King v. McIntyer, 2015 WL 1781256

Case Information

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JAMEL KING,

Plaintiff,

9:11-CV-1457 v. (DNH/TWD) C.O. MCINTYER, LT. MCDERMOTT,

C.O. STEVENS, SGT. YOUNG,

C.O. KANE, C.O. HESSLE,

C.O. CATLIN,

DEPT. C. MILLER,

COMM. BRIAN FISCHER,

SUP. MARTUSCELLO,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL: JAMEL KING, 01-A-4949

Plaintiff pro se

Elmira Correctional Facility

P.O. Box 500

Elmira, NY 14902

HON. ERIC T. SCHNEIDERMAN MICHAEL G. MCCARTIN, ESQ. Attorney General for the State of New York

Counsel for Defendants

The Capitol

Albany, NY 12224

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Jamel King alleges that an unnamed corrections officer asked Plaintiff to assault another inmate and that, based on Plaintiff’s refusal to do so, the named Defendants retaliated against Plaintiff by: (1) issuing false misbehavior reports; (2) placing Plaintiff in keeplock; (3) finding Plaintiff guilty in disciplinary hearings; and (4) affirming Plaintiff’s guilt on appeal. (Dkt. No. 9.) Currently pending before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 90.) For the reasons discussed below, I recommend that the motion be granted in part and denied in part.

I. BACKGROUND

Plaintiff alleges that in November 2010, while he was incarcerated at Coxsackie Correctional Facility, an unnamed non-party corrections officer asked Plaintiff to assault another inmate. (Dkt. No. 9 ¶ 7.) The officer stated, “We have someone who like [sic] to touch kids, and if you will like to beat him up I would not see nothing.” Id. Plaintiff refused to assault the other inmate, telling the officer, “I’m not down with that and can you please not approach me with something like that.” Id. The officer stated, “[I]f you’re not going to beat him up, then you must be down with touching kids to [sic].” Id. Plaintiff replied to the officer, “No you have that wrong, you are the one that touch [sic] kids.” Id. ¶ 8. The officer became upset and stated, “Your ass is going to cellblock C or D, the house of pain so pack your things and I will let my pals up their [sic] know that you are an asshole.”

Plaintiff alleges that Defendant Corrections Officers Jeffry Hoessle, ^[1] Patrick McIntyre, ^[2] Jerrad V. Catlin, and James Stevens issued several misbehavior reports to him over the next six months in retaliation for his refusal to assault the other inmate and for his complaints to prison officials about the alleged retaliation. (Dkt. No. 9.) Plaintiff alleges that Defendant McDermott retaliated against him and violated his due process rights during disciplinary hearings conducted as a result of the misbehavior reports. He alleges that Defendant Sergeant Jason Young made threatening comments to him and that Defendant Corrections Officer Robert Kane separated him from other inmates. Id . ¶¶ 24, 29. Finally, Plaintiff alleges that Defendants Daniel F. Martuscello and Christopher Miller violated his constitutional rights by affirming the results of the disciplinary hearings. Id . ¶ 28. These incidents will be discussed in more detail in Section III, below.

Plaintiff filed his original complaint in this action on December 14, 2011. (Dkt. No. 1.) Plaintiff amended his complaint on January 5, 2012. (Dkt. No. 9.) Defendants filed a motion for partial summary judgment, which upon Defendants’ request was considered as a motion to dismiss. (Dkt. Nos. 58, 68-69.) The Court granted the motion in part and denied it in part. (Dkt. No. 83.)

Defendants now move for summary judgment. (Dkt. No. 90.) Plaintiff has opposed the motion. (Dkt. No. 99.)

II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, summary judgment is warranted “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). 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. Goord , 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id . at 273. The nonmoving party must do more than “rest upon the mere allegations . . . of [the plaintiff’s] pleading” or “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material ^[3] 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).

III. ANALYSIS

Plaintiff claims that Defendants retaliated against him by issuing false misbehavior reports, placing him in keeplock, finding him guilty in disciplinary hearings, and affirming his guilt on appeal. (Dkt. No. 9.) The Court will discuss Plaintiff’s claims and Defendants’ motion incident by incident in chronological order.

A. November 30, 2010, Misbehavior Report

1. Facts

Plaintiff alleges that after he refused to assault the other inmate, he was moved to Cellblock D-3, where Defendant Hoessle placed him in keeplock. (Dkt. No. 9 ¶ 9.) When Plaintiff asked Defendant Hoessle why he was in keeplock, Defendant Hoessle responded, “[B]ecause you wouldn’t take care of business over in cellblock B-1 for my pal so you’re [an] asshole.” Id. Defendant Hoessle denies that he made that statement. (Dkt. No. 90-7 ¶ 9.) Indeed, he declares that he was not aware until April 2012 of Plaintiff’s allegation that he had refused to assault another inmate. Id. ¶ 5.

The record shows that Defendant Hoessle issued a misbehavior report to Plaintiff on November 30, 2010. (Dkt. No. 90-18 at 4.) The report states that Defendant Hoessle

observed [Plaintiff] enter the school with bulging pockets. I gave [him] a direct order to come back to my desk, he refused and kept walking. A second direct order was given. He complied. I then pat frisked [him] and found the following items of contraband. 5 cassette tapes, 1 tooth brush with case, 1 tooth paste, 1 Bare Necessity’s magazine.

Id. Defendant Hoessle charged Plaintiff with smuggling, possessing items in an unauthorized area, and refusing a direct order. Id. Plaintiff was confined to keeplock as a result of the incident. At his deposition, Plaintiff admitted that he had the tooth brush, tooth paste, magazine, and cassettes that morning and that he intended to give the cassette tapes to another inmate. (Dkt. No. 90-13 at 33:22-34:24. ^[4] )

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on December 3, 2010. (Dkt. No. 90-18 at 1.) Plaintiff pleaded guilty to the charge of possessing items in an unauthorized area and not guilty to the charges of smuggling and refusing a direct order. Id. at 3. Defendant McDermott found Plaintiff not guilty of refusing a direct order and guilty of smuggling and possessing items in an unauthorized area. Id. at 1. Defendant McDermott sentenced Plaintiff to fourteen days of keeplock and loss of privileges. Plaintiff served that keeplock sentence between November 30, 2010, and December 14, 2010. Id .

Broadly construed, the complaint asserts retaliation claims against Defendants Hoessle and McDermott and a due process claim against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Hoessle and McDermott retaliated against him for his refusal to assault the other inmate by issuing the misbehavior report and finding him guilty. (Dkt. No. 9 ¶¶ 9-10.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25. ^[5] ) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss these claims.

Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak , 389

F.3d 379, 380-81 (2d Cir. 2004). Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin , 713 F.2d 10, 13 (2d Cir. 1983). The Second Circuit has noted the following:

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners’ claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official–even those otherwise not rising to the level of a constitutional violation–can be characterized as a constitutionally proscribed retaliatory act.

Dawes v. Walker , 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds , Swierkiewicz v. Sorema N.A. , 534 U.S. 506 (2002).

To succeed on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the speech or conduct at issue was “protected”; (2) the defendants took “adverse action” against the plaintiff – namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action – in other words, that the protected conduct was a “substantial or motivating factor” in the defendants’ decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977); Gill , 389 F.3d at 380 (citing Dawes , 239 F.3d at 492). Once a plaintiff meets this burden, “[t]he burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.” Gayle v. Gonyea , 313 F.3d 677, 682 (2d Cir. 2002) (citations omitted).

Regarding the first element, Defendants argue that Plaintiff cannot establish that he was engaged in protected conduct because “[w]hile Plaintiff contends that he was issued the misbehavior report[] because he refused to beat up a child molester . . . , he can offer nothing to substantiate his allegation other than his own conclusory allegations.” (Dkt. No. 90-2 at 22, citations omitted.) Plaintiff has offered more than “conclusory allegations.” He has offered sworn testimony in the form of his verified complaint. See Patterson v. Cnty. of Oneida , 375 F.3d 206, 219 (2d. Cir. 2004) (“[A] verified pleading . . . has the effect of an affidavit and may be relied upon to oppose summary judgment.”); Fitzgerald v. Henderson , 251 F.3d 345, 361 (2d Cir. 2001) (holding that the plaintiff “was entitled to rely on [his verified amended complaint] in opposing summary judgment”); Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be treated as an affidavit for summary judgment purposes . . . .”) (citations omitted). The issue, though, is not whether Plaintiff has offered any evidence of his version of events. The issue is whether an alleged refusal to commit an illegal act constitutes protected conduct. The parties have not cited, and the Court has not found, any cases on point. However, it is logical to conclude that citizens have a right to refuse to commit crimes at the request of law enforcement officers. Therefore, the Court will assume for the purposes of this motion that Plaintiff has raised a triable issue of fact that he was engaged in protected conduct.

Regarding the second element, the Second Circuit defines “‘adverse action’ objectively , as retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.’” Gill , 389 F.3d at 381 (quoting Davis v. Goord , 320 F.3d 346, 353 (2d Cir. 2003), superseded by 320 F.3d 346, 2003 U.S. App. LEXIS 13030, 2003 WL 360053 (2d Cir. Feb. 10, 2003)). Defendants implicitly concede that Plaintiff has shown adverse action. ( See Dkt. No. 90-2 at 23, proceeding directly from “protected conduct” element to “causal connection” element.) Indeed, it is black-letter law that filing allegedly false misbehavior reports and imposing keeplock sentences constitute adverse action. Gill , 389 F.3d at 384.

Regarding the third element, Defendants argue that Plaintiff cannot establish a causal connection between the protected conduct and the adverse action. (Dkt. No. 90-2 at 23-25.) Several factors may be considered in determining whether a causal connection exists between the plaintiff’s protected activity and a prison official’s actions. Baskerville v. Blot , 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002). Those factors include: (1) the temporal proximity between the protected activity and the alleged retaliatory act; (2) the inmate’s prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant concerning his or her motivation. Id . “The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action.” Id.

Regarding temporal proximity, Plaintiff alleges that he refused to assault the other inmate in November 2010. (Dkt. No. 9 ¶ 7.) Defendant Hoessle issued the misbehavior report on November 30, 2010. (Dkt. No. 90-18 at 4.) Defendant McDermott conducted the disciplinary hearing on December 3, 2010. at 1. The Second Circuit has held that the passage of “only six months” is sufficient to support an inference of a causal connection. Espinal v. Goord , 558 F.3d 119, 129 (2d Cir. 2009) (citing Gorman-Bakos v. Cornell Coop. Extension , 252 F.3d 545, 555 (2d Cir. 2001)). Here, Defendant Hoessle issued the misbehavior report in the same month that the alleged protected conduct occurred, and Defendant McDermott conducted the disciplinary hearing three days later. Therefore, Plaintiff has established temporal proximity between the alleged protected conduct and the adverse action.

Regarding Plaintiff’s prior disciplinary record, Defendants assert that it was “dismal.” (Dkt. No. 90-2 at 24.) Defendants are correct. Plaintiff was issued misbehavior reports and found guilty of multiple charges each year for the seven years preceding his alleged refusal to assault the other inmate. (Dkt. No. 90-15.) Indeed, Plaintiff admitted at his deposition that his disciplinary record was extensive because he was “out of control at one time.” (Dkt. No. 90-13 at 24:1-5.) Therefore, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct.

Regarding vindication at the hearing on the matter, Plaintiff was found guilty of two of the three charges in the misbehavior report. (Dkt. No. 90-18 at 1.) Indeed, Plaintiff pleaded guilty to one of those charges. at 3. Therefore, Plaintiff has not established that he was vindicated at the hearing.

Finally, Plaintiff alleges that Defendant Hoessle stated that he was placing Plaintiff on keeplock “because you wouldn’t take care of business over in cellblock B-1 for my pal.” (Dkt. No. 9 ¶ 9.) Defendant Hoessle denies making that statement. (Dkt. No. 90-7 ¶ 9.) Neither the complaint nor Plaintiff’s opposition to the motion for summary judgment assert any statements by Defendant McDermott concerning his motivation at the disciplinary hearing on this matter. (Dkt. No. 9 ¶¶ 9-10; Dkt. No. 99 ¶¶ 24-29.) Therefore, Plaintiff has raised a triable issue of fact as to this factor regarding Defendant Hoessle, but not regarding Defendant McDermott.

Accordingly, Plaintiff has raised a triable issue regarding two of the causal connection factors regarding Defendant Hoessle. Given the skepticism with which retaliation claims must be viewed, it is unlikely that this is sufficient to establish a causal connection. But even assuming that Plaintiff has established a causal connection, this would simply shift the burden to Defendants to demonstrate “that there is no dispute that the plaintiff ‘committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.’” Gayle , 313 F.3d at 681 (quoting Hynes v. Squillace , 143 F.3d 653, 657 (2d Cir. 1998)). Defendants have met that burden. Plaintiff pleaded guilty to the charge of possessing items in an unauthorized area (Dkt. No. 90-18 at 3) and admitted at his deposition that he intended to pass the cassette tapes to another inmate. (Dkt. No. 90-13 at 34:14-24.) The prison rule against smuggling states that “[a]n inmate shall not . . . attempt to smuggle . . . any item . . . from one area to another.” N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(15)(i) (2014). Transferring items that are classified as contraband–such as items carried by an inmate into an unauthorized area–constitutes smuggling under the rule. See Farid v. Ellen , 593 F.3d 233, 237 (2d Cir. 2010) (discussing the connection between Rule 113.23–the “catch-all” contraband provision of the prison rules–and the rules prohibiting smuggling). Plaintiff has, accordingly, conceded that he was guilty of the two most serious charges in the misbehavior report. Thus, Defendants have met their burden of showing the Plaintiff would have received the same punishment absent a retaliatory motive. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment of this claim.

3. Procedural Due Process

Plaintiff alleges that Defendant McDermott violated his right to due process during the December 3, 2010, disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

Due process is satisfied if an inmate facing disciplinary charges receives (1) advanced written notice of the charges against him; (2) a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; (3) a fair and impartial hearing officer; and (4) a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken . Wolff v. McDonnell , 418 U.S. 539, 563-67 (1974); Luna v. Pico , 356 F.3d 481, 487 (2d Cir. 2004).

Here, Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-18 at 3.) He did not request any witnesses. Id. Defendants were not able to locate the audio recording of the disciplinary hearing (Dkt. No. 90-12 ¶ 8), so the Court cannot determine whether Plaintiff was afforded a reasonable opportunity to present documentary evidence. Plaintiff received a written statement of Defendant McDermott’s disposition, which stated that Defendant McDermott relied on Defendant Hoessle’s misbehavior report and Plaintiff’s plea of guilty to the charge of possessing items in an unauthorized area and imposed the punishment on Plaintiff to “impress upon [him] not to bring items into the school building that are not authorized.” (Dkt. No. 90-18 at 2.)

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, it is well settled “that ‘the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally.’” Espinal v. Goord , 180 F. Supp. 2d 532, 539 (S.D.N.Y. 2002) (quoting Francis v.. Coughlin , 891 F.2d 43, 46 (2d Cir. 1989)). Due process in this context requires only that the hearing officer’s decision not be “arbitrary.” Wolff , 418 U.S. at 571. A decision is not “arbitrary” if it is supported by “some evidence.” Superintendent v. Hill , 472 U.S. 445, 455 (1985). “This standard is extremely tolerant and is satisfied if ‘there is any evidence in the record that supports’ the disciplinary ruling.” Sira v. Morton , 380 F.3d 57, 69 (2d Cir. 2004) (emphasis in original) (quoting Friedl v. City of New York , 210 F.3d 79, 85 (2d Cir. 2000)). Prison officials acting as hearing officers are entitled to a rebuttable presumption that they are unbiased. Allen v. Cuomo , 100 F.3d 253, 259 (2d Cir. 1996).

Here, evidence in the record supports Defendant McDermott’s ruling. Defendant Hoessle’s misbehavior report described his observation that Plaintiff initially refused a direct order to return to his desk and Defendant Hoessle’s discovery of contraband on Plaintiff’s person. (Dkt. No. 90-18 at 4.) Plaintiff admitted that he had taken the items into the school building. Id. at 3. Based on this evidence, it was not arbitrary for Defendant McDermott to find Plaintiff guilty. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss this due process claim against Defendant McDermott.

B. December 2, 2010, Misbehavior Report

1. Facts

The record shows that on December 2, 2010, Plaintiff was issued another misbehavior report by a non-defendant officer. (Dkt. No. 90-33 at 4.) Plaintiff was charged with refusing two direct orders, interfering, blocking visibility into his cell, and delaying the evening count. Id. at 3.

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on December 13, 2010. (Dkt. No. 90-33 at 1.) Plaintiff pleaded guilty to the visibility obstruction charge and not guilty to the other charges. at 3. Defendant McDermott found Plaintiff guilty of the visibility obstruction charge and not guilty of the other charges. Id. at 1. Defendant McDermott sentenced Plaintiff to fifteen days of keeplock and loss of privileges, suspended and deferred sixty days.

Broadly construed, the complaint asserts retaliation and due process claims against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McDermott retaliated against him for his refusal to assault the other inmate by finding him guilty after the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim. ^[6]

As discussed above, Plaintiff has raised a triable issue of fact that he engaged in protected conduct by refusing to assault the other inmate. As discussed above, imposing a keeplock sentence constitutes adverse action. The issue, then is whether Plaintiff has raised a triable issue of fact that Defendant McDermott’s adverse action was causally connected to Plaintiff’s protected conduct.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and an adverse action. Baskerville , 224 F. Supp. 2d at 732. As with the claim discussed above, Plaintiff has established temporal proximity between his protected conduct and the adverse action because he refused to assault the other inmate in November 2010 and the hearing at issue here occurred the next month. As discussed above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Likewise, Plaintiff has not established that he was vindicated at the hearing because he, in fact, pleaded guilty to one charge. And finally, as with the claim discussed above, Plaintiff has not alleged that Defendant McDermott made any statements concerning his motivation. ( See Dkt. No. 9; Dkt. No. 99.) Thus, the only factor weighing in favor of a finding of a causal connection is the temporal proximity factor.

The Second Circuit has held that where “timing is the only basis for a claim of retaliation . . . an inference of retaliation does not arise,” particularly where other adverse actions preceded the protected conduct. Slattery v. Swiss Reinsurance Am. Corp. , 248 F.3d 87, 95 (2d Cir. 2001). ^[7] Here, timing is the only basis for Plaintiff’s retaliation claim. Moreover, Plaintiff’s disciplinary record shows that he was routinely subject to disciplinary sanctions for years before the alleged protected conduct. (Dkt. No. 90-15.) Thus, other adverse actions preceded the protected conduct. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendant McDermott violated his due process rights during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-33 at 3.) He did not request any witnesses. Plaintiff received a written statement of Defendant McDermott’s disposition, which stated that Defendant McDermott relied on the misbehavior report and Plaintiff’s plea of guilty to the visibility obstruction charge in reaching his disposition and imposed the punishment on Plaintiff to “impress upon [him] not to block your cell door window.” (Dkt. No. 90-33 at 2.)

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports Defendant McDermott’s ruling. Most importantly, Plaintiff pleaded guilty to the only charge of which Defendant McDermott found him guilty. (Dkt. No. 90-33 at 1, 3.) Indeed, Plaintiff admits in his opposition to the motion for summary judgment that he “did block visibility,” although he states that he did so “because he was showing a female officer respect because after he worked out he was washing up.” (Dkt. No. 99 ¶ 34.) Based on this evidence, it was not arbitrary for Defendant McDermott to find Plaintiff guilty. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss this due process claim against Defendant McDermott.

C. December 20, 2010, Misbehavior Reports

1. Facts

Plaintiff alleges he was moved to Cellblock C-2 after the December 2, 2010, misbehavior report. (Dkt. No. 9 ¶ 11.) He alleges that Defendant McIntyre then started harassing him. (Dkt. No. 9 ¶ 12.) Plaintiff alleges that he wrote a complaint to Defendant Brian Fischer regarding Defendant McIntyre’s conduct. ^[8] Id. Plaintiff alleges that Defendant McIntyre retaliated against him for that complaint by issuing three false misbehavior reports. (Dkt. No. 9 ¶ 13.) From the record, it appears that two of these misbehavior reports were issued on December 30, 2010, and that the third was issued on January 3, 2011. (Dkt. No. 90-19 at 4-5; Dkt. No. 90-21 at 4.) This section will address the December 30, 2010, reports.

The record shows that Defendant McIntyre issued two misbehavior reports against Plaintiff on December 30, 2010. (Dkt. No. 90-19 at 4-5.) In the first, Defendant McIntyre stated that Plaintiff had exchanged an item from his kosher meal tray for a chicken patty from another inmate’s regular meal tray. Id . at 4. Defendant McIntyre charged Plaintiff with unauthorized exchange and violating mess hall serving policies. Id. In the second misbehavior report, Defendant McIntyre stated that Plaintiff asked him to “exchange an unknown item with an inmate on the opposite side of the division.” Id. at 5. The report states that after Defendant McIntyre refused, he observed Plaintiff hand off the unknown item. Defendant McIntyre charged Plaintiff with refusing a direct order and unauthorized exchange. Id.

Plaintiff alleges that Defendant McDermott conducted the disciplinary hearing on the misbehavior reports. (Dkt. No. 9 ¶¶ 14-16.) In opposition to the motion for summary judgment, Plaintiff asserts that a non-defendant lieutenant conducted a hearing on one of the misbehavior reports, but that Defendant McDermott conducted the other. (Dkt. No. 99 ¶ 50.) However, the record shows that the non-defendant lieutenant conducted the disciplinary hearing on both of the misbehavior reports. ^[9] (Dkt. No. 90-15 at 5; Dkt. No. 90-19 at 1.) The hearing was conducted on January 12, 2011. Id . Plaintiff pleaded not guilty to all of the charges. (Dkt. No. 90-19 at 3.) The lieutenant found Plaintiff guilty of all four charges and sentenced him to fifteen days of keeplock and loss of privileges, suspended and deferred for ninety days. Id. at 1.

Plaintiff alleges that he appealed the finding of guilt to Defendant Martuscello and Defendant Miller. (Dkt. No. 9 ¶ 16.) According to the complaint, Defendant Martuscello and Defendant Miller affirmed Defendant McDermott’s finding of guilt. The record shows that Defendant Miller affirmed the finding of guilt. (Dkt. No. 90-15 at 5.)

Broadly construed, the complaint asserts a retaliation claim against Defendant McIntyre and a due process claim against Defendant Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McIntyre retaliated against him for writing to Defendant Fischer by issuing the misbehavior report. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

The filing of a grievance against prison officials is constitutionally protected conduct. Scott v. Coughlin , 344 F.3d 282, 288 (2d Cir. 2003); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). “Complaining to a superior officer about a subordinate officer’s misbehavior, while not equivalent to the filing of a grievance, is conduct at least arguably protected by the First Amendment.” Jones v. Harris , 665 F. Supp. 2d 384, 398 (S.D.N.Y. 2009). As discussed above, filing a misbehavior report constitutes an adverse action. Gill , 389 F.3d at 384. The issue, then, is whether Plaintiff has established a causal connection between his protected conduct and Defendant McIntyre’s adverse action.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and an adverse action. Baskerville , 224 F. Supp. 2d at 732. First, regarding temporal proximity, Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer sometime after December 2, 2010. (Dkt. No. 9 ¶¶ 11-12.) Defendant McIntyre issued the misbehavior reports on December 30, 2010. (Dkt. No. 90-19 at 4-5.) Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Second, as discussed above, Plaintiff cannot establish that he had a good disciplinary record before writing the letter of complaint. (Dkt. No. 90-15.) Third, Plaintiff was not vindicated at the disciplinary hearing. (Dkt. No. 90-19 at 1.) Fourth, regarding statements by Defendant McIntyre regarding his motivation, Plaintiff has alleged only that Defendant McIntyre was “upset” and “retaliated.” (Dkt. No. 99 ¶ 40.) He has not alleged any specific statements by Defendant McIntyre. Thus, timing appears to be the only factor supporting a finding of causal connection. As discussed above, timing alone is insufficient to support a finding of causal connection. Slattery , 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection element of his retaliation claim against Defendant McIntyre. Therefore, I recommend that the Court grant Defendants’ motion and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendant Miller is personally responsible for the alleged violation of due process rights at the disciplinary hearing because he affirmed the finding on appeal. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 16-18, 25-28.) Defendants argue that Defendant Miller was not personally involved, that there was no violation of due process on the merits, and that Defendant Miller is entitled to qualified immunity. For the reasons discussed below, I recommend that the Court find that Defendant Miller was personally involved, find that there was no due process violation on the merits, decline to address the qualified immunity argument, and dismiss this claim against Defendant Miller.

a. Personal Involvement Defendants argue that Defendant Miller was not personally involved in the alleged constitutional violation. (Dkt. No. 90-2 at 16-18.) For the reasons discussed below, I recommend that the Court reject this argument.

Under Second Circuit precedent, “‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’” Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some “tangible connection” between the unlawful conduct and the defendant. Bass v. Jackson , 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere linkage to the unlawful conduct through the prison chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cnty. v. Dodson , 454 U.S. 312, 325 (1981); Richardson v. Goord , 347 F.3d 431, 435 (2d Cir. 2003) (per curiam); Wright , 21 F.3d at 501; Ayers v. Coughlin , 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). In other words, supervisory officials may not be held liable merely because they held positions of authority. Black v. Coughlin , 76 F.3d 72, 74 (2d Cir. 1996) (citations omitted). Rather, supervisory personnel may be considered personally involved if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon , 58 F.3d at 873 (citations omitted). ^[10]

Earlier in this litigation, Defendants moved to dismiss the claims against Defendant Miller for lack of personal involvement. (Dkt. No. 58-3 at 5-7. ^[11] ) The Court denied that motion, noting that, while district courts are split on the issue, the better view is that affirming a disciplinary decision constitutes personal involvement. (Dkt. No. 80 at 18-20; Dkt. No. 83.) Defendants have not addressed that aspect of the Court’s earlier decision. (Dkt. No. 90-2 at 16- 18.) For instance, Defendants have not argued that the Court should change course and adopt the view of the district courts holding that affirming a disciplinary decision is not sufficient to constitute personal involvement. Id. Instead, Defendants’ personal involvement argument centers on distinguishing the case of Grullon v. City of New Haven , 720 F.3d 133 (2d Cir. 2013). That case deals with a personal involvement issue–the receipt of letters of complaint–that is different than the issue presented here regarding Defendant Miller. Because Defendants have not advanced any argument sufficient to alter the Court’s earlier ruling, I recommend that the Court decline to dismiss the due process claim against Defendant Miller on personal involvement grounds.

b. Merits Defendants argue that Plaintiff’s due process rights were not violated during the January 12, 2011, disciplinary hearing and that, accordingly, Defendant Miller cannot be held liable for affirming the decision. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion for summary judgment on this ground and dismiss this claim against Defendant Miller.

Plaintiff received advanced written notice of the claims against him. (Dkt. No. 90-19 at 3.) Plaintiff received a written statement of the disposition, which stated that the hearing officer relied on the misbehavior reports and Plaintiff’s testimony in reaching his disposition and imposed the punishment “to serve as a deterrent for future misconduct.” Id. at 2. Plaintiff did not request any witnesses, not even the inmate with whom he exchanged food and the inmate to whom he exchanged the “unknown item.” Id. at 3. At the hearing Plaintiff asserted that he had requested a copy of the video from the date in question. (Dkt. No. 90-20 at 2.) The hearing officer stated that he had “no indication” of that request. Plaintiff stated that “the video I requested, would show that–I didn’t pass nothing on.” Id. at 5. Testimony from the other inmates presumably could have served as an adequate proof for this assertion, but Plaintiff did not request it. Thus, he cannot raise a triable issue of fact that he was prejudiced by the denial of the video evidence.

Regarding the issue of whether the non-defendant lieutenant was a fair and impartial hearing officer, evidence in the record supports his ruling. Specifically, he had the misbehavior reports and was present to judge Plaintiff’s credibility in the hearing room. Thus, I recommend that the Court find that the hearing officer did not violate Plaintiff’s due process rights. Accordingly, Defendant Miller, who simply affirmed the decision, cannot be held liable and I recommend that the Court grant Defendants’ motion and dismiss this claim against Defendant Miller.

Because I have recommended that the Court grant the motion for summary judgment of this claim on the merits, I decline to address Defendants’ qualified immunity argument.

D. January 3, 2011, Misbehavior Report

1. Facts

The record shows that Defendant McIntyre issued another misbehavior report against Plaintiff on January 3, 2011. (Dkt. No. 90-21 at 4.) The report stated that Defendant McIntyre, while walking behind Plaintiff from the C Block to the school, noticed that Plaintiff’s rear pocket was bulging. Id. Defendant McIntyre ordered Plaintiff to take all items out of his pockets and place them on the desk. Id . After Plaintiff did so, Defendant McIntyre frisked Plaintiff and found matches, a pen, and some pictures still in his pockets. Id. The report states that Plaintiff then became verbally abusive and threatened to write Defendant McIntyre up. Despite Defendant McIntyre’s order to be quiet, Plaintiff yelled that Defendant McIntyre was harassing him. Id. Defendant McIntyre charged Plaintiff with refusing to obey a direct order, threats, failure to comply with frisk procedures, possessing articles in an unauthorized area, and harassment. Id. Plaintiff pleaded not guilty to all of the charges. Id. at 3.

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on January 5, 2011. (Dkt. No. 90-21 at 1.) During his testimony, Plaintiff admitted that he had pictures in his pocket. (Dkt. No. 90-22 at 4-5.) Defendant McDermott found Plaintiff not guilty of threats and guilty of possessing property in an unauthorized area, harassment, refusing a direct order, and failing to comply with frisk procedures. (Dkt. No. 90-21 at 1.) Defendant McDermott sentenced Plaintiff to fifteen days of keeplock and loss of privileges, along with fifteen days that had previously been deferred. Id. Plaintiff served the keeplock sentence from January 3, 2011, through February 2, 2011.

Broadly construed, the complaint asserts retaliation claims against Defendants McIntyre and McDermott and a due process claim against Defendant McDermott.

2. Retaliation

Plaintiff claims that Defendants McIntyre and McDermott retaliated against him for his complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss these claims.

Regarding the first element of Plaintiff’s retaliation claim, as discussed above, writing a letter of complaint to a superior officer is at least arguably protected conduct. Jones , 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill , 389 F.3d at 384. Thus, the issue is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and adverse action. Baskerville , 224 F. Supp. 2d at 732. First, as with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer sometime after December 2, 2010. (Dkt. No. 9 ¶¶ 11-12.) The record shows that Defendant McIntyre issued the misbehavior report on January 3, 2011, and that Defendant McDermott conducted the disciplinary hearing on January 5, 2011. (Dkt. No. 90-21 at 1, 4.) Thus, Plaintiff has established temporal proximity. Second, as noted above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Third, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-21 at 1.) Finally, Plaintiff does not allege any specific statements by either Defendant McIntyre or Defendant McDermott connecting his letter of complaint to Defendant Fischer to this misbehavior report and disciplinary hearing. (Dkt. No. 9; Dkt. No. 99.) Thus, again, timing appears to be the only factor supporting a finding of causal connection. As established above, timing alone is insufficient. Slattery , 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection of his retaliation claims against Defendants McIntyre and McDermott. Therefore, I recommend that the Court grant Defendants’ motion and dismiss this claim.

3. Due Process

Plaintiff claims that Defendant McDermott violated his right to due process during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-21 at 3.) He did not request any witnesses. Id. Plaintiff received a written statement of Defendant McDermott’s disposition, which stated that Defendant McDermott relied on the misbehavior report in reaching his disposition and imposed the punishment “[t]o impress upon this inmate not to act in this manner.” at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports Defendant McDermott’s ruling. Specifically, Plaintiff admitted in his hearing testimony that he had pictures in his pocket. (Dkt. No. 90-22 at 4-5.) Accordingly, Defendant McDermott’s decision was not arbitrary. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss this claim.

E. January 21, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about January 12, 2011, he wrote to Defendant Fischer complaining about the “constant harassment” by the staff at Coxsackie Correctional Facility. (Dkt. No. 9 ¶ 16.)

The record shows that a non-defendant correctional officer issued two misbehavior reports to Plaintiff on January 21, 2010. (Dkt. No. 90-23 at 5-6.) In the first, the officer charged Plaintiff with disobeying a direct order and creating a disturbance because he refused to stop yelling across the tier to another inmate. Id. at 5. In the second, issued a little more than an hour later, the officer charged Plaintiff with unauthorized exchange, lying to staff, and disobeying a direct order after seeing Plaintiff exchange stamps for tobacco via a “string-like line” between Plaintiff’s cell and another inmate’s cell. Id. at 6. Plaintiff pleaded not guilty to all charges. Id . at 3.

Defendant McDermott conducted the disciplinary hearing on the misbehavior reports on January 25, 2011. (Dkt. No. 90-23 at 1.) Defendant McDermott found Plaintiff guilty of all charges and sentenced him to forty-five days of keeplock and loss of privileges. Id. Plaintiff served the keeplock sentence from February 2, 2011, to March 19, 2011. Defendant Miller affirmed the decision. (Dkt. No. 90-15 at 5-6.)

Broadly construed, the complaint asserts retaliation and due process claims against Defendant McDermott and a due process claim against Defendant Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McDermott retaliated against him for his letter of complaint to Defendant Fischer by finding him guilty at the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

Regarding the first element of Plaintiff’s retaliation claim, as discussed above, writing a letter of complaint to a superior officer is at least arguably protected conduct. Jones , 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, imposing a keeplock sentence constitutes adverse action. Gill , 389 F.3d at 384. Thus, the issue is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As noted above, courts consider four factors when determining the causal connection issue. Baskerville , 224 F Supp. 2d at 732. Regarding the first factor, Plaintiff has raised a triable issue of fact as to temporal proximity by alleging that he wrote to Defendant Fischer on January 12, 2011, and that Defendant McDermott conducted the disciplinary hearing on January 25, 2011. (Dkt. No. 9 ¶ 16; Dkt. No. 90-23 at 1.) Regarding the second factor, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter or on appeal. (Dkt. No. 90-15 at 5-6; 90-23 at 1.) Regarding the fourth factor, Plaintiff has not alleged that Defendant McDermott made any comments regarding his motivation at the January 25, 2011, disciplinary hearing. (Dkt. No. 9; Dkt. No. 99 ¶¶ 64-73.) Thus, timing appears to be the only factor supporting a finding of causal connection. As previously discussed, timing alone is insufficient to support such a finding. Slattery , 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection element of his retaliation claim against Defendant McDermott. Therefore, I recommend that the Court grant Defendants’ motion and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendants McDermott and Miller violated his due process rights by finding him guilty at the disciplinary hearing and affirming that decision. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant the motion and dismiss these claims.

Plaintiff received advanced written notice of the claims against him. (Dkt. No. 90-23 at 3.) Plaintiff requested that Inmate Bush testify, and that request was granted. ^[12] Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior reports in reaching his decision and that he imposed the punishment “[t]o impress upon this inmate that this type of misconduct will not be tolerated.” at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior reports, Inmate Bush’s testimony, and Plaintiff’s testimony. (Dkt. No. 90-24.) He was able to weigh the credibility of the witnesses who appeared before him. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff’s due process rights during his conduct of the hearing or that Defendant Miller violated Plaintiff’s due process rights by affirming the decision. Therefore, I recommend that the Court grant Defendants’ motion and dismiss these claims.

F. March 28, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about March 27, 2011, he wrote another letter to Defendant Fischer complaining about harassment. (Dkt. No. 9 ¶ 17.) Plaintiff alleges that after writing the letter, he was released from keeplock confinement and moved back to Cellblock C-3 where he “became a target of harassment” by Defendant McIntyre. (Dkt. No. 9 ¶ 18.)

Plaintiff alleges that on or about March 28, 2011, he returned to his cell block from the prison law library. (Dkt. No. 9 ¶ 19.) Defendant McIntyre saw Plaintiff and stated to Defendant Catlin, “King like[]s to write complaint[]s against officer[]s in Coxsackie and you know what we do to people like him.” Id. Defendant Catlin smiled and stated, “[Y]es, we do like we always do, jump on them and write tickets.” Id. Defendant Catlin declares that this exchange “never happened and is fabricated.” (Dkt. No. 90-5 ¶ 6.)

Plaintiff alleges that on or about March 28, 2011, Defendant Catlin wrote Plaintiff a false misbehavior report and stated, “[T]his is only the beginning, you will be seeing move [sic] from my pals soon.” (Dkt. No. 9 ¶ 20.) The record shows that in the report, Defendant Catlin stated that when he instructed Plaintiff to stop smoking in his cell, Plaintiff said “You caught me. I may as well finish my smoke.” (Dkt. No. 90-25 at 4.) Defendant Catlin charged Plaintiff with disobeying a direct order and smoking. Id. Defendant Catlin declares that he issued the misbehavior report because he witnessed Plaintiff engaging in prohibited conduct, not in retaliation for protected conduct. (Dkt. No. 90-5 ¶ 7.) Indeed, he declares that he was not aware at the time that Plaintiff had written any letters of complaint. Id. Plaintiff pleaded not guilty to both charges. (Dkt. No. 90-25 at 3.)

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on April 6, 2011. (Dkt. No. 90-25 at 1.) Plaintiff alleges that he explained to Defendant McDermott that the misbehavior report was motivated by his complaints against staff. (Dkt. No. 9 ¶ 23.) Plaintiff alleges that he explained to Defendant McDermott that he had been threatened in response to his complaints. Plaintiff testified that he was not smoking and that the misbehavior report was false. (Dkt. No. 90-26 at 3-4.) Defendant McDermott found Plaintiff guilty and sentenced him to thirty days in keeplock, suspended and deferred, plus loss of privileges. (Dkt. No. 90-25 at 1.) Plaintiff alleges that when the disciplinary hearing was over, Defendant McDermott turned off the tape recorder and stated, “[Y]ou picked the wrong one to write a complaint against, Officer McInty[re] is my brother in law.” (Dkt. No. 9 ¶ 23.)

Broadly construed, the complaint asserts retaliation claims against Defendants Catlin and McDermott and a due process claim against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff claims that Defendants Catlin and McDermott retaliated against him for his letters of complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court deny Defendants’ motion.

Regarding the first element of Plaintiff’s retaliation claim, complaining to a superior officer is at least arguably protected conduct. Jones , 665 F. Supp. 2d at 398. Regarding the second element, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill , 389 F.3d at 384. The issue, then, is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Catlin issued the misbehavior report on March 28, 2011. (Dkt. No. 90-25 at 4.) Defendant McDermott conducted the disciplinary hearing on April 6, 2011. at 1. Thus, Plaintiff has established temporal proximity. Regarding the second factor, as reviewed above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. Id.

Regarding the fourth factor, Plaintiff alleges statements by both Defendant Catlin and Defendant McDermott suggesting that they had retaliatory motives for their actions. Plaintiff alleges that Defendant Catlin said that “we always . . . write tickets” on inmates who write complaints. (Dkt. No. 9 ¶ 19.) Defendant Catlin declares that he never made that statement (Dkt. No. 90-5 ¶ 6) Plaintiff alleges that Defendant McDermott said, “[Y]ou picked the wrong one to write a complaint against, Officer McInty[re] is my brother in law.” ¶ 23. Defendant McDermott declares that he “never retaliated against Mr. King for filing grievances or letters of complaint.” (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff’s allegations about their statements are “baseless” because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) The parties’ contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. “Credibility determinations . . . are jury functions, not those of a judge.” Anderson , 477 U.S. at 255; see also Rule v. Brine, Inc ., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show “that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.” Gayle , 313 F.3d at 681 (citations omitted). Unlike the November 30, 2010, misbehavior report discussed in Section III(A)(2) above, the parties dispute whether Plaintiff committed the conduct charged in the misbehavior report. Unlike situations in which Plaintiff admitted, either at the disciplinary hearing or at his deposition, that he committed some or all of the charged conduct, Plaintiff flatly denies that he was smoking in his cell. (Dkt. No. 90-26 at 3-4; Dkt. No. 99 ¶¶ 74-75.) Therefore, Plaintiff has raised a triable issue of fact that Defendants Catlin and McDermott retaliated against him. Accordingly, I recommend that the Court deny Defendants’ motion for summary judgment of this claim.

3. Due Process

Plaintiff claims that Defendant McDermott violated his right to due process during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss this claim.

Plaintiff received written notice of the charges against him. (Dkt. No. 90-25 at 3.) Plaintiff did not request any witnesses. Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior report in reaching his decision and that he imposed the punishment “[t]o impress upon the inmate to follow the smoking policy.” at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report and Plaintiff’s testimony. (Dkt. No. 90-26.) He was able to weigh Plaintiff’s credibility. Accordingly, his decision was not arbitrary. ^[13] Thus, there is no triable issue of fact that Defendant McDermott violated Plaintiff’s due process rights during his conduct of the hearing. Therefore, I recommend that the Court grant Defendants’ motion and dismiss this claim.

G. April 5, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about April 5, 2011, Defendant Stevens stated to Plaintiff, “I heard that you like to write complaint[]s against staff. Well you pick[ed] the wrong one this time.” (Dkt. No. 9 ¶ 21.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 8.)

Plaintiff alleges that later that day, upon returning to his cell from a program, his cell had been searched and he had received a misbehavior report issued by Defendant Stevens. (Dkt. No. 9 ¶ 22.) The record shows that the misbehavior report charged Plaintiff with possessing unauthorized expired medication, creating a fire safety hazard, and being noncompliant with cell orderliness rules. (Dkt. No. 90-27 at 4.) In the misbehavior report, Defendant Stevens stated that, while making a security round, he noticed an antenna hanging out of Plaintiff’s cell window. The antenna was constructed of bare wires, covered wires, and a can opener. Id. While investigating the antenna, Defendant Stevens also confiscated twenty Naproxen pills and a vial of cream that had been issued to Plaintiff at Attica Correctional Facility. Id. Defendant Stevens declares that, at the time he issued the misbehavior report, he was not aware that Plaintiff had written letters of complaint. (Dkt. No. 90-11 ¶ 9.)

The record shows that Defendant McDermott conducted the disciplinary hearing on April 15, 2011. ^[14] (Dkt. No. 90-27 at 1.) Plaintiff pleaded not guilty to all charges. Id. at 3. Plaintiff alleges that he explained to Defendant McDermott that the misbehavior report was false and motivated by retaliation for Plaintiff having written complaints against prison staff concerning Plaintiff’s refusing the request to assault another inmate. (Dkt. No. 9 ¶ 26.) Plaintiff alleges that Defendant McDermott stated that he did not care about Plaintiff’s defense and that Plaintiff picked the wrong person to complain about. Id. Defendant McDermott stated that Plaintiff should have done what the correctional officers wanted and that doing so would have saved him from all of his problems. Id. Defendant McDermott found Plaintiff guilty and sentenced him to fifteen days loss of privileges. ^[15] (Dkt. No. 90-27 at 1.)

Broadly construed, the complaint asserts retaliation claims against Defendants Stevens and McDermott and a due process claim against Defendants McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Stevens and McDermott retaliated against him for writing letters of complaint by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss these claims.

Regarding the first element of Plaintiff’s retaliation claim, as discussed above, complaining to a superior officer is at least arguably protected conduct. Jones , 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill , 389 F.3d at 384. The issue, then, is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse actions.

As with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Stevens issued the misbehavior report on April 5, 2011. (Dkt. No. 90-27 at 4.) Defendant McDermott conducted the disciplinary hearing on April 15, 2011. at 1. Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Regarding the second factor, as previously shown, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-27 at 1.)

Regarding the fourth factor, Plaintiff alleges that both Defendant Stevens and Defendant McDermott made statements suggesting that they had retaliatory motives for their actions. Plaintiff alleges that Defendant Stevens said “I heard that you like to write complaint[]s against staff. Well you pick[ed] the wrong one this time.” (Dkt. No. 9 ¶ 21.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 8.) Plaintiff declares that Defendant McDermott said that he did not care about Plaintiff’s defense and that Plaintiff picked the wrong person to complain about. (Dkt. No. 9 ¶ 26.) Defendant McDermott declares that he “never retaliated against Mr. King for filing grievances or letters of complaint.” (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff’s allegations about their statements are “baseless” because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) The parties’ contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. “Credibility determinations . . . are jury functions, not those of a judge.” Anderson , 477 U.S. at 255; see also Rule , 85 F.3d at 1011 (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show “that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.” Gayle , 313 F.3d at 681 (citations omitted). Under Rule 118.21, which Plaintiff was charged with violating, “[i]nmates shall not create a fire, health or safety hazard in any area of the facility by improperly storing flammable materials or other property.” N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(19)(iii). At the disciplinary hearing, Plaintiff asserted that he had not created a fire hazard but admitted that he attached a can opener to wires and hung it out a window. (Dkt. No. 90-28 at 4.) Courts are required to grant prison officials deference in their decisions regarding prison safety. Cutter v. Wilkinson , 544 U.S. 709, 723 (2009). Here, prison officials determined that the presence of a can opener and wires–which Plaintiff admitted having–created a safety hazard. Thus, there is no dispute that Plaintiff committed the conduct charged in the misbehavior report. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendant McDermott violated his due process rights during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court dismiss this claim.

Plaintiff received advanced notice of the claims against him. (Dkt. No. 90-27 at 3.) Plaintiff did not request any witnesses. Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that relied on the misbehavior report in reaching his decision and that he imposed the punishment “[t]o impress upon this inmate not to act in this manner.” at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report and Plaintiff’s testimony before him. (Dkt. No. 90-28.) He was able to weigh Plaintiff’s credibility. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff’s due process rights during the hearing. Therefore, I recommend that the Court grant Defendants’ motion and dismiss this claim.

H. Statements by Defendant Young

Plaintiff alleges that on April 9, 2011, Defendant Young had him brought to the dayroom area of Cellblock C-1. (Dkt. No. 9 ¶ 24.) Plaintiff alleges that in the presence of approximately five other officers, Defendant Young threatened Plaintiff. Id. Defendant Young allegedly told Plaintiff to “drop [Plaintiff’s] complaints and the problems will stop.” Defendant Young allegedly stated that if Plaintiff continued to write complaints, that Plaintiff would “have a hard time here in Coxsackie.” Id. Plaintiff alleges that he refused to drop his complaint and was returned to his cell. Id.

Plaintiff alleges that later in 2011, Defendant Young told Defendant Kane that Plaintiff likes to write complaints and to make sure that Plaintiff gets “the special treatment” while on keeplock. (Dkt. No. 9 ¶ 29.)

Broadly construed, the complaint asserts retaliation claims against Defendant Young as a result of these incidents. Defendants have not addressed these claims. (Dkt. No. 90-2.) For the reasons discussed below, I recommend that the Court sua sponte dismiss these claims because Plaintiff has not alleged any facts plausibly suggesting that Defendant Young took adverse action against him.

Under some circumstances, verbal threats may constitute adverse action, depending on their degree of specificity and the context in which they are uttered. See, e.g. , Hepworth v. Suffolk County , No. 2:02-cv-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (denying summary judgment where “continued verbal threats” that inmate “would receive another beating or be killed” was sufficient “evidence . . . such that a reasonable jury could find that the officers unconstitutionally retaliated against [inmate] . . . for exercising his First Amendment” rights). Thus, vague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim. See, e.g., Bartley v. Collins , No. 95 Civ. 10616, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (stating that “verbal threats such as ‘we going to get you, you better drop the suit,’ do not rise to the level of adverse action”) (citing Dawes , 239 F.3d at 493, for the proposition that “[n]ot every unnecessary statement of a prison guard regarding an inmate’s exercise of free speech violates the First Amendment”) ; Alicea v. Howell , 387 F. Supp.2d 227, 237 (W.D.N.Y.2005) (defendant’s “alleged statements to plaintiff about there being ‘no secrets in prison’ and that plaintiff would ‘have to pay the consequences’ for filing a grievance against [defendant] d[id] not give rise to a First Amendment retaliation claim”); Cruz v. Hillman , No. 01 Civ. 4169, 2002 WL 31045864, at *7 (S.D.N.Y. May 16, 2002) (allegation that defendant made statement which “expressed his dislike for inmates who file civil lawsuits, and later came to plaintiff’s cell and said ‘Green Haven is an open battlefield, so be careful’ ” was insufficient to state retaliation claim).

Bumpus v. Canfield , 495 F. Supp. 2d 316, 326 (W.D.N.Y. 2007) (allegation that correctional officer “chastised” prisoner and said that he was “getting tired of” prisoner filing grievances insufficient to state a retaliation claim). Plaintiff’s allegations about Defendant Young are not distinguishable from the type of statements held to be non-actionable. Therefore, I recommend that the Court dismiss the retaliation claims against Defendant Young sua sponte pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2).

I. April 13, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about April 13, 2011, Defendant Stevens stated to Plaintiff, “[Y]ou [are] still here, you’re not [on] keeplock. Well I will take care of that.” (Dkt. No. 9 ¶ 25.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 11.)

The record shows that Defendant Stevens issued a misbehavior report to Plaintiff on April 13, 2011, charging him with possessing gang-related literature, possessing handwritten material to a potential hate crime, possession of altered state property, possession of prohibited items, and possession of excess property. (Dkt. No. 90-31 at 4.) According to the misbehavior report, Defendant Stevens discovered seven categories of contraband in Plaintiff’s cell during an assigned daily cell search. Id. These ranged from altered sheets and extra sweatshirts to twelve photographs “depicting gang hand signs and potential criminal activity including an order to murder.” Id. A note on the back of one of the photographs said, “If you see this cat don’t trust him or just kill him!” Id. at 10. A note on the back of another said, “Silk the bitch ass cat!” Id. Defendant Stevens declares that he did not issue the misbehavior report in order to retaliate against Plaintiff. (Dkt. No. 90-11 ¶ 12.) Rather, he declares, he issued the misbehavior report because Plaintiff was in violation of facility rules. Id. In particular, he declares that, based on his training in gang recognition and signs of gang activities, he was concerned about the photographs. Id. ¶¶ 13-15.

The record shows that Defendant McDermott began conducting the disciplinary hearing regarding the misbehavior report on April 15, 2011. (Dkt. No. 90-31 at 1.) Plaintiff pleaded not guilty to all charges. Id. at 3. The hearing was continued to May 6, 2011. Id. at 1. Defendant McDermott found Plaintiff guilty of all charges and sentenced him to thirty days of keeplock, loss of privileges, and confiscation of some property. Id. Plaintiff served the keeplock sentence from June 14, 2011, to July 14, 2011. Defendant Miller affirmed the decision. (Dkt. No. 90- 15 at 6.)

Broadly construed, the complaint asserts retaliation claims against Defendants Stevens and McDermott and due process claims against Defendants McDermott and Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Stevens and McDermott retaliated against him for writing letters of complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss these claims.

Regarding the first element of Plaintiff’s retaliation claims, complaining to a superior officer is at least arguably protected conduct. Jones , 665 F. Supp. 2d at 398. Regarding the second element, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill , 389 F.3d at 384. The issue, then, is whether Plaintiff has a raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As with the claims discussed above, Plaintiff has raised a triable issue of fact regarding temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Stevens issued the misbehavior report on April 13, 2011. (Dkt. No. 90-31 at 4.) Defendant McDermott began the disciplinary hearing on April 15, 2011. at 1. Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Regarding the second factor, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-31 at 1.)

Regarding the fourth factor, Plaintiff alleges that Defendant Stevens said “[Y]ou’re not [on] keeplock. Well I will take care of that” on the same day he issued the misbehavior report. (Dkt. No. 9 ¶ 25.) Defendant Stevens denies making that statement. (Dkt. No. 90-11 ¶ 11.) Plaintiff declares that Defendant McDermott said that he did not care about Plaintiff’s defense and that Plaintiff picked the wrong person to complain about. (Dkt. No. 9 ¶ 26.) Defendant McDermott declares that he “never retaliated against Mr. King for filing grievances or letters of complaint.” (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff’s allegations about their statements are “baseless” because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) Again, the parties’ contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. “Credibility determinations . . . are jury functions, not those of a judge.” Anderson , 477 U.S. at 255; see also Rule , 85 F.3d at 1011 (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show “that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.” Gayle , 313 F.3d at 681 (citations omitted). Defendants have met that burden. Plaintiff admitted in testimony at the disciplinary hearing that he did, indeed, have altered sheets, extra sweatshirts, fifty cassette tapes, and two pillows. (Dkt. No. 90-32 at 4.) Plaintiff does not dispute that he possessed the photographs or the content of the notes on the back of them. Viewing the photographs, it was not arbitrary for Defendants to conclude that they depicted gang activity. (Dkt. No. 90-31 at 5-11.) Thus, Defendants have shown that Plaintiff committed the prohibited conduct charged in the misbehavior report. Therefore, I recommend that the Court grant Defendants’ motion for summary judgment and dismiss these claims.

3. Due Process

Plaintiff alleges that Defendants McDermott and Miller violated his right to due process during the disciplinary hearing and by affirming the result of that hearing. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants’ motion and dismiss these claims.

Plaintiff received advanced notice of the charges against him. (Dkt. No. 90-31 at 3.) Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior report in reaching his decision and that he imposed the punishment “[t]o impress upon this inmate that this type of misconduct will not be tolerated.” Id. at 2.

Plaintiff requested six witnesses, and Defendant McDermott allowed two of them to testify. (Dkt. No. 90-31 at 3.) Defendant McDermott refused to call the package room sergeant to testify about Plaintiff’s attempts to get rid of the excessive cassette tapes because “I don’t see what the package room Sergeant is going to tell me other than what I already know, that you have more tapes than you[’re] supposed to and yeah, you may have been making a step toward getting rid of them, but you didn’t.” (Dkt. No. 90-32 at 8.) Defendant McDermott refused to call two mental health staff members, who Plaintiff said would testify that he had informed them about harassment by correctional officers. at 8-12. It is not clear from the record why Defendant McDermott refused to call Defendant Superintendent Martuscello as a witness.

Defendant McDermott’s refusal to call the witnesses did not violate Plaintiff’s right to due process. An inmate’s right to call witnesses is not the same as a defendant’s in a criminal trial, but rather is qualified by the circumstances of prison life. Wolff , 418 U.S. at 566-67. The Supreme Court has stated that disciplinary hearing officers must have the discretion to deny witnesses, noting that valid bases for the denial of witnesses would include irrelevance, lack of necessity, and other hazards particular to each case. Id . Here, Defendant McDermott reasonably concluded that the proposed witnesses would offer duplicative testimony.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report, Plaintiff’s testimony, and the testimony of two witnesses before him. (Dkt. No. 90-32.) He was able to view the photographs and property discovered in Plaintiff cell. He was able to weigh the witnesses’ credibility. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff’s due process rights during the hearing or that Defendant Miller violated Plaintiff’s due process rights by affirming the decision. Therefore, I recommend that the Court grant Defendants’ motion and dismiss these claims.

J. June 6, 2011, Separation From Other Inmates

Plaintiff alleges that on or about June 6, 2011, Defendant Kane separated Plaintiff from the rest of the inmates during keeplock recreation as retaliation for the complaints Plaintiff wrote against Defendants. (Dkt. No. 9 ¶ 29.) Defendants have not addressed this claim. (Dkt. No. 90- 2.) I recommend that the Court dismiss this claim sua sponte for lack of adverse action. “Case law suggests that the isolated or sporadic denial of privileges do not suffice to state a claim of actionable retaliation.” Lunney v. Brureton , No. 04 Civ. 2438 (LAK) (GWG), 2007 U.S. Dist. LEXIS 38660, at *65-66, 2007 WL 1544629, at *20-21 (S.D.N.Y. May 29, 2007 ^[16] ) (collecting cases). ^[17] Here, Plaintiff does not even allege that he was denied privileges. He alleges that he was separated from other inmates during recreation, not that he was denied recreation. Therefore, I recommend that the Court dismiss this claim sua sponte.

K. Defendants Fischer and Martuscello

Defendants move for summary judgment of the claims against Defendants Fischer and Martuscello for lack of personal involvement. (Dkt. No. 90-2 at 16-18.) The claims against Defendant Martuscello should be dismissed for lack of personal involvement because there is no evidence that he was involved in any way with the surviving claim against Defendants Catlin and McDermott. ( See Dkt. No. 90-15 at 6.) Similarly, given the lack of record evidence about what any letters that Plaintiff wrote to Defendant Fischer said or whether those letters were sent to Defendant Fischer’s proper address, it is recommended that the claims against Defendant Fischer also be dismissed for lack of personal involvement.

ACCORDINGLY , it is

RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 90) be GRANTED IN PART AND DENIED IN PART . Specifically, I recommend that the Court dismiss all claims except the retaliation claims against Defendants Catlin and McDermott arising from the March 28, 2011, misbehavior report and the April 6, 2011, disciplinary hearing on that report; and it is further

RECOMMENDED that the Court sua sponte dismiss the claims against Defendants Young and Kane; and it is further

ORDERED that the Clerk provide Plaintiff with a copy of Lunney v. Brureton , No. 04 Civ. 2438 (LAK) (GWG), 2007 U.S. Dist. LEXIS 38660, 2007 WL 1544629 (S.D.N.Y. May 29, 2007); and it is further

ORDERED that the Clerk amend the caption to change the spelling of Defendant “C.O. Hessle”’s last name to “Hoessle” and the spelling of Defendant “C.O. McIntyer”’s last name to “McIntyre.”

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 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. Sec’y of Health and Human Servs. , 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a).

Dated: March 17, 2015

Syracuse, New York

Lunney v. Brureton, Not Reported in F.Supp.2d (2007)

2007 WL 1544629 Benjamin Lee, Assistant Attorney General, New York, NY, 2007 WL 1544629 for Defendants.

Only the Westlaw citation is currently available. United States District Court,

S.D. New York. REPORT AND RECOMMENDATION George LUNNEY, Plaintiff, GABRIEL W. GORENSTEIN, United States Magistrate v. Judge. Lieutenant BRURETON, et al., Defendants. TABLE OF CONTENTS No. 04 Civ. 2438(LAK)(GWG). | May 29, 2007.

Attorneys and Law Firms

George Lunney, Elmira, NY, pro se.

I. BACKGROUND .................... 2

A. Facts ...................... 2 B. Procedural History ............... 5 II. APPLICABLE LAW ................ 8

A. Standard of Review on Summary Judgment Motions ................ 8 B. Exhaustion ................. 10 1. PLRA ............... 10 2. New York's Inmate Grievance Program% i .......... 11 III. DISCUSSION .................... 12

A. Eighth Amendment Claim Relating to Food in the SHU ............... 12 B. Eighth Amendment Claim of Excessive Force ........ 16 1. Exhaustion .................. 16 2. Merits .................... 21 C. Eighth Amendment Claims Based on Lack of Laundry Services and Personal Hygiene Items 26 ......................

1. Laundry Services ............... 2 7 2. Plumbing Problems and Failure to Provide Personal Hygiene Items ..... 28 3. Personal Involvement .................. 30 D. First Amendment Retaliation Claims ............... 30 1. Law Governing First Amendment Retaliation ............ 31 © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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2. Claims against Fischer ............... 32 3. Claims against Blot ............... 34 a. Exhaustion of Claims Against Blot% i .......... ........... 34 b. The Merits of Lunney's Allegation that Blot Denied Him Showers, Meals, ........... 37 and Recreation ............

i. Adverse Action......................................................................... 38 ii. Causal Connection................................................................... 40 c. The Merits of Lunney's Allegation that Blot Filed a False Misbehavior ........... 41 Report ...............

d. The Merits of Lunney's Allegation that Blot Threatened Physical ........... 43 Violence ..............

e. The Merits of Lunney's Allegation of Retaliatory Assault ..... ........... 45 4. First Amendment Claim Against Frazier .......... 47 5. First Amendment Claim Against Brereton ........ 47 E. Unfiled Grievances ............... 4 8 F. Fourteenth Amendment Due Process Claims .......... 50 1. Law Governing Disciplinary Proceedings .......... 50 2. Written Disposition of Disciplinary Hearing .......... 51 Conclusion ......................... 55 claim of (1) excessive force against Correction Officers Blot *1 George Lunney, currently an inmate at the Elmira and Frazier and (2) his First Amendment retaliation claims Correctional Facility, has brought this suit pro se under (a) against defendant Officer Blot based on the allegedly 42 U.S.C. § 1983 against employees of the Sing Sing retaliatory assault, threats, and deprivation of recreation and Correctional Facility (“Sing Sing”), where Lunney was showers and (b) against Officer Frazier for his participation previously housed. Lunney alleges that certain defendants in the retaliatory assault. violated his due process rights by improperly conducting a disciplinary hearing that resulted in his confinement in

the Special Housing Unit (“SHU”) of Sing Sing. He further I. BACKGROUND alleges that various defendants were deliberately indifferent The facts described below and later in this Report are drawn to inhumane conditions of confinement in the SHU in largely from Lunney's affidavit. See Plaintiff's Affidavit, filed violation of his Eighth Amendment rights, that he was the June 13, 2006 (Docket # 88) (“Lunney Aff.”). In many victim of an assault, and that he was retaliated against for places, Lunney's affidavit cites to allegations contained in his filing grievances with respect to conditions in the SHU in amended complaint. See Amended Complaint, filed Mar. 24, violation of his rights under the First Amendment. 2005 (Docket # 34) (“Am.Compl.”). That is, the affidavit cites the allegations of the amended complaint without repeating

Defendants now move for summary judgment. As described the substance of the incorporated matters under oath or below, the defendants' motion should be granted, with the penalty of perjury. Because defendants have not objected exception of the portion of their motion concerning Lunney's to this approach, we proceed as if any such incorporated © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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matters in the Amended Complaint were admissible under The rehearing commenced on October 15, 2002. Id. ¶ Fed.R.Civ.P. 56(e). 11; Disciplinary Hearing Transcript (reproduced as Ex. B

to Motion to Dismiss) (“Transcript”). During the hearing, a dispute arose between the hearing officer, Lieutenant A. Facts Brereton, 1 and Lunney. Lunney Aff. ¶ 11 (incorporating On May 21, 2002, Lunney returned to his cell following Am. Compl. ¶ 7); Transcript at 29-37. Lunney requested a “medical shower” to find Correction Officer Hadzovic permission to leave the hearing, Brereton granted him leaving the cell. See Lunney Aff. ¶ 1 (incorporating Am. permission to do so, and Lunney was escorted out. Lunney Compl. at 3 ¶ 1). Hadzovic informed Lunney that he had Aff. ¶ 11 (incorporating Am. Compl. ¶ 7); Transcript at 34-37. just searched his cell. Id. After conducting a pat frisk on Lunney was again found guilty of possessing a weapon and Lunney, Hadzovic reentered the cell and came out with a box sentenced to nine months in the SHU with a corresponding of spaghetti. Id. Hadzovic announced that he would confiscate loss of all privileges. Lunney Aff. ¶ 11 (incorporating Am. the box, which appeared to be altered, and locked Lunney in Compl. ¶ 7); Transcript at 59. his cell. Id. Lunney subsequently filed a request for discretionary review Approximately 45 minutes after Hadzovic left, Correction with Brian Fischer, at that time the Superintendent of Sing Sergeant Guadagno came to Lunney's cell with two other Sing. Lunney Aff. ¶ 13; Am. Compl. at 2. The disciplinary correction officers. Id. (incorporating Am. Compl. ¶ 2). disposition was affirmed by First Deputy Superintendent Paul Guadagno informed Lunney that a “shank type weapon” Kikendall. Lunney Aff. ¶ 13; Am. Compl. at 2. In an appeal was discovered in the confiscated spaghetti box. Id. Lunney to the Commissioner of the New York State Department of asserted that the weapon was not his and that he had Correctional Services, Lunney argued that he had not been merely purchased the spaghetti from the commissary. Id. provided with a copy of the hearing disposition and that Nonetheless, he was escorted to the SHU to await disciplinary Selsky had no authority to order a new disciplinary hearing action. Id. once the action in state court had been filed. Lunney Aff. ¶ 14 (incorporating Am. Compl. ¶ 10). The Acting Director of *2 Lunney received a “Tier III” misbehavior report on Special Housing rejected the appeal on November 7, 2002, May 22, 2002. Id. (incorporating Am. Compl. ¶ 3); Inmate although he reduced Lunney's sentence from nine to six Misbehavior Report (reproduced as Ex. A to Notice of Motion months in the SHU. Id.; Review of Superintendent's Hearing to Dismiss, filed June 10, 2004 (Docket # 15) (“Motion to (reproduced as Ex. D to Motion to Dismiss) (“Hearing Dismiss”)). Following a disciplinary hearing on June 13, Review”). 2002, Lunney was found guilty of possession of a weapon and sentenced to nine months' confinement in the SHU. Lunney filed a second Article 78 petition on November 19, Lunney Aff. ¶ 2 (incorporating Am. Compl. ¶ 4). Lunney filed 2002, with respect to the rehearing. See Article 78 Petition an administrative appeal with Donald Selsky, the Director (reproduced as Ex. E to Motion to Dismiss); Lunney Aff. ¶ 15. of Special Housing/Inmate Disciplinary Program for the On August 13, 2003, Justice Edward Sheridan of the Albany New York State Department of Correctional Services, who County Supreme Court dismissed the misbehavior report and affirmed the disposition on August 22, 2002. Lunney Aff. ¶ ordered the Department of Correctional Services (“DOCS”) 2; Am. Compl. at 2. to expunge all references to the incident from Lunney's institutional record. See Decision, Order and Judgment, dated Lunney then filed a petition pursuant to Article 78 of the Aug. 13, 2003 (reproduced as Ex. D to Combined Affirmation New York Civil Practice Law and Rules in the New York and Memorandum of Law in Opposition to Defendants' State Supreme Court, Albany County. Lunney Aff. ¶ 2. On Motion for Dismissal, filed July 6, 2004 (Docket # 18) (“Pl. September 16, 2002, Justice Thomas J. McNamara issued Opp. to Mot. to Dismiss”)). Justice Sheridan concluded that an order to show cause directing Selsky to respond to the the failure to provide Lunney with a copy of the hearing petition. Id. ¶ 4. On October 3, 2002, Selsky rescinded the disposition was a violation of due process and that Selsky disciplinary determination and ordered a rehearing on the had no authority to order the rehearing once Lunney filed an ground that Lunney had not been given adequate assistance in Article 78 petition in state court. Id. at 3. preparing his defense. Id. ¶ 5. Lunney subsequently withdrew his Article 78 petition. ¶ 9.

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*3 Lunney was confined to the SHU for 180 days, Lunney Feb.23, 2005). Lunney was given the opportunity to replead Aff. ¶ 17, from May 21, 2002, to November 21, 2002. his claims. Lunney I, 2005 WL 121720, at *16. As is described in greater detail below, during this period

Lunney asserts that he was served with cold, spoiled, or Lunney then filed an amended complaint, which restated most poorly prepared food, given inadequate laundry services, of the allegations included in his original complaint. See Id. and denied hygiene items, showers, meals, and recreation ¶¶ 15.It also contained new claims. Significantly, Lunney by SHU staff. Id. ¶¶ 18, 21-23, 29 (incorporating Am. amended his original complaint to include as defendants Compl. ¶ 15(a)-(d), (g)). Lunney also asserts that he was Officers Michael Blot and Parrish Frazier. See Am. Compl. criticized and threatened by SHU staff for filing grievances ¶ 16(h), (i). The claims in the amended complaint are related to prison conditions, and threatened with transfer by as follows: (1) Selsky deprived Lunney of his First and Superintendent Fischer. Id. ¶¶ 28, 30, 31 (incorporating Am. Fourteenth Amendment rights by ordering a new disciplinary Compl. ¶ 15(f)-(h)). Lunney asserts that, on one occasion, hearing and “depriving [him] of his right to challenge the he was physically assaulted by prison guards in retaliation original hearing in a court of law,” see id. ¶ 16(a); (2) Brereton for complaining about conditions in his cell. Lunney Aff. ¶¶ violated Lunney's due process rights by failing to provide 24-25 (incorporating Am. Compl. ¶ 15(e)(1)-(2)). him with a written copy of the disposition for the hearing on

October 17, 2002, id. ¶ 16(f); (3) Robert Murphy, Fischer, and Kikendall violated Lunney's due process rights by failing B. Procedural History to remedy Lieutenant Brereton's failure to provide a copy The original complaint in this action was filed on March of the disposition, id. ¶¶ 16(b)-(d); (4) Fischer violated 29, 2004. See Complaint (Docket # 2) (“Compl.”). It alleged Lunney's First Amendment rights by threatening to transfer the following claims: (1) violation of due process when him in retaliation for filing grievances, id. ¶ 16(c); (5) Fischer Selsky convened a new disciplinary hearing while the Article failed to remedy the “numerous sub-standard conditions of 78 review of the first hearing was pending, Compl. at 7 confinement in the S.H.U.,” and subjected him to “forced (¶ 1); (2) violation of due process based on the failure to labor without pay,” id.; (6) Sean Kober violated Lunney's First provide Lunney with a timely written disposition of the and Eighth Amendment rights by failing “to operate the Sing second hearing, Compl. ¶ 8; (3) that in violation of the Sing I.G.R.C. in accordance with D.O.C.S. policy and thus[ ] Eighth Amendment, Lunney was subject to “overall poor” deprived plaintiff of his means to petition the government conditions of confinement in the Sing Sing SHU, see id. at 7 for the redress of grievances,” id. ¶ 16(e); (7) Anthony Chu (¶ 3), including the service of cold, spoiled, and improperly violated Lunney's Eighth Amendment rights by failing to prepared food; inadequate laundry services; inadequate law remedy “the many problems that existed with the S.H.U. library services; and inadequate reading material, Compl. ¶ food service program and for failing to provide plaintiff with 16; and (4) that he was retaliated against for filing grievances wholesome, nutritious and properly prepared meals,” id. ¶ with respect to conditions in the SHU, id. ¶¶ 17, 19; id. at 7 16(g); (8) Blot violated Lunney's First, Eighth, and Fourteenth (¶ 2), in violation of his rights under the First Amendment. Amendment rights by (a) assaulting him, threatening and Lunney sought $10 million in punitive and/or compensatory harassing him, and depriving him of showers, meals and damages. Id. at 8. recreation, all in retaliation for Lunney's filing of grievances; (b) by co-signing a misbehavior report against Lunney for an Defendants filed a motion to dismiss. See Defendants' incident in which Blot was not involved; (c) by threatening Memorandum of Law in Support of Their Motion to Dismiss, Lunney for making complaints against other staff members; filed June 10, 2004 (Docket # 16). On February 23, 2005, (d) by depriving Lunney of access to clean clothing and/or this Court dismissed all of Lunney's claims except for: (1) failing to ensure that the clothing was laundered; (e) by failing his Eighth Amendment claim against Fischer with regard to to provide Lunney with basic hygiene items; and (f) by failing improperly prepared food; (2) his First Amendment claim to remedy the plumbing problems in Lunney's SHU cell, id. against Fischer alleging that he was threatened with physical ¶ 16(h); and (9) Frazier violated Lunney's First and Eighth retaliation for filing grievances; and (3) his due process Amendment rights by assisting Blot in the aforementioned claim against Brereton regarding the failure to receive a violations. ¶ 16(i). written disposition of his disciplinary hearing. See Lunney v. Brureton, 2005 WL 121720, at *16 (S.D.N.Y. Jan.21, 2005)

( “Lunney I” ), adopted by, 2005 WL 433285, at *1 (S.D.N.Y.

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2007 WL 1544629 offer “concrete evidence from which a reasonable juror could *4 On April 24, 2006, defendants moved for summary return a verdict in his favor.” Anderson, 477 U.S. at 256.

judgment on all claims. 2 On June 13, 2006, Lunney filed Where “the nonmoving party bears the burden of proof at opposition papers. See Plaintiff's Memorandum in Opposition trial, summary judgment is warranted if the nonmovant fails to Defendants' Motion for Summary Judgment (Docket # to make a showing sufficient to establish the existence of 87) (“Pl.Mem.”); Lunney Aff. Lunney's papers did not an element essential to [its] case.” Nebraska v. Wyoming, include a statement made in response to the Defendants' 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993) 56.1 Statement as required by Local Civil Rule 56.1. (quoting Celotex, 477 U.S. at 322) (internal quotation marks Defendants subsequently filed reply papers. See Defendants' omitted) (alteration in original). Thus, “[a] defendant moving Reply Memorandum of Law in Support of Their Motion for summary judgment must prevail if the plaintiff fails to for Summary Judgment, filed July 28, 2006 (Docket # come forward with enough evidence to create a genuine 91) (“Def. Reply Mem.”); Lee Reply Declaration, filed factual issue to be tried with respect to an element essential July 28, 2006 (Docket # 92) (“Lee Reply Decl.”). Lunney to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir.1996) then submitted a sur-reply memorandum with an additional (citing Anderson, 477 U.S. at 247-48).

affidavit. Plaintiff's Sur-Reply Memorandum, filed Sept. 12,

2006 (Docket # 96) (“Pl.Sur-Reply”); Affidavit, dated Sept. B. Exhaustion 7, 2006 (Docket # 97) (“Sur-Reply Aff.”). 1. PLRA

II. APPLICABLE LAW

*5 The Prison Litigation Reform Act (“PLRA”) provides in A. Standard of Review on Summary Judgment Motions relevant part:

Rule 56(c) of the Federal Rules of Civil Procedure states No action shall be brought with respect

that summary judgment is appropriate when “the pleadings, to prison conditions under section depositions, answers to interrogatories, and admissions on 1983 of this title, or any other Federal file, together with the affidavits, if any, show that there is no law, by a prisoner confined in any jail, genuine issue as to any material fact and that the moving party prison, or other correctional facility is entitled to a judgment as a matter of law.”Fed.R.Civ.P. until such administrative remedies as 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, are available are exhausted. 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists “if the evidence 42 U.S.C. § 1997e(a). Accordingly, “[c]omplete exhaustion is such that a reasonable jury could return a verdict for the of ... administrative remedies through the highest level for nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. each claim is required.” Veloz v. New York, 339 F.Supp.2d 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 505, 514 (S.D.N.Y.), aff'd, 178 Fed. Appx. 39 (2d Cir.2004); see also Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, In determining whether a genuine issue of material fact 152 L.Ed.2d 12 (2002) (“All ‘available’ remedies must now exists, the evidence of the nonmovant “is to be believed” be exhausted; those remedies need not meet federal standards, and the court must draw “all justifiable inferences” in favor nor must they be ‘plain, speedy, and effective.’ ”) (citations of the non-moving party. at 255 (citing Adickes v. omitted). In addition, the exhaustion must be “proper”- S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, that is, “compl[y] with an agency's deadlines and other 26 L.Ed.2d 142 (1970)). Nevertheless, once the moving critical procedural rules because no adjudicative system can party has shown that there is no genuine issue as to any function effectively without imposing some orderly structure material fact and that it is entitled to a judgment as a on the course of its proceedings.” Woodford v. Ngo, --- U.S. matter of law, “the nonmoving party must come forward with ----, ---- - ----, 126 S.Ct. 2378, 2386-87, 165 L.Ed.2d 368 ‘specific facts showing that there is a genuine issue for trial, ’ (2006) (internal citation and quotation omitted). Further, “the ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., PLRA's exhaustion requirement applies to all inmate suits 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) about prison life, whether they involve general circumstances (quoting Fed.R.Civ.P. 56(e)) (emphasis in original), and or particular episodes, and whether they allege excessive “may not rely on conclusory allegations or unsubstantiated force or some other wrong.” Porter, 534 U.S. at 532. The speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d exhaustion requirement applies even when a plaintiff seeks Cir.1998) (citing cases). In other words, the nonmovant must © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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relief not available in prison administrative proceedings, exhausted despite the presence of unexhausted claims. 127 such as monetary damages. See Booth v. Churner, 532 S.Ct. at 923-26.

U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

Nonetheless, an inmate is not required to use this process 2. New York's Inmate Grievance Program where it “was reasonable for the inmate to conclude that his In New York, formal exhaustion for state prisoners generally administrative remedies had been exhausted by [a] positive requires complying with the three-step grievance and appeal disposition” of some informal complaint. Braham v. Clancy, procedure outlined in the Inmate Grievance Program. 425 F.3d 177, 183 (2d Cir.2005); accord Dixon v. Goord, See N.Y. Comp.Codes R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 224 F.Supp.2d 739, 749 (S.D.N.Y.2002) (“The exhaustion 701.5. In brief, an inmate must first file a complaint with requirement is satisfied by resolution of the matter, i.e., the Inmate Grievance Resolution Committee (“IGRC”).7 an inmate is not required to continue to complain after N.Y.C.R.R. § 701.5(a). Next, after receiving a response from his grievances have been addressed.”); Perez v. Blot, 195 the IGRC, the inmate may appeal to the superintendent of F.Supp.2d 539, 546 (S.D.N.Y.2002). the facility. Id. § 701.5(b). Finally, after receiving a response from the superintendent, the prisoner may seek any review In this Circuit, when a plaintiff advances a plausible of the superintendent's decision with the Central Office explanation for his failure to exhaust, a court engages in a Review Committee (“CORC”). § 701.5(c). See Hemphill, three-part analysis: 380 F.3d at 682. Generally, “[a] prisoner has not exhausted his First, the court must ask: whether administrative remedies until he goes through all three levels administrative remedies were in fact of the grievance procedure.” Hairston v. LaMarche, 2006 WL “available” to the prisoner. [Second], 2309592, at *7 (S.D.N.Y. Aug.10, 2006) (citing cases). [t]he court should also inquire ...

whether the defendants' own actions III. DISCUSSION inhibiting the inmate's exhaustion of In his opposition papers, Lunney did not submit a statement in

remedies may estop one or more of the response to the defendants' statement under Local Civil Rule defendants from raising the plaintiff's 56.1. In light of Lunney's pro se status, and in light of the fact failure to exhaust as a defense. [Third], that he submitted an affidavit setting forth his disagreements [i]f the court finds that administrative with the defendants' version of the facts, see Lunney Aff., remedies were available to the the Court will exercise its discretion not to penalize Lunney plaintiff, and that the defendants are for this failure. See, e.g., Phoenix Global Ventures, LLC v. not estopped and have not forfeited Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir.2005) their non-exhaustion defense, but (“district court has inherent authority to determine when to that the plaintiff nevertheless did overlook or excuse a departure from its own local rules”). not exhaust available remedies, the court should consider whether special We now address the claims made in Lunney's amended circumstances have been plausibly complaint. alleged that justify the prisoner's

failure to comply with administrative

procedural requirements. A. Eighth Amendment Claim Relating to Food in the SHU Lunney maintains his Eighth Amendment rights were *6 Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir.2006) compromised when he was served food that was “cold, (citing Hemphill v. New York, 380 F.3d 680, 686 (2d spoiled and poorly prepared” on “a near daily basis” during Cir.2004)) (emphasis and alterations in original); accord his detention in the SHU. See Lunney Aff. ¶ 18; Affirmation Curry v. Mazzuca, 2006 WL 250487, at *6 (S.D.N.Y. Feb.2, of A. Franco, DIN # 01-A-5104, undated (reproduced in Ex. 2006).

E to Lunney Aff.), ¶ 3(a) (milk often spoiled, fruits and vegetables rotten, appearance and quality of meals poor and Finally, in Jones v. Bock, --- U.S. ----, 127 S.Ct. 910, 166 unpalatable, inmates forced to refuse meals on numerous L.Ed.2d 798 (2007), the Supreme Court held that courts occasions); Affirmation of Johnny Casaigne, DIN # 04- must consider claims in a § 1983 complaint that have been

A-2867, undated (reproduced in Ex. E to Lunney Aff.), ¶ 3(a) © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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(same); Deposition of Johnny E. Casaigne, dated June 24, we're supposed to” in terms of “healthy food items.” See 2005 (reproduced as Ex. F to Lunney Aff.), at 27 (“I rarely ate Grievance SS-35888-02, dated July 20, 2002 (reproduced in the food because when it did come it was ... either spoiled, ice Ex. K to Lunney Aff.). It mentions nothing about spoiled food cold or wasn't even cooked right.”); Deposition of Alisjandro or food that posed an immediate health risk to the inmates. Franco, dated June 24, 2005 (reproduced as Ex. G to Lunney Grievance SS-36314-02 mainly states that Lunney received Aff.), at 19 (refused meals “a few times”). Lunney states Rice Krispies for breakfast even though the menu called for that he and other inmates “were often forced to refuse meals Bran Flakes, and thus that he was not receiving the proper due to the poor quality of the food.” See Lunney Aff. ¶ 18. amount of fiber in his diet. See Grievance SS-36314-02, dated Lunney also states that complaints and grievances about these Sept. 24, 2002 (reproduced in Ex. K to Lunney Aff.). It then problems were ignored, and that inmates “had to resort to also makes a brief reference to his food being “ice cold.” Id. refusing entire meals so as to get the attention of” defendants. Thus, neither of these grievances support the broad claims See id. ¶ 19 (incorporating Am. Compl. ¶ 15(a)(1)). Finally, now being made in the complaint.

Lunney alleges that he suffered “[w]eight loss and muscle

atrophy as a result of not receiving adequate meals.” See Id. Lunney also provides a copy of a purported grievance dated ¶ 18 (incorporating Am. Compl. at 18 (¶ 2)), and that on September 29, 2002. See Grievance (reproduced in Ex. K one occasion he and other inmates “became ill after eating,” to Lunney Aff.). This grievance-which defendants contend see Id. ¶ 18.He states that the illness consisted of “stomach was considered as part of SS-36314-02, see Def. Reply Mem. cramping, nausea, slight fever, chills and diarrhea,” and that at 8 n. 2-contains a fleeting reference to “spoiled or rotten the inmates received antacid tablets for their discomfort. food” but gives no specifics on when the serving of such food See id. (incorporating Am. Compl. at 18 (¶ 2)); Ambulatory occurred. This generic and unexplained reference to “spoiled Health Record, dated Aug. 20, 2002 (reproduced as Ex. or rotten food”-included at the end of a grievance that focuses H to Lunney Aff.) (medical records reflecting a doctor's largely on whether the fiber content of the food met dietary assessment of “upset stomach,” for which Lunney was given guidelines-was not sufficient to alert the prison officials as to antacid tablets). Defendants note that Lunney “acknowledged the claims now being made in this complaint. While inmates that other than one alleged incident involving a dinner of are held only to a standard of “notice pleading” in grievances, rice and beans, [he] was never treated for food poisoning see Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004), or spoiled food and that he did not know other inmates in Lunney's grievance statement was far too vague to provide the S.H.U. who were treated for food poisoning or spoiled the defendants with notice of when such spoiled food was food.” See Def. 56.1 ¶ 20 (citing Deposition of George served, in what manner, and with what frequency. It is thus Lunney, dated June 23, 2005 (reproduced as Ex. A to Lee insufficient to have exhausted this claim.

Decl.) (“Lunney Dep.”), at 123).

In any event, Lunney has not met his burden of showing *7 Defendants argue that Lunney has failed to exhaust his he made the required appeals of even this grievance or that claim that the food in the SHU posed a threat to him and the he should be excused from having done so. Although he other SHU inmates. See Def. Mem. at 11. With respect to asserts that this grievance was denied and appealed to the this claim, Lunney does not argue that the grievance process Superintendent, he concedes that he did not appeal it to the was unavailable to him, that there is a basis for estopping CORC, stating only that, based on the Superintendent's reply, defendants from relying on the exhaustion doctrine, or that “an appeal to the C.O.R.C. was unnecessary.”Pl. Sur-Reply at there are other special circumstances excusing his failure to 14. Lunney's general allegations that his grievances “proved exhaust, see Pl. Mem. at 9-10-though, as described further ineffective in correcting the problems with the food” and below, he does make such an argument with respect to the that he made additional verbal complaints, see Lunney Aff. ¶ excessive force and other retaliation claims. See id. at 6-7, 19, do not excuse his failure to exhaust. See, e.g., Curry v. 12-13.Rather, to support his contention that the food claim Fischer, 2004 WL 766433, at *6 (S.D.N.Y. Apr.12, 2004) is exhausted, Lunney cites to grievances SS-35888-02 and (“Since informal channels did not lead to the resolution of SS-36314-02, as well as to “a grievance dated Sept. 29, his complaints, Curry cannot be deemed to have informally 2002 and the letters sent to D.O.C.S. officials.” See id. at exhausted his remedies.”) (citing Hernandez v. Coffey, 2003 9 (citing Ex. K to Lunney Aff.). Grievance SS-35888-02, WL 22241431, at *3 n. 4 (S.D.N.Y. Sept.29, 2003) (informal however, complains only that SHU inmates “received only exhaustion cannot be found where no resolution is reached)); one cup of milk” and that the inmates “do not get what see also Williams v. City of New York, 2005 WL 2862007, at © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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*10 (S.D.N.Y. Nov.1, 2005) (“It is well settled that complaint

letters to DOCS or prison officials do not satisfy the PLRA's Defendants argue that Lunney's failure to exhaust the exhaustion requirements.”). excessive force complaint in a timely fashion should not

be excused for several reasons: (1) the grievances and *8 Lunney makes general claims about the alleged appeals Lunney filed in 2004 at Cayuga were untimely, and mismanagement of the grievance process, see Pl. Mem. at regardless, made no reference to any instance of excessive 71-75, which are discussed further in section III.E below. force by Officers Blot and Frazier, but only to the Tier III However, there is no reason why these alleged failures should hearing and “conditions of confinement” in the SHU, see have excused his obligation to exhaust his claims regarding Def. Reply Mem. at 6; (2) Lunney never mentioned any food. Nor has he shown that he was otherwise prevented from excessive force by Officers Blot and Frazier until he filed filing grievances on food-a fact most obviously demonstrated his amended complaint, id. at 7; and (3) the Second Circuit by the fact that he filed various food-related grievances as excuses failures to exhaust based on threats or retaliation has just been noted. Notably, Lunney asserts that between only where “the record contain[s] documented proof of an February 2002 and March 2004 he filed “more than 100 inmate's prior complaints about the misconduct in a form grievances and more than a dozen complaints with outside other than a grievance along with allegations that an inmate agencies and D.O.C.S. officials regarding nearly every aspect was prevented from making these same complaints in the of his confinement.”Pl. Sur-Reply at 19. form of a grievance.” See id. at 6 (citing Ziemba and Hemphill

).

In sum, Lunney's claim that his Eighth Amendment rights

were violated by the failure of the prison system to provide *9 The first question is whether administrative remedies him with safe food, see Am. Compl. ¶ 16(g), is unexhausted were in fact “available” to Lunney. Brownell, 446 F.3d at and must be dismissed. 311 (citing Hemphill, 380 F.3d at 686). To be available,

an administrative remedy must “afford the possibility of some relief for the action complained of.” Booth, 532 U.S. B. Eighth Amendment Claim of Excessive Force at 738; accord Abney v. McGinnis, 380 F.3d 663, 667 (2d Lunney claims that he was assaulted by Officers Blot and Cir.2004). There is no dispute that the prison “provided Frazier “[d]uring his first week in the S.H.U.” after he grievance procedures that inmates claiming excessive force attempted to notify another officer that his sink and toilet were could utilize,” see Hemphill, 380 F.3d at 686-specifically, broken and he was missing certain personal hygiene items. the three-step process outlined in 7 N.Y.C.R.R. § 701.5. See Lunney Aff. ¶ 24. He states that as a result of this assault, Nor is there any dispute that Lunney used these procedures he suffered a “[s]mall cut to lip and another to left side of jaw frequently both before and after the alleged incident with Blot with bruises and contusions to face and body.” See id. ¶ 25 and Frazier. See Eagen Decl., Exs. A & B. Indeed, Lunney (incorporating Am. Compl. at 18 (¶ 1)). The defendants argue concedes that he “has an extensive history of prosecuting that this claim is unexhausted and that it fails on the merits. grievances.” See Pl. Sur-Reply at 4. See Def. Mem. at 10-11, 30-32. 3

The availability inquiry does not end here, however. In Hemphill, the Second Circuit held that the test for deciding 1. Exhaustion whether ordinary grievance procedures were “available” is an Lunney states that he did not file a grievance against Blot “objective one: that is, would ‘a similarly situated individual and Frazier for this assault until after he was transferred to of ordinary firmness' have deemed them available.”380 F.3d Cayuga Correctional Facility nearly two years later, because at 688 (citing Davis v. Goord, 320 F.3d 346, 353 (2d Blot threatened him with retaliation if he did so, stating that Cir.2003)). The court went on to note that “threats or other “he would receive a misbehavior report for assault on staff if intimidation by prison officials may well deter a prisoner of he ... filed a complaint and claimed any injuries.” See Lunney ‘ordinary firmness' from filing an internal grievance, but not Aff. ¶ 25 (incorporating Am. Compl. ¶ 15(e)(2)). Blot also from appealing directly to individuals in positions of greater told him that if he did file a grievance, “his time in S.H.U. authority within the prison system, or to external structures of would be longer and harsher.” See id. Lunney argues that under authority such as state or federal courts.” See Hemphill, 380 cases such as Ziemba v. Wezner, 366 F.3d 161 (2d Cir.2004), F.3d at 688. his failure to file a timely grievance was “justifiable.” See Pl. Mem. at 5-7.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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Lunney's affidavit suggests that he failed to file a grievance *10 Defendants contend that because Lunney “has no regarding the assault by Officers Blot and Frazier until 2004 corroborated documentation of previously complaining about because Blot threatened him with retaliation if he did so. unconstitutional conduct in some form,” this Court should See Lunney Aff. ¶ 25 (incorporating Am. Compl. ¶ 15(e) not excuse his failure to exhaust this claim. See Def. Reply (2)). Specifically, Lunney has asserted that Blot told him if Mem. at 7. They argue that Hemphill and Ziemba “require[ ]” he filed a grievance about the assault, “he would receive a this result. See id. at 6-7.However, neither Hemphill nor misbehavior report for assault on staff” and that “his time Ziemba held that a plaintiff alleging threats or retaliation in S.H.U. would be longer and harsher.” See id. Lunney states in relation to an excessive-force claim is required to have that this threat led him to avoid seeking medical attention or “corroborated documentation of previously complaining” filing a complaint regarding the assault by Blot and Frazier about such force. Each merely noted that there had been some until nearly two years later, when he was transferred to such documentation. For example, in Hemphill, the plaintiff Cayuga Correctional Facility. See id. Because on this motion alleged that he failed to exhaust his administrative remedies for summary judgment, we accept as true the admissible with regard to an excessive-force claim because an officer evidence of Lunney, we must assume that Blot did in fact had told him, “I'll make your life a living hell throughout threaten Lunney in the manner Lunney has claimed. this penal system because I have friends all over.” See 380

F.3d at 684. The Second Circuit held that the district court Applying the “ordinary firmness” standard, it is certainly was required to consider whether “some seemingly available plausible that a reasonable factfinder could conclude that remedies were rendered unavailable by the threats Hemphill a prisoner in Lunney's situation would be deterred from received” or alternatively, whether the defendants' exhaustion complaining about an assault that had just occurred. Here, defense was estopped by the threats the officer had allegedly Lunney alleged that he was beaten and that the beating was made to the plaintiff. See id. at 688-89.While the court noted followed immediately by specific threats, some impliedly that the plaintiff had written a letter to the superintendent of physical, if he filed a grievance. See Hemphill, e.g., 380 the prison, see id. at 688, the court's holding with respect to F.3d at 688-89 (remanding for determination of availability these questions did not rely on this fact, see id. at 688-89, of remedies where officer told plaintiff he had “better drop” and specifically noted that his letter to the superintendent his complaint regarding injuries sustained in a beating and did not necessarily mean that administrative remedies were not seek any medical attention or the officer would “make “available” to him. Id.

your life a living hell”); McCullough v. Burroughs, 2005

WL 3164248, at *4 (E.D.N.Y. Nov.29, 2005) (plaintiff Nor does it help defendants' argument that Lunney waited excused from failing to exhaust remedies after he was until his transfer to another facility, nearly two years later, assaulted by officers in retaliation for prior grievances and to submit a grievance of any kind. First, such a delay is during the assault, officer expressly threatened that he would consistent with the actions of someone in fear of retaliation by “get [him]”) (alteration in original); accord Hepworth v. Blot. Second, if Lunney was justified in not filing a grievance Suffolk, 2006 WL 2844408, at *4-7 (E.D.N.Y. Sept.29, 2006) at all, he should not be penalized for filing an untimely one. (exhaustion excused where inmate was threatened for filing

a grievance); Larry v. Byno, 2006 WL 1313344, at *4 In sum, construing the record in the light most favorable (N.D.N.Y. May 11, 2006) (inmate subject to physical assault to Lunney, a factfinder could conclude that administrative and threats of violence excused from filing grievance); cf. remedies were not “available” to Lunney with respect to his Benjamin v. Comm'r New York State Dep't of Corr. Servs., claim of excessive force. Accordingly, summary judgment 2006 WL 783380, at *4 (S.D.N.Y. Mar.28, 2006) (suggesting cannot be granted on this question. 4 in dictum that administrative remedies would be rendered

unavailable where “the complaint specifically recounted

threatening statements made by correctional officers and 2. Merits

plaintiff's ‘acquiescence’ to those threats”) (citing Hemphill, Lunney asserts that after he attempted to notify another officer 380 F.3d at 683-84, 687). Thus, Lunney has established a about his plumbing problems and lack of personal hygiene items, Officer Blot approached his cell and told him to genuine issue of material fact with regard to the availability of administrative remedies for his claim of excessive force. “shut the fuck up or we are coming in there and you will

not like the results.”Lunney Aff. ¶ 24 (incorporating Am. Compl. ¶ 15(e)(1)). After further discussion between Lunney © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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and Officers Blot and Frazier, Blot called for Lunney's cell and sadistically use force to cause harm, contemporary door to be opened, and then “rushed into [his] cell and standards of decency always are violated.’” Blyden, 186 F.3d began punching [him] in the head and body.” Id. Frazier then at 263 (quoting Hudson, 503 U.S. at 9). Nevertheless, entered the cell “and placed [Lunney] in a choke hold for “a de minimis use of force will rarely suffice to state a several minutes.” See id. Lunney adds that he sustained “some constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 bruises” from the attack, specifically that his “throat was (2d Cir.1993).“ ‘Not every push or shove, even if it may later bruised where Frazier had grabbed” him and that he had a seem unnecessary in the peace of a judge's chambers, violates “couple [of] black and blues on my side,” and that “about a prisoner's constitutional rights.’” (quoting Johnson v. a week later bruises, you know, swelling went down.” See Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).

id. ¶¶ 24-25 (citing Lunney Dep. at 171-74); see also

id. (citing Lunney Dep. at 180-81 (“I could have used [medical Furthermore, courts in this circuit have held that “although attention], yeah. I had some bruises. I was pretty banged the subjective component is ‘inherently an inquiry into up.”)). [the] defendant's state of mind, plaintiff need not offer

particular evidence of defendant's mental state. For purposes *11 Defendants argue that any injuries Lunney sustained of opposing defendants' summary judgment motion, plaintiff were de minimis and thus not actionable under the Eighth has satisfied his burden on this element by merely pleading Amendment. See Def. Mem. at 30-32; Def. Reply Mem. at a scenario in which the use of force could not have been in 26-27. good faith.’” See Watson v. Delgado, 2006 WL 1716869, at

*5 (S.D.N.Y. June 20, 2006) (quoting Santiago v. Campisi, To establish an Eighth Amendment violation based on 91 F.Supp.2d 665, 673 (S.D.N.Y.2000)); see also Boddie a claim of excessive force, “an inmate must meet both v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (“Where no an objective and a subjective requirement.” See Griffin v. legitimate law enforcement or penological purpose can be Crippen, 193 F.3d 89, 91 (2d Cir.1999). To meet the objective inferred from the defendant's alleged conduct, the abuse itself requirement, “the alleged violation must be ‘sufficiently may, in some circumstances, be sufficient evidence of a serious' by objective standards.” See id. (citing Farmer v. culpable state of mind.”).

Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d

811 (1994)). The objective component is “context specific, *12 In this case, Lunney states that Blot and Frazier first turning upon ‘contemporary standards of decency.’ ” See threatened him and then entered his cell and attacked him Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.1999) (quoting without provocation. See Lunney Aff. ¶¶ 24-25 (incorporating Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 Am. Compl. ¶ 15(e)(1)). Because under Lunney's version of L.Ed.2d 156 (1992)). To meet the subjective requirement, the facts, the officers' alleged use of force could not have the inmate must show that the prison officials involved “had been in good faith, he has provided sufficient evidence of a ‘wanton’ state of mind when they were engaging in the the subjective component of an Eighth Amendment violation. alleged misconduct.” See Davidson v. Flynn, 32 F.3d 27, 30 See, e.g., United States v. Walsh, 194 F.3d 37, 50 (2d (2d Cir.1994).“[T]he ‘wantonness' inquiry turns on ‘whether Cir.1999) (“the subjective element is satisfied in this case force was applied in a good-faith effort to maintain or restore as there was absolutely no reasonably perceived need for discipline, or maliciously and sadistically to cause harm.’” See the application of force”); Santiago, 91 F.Supp.2d at 673 Blyden, 186 F.3d at 262 (quoting Hudson, 503 U.S. at (“Assuming plaintiff's story to be true, defendant's alleged 7).“Thus, [t]he key inquiry under Hudson and its precedents conduct is clearly unrelated to any ‘good-faith effort to is whether the alleged conduct involved unnecessary and maintain or restore discipline.’”) (citation omitted). wanton infliction of pain.” Sims v. Artuz, 230 F.3d 14, 21 (2d

Cir.2000) (citing Davidson, 32 F.3d at 30) (internal quotation With regard to the objective component, Lunney has alleged marks omitted). that as a result of the assault by Blot and Frazier, he sustained

“some bruises,” specifically, his “throat was bruised where “However, the malicious use of force to cause harm Frazier had grabbed” him and he had a “couple black and constitutes an ‘Eighth Amendment violation[ ] per se ... blues on my side,” and that “about a week later bruises, you whether or not significant injury is evident.’” Griffin, 193 know, swelling went down.” See Lunney Aff. ¶¶ 24-25 (citing F.3d at 91 (quoting Blyden, 186 F.3d at 263). This result Lunney Dep. at 171-74); see also id. (citing Lunney Dep. at follows because “ ‘[w]hen prison officials maliciously 180-81 (“I could have used [medical attention], yeah. I had © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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some bruises. I was pretty banged up.”)). While defendants de minimis, including the plaintiff's assertion that his pain was argue that any injuries Lunney suffered were de minimis “nothing major” or “nothing serious.” Id. In contrast, Lunney and not documented by medical records, see Def. Mem. at has stated that his throat was bruised from being put in choke 30-32, they point to no case where alleged injuries of this hold, that he had bruises on his side as well, and that the kind were considered outside the protection or the Eighth swelling from these injuries did not subside for about a week. Amendment. Indeed, Griffin held that an inmate's Eighth

Amendment claim survived summary judgment where “the To the extent the defendants argue that the lack of medical only injuries he suffered were a bruised shin and swelling records showing treatment is grounds for dismissing Lunney's over his left knee,” and “the only evidence he intended to claim, the Court rejects this argument inasmuch as there offer in support of his claims was his own testimony.” See is no requirement that the claim of injury be substantiated Griffin, 193 F.3d at 91. The court explained that although in contemporaneous medical records. See Griffin, 193 F.3d the inmate's claim of excessive force was “weak and his at 91 (Eighth Amendment claim permitted to proceed to evidence extremely thin, dismissal of the excessive-force trial even though only evidence supporting it was plaintiff's claim was inappropriate because there are genuine issues testimony). Thus, cases have frequently denied summary of material fact concerning what transpired after appellant judgment for excessive-force violations while noting the was handcuffed and whether the guards maliciously used absence of corroborating medical records. See, e.g., Atkins v. force against him.” See id. Thus, one court has concluded County of Orange, 372 F.Supp.2d 377, 399 (S.D.N.Y.2005); that “bruising or equivalent injuries may be found by a Davis v. Patrick, 2000 WL 1154065, at *1 (S.D.N.Y. Aug.14, reasonable fact-finder to constitute minor rather than de 2000); Baskerville v. Goord, 2000 WL 897153, at *1-2 minimis harm.” See Watson, 2006 WL 1716869, at *7 (citing (S.D.N.Y. July 6, 2000).

McCrory v. Belden, 2003 WL 22271192, at *6 (S.D.N.Y.

Mar.22, 2004)) (internal quotation omitted). Finally, Blot and Frazier are not protected by qualified

immunity on this claim. Qualified immunity attaches where Lunney's alleged injuries-involving bruising and contusions- (1) a constitutional right would have been violated on the facts are quite different from the claim of the prisoner in Boddie, alleged; but (2) it would have been objectively reasonable who had alleged only that he had been “bumped, grabbed, for the defendant to have believed that his actions did not elbowed, and pushed.” See Boddie, 105 F.3d at 862. In violate clearly established law. See Saucier v. Katz, 533 dismissing the claim, Boddie noted that the plaintiff “does U.S. 194, 200-201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). not maintain that he experienced any pain or injury as a Lunney has a constitutional right to be free from a correction result of the physical contact,” and that he did not “allege officer's use of excessive force, and it could not be objectively facts that show that the defendants used force ‘maliciously reasonable for Officer Blot or Officer Frazier to have believed and sadistically to cause harm,’ rather than ‘in a good-faith that the use of excessive force is allowed under the law. effort to maintain or restore discipline.’” See id. Both these See Calamia v. City of New York, 879 F.2d 1025, 1036 (2d circumstances are present in Lunney's case, however. Cir.1989) (“The right of an individual not to be subjected to

excessive force has long been clearly established.”); Johnson *13 In Espinal v. Goord, 2001 WL 476070 (S.D.N.Y. v. City of New York, 2006 WL 2354815, at *5 (S.D.N.Y. May 7, 2001), the court found the plaintiff's injuries to Aug.14, 2006) (citing cases).

be de minimis where he was hit in the face two or three

times, making his face turn red. 2001 WL 476070, at *13. C. Eighth Amendment Claims Based on Lack of Laundry

However, the plaintiff in that case described these injuries Services and Personal Hygiene Items as “really nothing.” Id. In Perkins v. Brown, 285 F.Supp.2d *14 Lunney claims that prison officials violated his Eighth 279 (E.D.N.Y.2003), a prisoner was not permitted to base Amendment rights based on the existence of inadequate an excessive force claim on allegations of a “broken lip,” laundry services, plumbing problems, and the deprivation of swollen nose, eye, fingers, and wrists, jaw pain, chest personal hygiene items. See Lunney Aff. ¶¶ 20-23. While the bruising, and “stress disorder” resulting from being struck, defendants argue that these claims are unexhausted, see Def. where the only evidence was the plaintiff's testimony and Mem. at 11, it is unnecessary to reach this question because it was contradicted by prior statements of the plaintiff and the claims fail on the merits. medical evidence at 284.The district court also pointed to a number of factors reflecting that such injuries were in fact

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The Supreme Court has held that “[t]he Constitution ‘does for a relatively brief period. As such, there was no Eighth not mandate comfortable prisons,’ but neither does it permit Amendment violation.

inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832,

114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes 2. Plumbing Problems and Failure to Provide Personal v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 Hygiene Items L.Ed.2d 59 (1981)). The Eighth Amendment imposes an *15 Lunney alleges that he “was placed in a cell where the obligation on prison officials to provide “humane conditions sink was clogged and there was no running water.” See Lunney of confinement” including “adequate food, clothing, shelter, Aff. ¶ 22. He states that he made “verbal complaints” and and medical care.” To establish a violation of the Eighth that the sink was repaired “on about plaintiff's fifth day in Amendment on the basis of inhumane prison conditions, a S.H.U.” See id. (incorporating Am. Compl. ¶ 15(c)). He also plaintiff must show that the deprivation is sufficiently serious states that he did not receive “soap, toothpaste, a toothbrush, as to result in a denial of “ ‘the minimal civilized measure and other hygiene items.” See Id. ¶ 23.While he states that of life's necessities,’ ” Wilson v. Seiter, 501 U.S. 294, 298, his verbal complaints were ignored, he adds that the problem 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Rhodes, “was informally resolved on May 29, 2002 when C.O. Lebron 452 U.S. at 347), and that the prison officials acted with “a of the I.G.R.C. corrected the problem.” See id. sufficiently culpable state of mind.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citation omitted). In the With regard to toiletries and hygiene items, Lunney fails context of conditions of confinement, the requisite mental to show that such a denial rose to the level of deliberate state for the prison officials is “deliberate indifference.” indifference to his health or safety. Courts have typically Wilson, 501 U.S. at 302-03.

held that temporary deprivations of toiletries do not violate the Eighth Amendment. See Trammell v. Keane, 338

1. Laundry Services F.3d 155, 165 (2d Cir.2003) (deprivation of “toiletries for Lunney re-alleges the claim from his original complaint approximately two weeks-while perhaps uncomfortable-does that the laundry services in the SHU were inadequate. not pose such an obvious risk to an inmate's health or safety See Lunney Aff. ¶¶ 20-21. In rejecting this claim on the to suggest that the defendants were ‘aware of facts from motion to dismiss, this Court held that there “is no Eighth which the inference could be drawn that a substantial risk Amendment violation ... in instances where inmates are of serious harm exist[ed], and [that they also drew] the provided the opportunity and the supplies to wash their inference’ ”) (quoting Farmer, 511 U.S. at 837) (alterations own clothes.” See Lunney I, 2005 WL 121720, at *8 (citing in original); Fernandez v. Armstrong, 2005 WL 733664, at Green v. Ferrell, 801 F.2d 765, 771 (5th Cir.1986) (no *5-6 (D.Conn. Mar.30, 2005) (up to 16-day deprivation of constitutional violation where inmates were permitted to toothbrush, toothpaste, soap, and shampoo did not violate the wash their clothes in sinks and were provided with laundry Constitution).

detergent)); Benjamin v. Fraser, 161 F.Supp.2d 151, 178-79

(S.D.N.Y.2001) (availability of sinks and laundry detergent With regard to Lunney's claim of no running water, or bar soap sufficient under the Eighth Amendment), aff'd in defendants have pointed to evidence that Lunney filed a relevant part and vacated in part, 343 F.3d 35 (2d Cir.2003). grievance on May 23, 2002, regarding the plumbing problems The Court thus concluded that “Lunney's mere allegation that in his cell, Grievance SS-35563-02, dated May 23, 2002 his clothes were returned to him without being cleaned on (reproduced as Ex. J to Lunney Aff.), and that it was repaired various occasions does not state an Eighth Amendment claim the next day. See SHU Activity Log, dated May 24, 2002 as to inadequate laundry services.” See Lunney I, 2005 WL (reproduced as Ex. D to Lee Reply Decl.). Even if Lunney's 121720, at *8. Lunney asserts that his sink was small and cell sink lacked running water for five days, as he claims, that he was not given soap specifically for laundry purposes. he does not show an Eighth Amendment violation given that Lunney Dep. at 167. But he has not submitted evidence that there is no evidence that he was deprived of water entirely would allow a reasonable to jury to conclude that he could during this period. The “[l]ack of access to running water, by not achieve some level of cleanliness with the materials he itself, does not constitute the denial of the minimal civilized had. See generally Benjamin, 161 F.Supp.2d at 178-79. That measure of life's necessities.” James v. Monroe County Jail, Lunney asserts he was without soap for eight days and had a 2005 WL 2030730, at *3 (W.D.N.Y. Aug.23, 2005) (no clogged sink for five, as described in the next section, shows constitutional violation where inmates claimed they lacked at most that he lacked the means to clean his own clothing

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running water from cell sinks for several hours every night In its prior ruling, the Court dismissed Lunney's general for over four months); see also Johnson v. Comm'r of Corr. allegations of threats and harassment because “comments that Servs., 699 F.Supp. 1071, 1074 (S.D.N.Y.1988) (plaintiff are merely ‘insulting’ or ‘disrespectful’ do not give rise to a confined for one week in a cell with an inoperable sink did constitutional violation.” See Lunney I, 2005 WL 121720, at not suffer a constitutional violation because he was provided *11 (citations omitted). The Court also dismissed Lunney's drinks with meals); Castro v. Chesney, 1998 WL 767467, at claim that Fischer threatened to transfer him to another *4 (E.D.Pa. Nov.3, 1996) (no constitutional violation where facility for writing grievances because, inter alia, Lunney did plaintiff placed in a “dry cell” without running water for not allege that he was transferred because he filed grievances several days, given water “sometimes” when he asked for it against prison officials. See id. However, the Court did not and water was turned on every other day so he could wash his dismiss Lunney's claim that he was threatened with physical face and brush his teeth). violence for filing grievances. See id. (citing Hernandez v.

Goord, 312 F.Supp.2d 537, 545 (S.D.N.Y.2004) (threatened bodily injury and threats to inmate's life sufficient to state a 3. Personal Involvement claim)). Lunney's retaliation claims re-appeared in somewhat *16 In any event, even if some constitutional deprivation different form in his amended complaint, see Am. Compl. ¶ had been shown, Lunney's submission does not provide facts 16(c), which also contains new retaliation claims against Blot, that would show that any particular defendant sued here Frazier and Brereton. See id. ¶¶ 15(g)(2), 16(h), (i). was personally involved in committing the violation. As the Second Circuit has noted, “[a]n individual cannot be held

liable for damages under § 1983‘merely because he held 1. Law Governing First Amendment Retaliation a high position of authority.’” Back v. Hastings On Hudson *17 The First Amendment protects prisoners from Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir.2004) retaliation for engaging in protected speech, including (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996)). He submitting grievances regarding prison conditions. See can only be held liable if he was “personally involved in the Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996) alleged deprivation.” While there are number of ways in (“[R]etaliation against a prisoner for pursuing a grievance which such involvement can be shown, see, e.g., Back, 365 violates the right to petition government for the redress F.3d at 127 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d of grievances guaranteed by the First and Fourteenth Cir.1995)), Lunney has not provided evidence (as opposed to Amendments and is actionable under § 1983.”) (citing Franco speculation) as to any of them. v. Kelly, 854 F.2d 584, 589 (2d Cir.1988)).“[I]ntentional

obstruction of a prisoner's right to seek redress of grievances In sum, defendants are entitled to summary judgment on ‘is precisely the sort of oppression that ...section 1983[is] Lunney's claims of a temporary lack of running water, intended to remedy.’” Id., 89 F.3d at 80 (quoting Morello plumbing problems, and denial of personal hygiene items. v. James, 810 F.2d 344, 347 (2d Cir.1987)) (alterations in

original). A prisoner asserting a retaliation claim must show “(1) that the speech or conduct at issue was protected, (2) that D. First Amendment Retaliation Claims the defendant took adverse action against the plaintiff, and Lunney asserts that he was assaulted by Blot and Frazier (3) that there was a causal connection between the protected because he made verbal complaints about SHU conditions, speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d see Lunney Aff. ¶ 24; that Blot threatened him with physical 379, 380 (2d Cir.2004) (citation omitted). violence on several occasions for his writing of grievances, see id. ¶¶ 30-31; that Blot denied him recreation, meals, Moreover, in the prison context, the Second Circuit has and showers because of his complaints, see id. ¶ 29; and recognized “the near inevitability of decisions and actions that Fischer threatened to transfer him to Attica for writing by prison officials to which prisoners will take exception grievances, see id. ¶ 28 (incorporating Am. Compl. ¶ 15(f)). and the ease with which claims of retaliation may be He also asserts in his amended complaint that Brereton fired fabricated.” Colon, 58 F.3d at 872 (citing Flaherty v. him from his position as a porter “as a means of retaliation.” Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). Thus, courts Am. Compl. at ¶ 15(g)(2). The defendants argue that these “examine prisoners' claims of retaliation with skepticism and claims are unexhausted and fail on the merits. See Def. Mem particular care.” Colon, 58 F.3d at 872. at 9-12, 12-17; Def. Reply Mem. at 9-10, 11-15. © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Lunney v. Brureton, Not Reported in F.Supp.2d (2007)

2007 WL 1544629 makes it impossible to determine whether there was a causal

2. Claims against Fischer connection between the filing of grievances and the adverse In his affidavit, Lunney alleges that Fischer “repeatedly action. Accordingly, summary judgment on this claim should threatened” him “in retaliation for his filing of grievances and be granted. It is, therefore, unnecessary to reach the question complaints regarding S.H.U. conditions.” See Lunney Aff. ¶ of qualified immunity. See Def. Mem. at 34; Def. Reply Mem. 28 (incorporating Am. Compl. ¶ 15(f)) (Lunney “subjected at 25. 5 to threats of being transferred to Attica” by Fischer, who “made it quite clear to plaintiff that he did not like the fact

that plaintiff was writing grievances and complaints to outside 3. Claims against Blot agencies.”). He further states that his prison records reflect Lunney asserts that (1) Officer Blot denied him showers,

that Fischer attempted to transfer him “under the reason that meals, and recreation in retaliation for his grievances, plaintiff's behavior in Sing Sing was unsuitable.” See Lunney see Lunney Aff. ¶ 29; (2) that Blot co-signed a misbehavior Aff. ¶ 28 (incorporating Am. Compl. ¶ 15(f)). While report against him stemming from an incident to which Blot defendants argue that Lunney's claim should be dismissed was not a party; and that Blot subsequently told Lunney, because he did not properly exhaust the claim in accordance “If I ever hear about you complaining about another officer with the PLRA, it is not necessary to reach this question you'll be sorry. You won't be so lucky next time,” see id. ¶ 31 because the claim fails on the merits. (incorporating Am. Compl. ¶ 15(h)); (3) that Blot threatened

to harm Lunney physically if Lunney refused Blot's offer of Lunney's First Amendment claim against Fischer is based on a bribe to stop writing grievances, see id. ¶ 30; and (4) Blot his claim that Fischer “threaten[ed]” him in response to his assaulted him in retaliation for verbal complaints about the grievance writing. Am. Compl. ¶ 16(c); Lunney Aff. ¶ 28. conditions in the SHU. See id. ¶ ¶ 24-25. But Lunney's only specific allegation on this point is that Fischer “did ... try to transfer plaintiff but D.O.C.S. officials Defendants contend that each of these claims should be in Albany, New York cancelled the transfer.”Lunney Aff. ¶ dismissed because Lunney failed to exhaust them and also 28 (emphasis added); see also Pl. Mem. at 14-17. dismissed on the merits. See Def. Reply Mem. at 5-7, 10.

Defendants further contend that Blot is entitled to qualified This allegation cannot meet the requirement that the plaintiff immunity “from plaintiff's retaliation claim involving an experience an “adverse action.” Pidlypchak, 389 F.3d at 380. alleged false misbehavior report ....” Def. Mem. at 34; Def. While “the scope of conduct that can constitute actionable Reply Mem. at 29-30. retaliation in the prison setting is broad, it is not true that every response to a prisoner's exercise of a constitutional a. Exhaustion of Claims Against Blot

right gives rise to a retaliation claim.” Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir.2001), overruled on other As to the four claims with respect to which the exhaustion grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 defense has been raised, we have already discussed why S.Ct. 992, 152 L.Ed.2d 1 (2002). Only retaliatory conduct Lunney should be excused from having failed to grieve the assault claim, see section III.B.1, and the same reasons that which would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights” may excuse the failure to grieve the assault apply equally to the support such a claim. at 493.The Second Circuit has “made claim that the motive for the assault was to retaliate for clear that this objective test applies even where a particular protected activity. Accordingly, there is no need to discuss exhaustion with respect to this aspect of the retaliation claim plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.” Pidlypchak, against Blot.

389 F.3d at 381 (citing Davis v. Goord, 320 F.3d 346 (2d

Cir.2003)). In addition, we conclude, for the reasons discussed in section

III.D.3.c below, that Lunney's claim with respect to the false *18 The allegation in the complaint regarding the threats of misbehavior report would fail on the merits. Accordingly, transfer cannot be objectively viewed as deterring a person of our discussion of exhaustion relates only to claims (1) and ordinary firmness from exercising First Amendment rights. (3): that is, the claim regarding the denial of showers, meals, and recreation and the claim regarding the threat of physical This is particularly true where Lunney's allegations are devoid of any dates or descriptions of the manner in which Fischer violence.

made the alleged threats. Moreover, the lack of dates also

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Lunney alleges that Blot said: “If I ever hear about you allegation that Blot had actually assaulted him previously, complaining about another officer you'll be sorry. You won't would be sufficient to allow a factfinder to conclude that a be so lucky next time.”Am. Compl. ¶ 15(h). He also states “similarly situated individual of ordinary firmness” would that “[Blot] would come in and threaten guys and tell guys not have deemed the inmate grievance process available with ‘listen, I'm going to write you up and you will get a new respect to grievances that involve conduct by Blot. See, e.g., charge,’ ” Lunney Aff. ¶ 30 (citing Lunney Dep. at 190); and Hepworth v. Suffolk County, 2006 WL 2844408, at *4-7 generally, that Blot “threaten[ed] [Lunney] with misbehavior (E.D.N.Y. Sept.29, 2006) (inmate beaten and threatened with reports, physical beatings and deprivations of privileges if further violence after testifying against correction officers); he ... continued to write grievances.”Am. Compl. ¶ 15(g). Larry v. Byno, 2006 WL 1313344, at *4 (N.D.N.Y. May 11, More specifically, in his deposition, Lunney states that Blot 2006) (physical assault coupled with threat to kill inmate after became “offended and upset about my writing grievances inmate mailed a complaint); McCullough, 2005 WL 3164248, and he said he didn't like people that wrote grievances”; at *3-4 (assault with threat to “get [him]” if he filed another that he “would complain that he didn't like people writing grievance). It also raises questions regarding estoppel as to grievances” and would “criticiz[e]” him for it. Lunney Dep. any claim against Blot. Thus, a genuine issue of material at 187. Lunney recounts one conversation as follows: fact exists as to (1) whether administrative remedies, though nominally “available,” were functionally available to Lunney *19 [H]e came to me one day and said “listen, I want you to grieve these claims-the deprivation of meals, showers and

to stop writing grievances.”And I said “listen, you guys are recreation and the threat of physical violence by Blot-against doing a lot of things wrong down here.”He said “listen, if Blot and/or (2) whether Blot's alleged threats estop defendants you don't stop writing grievances I'm going to break your from raising exhaustion as an affirmative defense. fuckin' neck.” He said “you're going to have a hard time in the SHU.” We now address the merits of the four claims against Blot.

Id. b. The Merits of Lunney's Allegation that Blot Denied

As already discussed in the context of Lunney's excessive- Him Showers, Meals, and Recreation force claim, see section III.B the Second Circuit has *20 Lunney states that he was deprived of showers “at held that “seemingly available remedies [may be] rendered least twice a week.” Lunney Dep. at 182. He asserts that unavailable by threats,” Hemphill, 380 F.3d at 688, if a this occurred “[b]ecause of problems I was having with Blot “similarly situated individual of ordinary firmness” would not and my being vocal about the problems, the conditions of have “deemed them available.” Id. (citations and quotations SHU.” Id. at 183.He asserts that he was supposed to get three omitted). Likewise, the Second Circuit has held that threats showers a week. See Pl. Mem. at 22. As to recreation, Lunney by prison authorities may provide grounds for estoppel if states that at least “three or four times a week [ ] Blot would defendants “took affirmative action to prevent [the prisoner] come ... by with the list. He'd ask guys if they want recreation. from availing himself of grievance procedures.” Ruggiero v. We'd be brought down for breakfast. He'd tell me ‘you're County of Orange, 467 F.3d 170, 178 (2d Cir.2006) (citing staying here.’ ” (citing Lunney Dep. at 185-86). Lunney cases). 6 makes no specific statements as to Blot's depriving him of

meals. While Blot denies ever depriving Lunney of meals, Liberally construed, Lunney's argument can be read as showers or recreation, see Blot Decl. ¶ 4, we accept Lunney's asserting both that (1) his failure to follow the formal assertions as true for purposes of this motion. exhaustion process should be excused because Blot's threats

rendered the formal grievance process effectively unavailable Defendants challenge whether Lunney has established the to him and (2) that Blot's exhaustion defense was estopped by second and third prongs of a prima facie case of retaliation: Blot's alleged threats. namely, whether (1) the deprivations constitute “adverse

action,” and (2) there is a causal connection between these Lunney's general assertions regarding threats-without the deprivations and his grievance writing. Def. Mem. at 15. specific of dates or content of threats-might not be sufficient

permit a finding on these points. But his assertion that Blot i. Adverse Action. As an initial matter, defendants argue stated “if you don't stop writing grievances I'm going to break that Lunney's claim lacks sufficient specificity. Def. Reply your fuckin' neck,” Lunney Dep. at 187, coupled with the

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Mem. at 13. As is true in response to any motion for court on interlocutory appeal where “there [was] a serious summary judgment, Lunney was required to provide evidence question as to whether ... [plaintiff's] asserted one-day denial sufficient to allow a jury to find in his favor. Thus, of an opportunity to exercise, w[as] more than de minimis” “[c]onclusory allegations, conjecture, and speculation ... are ); Snyder v. McGinnis, 2004 WL 1949472, at *11 (W.D.N.Y. insufficient to create a genuine issue of fact.” Kerzer v. Kingly Sept.2, 2004) (deprivation of meal on two occasions is de Mfg., 156 F.3d 396, 400 (2d Cir.1998). Lunney's allegations minimis and does not state a claim for retaliation); Lyons regarding denial of meals are completely lacking in any such v. Wall, 2006 WL 2945256, at *5 (D.R.I. Oct.13, 2006) specifics. His allegations regarding the denials of showers and (sporadic cold showers are de minimis ). Here, however, recreation, however, are sufficiently detailed to allow a trier Lunney alleges a routine denial of showers and recreation of fact to conclude that such denials occurred. Accordingly, such that he regularly had one shower a week instead of two, we limit our discussion to the issue of whether the denial of and three to four hours of recreation a week instead of the showers and recreation constitute “adverse action.” normal seven. Pl. Mem. at 22 (citing Lee Decl. Ex. J §§ 304.2,

304.3, 304.5; Lunney Aff. Ex. M at 140-142); see also Ortiz v. As noted, the Second Circuit has held that while “the McBride, 380 F.3d 649, 655 (2d Cir.2004) (discussing normal scope of conduct that can constitute actionable retaliation conditions of the SHU as two showers a week and one hour of in the prison setting is broad, it is not true that every recreation a day). Defendants have pointed to no case where a response to a prisoner's exercise of a constitutional right constant denial of showers and recreation, in the proportions gives rise to a retaliation claim.” Dawes, 239 F.3d at 492-93. alleged here, was deemed to be de minimis as a matter of Only retaliatory conduct which would “deter a similarly law. 7

situated individual of ordinary firmness from exercising his

or her constitutional rights” may support such a claim. In sum, defendants are not entitled to summary judgment on Id. at 493.Thus, the conduct must be “specifically directed this point. at plaintiff[ ] and substantial enough to deter legitimate

grievances against prison officers.” Salahuddin v. Mead, 2002 ii. Causal Connection. Lunney must also show that there WL 1968329, at *5 (S.D.N.Y. Aug.26, 2002). Conduct that was “a causal connection between the protected speech and is de minimis does not provide this deterrent effect and does the adverse action.” Pidlypchak, 389 F.3d at 380. Colon not give rise to actionable retaliation. Dawes, 239 F.3d at discusses a number of factors relevant to whether a causal 493; see also Davidson v. Chestnut, 193 F.3d 144, 150 (2d connection exists, including: (i) the temporal proximity Cir.1999) (citing Bart v. Telford, 677 F.2d 622, 625 (7th between the protected activity and the alleged retaliatory Cir.1982) (“[S]ince there is no justification for harassing act; (ii) the inmate's prior good disciplinary record; (iii) people for exercising their constitutional rights [, harassment] vindication at a hearing on the matter; and (iv) statements need not be great in order to be actionable. Yet, ... [i]t would by the defendant concerning his motivation. 58 F.3d at trivialize the First Amendment to hold that harassment for 872-73; accord Sloane v. Mazzuca, 2006 WL 3096031, at *14 exercising the right of free speech was always actionable no (S.D.N.Y. Oct.31, 2006); Baskerville v. Blot, 224 F.Supp.2d matter how unlikely to deter a person of ordinary firmness 723, 732 (S.D.N.Y.2002). from that exercise ....”)) (alterations in original). What is de minimis varies according to context. See Dawes, 239 F.3d Here, a reasonable factfinder might view Blot's decision at 493 (“[p]risoners may be required to tolerate more than to deny Lunney recreation and shower privileges as being public employees, who may be required to tolerate more than prompted by Lunney's grievance writing. Lunney states that average citizens, before a[ retaliatory] action taken against upon arrival to the SHU, he immediately complained about them is considered adverse”) (alteration in original) (citing the conditions of his cell, both verbally and through the Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999)). filing of written grievances. Lunney Aff. ¶ 24 (incorporating Thus, in the prison context, not all harms constitute legally Am. Compl. ¶ 15(c)-(e)). On his third day in the SHU, sufficient grounds for retaliation claims. See Salahuddin, Officers Blot and Frazier assaulted him, and Blot warned him 2002 WL 1968329, at *4-5 (citing cases). that he would suffer consequences if he filed a grievance. (incorporating Am. Compl. ¶ 15(e)(1)-(2)). Nonetheless, *21 Case law suggests that the isolated or sporadic denial Lunney continued to file grievances in the SHU. See, e.g., of privileges do not suffice to state a claim of actionable Ex. K to Lunney Aff. Blot stated to him that he “didn't like retaliation. Chestnut, 193 F.3d at 150 (remanding to district people that wrote grievances” and told him “listen, I want © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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you to stop writing grievances” and that “if you don't stop wrote to a total of 15 officers including officer Gary,” see writing grievances I'm going to break your fuckin' neck” and Lee Decl. Ex. G, and sentenced to 30 days' keeplock, that “you're going to have a hard time in SHU.”Lunney Dep. loss of packages, loss of commissary, and loss of phone at 187. At the same time, Lunney states that he was routinely privileges. 9 See id. Defendants argue that Lunney has not met denied showers and recreation. Lunney Aff. ¶ 29. Thus, the the elements of a retaliation claim. Def. Mem. at 16-17; Def. evidence for causation centers on (1) the fact that there is no Reply Mem. at 14. explanation provided for the denial of showers and recreation

and (2) the evidence that Blot complained to Lunney about his Lunney's claim is simply disposed of based on the evidence writing grievances and specifically threatened Lunney about that the misbehavior report had a legitimate justification. The them during the same time period that the denial of showers Second Circuit has held that, “[r]egardless of the presence and recreation was taking place. Lunney Dep. at 186-87. of retaliatory motive, ... a defendant may be entitled to While it may also be reasonable to infer, as defendants argue, summary judgment if he can show dual motivation, i.e., that that the deprivations, if they did occur, were a result Lunney's even without the improper motivation the alleged retaliatory “extensive disciplinary history,” Def. Mem. at 15, on a motion action would have occurred.” Scott v. Coughlin, 344 F.3d for summary judgment, the Court must draw “all justifiable 282, 287-88 (2d Cir.2003) (citing Mt. Healthy City Sch. inferences” in favor of the non-moving party. Anderson, 477 Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. U.S. at 255. Thus, Lunney has raised a genuine issue of 568, 50 L.Ed.2d 471 (1977)). Thus, where a plaintiff has material fact as to whether Blot denied showers and recreation met his “initial burden of showing that an improper motive in retaliation for Lunney's grievances. 8 played a substantial part in defendant's action,” the defendant

may still obtain summary judgment if the defendant can “show it would have taken exactly the same action absent c. The Merits of Lunney's Allegation that Blot Filed a the improper motive.” Id.; see also Lowrance v. Achtyl, 20 False Misbehavior Report F.3d 529, 535 (2d Cir.1994) (affirming dismissal on summary *22 The filing of a false misbehavior report in response to judgment because correction officer's actions were of mixed constitutionally protected activity can constitute actionable motives and “would have been issued on proper grounds retaliation. See Graham, 89 F.3d. at 79-81 (allegation that alone.”); see also Sher v. Coughlin, 739 F.2d 77, 81-82 defendants filed false misbehavior reports against plaintiff in (2d Cir.1984) (affirming summary judgment dismissal of retaliation for his leadership in filing a grievance to protest prisoner's retaliation claim where dual motivation existed for the removal of workshop showers); Jones v. Coughlin, 45 prisoner's transfer to another facility).

F.3d 677-78, 680 (2d Cir.1995) (per curiam) (allegation that

defendants, in retaliation for plaintiff's filing administrative *23 Assuming without deciding that Lunney had met his complaint, filed a false misbehavior report that led to 120 days initial burden of showing that an improper motive played of punitive segregation). a substantial part in the decision to discipline him, Lunney concedes that the misbehavior report “stemmed from” a letter Lunney asserts that a misbehavior report dated June 22, 2003- he wrote to Officer Gary. Am. Compl. ¶ 15(h). It is undisputed approximately six months after he left the SHU-“stemmed that writing letters to prison guards violates DOCS's policy. from plaintiff having sent letters to several facility staff See DOCS Directive 4422. Lunney has provided no evidence members”-not including Blot-“complaining about being of instances in which prisoners wrote letters to prison guards harassed by another staff member, C.O. Davis.” See Am. without receiving disciplinary action. Based on the evidence Compl. ¶ 15(h); see also Misbehavior Report (reproduced in the record, it would be purely speculative for a factfinder to in Ex. G. of Lee Decl.). Officer Gary, one of the conclude that the prison would not have taken the same action officers to whom Lunney had sent the letter, wrote the against Lunney regardless of any motive it had to punish him misbehavior report because Lunney's letters violated facility for writing grievances. Accordingly, defendants are entitled correspondence rules that prohibit “correspond[ence] with to summary judgment on this claim. dep[artment] employees [without] the express permission

of the superintendent.” See Lee Decl. Ex. G (citing DOCS

Directive 4422). Blot “endorsed” the misbehavior report. See d. The Merits of Lunney's Allegation that Blot Threatened Def. 56.1 ¶ 22. Lunney was subsequently found guilty of Physical Violence

this charge based on “[his] admissions that [he] willfully

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Lunney states that Blot threatened him physically, both that it would deter an inmate of “ordinary firmness” from generally in response to his continued filing of grievances, engaging in protected activity.

see Lunney Aff. ¶¶ 29-30, and specifically in response to his

complaint about another officer. See id. ¶ 31.Lunney's most *24 Nor should Blot be entitled to qualified immunity. It specific allegations consist of two statements: (1) “If I ever would not have been “objectively reasonable” for Blot to hear about you complaining about another officer you'll be have believed that it did not violate “clearly established” law sorry. You won't be so lucky next time,” Am. Compl. ¶ 15(h), regarding retaliation to tell Lunney that he would “break [his] and (2) “[I]f you don't stop writing grievances I'm going to fuckin' neck” if Lunney continued to write grievances. In break your fuckin' neck.” Lunney Aff. ¶ 30 (citing Lunney other words, the contours of the right to be free from First Dep. at 186-87). He also states more generally that Blot Amendment retaliation were “sufficiently clear that [Blot] “threaten[ed] [Lunney] with misbehavior reports, physical would [have] underst[ood] that what he [was] doing violate[d] beatings and deprivations of privileges if he [ ] continued that right.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, to write grievances.”Am. Compl. ¶ 15(g). Defendants do not 153 L.Ed.2d 666 (2002) (quoting Anderson v. Creighton, 483 address this claim in their papers, although they argue that U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Blot is entitled to qualified immunity on it. See Def. Reply

Mem. at 30. e. The Merits of Lunney's Allegation of Retaliatory Assault Case law reflects that verbal threats may constitute adverse We have already discussed Lunney's claim that the assault by action, though whether they constitute adverse action seems Blot and Frazier constituted an Eighth Amendment violation.

to depend on their specificity and the context in which See section III.B above. In addition, Lunney asserts that this they are uttered. Compare Hepworth, 2006 WL 2844408, at same assault occurred “because of a verbal complaint he *8-9 (denying summary judgment where “continued verbal made to another officer regarding his not having hygiene threats” that inmate “would receive another beating or be items and the problems with his sink and toilet.”Lunney killed” was sufficient “evidence ... such that a reasonable Aff. ¶ 24 (incorporating Am. Compl. ¶¶ 15(e)(1)-(2)). In his jury could find that the officers unconstitutionally retaliated amended complaint, Lunney specifically pleads this as a First against [inmate] ... for exercising his First Amendment”); Amendment claim as well. See Am. Compl. at ¶ 16(h). Brown v. Coughlin, 965 F.Supp. 401 (W.D.N.Y.1997) (threat to inmate that when officers were “done with him” he would Defendants do not make any arguments regarding this claim

not want to “file any more complaints” sufficient for First specifically. Nonetheless, because they moved for summary Amendment retaliation claim); Thaddeus-X, 175 F.3d at 396, judgment as to “plaintiff's First Amendment retaliation claim” 398 (“In the prison context ... [h]arassment, physical threats” generally on the ground that there is no “causal relationship would “certainly be adverse” action), with Bartley v. Collins, between protected activity and adverse action,” Def. Mem. at 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (threats 2, Lunney was obligated to “come forward with admissible such as “we going to get you, you better drop the suit,” do evidence supporting [his] claim” on this point. Feurtado v. not rise to the level of adverse action); Alicea v. Howell, 387 City of New York, 337 F.Supp.2d 593, 599 (S.D.N.Y.2004) F.Supp.2d 227, 237 (W.D.N.Y.2005) (“[Defendant's] alleged (citing cases) (internal quotation marks omitted). 10 statements to plaintiff about there being ‘no secrets in prison’ and that plaintiff would ‘have to pay the consequences' for

filing a grievance against [defendant] do not give rise to a Lunney details that after “attempting to inform another First Amendment retaliation claim,” especially considering officer, who was confined to a control room at least 45 feet the fact that the threat was never carried out); Cruz v. away from plaintiff's cell,” see Am. Compl. ¶ 15(e), that he Hillman, 2002 WL 31045864, at *7 (S.D.N.Y. May 16, lacked certain hygiene items, 2002) (allegation that correction counselor expressed his [d]efendants Blot and Frazier approached plaintiff's cell dislike for inmates who file civil lawsuits, and later came to and began to state that plaintiff had better “shut the fuck plaintiff's cell and said “Green Haven is an open battlefield, up or we are coming in there and you will not like the so be careful,” insufficient to state a retaliation claim). Given results.”After attempting to explain his problems to [them] the directness and specificity of the alleged threats here, a Officer Frazier appeared to become calm and attempted factfinder could permissibly decide that the threats were such to resolve plaintiff's complaints. However, defendant Blot

stated “I don't give a shit about your fucking problems. File © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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a fucking grievance.”Defendant Blot then proceeded to yell E. Unfiled Grievances to the officer in the control booth to have plaintiff's cell Lunney claims that defendant Kober violated his First opened.

and Eighth Amendment rights by denying him “access Lunney Aff. ¶ 24 (incorporating Am. Compl. ¶¶ 15(e)(1)-(2)). to an effective Inmate Grievance Program,” see Lunney According to Lunney, Blot then entered Lunney's cell and Aff. ¶ 32, and thus that Kober “deprived plaintiff of assaulted him, id., though Blot denies that this assault ever his means to petition the government for the redress of took place. Blot Decl. ¶ 3. grievances.” See Am. Compl. ¶ 16(e). Specifically, he alleges

that “[g]rievances were not timely filed or they were Here, the sequence of events-a complaint followed by an completely ignored,” and that Kober stated they “were never immediate assault, accompanied by remarks referring to his received by his office.” See Lunney Aff. ¶ 32 (incorporating complaint-would be sufficient for a jury to find that there Am. Compl. ¶ 15(i)). He adds that the Sing Sing IGRC “was was a causal connection between Lunney's complaints and the not operating in accordance with policy,” that grievances assault. Accordingly, summary judgment cannot be granted “were not being timely filed and responded to,” that to defendants on this claim. 11 “investigations were biased and or incomplete,” and that

“appeals were not timely filed.” See Am. Compl. ¶ 15(i). While defendants argue that this claim is unexhausted, see 4. First Amendment Claim Against Frazier Def. Reply Mem. at 10, it is unnecessary to reach that issue *25 Lunney alleges that Frazier assisted Blot “in assaulting because the claim fails on the merits.

plaintiff in retaliation for plaintiff making complaints.”Am.

Compl. ¶ 16(i). Once again, defendants argue only generally It is well established that a claim of violation of a state that plaintiff's First Amendment retaliation claim should grievance procedure is not cognizable in an action under 42 be dismissed for failure to establish a causal relationship. U.S.C. § 1983. See Cancel, 2001 WL 303713, at *3 (“inmate Def. Mem. at 2. As to Frazier's particular actions, Lunney grievance procedures are not required by the Constitution and claims that he “entered the cell and placed [Lunney] in a therefore a violation of such procedures does not give rise choke hold for several minutes.”Am. Compl. ¶ 15(e)(1). to a claim under § 1983”); accord Davis v. Castleberry, 364 Frazier, like Blot, denies Lunney's allegations of unnecessary F.Supp.2d 319, 323 (W.D.N.Y.2005); Fernandez, 2005 WL physical force. Frazier Decl. ¶ 3. For the same reasons just 733664, at *9; Mahotep v. DeLuca, 3 F.Supp.2d 385, 390 n. stated, Lunney's allegations are sufficient to allege a causal 3 (W.D.N.Y.1998) (citing Buckley v. Barlow, 997 F.2d 494, connection between his complaints and the assault. Thus, 495 (8th Cir.1993)).

defendants must be denied summary judgment as to the claim

against Frazier. *26 It does not help Lunney's claim if it is construed as one

for denial of access to the courts. To state a claim for denial of access to the courts under § 1983, Lunney must demonstrate 5. First Amendment Claim Against Brereton that defendants “took or [were] responsible for actions that Lunney's amended complaint states that he “filed a formal hindered [plaintiff's] efforts to pursue a legal claim.” Davis v. grievance complaint with the I.G.R.C. arguing that he had Goord, 320 F.3d 346, 351 (2d Cir.2003) (internal quotation been fired [from his job as a porter] as a means of retaliation marks omitted). Only those actions which rise to the level by defendant Brureton.”Am. Compl. ¶ 15(g)(2). No further of “ ‘deliberate and malicious interference’ ” and which “ information is provided on this issue. While Lunney makes ‘actually impeded his access to the court or prejudiced an reference to it in his memorandum of law, Pl. Mem. at 30, existing action’ ” are sufficient to present a claim. Green he does not address it in his affidavit. Given the conclusory v. Phillips, 2006 WL 846272, at *11-12 (S.D.N.Y. Mar.31, reference in the amended complaint, there is no admissible 2006) (quoting Cancel v. Goord, 2001 WL 303713, at *4 evidence before the Court that would allow a jury to conclude (S.D.N.Y. Mar.29, 2001)); accord Rivera v. Pataki, 2005 that Lunney had made out each of the elements of a retaliation WL 407710, at *17-18 (S.D.N.Y. Feb.7, 2005). The evidence claim. presented by Lunney, however, does not satisfy this standard. The operation of the grievance process is relevant to any Accordingly, this claim must be dismissed. access-to-the-courts claim only insofar as the procedure is

a prerequisite for the filing of a civil suit under the PLRA. Lunney has not shown how the operation of the grievance © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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procedure denied him such access. Moreover, in light of implicating due process protection. See id. (citations omitted). the fact that prisoners are excused from filing grievances However, as in the original motion, defendants do not argue where prison officials prevent them from doing so or make that Lunney's liberty interests were not implicated by his the grievance process not “available,” see, e.g., Brownell, nine-month sentence of confinement to the SHU-which was 446 F.3d at 311-12, any such actions-even if they had been later reduced to six months-under the standard established demonstrated-could not be shown to have deprived Lunney in Sandin. It is assumed, therefore, that Lunney's sentence of of his ability to bring any lawsuit. Thus, this claim too must confinement did implicate a liberty interest for purposes of be dismissed. this motion. Consequently, we consider whether Lunney was

denied due process when he was not provided with a written disposition of his disciplinary hearing and when the second F. Fourteenth Amendment Due Process Claims hearing was scheduled. As in his original complaint, Lunney asserts that his right

to due process was violated by two separate actions. First,

Lunney claims that Selsky improperly ordered a second 2. Written Disposition of Disciplinary Hearing disciplinary hearing after the Article 78 proceeding had been As noted above, see section I.A, Lunney's first disciplinary filed with respect to the first hearing. See Lunney Aff. ¶ 14 hearing, in June 2002, resulted in a finding of guilt for (incorporating Am. Compl. ¶ 10). Second, he argues that which he was sentenced to nine months in the SHU. Lunney defendants' failure to provide him with a timely written appealed this ruling, which was affirmed in August 2002. disposition of his disciplinary hearing was a violation of his Lunney then filed an Article 78 petition in the state Supreme due process rights. See Am. Compl. ¶¶ 10, 12. This first claim Court, which led to an order to show cause directing Selsky is identical to one the Court dismissed on the merits in its to respond to the petition. In October 2002, Selsky rescinded original ruling, see Lunney I, 2005 WL 121720, at *14, and the disciplinary determination and ordered a rehearing on the thus the Court will not reconsider it here. Accordingly, we ground that Lunney had not been given adequate assistance address only the second claim. 12 in preparing his defense. The rehearing was held in October

2002, and Lunney was again found guilty and sentenced to nine months in the SHU. He again appealed, arguing this time 1. Law Governing Disciplinary Proceedings that he had not received a copy of the hearing disposition. A party asserting a due process claim “must establish (1) that His appeal was denied, although his sentence was reduced to he possessed a liberty interest and (2) that the defendant(s) six months because the original sentence had exceeded the deprived him of that interest as a result of insufficient guidelines “without further justification.” See Memorandum, process.” Ortiz, 380 F.3d at 654 (quoting Giano v. Selsky, dated Nov. 7, 2002 (reproduced in Ex. J to Selsky Decl., filed 238 F.3d 223, 225 (2d Cir.2001)). Prisoners subject to July 12, 2005 (Docket # 84) (“Selsky Decl.”)). Lunney filed disciplinary proceedings can show a liberty interest only if a second Article 78 petition with respect to the rehearing, and “disciplinary punishment ‘imposes atypical and significant in August 2003, a judge of the State Supreme Court dismissed hardship on the inmate in relation to the ordinary incidents the original misbehavior report and concluded that the failure of prison life.’” See Hanrahan v. Doling, 331 F.3d 93, 97 (2d to provide Lunney with a copy of the hearing disposition was Cir.2003) (per curiam) (quoting Sandin v. Conner, 515 U.S. a violation of due process.

472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).“Factors

relevant to determining whether the plaintiff endured an With regard to the timing and manner of notifying Lunney ‘atypical and significant hardship’ include ‘the extent to about the hearing disposition, Lunney acknowledges that he which the conditions of the disciplinary segregation differ received oral notification of the result on October 17, 2002. from other routine prison conditions' and ‘the duration of the See Def. 56.1 ¶ 12; Lunney Aff. ¶ 12. It is undisputed that he disciplinary segregation imposed compared to discretionary also received a tape recording of the hearing on this date, and confinement.’” Palmer v. Richards, 364 F.3d 60, 64 (2d that the tape “contained all [of] the information contained in Cir.2004) (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d the written decision including the evidence relied upon and Cir.1998)). reasons for the penalty imposed.” See Def. Reply Mem. at

23. 13

*27 There is no bright-line rule in determining whether a

particular period of confinement in a SHU meets the Sandin

standard of an “atypical and significant” hardship thereby

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The written disposition stated that it was based on “the written harmless, because: (1) “there was no information contained report by Officer Hadzovic and because it was recovered in in the written hearing decision not provided to plaintiff before the locker which was lock [sic]. Also from the testimony his final challenge to the hearing decision and penalty,” see of Sgt. Guadagno who stated that the showers are normally Def. Reply Mem. at 23; (2) after receiving a tape recording of completed by 7:15-7:30 PM.” See Superintendent Hearing the hearing which contained the rationale, “he did not add any Disposition Rendered, dated Oct. 17, 2002 (reproduced in Ex. new substantive arguments related to the rationale ... because H to Selsky Decl.). It noted the reasons for the disposition as: he had already made the best arguments possible,” see Def. “to impress upon this person the seriousness of this act and Mem. at 26; and (3) his sentence was reduced for exceeding to act a[s] a deterrent to other[s]. Also that the possession of the guidelines, despite his failure to raise the issue on appeal. illegal weapons in a correctional facility is very detrimental See Def. Reply Mem. at 23. Thus, defendants argue, the claim to the safety and security of all those that work and live must fail. See Def. 56.1 ¶¶ 12, 35; Def. Mem. at 22-23; Def. [h]ere, and this will not be tolerated.” See id. Lunney makes Reply Mem. at 25-27.

no allegations regarding what was or was not on the tape.

Nor does he allege that the written decision contained any Lunney does not contradict any of the relevant facts asserted information that was not on the tape. by defendants on this point. Rather, he states that although

his punishment at the second disciplinary hearing was in the *28 In its original ruling on this claim, this Court allowed end reduced for exceeding the guidelines, he never made this Lunney's claim regarding his failure to receive a written challenge on appeal. See Pl. Mem. at 57. He uses this fact to disposition of his disciplinary hearing to proceed because “the argue that “[p]erhaps if plaintiff had received a copy of the right to receive a ‘written statement of the disposition’ [is] a disposition paperwork, he could have argued on appeal that requirement that has been in place since the Supreme Court's the penalty ... exceeded the guidelines.” See id. This is the only decision in Wolff v. McDonnell [418 U.S. 539, 563 (1974) harm Lunney points to based on his not having received the ].” See Lunney I, 2005 WL 121720, at *13 (citing Luna v. written disposition.

Pico, 356 F.3d 481, 487 (2d Cir.2004)); see also Kalwasinski

v. Morse, 201 F.3d 103, 108 (2d Cir.1999); McCann v. *29 Lunney's argument fails for two reasons. First, he was Coughlin, 698 F.2d 112, 121-22 (2d Cir.1983); Higgins v. aware of his nine-month sentence following the disciplinary Coombe, 2002 WL 362776, at *2 (S.D.N.Y. Mar.6, 2002); hearing. See Def. 56.1 ¶ 12 (citing Lunney Dep. at 93, Silva v. Sanford, 1998 WL 205326, at *6 (S.D.N.Y. Apr.24, 100-101). Thus, nothing prevented Lunney from raising the 1998). The Court noted at that time that the defendants might alleged illegality of the nine-month sentence even without a be able to defeat the due process claim based upon additional copy of the actual written disposition. Second, Lunney has not facts (not contained in the complaint) showing, for example, shown that there was any potential for any other outcome had that Lunney was informed of the disposition or was otherwise he been provided with a copy of the written disposition. For given the opportunity to obtain it. Lunney I, 2005 WL 121720, example, he makes no argument that he could have received at *13. In addition, the Court left open the possibility that the an even greater sentence reduction had he had access to defendants could show entitlement to qualified immunity. Id. the written hearing disposition. Given that the error in the

sentence was remedied in November 2002 prior to his serving Prison disciplinary hearings are subject to a harmless error six months in confinement, any failure on his part to raise analysis. See Powell v. Coughlin, 953 F.2d 744, 750 (2d the argument that his sentence was incorrect was necessarily Cir.1991) (“If a person may be convicted and obliged harmless.

to serve a substantial prison sentence notwithstanding a

constitutional error determined to be harmless, surely the

conditions of confinement of a sentenced prisoner may be Conclusion made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating For the foregoing reasons, defendants' motion should be the violation.”) (internal citations omitted); Louis v. Ricks, granted, with the exception of the portion of their motion 2002 WL 31051633, at *11 (S.D.N.Y. Sept.13, 2002) (citing concerning Lunney's claim of (1) excessive force against Blot Powell, 953 F.2d at 750). Defendants now argue that any and Frazier and (2) his First Amendment retaliation claims failure to provide Lunney with a written disposition of the (a) against defendant Blot based on the allegedly retaliatory result of his disciplinary hearing in a timely fashion was assault, threats, and deprivation of recreation and showers © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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2007 WL 1544629 Such objections (and any responses to objections) shall be

(b) against defendant Frazier for his participation in the filed with the Clerk of the Court, with copies sent to the retaliatory assault. 14 Hon. Lewis A. Kaplan, 500 Pearl Street, New York, New

York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely PROCEDURE FOR FILING OBJECTIONS TO objections, that party will not be permitted to raise any THIS REPORT AND RECOMMENDATION

objections to this Report and Recommendation on appeal. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the See Thomas v. Arn, 474 U.S. 140, 144-45, 106 S.Ct. 466, 88 Federal Rules of Civil Procedure, the parties have ten (10) L.Ed.2d 435 (1985).

days from service of this Report and Recommendation to

serve and file any objections. See also Fed.R.Civ.P. 6(a), (e).

Footnotes

1 This officer is identified as Lieutenant “Brureton” in the complaint.

2 See Notice of Motion for Summary Judgment, filed Apr. 24, 2006 (Docket # 72); Defendants' Memorandum of Law in Support

of Their Motion for Summary Judgment, filed Apr. 24, 2006 (Docket # 73) (“Def.Mem.”); Defendants' Rule 56.2 Statement, filed Apr. 24, 2006 (Docket # 74); Declaration of Brian Fischer, filed Apr. 24, 2006 (Docket # 75) (“Fischer Decl.”); Declaration of Paul Kikendall, filed Apr. 24, 2006 (Docket # 76); Declaration of Robert Murphy, filed Apr. 24, 2006 (Docket # 77); Declaration of Michael Blot, filed Apr. 24, 2006 (Docket # 78) (“Blot Decl.”); Declaration of Parrish Frazier, filed Apr. 24, 2006 (Docket # 79) (“Frazier Decl.”); Declaration of Sean Kober, filed Apr. 24, 2006 (Docket # 80); Rule 56.1 Statement, filed Apr. 24, 2006 (Docket # 81) (“Def.56.1”); Chu Declaration in Support of Defendants' Motion for Summary Judgment, filed Apr. 24, 2006 (Docket # 82); Declaration of Thomas G. Eagen, filed Apr. 24, 2006 (Docket # 83) (“Eagen Decl.”); Declaration of Donald Selsky, filed Apr. 24, 2005 (Docket # 84) (“Selsky Decl.”); Declaration of Benjamin Lee, filed Apr. 24, 2006 (Docket # 85) (“Lee Decl.”).

3 Lunney has also asserted that the assault occurred in retaliation for complaints he has made. The retaliation claim with respect to the

assault is discussed separately below in sections III.D.3.e (with respect to Blot) and III.D.4 (with respect to Frazier). 4 Defendants assert that “in the event that the Court finds that there is a genuine dispute of material fact concerning exhaustion, and that

plaintiff's claims cannot otherwise be dismissed, the proper procedure would be to hold an evidentiary hearing,” Def. Reply Mem. at 10, rather than “proceed directly to trial.” There is certainly case law that supports the view that exhaustion should be determined by the Court rather than by a jury. See, e.g., Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.) (in motion to dismiss for failure to exhaust administrative remedies under PLRA, court may “decide disputed issues of fact”), cert. denied, 540 U.S. 810 (2003); Priester v. Rich, 457 F.Supp.2d 1369, 1377 (S.D.Ga.2006) (same); see also Dukes v. Doe, 2006 WL 1628487, at *6 (S.D.N.Y. June 12, 2006) (ordering without discussion an “evidentiary hearing” on the question of exhaustion under the PLRA); cf. Pauling v. Sec'y of Dep't of Interior, 71 F.Supp.2d 231, 232-33 (S.D.N.Y.1999) (issues of fact with respect to equitable tolling of statute of limitations to be decided by the court). As the Supreme Court has recently affirmed, however, exhaustion is an “affirmative defense,” much like a statute of limitations defense. See Jones v. Bock, --- U.S. ----, ---- - ----, 127 S.Ct. 910, 919-921, 166 L.Ed.2d 798 (2007). Where there are disputed factual questions regarding an affirmative defense such as a statute of limitations defense, the Second Circuit has stated that “issues of fact as to the application of that defense must be submitted to a jury.” Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 n. 2 (2d Cir.1984). Thus, it is not clear that factual disputes regarding the exhaustion defense should ultimately be decided by the Court.

5 Lunney was transferred some time later, in 2004, to Cayuga Correctional Facility, long after the grievances and alleged threats by

Fischer were made. See Lunney Aff. ¶ 26. Lunney has not alleged any facts regarding this transfer and also has not provided evidence that Fischer caused this transfer. Notably, there is an affidavit from Fischer stating that he was not involved in Lunney's transfer. See Fischer Decl. ¶¶ 5-7; see generally Davidson v. Donnelly, 2004 WL 1941349, at *3 (W.D.N.Y. Aug.29, 2004) (no claim for retaliatory transfer where plaintiff provided no evidence on reason for transfer and prison officials gave reasons).

6 The Second Circuit has recognized that “the case law on the PLRA's exhaustion requirement does not always distinguish clearly

between (a) cases in which defendants are estopped from asserting non-exhaustion as an affirmative defense, (b) situations in which administrative remedies are not ‘available’ to the plaintiff ....” Giano v. Goord, 380 F.3d 670, 677 n. 6 (2d Cir.2004). 7 While defendants argue that “the alleged denial of meals, recreation and showers did not deter the exercise of plaintiff's rights

as evidenced by his many grievances,” Def. Mem. at 15, as noted, the test for adverse action is an “objective test [which] applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.” Pidlypchak, 389 F.3d at 381 (citing Davis, 320 F.3d at 353).

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8 Defendants have made only a conclusory argument as to qualified immunity on this point, see Def. Mem. at 33-34, and thus we do

not consider it here. 9 This finding of guilt was “apparently overturned,” or at least “modified” on appeal, though to what extent and the reason for such

action is not clear from the record. See Def. Mem. at 16 (citing Lee Decl. Ex. I). 10 Because defendants' motion does not contend that verbal complaints cannot constitute constitutionally protected activity, it is

unnecessary to reach this question. The Court notes that some case law indicates that a prisoner's oral complaints to prison guards may provide the basis for a retaliation claim under § 1983. See Smith v. Woods, 2006 WL 11312347, at *10 (N.D.N.Y. Apr. 24, 2006), aff'd, 2007 WL 756410, at *1 (2d Cir. Mar.12, 2007); Gill v. Riddick, 2005 WL 755745, at *10 (N.D.N.Y. Mar.31, 2005) (citing cases); Gaston v. Coughlin, 81 F.Supp.2d 381, 386 (N.D.N.Y.1999); Malik'El v. New York State Dept. of Corr. Servs., 1998 WL 187459, at *4 (N.D.N.Y. Apr.8, 1998); but see Garrido v. Coughlin, 716 F.Supp. 98, 101 (S.D.N.Y.1989) (“verbal confrontation” not protected activity).

11 Defendants make no arguments with respect to qualified immunity on this claim or with respect to the First Amendment claim against

Frazier (discussed in the next section), and thus we do not consider the doctrine's applicability with respect to these claims. 12 The defendants and Lunney discuss the matter of “hearing officer bias” in their summary judgment papers. See Def. Mem. at 23-24;

Pl. Mem. at 50-52; Def. Reply Mem. at 21-22. However, Lunney did not raise this claim in his amended complaint or in his affidavit and thus we do not consider it.

13 Lunney wrote a letter to Donald Selsky, see Letter, dated Nov. 14, 2002 (reproduced in Ex. K to Selsky Decl.), stating that the original

tape he received was defective, and requesting a new one. Defendants state, and Lunney does not dispute, that he received a new tape around that time. See Def. Mem. at 24.

14 Lunney asserts in his amended complaint that Fischer subjected him to “forced labor without pay” while he was in the SHU, see Am.

Compl. ¶ 16(c). However, this claim is not explained in his affidavit. Nor is any evidence supplied to support it. Accordingly, it is too vague to constitute the basis for a claim and it has not been discussed herein.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Notes

[1] This Defendant’s name is spelled “Hessle” in the caption. Defendant spells his surname “Hoessle” according to the declaration he filed in support of the motion for summary judgment. (Dkt. No. 90-7.) The Clerk is directed to amend the caption to reflect the correct spelling of Defendant’s last name.

[2] This Defendant’s name is spelled “McIntyer” in the caption. Defendant spells his surname “McIntyre” according to the declaration he filed in support of the motion for summary judgment. (Dkt. No. 90-10.) The Clerk is directed to amend the caption to reflect the correct spelling of Defendant’s last name.

[3] A fact is “material” only if it would have some effect on the outcome of the suit. Anderson , 477 U.S. at 248.

[4] Citations to page numbers in Plaintiff’s deposition transcript refer to the page numbers in the original document rather than to the page numbers assigned by the Court’s electronic filing system.

[5] Citations to page numbers in Defendants’ memorandum of law refer to the page numbers in the original document rather than to the page numbers assigned by the Court’s electronic filing system.

[6] Defendants make the same arguments for each of Plaintiff’s retaliation claims. Having addressed those arguments explicitly in Section III(A)(2), the Court will not repeat the arguments in the subsequent sections.

[7] Slattery was an employment law case. The Second Circuit routinely cites to employment cases when discussing retaliation in the prison law context. See e.g. Espinal , 558 F.3d at 129 (citing Clark Cnty. Sch. Dist. v. Breeden , 532 U.S. 268, 273-74 (2001)). Thus, it is appropriate to apply the Slattery rule here.

[8] Defendants assert that “Plaintiff never produced his letters of complaint[] to Defendants during the course of this litigation.” (Dkt. No. 90-3 ¶ 14.) Plaintiff asserts that he gave the letters to a hearing officer on January 5, 2011, and that the officer confiscated them. (Dkt. No. 99 ¶ 14.) Given the special solicitude that must be given to pro se plaintiffs, the Court has assumed that Plaintiff actually wrote to Defendant Fischer.

[9] Plaintiff alleges that Defendant McDermott made comments indicating retaliatory animus during this hearing. (Dkt. No. 9 ¶¶ 14-15.) However, it is clear from the record that he did not conduct any part of the hearing.

[10] In Ashcroft v. Iqbal , 556 U.S. 662 (2009), the Supreme Court ruled that where the underlying constitutional claim is a claim of intentional discrimination, a supervisory official’s liability must be judged by the official’s purpose rather than the official’s knowledge of subordinates’ actions or policies. The Second Circuit has not yet issued a decision discussing Iqbal ’s effect on the Colon categories. Several district courts in the Second Circuit have determined that Iqbal nullified some of the Colon categories. See Sash v. United States , 674 F. Supp. 2d 531, 543-44 (S.D.N.Y. 2009) (collecting cases). The Second Circuit itself has noted that “ Iqbal has . . . engendered conflict within our Circuit about the continuing vitality of the supervisory liability test set forth in Colon .” Reynolds v. Barrett , 685 F.3d 193, 205 n.14 (2d Cir. 2012). The Second Circuit declined to address the issue in Reynolds , however, and has not addressed it since that time. I will assume for the purposes of this motion that Colon remains good law.

[11] Citations to page numbers in Defendants’ earlier memorandum of law refer to the page numbers in the original document rather than to the page numbers assigned by the Court’s electronic filing system.

[12] Unfortunately, the transcript of the majority of Inmate Bush’s testimony states that it was inaudible on the audio tape. (Dkt. No. 90-24 at 6-8.)

[13] As discussed above, Plaintiff has raised a triable issue of fact that the decision was retaliatory. Although these two conclusions may seem mutually exclusive, they do not contradict each other because different legal standards apply to the two claims.

[14] The record shows that on April 15, 2011, Defendant McDermott also conducted the disciplinary hearing regarding a misbehavior report issued by former Defendant Doty. (Dkt. No. 90-29 at 1.) Plaintiff pleaded not guilty to both charges. Id. at 3. Defendant McDermott found Plaintiff guilty and sentenced him to sixty days in keeplock and loss of privileges. Id. at 1. Plaintiff served the keeplock sentence from April 15, 2011, through June 14, 2011. Id. As discussed further below in Section I, Defendant McDermott also began the disciplinary hearing regarding an April 13, 2011, misbehavior report on April 15, 2011. (Dkt. No. 90-31.)

[15] Plaintiff alleges that on or about April 16, 2011, Plaintiff appealed Defendant McDermott’s decision to Defendant Martuscello. (Dkt. No. 9 ¶ 28.) Plaintiff alleges that he explained to Defendant Martuscello the circumstances behind all of the misbehavior reports. The record shows that this appeal related only to the decision regarding former Defendant Doty’s misbehavior report. (Dkt. No. 90-15 at 6.) Defendant Miller affirmed that decision. Id. This appeal did not involve Defendant Stevens’ misbehavior report and will not be discussed here.

[16] Lexis and Westlaw list different dates for this decision. The Court has used the date listed by Westlaw.

[17] The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit’s decision in Lebron v. Sanders , 557 F.3d 76 (2d Cir. 2009) (per curiam).

Case Details

Case Name: King v. McIntyer

Court Name: District Court, N.D. New York

Date Published: Mar 17, 2015

Citations: 2015 WL 1781256; 9:11-cv-01457

Docket Number: 9:11-cv-01457

Court Abbreviation: N.D.N.Y.