeant Lombard was dismissed as a Defendant in 983, 152 L.Ed.2d 12. this action. Dkt. No. 32. 3 The IGRC is a five-member body consisting of B. Exhaustion two voting inmates, two voting staff members, and a non-voting chair (who may be an inmate, staff

The Prison Litigation Reform Act (“PLRA”) provides, in member of volunteer). N.Y. COMP.CODES R. & pertinent part, that “no action shall be brought with respect REGS tit.7, § 701.4. to prison conditions under section 1983 of this title, or any *10 In determining whether a prisoner has failed to exhaust other Federal law, by a prisoner confined in any jail, prison, or all available administrative remedies, the Second Circuit has other correctional facility until such administrative remedies instructed district courts to ask: “(1) whether administrative as are available are exhausted.” 42 U.S.C. § 1997e(a). remedies were actually available, (2) whether the defendants The Supreme Court has held that “the PLRA's exhaustion forfeited their right to raise the affirmative defense or by their requirement applies to all inmate suits about prison life, own actions precluded the plaintiff from using administrative whether they involve general circumstances or particular grievance procedures, and (3) whether special circumstances episodes, and whether they allege excessive force or some have been plausibly alleged that justify the prisoner's failure other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. to comply with administrative procedural requirements.” 983, 152 L.Ed.2d 12 (2002) (citations omitted). Exhaustion Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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Singh v. Goord, 520 F.Supp.2d 487, 495–96 (S.D.N.Y.2007) was untimely through each and every level of administrative (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d appeal that was available to him. Id. at (unnumbered) pp. 8– Cir.2004)). 13; Dkt. No. 50–4, Grievance R.; Defs.' Mem. of Law at pp.

8–11; Pl.'s Mem. of Law at pp. 5–7. Here, Defendants argue that Plaintiff's claims against Defendant Bush, for meal tampering, and Defendant Garneau, *11 Although it is true that filing an untimely grievance for deliberate indifference, were not properly exhausted does not properly exhaust an issue for purposes of the PLRA, because Plaintiff failed to timely file a grievance regarding see Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 the events of April 28, 2009. Defs.' Mem. of Law at pp. 8–11. L.Ed.2d 368 (2006), a question of fact exists as to whether Plaintiff alleges that certain special circumstances justify his or not Plaintiff actually filed a timely grievance on April failure in this regard. Dkt. No. 54, Pl.'s Mem. of Law, at pp. 29, 2009, and whether it was lost or tampered with by 5–7. Because we find that a material issue of fact exists as to Defendants. If Defendants lost or tampered with Plaintiff's whether Plaintiff's failure to exhaust should be excused, we April 29 grievance, then this Court would be inclined to recommend that Defendants' Motion for Summary Judgment recommend that Defendants' actions bar them from asserting be DENIED on exhaustion grounds. the affirmative defense of exhaustion. See Singh v. Goord,

520 F.Supp.2d at 495–96. However, given that both sides Plaintiff's claims against Defendants Bush and Garneau arise have produced documentary evidence, in order to reach such a out of Plaintiff's allegations that on April 28, 2009, Defendant determination we would have to make credibility assessments Bush put metal in his food in which he bit into causing him that would be improper at the summary judgment stage. to injure his mouth, and that thereafter, Defendant Garneau See Scott v. Coughlin, 344 F.3d at 287–89. Because such refused to treat his injury. See Compl. at ¶ 6, pp. 3–4. Plaintiff a determination can only be made by a trier of fact, we claims that on April 29, 2009, he grieved both of these issues recommend that Defendants' Motion for Summary Judgment and sent the superintendent a letter describing these events. be DENIED on this ground. Pl.'s Mem. of Law at p. 5. In support of this claim Plaintiff has produced a copy of both the grievance and the letter. See Dkt. No. 55, Pl.'s Exs., at (unnumbered) pp. 4–5, Lt., dated

C. Personal Involvement Apr. 28, 2009, & Grievance, dated Apr. 28, 2009. Defendants maintain that no such grievance was ever filed. Defs.' Mem.

Plaintiff claims that Defendant Simmons put hair in his food of Law at pp. 9–10; Dkt. No. 50–4, Grievance R. on April 6, 2009, in retaliation for a grievance that he filed against Defendant Simmons on January 12, 2009, and that

On or about May 3, Plaintiff was transferred to Attica Defendant Bush deprived him of adequate nutrition by giving Correctional Facility (“ACF”). Dkt. No. 50–3, Ronnie him a tray of food contaminated with a piece of metal on April Thaxton Dep., dated Aug. 3, 2012, at p. 50. On June 1, 2009, 28, 2009. Compl. at ¶ 7, Third and Fourth Causes of Action. Plaintiff wrote to UCF's Superintendent inquiring about the Defendants argue that Plaintiff cannot prove that Defendant status of his April 28, 2009, grievance. Id. at (unnumbered) Simmons or Defendant Bush were personally involved in p. 3, Lt., dated June 1, 2009. On June 8, 2009, while Plaintiff either incident. Defs.' Mem. of Law at pp. 5–7. was incarcerated at Lakeview Correctional Facility (“LCF”), Plaintiff received a response to his June 1 letter, informing

The Second Circuit has held that “personal involvement him that “there is no grievance on file ... with a written date of defendants in alleged constitutional deprivations is a of 4/28/09 concerning metal being put in your food .... [and prerequisite to an award of damages under § 1983. Wright that i]n accordance with [DOCCS] Directive # 4040 .... your v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations omitted). complaint is being returned to you to file at your present Moreover, “the doctrine of respondeat superior cannot be facility.” Id. at (unnumbered) p. 7, Mem., dated June 8, applied to section 1983 actions to satisfy the prerequisite of 2009. On June 15, 2009, Plaintiff filed a grievance at LCF personal involvement.” Kinch v. Artuz, 1997 WL 576038, at about the incidents which occurred on April 28, 2009, and *2 (S.D.N.Y. Sept.15, 1997) (citing Colon v. Coughlin, 58 further complainied that his grievance was tampered with in F.3d 865, 874 (2d Cir.1995) & Wright v. Smith, 21 F.3d at 501) retaliation for previous grievances he filed. That grievance (further citations omitted). Thus, “a plaintiff must plead that was rejected as untimely. It is uncontroverted that Plaintiff each Government-official defendant, through the official's appealed the determination that his June 15, 2009 grievance own individual actions, has violated the constitution.” Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 him that I had the metal in there, the smirk, the look that he L.Ed.2d 868 (2009). had, that's what made me think he purposely put it in there,

because he was smirking like it was a joke or something.” Id. Because no rational juror could conclude that Defendant Bush

i. Defendant Simmons was personally involved in contaminating Plaintiff's food merely because Defendant Bush delivered Plaintiff's meal and

Plaintiff claims that on April 6, Defendant Simmons delivered then smirked at Plaintiff, we recommend that Defendant Bush him a tray of food that was covered in hair. Compl. at ¶ 6, p. be DISMISSED. 1. According to Plaintiff's Deposition testimony, the meals at UCF are served in styrofoam containers that are assembled in the kitchen, completely wrapped in cellophane, and then brought to the inmates in their cells on a cart. The cellophane

D. Eighth Amendment is then removed from the styrofoam and the meal is given to the inmate through the feed up slot in the cell door. Thaxton Plaintiff claims that Defendant Garneau was deliberately Dep. at pp. 25–26. It is uncontroverted that on April 6, the indifferent to his serious medical needs in contravention of cellophane wrapper was removed from Plaintiff's meal before the Eighth Amendment when she failed to examine or treat it was given to him, however, it is also uncontroverted that him for injuries he claims he sustained after biting into a piece Plaintiff did not see Defendant Simmons either remove the of metal concealed in his anchovy sandwich. Compl. at ¶ cellophane wrapper nor tamper with his food. Id . at p. 26– 7, Second Cause of Action. Defendants argue that Plaintiff 27. Plaintiff alleges that he confronted Defendant Simmons, cannot establish such a claim because he did not suffer from asking him why “it seems like he always had an attitude a sufficiently serious medical condition. Defs.' Mem. of Law and a problem when dealing with [his] food,” and Defendant at pp. 11–13. We agree. Simmons stated “I don't play with your food. I wouldn't play with your food. If I did, you would know it.” Id. at p. To state an Eighth Amendment claim for denial of adequate 19. Plaintiff testified that “the only reason why I held him medical care, a prisoner must demonstrate that prison officials responsible is because he's the one that's giving me the tray.” acted with “deliberate indifference to serious medical needs.” Id. at p. 27. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976). “[T]he plaintiff must allege conduct that is *12 Based upon the evidence presented, no rational juror ‘repugnant to the conscience of mankind’ or ‘incompatible could conclude that Defendant Simmons tampered with with the evolving standards of decency that mark the progress Plaintiff's food on April 6, 2009, merely because he happened of a maturing society.’ “ Ross v. Kelly, 784 F.Supp. 35, 44 to deliver it that day and made a statement denying he had (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.1992) (quoting Estelle done so. Therefore, we recommend that Defendant Simmons v. Gamble, 429 U.S. at 102, 105–06). be DISMISSED.

To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825,

ii. Defendant Bush 834–35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Hathaway v. Coughlin (“Hathaway I”), 37 F.3d 63, 66 (2d Cir.1994).

Likewise, based on the record, no reasonable juror could The first prong is an objective standard and considers whether conclude that Defendant Bush contaminated Plaintiff's food the medical condition is sufficiently serious. The Second with a piece of metal on April 28, 2009. Just as above, Circuit has stated that a medical need is serious if it presents it is uncontroverted that Plaintiff did not see Defendant “a condition of urgency that may result in degeneration Bush tamper with his food. Thaxton Dep. at pp. 36–37. or extreme pain .” Chance v. Armstrong, 143 F.3d 698, Moreover, when asked how he knows that Defendant Bush 702 (2d Cir.1998) (internal quotation marks and citation was responsible for placing the piece of metal in his food, omitted). Among the relevant factors to consider are “[t]he Plaintiff admitted that he assumed Defendant Bush was existence of an injury that a reasonable doctor or patient responsible “because of his reaction with the smirk on his would find important and worthy of comment or treatment; face.” Id. at p. 37. And stated further that “I believe it because the presence of a medical condition that significantly affects the relationship of, you know, the officers and when I told Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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an individuals' daily activities; or the existence of chronic treat a broken lip or cut tongue. While Plaintiff's injury and substantial pain.” Chance v. Armstrong, 143 F.3d at may have been painful, no rational juror could conclude 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 that an injury which healed on its own in a matter of days (9th Cir.1992)). The second prong is a subjective standard was objectively sufficiently serious to sustain an Eighth requiring a plaintiff to demonstrate that the defendant acted Amendment deliberate indifference claim. Therefore, we with the requisite culpable mental state similar to that of recommend that Defendants' Motion for Summary Judgment criminal recklessness. Wilson v. Seiter, 501 U.S. 294, 301–03, be GRANTED as to this claim. 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Hathaway I, 37 F.3d at 66. A plaintiff must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm.

E. Defendant Doe Farmer v. Brennan, 511 U.S. at 836. This requires “something more than mere negligence ... [but] something less than acts

In his Complaint, filed on October 31, 2010, Plaintiff named a or omissions for the very purpose of causing harm or with John Doe Defendant. See generally Compl. However, to date, knowledge that harm will result.” Id. at 835; see also Weyant and despite multiple reminders by this Court, 4 Plaintiff has v. Okst, 101 F.3d 845, 856 (2d Cir.1996) (citing Farmer ). failed to identify the Doe Defendant. Under FED. R. CIV. Further, a showing of medical malpractice is insufficient to P. 4(c)(1) and 4(m), the plaintiff is responsible for service support an Eighth Amendment claim unless “the malpractice of the summons and complaint for each defendant within involves culpable recklessness, i.e., an act or a failure to act 120 days of the filing of the complaint. 5 Failure to properly by the prison doctor that evinces ‘a conscious disregard of a serve any defendant in accordance with the Federal Rules substantial risk of serious harm.’ “ Chance v. Armstrong, 143 will result in the court, upon motion or on its own initiative, F.3d at 702 (quoting Hathaway v. Coughlin (“Hathaway II”), to dismiss the case without prejudice as to that defendant. 99 F.3d 550, 553 (2d Cir.1996)); see also Hernandez v. Keane, Id. at 4(m). Because Plaintiff has failed to timely identify 341 F.3d 137, 144 (2d Cir.2003) (citations omitted). and serve the John Doe Defendant, and because as outlined above, no cognizeable cause of action is asserted herein,

*13 It is uncontroverted that Defendant Garneau responded we recommend dismissal of all claims asserted against him. to Plaintiff's cell on April 28, 2009, in response to his claims Cooks v. Delpiano, 2008 WL 4186337, at *1 n. 1 (N.D.N.Y. that he had injured his mouth by biting down on a piece of Sept.10, 2008); Pravada v. City of Albany, 178 F.R.D. 25, 26 metal concealed in his food. It is also uncontroverted that she

(N.D.N.Y.1998).

neither examined the inside of Plaintiff's mouth nor provided him with any treatment. With regards to the extent of his

4 injury Plaintiff maintains that while “I was not leaking blood, This Court has specifically directed, or reminded, I was cut, you know in the mouth. It was a little bit on the Plaintiff of his obligation to ascertain the true side of my jaw and it was more to my teeth. The pain in identity of, and serve the Doe Defendant on at least [his] teeth was more actually than the blood was.” And that, four separate occasions. See Dkt. Nos. 6, Order, within an hour the bleeding stopped. Thaxton Dep. at p. 49. dated Mar. 29, 2011, at pp. 9–10, 31, Rep.-Rec., Thereafter, Plaintiff experienced some continuing pain, an dated Jan. 5, 2012, at p. 7 n. 6, & 32, Order, dated inability to eat on the right side of his mouth, paranoia, and Feb. 2, 2012, at p. 5; See also Text Order, dated some sleeplessness. Id. at pp. 52–55. Three or four days after June 14, 2012. the incident, Plaintiff was transferred to Attica Correctional

5 Under the Local Rules for the Northern District of Facility (“ACF”). Id. at p. 50. Plaintiff did not request sick New York, a plaintiff must effectuate service within call between April 28 and the day that he was transferred to sixty (60) days. N.D.N.Y.L .R. 4.1(b) ACF. By the time he requested sick call at ACF, about a week after April 28, his injury was “no longer a cut,” and he was given Tylenol. Id. at pp. 49–51 & 53.

III. CONCLUSION

Although we certainly do not countenance ignoring the For the reasons stated herein, it is hereby medical complaints of inmates as merely the petulant whining of a “cry baby,” it is clear that the Constitution is not invoked every time a prison nurse chooses not to immediately Thaxton v. Simmons, Not Reported in F.Supp.2d (2013)

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RECOMMENDED, that Defendants' Motion for Summary

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen Judgment (Dkt. No. 50), be GRANTED in its entirety; and (14) days within which to file written objections to the it is further foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT

*14 RECOMMENDED, that the Doe Defendant be

WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

dismissed due to Plaintiff's failure to timely identify and serve APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 him; and it is further (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs. ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §

RECOMMENDED, that, in light of the above 636(b) (1); FED. R. CIV. P. 72 & 6(a). recommendations, this matter be closed; and it is further ORDERED, that the Clerk of the Court serve a copy of this

All Citations Report–Recommendation and Order upon the parties to this action. Not Reported in F.Supp.2d, 2013 WL 4806457 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Woodward v. Lytle, Not Reported in Fed. Supp. (2018)

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that Defendants' motion for summary judgment be granted and that the case be dismissed because Plaintiff failed to

KeyCite Yellow Flag - Negative Treatment exhaust his available administrative remedies. (Dkt. No. Distinguished by Sawyer v. Locy, N.D.N.Y., October 21, 2020 57). Plaintiff then filed timely objections to the Report & Recommendation, arguing, inter alia , that he could not

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have exhausted his administrative remedies since they were Only the Westlaw citation is currently available. “opaque and incapable of use.” (Dkt. No. 60, p. 12). United States District Court, N.D. New York. Shawn WOODWARD, Plaintiff,

II. STANDARD OF REVIEW

v. This court reviews de novo those portions of the Magistrate LYTLE, Correctional Officer, Cape Vincent Judge’s findings and recommendations that have been Correctional Facility, et al., Defendants. properly preserved with a specific objection, as is the case here. Petersen v. Astrue , 2 F.Supp.3d 223, 228-29 (N.D.N.Y.

9:16-CV-1174 (NAM/DEP)

2012); 28 U.S.C. § 636(b)(1)(C). | Signed 09/27/2018 Summary judgment may be granted only if all the submissions taken together “show that there is no genuine

Attorneys and Law Firms issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In re World Trade SHAWN WOODWARD, Plaintiff Pro Se, 00-A-6563, Collins Correctional Facility, P.O. Box 340, Collins, New Center Lower Manhattan Disaster Site Litig. , 758 F.3d 202, York 14034. 210 (2d Cir. 2014). A fact is material if it “might affect the

outcome of the suit under the governing law.” Anderson v. Attorneys for Defendants: Hon. Barbara D. Underwood, Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 Attorney General of the State of New York, Helena Lynch, L.Ed.2d 202 (1986); see also Jeffreys v. City of New York , 426 Esq., Assistant Attorney General, The Capitol, Albany, New F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute York 12224. “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In ruling on a summary judgment motion, the court “must construe the facts in the

MEMORANDUM-DECISION AND ORDER light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the Hon. Norman A. Mordue, Senior U. S. District Judge movant.” Dallas Aerospace, Inc. v. CIS Air Corp. , 352 F.3d 775, 780 (2d Cir. 2003). Where the plaintiff proceeds pro se ,

I. INTRODUCTION

the Court must read his submissions liberally and interpret *1 Plaintiff pro se Shawn Woodward, a New York State them “to raise the strongest arguments that they suggest.” prison inmate, brings this 42 U.S.C. § 1983 action against McPherson v. Coombe , 174 F.3d 276, 280 (2d Cir. 1999) seven individual Defendants employed by the New York (quoting Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994) ). State Department of Corrections and Community Supervision (“DOCCS”), alleging civil rights claims related to his confinement at Cape Vincent Correctional Facility (“Cape

III. DISCUSSION

Vincent”). (Dkt. No. 1). Plaintiff’s remaining claims are for First Amendment retaliation against all Defendants

a. Exhaustion of Administrative Remedies and Eighth Amendment excessive force against Defendant Dawley. (Dkt. Nos. 30, 36). On February 9, 2018, Defendants

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. filed for summary judgment, on the basis that Plaintiff’s § 1997e(a), requires an inmate to exhaust all available claims were barred based on his failure to exhaust the administrative remedies prior to bringing a federal civil rights available administrative remedies prior to filing this action. action. See Espinal v. Goord , 558 F.3d 119, 123–24 (2d Cir. (Dkt. No. 41). The matter was referred to United States 2009). To properly exhaust his administrative remedies, an Magistrate Judge David E. Peebles, who, on August 13, inmate must complete the administrative review process in 2018, issued a Report & Recommendation, recommending accord with the applicable state procedural rules. Jones v. Woodward v. Lytle, Not Reported in Fed. Supp. (2018)

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Bock , 549 U.S. 199, 218–19, 127 S.Ct. 910, 166 L.Ed.2d an administrative remedy, while “officially on the books,” 798 (2007) (citing Woodford v. Ngo , 548 U.S. 81, 88, 126 is not available. Id. at 1859. An administrative remedy is S.Ct. 2378, 165 L.Ed.2d 368 (2006) ). “Proper exhaustion unavailable when: (1) “it operates a simple dead end—with demands compliance with an agency’s deadlines and other officers unable or consistently unwilling to provide any relief critical procedural rules.” Woodford , 548 U.S. at 90–91, 126 to aggrieved inmates”; (2) it is “so opaque that it becomes, S.Ct. 2378. The defendant bears the burden of proving that a practically speaking, incapable of use”; or (3) “prison plaintiff failed to exhaust available administrative remedies. administrators thwart inmates from taking advantage of a See Samuels v. Fischer , 168 F.Supp.3d 625, 651 (S.D.N.Y. grievance process through machination, misrepresentation, or 2016). intimidation.” Williams , 829 F.3d at 123–24 (quoting Ross ,

136 S.Ct. at 1859–60). *2 The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (“IGRC”). 7 N.Y.C.R.R.

b. Evidence of Exhaustion & Availability §§ 701.5(a)(1), (b). The grievance must be filed within 21 days of the alleged occurrence, using an “inmate grievance

On or about April 3, 2015, Plaintiff was incarcerated at complaint form (form #2131),” but if this form is not readily Cape Vincent Correctional Facility in Cape Vincent, New available, “a complaint may be submitted on plain paper.” Id. York. (Dkt. No. 1, p. 3). Plaintiff helped other inmates at § 701.5(a)(1). An adverse decision of the IGRC may be prepare complaints about corrections staff, and he was appealed to the Superintendent of the Facility. Id. at § 701.5(c) allegedly warned by the staff against “writing up staff” and (1). If the grievant wishes to appeal to the Superintendent, “testifying at hearings” in support of other inmates, and he “he or she must complete and sign the appeal section on was allegedly subjected to retaliation for doing so. ( Id. , pp. the IGRC response form (form #2131) and submit it to 7–12). On or about July 3, 2015, Plaintiff was confined to the grievance clerk within seven calendar days after receipt the Special Housing Unit (“SHU”), after being found guilty of the IGRC’s written response.” Id. Adverse decisions at of charges of fighting and drug use. ( Id. , p. 13). Although the Superintendent’s level may be appealed to the Central the determinations were eventually reversed, Plaintiff spent Office Review Committee (“CORC”). Id. at § 701.5(d)(1). nearly two months in the SHU as a result of the charges. ( Id. ). If the grievant wishes to appeal to the CORC, “he or she Plaintiff alleges that, on July 14, 2015, while in the SHU, must complete and sign form #2133 and submit it to the he submitted a grievance complaining of retaliatory conduct grievance clerk within seven calendar days after receipt of by various Defendants, but that “[l]ater that week when the the superintendent’s written response to the grievance.” Id. Inmate Grievance Program Supervisor made her rounds [,] If the grievance concerns employee harassment, there is an she told me that she was not filing my grievance because she expedited process: the grievance skips the IGRC level and knew some of the officers and did not believe what I was goes to the Superintendent, who has twenty-five days to make saying.” (Dkt. No. 52-2, pp. 1–2). There is no record of this a decision, after which the inmate has seven days to appeal particular grievance being filed. ( See Dkt. No. 41-3). On July to the CORC. Id. at § 701.8. During the grievance process, 22, 2015, Plaintiff successfully filed a grievance related to the “matters not decided within the time limits may be appealed food served in the SHU. (Dkt. No. 41-4). to the next step.” Id. at § 701.6(g)(2). Inmates in special housing units have access to Form #2131, and “[t]he IGP

On July 27, 2015, Plaintiff wrote a letter to Acting DOCCS supervisor shall monitor and ensure the proper functioning of Commissioner Anthony Annucci, informing him that Plaintiff the grievance procedure in SHU’s.” Id. at § 701.7. had attempted to file a grievance on July 14, 2015 but was thwarted by the IGP Supervisor. (Dkt. No. 52-2, p. 1). Plaintiff

There is also an exception to the mandatory exhaustion wrote that “because of this [,] I sent a handwritten copy requirement, in the event the administrative remedies are to the facility’s superintendent since he is the next in the “unavailable.” Williams v. Correction Officer Priatno , 829 chain of the grievance appeal process.” ( Id. , p. 2). Plaintiff F.3d 118, 123 (2d Cir. 2016) (quoting Ross v. Blake , ––– wrote that he spoke with the Superintendent on July 27, 2015, U.S. ––––, 136 S.Ct. 1850, 1858, 195 L.Ed.2d 117 (2016) who referred him back to the “grievance department.” ( Id. ). ). An inmate “must exhaust available remedies, but need Plaintiff continued: not exhaust unavailable ones.” Ross , 136 S.Ct. at 1858. The Supreme Court has identified three circumstances in which Woodward v. Lytle, Not Reported in Fed. Supp. (2018)

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August 3, 2015 letter to you ... You have not presented any compelling evidence to indicate that your grievances are not being processed in accordance with Directive #4040.” (Dkt.

*3 Therefore, because step one (1) No. 52-5). According to DOCCS, “[n]either Plaintiff’s July and two (2) in the grievance level 27, 2015 letter nor his August 27, 2015 letter was a grievance are refusing to file my complaint, I'm or an appeal of a grievance.” (Dkt. No. 52-1, ¶ 7). There is sending it to you to either one (1) no record of an appeal related to the alleged July 14, 2015 order the facility’s Grievance Program grievance. ( See Dkt. No. 41-5). Supervisor to file such or two (2) delegate this matter to Central Office Review Committee (CORC)[.]

c. Analysis In their motion for summary judgment, Defendants argued ( Id. ). Annucci referred Plaintiff’s letter to Karen Bellamy, the that Plaintiff failed to exhaust his administrative remedies DOCCS Director of the IGP, who wrote Plaintiff in response and could not show that the administrative remedies were on August 3, 2015. (Dkt. No. 52-3). In relevant part, Bellamy unavailable to him. (Dkt. No. 41-1). In the Report & wrote as follows: Recommendation, Magistrate Judge Peebles correctly found Contact with the [Cape Vincent] administration reveals that that Plaintiff failed to exhaust his administrative remedies, the IGP Supervisor did not receive or refuse to file a July since Plaintiff never actually filed a grievance related to the 15, 2015 complaint from you alleging staff misconduct.

claims in this action, nor did he appeal any such grievance to Further, she does not recall speaking with you during the CORC. (Dkt. No. 57). That left one question: “whether rounds on July 15, 2015. the IGP was unavailable to plaintiff such that he may be

excused from his failure to fully exhaust the administrative You are advised that Directive #4040 makes no provision remedies.” ( Id. , p. 18). After careful review of the record, the for an inmate to refer grievances directly to Central Office, Court finds that an issue of fact remains as to this question, in and that specific grievance concerns should be directed accordance with the Second Circuit’s decision in Williams v. to the IGP Supervisor for the most expeditious means of Correction Officer Priatno , 829 F.3d 118, 123 (2d Cir. 2016). resolution. In that case, the plaintiff was housed in the SHU at Downstate ( Id. ). On August 27, 2015, Plaintiff wrote again to Annucci, Correctional Facility, and while there, he allegedly drafted addressing the Bellamy letter. (Dkt. No. 52-4). Plaintiff a grievance concerning staff misconduct and then gave it expressed confusion as to what to do next, writing that: to a correction officer to forward to the grievance office on his behalf. Williams , 829 F.3d at 120–21. The plaintiff never received a response to the grievance, he never appealed it,

This is problematic because if a and he was transferred to another facility about two weeks facility’s IGP’s Supervisor refuses to later. Id. at 121. He alleged that the correction officer in the file an inmate grievance [,] then SHU never filed the grievance for him. Id. The plaintiff filed what can the inmate do? Especially a civil rights action, but the defendants successfully moved when as in this case the facility’s to dismiss, on the basis that the plaintiff failed to exhaust his Superintendent also refuses to except administrative remedies, citing records that he never filed an [sic] an inmate’s grievance for filing? appeal of the grievance. Id. But the Second Circuit reversed, finding that the administrative remedies were unavailable to the plaintiff under the circumstances, where he had an unfiled

( Id. ). Plaintiff asked that his grievance be forwarded “to and unanswered grievance: the proper facility’s staff for filing,” since by that time he had been transferred to Southport Correctional Facility in *4 However, even if Williams technically could have Pine City, New York. ( Id. ). By letter dated October 8, 2015, appealed his grievance, we conclude that the regulatory Bellamy responded to Plaintiff, writing in relevant part that: scheme providing for that appeal is “so opaque” and “so “Please be advised that your IGP issues were addressed in my confusing that ... no reasonable prisoner can use [it].” Woodward v. Lytle, Not Reported in Fed. Supp. (2018)

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Ross , 136 S.Ct. at 1859 (quoting Tr. of Oral Arg. 23). prohibitively opaque, such that no inmate could actually make The regulations simply do not contemplate the situation use of it.” Williams , 829 F.3d at 126. Moreover, Plaintiff was in which Williams found himself, making it practically also transferred after attempting to file the grievance, further impossible for him to ascertain whether and how he could compounding the problem. Id. Plaintiff’s understandable pursue his grievance. confusion about the process is evident in his letters dated

July 27, 2015 and August 27, 2015 to Acting Commissioner Williams , 829 F.3d at 124. The Circuit explained that the Annucci. (Dkt. No. 52-2, 52-4). And in response, DOCCS regulations do not outline any process to appeal an unfiled made no attempt to explain that Plaintiff had to appeal grievance: the non-response to his alleged unfiled grievance to the CORC, the position taken by Defendants in this case. 1

On their face, the regulations only contemplate appeals In fact, Plaintiff was advised that “Directive #4040 makes of grievances that were actually filed. For example, if the no provision for an inmate to refer grievances directly to grievance had never been filed, the superintendent would Central Office, and that specific grievance concerns should be never have received it and the timeline for her to provide a directed to the IGP Supervisor for the most expeditious means response within 25 days “of receipt of the grievance” would of resolution.” (Dkt. No. 53-3). Plaintiff correctly identifies never have been triggered. NYCRR tit. 7, § 701.8(f). In this confounding situation in his objections to the Report & turn, the textual provision allowing a grievant to appeal to Recommendation. (Dkt. No. 60, p. 16). the CORC would never have come into effect. See id. § 701.8(g) (“If the superintendent fails to respond within the

1 required 25 calendar day time limit the grievant may appeal The obscurity of this Kafkaesque suggested his/her grievance to CORC.”). process is further demonstrated by the fact that the regulations spell out that any appeal to the

Id. The Circuit concluded that “the process to appeal an CORC requires Form #2133, while inmates in the unfiled and unanswered grievance is prohibitively opaque, SHU only have access to Form #2131. Compare such that no inmate could actually make use of it.” Id. N.Y.C.R.R. §§ 701.5(d)(1), 701.7(a); see also at 126. Further, the “obscurity” of the regulations “was Davis v. State of New York , 311 F. App'x 397, 399 compounded by the fact that Williams was transferred to n.2 (2d Cir. 2009) (explaining that Form #2133 is another facility approximately two weeks after giving his the form which has the Superintendent’s grievance grievance to the correction officer,” since the regulations also decision printed on the top half of a single sheet do not provide guidance “on how a transferred inmate can and on the bottom half contains the form an inmate appeal his grievance with the original facility without having is required to file to appeal the Superintendent’s received a response.” Id. The Circuit recommended that, to decision to the CORC). avoid confusion going forward, “DOCCS revise its grievance *5 In sum, viewing the evidence in the light most favorable procedures to instruct inmates how to appeal grievances that to Plaintiff, the Court finds that an issue of fact exists as were not properly filed by prison staff, and how to appeal to the availability of the grievance process, which precludes a grievance, to which the inmate never received a response, summary judgment. 2 See Williams , 829 F.3d at 126–27; after being transferred.” Id. at 126–27. see also Medina v. Napoli , 725 F. App'x 51, 54 (2d Cir. Likewise, there is evidence in this case that: 1) Plaintiff 2018) (“The record establishes that Medina’s allegations, drafted a grievance while in the SHU on or about July 14, supported by witness testimony, about defendants' actions to 2015; 2) he gave it the IGP Supervisor for filing; and 3) the prevent the filing of Medina’s grievances concerning the June grievance was never filed or answered. (Dkt. No. 1; Dkt. 2007 incident are sufficient, when viewed in the light most No. 52-2). On the other hand, there is evidence that the favorable to Medina, to raise a genuine issue of material fact IGP Supervisor never received or refused to file any such as to whether the grievance process was ‘available’ to Medina grievance. (Dkt. No. 52-3). It is undisputed that DOCCS has under the Ross and Williams exhaustion analysis.”); Jackson no record of this grievance or any related appeal. Drawing v. Downstate Correctional Facility , No. 16 Civ. 267, 2018 all inferences in the non-moving party’s favor, Plaintiff WL 3650136, at *9, 2018 U.S. Dist. LEXIS 128980 (S.D.N.Y. drafted and submitted the grievance, but it went unfiled July 31, 2018) (denying summary judgment motion based and unanswered. Under these particular circumstances, “the on failure to exhaust administrative remedies where evidence process to appeal an unfiled and unanswered grievance is showed that the plaintiff “submitted a grievance, but that Woodward v. Lytle, Not Reported in Fed. Supp. (2018)

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served there does not demonstrate that he could grievance was never filed,” and the appeal procedures were have filed one about employee misconduct or that “prohibitively opaque”) (citing Williams ); Hurst v. Mollnow , he could have appealed an unfiled grievance to the No. 16 Civ. 1062, 2018 WL 4178226, at *10, 2018 U.S. CORC, so as to eliminate the issue of fact as to the Dist. LEXIS 122624 (N.D.N.Y. July 20, 2018) (“In light of availability of administrative remedies. Williams , the Court finds material issues of fact as to the availability of the grievance process and whether Plaintiff

IV. CONCLUSION

attempted to exhaust his administrative remedies, precluding WHEREFORE , for the foregoing reasons, it is hereby summary judgment.”), report and recommendation adopted , No. 16 Civ. 1062, 2018 WL 4153926, 2018 U.S. Dist. LEXIS

ORDERED that Magistrate Judge Peebles’s Report & 147670 (N.D.N.Y. Aug. 30, 2018); Fann v. Graham , No. Recommendation (Dkt. No. 57) is REJECTED ; and it is 15 Civ. 1339, 2018 WL 1399331, at *6, 2018 U.S. Dist. further LEXIS 6717 (N.D.N.Y. Jan. 11, 2018) (“Viewing the facts in the light most favorable to plaintiff, the record suggests

ORDERED that Defendants' Motion for Summary Judgment that plaintiff’s grievances were submitted, but were unfiled (Dkt. No. 41) is DENIED without prejudice to renew should and unanswered, creating an issue of fact as to whether the Defendants request an exhaustion hearing pursuant to the grievance process was available and whether plaintiff Messa v. Goord , 652 F.3d 305 (2d Cir. 2011); and it is further attempted to exhaust his administrative remedies....”), report and recommendation adopted , No. 15 Civ. 1339, 2018 WL

ORDERED that the Clerk of the Court shall serve a copy of 1399340, 2018 U.S. Dist. LEXIS 43887 (N.D.N.Y. Mar. this Memorandum-Decision and Order in accordance with the 19, 2018); Reid v. Marzano , No. 15 Civ. 761, 2017 WL Local Rules of the Northern District of New York. 1040420, at *3, 2017 U.S. Dist. LEXIS 38547 (N.D.N.Y. Mar. 17, 2017) (denying summary judgment motion based on

IT IS SO ORDERED.

exhaustion argument, noting that “it is DOCCS' borderline incomprehensible regulation governing this situation that is to blame”).

All Citations 2 Not Reported in Fed. Supp., 2018 WL 4643036 The fact that Plaintiff successfully filed one grievance while in the SHU related to the food

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Burrell v. Zurek, Slip Copy (2019)

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Judgment Motion”); 45 (“Response”); 46 (“Reply”); 47 (“Supplemental Response”). The Honorable Thérèse Wiley

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Dancks, United States Magistrate Judge, issued a Report- Only the Westlaw citation is currently available. Recommendation and Order, recommending Defendants' United States District Court, N.D. New York. Motion for Summary Judgment be granted in part and denied in part. Dkt. No. 50 (“Report-Recommendation”).

Ako K. BURRELL, Plaintiff, Defendants timely filed objections to the Magistrate Judge’s v. Report-Recommendation. Dkt. No. 51 (“Objections”). For Lisa ZUREK, et al., Defendants. the reasons that follow, the Court approves and adopts the Report-Recommendation. 9:17-CV-0906 (LEK/TWD) | Signed 08/27/2019

II. RELEVANT BACKGROUND

| The facts and allegations in this case were detailed in the Filed 08/28/2019 November 2, 2017 Order and the Report-Recommendation, familiarity with which is assumed.

Attorneys and Law Firms Ako K. Burrell, Attica, NY, pro se.

A. Magistrate Judge Dancks’s Report- David A. Bagley, Kernan Professional Group, LLP, Oriskany, Recommendation NY, for Defendants. Magistrate Judge Dancks recommends granting summary judgment on: (1) the Fourteenth Amendment due process claims relating to Plaintiff’s L-2 classification against

DECISION AND ORDER Woodland; (2) the First Amendment retaliation claims against Breen, Lewis, and Getchell; and (3) all claims against Lawrence E. Kahn, U.S. District Judge Defendants in their official capacities. She recommends denying summary judgment on: (1) the Fourteenth

I. INTRODUCTION

Amendment excessive force, sexual abuse, and failure to *1 Pro se plaintiff Ako Burrell filed this 42 U.S.C. § intervene claims against Breen, Lewis, and Jones based 1983 action alleging that his constitutional rights were on failure to exhaust administrative remedies; (2) the First violated while he was in pretrial custody at Oneida Amendment denial of access to newspapers and other reading County Correctional Facility (“Oneida CCF”). This Court material claims against Zurek, Smith, Lewis, and Jones; and reviewed the sufficiency of Plaintiff’s Complaint, Dkt. No. 1 (3) the affirmative defense of qualified immunity raised by (“Complaint”), pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and Zurek, Smith, Lewis, and Jones. She further recommended 1915(A) and ordered that the following claims survived initial that Court conduct a hearing on the administrative exhaustion review: (1) Fourteenth Amendment excessive force, sexual issue or refer the hearing to her to conduct. R & R at 33–34. abuse, and failure to intervene against Defendants Lieutenant Jack Breen, Deputy Dustin Lewis, and Deputy Jeffrey Jones; (2) First Amendment claims against Defendants Captain

B. Defendants' Objection to the Report- Lisa Zurek, Sergeant Clayton Smith, Lewis, and Jones Recommendation stemming from denial of Plaintiff’s access to newspapers Defendants raise three objections to the Report- and other reading material; (3) Fourteenth Amendment due Recommendation: (1) Breen, Lewis, and Jones should have process claims relating to Plaintiff’s L-2 classification against been granted summary judgment on Fourteenth Amendment Defendant Deputy Todd Woodland; and (4) First Amendment excessive force, sexual abuse, and failure to intervene claims retaliation claims against Defendants Breen, Lewis, and because Plaintiff failed to exhaust administrative remedies; Deputy Christopher Getchell. Dkt. No. 10 (“November 2, (2) Zurek, Smith, Lewis, and Jones should have been granted 2017 Order”). summary judgment on the First Amendment claim based on denial of access to newspapers and other reading materials

The parties conducted discovery and Defendants have now because this limitation had a legitimate penological basis; and moved for Summary Judgment. Dkt. Nos. 41 (“Summary (3) Zurek, Smith, Lewis, and Jones should have been granted Burrell v. Zurek, Slip Copy (2019)

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summary judgment on qualified immunity grounds because it 1

As noted below, the while the Court reaches the was objectively reasonable for them to believe the limitation same conclusion as the R & R on the issue of on reading materials was constitutional. Objs. qualified immunity, its differs in its reasoning. A. Exhaustion of Fourteenth Amendment claims

III. LEGAL STANDARD

against Breen, Jones, and Lewis *2 Within fourteen days after a party has been served with On the issue of Plaintiff’s Fourteenth Amendment claims, a copy of a magistrate judge’s report-recommendation, the there is no dispute that Plaintiff was required to exhaust his party “may serve and file specific, written objections to the administrative remedies, 42 U.S.C. § 1997e(a), that Plaintiff proposed findings and recommendations.” Fed. R. Civ. P. was required to file a formal grievance within five days 72(b); L.R. 72.1(c). If objections are timely filed, a court of the incident complained about in order exhaust those “shall make a de novo determination of those portions of the remedies, Dkt. 41-4, Exhibit 1 (“Oneida County Sheriff’s report or specified proposed findings or recommendations to Office Policy”) at 11, 2 and that Plaintiff did not timely which objection is made.” 28 U.S.C. § 636(b). However, if no file a formal grievance. R & R at 18; Objs. at 2. Rather, objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the the dispute hinges on whether Oneida CCF staff members magistrate judge, a district court need review that aspect of a prevented Plaintiff from timely filing a formal grievance. See Ross v. Blake, 136 S. Ct. 1850, 1858, 1860 (2016) report-recommendation only for clear error. Barnes v. Prack, (“Under § 1997e(a), the exhaustion requirement hinges on No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07 (N.D.N.Y. the “availab[ility]” of administrative remedies.” A remedy is 2008), abrogated on other grounds by Widomski v. State Univ. unavailable and thus exhaustion is not required “when prison administrators thwart inmates from taking advantage of a of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014). “A [district] grievance process through machination, misrepresentation, or judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” intimidation.”). § 636(b).

2 The cited page numbers for documents refer to Under Federal Rule of Civil Procedure 56(a), summary those generated by the Court’s electronic filing judgment may be granted only if all the submissions taken system (“CM/ECF”). together “show that there is no genuine issue as to any The alleged incidents giving rise to the excessive force, sexual material fact and that the moving party is entitled to judgment abuse, and failure to intervene claims took place on March as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 30 and April 1, 2017. Plaintiff claims that after he filed (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. informal complaints on April 2, 2017, grievance coordinator 242, 247–48 (1986). Robert Carollo was supposed to provide him with formal grievance forms but failed to do so. Pl.'s Resp. at 6. While Defendants do not provide evidence directly contradicting

IV. ANALYSIS After carful review of the papers and Magistrate Judge this claim, they counter that an April 7, 2017 Incident Report, Dancks’s Report-Recommendation, the Court finds no No. 17-0678, documents that Plaintiff “improperly assigned his own numbers” to some grievances that he had submitted clear error in the unobjected-to portions of the Report- to Carollo. Objs. at 2; Dkt. No. 45-1 at 182 (“Incident Recommendation. And after reviewing de novo the portions of the Report-Recommendation to which Defendants object, Report, No. 17-0678”). Defendants state that after Plaintiff the Court finds no error. Magistrate Judge Danck’s employed was informed he needed to re-file those grievances, Plaintiff did not “mak[e] any complaints of having been hindered in the proper legal standards, accurately recited the facts alleged, the process” and “waited a month, until May 6, 2017, when and correctly applies the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for he filed additional Complaints regarding the same incidents.” the reasons stated therein. 1 The Court adds the following Id. However, as the incident report itself notes, Plaintiff

apparently stated that Carollo was “a liar and that he didn't discussion of Defendants' three objections. get the complaint forms.” Incident Report, No. 17-0678. Thus, while Defendants claim Plaintiff is “using unsupported averments, to manufacture an issue of fact,” Objs. at 4, the

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evidence suggests Plaintiff had at least raised the issue of not whether “there is a valid, rational connection between the being provided the formal grievance forms at the time. prison regulation and the legitimate governmental interest put

forward to justify it”; 2) “whether there are alternative means *3 Defendants' suggest that “the fact that Plaintiff was of exercising the right that remain open to prison inmates”; thoroughly versed in grievance procedures, having filed 178 3) “the impact accommodation of the asserted constitutional of them” indicates that Plaintiff alone was responsible for his right will have on guards and other inmates”; and 4) whether failure to file a formal timely grievance in this case. Objs. at there is “an alternative that fully accommodates the prisoner’s 2 n.2; SJ Mot. at 7 n.2. But this does not necessarily weaken rights at de minimis cost to valid penological interests.” Plaintiff’s claims—his extensive history of filing grievances Turner 482 U.S. at 89–91 (internal quotations omitted). could also suggest that, absent interference, he was aware of the five day rule and capable of complying with it. 3

As detailed in the R & R, L-2 classification was for inmates “reclassified ‘due to their propensity

The R & R found that this dispute creates a genuine towards facility violence and/or repeated non- issue of material fact about whether Plaintiff’s effort to compliance with facility rules and regulations’ ... administratively exhaust his claim was thwarted. R & R at Inmates on L2 status were, among other things, 19. The Court agrees. See Ortiz v. Annucci, No. 17-CV-3620, restricted to one hour of recreation a day or one 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29, 2019) (“If, and a half hours five days a week, limited to in fact, Plaintiff timely attempted to file his grievance by non-contact visits at special times, allowed limited handing it to an officer while in SHU and that officer failed telephone calls and commissary privileges, and to file the grievance, Plaintiff’s avenues for pursuing the allowed no books other than the Bible, Koran, grievance would be unavailable ... excusing him from any or Holy book.” R & R at 5. Plaintiff was placed further exhaustion requirements.”). However, as the burden is on L-2 status on December 26, 2016, after an on Plaintiff to show unavailability of the grievance procedure, incident in which he injured a guard. See Dkt. No. Jenkins v. Cordero, No. 17-CV-1592, 2019 WL 2121655, at 41-4 at 56 (“Incident Report”). The classification *3 (S.D.N.Y. May 15, 2019) (citing Mojias v. Johnson, 351 was abolished in August 2017 after the Citizen’s F.3d 606, 610 (2d Cir. 2003)), and there remains “confusion Policy and Complaint Review Council (“CPCRC”) regarding whether the [grievance process] was available to determined that the restrictions violated New Plaintiff,” R & R at 19, the Court also agrees that a hearing York Regulations. See Dkt. No. 41-4 at 121–22 on the exhaustion issue would be beneficial, and refers the (“CPCRC Letter”). hearing Judge Dancks to conduct. *4 With respect to the first and fourth factors, Defendants state “there was a clear relationship to a legitimate

B. First Amendment Claims again Zurek, Smith, government interest in the good order of the Facility” and Lewis, and Jones for denial of access to reading “it is difficult to imagine a less onerous alternative means in materials the circumstances for the Correction Facility to have acted in

Defendants argue that denying Plaintiff all reading materials relation to Plaintiff.” Objs. at 7. But Defendants are unable to except a Bible, Koran, or holy book on account of his L-2 substantiate these conclusory claims. Their Objection asserts Classification did not violate the First Amendment because that the regulations “were intended to give inmates who were it was “based on legitimate penological interests.” 3 Objs. determined ... to be prone to conduct inimical to good order,

an incentive to correct their behavior,” Id. at 6, but the only at 4. The R & R correctly assessed whether this was a citation for this is the Affidavit of Deputy Woodland, which “reasonable” limitation on Plaintiff’s First Amendment rights merely states that the L-2 classification was “intended to by applying Turner v. Safley, 482 U.S. 78, 89–91 (1987). ensure the safety and good order of the Facility” and makes no See Young v. Scott, No. 16-CV-44, 2017 WL 3662443, at direct claims about how limiting reading materials promotes *6 (M.D. Fla. Aug. 24, 2017), reconsideration denied, No. good behavior. Dkt. No. 41-5 (“Woodland Affidavit”) ¶ 16-CV-44, 2018 WL 1805147 (M.D. Fla. Apr. 17, 2018) 16. Defendants' reliance on Beard v. Banks, 548 U.S. 521 (applying Turner factors to First Amendment claim raised by (2006), which upheld limitations on the most uncooperative pre-trial detainee); Mauro v. Arpaio, 188 F.3d 1054, 1059 prisoners' access to reading materials on the grounds that such (9th Cir. 1999) (same). Under Turner, the Court assesses four limitations could incentivize good behavior, is misplaced. In factors to determine whether a regulation is reasonable: 1) that case, the defendants “articulated connections between Burrell v. Zurek, Slip Copy (2019)

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newspapers and magazines, the deprivation of virtually the Defendants' Objections raises only one ground on which last privilege left to an inmate, and a significant incentive to they are entitled to qualified immunity: “it was objectively improve behavior.” 4 Id. at 531–32. Here, in contrast, as the reasonable for them to believe” that “the limitations imposed

by L-2 status were indeed proper penologically-based Report-Recommendation correctly notes, Defendants “failed restrictions” because the L-2 classification “had remained in to identify specific legitimate penological interests for the place and operation unquestioned for over 20 years.” Objs. ban.” R & R at 22. Further, despite the Beard defendants' at 8. Defendants do not, however, cite any cases to back the acknowledgment that they were depriving prisoners of assertion that because a policy has been in effect for a long “virtually the last privilege left,” the regulations were still time, it is objectively reasonable to believe it is constitutional. more generous than the L-2 regulations at issue here, as they And the Second Circuit has held a defendant’s actions can be allowed for “legal and personal correspondence, religious and objectively unreasonable even if that defendant was following legal materials, two library books, and writing paper.” Id. at a policy. See Sorensen v. City of New York, 42 F. App'x 526. 507, 510–11 (2d Cir. 2002) (affirming denial of qualified immunity and rejecting defendants' argument “that they were

4 The Beard court further noted that “[t]he simply low-level employees following orders and that it undisputed facts statement added that the Policy was objectively reasonable for them to believe that a policy encourages progress and discourages backsliding promulgated by the City was constitutional ... immunity has by level 1 inmates. These statements point to been granted [in such cases] only when the orders were evidence that the regulations serve the function facially valid ... The strip-search policy at issue here, however, identified.” Beard v. Banks, 548 U.S. 521, 522 had twice been declared unconstitutional by this court, and (2006). so was not facially valid.”) 5 , 6 Thus, Defendants are not The second factor also favors Plaintiff because there was entitled to qualified immunity at this time. no apparent alternative means for Plaintiff to exercise his First Amendment rights. While Defendants state that Plaintiff

5 Defendants do not object to the Report- could have modified his behavior and been reclassified Recommendation’s finding that a detainee’s First during the monthly classification review, Plaintiff states that Amendment right of access to reading material Woodland told him “you have 19 felonies, you might never is “clearly established.” R & R at 23–24 (citing come off this status.” Compl. ¶ 59. Finally, on the third factor, Turner 482 U.S. at 89–90; Beard 548 U.S. at 535). Defendants' assertion that “allowing Plaintiff to escape any The Court notes that because “public officials are consequences of having injured an officer could well have an held to constructive knowledge of the law, the issue undesirable ‘ripple effect’ on the behavior of other inmates” is here is not whether a reasonable person would have unpersuasive as it provides no explanation for why anything known what the law was, but simply whether the short of a blanket deprivation on reading materials would be law was clearly established.” Sorensen 42 F. App'x “allowing Plaintiff to escape any consequences.” Objs. at 7. at 510. Thus, while Courts “must accord substantial deference to the 6 The R & R found that Defendants were not professional judgment of prison administrators,” Overton v. entitled to qualified immunity in part because there Bazzetta, 539 U.S. 126, 132 (2003), Defendants' failure to was a need for more fact finding about whether articulate any specific justification means this case follows Zurek denied reading materials to punish Plaintiff’s the “general rule” that “[a]bsolute bans on inmate access to filing of a sexual abuse claim. R & R at 24 newspapers and magazines ... violate the First Amendment n.9. The Court notes that because it is denying because they are an ‘exaggerated response’ to legitimate summary judgment based on qualified immunity penological needs.” Nelson v. Hjorth, No. 18-CV-88, 2018 on the grounds that Defendants have not shown WL 2050571, at *6 (D. Neb. May 2, 2018) (quoting Mann v. that their reliance on a longstanding policy is Smith, 796 F.2d 79, 82 (5th Cir. 1986)). per se objectively reasonable, the Court does not rely on the Report-Recommendations reasoning on the issue of qualified immunity. Not relying

C. Qualified Immunity for First Amendment claims the ambiguity of Zurek’s motivations does not, of against Defendants Zurek, Smith, Lewis, and Jones Burrell v. Zurek, Slip Copy (2019)

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failure to intervene against Defendants Breen, Jones, and course, preclude additional fact finding on the issue Lewis; and it is further should it be relevant. ORDERED , that Defendants' Motion for Summary

V. CONCLUSION

Judgment is DENIED with respect to Plaintiff’s First *5 Accordingly, it is hereby: Amendment claims for denial of access to reading material against Defendants Zurek, Smith, Lewis, and Jones; and it is

ORDERED , that the Report-Recommendation (Dkt. No. 50) further is APPROVED and ADOPTED in its entirety , except that Defendants' assertion they are entitled to qualified immunity

ORDERED , that Defendants Motion for Summary is denied because they have not shown that their compliance Judgement is DENIED with respect to Defendants Zurek, with a longstanding policy was objectively reasonable; and it Smith, Lewis, and Jones’s assertion of qualified immunity, is further without prejudice to reconsideration of the issue of qualified immunity at trial; and it is further

ORDERED , that Defendants' Motion for Summary Judgment (Dkt. No. 41) on all claims asserted against them in

ORDERED , that Judge Dancks recommendation that a their official capacities is GRANTED ; and it is further hearing be conducted on the issue of exhaustion is GRANTED and REFERRED to Judge Dancks to conduct;

ORDERED , that Defendants Woodland and Getchell’s and it is further Motion for Summary Judgment is GRANTED ; and it is further

ORDERED , that the Clerk of the Court serve a copy of this Order on all parties in accordance with the Local Rules.

ORDERED , that Defendants Breen and Lewis’s Motion for Summary Judgment on Plaintiff’s First Amendment

IT IS SO ORDERED.

retaliation claims is GRANTED ; and it is further ORDERED , that Defendants' Motion for Summary

All Citations Judgment is DENIED with respect to Plaintiff’s Fourteenth Amendment claims for excessive force, sexual abuse, and Slip Copy, 2019 WL 4051596 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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1 Defendants' Motion for Summary Judgment does 2019 WL 3891143 not pertain to John Doe or Sullivan, as they have not yet been served or appeared. See Dkt. No. 24-9, Only the Westlaw citation is currently available. United States District Court, N.D. New York. Defs.' Mem. of Law, p. 3 n.1 & 2; Dkt. Nos. 14 & 19. Joshua SHEFFER, Plaintiff, v.

I. BACKGROUND

Correctional Officer FLEURY, et al., Defendants. Plaintiff alleges that shortly after arriving at Upstate on

9:18-CV-1180 (LEK/DJS)

September 15, 2017, he was interviewed by John Doe | regarding his history of sexual abuse. Compl. at ¶ 21. When Signed 08/19/2019 John Doe asked Plaintiff if he has a history of sexual abuse, Attorneys and Law Firms Plaintiff replied “yes,” but Plaintiff alleges that John Doe allegedly said “no” aloud and circled “no” on Plaintiff's JOSHUA SHEFFER, Plaintiff, Pro Se, 16-A-1894, Marcy 3278RC form, which is used to determine if an inmate Correctional Facility, 9000 Old River Road, P.O. Box 3600, is susceptible to being sexually abused while in prison. Marcy, NY 13403. Id. Plaintiff alleges he was then walked back to his cell by Defendant Fleury, who told Plaintiff that he had the

HON. LETITIA JAMES, Attorney General of the State of “perfect bunkie” for him and for Plaintiff “to not ask him for New York, OF COUNSEL: KOSTANDINOS D. LERIS, anything.” Id. at ¶ 22. Plaintiff alleges that on September 18, ESQ., The Capitol, Albany, NY 12224, Attorney for 2017, Defendant Smith came to his cell door and that Plaintiff Defendants. told Defendant Smith he feared for his life and safety because of the conduct of John Doe and Defendant Fleury. Id. at ¶ 24. Later that same day, Plaintiff wrote letters to Sullivan, and

REPORT-RECOMMENDATION and ORDER Defendants Smith, Prack, and Martuscello relaying that same concern. Id. at ¶ 25.

DANIEL J. STEWART, United States Magistrate Judge *1 On October 1, 2018, pro se Plaintiff Joshua Sheffer On or about September 25, 2017, Plaintiff received a (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § bunkmate who allegedly threatened to physically assault him 1983, asserting claims arising from his confinement in the if Plaintiff did not give into his sexual demands. Id. at ¶ custody of the Department of Corrections and Community 26. When Plaintiff informed Defendant Bond that he feared Supervision (“DOCCS”) at Upstate Correctional Facility he would be sexually assaulted by his bunkmate, Defendant (“Upstate”). Dkt. No. 1, Compl. Presently before this Bond allegedly told Plaintiff “to work it out.” Id. Later that Court is Defendants' Motion for Summary Judgment, and day, Plaintiff was sexually assaulted by his bunkmate. Id. a Partial Motion to Dismiss by Defendants Smith, Prack, at ¶ 27. The next morning, Plaintiff allegedly placed letters and Martuscello, Dkt. No. 24, which Plaintiff has opposed addressed to Sullivan, and Defendants Smith, Prack, and in part. 1 Dkt. No. 31, Pl.'s Opp. Defendants contend that Martuscello in the feed up slot of his cell door informing them

he had been sexually assaulted. Id. at ¶ 28. Later that day, Plaintiff has failed to exhaust his administrative remedies Plaintiff was again sexually assaulted by his bunkmate. Id. and that Plaintiff failed to establish personal involvement On or about September 27, 2017, Plaintiff was interviewed with respect to Defendants Smith, Prack, and Martuscello. by John Doe regarding the sexual assaults and John Doe Dkt. No. 30, Defs.' Reply Mem. of Law. The Court allegedly told Plaintiff that he “deserved what happened to finds that Defendants have not established that Plaintiff him” and that he would be placed back in his cell with his failed to exhaust his administrative remedies, and therefore, bunkmate. Id. at ¶ 29. recommends that Defendants' Motion for Summary Judgment be denied . The Court recommends that Defendants' Motion to

*2 Plaintiff asserts that he has exhausted his administrative Dismiss Defendants Prack and Martuscello be granted , and remedies “to the best of his ability ... to the highest level Defendants' Motion to Dismiss Defendant Smith be denied . afforded [to] him.” Id. at ¶ 41. Plaintiff commenced the Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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grievance procedure when he filed a grievance with the (citing Flaherty v. Coughlin , 713 F.2d 10, 13 (2d Cir. 1983) grievance clerk at Upstate on October 1, 2017, alleging that he and Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995)). was sexually assaulted by his bunkmate on September 25 and 26, 2017, and that Defendants, knowing he was susceptible to When considering a motion for summary judgment, the sexual abuse and harassment, failed to protect him from the court must resolve all ambiguities and draw all reasonable sexual assaults. Id. at ¶¶ 37-38; Dkt. No. 31-1 at pp. 1-4 & 6. inferences in favor of the non-movant. Nora Beverages, Inc.

v. Perrier Group of Am., Inc. , 164 F.3d 736, 742 (2d Cir. The next day, Plaintiff received notice from the Inmate 1998). “[T]he trial court's task at the summary judgment Grievance Program (“IGP”) Supervisor at Upstate that motion stage of the litigation is carefully limited to discerning Plaintiff's Prison Rape Elimination Act (“PREA”) claim was whether there are any genuine issues of material fact to be forwarded to the Watch Commander and “deemed exhausted tried, not to deciding them. Its duty, in short, is confined at this upon filing for Prison Litigation Reform Act (‘PLRA’) point to issue-finding; it does not extend to issue-resolution.” purposes.” Dkt. No. 31-1 at p. 6. The letter from the IGP Gallo v. Prudential Residential Servs., Ltd. P'ship , 22 F.3d Supervisor also stated that Plaintiff's allegations of employee 1219, 1224 (2d Cir. 1994). Furthermore, where a party harassment, retaliation, and threats would be investigated is proceeding pro se , the court must “read his supporting by the Superintendent. Id. On April 5, 2018, after the papers liberally, and [ ] interpret them to raise the strongest completion of an investigation by an IGP supervisor, the arguments that they suggest.” Burgos v. Hopkins , 14 F.3d Superintendent denied Plaintiff's grievance, concluding there 787, 790 (2d Cir. 1994); accord, Soto v. Walker , 44 F.3d was no misconduct by staff. Dkt. No. 31-1 at p. 11. 169, 173 (2d Cir. 1995). Nonetheless, summary judgment is

appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S.

II. MOTION FOR SUMMARY JUDGMENT

574, 587 (1986). A. Legal Standard on Motion for Summary Judgment B. Whether Plaintiff Exhausted Pursuant to Fed. R. Civ. P. 56(a), summary judgment is his Administrative Remedies appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment

*3 The PLRA provides, in part, that “[n]o action shall as a matter of law.” The moving party bears the burden be brought with respect to prison conditions under section to demonstrate through “pleadings, depositions, answers to 1983 of this title, or any other Federal law, by a prisoner interrogatories, and admissions on file, together with [ ] confined in any jail, prison, or other correctional facility affidavits, if any,” that there is no genuine issue of material until such administrative remedies as are available are fact. F.D.I.C. v. Giammettei , 34 F.3d 51 54 (2d Cir. 1994) exhausted.” 42 U.S.C. § 1997e(a). There is no question (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)). that exhaustion in prisoner cases covered by § 1997e(a) is To defeat a motion for summary judgment, the non-movant mandatory. Ross v. Blake , 136 S. Ct. 1850, 1856 (2016) must set out specific facts showing that there is a genuine (stating that the mandatory language of § 1997e(a) forecloses issue for trial, and cannot rest merely on allegations or judicial discretion to craft exceptions to the requirement). denials of the facts submitted by the movant. FED. R. CIV. Furthermore, § 1997e(a) requires “proper exhaustion,” which P. 56(c); see also Scott v. Coughlin , 344 F.3d 282, 287 (2d means using all steps of the administrative process and Cir. 2003) (“Conclusory allegations or denials are ordinarily complying with “deadlines and other critical procedural not sufficient to defeat a motion for summary judgment when rules.” Woodford v. Ngo , 548 U.S. 81, 94 (2006). the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann , 21 F.3d 522, 525-26 (2d Cir.

Defendants here outline for the Court the familiar three step 1994). To that end, sworn statements are “more than mere inmate grievance process within DOCCS, see Smith v. Kelly , conclusory allegations subject to disregard ... they are specific 985 F. Supp. 2d 275, 280-81 (N.D.N.Y. 2013) (discussing and detailed allegations of fact, made under penalty of perjury, the grievance process), provide evidence that Plaintiff did not and should be treated as evidence in deciding a summary fully comply with that procedure, and argue as a result that the judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin , 344 F.3d at 289 Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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Complaint should be dismissed for failure to exhaust. Defs.' sexual abuse and sexual harassment Mem. of Law at pp. 7-11. to agency officials under the PREA

Standards (28 C.F.R. § 115.51(b)); However, the sole allegation in this Complaint is that or to the Department's Office of the Defendants failed to protect Plaintiff from being sexually Inspector General; or (2) a third assaulted by another inmate, see Compl. at ¶ 34, and the party reported that an inmate is the exhaustion requirement for allegations concerning incidents victim of sexual abuse and the alleged of sexual assault is different than that for other types of victim confirmed the allegation upon complaints. See Abreu v. Miller , 2018 WL 5660409, at investigation. *4 (N.D.N.Y. Aug. 16, 2018), report and recommendation adopted , 2018 WL 4502007 (N.D.N.Y. Sept. 20, 2018), order amended and superseded on reconsideration on other

Id. grounds , 2019 WL 761639 (N.D.N.Y. Feb. 21, 2019). One of the primary objectives of the PREA is to “increase the

In addition, a grievance alleging sexual abuse or harassment accountability of prison officials who fail to detect, prevent, may be submitted at any time. Id. If an inmate files a reduce, and punish prison rape.” 34 U.S.C. § 30302(6). As formal grievance alleging sexual abuse or harassment with the revised on May 15, 2014, DOCCS Directive 4040 provides: grievance clerk, it shall immediately be reported by the IGP supervisor to the watch commander, and that complaint “shall be deemed exhausted upon filing for PLRA purposes.” Id.

The department has zero tolerance for sexual abuse and sexual harassment. There appears to be no question that Plaintiff alleged to prison Consistent with this policy and the officials that he was the victim of a sexual assault and that Prison Rape Elimination Act (PREA) he received notice from the IGP Supervisor stating his PREA Standards (28 C.F.R. § 115.52(a)), claim has been exhausted for PLRA purposes, and thus his an inmate is not required to file report was documented as required. Dkt. 31-1 at p. 6. Pursuant a grievance concerning an alleged to DOCCS Directive 4040 that was sufficient to deem his incident of sexual abuse or sexual claims regarding the alleged sexual assault exhausted. 2 This harassment to satisfy the [PLRA]

was sufficient to exhaust his administrative remedies. Medina exhaustion requirement (42 U.S.C. § v. Kaplan , 2018 WL 797330, at *5 (S.D.N.Y. Feb. 8, 2018). 1997e(a)) before bringing a lawsuit regarding an allegation of sexual abuse

2 Plaintiff's grievance not only alleged that several as long as the matter was reported as prison employees failed to protect him from being set forth below. sexually assaulted, but that Plaintiff was not allowed access to certain privileges and items. Dkt. No. 31-1 at pp. 1-4. Plaintiff asserts that his cell

7 N.Y.C.R.R. § 701.3(i). For purposes of the PREA and did not have a mattress or certain toiletries, he was the exhaustion requirement, any allegation concerning an not allowed his legal work or “religious articles,” incident of sexual abuse or harassment shall be deemed and was denied access to the law library, to state exhausted if official documentation confirms that: issued earphones, and had his food and clothes tampered with. Id. Defendants may be correct that those claims were not fully exhausted through the

(1) an inmate who alleges being the three step process, but the Court need not decide victim of sexual abuse or sexual that question because those claims are not asserted harassment reported the incident to as part of this litigation. facility staff; in writing to Central *4 The Defendants' Motion does not specifically address Office Staff; to any outside agency Directive 4040 and its application to this case. Defendants that the Department has identified appear to simply assume that the Plaintiff's claim that the as having agreed to receive and Corrections Officers failed to intervene to stop the abuse, or immediately forward inmate reports of Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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were otherwise responsible for the repeated sexual assault evidence which might be offered in support thereof.” Geisler by Plaintiff's bunkmate, is not covered by the Directive. The v. Petrocelli , 616 F.2d 636, 639 (2d Cir. 1980). “The issue is Court does not adopt such a narrow view. Directive 4040 not whether a plaintiff will ultimately prevail but whether the specifically refers to an “incident” of sexual abuse. That claimant is entitled to offer evidence to support the claims.” incident could include, not only the acts of sexual abuse Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) ( overruled on by an inmate or a corrections officer, but also other events other grounds by Davis v. Scherer , 468 U.S. 183 (1984)). which are necessarily intertwined with such a claim, such as a physical assault during the course of the abuse; the failure The court is bound to give the plaintiff the benefit of every of correctional staff to intervene to stop the rape; or acts or reasonable inference to be drawn from the “well-pleaded” failures to act making a jail official legally accountable for allegations of the complaint. See Retail Clerks Int'l Ass'n, the sexual abuse. See Abreu v. Miller , 2018 WL 4502007, Local 1625, AFL-CIO v. Schermerhorn , 373 U.S. 746, n.6 at *2 (“[I]it may also be that the sexual assault was carried (1963). Nevertheless, “the tenet that a court must accept out by physically assaulting Plaintiff, perhaps to overcome as true all of the allegations contained in a complaint is his resistance to the sexual conduct.”). Such a reading of inapplicable to legal conclusions.” Ashcroft v. Iqbal , 556 the Directive is not only consistent with its language, but U.S. 662, 678 (2009). Therefore, “[t]hreadbare recitals of the also comports with its purpose in attempting to prevent such elements of a cause of action, supported by mere conclusory conduct. statements, do not suffice.” Id. (citation omitted). Further, while it is true that not all grievances by inmates are A motion to dismiss pursuant to Rule 12(b)(6) may not be covered by the Directive, conduct that is specifically related granted so long as the plaintiff's complaint includes “enough to the act of sexual abuse, such as a failure to intervene facts to state a claim to relief that is plausible on its face.” Bell and protect that abuse, could be reasonably interpreted by Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); Ashcroft the inmate as being covered by the Directive. In such a v. Iqbal , 556 U.S. at 697. “A claim has facial plausibility circumstance it would be justifiable for the inmate to rely on when the plaintiff pleads factual content that allows the court the Directive, and the memorandum sent to him indicating to draw the reasonable inference that the defendant is liable that his PREA allegations had been deemed exhausted. Dkt. for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. at No. 31-1 at p. 6. As noted in a similar situation: “[a]n 678. This plausibility standard “is not akin to a ‘probability inmate would be placed in an untenable position if he were requirement,’ but it asks for more than a sheer possibility required to adjudicate whether his allegations of sexual that a defendant has acted unlawfully.” Id. (internal citation assault were sufficient under PREA prior to relying upon the omitted). In this respect, to survive dismissal, a plaintiff language in Directive 4040 alleviating the need to utilize the “must provide the grounds upon which his claim rests through normal grievance procedure.” Henderson v. Annucci , 2016 factual allegations sufficient ‘to raise a right to relief above WL 3039687, at *5 (W.D.N.Y. Mar. 14, 2016), report and the speculative level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund, recommendation adopted , 2016 WL 3031353 (W.D.N.Y. May Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. 27, 2016). Here, where Plaintiff was told his PREA claims v. Twombly , 440 U.S. at 555). Thus, in spite of the deference were exhausted, this seems especially applicable. the court is bound to give to the plaintiff's allegations, it is not

proper for the court to assume that “the [plaintiff] can prove As such, the Court recommends Defendants' Motion for facts that [he or she] has not alleged, or that the defendants Summary Judgment for failure to exhaust be denied. have violated ... laws in ways that have not been alleged.”

Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has “nudged [his]

III. MOTION TO DISMISS

claims ... across the line from conceivable to plausible,” entails a “context-specific task that requires the reviewing

A. Legal Standard for a Motion to Dismiss court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal , 556 U.S. at 679-80. On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto , 405 U.S. 319, 322

*5 Where, as here, the complaint was filed pro se , it (1972). The trial court's function “is merely to assess the legal must be construed liberally with “special solicitude” and feasibility of the complaint, not to assay the weight of the Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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interpreted “to raise the strongest claims that it suggests.” are not personally involved and requests the Court strike Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011) (internal them from this action. Pl.'s Mem. of Law, at p. 9. Therefore, quotation marks omitted) (citation omitted). Nonetheless, a the Court recommends Defendants Prack and Martuscello be pro se complaint must state a “plausible claim for relief.” See dismissed. Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009). “Generally, in determining a 12(b)(6) motion, the court

2. Defendant Smith may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which

Defendants assert that Defendant Smith lacked personal the court may take judicial notice[,]” as well as documents involvement in the alleged violations giving rise to this action. incorporated by reference in the complaint. Spence v. Defs.' Mem. of Law at pp. 11-13. Defendant Smith is an Senkowski , 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) Offender Rehabilitation Counselor with DOCCS. Compl. at (citing Kramer v. Time Warner Inc. , 937 F.2d 767, 773 (2d ¶ 12. Defendant Smith argues that she had no knowledge or Cir. 1991)); Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d personal involvement in Plaintiff's bunkmate being placed in 42, 47 (2d Cir. 1991) (citing FED. R. CIV. P. 10(c)). his cell with him, specifically, that she did not: (1) make the decision to place Plaintiff's bunkmate in his cell with him; (2) know who Plaintiff's bunkmate was; or (3) receive any information regarding Plaintiff's bunkmate having a history

B. Personal Involvement of sexual violence. Defs.' Mem. of Law at p. 12. In their Partial Motion to Dismiss, Defendants Smith, Prack, and Martuscello move to dismiss Plaintiff's claims against Plaintiff contends that Defendant Smith is personally them on the ground that Plaintiff failed to allege personal involved in this case because she failed to take action to involvement in the events giving rise to this action. Defs.' protect him from being sexually assaulted by his bunkmate Mem. of Law at pp. 11-13. after Plaintiff told Defendant Smith at his cell, and later wrote

to her, that he feared for his life and safety after John Doe “[P]ersonal involvement of defendants in alleged and Defendant Fleury allegedly made remarks to Plaintiff constitutional deprivations is a prerequisite to an award of about his bunkmate. Pl.'s Mem. of Law at p. 9. Additionally, damages under § 1983.” Wright v. Smith , 21 F.3d 496, 501 Plaintiff asserts that it was evident Defendant Smith was (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d aware of the sexual assaults because John Doe interviewed 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 claim, Plaintiff after Plaintiff spoke with Defendant Smith, and a call a plaintiff must show a “tangible connection” between the acts was placed to Plaintiff regarding his PREA claim. Compl. at of a defendant and the injuries suffered by the plaintiff. Bass ¶ 29; Dkt. No. 31-1 at p. 12. v. Jackson , 790 F.2d 260, 263 (2d Cir. 1986).

*6 In his Complaint, Plaintiff alleges that on September 18, 2017, Defendant Smith came to visit him at his cell for his initial interview after arriving at Upstate, and during this

1. Defendants Prack and Martuscello interview, Plaintiff told Defendant Smith that he feared for his life and safety as a result of his encounters with John Doe and

Defendants assert that Defendant Prack, Director of Special Defendant Fleury. Compl. at ¶ 24. Plaintiff alleges that later Housing Units for DOCCS, and Defendant Martuscello, that day, he sent Defendant Smith a letter informing her of the Deputy Commissioner for Administration for DOCCS, same concerns he told Defendant Smith at his cell. Id. at ¶ 25. should be dismissed from this action for lack of personal On September 26, 2017, after Plaintiff was sexually assaulted, involvement. Defs.' Mem. of Law at p. 11; Compl. at ¶¶ he wrote to Defendant Smith again, placing the letter in the 3-4. Defendants assert that Plaintiff has not alleged any facts feed up slot of his cell door, informing Defendant Smith that that Defendant Prack or Defendant Martuscello: (1) made he had been sexually assaulted by his bunkmate. Id. at ¶ 28. the decision to place Plaintiff's bunkmate in his cell with him; (2) was informed who Plaintiff's bunkmate was; or (3)

Courts have denied defendants' motions to dismiss for was aware of whether Plaintiff's bunkmate had a history of lack of personal involvement when plaintiffs have alleged sexual violence. Defs.' Mem. of Law at p. 12. In Plaintiff's they met in person with defendants to discuss the events Memorandum of Law, he concedes that these two defendants Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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giving rise to their actions. See Hayes v. Dahkle , 2018 WL 23, 2015) (plaintiff did not provide sufficient information 7356343, at *2, 18-19 (N.D.N.Y. Dec. 11, 2018), report and regarding the specific issues and individuals mentioned in the recommendation adopted , 2019 WL 689234 (N.D.N.Y. Feb. grievance). 19, 2019) (plaintiff expressed his fear about his safety in person to a defendant supervisor); see also Whitley v. Ort , At this stage in the case, Plaintiff has alleged enough facts 2018 WL 4684144, at *7 (S.D.N.Y. Sept. 28, 2018) (nurse to show it is plausible that Defendant Smith was personally allegedly failed to provide plaintiff with medical treatment involved in the events giving rise to this action. Plaintiff states and take action under the PREA after plaintiff told nurse in that he expressed his concerns about his safety to Defendant person he had been sexually assaulted). Smith in person. See Hayes v. Dahkle , 2018 WL 7356343, at

*2; Compl. at ¶ 24. Also, the letters Plaintiff allegedly sent On a case-by-case basis, a plaintiff may be able to establish a to Defendant Smith raised specific concerns due to particular defendant's personal involvement when a defendant receives correction officers' actions and how Plaintiff was sexually a letter from the plaintiff detailing the factual allegations assaulted by his bunkmate. See Ferrer v. Fischer , 2014 WL giving rise to their claim. The Second Circuit has concluded 1763383, at *3; Compl. at ¶¶ 24-25 & 28. Plaintiff also that a defendant's personal involvement can be established if, provided the specific dates the letters were sent and the means

by which the second letter was sent. Id. *7 Plaintiff has also alleged enough facts to show the

[a]t the pleading stage, even if alleged violations were ongoing. Plaintiff has provided [the plaintiff] had no knowledge enough evidence that establishes that the alleged violations or information as to what became were not remedied after Defendant Smith was allegedly first of his [l]etter after he sent it, made aware of Plaintiff's concerns, and therefore, Defendant he would be entitled to have the Smith may have been able to remedy Plaintiff's damages and court draw the reasonable inference– mitigate the alleged violations. See Burton v. Lynch , 664 F. if his [ ] complaint contained factual Supp. 2d 349, 360 (S.D.N.Y. 2009); see also Young v. Kihl , allegations indicating that the [l]etter 720 F. Supp. 22, 23 (W.D.N.Y. 1989); Compl. at ¶¶ 24-25 & was sent to [a supervisor] at an 28. appropriate address and by appropriate means–that the [defendant] in fact

Therefore, it is recommended that the Court deny Defendants' received the [l]etter, read it, and motion to dismiss for lack of personal involvement with thereby became aware of the alleged respect to Plaintiff's claims against Defendant Smith. conditions of which [the plaintiff] complained.

IV. REMAINING PARTIES

Grullon v. City of New Haven, 720 F.3d 133, 141 (2d The Court notes that there remains a John Doe Defendant Cir. 2013); see Grubbs v. Grimaldi , 2019 WL 720969, at in this action. Defendants have identified this individual in *5 (N.D.N.Y. Jan. 23, 2019), report and recommendation response to an order by Judge Kahn. See Dkt. Nos. 8 & 12. adopted , 2019 WL 719383 (N.D.N.Y. Feb. 20, 2019) The Court recommends that Plaintiff be ordered to indicate (plaintiff stating the multiple letters he wrote to the facility whether he intends to go forward with a claim against the health services director were ignored and unanswered did not individual identified by Defendants, Sgt. Walantus, and for establish personal involvement); see also Ferrer v. Fischer , him to be added as a Defendant to this action. 2014 WL 1763383, at *3 (N.D.N.Y. May 1, 2014) (plaintiff's allegations that he sent multiple letters to a named defendant,

The Court also notes that Francis Sullivan has not been served that defendant was “fully aware” of his situation, and that as she is no longer employed by DOCCS. See Dkt. No. 19. defendant failed to respond to his letters and take appropriate The Court therefore recommends Defendants be ordered to action was sufficient to defeat defendant's motion to dismiss attempt to ascertain a current address where Ms. Sullivan can at the pleading stage); but see Simpson v. Overbaugh , 2015 be served. See Valentin v. Dinkins , 121 F.3d 72, 75-76 (2d. WL 7444369, at *5 (N.D.N.Y. Sept. 28, 2015), report and recommendation adopted , 2015 WL 7444617 (N.D.N.Y. Nov. Sheffer v. Fleury, Not Reported in Fed. Supp. (2019)

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ORDERED , that the Clerk of the Court serve a copy of this Cir. 1997); see also Billman v. Indiana Dep't of Corrections , Report-Recommendation and Order upon the parties to this 56 F.3d 785, 789 (7th Cir. 1995). action. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

V. CONCLUSION

(14) 3 days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk

For the reasons stated herein, it is hereby of the Court. FAILURE TO OBJECT TO THIS REPORT

WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

RECOMMENDED , that Defendants' Motion for Summary APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 Judgment based upon Plaintiff's failure to exhaust his (2d Cir. 1993) (citing Small v. Sec'y of Health and Human administrative remedies be DENIED ; and it is further Servs. , 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).

RECOMMENDED , that Defendants' Partial Motion to Dismiss Defendants Prack and Martuscello be GRANTED ;

3 and it is further If you are proceeding pro se and are served with this Order by mail, three additional days will be RECOMMENDED , that Defendants' Partial Motion to added to the fourteen-day period, meaning that you Dismiss Defendant Smith for lack of personal involvement be have seventeen days from the date the order was DENIED ; and it is further mailed to you to serve and file objections. FED. R.

CIV. P. 6(d). If the last day of that prescribed period RECOMMENDED , that Plaintiff be ordered to indicate falls on a Saturday, Sunday, or legal holiday, then whether he intends to go forward with a claim against the the deadline is extended until the end of the next individual identified by Defendants as John Doe; and it is day that is not a Saturday, Sunday, or legal holiday. further FED. R. CIV. P. 6(a)(1)(C). RECOMMENDED , that an order pursuant to Valentin v.

All Citations Dinkins , 121 F.3d 72 (2d. Cir. 1997) be issued regarding Not Reported in Fed. Supp., 2019 WL 3891143 Defendant Sullivan; and it is End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Castineiras v. Helms, Not Reported in Fed. Supp. (2019) 2019 WL 2870300

2019 WL 2870300 DISCUSSION Only the Westlaw citation is currently available. I. Summary Judgment United States District Court, N.D. New York. Summary judgment is appropriate where there exists no Roberto CASTINEIRAS, Plaintiff, genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of v. law. Fed. R. Civ. P. 56; Salahuddin v. Goord , 467 F.3d 263, A. HELMS, Defendant. 272–73 (2d Cir. 2006). “Only disputes over [“material”] facts 9:17-CV-1084 (BKS/ATB) that might affect the outcome of the suit under the governing | law will properly preclude the entry of summary judgment.” Signed 06/06/2019 Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It must be apparent that no rational Attorneys and Law Firms finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo

ROBERTO CASTINEIRAS, Plaintiff, pro se v. Prudential Residential Servs. , 22 F.3d 1219, 1224 (2d Cir. 1994).

AIMEE COWAN, Asst. Attorney General, for defendants. The moving party has the burden to show the absence of disputed material facts by informing the court of portions

REPORT and RECOMMENDATION of pleadings, depositions, and affidavits which support the ANDREW T. BAXTER, United States Magistrate Judge motion. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party *1 This matter was referred to me for Report and satisfies its burden, the nonmoving party must move forward Recommendation by the Honorable Brenda K. Sannes, with specific facts showing that there is a genuine issue for United States District Judge. Plaintiff has filed this civil trial. Salahuddin v. Goord , 467 F.3d at 273. In that context, rights complaint alleging that on August 21, 2017, at Upstate the nonmoving party must do more than “simply show that Correctional Facility, defendant Helms used excessive force there is some metaphysical doubt as to the material facts.” against him in the course of extracting plaintiff from his cell. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , (Complaint (“Compl.”) ¶ 6, Facts). Plaintiff originally named 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). two defendants: Corrections Officer (“CO”) A. Helms, and However, in determining whether there is a genuine issue “Jane Doe,” a nurse on duty at the time of the incident. of material fact, a court must resolve all ambiguities, and (Compl. at 1). On December 19, 2017, after initial review of draw all inferences, against the movant. See United States v. the complaint, Judge Sannes dismissed the complaint against Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 defendant Jane Doe. (Dkt. No. 9). (1962); Salahuddin , 467 F.3d at 272. Presently before the court, is a motion for summary judgment filed by defendant Helms, arguing that plaintiff has failed II. Exhaustion of Administrative Remedies to exhaust his administrative remedies. In the alternative,

1. Legal Standards defendant argues that plaintiff's Eighth Amendment claim The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. may be dismissed on the merits, and that defendant is entitled § 1997e(a), requires an inmate to exhaust all available to qualified immunity. (Dkt. No. 24). Plaintiff has responded administrative remedies prior to bringing a federal civil rights in opposition to the motion, and defendant has filed a reply. action. The exhaustion requirement applies to all inmate suits (Dkt. Nos. 26, 27). For the following reasons, this court agrees about prison life, whether they involve general circumstances that plaintiff has failed to exhaust his administrative remedies or particular episodes, and regardless of the subject matter and will recommend that the defendant's motion for summary of the claim. See Giano v. Goord , 380 F.3d 670, 675-76 (2d judgment be granted. Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). Inmates must exhaust their administrative remedies even if

Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

2019 WL 2870300

they are seeking only money damages that are not available stipulated in this section, all procedures, rights, and duties in prison administrative proceedings. Id. at 675. pertaining to the processing of other grievances as set forth

in section 701.5 of this Part shall be followed.” Id. § 701.8(i). *2 The failure to exhaust is an affirmative defense that must Thus, if a procedure is not described in 701.8, the inmate must be raised by the defendants. Jones v. Bock , 549 U.S. 199, 216, refer to section 701.5. 2 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Johnson v. Testman , 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense,

1 The regulation states that “[a]llegations of it is the defendants' burden to establish that plaintiff failed to employee harassment are of particular concern meet the exhaustion requirements. See, e.g., Key v. Toussaint , to the administrators of department facilities. ” 7 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). N.Y.C.R.R. § 701.8 (emphasis added). The Supreme Court has held that in order to properly 2 The court also notes that the regulations governing exhaust an inmate's administrative remedies, the inmate must the Inmate Grievance Program (“IGP”) encourage complete the administrative review process in accordance the inmate to “resolve his/her complaints with the applicable state rules. Jones , 549 U.S. at 218-19, through the guidance and counseling unit, 127 S.Ct. 910 (citing Woodford v. Ngo , 548 U.S. 81, 126 the program area directly affected, or other S.Ct. 2378, 165 L.Ed.2d 368 (2006)). In Woodford , the Court existing channels (informal or formal) prior to held that “proper” exhaustion means that the inmate must submitting a grievance.” Id. § 701.3(a) (Inmate's complete the administrative review process in accordance Responsibility). with the applicable procedural rules, including deadlines, as Until recently, the Second Circuit utilized a three-part inquiry a prerequisite to bringing suit in federal court. 548 U.S. at to determine whether an inmate had properly exhausted his 90-103, 126 S.Ct. 2378. administrative remedies. See Hemphill v. State of New York , 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked

The grievance procedure in New York is a three-tiered (1) whether the administrative remedies were available to process. The inmate must first file a grievance with the Inmate the inmate; (2) whether defendants' own actions inhibiting Grievance Resolution Committee (“IGRC”). N.Y. Comp. exhaustion estops them from raising the defense; and (3) Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse whether “special circumstances” justify the inmate's failure to decision of the IGRC may be appealed to the Superintendent comply with the exhaustion requirement. Id. of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office

*3 However, the Supreme Court has now made clear Review Committee (“CORC”). Id. § 701.5(d). that courts may not excuse a prisoner's failure to exhaust because of “special circumstances.” Ross v. Blake , 136 S.

There is a special section for complaints of “harassment.” Id. Ct. at 1857. “ ‘[M]andatory exhaustion statutes like the § 701.8. Harassment grievances are defined in another section PLRA establish mandatory exhaustion regimes, foreclosing of the regulations as “those grievances that allege employee judicial discretion.’ ” Riles v. Buchanan , 656 Fed.Appx. misconduct meant to annoy, intimidate, or harm an inmate.” 577, 580 (2d Cir. 2016) (quoting Ross , ––– U.S. ––––, Id. § 701.2(e). Based on this definition, section 701.8 has 136 S. Ct. at 1857). Although Ross did away with the been found applicable to claims of excessive force by staff. “special circumstances” exception, the other two factors in Terry v. Hulse , No. 16-CV-252, 2018 WL 4682784, at *7 n.7 Hemphill –availability and estoppel–are still valid. The court (S.D.N.Y. Sept. 28, 2018) (citing Torres v. Carry , 691 F. Supp. in Ross referred to “availability” as a “textual exception” to 2d 366, 369-70 (S.D.N.Y. 2009)). mandatory exhaustion, and “estoppel” has become one of the three factors in determining availability. Ross , ––– U.S.

Complaints of harassment are handled by an expedited ––––, 136 S. Ct. at 1858. Courts evaluating whether an inmate procedure which provides that such grievances are forwarded has exhausted his or her administrative remedies must focus directly to the superintendent of the facility, 1 after which the on whether those remedies were “available” to the inmate. inmate must appeal any negative determination to the CORC Id.; see also Riles , 656 Fed.Appx. at 580. An administrative by filing a form within seven calendar days of the inmate's procedure is “unavailable” when receipt of the Superintendent's response. Id. §§ 701.8(h) & (i), 701.5. The regulations then provide that “unless otherwise Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

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(1) “it operates a simple dead end – with officers unable The Second Circuit rejected this argument and held that, or consistently unwilling to provide any relief to aggrieved for an inmate in the plaintiff's situation, the regulatory inmates; (2) it is “so opaque that is [sic] becomes, scheme was so “opaque” and “confusing” as to be practically practically speaking, incapable of use”; or (3) “prison unavailable. Id. The Second Circuit found that DOCCS administrators thwart inmates from taking advantage of a regulations “only contemplate appeals of grievances that grievance process through machination, misrepresentation, [have been] actually filed ... [and] give no guidance or intimidation.” whatsoever to an inmate whose grievance was never filed.” Id. Thus, Williams holds that “the process to appeal an unfiled

Riles, supra (quoting Ross , ––– U.S. ––––, 136 S. Ct. at and unanswered grievance is prohibitively opaque, such that 1859-60). no inmate could actually make use of it.” Id. at 126. 3 See also Medina v. Napoli , 725 F. App'x 51, 53-54 (2d Cir. 2018)

In Ross , the Supreme Court gave examples of the (following Williams in the context of a summary judgment circumstances under which each of the above would apply. motion). Ross , ––– U.S. ––––, 136 S. Ct. at 1859-60. The first circumstance listed above involves a case in which the

3 relevant “administrative procedure” lacks the authority to My summary of Williams tracks that of Magistrate provide “any” relief. Id. at 1859. The second example is when Judge Stewart in Berman v. Durkin , No. 9:13- the administrative procedure “exists,” but is so complicated or CV-136 (LEK/DJS), 2017 WL 1215814, at *8 “opaque” that no ordinary prisoner could “discern or navigate (N.D.N.Y. Mar. 10, 2017), (Rep't-Rec.), adopted , it.” Id. Finally, administrative remedies are not available if 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017). prison administrators prevent inmates from taking advantage of the grievance process by misleading or threatening them,

2. Application preventing their use of the administrative procedure. Id. at *4 In this case, defendant argues that plaintiff failed to 1860. Thus, if a plaintiff fails to exhaust his administrative exhaust his administrative remedies because he failed to remedies, the court must consider whether those remedies appeal the Superintendent's denial of his grievance to the were “available” to him. CORC, and the administrative remedy was “available” to him. (Def.'s Mem. of Law at 3-5) (Dkt. No. 24-9). Defendant also

In Williams v. Priatno , 829 F.3d 118, 123-27 (2d Cir. argues that plaintiff failed to specifically identify defendant 2016), the Second Circuit considered whether administrative Helms in his grievance as one of the officers who actually remedies had been “actually available” to an inmate plaintiff struck plaintiff. 4 ( Id. at 4). This court need not reach under Ross , after the district court granted the defendants' defendant's last argument regarding exhaustion because there motion to dismiss for failure to exhaust. The plaintiff alleged are at least two other reasons why plaintiff failed to exhaust that, while housed in the special housing unit (“SHU”), he his administrative remedies as discussed below, the first of drafted a grievance that he delivered to a correction officer to which was not raised by the defendant. forward to the grievance office on his behalf. Id. at 120-121. Approximately two weeks later, the plaintiff was transferred

4 Defendant argues that the grievance states only that to a different facility. Id. at 121. He never received a response defendant Helms verbally threatened plaintiff after to his grievance, and alleged that it was never filed by the the excessive force incident. (Def.'s Mem. of Law officer to whom he had given it. It was undisputed that at 4). plaintiff never appealed the grievance. Id. Plaintiff attached his grievance to the complaint in this federal The defendants in Williams argued that even if the grievance action. (Compl. at CM/ECF p.7). The grievance is dated was never filed, the plaintiff was required to appeal it and “9/21/17,” and it was received by the Grievance Committee complete the grievance process. Id. at 124. The defendants and given Grievance No. UST-61853-17 on “9/22/17.” ( Id. ) relied on a Department of Corrections and Community Plaintiff's federal complaint was also signed “9/21/17,” and Services (“DOCCS”) regulation that provided that “an inmate it was received by the court on “9/28/17.” (Compl. at CM/ may appeal a grievance ‘to the next step’ if he does not receive ECF p.6 & Dkt. No. 1 generally ). If plaintiff signed his a timely response.” Id. (quoting N.Y. Comp. Codes R. & Regs. administrative grievance and his federal complaint on the tit. 7, § 701.6(g)(2)). same day and mailed the federal complaint to the court, Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

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it is impossible that plaintiff could have exhausted his grievance involved allegations of employee harassment, it administrative remedies before he filed his federal action. was forwarded directly to Upstate's Superintendent for review In fact, in the section of the form-complaint which asks and response. (Cowen Decl. Ex. A at 7). Plaintiff's grievance the plaintiff “What was the final result of your grievance?”, was subsequently denied by the Superintendent. (Cowen Dec. plaintiff's answer was: “[it] is being in investigation under Ex. A, at 3). However, the parties disagree as to whether Code 49 harassment/misconduct.” 5 (Compl. at CM/ECF plaintiff appealed the Superintendent's decision to the CORC.

(Cowen Dec. Ex. A, at 3; Dkt. No. 24 at 7-9; Dkt. No. 24-5 p.3). at 32-33). 5 Exhaustion is an affirmative defense. Thus, even *5 Defendant has filed the Declaration of Rachel Seguin, though it seems clear from the face of the complaint the Assistant Director of the DOCCS IGP and custodian that plaintiff's remedies were not exhausted, in an of records maintained by the CORC. (Seguin Decl. ¶¶ 1-2, abundance of caution, the complaint was allowed 7). Assistant Director Seguin reviewed the CORC records, to proceed past initial review. searching for any appeals filed by plaintiff with the CORC A civil rights claim must be exhausted by the grievance and found no grievance appeals by plaintiff. (Seguin Decl. ¶¶ process, which requires the completion of the three-tiered 7-9; Ex. A). process, before an action asserting that claim may be filed. See , e.g., Casey v. Brockley , No. 9:13-CV-1271, 2015 WL In his deposition, plaintiff claims to have filed his appeal 8008728, at *5 (N.D.N.Y. Nov. 9, 2015), Rep't Rec., adopted , to the CORC and claims that the CORC issued a decision 2015 WL 7864161 (N.D.N.Y. Dec. 3, 2015); See also Klein denying his grievance. (Pl.'s Dep. at 32-33). Plaintiff's v. Fischer , No. 13-CV-0437, 2015 WL 5174031, at *19 testimony regarding the appeal was vague. Id. Plaintiff has (N.D.N.Y. Sept. 2, 2015) (“a post-exhaustion amendment of been unable to produce the alleged denial of appeal by the the complaint cannot cure an exhaustion defect existing at the CORC, although he claims to have received such a denial, time the action was commenced.”). and has failed to produce any other evidence that the appeal

was filed. Plaintiff testified that he did not keep a copy of The court will also examine whether plaintiff exhausted his his appeal or of the CORC's decision. ( Id. at 32). Although administrative remedies after filing this action. If plaintiff plaintiff responded to the defendant's summary judgment had done so, the federal complaint would still have to be motion, he failed to address the exhaustion issue. (See Dkt. dismissed, but the plaintiff would have been able to re-file the No. 26). 6 Thus, he has failed to address Assistant Director federal complaint immediately because his remedies would

Seguin's sworn statement that there is no record of plaintiff already have been exhausted. See Brown v. Napoli , 687 F. having filed an appeal with CORC regarding any alleged Supp. 2d 295, 298 (W.D.N.Y. 2009); Morales v. Mackalm , misconduct by defendant Helms. 278 F.3d 126, 128 (2d Cir. 2002) (dismissal for failure to exhaust should be without prejudice to refiling following

6 Plaintiff argues in his Response to defendant's exhaustion). If plaintiff did not exhaust his remedies during motion for summary judgment that he is entitled the pendency of this action, the dismissal may still be without to an appointment of counsel. (Dkt. No. 26). prejudice, but plaintiff will have to attempt to exhaust his Requests of counsel must be made by a Motion administrative remedies prior to refiling. for Appointment of Counsel in compliance with the Northern District of New York's local rules.

In this case, the parties dispute whether plaintiff completed Plaintiff is aware of this requirement as he has the exhaustion requirement during the pendancy of this previously moved to appoint counsel and the court action. Defendant Helms argues that plaintiff did not appeal has denied his motion. (Dkt. Nos. 18, 20). the denial of his grievance to the CORC, and thus never completed the administrative grievance process for his claim Unlike the plaintiff in Williams , this plaintiff does not argue at all. (Dkt. Nos. 24-1; 24-9). Plaintiff argues that he did that administrative remedies were unavailable to him. Rather, appeal to the CORC, but did not keep copies of any of plaintiff claims that he completed all the required steps the relevant documents. The parties agree that plaintiff filed to exhaust his administrative remedies. He alleges that he Grievance UST-61853-17 following the alleged August 21, did not keep the relevant documents. It is undisputed that 2017 incident. (Cowen Dec. Ex. A, at 2). Because plaintiff's plaintiff filed a grievance and received a decision from the Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

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Superintendent denying his claim. Because plaintiff has failed of the occurrence of the incident, that time limit has long to claim that administrative remedies were unavailable to him, since expired, and there appear to be no exceptions to the 45 any recognized exceptions to the exhaustion of administrative day limit in the regulations. Because plaintiff may not return remedies requirement are not relevant to the court's analysis. to exhaust his administrative remedies as against defendant See Ross , 136 S.Ct. at 1853-54. Helms, I must recommend dismissal with prejudice as against

defendant Helms. When a plaintiff fails to exhaust his administrative remedies, the court must dismiss the action without prejudice so that In his response to defendant's motion, plaintiff references the plaintiff may complete the exhaustion process and re-file another investigation surrounding the events of August his action, unless the time permitted for filing a grievance or 21, 2017 and argues that his Eighth Amendment claim appeal has finally expired. See Felix v. Simon , 303 F. App'x should survive summary judgment, even if defendant 21, 22 (2d Cir. 2008) (upholding dismissal of a civil rights Helms is granted a “partial” summary judgment on his action with prejudice where the time permitted for filing exhaustion argument. (Dkt. No. 26). According to plaintiff, a grievance had expired because “dismissal with prejudice, an investigation conducted by the Office of Special when remedies are no longer available, is required in the Investigations (“OSI”) established that the nurse on duty on absence of any justification for not pursuing such remedies”) the day of the incident was guilty of abusive behavior. (Dkt. (citation omitted). No. 26). In this case, the Superintendent's decision was dated October A copy of the investigative report is attached to defense 27, 2017, and the bottom of the document contains an counsel's affidavit as Exhibit B. The OSI report referenced “Appeal Statement,” informing the plaintiff that he had plaintiff and another inmate, who complained about an “seven (7) calendar days from receipt of this notice to file your unrelated, but similar incident involving the nurse. (Cowan appeal.* Please state why you are appealing this decision to Decl. Ex. B). The OSI investigated the August 21, 2017 C.O.R.C.” (Def.'s Ex. A at 3). See 7 N.Y.C.R.R. § 701.5(d) incident. (Cowan Dec. Ex. B). The investigation was (1)(i). The text associated with the asterisk above states that conducted to look into allegations made by plaintiff, as well “*An exception to this time limit may be requested under as additional allegations by a different inmate at Upstate Directive #4040, section 701.6(g).” ( Id. ) This document is Correctional Facility, against the nurse on duty during Form # 2133. ( Id. ) The appeal section of the form is blank, 7 the August 21, 2017 incident (Nurse Marla Travers). ( Id. )

However, even assuming that this investigation sufficed to and the regulations specifically provide that “If the grievant exhaust plaintiff's claims against Nurse Travers, 8 all claims or any direct party wishes to appeal to the CORC, he or she must complete and sign form #2133 and submit it to against “Jane Doe Nurse” were dismissed from this case sua the grievance clerk within seven calendar days after receipt sponte by the Judge Sannes. (Dkt. No. 9). 9 of the superintendent's written response to the grievance.” 7 N.Y.C.R.R. § 701.5(d)(1)(i) (emphasis added). This section of

8 Normally, if plaintiff had filed directly with the the regulation further states that “an exception to this appeal Inspector General or OSI, such a complaint would time limit may be approved by the IGP supervisor under not be sufficient for exhaustion purposes. Smith section 701.6(g) of this Part.” Id. However, section 701.6(g) v. Kelly , 985 F. Supp. 2d 275, 285 & n.16 provides that “an exception to this time limit may not be (N.D.N.Y. 2013) (“The Court notes that there is no granted if the request was made more than 45 days after an exhaustion where an inmate complains directly to alleged occurrence.” the Inspector General (i.e., instead of complaining to the superintendent and having the complaint

7 This further supports the defendant's assertion that referred to the Inspector General pursuant to 7 plaintiff did not, in fact, appeal the Superintendent's N.Y.C.R.R. § 701.8[d] ), the Inspector General denial of his grievance to the CORC. renders a finding of unsubstantiation, and the inmate fails to appeal that finding to CORC.”) In *6 Thus, plaintiff may not return to exhaust his this case, it is clear from the OSI report that the administrative remedies as against defendant Helms because, investigation was requested by the Superintendent although he could have requested an exception to the seven- on September 19, 2017, but was not finally decided day time limit for appealing to the CORC within 45 days Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

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until June 5, 2018. (Cowen Decl. Ex. B at 1, 4). In his response to defendant's motion, plaintiff also argues There would have been no need to appeal the that he should be allowed to conduct further discovery in OSI finding because it was in plaintiff's favor, and this matter in the form of depositions and interrogatories. Nurse Travers resigned from her position on April (Dkt. No. 26). Plaintiff has not met the requirements for 18, 2018. (Cowen Decl. Ex. B at 3). However, additional discovery under Rule 56(f). Plaintiff's response it appears that whatever grievance or complaint to defendant's motion merely states that discovery “in prompted the Superintendent to request an OSI the form of depositions” and “interrogatories” would be investigation, it must have been based on different “instrumental” to establish defendant's culpability. Plaintiff's facts than the grievance that plaintiff attached to vague and conclusory statement fails to demonstrate how his federal complaint because the Superintendent's his ability to respond to defendant's motion for summary response to Grievance UST-61853-17 was a denial judgment was impaired by his lack of discovery or what on October 27, 2017, including a statement that documents he wishes to obtain that would be material to the “no misconduct by staff was found.” (Cowen Decl. exhaustion or any substantive issue. Ex. A at CM/ECF p.3). Plaintiff would have been required to appeal that denial in order to exhaust his Additionally, in defendant's reply, defense counsel asserts that claims against defendant Helms. she complied with the Court's Mandatory Pretrial Discovery

order and forwarded the required discovery material to 9 Plaintiff had the opportunity to amend his plaintiff. (Dkt. No. 27). Further, defendant notes that plaintiff complaint to add the nurse in question as a party. had six months to conduct discovery after defendant filed his He clearly knew the nurse's name at the time of answer to plaintiff's complaint on February 6, 2018 (Dkt. No. the OSI investigation, but never filed an amended 16). The deadline for discovery did not expire until August 7, complaint with the court. The complaint as to Nurse 2018. (Dkt. No. 17). Moreover, defendant's reply states that “Doe” was dismissed without prejudice. there is no indication that plaintiff ever demanded any further discovery or an extension of the discovery deadline. Thus, *7 In any event, the report states that the investigation plaintiff has not met the requirements of Rule 56(f). was “assigned on September 28, 2017, and Investigator Ryan Graziano signed the completed OSI Report on May 8, 2018, long after plaintiff filed this federal complaint.” Thus,

IV. Conclusion notwithstanding the OSI investigation, which focused only on Based upon the complaint itself, the grievance documents, the nurse, plaintiff still failed to exhaust his administrative and Assistant Director Seguin's declarations, plaintiff has remedies prior to filing this federal complaint. The complaint failed to raise an issue of fact as to whether, prior to the still remains dismissed without prejudice as to the Jane Doe initiation of this action, he properly filed his grievance and/or nurse. appealed the grievance against defendant Helms to the CORC as required by the IGP. See , e.g., Ruggiero v. Cty. of Orange , 467 F.3d 170, 176 (2d Cir. 2006) (“[T]he PLRA requires

III. Additional Discovery proper exhaustion, which means using all steps that the 1. Legal Standards agency holds out, and doing so properly (so that the agency Pursuant to Fed. R. Civ. P. 56(f), a party opposing a motion addresses the issues on the merits.”) (internal quotation marks for summary judgment based on insufficient discovery must and emphasis omitted)). file an affidavit describing: (1) “the nature of the uncompleted discovery;” (2) “how the facts sought are reasonably expected

The court also concludes that there are no issues of to create a genuine issue of material fact;” (3) “what efforts fact material to whether plaintiff has ever exhausted his the affiant has made to obtain those facts” and; (4) “why those administrative remedies with respect to the claim against efforts were unsuccessful.” Paddington Partners v. Bouchard , defendant Helms. No reasonable fact finder could conclude 34 F.3d 1132, 1138 (2d Cir. 1994); see also Brunson v. that plaintiff pursued an appeal to the CORC after he filed Jonathan , 677 F. Supp. 2d 640, 641 (W.D.N.Y. 2010). this action or that he could still pursue such an appeal within the applicable deadlines. Accordingly, I recommend that defendant's motion be granted, and that plaintiff's complaint

2. Application be dismissed with prejudice based on his failure to exhaust available administrative remedies prior to commencing this

Castineiras v. Helms, Not Reported in Fed. Supp. (2019)

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Such objections shall be filed with the Clerk of the Court. action and thereafter, though the expiration of the applicable

FAILURE TO OBJECT TO THIS REPORT WITHIN

deadlines to do so.

14 DAYS WILL PRECLUDE APPELLATE REVIEW.

Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993) (citing Small v.

*8 WHEREFORE , based on the findings above, it is Secretary of Health and Human Services , 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

RECOMMENDED , that the defendants' motion for summary judgment (Dkt. No. 24) be GRANTED , and the complaint be DISMISSED IN ITS ENTIRETY WITH

All Citations PREJUDICE AS TO DEFENDANT HELMS . Not Reported in Fed. Supp., 2019 WL 2870300 Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file written objections to the foregoing report. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

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of her effort to transition from Brian Lopez to Mariah Lopez. Plaintiff alleges that during a number of short periods of

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incarceration at Rikers Island defendants violated her rights Only the Westlaw citation is currently available. by (1) housing her with male inmates; (2) not permitting her United States District Court, to wear female clothes and undergarments; (3) not permitting S.D. New York. her to take female hormones; (4) subjecting her to verbal harassment and threatening behavior by defendant correction

Mariah LOPEZ f/k/a Brian Lopez, Plaintiff, officers; (5) physically assaulting her; (6) observing verbal v. harassment, threatening behavior, and physical assaults and The CITY OF NEW YORK, et al., Defendants. failing to intervene; (7) improperly placing her in a classroom for inmates who have disciplinary problems; and (8) allowing

No. 05 Civ. 10321(NRB). classmates to verbally abuse and physically assault her. | Jan. 30, 2009. Defendants Commissioner Martin Horn, Warden Patrick Walsh, Warden Peter Curcio, Kaw Aung, M.D., Capt. Kevin

West KeySummary Buck, CO. Ronald Flemming 1 , Principal Delores Jefferson, C.O. Theresa John, C.O. George Johnson, Capt. Ellen

1 Prisons Transsexuals;  Sex-Change Patterson, Jane San Jose, M.D., and Capt. Robin Walker 2 Operations now move for summary judgment on twelve grounds: (1) Sentencing and Punishment Medical failure to exhaust administrative remedies; (2) vagueness of Care and Treatment claims; (3) the absence of evidence of excessive force; (4) the

absence of personal involvement by defendant Flemming; (5) A preoperative transgender inmate had not the absence of evidence of deliberate indifference to plaintiff's suffered deliberate indifference to her medical medical need; (6) the absence of evidence of failure to protect needs in violation of the Eighth Amendment. She plaintiff; (7) the absence of evidence of personal involvement was incarcerated multiple times for a total of by defendants Horn, Walsh, or Curcio; (8) the absence of three weeks, and during that time, had received evidence of municipal liability; (9) the failure of emotional her hormone therapy most of that time. She was injury claims due to lack of physical injury; (10) the legal also offered psychiatric treatment but refused. unrecognizability of a denial of gay or female housing claim; U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983. (11) qualified immunity; and (12) the inappropriateness of 6 Cases that cite this headnote continuing to hear the state and city law claims which pend to the dismissed federal claims. 1

Defendants filed a Suggestion of Death on July 1, 2008 for named defendant Ronald Flemming. Neither party substituted Mr. Flemming's estate

MEMORANDUM & ORDER pursuant to Federal Rule of Civil Procedure 25(a) NAOMI REICE BUCHWALD, District Judge. (1) within the requisite 90 days. Additionally, defendants filed an affidavit by C.O. Flemming *1 Plaintiff brings this action pursuant to 42 U.S.C. § dated March 21, 2008 in which he stated that he had 1983 and 42 U.S.C. § 1988 alleging violations of her civil never seen plaintiff. Further, defendants submitted rights under the First, Fourth, Fifth, Eighth, and Fourteenth the employment records of two other corrections Amendments to the United States Constitution, and also officers, Capt. Joseph Turner and C.O. Michele seeking redress under New York State Executive Law § Turner, as well as C.O. Flemming's records 296 et. seq. (the “NYS Human Rights Law”) and the showing that although plaintiff alleged that all three Administrative Code of the City of New York § 8-107 et. seq. were involved in an attack of her, none of them (the “NYC Human Rights Law”). At the times relevant to ever worked in the same facility at the time of the the allegations in the complaint, plaintiff was a pre operative alleged attack. Despite this evidentiary showing in transgender individual who was receiving hormones as part Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

support of defendants' summary judgment motion, 3 The dates of her incarcerations within the statute of plaintiff never sought any relief under Federal Rule limitations are as follows: December 10-13, 2002; of Civil Procedure Rule 56(f) in order to depose March 21-26, 2004; April 17-22, 2004; September C.O. Flemming or the other officers in an effort 11-24, 2004; and June 16-17, 2005. Defendant was to rebut this evidence. Nor had plaintiff sought previously incarcerated on August 17-22, 2001, to depose C.O. Flemming or any other defendant January 8-22, 2002, April 11-15, 2002, and has during the two years this case was pending before since been incarcerated at least six times, most the defendants moved for summary judgment. C.O. recently from April 17 through July 7, 2008. Flemming was dismissed from this action in the Plaintiff's complaint contains a host of claims. Broadly, Court's November 19, 2008 Order, well after the defendant claims that each time she was incarcerated, she 90 day period for substitution had expired. Plaintiff was required to be housed with male inmates, not allowed to sought to reargue Mr. Flemming's dismissal and wear female clothing, not given or given improper dosages of was granted an opportunity to explain her failure female hormones or testosterone blockers, subjected to verbal to meet the ninety day deadline and how she could harassment and physical assault by defendant correction succeed on her claim against Flemming even if the officers, and not protected from other inmates. (Plaintiff's ninety day substitution requirement was excused. Memorandum of Law in Opposition to Defendants' Motion Plaintiff's submission did not provide a persuasive for Summary Judgment (“Opposition”) at 2-3.) She also argument supporting either excusable neglect for claims to have suffered Post-Traumatic Stress Disorder and failing to substitute Mr. Flemming or a conclusion offers this as an explanation for failing to provide dates that plaintiff could prevail at trial against Mr. and details about the incidents she alleges in her deposition Flemming. We also had concerns about the equity testimony. ( Id. ) of permitting plaintiff to proceed against an estate when plaintiff had not taken discovery which

*2 Plaintiff fails to provide specific dates for many of these would have preserved the defendant's testimony. assaults and oftentimes makes accusations against unnamed Consequently, the Court denied plaintiff's motion defendants or officers who were not served in this case. to seek relief from its November 19, 2008 Order in an Order dated December 3, 2008.

Specifically, despite her allegations of assaults and failures to 2 Though other individuals were named in this provide medical care, plaintiff did not identify many of the lawsuit by plaintiff, plaintiff either failed to serve corrections officers and doctors who allegedly committed the or identify them. Since 120 days has long past alleged wrongs. In an effort to assist plaintiff in remedying since the filing of this complaint, all defendants, this glaring deficiency, the Court ordered the city to gather excluding those named in Defendants' Motion photographs of corrections officers and medical personnel for Summary Judgment are dismissed without whose paths plaintiff might have crossed. Thereafter, the City prejudice and claims brought against them are not proceeded to take plaintiff's deposition and presented her with addressed in this opinion. There may, of course, an array of photographs of corrections officers and medical be statutes of limitations bars which would alone staff to assist her in identifying the officers and doctors she preclude such claims. intended to sue. This deposition occurred on August 28, 2006.

Following this lengthy process, which included at least four For the reasons set forth below, defendants' motion is granted. time extensions from the Court, plaintiff identified some of the defendant corrections officers, for whom the city then accepted service. Others, including Defendant Flemming,

Background were served on the basis that they were the only officer with that particular name who worked in a facility where plaintiff

I. Plaintiff's Allegations was housed. Another two depositions occurred on July 10, Plaintiff was incarcerated at Rikers Island fourteen times 2007, November 16, 2007. After plaintiff's depositions were between August 17, 2001, and July 7, 2008. 3 concluded, plaintiff did not depose any defendants, despite numerous extensions of the discovery period. In total, this process lasted approximately one and a half years. Thus, the pretrial record is limited to plaintiff's complaint, her

Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

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deposition, and the document discovery, including some of to prison conditions under section 1983 of this title, or any plaintiff's medical records. other Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative remedies On March 21, 2008, defendants moved for summary as are available are exhausted.” judgment.

To satisfy the PLRA in this jurisdiction, an inmate must exhaust all steps of the New York City Department of Corrections' (“DOC”) well-established five-

Discussion step administrative Inmate Grievance Resolution Program (“IGRP”) prior to filing his or her complaint. At Rikers, this

I. Legal Standard process requires an aggrieved inmate to (1) file a complaint Summary judgment should be granted “if the pleadings, with the Inmate Grievance Review Committee (“IGRC”), depositions, answers to interrogatories, and admissions on (2) request a formal hearing before the IGRC, (3) appeal to file, together with the affidavits, if any, show that there is no the facility warden, (4) appeal to the DOC Central Officer genuine issue as to any material fact and that the moving party Review Committee (“CORC”), and (5) appeal to the Board of is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Correction (“BOC”). See 7 NYCRR § 701. “Summary judgment is proper if, viewing all the facts of the record in a light most favorable to the non-moving party,

The inmate must file his or her complaint within twenty- no genuine issue of material fact remains for adjudication.” one days of the alleged grievance. See 7 NYCRR § 701.5(a) Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) (citing (1) (“An inmate must submit a complaint to the clerk within Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 twenty-one (21) calendar days of an alleged occurrence S.Ct. 2505, 91 L.Ed.2d 202 (1986). on an Inmate Grievance Complaint Form (Form # 2131). If this form is not readily available, a complaint may be

The movant has the burden of demonstrating that no genuine submitted on plain paper.”) Courts have held that complaints issue of material fact exists. Adams v. Department of Juvenile submitted after the appropriate date are time-barred. Wright Justice of the city of New York, 143 F.3d 61, 65 (2d Cir.1998). v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir.1997) (“It would be Such disputes exist “if the evidence is such that a reasonable contrary to Congress's intent in enacting the PLRA to allow jury could return a verdict for the non-moving party.” Lazard inmates to bypass the exhaustion requirement by declining Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, to file administrative complaints and then claiming that 1535 (2d Cir.1997) (quoting Anderson, 477 U.S. at 248). administrative remedies are time-barred and thus not then If the movant meets this burden, the non-moving party available.”). must “adduce ‘significant probative supporting evidence’ demonstrating that a factual dispute exists.” Yearwood v.

Here, plaintiff never spent more than fourteen days in prison LoPiccolo, No. 95 Civ. 2544(DC), 1998 WL 474073 *3 during the five times relevant to this complaint. Once she left (S.D.N.Y. Aug.10, 1998) ( citing Dzaba v. Haythe & Curley, prison, plaintiff was not required to exhaust her administrative No. 84 Civ. 1767(JFK), 1996 WL 31156 *2 (S.D.N.Y. Jan.26, remedies under the PLRA because she was not a prisoner 1996) (quoting Anderson, 477 U.S. at 249). Additionally, under the language of the Act. Greig v. Goord, 169 F.3d “a party may not create an issue of fact by submitting an 165 (2d Cir.1999) (holding that litigants who file prison affidavit in opposition to a summary judgment motion that, condition actions after release from confinement are no longer by omission or addition, contradicts the affiant's previous prisoners for purposes of 42 U.S.C. § 1997e(a) and thus do deposition testimony.” Hayes v. New York City Department of not need to satisfy its exhaustion requirements). See also Corrections, 84 F.3d 614, 619 (2d Cir.1996). Mabry v. Freeman, 489 F.Supp.2d 782, 784 (E.D.Mich.2007) (holding that “the PLRA's exhaustion requirement [does not]

II. Analysis appl[y] to a former prisoner whose claim arose while he was incarcerated”). A. Failure to Exhaust Administrative Remedies *3 Defendants initial position is that plaintiff failed to Defendants rely on Berry v. Kerik, 366 F.3d 85 (2d exhaust her administrative remedies as required by the Prison Cir.2003), for the proposition that plaintiff was required to Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), file grievances while at Rikers and that plaintiff's failure to which provides that “[n]o action shall be brought with respect Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

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file grievances warrants the case's dismissal with prejudice. force. The Eighth Amendment, applied to the States through However, the Berry case is inapposite for two fundamental the Fourteenth Amendment, prohibits the infliction of cruel reasons. First, unlike the plaintiff here, Berry was in jail at and unusual punishment. Sims v. Artuz, 230 F.3d 14, 20 the time he filed his complaint. Second, plaintiff was never (2d Cir.2000). 4 “The core judicial inquiry” for claims of in jail for a period greater than the length of time that an

excessive force is “whether force was applied in a good-faith inmate has to file a grievance, i.e. for twenty-one days after effort to maintain or restore discipline, or maliciously and any of the alleged incidents. Often, plaintiff was incarcerated sadistically to cause harm.” Jean-Laurent v. Wilkinson, 540 for just a few days and never more than fourteen. In contrast, F.Supp.2d 501, 508 (quoting Hudson v. McMillian, 503 U.S. Berry remained in jail for more than twenty-one days after 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). There is an the relevant incidents alleged in his case and oftentimes objective and subjective component to this inquiry. Id. The for months afterward. Therefore, Berry could have filed his objective component is met if it is “shown that the deprivation grievances while in jail within twenty-one days. alleged is objectively sufficiently serious or harmful enough.” Jean-Laurent, 540 F.Supp.2d at 509 (citing United States v.

*4 Thus, we hold that plaintiff did not need to exhaust Walsh, 194 F.3d 37, 50 (2d Cir.1999)). “[T]he victim does not her administrative remedies under the grievance procedure [have to] suffer serious or significant injury provided that the because (1) she was released from jail before the 21-day time amount of force used is more than de minimis, or involves limit had elapsed and (2) once she was released from jail, she force that is repugnant to the conscience of mankind.” Id. was not a “prisoner” subject to the PLRA. Summary judgment The subjective component requires that a defendant has a on the issue of exhaustion is therefore denied. “sufficiently culpable state of mind ... shown by actions characterized by wantonness.” Walsh, 194 F.3d at 49 (citing Hudson, 503 U.S. at 20). However, “[n]ot every push or

B. Vagueness shove, even if it may later seem unnecessary in the peace of a Defendants argue that plaintiff's claims of excessive force and judge's chambers, violates a prisoner's constitutional rights.” deliberate indifference to her medical needs are vague since Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973). plaintiff failed to provide sufficient evidence or testimony specifying the names of defendants involved in the alleged

4 The same standard of law applies to excessive force conduct, dates and times of the events, and factual details. claims brought under the Fourteenth Amendment Whatever might have been the merits of this argument

by pre-trial detainees and under the Eighth at the initial pleading stage, the vagueness issues-or the Amendment by sentenced prisoners. United States lack thereof-in the original complaint are subsumed by the v. Walsh, 194 F.3d 37, 48 (2d Cir.1999). more rigorous standard of summary judgment. The degree of specificity of plaintiff's complaint will be one factor we consider as we address the sufficiency of her claim to a. Capt. Kevin Buck withstand defendant's summary judgment motion. *5 Plaintiff does not allege, in her Complaint or her

Opposition, excessive force or deliberate indifference to plaintiff's medical need or safety by defendant Buck. In fact,

C. Plaintiff's Substantive Claims plaintiff does not allege anything at all against defendant Plaintiff does not specify in her pleading or otherwise Buck. One short reference to defendant Buck was found in precisely which claims she is bringing against which named Plaintiff's November 16, 2007 Deposition: defendants. Thus, we have searched plaintiff's complaint and deposition to extract the allegations against each defendant. We have found it helpful to group plaintiff's claims according

Physical, there is the time in the clinic to the occupation of defendants. We also set out the relevant where I was instructed after Captain legal standard before addressing the claims defendant by Buck ordered me to go to the clinic defendant. because I was having chest pains and I needed my hormones as well. That's the time where I got-oh, shit, excuse

i. Claims against Officer Defendants me-well, one of the photographs I just The bulk of the claims alleged against the correctional remembered where I saw one of the officers named in this action involve claims of excessive Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

women from and she was in the clinic (Pl. Nov. 16. Dep. at 31-32.) She additionally makes a claim that day. that a CO. John or Johnson was “verbally abusive.” (Pl. Aug. 28, 2006 Dep. at 11.) We will assume that these references are to the same person for the purposes of this summary judgment

(Pl. Nov. 16, 2007 Dep. at 42.) Nothing here provides any motion. No dates were given for either incident. evidence that Capt. Buck violated any of plaintiff's federal or constitutional rights. Conseguently, we grant summary

As plaintiff acknowledges that C.O. John never physically judgment in favor of defendant Buck on all grounds. touched her, there is no basis, as a matter of law, for plaintiff to maintain an excessive force claim against her. However, some portions of plaintiff's deposition could be construed to

b. CO. Theresa John suggest the possibility that defendant John was deliberately Plaintiff does not allege, in her Complaint or her Opposition, indifferent to alleged excessive force by the male corrections any specific excessive force or deliberate indifference by officers. This claim fails for two reasons. First, the facts Theresa John. She in fact does not make any specific alleged by plaintiff above do not make out a cognizable allegations against C.O. John. excessive force claim. Second, assuming, arguendo, that the unidentified male corrections officer's “nudge” and “push”

In her deposition, plaintiff states: was excessive force, defendant John cannot be held liable for Q: Do you know that person's name? the unidentified officer's actions. A: I do, CO. John-do you realize you have her name. *6 First, plaintiff's recounting does not allege facts to sustain Anyway, I could tell you she was the steady A officer a conclusion that the male officers used force “maliciously in C-73 gay housing. Horrible to transgender inmates, and sadistically to cause harm,” rather than “in a good-faith absolutely positively horrible. She infracted an ex- effort to maintain or restore discipline.” Hudson v. McMillian, boyfriend of mine for touching me on the shoulder when 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Further, we were in Rikers Island. Threatened inmates, she would as plaintiff alleges no injuries resulting from the unidentified call other C.O.'s to harm them. Just really the creme of the male officer's alleged force, any harm is simply not serious creme of the batch. She is really bad. enough to reach a constitutional dimension. See Roman v. Howarth, 998 F.2d 101, 105 (2d Cir.1993); see also Boddie v.

Q: Did she ever physically touch you? Schnieder, 105 F.3d 857, 862 (2d Cir.1997). A: No she did not. Second, while as a general rule, a law enforcement official Q: Did she ever witness anyone physically touch you? can be held liable for failing to intervene in a situation where excessive force is being used, the absence of excessive force

A: Yes? and the circumstances as recited by plaintiff preclude such a finding here. Jean-Laurent v. Wilkinson, 540 F.Supp.2d

Q: Who did she witness physically touch you? 501, 512 (citing O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d A: There was a search that occurred while on her shift Cir.1988)). “Liability may only attach when (1) the officer had and I was in the middle of a confrontation with one of the a realistic opportunity to prevent the harm; (2) a reasonable officers and she wasn't one because, you know, they come person in the officer's position would know that the victim's with a team of them. She wasn't in their team, she is a constitutional rights were being violated; and (3) the officer steady officer, but when the male officer was in front of does not take reasonable steps to intervene.” Id. (citations me, he nudged my head and pushed me in the cell. She was omitted). Here, defendant John would not have had a realistic standing right there, that's when they closed the cell and opportunity to prevent the unidentified male officer's “nudge” the search was over. I had indicated to her that I wanted to or “push” of plaintiff. The event, although vague, described is speak to a captain. She has an accent and she replied just brief and does not approach the sort of repetitive beating that real nasty, “you are not seeing an F'in captain, I run this” could give rise to an opportunity for defendant to intervene. and blah blah blah.

Consequently, there are no facts upon which a reasonable jury could find in favor of plaintiff for any of the claims she brings

Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

against defendant John, and, accordingly, summary judgment

Q: And can you tell me if it was during the period relevant is granted in favor of C.O. John. in the complaint that is December of or rather August of 2001 through June of 2005?

c. Captain Robin Walker A: Yes Plaintiff's complaint does not allege any excessive force or deliberate indifference claims against defendant Walker.

Q: And can you tell me how he touched you? Contradictory references about a Captain Walker are made in Plaintiff's depositions at various times. Defendant identified

A: There were more than one incidents [sic]. He smacked someone in a photo lineup marked D-34 as Captain Walker. me on the back of my head, he pulled my hair, there is more (Pl. Nov. 16, 2006 Dep. at 24). Among the defendants than one incident. I would not like to go over the details if sued is Captain Robin Walker. Plaintiff identified photo possible. D-34 as Captain Walker during her deposition. However, Q: We need to go over the details. plaintiff had nothing negative to say about the Captain Walker she identified. Indeed, Plaintiff's description of this

A: Well, I have known CO. Johnson since my first trip individual was entirely positive. Plaintiff notes that this Rikers Island. 5 He studied the school area and escorted the Captain Walker never touched her and describes this Captain prisoners that were in gay housing. The first time I-well, Walker as “exceptionally professional.” ( Id. at 24-25). Later, the first time he ever put his hands on me was on my way she describes a Captain Walker who allegedly ignored back from school at 3:00 in the afternoon. I don't recall the plaintiff while her male cell-mates threw shoes at her

date of the incident or the month, but I remember there was and “jumped” her. ( Id. at 43-45.) Plaintiff explains this a group of us ... someone made a comment about another contradictory evidence by stating that “[i]t would appear male C.O. being attractive and he started from the back of that one of the ACCs [Assistant Corporation Counsels] who the line and hit everybody on the back of the head with an handled this case identified the wrong Capt. Walker.” (Pl.

open hand. Resp. to Defs.' Local Rule 56.1 Statement ¶ 14.) However, despite being provide the opportunity to do so, at no time does

5 plaintiff clarify which Capt. Walker, if Robin Walker is in fact Defendant's first trip to Rikers Island was outside either of them, she alleges wrongdoing against. Furthermore, of the time period relevant for this proceeding. plaintiff fails to make clear when this incident with Captain Walker occurred. Plaintiff does state that the Captain Walker

Q: Did you suffer physical injury from that incident? identified by the ACC's is the “wrong Capt. Walker.” Thus, plaintiff acknowledges that Robin Walker is not the Walker A: Pain to the back of my head. alleged to have witnessed plaintiff's alleged injuries. On the

Q: Any other physical injury? facts present in the record, even taken in a light most favorable to plaintiff, no reasonable jury could hold Robin Walker liable

A: No. for any violation of plaintiff's federal or constitutional rights. Q: And then the next incident you can recall? ... d. George Johnson A: [ ... ] me and this officer ended up getting into an *7 Plaintiff's allegations against defendant Johnson are as argument after the principal placed me in a classroom follows: with derelict inmates. Q: D11, do you recognize that person? They jumped me and I brought this to the officer's attention when they did jump me, I brought up the fight-

A: Yes, Johnson. physically he slapped me to the ground, he slammed me on the back of the head. After this incident they were

Q: and can you tell me whether that individual ever touched told to bring me to medical for a post injury report and you physically? on the way to medical, as I was explaining to this officer A: Yes. that they just failed to protect me and they had placed me in an unsafe situation, he proceed to punch me in the Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

back of the head, to pull my hair. He struck me more possibly caused an abrasion to the inside of her mouth, fails physically, but the actual specifics I can't recall right now for the same reason. and the injuries I sustained were a lot of pains [sic] in the back of the head and whiplash to the neck. Plaintiff's description of the second incident initially appears

more substantive, but on closer examination it still fails Q: any other injuries you can recall at that second for lack of evidence. First, it is unclear which allegations incident you described? in particular are against Officer Johnson, as it seems that two different officers were involved. Assuming, arguendo,

A: No. that the officer who “slapped” defendant to the ground and “slammed” her head is the same officer that punched her

Q: Is there a third incident involving this particular and pulled her hair, there is still not enough evidence of officer? physical injury to maintain an excessive force claim. Plaintiff A: Yes.... I was in the middle of a confrontation, a verbal does not point to any medical evidence attributing any of dispute with an officer and he heard it and he came over

these injuries related to the officers, despite stating that she to inject his two cents and I got smart with him and he was further assaulted on her way to medical, apparently as smacked me.... I had pain to my mouth and I believe a result of an attack by other inmates. (Pl. Nov. 16, 2007 possibly an abrasion to the inside of my mouth, you Dep. at 11.) Nor does plaintiff provide a timeframe for any know, mostly the guards are smart enough not to leave

of these incidents. Further, plaintiff never made any effort marks on inmates. to corroborate any of these assaults by deposing defendant Johnson (or defendant Patterson, who plaintiff alleges in her (Pl. Nov. 16, 2007 Dep. at 9-13.) Plaintiff alleges Declaration witnessed these incidents). (Lopez Decl. at ¶ 20.) three physical incidents with Officer Johnson. Each of The absence of allegations and evidence of injury, as we have these alleged incidents involving Officer Johnson will be noted above, precludes a plaintiff from prevailing on such a examined in turn. claim. The first incident described appears to be outside the limitations period as plaintiff stated that she had known

For example, in the Vatensever case, the plaintiff alleged Officer Johnson since her first time in Riker's, a date which that a corrections officer slammed his head into a wall. clearly precedes the limitations period. However, given the Vatansever v. New York City, No. 01 Civ. 11621, 2005 possible ambiguity in the questioning, we will assume, for WL 2396904 *1 (S.D.N.Y. Sept.28, 2005) (WHP) (granting the purposes of this summary judgment motion, that all the summary judgment when plaintiff could provide no medical incidents happened within the relevant time period. evidence of injuries). Though not as serious as the assault alleged by the plaintiff in the Vatensever case, we would

*8 Regardless, the first incident as described fails, as a also expect to find evidence of physical injury if an assault matter of law, to state facts that could support a claim on plaintiff, involving being slapped to the ground and of excessive force. Plaintiff alleges that defendant Johnson slammed on the back of the head, as well as having her struck her, and a number of other inmates, in the back of the hair pulled and being punched in the back of the head, head. The only injury plaintiff claims is “pain in the back occurred, particularly if all of these assaults happened as of my head.” (Pl. Nov. 16, 2007 Dep. at 10.) It is settled plaintiff traveled to a medical evaluation. Id. at *3. However, in this district that an open-handed slap on the back of the plaintiff's “voluminous” medical records are devoid of any head, with no medical evidence and no other evidentiary support for these alleged incidents. Id.; see also United support of injury, does not rise to the level of a constitutional States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d violation. See Santiago v. CO. Campisi, 91 F.Supp.2d 665, Cir.1982) (“The litigant opposing summary judgment ... may 674 (S.D.N.Y.2000) (holding that an open-hand slap does not rest upon mere conclusory allegations or denials as a not rise to the level of excessive force); Boddie, 105 F.3d at vehicle for obtaining a trial. Rather, he must bring to the 861; Johnson v. Renda, No 96 Civ. 8613, 1997 WL 576035 district court's attention some affirmative indication that his at *1 (S.D.N.Y. Sep.15, 1997) (holding that a single slap to version of relevant events is not fanciful.”) (internal quotation plaintiff's face does not amount to a constitutional violation). and citation omitted). Consequently, summary judgment is Not “every malevolent touch by a prison guard gives rise to granted in favor of defendant Johnson. a federal cause of action.” Hudson, 403 U.S. at 9. Plaintiff's third allegation, that defendant Johnson smacked her and Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

Consequently, the issue presented is whether the incident e. Captain Ellen Patterson as originally described in plaintiff's deposition is sufficient *9 Plaintiff makes two allegations against Captain Ellen to state a claim for excessive force. We assume, arguendo, Patterson. First, she claims that Captain Patterson assaulted that there was some contact between Patterson's keys and her by hitting her in the face with keys; and second, she plaintiff's face. claims that defendant Patterson witnessed her being attacked by defendant Johnson and failed to intervene.

However, in the absence of any evidence of injury and without any supporting medical records, the incident with the

The first incident is described as follows: keys does rise to the level of a constitutional violation. See Santiago, 91 F.Supp.2d at 674; Yearwood, 1998 WL 47 4073

A: [ ... ] It's C-74 in the school area in the morning time. at *7; see also Roman, 998 F.2d at 105; Boddie, 105 F.3d at Captain Paterson and the principal both struck me with 862. keys in the facial area while I was sitting in orientation class and that left marks on my face....

Plaintiff also raises for the first time in her opposition declaration that defendant Patterson witnessed the assault,

Q: So when you say someone hit you with keys in your described above, by defendant Johnson. Lopez Decl. at SI face? 20. Curiously, there is no mention of defendant Patterson's A: I was sitting there, they both had keys, Captain Patterson involvement in the Johnson incident in plaintiff's deposition and Principal Jefferson both had keys. Jefferson's were testimony, either as she spoke about Johnson or about longer, Patterson's were on like a ring around her belt and Patterson. As noted supra, parties cannot create new factual I was sitting at my desk and they are like-first Captain disputes in response to a motion for summary judgment. Patterson and I had a problem the day before, we had

Hayes, 84 F.3d at 619 (2d Cir.1996). Consequently, this claim gotten into an argument and I wanted to complain about against defendant Patterson is also dismissed and summary something. judgment is granted in favor of defendant Patterson. I don't recall what she said to me, but she slammed keys on my face, not slammed, they was [sic] provoking me to get

f. Delores Jefferson into it with her. She nudged me and hit me with the keys *10 As defendant Jefferson's involvement in the alleged and then Jefferson came out. She was actually more open incident involving plaintiff's contact with defendant's keys about assaulting me than Patterson. They were both-again, is legally indistinguishable from defendant Patterson's I don't recall what they were saying, I was much younger,

involvement, for the reasons stated above, summary judgment but they swung the keys and it hit me in the face. is granted in favor of defendant Jefferson. Jefferson made it seem more like an accident, “oh, I'm sorry” and that's where she sent me-ordered me into a g. Plaintiff's claim for emotional distress certain classroom, even though I excelled in the class.

As plaintiff has not shown any issues of material fact sufficient to survive summary judgment on her excessive

(Pl. Nov. 16, 2007 Dep. at 40-41.) In their moving papers force claims, her claims for emotional injury are dismissed. 42 on their motion for summary judgment, defendants argue U.S.C. § 1997e(e) (“No Federal civil action may be brought that plaintiff's claims against Captain Patterson were vague by a prisoner confined in a jail, prison, or other correctional and that the alleged injury (“left marks on my face”) was facility, for mental or emotional injury suffered while in insufficient. Apparently recognizing the force of defendant's custody without a prior showing of physical injury.”); Cox v. position, plaintiff countered with a declaration asserting that Malone, 56 Fed. Appx. 43, (2d Cir.2003) (“Cox had failed she also received “a bump on my head” from the incident. to show malicious intent on the part of Simms or anything (Lopez Decl. at ¶ 17.) As noted above, factual issues created more that de minimis physical injury in connection with his solely by an affidavit crafted for the purposes of opposing Eighth Amendment claim, as required by the Prison Litigation a summary judgment motion do not raise issues of material Reform Act, 42 U.S.c. § 1997e(e)”). fact. Neidich v. Estate of Neidich, 222 F.Supp.2d 357, 368

(S.D.N.Y.2002) (CM).

ii. Claims against Drs. Kaw Aung and Jane San Jose Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

Plaintiff endeavors to assert claims of deliberate indifference eighteenth birthday. (See Pl. July 10, 2007 Dep. at 38-39.) to plaintiff's medical needs in violation of the Eighth These include the March 2004 and April 2004 incarcerations. Amendment to the Constitution against Drs. Aung and San Jose. Moreover, the medical records submitted with defendant's

summary judgment motion contain numerous references to The two-prong test for deliberate indifference to medical plaintiff receiving her medication and/or treatment. Bates need is well established. See, e.g., Cuoco v. Moritsugu, 222 numbered document 301 provides evidence that plaintiff F.3d 99, 106 (2d Cir.2000). First, a plaintiff must show that was given “Conjugated Estrogens” on December 11-12, she has a “serious medical condition,” and second, she must 2002. ( See also Bates 434-35, 446 (indicating that plaintiff show that the medical condition was met with “deliberate was given the hormone Premarin during her December indifference.” Id. As the Second Circuit did in Cuoco, we 2002 incarceration)). The plaintiff also refused psychiatric assume, for the purposes of this summary judgment motion, treatment from a social worker during this visit, since the that transexualism or Gender Identity Disorder (GID) is a social worker was not a “psychotherapist.” (Bates 444-45, serious medical condition that satisfies the first element of this 449 .) Plaintiff also was given hormone treatment in April analysis. Id. 2004, (Bates 00356-64) and June 2005. (Bates 305, 475.) To establish deliberate indifference, “a plaintiff must show Thus, the only period of incarceration for which plaintiff ‘something more than mere negligence.’ “ Id. at 106-107 could claim a lack of hormonal treatment is that of September (quoting Weyant v. Okst, 101 F.3d 845, 856 (quoting Farmer 2004. While defendant points to Bates 261 as showing v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d evidence of no treatment, this document includes the words 811 (1994))). However, “proof of intent is not required, for “Shots for breast” on its face. (Bates 261.) The entry the deliberate-indifference standard ‘is satisfied by something would appear to indicate hormonal treatment and plaintiff less than actions or omissions for the very purpose of has provided no medical evidence to the contrary. Plaintiff causing harm or with knowledge that harm will result.’ “ never deposed anyone and defendant provides no evidence of Id. at 106-107. “An official acts with the requisite deliberate whether or not this refers to treatment. Nor has plaintiff linked indifference when that official ‘knows of and disregards an this document to either doctor named as a defendant. excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn To the extent that plaintiff's claim is not read as asserting that a substantial risk of serious harm exists, and he must also a total denial of hormonal treatment but as a claim that the draw the inference.’ “ Chance v. Amrstrong, 143 F.3d 698, levels of hormones prescribed to plaintiff while at Rikers 702 (2d Cir.1998) (quoting Farmer, 511 U.S. at 837). Even were insufficient to treat her condition, we note that plaintiff medical malpractice is not deliberate indifference, unless it has neither submitted nor adduced any medical testimony to rises to the level of recklessness. Id. at 703. support such a claim. Such a claim cannot proceed without

medical support. Nor has plaintiff adduced any testimony or The medical indifference claim is centered on plaintiff's claim submitted any evidence that the doctors at Rikers prescribed that she was denied hormone therapy during some of her these doses with the requisite deliberate indifference or incarcerations at Rikers. To place the claim in a temporal claimed that defendant doctors knew of and disregarded “an perspective, it should be noted that plaintiff was incarcerated excessive risk to inmate safety,” or that prescribing these for four days in December 2002, six days in March 2004, six drugs in lower doses posed a risk of substantial harm to days in April 2004, fourteen days in September 2004, and plaintiff. Chance, 143 F.3d at 702 (2d Cir.1998); see also thirteen days in June 2005. Consequently, any possible denial Murray v. U.S. Bureau of Prisons, 106 F.3d 401 (Table), 1997 of hormones could have been at most for a period of no more WL 34677 at *3 (6th Cir.1997) (“However, where, as here, the than two weeks. prisoner is receiving treatment, the dosage levels of which are

based on the considered professional judgment of a physician, *11 To further contextualize this claim, it should be noted we are reluctant to second-guess that judgment.”) at the onset that plaintiff acknowledges that she was given hormones “most of the time.” (Pl. July 10, 2007 Dep. at Further, even assuming that plaintiff had supported her claims 38.) Plaintiff further testified that she was provided hormones concerning hormone therapy with evidence, it is worth noting during her ARDC incarcerations that occurred prior to her that plaintiff does not necessarily have the right to require Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

the prison to duplicate the private treatment she may have 880, 885 (2d Cir.1991). A defendant in a supervisory position received, and that she was offered psychological therapy may be found to be personally involved in several ways: which she declined. (Bates 444-45, 449.); see Murray, 1997 WL 34677 at *3-4. (“It is important to emphasize, however, that [the plaintiff] does not have a right to any particular

The defendant may have directly type of treatment, such as estrogen therapy.... [G]iven the participated in the infraction.... A wide variety of options available for the treatment of gender supervisory official, after learning of dysphoria and the highly controversial nature of some of the violation through a report or those options, a federal court should defer to the informed appeal, may have failed to remedy judgment of prison officials as to the appropriate form of the wrong.... A supervisory official medical treatment.”). While a total denial of hormone therapy may be liable because he or she to a prisoner for an extended period of time might rise to the created a policy or custom under which level of deliberate indifference, nothing in the record of this unconstitutional practices occurred, or case supports an allegation. allowed such a policy or custom to continue.... Lastly, a supervisory

*12 In sum, the record of the plaintiff's medical treatment official may be personally liable if during her numerous, short incarcerations simply does not he or she was grossly negligent in demonstrate any denial of medical care due to deliberate managing subordinates who caused indifference from doctors or that the treatment provided the unlawful condition or event.... posed a substantial risk of serious harm. To the contrary, the documentary record provides ample evidence that plaintiff was provided with extensive treatment.

Wright v. Smith, 21 F.3d 496, 502 (2d Cir.1994) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).

Furthermore, even if plaintiff had sustained her broad claims, Additionally, supervisory liability could attach when an she has failed to connect those broad claims to the two doctors official shows “gross negligence” or “deliberate indifference” named as defendants. For example, plaintiff points to Bates to the “constitutional rights of inmates by failing to act numbered document 472 to establish that she was given less on information indicating that unconstitutional practices are than the dosage recommended by her attending physician. taking place.” Id . (citing McCann v. Coughlin, 698 F.2d 112, However, this document is signed by Marshall Tse, MD, not 125 (2d Cir.1983)). a named defendant. Personal involvement of defendants is required to assess damages under § 1983. Gaston v. Coughlin,

Plaintiff claims that defendants violated the Fourteenth 249 F.3d 156, 165 (2d Cir.2001). Consequently, summary Amendment by: (1) refusing to allow her to wear female judgment is granted in favor of both defendant Aung and San clothing or undergarments, (2) housing plaintiff with male Jose dismissing plaintiff's claims of medical indifference. inmates and denying her gay housing, and (3) placing her, without cause, in a classroom with inmates with disciplinary problems. 6 Plaintiff has not established which policies or

iii. Claims against Commissioner Martin Horn, Warden Patrick Walsh, and Warden Peter Curcio

customs, if any, the Horn defendants have violated. Even if Plaintiff does not allege any physical contact by defendants we assume that there are policies in place that were being Commissioner Horn, Warden Walsh, or Warden Curcio enforced here, plaintiff does not articulate any actionable (“Horn defendants”). Rather, plaintiff alleges that the violations of those policies or that those policies lack a Horn defendants were involved in “formulating, ratifying, rational basis, which both parties concede is the applicable adopting, and/or implementing the policies and procedures standard of review. Thus, each of these claims fails to state that resulted in the violation of her constitutional a claim under the Fourteenth Amendment and conseguently rights.” (Opposition at 23.) summary judgment is granted in favor of the Horn defendants. “[P]ersonal involvement of defendants in alleged 6 Plaintiff also alleges “bias-based assault” but does constitutional deprivations is a prerequisite to an award of not point to any policy or give any evidence of a damages under § 1983.” Moffit v. Town of Brookfield, 950 F.2d Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

custom of such assaults that would subject the Horn defendants to liability under § 1983.

b. Housing Plaintiff with Male Inmates As noted by the Supreme Court, “the practice of federal a. Refusal to allow plaintiff to wear female clothing prison authorities is to incarcerate preoperative transsexuals *13 As plaintiff points to no court decision that has found with prisoners of like biological sex....” Farmer, 511 U.S. at transgender individuals a protected class for the purposes of 829. While the Supreme Court did not take this opportunity Fourteenth Amendment analysis, and the Court has found to comment on the constitutionality of this practice, and we none, her claims that she was subjected to discrimination decline to do so here, it clearly did not state any objection to it based on her status as transgender are subject to rational on constitutional grounds. We note that a number of problems basis review. 7 Though plaintiff does not point to any clothing could arise by altering this practice and housing biologically policy utilized at Rikers, we assume for the purposes of this male inmates who identify as transgender with the female opinion that some policy exists. population, not the least of which would be concerns for the safety of female inmates, and consequently hold this practice

7 The Ninth Circuit in Gomez v. Maass, 918 F.2d or policy as rational. Further, even if we held this practice 181 (9th Cir.1990), held that a transsexual is not unconstitutional, the Horn defendants would be qualifiedly a member of a suspect or quasi-suspect class immune for the reasons stated above. entitled to greater than rational basis scrutiny under t he equal protection component of the due There is another issue present that fits more squarely in process clause. The Ninth Circuit in Holloway the Supreme Court's decision in Farmer. Generally, plaintiff v. Arthur Andersen & Co., 566 F.2d 659, 664 contends that defendant's denial of plaintiff's gay housing (9th Cir.1977), explained that transsexualism is not amounted to deliberate indifference to plaintiff's safety. a suspect class when plaintiff claimed “to have However, plaintiff cannot maintain this claim. Defendants [been] treated discriminatorily [not] because she provide evidence that plaintiff was placed in gay housing is male or female, but rather because she is a or protective custody at each of plaintiff's visits except transsexual who chose to change her sex.” for a period of three days when plaintiff refused to

sign a form indicating she was gay. Plaintiff refutes this Plaintiff also does not point to any authority that suggests that evidence by denying that evidence of her housing placements, a transgender prisoner has the right to choose the clothing which includes prison records kept in the regular course she wears while in prison. In fact, as a general matter, federal of operations marked “protective custody” or “gay/lesbian courts have in fact held the opposite. Murray, 1997 WL housing,” ( See e.g., Bates 244 and 263) supports defendants 34677 at *2 (prisoner officials do not violate the Constitution claims. (Pl. Resp. to Defs.' Local Rule 56.1 Statement at ¶ by providing ill-fitting or aesthetically unpleasing clothing); 44.) Plaintiff does not point the court to any evidence in her Knop v. Johnson, 667 F.Supp. 467, 475 (W.D.Mich.1987), deposition or otherwise that these routine business records of appeal dismissed, 841 F.2d 1126 (6th Cir.1988). Further, her prison stays are inaccurate. several rational bases, ranging from a desire to maintain order in prisons through having uniforms to disallowing plaintiff

*14 Moreover, on the days where plaintiff was placed from signaling female sexuality in a male prison readily in general population, nothing in the record indicates that come to mind. Thus, plaintiff has failed to establish a claim defendant did this with deliberate indifference to plaintiff's arising from any clothing policy alleged under the Fourteenth safety. In Farmer, the Supreme Court writes, “we hold instead amendment. that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of

Further, assuming, arguendo, that some constitutional confinement unless the official knows of and disregards an violation was found, the Horn defendants would certainly excessive risk to inmate health or safety....” Farmer, 511 be qualifiedly immune. In the absence of any case law U.S. at 837. Here, Plaintiff makes no allegations that any upholding a claim that a transgender prisoner has the right prison official deliberately ignored an excessive risk to her to choose what clothing she will wear, the Horn defendants safety by placing her in general population for those three could not have violated any of plaintiff's clearly established days. Consequently, summary judgment is granted in favor of constitutional or federal rights. Harlow v. Fitzgerald, 457 U.S. defendants on plaintiff's claim. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Lopez v. City of New York, Not Reported in F.Supp.2d (2009)

2009 WL 229956

plaintiff's rights under the Constitution or federal law, plaintiff c. Placing Plaintiff in a Disciplinary Classroom cannot sustain a Monell claim against the City of New York. Plaintiff fails to articulate any evidence supporting her Thus, summary judgment is granted in favor of the City. argument that she was placed in a disciplinary classroom in violation of her constitutional rights. She neither articulates any policy or custom which resulted in the placement or

D. Pendant: State and City Law Claims any constitutional principle that was violated. Beyond the As we have granted summary judgment in favor of defendants bald allegation that plaintiff was placed in this classroom on all of plaintiff's federal claims, we decline to exercise without cause, plaintiff fails to adduce any evidence about the supplemental jurisdiction over plaintiff's city and state law process by which she was placed in a disciplinary classroom claims. 28 U.S.C. § 1367(c)(3) (“The district court may or how that process was in violation of her due process rights. decline to exercise supplemental jurisdiction ... [if] the district Consequently, summary judgment is granted for defendants court has dismissed all claims over which it has original on this claim. jurisdiction”). Consequently, those claims are dismissed without prejudice.

iv. Claims against the City of New York “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is Conclusion when execution of a government's policy or custom, whether

For the foregoing reasons, defendants' motion for summary made by its lawmakers or by those whose edicts or acts may judgment is granted and the Clerk of the Court is respectfully fairly be said to represent official policy, inflicts the injury requested to close this case on the Court's docket. that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As discussed above, plaintiff

*15 SO ORDERED. argues that unidentified and unnamed policies or customs concerning transgender inmates violate the Constitution. As

All Citations we have found that these policies do not violate any of Not Reported in F.Supp.2d, 2009 WL 229956 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Ochoa v. DeSimone, Not Reported in F.Supp.2d (2008)

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3. Plaintiff's complaint is DISMISSED.

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Only the Westlaw citation is currently available. The Clerk is directed to enter judgment accordingly and close United States District Court, the file. N.D. New York.

IT IS SO ORDERED.

Kirk OCHOA, Plaintiff, v. Carol DeSIMONE, Inmate Records Coordinator; RANDOLPH F. TREECE, United States Magistrate Judge. D.S.A. Badger; Lt. Santos, Defendants. REPORT-RECOMMENDATION and ORDER Civ. No. 9:06-CV-119 (DNH/RFT). | *1 On January 30, 2006, pro se Plaintiff Kirk Ochoa filed Sept. 30, 2008. this civil rights lawsuit, pursuant to 42 U.S.C. § 1983, alleging that (1) Defendant Carol DeSimone retaliated against him for

Attorneys and Law Firms filing lawsuits and grievances; (2) Defendant Badger violated Kirk Ochoa, Bronx, NY, pro se. his due process rights by denying him a legal assistant and the right to call witnesses during a disciplinary hearing; and Andrew M. Cuomo, Attorney General for the State of New (3) Defendant Santos violated his rights by ruling against him York, Senta B. Suida, Esq., Assistant Attorney General, of in a separate disciplinary hearing. Dkt. No. 1, Compl. at ¶ 7. Counsel, Syracuse, NY, for Defendants. Defendants have filed a Motion for Summary Judgment to which Plaintiff has not responded. Dkt. No. 32, Defs.' Mot. for Summ. J. The original deadline for Plaintiff's response to

DECISION and ORDER the Defendants' Motion was February 25, 2008. See id. After Plaintiff failed to meet that deadline, on April 4, 2008, this DAVID N. HURD, District Judge. Court issued the following Order: *6 Plaintiff, Kirk Ochoa, brought this civil rights action Plaintiff shall file and serve any opposition to Defendants' pursuant to 42 U.S.C. § 1983. By Report-Recommendation Motion for Summary Judgment on or before May 19, 2008; dated September 10, 2008, the Honorable Randolph F. Plaintiff is warned that failure to oppose Defendants' Treece, United States Magistrate Judge, recommended that Motion will result in this Court accepting the facts set the defendants' motion for summary judgment (Dkt. No. forth by Defendants as true. See N.D.N.Y.L.R. 7.1(a)(3) 32) be granted; that plaintiff's retaliation claim be dismissed ( “Any facts set forth in the Statement of Material Facts pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and that the shall be deemed admitted unless specifically controverted plaintiff's complaint be dismissed. Objections to the Report- by the opposing party.” (emphasis in original)). Plaintiff Recommendation have not been filed. is further warned that failure to respond may, if appropriate, result in the granting of Defendants' Motion,

Based upon a careful review of the entire file and the in which [case] there will be no trial. See N.D.N.Y.L.R. recommendations of Magistrate Judge Treece, the Report- 7.1(b)(3) (“Where a properly filed motion is unopposed Recommendation is accepted and adopted in all respects. See and the Court determines that the moving party has met its 28 U.S.C. 636(b)(1). burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any

Accordingly, it is papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be,

ORDERED that unless good cause is shown.”). 1. Defendants' motion for summary judgment (Docket No. Dkt. No. 33, Order dated Apr. 11, 2008 (emphasis in original). 32) is GRANTED; 2. Plaintiff's retaliation claim is DISMISSED; and

Ochoa v. DeSimone, Not Reported in F.Supp.2d (2008)

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the burden to demonstrate through “pleadings, depositions, Because Plaintiff has failed to respond to the Defendants' answers to interrogatories, and admissions on file, together Motion, we will accept the facts set forth by Defendants as with affidavits, if any,” that there is no genuine issue of true. material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “When a party has

I. FACTS

moved for summary judgment on the basis of asserted facts At the time of the events alleged in the Complaint, Plaintiff supported as required by [Federal Rule of Civil Procedure was in the New York State Department of Correctional 56(e) ] and has, in accordance with local court rules, served Services' (DOCS) custody at the Oneida Correctional Facility.

a concise statement of the material facts as to which it Defs.' Mot. for Summ. J., Ex. 3, Statement Pursuant to Rule contends there exist no genuine issues to be tried, those facts 7.1 (hereinafter “Defs.' 7.1 Statement”), at ¶ 3. Plaintiff was will be deemed admitted unless properly controverted by the subsequently released from DOCS custody on September 6, nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 2007. Id. at ¶ 2. The material facts giving rise to Plaintiff's

154 (2d Cir.1992). claims are as follows. To defeat a motion for summary judgment, the non-movant On October 26, 2005, Defendant Carol DeSimone filed a must “set forth specific facts showing that there is a genuine Misbehavior Report (hereinafter “October Report”) against

issue for trial,” and cannot rest on “mere allegations or Plaintiff accusing him of harassment. Id., Ex. B, Misbehavior denials” of the facts submitted by the movant. FED. R. CIV. Rep., dated Oct. 26, 2005. Defendant Deputy Superintendent P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d for Administration John Badger presided as Hearing Officer Cir.2003) (“Conclusory allegations or denials are ordinarily over the ensuing Disciplinary Hearing, which was held on

not sufficient to defeat a motion for summary judgment November 8, 2005. Id., Ex. C, Disciplinary Hr'g Tr., dated when the moving party has set out a documentary case.”); Nov. 8, 2005. At the conclusion of the Hearing, Plaintiff Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d was found guilty and sentenced to thirty (30) days in the Cir.1994). To that end, sworn statements are “more than mere Special Housing Unit (“SHU”) and one month recommended

conclusory allegations subject to disregard ... they are specific loss of good time. Id. at p. 7. Plaintiff appealed Badger's and detailed allegations of fact, made under penalty of perjury, determination and it was reversed on January 13, 2006. Id., and should be treated as evidence in deciding a summary Ex. D, Order Reversing Hr'g Decision, dated Jan. 13, 2006. judgment motion” and the credibility of such statements is

better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 *2 On December 2, 2005, Plaintiff was issued another (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and Misbehavior Report (hereinafter “December Report”) for Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). refusal to obey a direct order. Id., Ex. E, Misbehavior Rep., dated Dec. 2, 2005. Defendant Lieutenant Lance

When considering a motion for summary judgment, the Santos presided over Plaintiff's Disciplinary Hearing at the court must resolve all ambiguities and draw all reasonable conclusion of which Plaintiff was found guilty and sentenced inferences in favor of the non-movant. Nora Beverages, to thirty (30) days keeplock. Id., Exs. F, Disciplinary Hr'g Tr., Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d dated Dec. 7, 2005 & G, Inmate Disciplinary Hist. Plaintiff

Cir.1998). “[T]he trial court's task at the summary judgment did not appeal that decision. Id. at ¶ 11. motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.”

II. DISCUSSION

Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is

A. Summary Judgment Standard proceeding pro se, the court must “read [his or her] supporting papers liberally, and ... interpret them to raise the strongest

Pursuant to FED. R. CIV. P. 56(c), summary judgment is arguments that they suggest.” Burgos v. Hopkins, 14 F.3d appropriate only where “there is no genuine issue as to 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, any material fact and ... the moving party is entitled to 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, judgment as a matter of law.” The moving party bears Ochoa v. DeSimone, Not Reported in F.Supp.2d (2008)

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unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, However, when a prisoner is subjected to conditions that are 21 (2d Cir.1991). “unexpected,” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct.

2293, 132 L.Ed.2d 418 (1995), and “qualitatively different from the punishment characteristically suffered by a person convicted of crime,” the Due Process Clause itself confers

B. Due Process Claims a liberty interest. Vitek v. Jones, 445 U.S. at 493 (holding an involuntary transfer to a state mental hospital implicated

*3 Plaintiff asserts that Defendant Badger violated his due a liberty interest protected by the Due Process Clause); see process rights by denying him a legal assistant and the right also Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 to call witnesses during a disciplinary hearing related to the L.Ed.2d 178 (1990) (finding the Due Process Clause provides October Report, and that Defendant Santos violated his rights a liberty interest in being protected from the involuntary by ruling against him in a disciplinary hearing related to the administration of psychotropic drugs). December Report. 1 Badger sentenced Plaintiff to thirty (30) days in SHU with a recommended one month loss of good

In the case at bar, Plaintiff's disciplinary confinement in SHU time and Santos sentenced him to thirty (30) days keeplock. and keeplock does not constitute an “unexpected” change Defs.' 7.1 Statement at ¶¶ 6 & 10. in condition, nor did those conditions exceed the sentence imposed upon him. See Dawes v. Dibiase, 1997 WL 376043,

1 The basis for Plaintiff's claim against Defendant at *4 (N.D.N.Y. July 3, 1997) (citing Washington v. Harper Santos is not entirely clear. His Complaint states: & Vitek v. Jones for the proposition that the Due Process “Defendant Lt. Santos Hearing Decision informing Clause will apply by its own force only for deprivations much Plaintiff that these rules apply while not in DOCS more severe than solitary confinement for a year). Therefore, custody is a violation of due process of [law][.] Plaintiff does not have a liberty interest in remaining free from DOCS own rule book clearly states that rules only SHU confinement emanating from the Due Process Clause apply in DOCS custody not out side [sic] custody.” itself. Compl. at ¶ 7. Because Plaintiff's claim is unclear, we liberally construe it as a due process claim.

State statutes and regulations may also confer liberty interests to prisoners. Arce v. Walker, 139 F.3d at 334 (citing Kentucky

In order to state a procedural due process claim pursuant to Dep't of Corr. v. Thompson, 490 U.S. at 460). The Supreme the Fourteenth Amendment, an inmate must first establish Court held in Sandin v. Conner that state created liberty that he enjoys a protected liberty interest. Arce v. Walker, 139 interests shall be limited to those deprivations which subject a F.3d 329, 333 (2d Cir.1998) (citing Kentucky Dep't of Corr. v. prisoner to “atypical and significant hardship ... in relation to Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d the ordinary incidents of prison life.” Sandin v. Conner, 515 506 (1989)). Such interests are derived from the Fourteenth U.S. at 484. Thus, a prisoner asserting a denial of due process Amendment Due Process Clause itself or from state statute or as a result of segregated confinement or loss of privileges regulations. Id. must (1) make a threshold showing that an atypical and significant hardship was imposed upon him, and (2) establish

The Supreme Court has narrowly circumscribed the scope that the “state has granted its inmates, by regulation or by of liberty interests emanating from the Due Process Clause statute, a protected liberty interest in remaining free from that to protect “no more than the ‘most basic liberty interests in confinement or restraint.” Frazier v. Coughlin, 81 F.3d 313, prisoners.’ ” Id. (quoting Hewitt v. Helms, 459 U.S. 460, 317 (2d Cir.1996). 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Furthermore, “changes in the conditions of confinement having a

*4 While the Second Circuit has cautioned that “there is no substantial adverse impact on the prisoner are not alone bright-line rule regarding the length or type of sanction” that sufficient to invoke the protections of the Due Process Clause meets the Sandin standard, Jenkins v. Haubert, 179 F.3d 19, 28 ‘[a]s long as the conditions or degree of confinement to which (2d Cir.1999), it has made clear that confinement in SHU for a the prisoner is subjected is within the sentence imposed upon period of one year constitutes atypical and significant restraint him.’ ” Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 on inmates, deserving due process protections, Sims v. Artuz, L.Ed.2d 552 (1980) (quoting Montanye v. Haymes, 427 U.S. 230 F.3d 14, 23 (2d Cir.2000) (stating that confinement in 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976)). Ochoa v. DeSimone, Not Reported in F.Supp.2d (2008)

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SHU exceeding 305 days was atypical); Colon v. Howard, that omission, under 28 U.S.C. § 1915(e)(2)(B)(ii), this Court 215 F.3d 227, 231 (2d Cir.2000) (finding 305 days of SHU has the power to review Plaintiff's Complaint for failure to confinement atypical). state a claim at any time. See, e.g., Zimmerman v. Burge, 2008

WL 850677, at *7 (N.D.N.Y. Mar.28, 2008) (noting that “even In this case, neither of Plaintiff's thirty (30) day stints in where a defendant has not requested dismissal based on a SHU and keeplock, without more, 2 constitute an atypical failure of the plaintiff to state a claim upon which relief may

be granted, a district court may, sua sponte, address whether and significant hardship, and therefore Plaintiff has not a pro se prisoner has failed to state a claim[.]”) (citing 28 asserted that he has a liberty interest at stake. See Sealey U.S.C. § 1915(e)(2)(B)(ii)). We find that, even accepting all v. Giltner, 197 F.3d 578, 590 (2d Cir.1999) (101 days in Plaintiff's factual allegations as true, he has not stated a valid normal SHU conditions did not constitute an atypical and claim § 1983 retaliation claim. significant hardship); see also Sandin v. Conner, 515 U.S. at 486; Thompson v. LaClair, 2008 WL 191212, at *3 (N.D.N.Y.

The Second Circuit has stated that courts must approach Jan.22, 2008) (30 days in SHU does not constitute an atypical prisoner retaliation claims “with skepticism and particular and significant hardship). care,” since “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to

2 The Second Circuit has held open the possibility the level of a constitutional violation-can be characterized as a that a period of restricted confinement of less constitutionally proscribed retaliatory act.” Dawes v. Walker, than 101 days could create a liberty interest if 239 F.3d 489, 491 (2d Cir.), overruled on other grounds by the record were to reflect atypical and significant Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, conditions of confinement. See Colon v. Howard, 152 L.Ed.2d 1 (2002) (citing Flaherty v. Coughlin, 713 F.2d 215 F.3d at 232 n. 5. In this case, Plaintiff has 10, 13 (2d Cir.1983) & Franco v. Kelly, 854 F.2d 584, 590 (2d adduced no allegations regarding the conditions of Cir.1988)). his confinement beyond the loss of privileges that normally accompany disciplinary confinement.

In order to prevail on a retaliation claim, a plaintiff bears the Therefore, these claims should be dismissed as a matter of burden to prove, “first, that he engaged in constitutionally law. 3 protected conduct and, second, that the conduct was a

substantial or motivating factor for the adverse actions taken by prison officials.” Bennett v. Goord, 343 F.3d 133, 137 (2d

3 With respect to Plaintiff's due process claim against Cir.2003) (citations omitted). Thus, there must be a “causal Santos, Plaintiff failed to appeal Santos's decision connection between the protected speech and the adverse and therefore that claim should be dismissed for action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) failure to exhaust administrative remedies as well. (citation omitted). See Defs.' 7.1 Statement at ¶ 10; 42 U.S.C. § 1997(e)(a) (“No action shall be brought with

*5 A plaintiff may meet the burden of proving an respect to prison conditions under [section 1983], inappropriate retaliatory motive by presenting circumstantial or any other Federal law, by a prisoner confined in evidence of a retaliatory motive, such as temporal proximity, any jail, prison, or other correctional facility until thus obviating the need for direct evidence. Bennett v. Goord, such administrative remedies as are available are 343 F.3d at 138-39 (holding that plaintiff met his burden exhausted.”) in proving retaliatory motive by presenting circumstantial evidence relating to, inter alia, the temporal proximity of allegedly false misbehavior reports and the subsequent

C. Retaliation Claim reversal of the disciplinary charges on appeal as unfounded). Other factors that can infer an improper or retaliatory

Plaintiff asserts that Defendant DeSimone issued the October motive include the inmate's prior good disciplinary record, Misbehavior Report against him in retaliation for his filing vindication at a hearing on the matter, and statements by “court actions and grievances against [Oneida Correctional

the defendant regarding his motive for disciplining plaintiff. Facility] and its staff.” Compl. at ¶ 5. The Defendants failed to McEachin v. Selsky, 2005 WL 2128851, at *5 (N.D.N.Y. address this claim in their Motion for Summary Judgment. See Dkt. No. 32, Pl.'s Mem. of Law. However, notwithstanding Ochoa v. DeSimone, Not Reported in F.Supp.2d (2008)

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of grievances and lawsuits and DeSimone's filing of the Aug.30, 2005) (citing Colon v. Coughlin, 58 F.3d 865, 872-73 Misbehavior Report. “[A] complaint which alleges retaliation (2d Cir.1995)). in wholly conclusory terms may safely be dismissed on the pleadings alone.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d

Moreover, “in the prison context [the Second Circuit has] Cir.1983). previously defined ‘adverse action’ objectively, as retaliatory conduct ‘that would deter a similarly situated individual of

Therefore, it is recommended that this claim be dismissed. ordinary firmness from exercising ... constitutional rights.’ ” Gill v. Pidlypchak, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003) (emphasis in original). This objective test will apply even though a particular plaintiff was III. CONCLUSION not himself deterred. Id. If the plaintiff can carry that burden,

For the reasons stated herein, it is hereby the defendants will still be entitled to summary judgment if they can show, by a preponderance of the evidence, that

RECOMMENDED, that Defendants' Motion for Summary they would have taken the same action in the absence of the Judgment (Dkt. No. 32) be granted; and it is further prisoner's First Amendment activity. Davidson v. Chestnut, 193 F.3d 144, 148-49 (2d Cir.1999); see Hynes v. Squillace,

RECOMMENDED, that Plaintiff's retaliation claim be 143 F.3d 653, 657 (2d Cir.1998); Lowrance v. Achtyl, 20 F.3d dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and it 529, 535 (2d Cir.1994). is further In asserting his retaliation claim, Plaintiff generally states that RECOMMENDED; that in light of the above he filed grievances and lawsuits which formed the basis for recommendations, Plaintiff's Complaint (Dkt. No. 1) be Defendant DeSimone's retaliatory Misbehavior Report. The dismissed; and it is further Supreme Court has noted that the right to petition government for redress of grievances is “among the most precious of

ORDERED, that the Clerk of the Court serve a copy of this the liberties safeguarded by the Bill of Rights.” See United Report-Recommendation and Order upon the parties to this Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass'n, action. 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). The Second Circuit has held that within the prison context,

Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten “inmates must be ‘permit[ted] free and uninhibited access ... (10) days within which to file written objections to the to both administrative and judicial forums for the purpose of foregoing report. Such objections shall be filed with the seeking redress of grievances against state officers.’ ” Franco Clerk of the Court. FAILURE TO OBJECT TO THIS v. Kelly, 854 F.2d at 589 (quoting Haymes v. Montanye, 547

REPORT WITHIN TEN (10) DAYS WILL PRECLUDE

F.2d 188, 191 (2d Cir.1976)) (emphasis and alterations in APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 original). (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b)

Fatal to Plaintiff's retaliation claim, however, is his failure (1); FED. R. CIV. P. 72, 6(a), & 6(e). to specify what lawsuits or grievances he filed, against whom, and where such were filed. Plaintiff does not indicate that Defendant DeSimone was even aware of any lawsuit

All Citations or grievance which he may have filed. Therefore, Plaintiff has failed to allege a causal connection between his filing

Not Reported in F.Supp.2d, 2008 WL 4517806 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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ORDERS that the Clerk of the Court is to enter judgment in favor of Defendants and close this case.

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Only the Westlaw citation is currently available. United States District Court,

IT IS SO ORDERED.

N.D. New York. William ESCALARA, Plaintiff, REPORT AND RECOMMENDATION v. DAVID E. PEEBLES, United States Magistrate Judge. T. CHARWAND, C.O., et al., Defendants. Plaintiff William Escalera, a New York State prison inmate No. 9:04-CV-0983 (FJS/DEP). who is proceeding pro se and in forma pauperis, has | commenced this proceeding pursuant to 42 U.S.C. § 1983, March 12, 2008. alleging deprivation of his civil rights. In an amended complaint which is both difficult to follow and couched

Attorneys and Law Firms in vague and conclusory terms, plaintiff appears to assert William Escalara, pro se. claims of First Amendment free speech and procedural due process deprivations arising from the issuance of misbehavior Hon. Andrew M. Cuomo, Attorney General of the State of reports concerning his conduct as a prison inmate, implicating New York, Bruce J. Boivin, Esq., Christopher Hall, Esq., matters which include his verbal communications with fellow Assistant Attorney General, of Counsel, Albany, NY, for inmates, determined by prison officials to violate policies Defendants. regarding such interaction, and the disciplinary proceedings which followed. 1

ORDER

1 Plaintiff's complaint also purports to assert an equal FREDERICK J. SCULLIN, JR., Senior District Judge. protection denial cause of action, although the particulars of that claim are not well-defined. *1 Presently before the Court is Magistrate Judge David Currently pending before the court is a motion filed by E. Peebles February 19, 2008 Report-Recommendation in those defendants who to date have appeared in the action, which he recommends that defendants' motion for summary seeking the entry of summary judgment dismissing plaintiff's judgment dismissing plaintiff's complaint be granted and that claims as lacking in merit. Having carefully reviewed the plaintiff's complaint be dismissed in all respects, without record in the light of defendants' motion, without the benefit prejudice as to defendants West, C. Lambard, Baldwin, of any opposing submissions by the plaintiff, I conclude and J. Roch, but otherwise with prejudice. The Court no reasonable factfinder could determine that plaintiff's having reviewed the Report-Recommendation and the entire constitutional rights have been abridged, and therefore file in this matter, and no objections to said Report- recommend that defendants' motion be granted. Recommendation having been filed, the Court ORDERS that the Report-Recommendation of Magistrate

I.

BACKGROUND Judge David E. Peebles filed February 19, 2008, is for the Plaintiff is a prison inmate who has been entrusted to the reasons stated therein, ACCEPTED in its entirety and the custody of the New York State Department of Correctional Court further Services (the “DOCS”). See generally, Amended Complaint (Dkt. No. 12); see also Defendants' Exhibits (Dkt. No. 59-4)

ORDERS that defendants' motion for summary judgment Exh. A (Transcript of Plaintiff's Deposition, held on May 23, dismissing plaintiff's complaint is GRANTED, and that 2006) at 11. At the times relevant to his claims plaintiff was plaintiff's complaint is dismissed in all respects, without designated to the Clinton Correctional Facility (“Clinton”), prejudice as to defendants West, C. Lambard, Baldwin, and J. categorized by the DOCS as a maximum security prison. Roch, but otherwise with prejudice, and the Court further Defendants' Exhibits (Dkt. No. 59-4) Exh. A at 10-11. At Clinton, plaintiff worked as a maintenance recycling porter

Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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has amassed a lengthy disciplinary record, was the recipient and was permitted to sleep in a cubicle located within a of several misbehavior reports accusing him of violating dormitory in the Clinton Annex under conditions more akin various prison disciplinary rules. Defendants' Exhibits (Dkt. to those existing in a medium security prison. Id. at 9-10. No. 59-5) Exh. D. The particulars of those misbehavior reports can be summarized as follows:

*2 Between the time of his transfer into Clinton in May of 2004, see Defendants' Exhibits (Dkt. No. 59-4) Exh. A at 11, and the end of 2004 the plaintiff, who as a prison inmate Date of Incident Violations Alleged 6/14/04 Creating a disturbance (Rule 104.13) and violation of refusal to obey a direct order (Rule 106.10) 6/24/04 Property in an unauthorized location (Rule 113.22) 6/26/04 Refusal to obey a hearing disposition (Rule

181.10) 6/26/04 Interference with prison officials (Rule 107.10), creating a disturbance (Rule 104.13), making a threat (Rule 102.10) and a messhall violation (Rule 124.16) 8/11/04 Creating a disturbance (Rule 104.13) and interference with prison officials (Rule 107.10) 9/23/04 Loss/damage to property (Rule 116.10), Creating a disturbance (Rule 104.13), refusal to obey an order (Rule 106.10) and interference with prison officials (Rule 107.10) 10/27/04 Creating a disturbance (Rule 104.13) 12/15/04 Interference with prison officials (Rule 107.10), refusal to obey a direct order (Rule 106.10), delay in count (Rule 112.20) and count violation (Rule 112.21) 12/26/04 Movement violation (Rule 109.12)

instances, keeplock confinement extending up to thirty days on one occasion. 2 Id. Plaintiff appealed each of the adverse Id. Tier II disciplinary hearings were conducted at various times in connection with a majority of those reports, in each

hearing determinations and resulting disciplinary penalties instance resulting in a finding of guilt on one or more of to the facility superintendent, defendant Artus, who on each the charged violations and the imposition of sanctions which occasion affirmed the hearing officer's decision. Amended generally included loss of recreation, package, commissary Complaint (Dkt. No. 12) at 4; see also Defendants' Exhibits and/or telephone privileges of varying durations and, in some (Dkt. No. 59-4) Exh. A at 50. Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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2 3

The DOCS conducts three types of inmate The clerk is directed to amend the docket to reflect disciplinary hearings. Tier I hearings address the correct spelling of the last names of defendants the least serious infractions, and can result in Charland and Armitage. minor punishments such as the loss of recreation

On August 23, 2005 an answer was filed by the New privileges. Tier II hearings involve more serious York State Attorney General, acting on behalf of various infractions, and can result in penalties which of the defendants named by the plaintiff, including Thomas include confinement for a period of time in the Charland, Jeffrey Joswick, Dale Artus, William Brown, and Special Housing Unit (SHU). Tier III hearings Randy Caron. Dkt. No. 31. In that answer defendants have concern the most serious violations, and could generally denied plaintiff's allegations, additionally asserting result in unlimited SHU confinement and the loss various affirmative defenses. See id. A second answer was of “good time” credits. See Hynes v. Squillace, 143 subsequently filed, also by the New York State Attorney F.3d 653, 655 (2d Cir.), cert. denied, 525 U.S. 907, General, on behalf of defendant Michael Douglas mirroring 119 S.Ct. 246 (1998). the earlier filed answer. Dkt. No. 52. To date, defendants At one point plaintiff attempted to speak with his prison Corrections Captain West, Corrections Lieutenant Baldwin, counselor, defendant Joswick, regarding the frequency with C. Lambard, and J. Roch have neither been served nor which misbehavior reports were being administered to him otherwise appeared in the action. by prison officials. Amended Complaint (Dkt. No. 12) at 4; Defendants' Exhibits (Dkt. No. 59-4) Exh. A at 59-60. On January 30, 2007, following the close of discovery, the In apparent response to Escalara's persistence, defendant defendants who thus far have appeared in the action moved Joswick advised that he was not plaintiff's “pen pal” and seeking the entry of summary judgment dismissing plaintiff's threatened disciplinary action if plaintiff continued in his complaint in its entirety, as a matter of law. Dkt. No. 59. In efforts to communicate with him. Amended Complaint (Dkt. their motion, defendants assert that the evidence in the record No. 12) at 2; Defendants' Exhibits (Dkt. No. 59-4) Exh. A at fails to support plaintiff's claimed constitutional deprivations. 60. The situation between the two was alleviated, however, Id. Despite inclusion within defendants' motion of language when plaintiff was assigned a new counselor to replace properly advising Escalera of the significance of the motion defendant Joswick, therefore making it unnecessary for and the potential consequences of any failure on his part to prison officials to take the threatened disciplinary measures. properly respond as required, see Dkt. No. 59, plaintiff has not Defendants' Exhibits (Dkt. No. 59-4) Exh. A at 61. filed any papers in opposition to the pending motion, which

is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to

II.

BACKGROUND 28 U.S.C. § 636(b)(1)(B) and Northern District of New York *3 Plaintiff commenced this action on August 19, 2004 Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b). and, at the direction of the court based upon perceived deficiencies in plaintiff's initial pleading, see Dkt. No. 6, submitted an amended complaint on December 27, III. DISCUSSION 2004, the filing of which was authorized by the court

A. Status of Unserved Defendants following a review of the new pleading. Dkt. Nos. 12, Despite the filing on December 27, 2004 of plaintiff's 14. Named as defendants in plaintiff's amended complaint amended complaint and the clerk's issuance on March 28, are Clinton Superintendent Artus; Mr. Douglas, a dietician 2005 of summonses, four of the named defendants, including at the facility; Mr. Joswick, plaintiff's former corrections Captain West, Corrections Officer C. Lambard, Lieutenant counselor; Corrections Lieutenants Baldwin and Armitage; Baldwin, and Corrections Officer J. Roch, have neither been and Corrections Officers T. Charland, West, W. Brown, R. served nor otherwise appeared in the action. 4 Caron, C. Lambard, L. Favro, and J. Roch. 3 In his complaint, plaintiff claims violation of his rights of free speech and

4 association, deprivation of procedural due process, and The summonses issued to Captain West and the denial of equal protection, and seeks recovery of C. Lambard were returned in July of 2005, compensatory and punitive damages. Dkt. No. 12. unexecuted. Dkt. Nos. 20, 21. The record is unclear

as to the status of efforts to serve the remaining Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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two defendants, Corrections Lieutenant Baldwin shall be deemed as consent to the and Corrections Officer J. Roch. granting or denial of the motion, as

the case may be, unless good cause is Rule 4(m) of the Federal Rules of Civil Procedure authorizes shown. dismissal of a plaintiff's claims against a defendant where a summons and complaint is not served upon that party within 120 days after filing of the complaint, absent a showing

N.D.N.Y.L.R. 7.1(b)(3). While pro se plaintiffs are entitled to of good cause. 5 Fed.R.Civ.P. 4(m); Shuster v. Nassau Cty., special latitude when defending against summary judgment No. 96 Civ. 3635, 1999 WL 9847, at *1 (S.D.N.Y. Jan. motions, see Jemzura v. Public Serv. Comm'n, 961 F.Supp. 11, 1999) (Rule 4(m) authorizes dismissal where no service 406, 415 (N.D.N .Y.1997) (McAvoy, C.J.)), the failure of within 120 days after filing of the complaint); Romand v. such a plaintiff to oppose a summary judgment motion does Zimmerman, 881 F.Supp. 806, 809 (N.D.N.Y.1995) (McAvoy, not preclude the court from deciding the motion. Robinson v. C.J.) (120-day period for service of a summons and complaint Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. by a plaintiff under Fed.R.Civ.P. 4(m) applies to pro se May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, plaintiffs as well as those represented by counsel). Inasmuch No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, as the four missing defendants have not been served or 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F.Supp. otherwise appeared in the action within the appropriate time 106, 106-07 (N.D.N.Y.1997) (Pooler, J. & Hurd, M.J.). As can period, this court has never acquired jurisdiction over them, be seen by the face of Local Rule 7.1(b)(3), however, before and the complaint should be dismissed as against those summary judgment can be granted under such circumstances defendants, without prejudice. See, e.g., Michelson v. Merrill the court must review the motion to determine whether it is Lynch, Pierce, Fenner & Smith, Inc., 709 F.Supp. 1279, facially meritorious. See Allen v. Comprehensive Analytical 1282 (S.D.N.Y.1989) (citing Mississippi Publishing Corp. Group, Inc., 140 F.Supp.2d 229, 231-32 (N.D.N.Y.2000) v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 245-46 (Scullin, C.J.); Leach v. Dufrain, 103 F.Supp.2d 542, 545-46 (1946)) (court lacks jurisdiction until defendants properly (N.D.N.Y.2000) (Kahn, J.). served with summons and complaint). While a plaintiff's failure to properly oppose a defendant's 5 That period is further restricted by the local rules motion does not assure that the motion, however lacking of this court, which require that service be effected in merit, will be granted, that failure is not without within sixty days. See Northern District of New consequences. By opting not to submit papers in opposition to York Local Rule § 4.1(b). their motion, plaintiff has left the facts set forth in defendants' Local Rule 7.1(a)(3) Statement unchallenged. Courts in this

B. Plaintiff's Failure to Oppose Defendants' Motion district have routinely invoked Local Rule 7.1(a)(3) and its *4 Before turning to the merits of plaintiff's claims, a predecessor, Local Rule 7.1(f), deeming facts set forth in threshold issue to be addressed is the legal significance, if

a statement of material facts not in dispute to have been any, of his failure to oppose defendants' summary judgment admitted based upon an opposing party's failure to properly motion, and specifically whether that failure automatically respond to that statement. 6 See, e.g., Elgamil v. Syracuse entitles defendants to dismissal of plaintiff's complaint, based Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. upon their motion. Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 292

This court's rules provide that (2d Cir.2000) (discussing district courts' discretion to adopt local rules like 7.1(a)(3)). I recommend that the court follow this well-established practice and, notwithstanding plaintiff's

[w]here a properly filed motion is pro se status, accept defendants' assertion of facts as set forth unopposed and the Court determines in their Local Rule 7.1(a)(3) Statement as uncontroverted, in that the moving party has met its light of plaintiff's failure to respond to that statement, when burden to demonstrate entitlement to reviewing defendants' motion for facial sufficiency. the relief requested therein, the non- moving party's failure to file or serve any papers as required by this Rule

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6 facts, in a light most favorable to the nonmoving party.

According to Local Rule 7.1(a)(3), “any facts set Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, forth in the Statement of Material Facts shall be 137-38 (2d Cir.1998). Summary judgment is inappropriate deemed admitted unless specifically controverted where “review of the record reveals sufficient evidence for by the opposing party.” See N.D.N.Y.L.R. 7.1(a) a rational trier of fact to find in the [non-movant's] favor.” (3). Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250,

C. Summary Judgment Standard 106 S.Ct. at 2511 (summary judgment is appropriate only *5 Summary judgment is governed by Rule 56 of the Federal when “there can be but one reasonable conclusion as to the Rules of Civil Procedure. Under that provision, summary verdict”). judgment is warranted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as

D. Plaintiff's First Amendment Claim to any material fact and that the moving party is entitled to a *6 The essence of plaintiff's First Amendment claim appears judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex to be that when engaged in the behavior giving rise to the Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 issuance to him of misbehavior reports, including laughing (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, at corrections officers and talking loudly across a cell 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford block to fellow inmates, in violation of well known and v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d understood directives prohibiting such actions, his conduct Cir.2004). A fact is “material”, for purposes of this inquiry, if was protected under the First Amendment and, accordingly, it “might affect the outcome of the suit under the governing when disciplined for those actions his constitutional rights law.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also were abridged. Defendants assert that the record fails to Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) support a First Amendment deprivation, as a matter of law. (citing Anderson ). A material fact is genuinely in dispute “if the evidence is such that a reasonable jury could return

The First Amendment to the United States Constitution a verdict for the nonmoving party.” Anderson, 477 U.S. at provides, in relevant part, that “Congress shall make no law ... 248, 106 S.Ct. at 2510. Though pro se plaintiffs are entitled to abridging the freedom of speech, or of the press; or the right special latitude when defending against summary judgment of the people peaceably to assemble ....“ U.S. Const. amend. I. motions, they must establish more than mere “metaphysical The protections afforded by the First Amendment, like many doubt as to the material facts.” Matsushita Elec. Indus. other constitutional guarantees, are not necessarily forfeited Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. by a person upon his or her entry into prison; many rights 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 conferred by the Constitution, however, are by definition F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court extinguished, or in some cases give way to legitimate, to consider whether pro se plaintiff understood nature of counterveiling penological concerns, upon incarceration. summary judgment process). Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir.2004). As the Supreme Court has noted, “[t]he fact of confinement and

When summary judgment is sought, the moving party bears the needs of the penal institution impose limitations on an initial burden of demonstrating that there is no genuine constitutional rights, including those derived from the First dispute of material fact to be decided with respect to any Amendment, which are implicit in incarceration.” Jones v. essential element of the claim in issue; the failure to meet this North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, burden warrants denial of the motion. Anderson, 477 U.S. at 125, 97 S.Ct. 2532, 2537-38 (1977). 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must

While the point of demarcation is not always readily show, through affidavits or otherwise, that there is a material discernable, it is clear that prison inmates enjoy some measure issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at of First Amendment protection, yet forfeit those free speech 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. rights which are incompatible with legitimate penological at 2511. considerations. See Pell v. Procunier, 417 U.S. 812, 822, 94 S.Ct. 2800, 2804 (1974). As the Supreme Court has observed,

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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communications. See Defendants' Exhibits (Dkt. No. 59-4) Exh. A at 10-11.

[a] prison inmate retains those Clearly, policies of the type implicated by defendant First Amendment rights that are Charland's response to plaintiff's actions are reasonably not inconsistent with his [or her] related to legitimate penological concerns, and thus do not status as a prisoner or with give rise to the constitutional claims for deprivation of the the legitimate penological objectives First Amendment right of free speech or association. Cf. Percy of the corrections system. Thus, v. Jabe, 823 F.Supp. 445, 448 (E.D.Mich.1993) (noting that challenges to prison restrictions prison officials should be afforded wide latitude in imposing that are asserted to inhibit First visitation restrictions at prison in light of, inter alia, perceived Amendment interests must be threats to security and order at the institution). It would be analyzed in terms of the legitimate novel indeed for prison inmates to assert a First Amendment policies and goals of the corrections right to speak freely and communicate with other inmates system, to whose custody and care and prison officials, without restriction based upon legitimate the prisoner has been committed in penological concerns. Plaintiff has cited no case authority, accordance with due process of law. nor is the court aware of any, which stands for such a broad proposition and supports an open-ended, unlimited right of prison inmates to speak freely within the prison setting,

Id. however disruptive the conduct might be. Thus, for example, prison officials may not deter the right Because plaintiff has failed to allege and prove that he of a prison inmate to voice complaints regarding prison was engaged in constitutionally protected activity when conditions through established processes by taking adverse disciplined by prison officials, and finding that defendants' actions which are intended, or which have the affect, of actions in disciplining him were reasonably related to chilling or abridging such rights. See Gill v. Pidlypchak, 389 legitimate penological concerns, I recommend a finding that F.3d 379, 380 (2d Cir.2004). Conversely, and at the other end his First Amendment claims are deficient as a matter of law. of the spectrum, prison officials are empowered to control the use of threatening and abusive language by inmates. Jermosen v. Coughlin, 878 F.Supp. 444, 450-51 (N.D.N.Y.1995)

E. Plaintiff's Procedural Due Process Claims (McAvoy, C.J.). The right of officials to control inmate Intertwined with his First Amendment cause of action speech and other behavior through the imposition of measures is plaintiff's claim that during the course of issuance of reasonably calculated to preserve the safety and security of a misbehavior reports and the ensuing disciplinary proceedings, prison facility, its employees and inmates, is well established, his procedural due process rights were abridged. To even though such measures may impinge upon an inmate's successfully state a claim under 42 U.S.C. § 1983 for denial ability to speak freely or to associate with others. See Auleta of due process arising out of a disciplinary hearing, a plaintiff v.. LaFrance, 233 F.Supp.2d 396, 399 (N.D.N.Y.2002) (Kahn, must show that he or she both (1) possessed an actual liberty D.J.) (noting that restrictions on inmate communication are interest, and (2) was deprived of that interest without being constitutional if reasonably related to legitimate penological afforded sufficient process. See Tellier v.. Fields, 260 F.3d 69, interests) (citing Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 79-80 (2d Cir.2000) (citations omitted); Hynes v. Squillace, 2254, 2261 (1987)). 143 F.3d 653, 658 (2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246 (1998); Bedoya v. Coughlin, 91 F.3d 349,

*7 In this instance plaintiff does not allege, nor does 351-52 (2d Cir.1996). In their motion the defendants, while the record disclose, that plaintiff was engaged in protected not conceding any lack of sufficient due process, assert that activity when disciplined for violating prison rules. Typical plaintiff cannot establish the deprivation of a constitutionally of plaintiff's claims, by contrast, is the contention that he was cognizable liberty interest. 7 issued a misbehavior report by Corrections Officer Charland for talking loudly within the prison dormitory, despite his

7 awareness that the officer was known to be particularly The procedural safeguards to which a prison inmate is entitled before being deprived of a strict, and that he prohibited such potentially disruptive Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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constitutionally cognizable liberty interest are shorter periods of segregated confinement where the plaintiff well-established, the contours of the requisite has not alleged any unusual conditions, however, a detailed protections having been articulated in Wolff v. explanation of this analysis is not necessary. 9 Hynes, 143 McDonnell, 418 U .S. 539, 564-67, 94 S.Ct. 2963,

F.3d at 658; Arce, 139 F.3d at 336. 2978-80 (1974). Under Wolff, the constitutionally mandated due process requirements, include 1)

8 In cases where there is factual dispute concerning written notice of the charges; 2) the opportunity the conditions or duration of confinement, to appear at a disciplinary hearing and present however, it may nonetheless be appropriate to witnesses and evidence, subject to legitimate safety submit those disputes to a jury for resolution. Colon and penological concerns; 3) a written statement v. Howard, 215 F.3d 227, 230-31 (2d Cir.2000); by the hearing officer explaining his or her Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.1999). decision and the reasons for the action being 9 taken; and 4) in some circumstances, the right

While not the only factor to be considered, the to assistance in preparing a defense. Wolff, 418 duration of a disciplinary keeplock confinement U.S. at 564-67, 94 S.Ct. at 2978-80; see also remains significant under Sandin. Colon, 215 Eng v. Coughlin, 858 F .2d 889, 897-98 (2d F.3d at 231. Specifically, while under certain Cir.1988). Plaintiff's complaint does not elaborate circumstances confinement of less than 101 days on his claim that defendants failed to observe could be shown to meet the atypicality standard these guaranteed safeguards in connection with his under Sandin, see id. at 232 n. 5, the Second Circuit various disciplinary proceedings. generally takes the position that SHU confinement under ordinary conditions of more than 305 days In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), rises to the level of atypicality, whereas normal the United States Supreme Court determined that to establish a liberty interest, a plaintiff must sufficiently demonstrate SHU confinement of 101 days or less does not. that (1) the State actually created a protected liberty interest Id. at 231-32 (305 days of SHU confinement constitutes an atypical and sufficient departure). in being free from segregation; and that (2) the segregation In fact, in Colon v. Howard a Second Circuit would impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” panel split markedly on whether or not adoption Id. at 483-84, 115 S.Ct. at 2300; Tellier, 280 F.3d at 80; of a 180-day “bright line” test for examining SHU confinement would be appropriate and helpful in Hynes, 143 F.3d at 658. Since the prevailing view is that by resolving these types of cases. See id. at 232-34 its regulatory scheme New York State has created a liberty interest in remaining free from disciplinary confinement, (Newman, C.J.), 235-37 (Walker, C.J. and Sack, thus satisfying the first Sandin factor, see, e.g., LaBounty C.J., concurring in part). v. Coombe, No. 95 CIV 2617, 2001 WL 1658245, at *6

Most of the disciplinary charges against the plaintiff in 2004, (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94- virtually all lodged as Tier II level violations, resulted in only CV-985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) modest disciplinary sanctions by constitutional standards. On (Kahn, J.), I must find that the conditions of plaintiff's one occasion plaintiff was sentenced to keeplock confinement disciplinary confinement as alleged do not rise to the level of for a period of thirty days, receiving shorter keeplock an atypical and significant hardship under Sandin in order to confinements of ten or fifteen days or even more modest recommend that defendants' motion be granted. restrictions on certain other occasions. 10 Plaintiff's keeplock confinement stemming from the August 11, 2004 and

*8 Atypicality in a Sandin inquiry is normally a question of September 23, 2004 misbehavior reports were served in law . 8 Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir.2000); his dormitory cubicle, and plaintiff was permitted to talk Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.1999). When with other inmates and to maintain his prison employment determining whether a plaintiff possesses a liberty interest, during that period. Defendants' Exhibits (Dkt. No. 59-4) district courts must examine the specific circumstances of Exh. A at 11-12, 18-19, 31-32. Similarly, the keeplock confinement, including analysis of both the length and confinement sentences imposed as a result of the June 26, conditions of confinement. See Sealey, 197 F.3d at 586; Arce 2004 misbehavior reports were also served by the plaintiff v. Walker, 139 F.3d 329, 335-36 (2d Cir.1998); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir.1997). In cases involving Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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within his dormitory cubicle, while maintaining his prison of intentional or purposeful discrimination directed at an employment. Id. at 37, 46. identifiable or suspect class. See Giano v. Senkowski, 54 F.3d

1050, 1057 (2d Cir.1995) (citing, inter alia, McCleskey v. 10 Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767 (1987)). The Keeplock is a form of confinement restricting an plaintiff must also show that the disparity in treatment “cannot inmate to his or her cell, separating the inmate from survive the appropriate level of scrutiny which, in the prison others, and depriving him or her of participation setting, means that he must demonstrate that his treatment in normal prison activities. Gittens v. LeFevre, 891 was not reasonably related to [any] legitimate penological F.2d 38, 39 (2d Cir.1989); Warburton v. Goord, interests.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005) 14 F.Supp.2d 289, 293 (W.D.N.Y.1998) (citing (quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475 Gittens ); Tinsley v. Greene, No. 95-CV-1765, (2001) (internal quotation marks omitted)). 1997 WL 160124, at *2 n. 2 (N.D.N.Y. Mar. 31, 1997) (Pooler, D.J. & Homer, M.J.) (citing,

*9 Nothing either contained within plaintiff's amended inter alia, Green v. Bauvi, 46 F.3d 189, 192 (2d complaint, or otherwise disclosed in the record, reflects Cir.1995)). Inmate conditions while keeplocked any disparity in treatment by defendant Joswick, a are substantially the same as in the general corrections counselor, of the plaintiff and other inmates population. Lee v. Coughlin, 26 F.Supp.2d 615, 628 based upon plaintiff's inclusion in an identifiable or (S.D.N.Y.1998). An inmate is confined to his or suspect class, nor does the record suggest that if such her general population cell for twenty-three hours disparate treatment occurred, it was motivated by some a day, with one hour for exercise. Id. Inmates can other invidious, prohibited discrimination. Under these leave their cells for showers, visits, medical exams circumstances plaintiff's equal protection claim fails, as a and counseling. Id. Inmates can have cell study, matter of law, and is subject to dismissal. See, e.g., Pena v. books and periodicals. Id. The main difference Racore, No. 95-CV-5307, 2001 WL 262986, at *4 (E.D.N.Y. between keeplock and the general population is that Mar. 14, 2001) (rejecting plaintiff's equal protection claim keeplocked inmates do not leave their cell for out- where he alleged only a difference in treatment and failed to of-cell programs, and are usually allowed less time suggest that defendants' actions demonstrated intentional and out of their cells on the weekends. Id. arbitrary discrimination). Conspicuously absent from either plaintiff's amended complaint or the record now before the court is any evidence establishing that the defendants deprived Escalera of any IV. SUMMARY AND RECOMMENDATION constitutionally significant liberty interest by their actions. Plaintiff's amended complaint, drafted in exceedingly This marked deficiency warrants summary dismissal of conclusory terms and bereft of factual allegations, alleges plaintiff's due process claims, as a matter of law, without the deprivation of his right to free speech under the First need to examine the sufficiency of the protections afforded to Amendment, his right to procedural due process, and his right him in connection with those misbehavior reports. to equal protection of the law. Having carefully reviewed the

record now before the court I am unable to discern any triable, genuinely disputed issue of material fact, and conclude that no

F. Equal Protection reasonable factfinder could determine, based upon the record, Plaintiff's amended complaint also asserts a claim for denial that plaintiff's constitutionally rights have been abridged. of equal protection. Though this is far from clear, plaintiff's Accordingly, it is hereby equal protection claim appears to be limited to defendant Joswick, his former prison counselor. Defendants also seek

RECOMMENDED that defendants' motion for summary dismissal of this claim as lacking in merit. judgment dismissing plaintiff's complaint (Dkt. No. 59) be GRANTED, and that plaintiff's complaint be dismissed in

The Equal Protection Clause directs state actors to treat all respects, without prejudice as to defendants West, C. similarly situated people alike. See City of Cleburne, Texas Lambard, Baldwin, and J. Roch, but otherwise with prejudice. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have Clause, a plaintiff must demonstrate that he or she was ten (10) days within which to file written objections to the treated differently than others similarly situated as a result foregoing report-recommendation. Any objections shall be Escalara v. Charwand, Not Reported in F.Supp.2d (2008)

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It is further ORDERED that the clerk of the court serve a filed with the clerk of the court. FAILURE TO OBJECT TO copy of this report and recommendation upon the parties in

THIS REPORT WITHIN TEN DAYS WILL PRECLUDE

accordance with this court's local rules. APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

All Citations Not Reported in F.Supp.2d, 2008 WL 699273

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

Case Details

Case Name: Clark v. Gardner

Court Name: District Court, N.D. New York

Date Published: Mar 8, 2021

Docket Number: 9:17-cv-00366

Court Abbreviation: N.D.N.Y.