Zulu v. Barnhart

Case Information

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK ARKIL LIONKING ZULU, Plaintiff, Civil Action No. 9:16-CV-1408 (MAD/DEP) v. JOHNATHAN M. BARNHART, et al. , Defendants. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: ARKIL LIONKING ZULU, Pro se 96-A-4462 Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 FOR DEFENDANT: HON. BARBARA D. UNDERWOOD MATTHEW P. REED, ESQ. New York State Attorney General Assistant Attorney General The Capitol Albany, NY 12224 DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

This is a civil rights action brought by

pro se

plaintiff Arkil LionKing Zulu ("Zulu"), a New York State prison inmate, pursuant to 42 U.S.C. § 1983, against several corrections employees stationed at the prison facility in which he was confined at the relevant times. In his complaint, Zulu alleges that he was assaulted by those corrections officers, causing injuries to his face that required medical treatment.

Now that discovery is complete, the remaining five defendants in the action have moved for the entry of summary judgment dismissing plaintiff's claims against them. In their motion, defendants argue that plaintiff failed to exhaust available administrative remedies before commencing suit as required under the Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). For the reasons set forth below, I conclude that there are genuine disputes of material fact that must be resolved before defendants' exhaustion defense can be adjudicated. Accordingly, I recommend that defendants' motion be denied and an evidentiary hearing be conducted to address the disputed issues.

BACKGROUND 1

I.

A. Facts Surrounding Plaintiff's Substantive Claims Since July 1996, Zulu has been an inmate in the custody of the New

York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 51-3 at 12. Prior to changing his name, plaintiff was known as Arkil Johnson.

Id.

Plaintiff was designated to the Marcy Correctional Facility ("Marcy") between September 12, 2014 and February 6, 2015, and from there was transferred into the Upstate Correctional Facility ("Upstate"), arriving at the facility on February 9, 2015. 2 Id. at 141;

Dkt. No. 51-6 at 3.

Plaintiff claims that on January 18, 2015, while confined at Marcy, he

was assaulted by prison officials. Dkt. No. 1 at 2-5;

see also Dkt. No. 51-3 at 14-26. Specifically, plaintiff alleges that while he was in the bathroom on that date, defendant Barnhart turned off a fan in the bathroom and then

began acting hostile towards plaintiff. Dkt. No. 1 at 2-3; Dkt. No. 51-3 at

1 In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003). 2

Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Samuels v. Selsky , No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). (All unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.) 14-15. Defendant Barnhart ordered plaintiff to stand against a wall and then radioed for assistance. Dkt. No. 1 at 3; Dkt. No. 51-3 at 15. Defendants Liddick, Muha, Hubal, and Gebo arrived on the scene, and when plaintiff asked defendant Barnhart a question, the officer slammed plaintiff's face into the wall twice. Dkt. No. 1 at 3-4; Dkt. No. 51-3 at 17. Immediately thereafter, defendant Muha told plaintiff he was going to the

facility's special housing unit ("SHU"). Dkt. No. 1 at 4. During the transport,

while plaintiff was handcuffed, defendant Muha allegedly struck plaintiff in the nose, defendant Hubal allegedly struck plaintiff in the right "eyebrow with a lock around his hand," and defendant Gebo allegedly struck plaintiff in the face. Id. ; Dkt. No. 51-3 at 18-20.

After arriving at the SHU and being removed from the transport van, plaintiff was assaulted by defendant Leddick, who grabbed plaintiff by the hair, pulled his head back, and struck him on the left side of his eyebrow with a sharp instrument. Dkt. No. 1 at 4; Dkt. No. 51-3 at 20-21. Defendant Leddick then rammed plaintiff's face into the wall. Dkt. No. 1 at 5; Dkt. No. 51-3 at 21.

As a result of the events of January 18, 2015, plaintiff was taken to St. Elizabeth's Hospital, located in Utica, New York, where he received three stitches to each of his left and right eyebrows. Dkt. No. 51-3 at 27, 72, 104. Plaintiff maintains that he has experienced migraine headaches

as a residual result of the incident.

Id. at 72.

B. Facts Concerning Exhaustion

Plaintiff claims that he filed a grievance on January 22, 2015,

concerning the above-described use-of-force incident that occurred on January 18, 2015, at Marcy. Dkt. No. 51-3 at 106-07; Dkt. No. 59-5 at 1; Dkt. No. 59-7 at 2. Plaintiff alleges that he amended that grievance, and that it was then forwarded through the proper channels on January 25, 2015. 3 Dkt. No. 51-3 at 105. Plaintiff claims that yet another amended grievance regarding the use-of-force incident at Marcy was submitted on

February 1, 2015.

Id. at 108-10.

Plaintiff maintains that on February 15, 2015, following his transfer into Upstate, he filed a cover letter and a second grievance concerning the events of January 18, 2015. Dkt. No. 51-3 at 111-14. Copies of that grievance were sent to the FBI and to the Office of the DOCCS IG. 4 Id. at 3 Plaintiff claims that, during that same timeframe, he sent letters or copies of letters regarding the assault to other outside agencies, including Human Rights Watch, the New York State Office of Criminal Justice, Acting DOCCS Commissioner Anthony Annucci, the Office of the DOCCS Inspector General ("IG"), and the Federal Bureau of Investigation ("FBI"). Dkt. No. 51-3 at 56-57, 112-14, 122-31. With the exception of Laurie Youngblood, who works with the FBI Prison Correction Unit, and who may have answered Zulu's letter, plaintiff did not receive responses to those communications. Id . at 59-62. 4 The Office of the DOCCS IG has been renamed, and is currently known as the 114.

Plaintiff alleges that he sent a letter concerning the incident to Marcy Superintendent Justin Thomas on or about March 9, 2015. Dkt. No. 51-3 at 115. In that letter, Zulu advised that he was appealing the grievances sent on January 22, 2015 and February 15, 2015. Id.

Plaintiff alleges that on April 4, 2015, he sent a letter to Karen Bellamy, Director of the DOCCS Inmate Grievance Program ("IGP"), expressing a desire to appeal the matter to the Central Office Review Committee ("CORC"), referencing his March 9, 2015 letter to Superintendent Thomas. Dkt. No. 51-3 at 116-17. On May 16, 2015, plaintiff allegedly sent a second letter to Bellamy, referencing the March 9, 2015 letter to Superintendent Thomas and informing Bellamy that he had not yet received a response to his grievance or appeal to the facility superintendent. Id. at 118-19.

Two days later, on May 18, 2015, plaintiff sent a third letter to Bellamy, forwarding copies of the relevant grievance and appeals. Dkt. No. 51-3 at 120. In response, plaintiff received a letter, dated May 21, 2015, from Bellamy acknowledging his letter of May 18, 2015.

Id.

at 121. Office of Special Investigations. New York State, DOCCS, Office of Special Investigations, http://www.doccs.ny.gov/OSI.html (last visited Aug. 13, 2018). In her letter, Bellamy stated that the IGP did not permit inmates to refer their grievances directly to the CORC and, accordingly, advised Zulu that his grievance materials were being returned to him. Id.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on or about November 28, 2016, and

was granted leave to proceed in the action

in forma pauperis . Dkt. Nos. 1,

8. In an order dated December 30, 2016, following

sua sponte review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A, District Judge Mae A. D'Agostino's determined that, while plaintiff's claims against defendant Dischiavo should be dismissed without prejudice, the remaining causes of action set forth in plaintiff's complaint were sufficiently stated and should go forward. Dkt. No. 8. Following service of process, an answer was filed on behalf of the defendants on May 10, 2017. Dkt. No. 36.

On January 9, 2018, following the completion of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 51. The sole basis for defendants' motion is their contention that plaintiff did not properly comply with the requirement

that he exhaust available administrative remedies before filing suit. Dkt.

No. 51-2.

Plaintiff has since responded in opposition to defendants'

motion. Dkt. No. 59. That motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Summary Judgment Standard Summary judgment motions are governed by Rule 56 of the Federal

Rules of Civil Procedure. Under that provision, the entry of 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); Celotex Corp. v. Catrett , 477 U.S.

317, 322 (1986);

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

(1986);

Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson , 477 U.S. at 248; see also Jeffreys v. City of N.Y. , 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson , 477

U.S. at 250 n.4;

Sec. Ins. Co. , 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex , 477 U.S. at 324; Anderson , 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson , 477 U.S. at 255; Jeffreys , 426 F.3d at 553;

Wright v.

Coughlin , 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg.

Trades Employers' Educ. Ass'n v. McGowan

, 311 F.3d 501, 507-08 (2d

Cir. 2002);

see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Exhaustion of Available Administrative Remedies The lynchpin of defendants' motion currently before the court is that

plaintiff did not properly file a grievance concerning the events on January 18, 2015, and pursue that grievance through to completion of the internal DOCCS administrative grievance process. Dkt. No. 51-2.

1. Exhaustion Legal Principles Generally The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104- 134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake , 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross , 136 S. Ct. at

1856;

Woodford v. Ngo , 548 U.S. 81, 84 (2006); Porter v. Nussle , 534

U.S. 516, 524, 532 (2002);

Williams v. Corr. Officer Priatno , 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate- plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject

to dismissal.

See Woodford , 548 U.S. at 93 ("[W]e are persuaded that the

PLRA exhaustion requirement requires proper exhaustion.");

see also

Wilson v. McKenna

, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford , 548 U.S. at 95; accord, Macias v. Zenk , 495 F.3d 37, 43 (2d Cir. 2007) . 5

In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams , 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams , 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility 5

While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias , 495 F.3d at 43 (quoting Johnson v. Testman , 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)). where the inmate is housed even if it pertains to another facility."

Id.

Representatives of the inmate grievance resolution committee ("IGRC") 6 have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § 701.5(b)(2).

A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).

The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii). 6

The IGRC is comprised of "two voting inmates, two voting staff members, and a non- voting chairperson." 7 N.Y.C.R.R. § 701.4(a). 7 Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).

Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).

As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above- described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v.

Cnty. of Orange

, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).

While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion."

Ross

, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross , 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross , 136 S. Ct. at 1859 (quotation marks omitted).

In

Ross , the Supreme Court identified three circumstances in which

a court could find that internal administrative remedies are not available to

prisoners under the PLRA. 8 Ross , 136 S. Ct. at 1859-60. Under the first, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id . The Court explained that, "[i]n this situation, some 8

According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams , 829 F.3d at 123 n.2. mechanism exists to provide relief, but no ordinary prisoner can discern or

navigate it."

Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

2. Analysis

In support of their motion, defendants have submitted evidence demonstrating plaintiff's familiarity with the IGP, and revealing that plaintiff has appealed twenty-three grievances to the CORC throughout the course of his incarceration. Dkt. No. 51-6 at 3, 7-8. None of those grievances related to the incident on January 18, 2015.

Id.

at 7-8. Also included in defendants' motion papers are declarations from Erin Pfendler and Donna Wilcox, the IGP supervisors at Marcy and Upstate, respectively. Dkt. Nos. 51-4, 51-5. In those declarations, the two IGP supervisors state that plaintiff did not file any grievances regarding the incident at Marcy on January 18, 2015, at either facility. Dkt. No. 51-4 at 3; Dkt. No. 51-5 at 3. In response to defendants' motion, plaintiff claims to have made efforts, while confined in Marcy, to grieve the alleged assaults of January 18, 2015, but that those efforts were rebuffed when he attempted to forward the grievances through the prison mail system. Dkt. Nos. 59-6 at 2; Dkt. No. 59-7 at 2.

It is well-established, particularly in the wake of

Ross

, and even under earlier case law in this circuit pursuant to the Second Circuit's Hemphill suite of decisions, that the requirement of exhaustion can be

excused if prison officials have thwarted an inmate's legitimate efforts to

file a prison grievance. 9 Ross , 136 S. Ct. at 1860; see also Williams, 829 F.3d at 123. In this case, there are squarely conflicting accounts of whether plaintiff did, or attempted to, file a grievance concerning the January 18, 2015 incident. Compare Dkt. Nos. 51-4 at 3, Dkt. No. 51-5 at 3, Dkt. No. 51-6 at 3

with

Dkt. No. 59-7 at 2-3. Indeed, plaintiff has submitted evidence that, if credited, could support a finding that he attempted to file a grievance regarding the alleged assaults, but his attempts were frustrated by prison officials. Dkt. No. 59-7 at 2-3. If plaintiff can succeed in establishing that prison officials blocked his efforts to file a grievance regarding the events of January 18, 2015, then the court will likely hold that DOCCS inmate grievance process was not available to him, therefore providing a basis to excuse the PLRA's exhaustion 9 Hemphill v. N.Y. , 380 F.3d 680 (2d Cir. 2004); Giano v. Goord , 380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis , 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman , 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride , 380 F.3d 649 (2d Cir. 2004); Ziemba v. Wezner , 366 F.3d 161 (2d Cir. 2004). requirement.

The record now before the court presents a dispute of material fact that cannot be resolved on summary judgment. Accordingly, I recommend that defendants' motion be denied, without prejudice, and that the court schedule an evidentiary hearing to address the disputed issues of fact that exist and currently preclude resolution of the exhaustion defense as a matter of law in accordance with Messa v. Goord , 652 F.3d 305 (2d Cir. 2011). IV. SUMMARY AND RECOMMENDATION

The basis for defendants' pending motion – plaintiff's alleged failure to exhaust available administrative remedies before filing suit – cannot be adjudicated until the court has first resolved genuine disputes of material fact surrounding plaintiff's claimed efforts to file a grievance regarding the incident at Marcy on January 18, 2015. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 51) be DENIED, and that the court instead schedule an evidentiary hearing to address the defendants' exhaustion of remedies defense in this action.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. 10 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 22, 2018

Syracuse, New York

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

Defendants have filed a motion to dismiss the action pursuant to FED. R. CIV. P. 12(b)(1) and (6), and argue that they enjoy qualified immunity barring this suit. For

Only the W estlaw citation is currently available. the reasons set forth below, defendants' motion is granted in part and denied in part.

United States District Court, S.D. New York. Maurice SAMUELS, Plaintiff, FN1. Defendants repeatedly state that the events v. giving rise to this action arose while Samuels Donald SELSKY, Glenn Goord, Paul Cecilia, Javier was incarcerated at the Great Meadow Iurrue, G. Schwartzman, Dennis Bliden, Jeffery McCoy, Correctional Facility. Samuels states that the and Christopher P. Artuz, Defendants. events in question happened at the Green Haven No. 01CIV.8235(AGS). Correctional Facility. Moreover, Samuels' evidence, including the Inmate Disciplinary Report (Exhibit H), the Disciplinary Hearing

Sept. 12, 2002. R e c o r d S h e e t (E xhib it O ), a nd the Superintendent Hearing Disposition Report (Exhibit P) all note the Green Haven

OPINION & ORDER Correctional Facility. In light of the above, the Court determines that defendants' position that the events occurred at Great Meadow is

SCHW ARTZ, District J. incorrect. The Green Haven Correctional Facility is located in Dutchess County in the Southern District, while Great Meadow is located in

I. Introduction W ashington County in the Northern District. Defendants make no argument regarding the Court's jurisdiction with respect to the location of

*1 Maurice Samuels alleges that while incarcerated at the the events in question. Green Haven Correctional Facility, FN1 prison officials searched his cell and confiscated a number of documents which were deemed to be “subversive” and contraband. II. Factual Background FN2 Samuels claims that the materials, including theological textbook excerpts, were of a Christian nature and were used in a course he taught in the prison through the New

FN2. Unless otherwise indicated, the facts set York Theological Seminary. Samuels' alleged possession forth below are gleaned from Samuels' of these documents led to a misbehavior report and a submissions, because on a FED. R. CIV. P. subsequent disciplinary hearing, for which Samuels was 12(b)(1) or (6) motion, the adjudicating court sentenced to 180 days in keeplock and 180 days' loss of must assume as true factual allegations made in packages, commissary privileges, and telephone use. the complaint. Defendants concede this fact. See Samuels also alleges that instead of being punished as per Defendants' M emorandum of Law in Support of his disciplinary hearing, he was sentenced to a more their Motion to Dismiss the Complaint, at 4. It severe punishment, 180 days in a special housing unit should also be noted that Samuels brings this which entailed Samuels' being locked in his cell for action pro se. As such, it is sometimes difficult to twenty-three hours per day. On the basis of the allegedly understand fully his contentions. Accordingly, unlawful sanctions to which he was subjected, Samuels the Court reads the (sometimes confusing) has filed the instant action pursuant to 42 U.S.C. § 1983 factual allegations in the light most favorable to alleging violations of, inter alia, his First Amendment and Samuels. due process rights, and seeks equitable relief and damages. Maurice Samuels is currently an inmate at the Sullivan FN4. See supra note 1. Correctional Facility. Since being incarcerated, Samuels has taken a keen interest in religion. He identifies himself as a member of the Five Percent Nation of Gods and The NYTS later began a certificate program in Christian Earths. FN3 W hile confined at Sing Sing, he received a

Ministry in conjunction with Marist College at Green degree of Master of Professional Studies in Prison Haven. Samuels was invited to teach several courses for Ministry through the New York Theological Seminary the program, including a course entitled “W orld Views (“NYTS”). See Complaint Pursuant to U.S.C.A. Section and Values” and another entitled “Introduction to 1983 (“Complaint”), at 4; Exhibit (“Ex.”) A. Upon Theology and Methods.” See Complaint, at 4; Ex. E, at 12. completion of his studies with the NYTS, Samuels was Samuels is listed on the “Faculty and Administration” transferred to the Green Haven Correctional Facility. FN4

page of the Certificate in Ministry Program brochure. See At Green Haven, Samuels was assigned a clerk's position Ex. E, at 10. In designing his theology course, Samuels, in in therapeutic “Reality and Pain Program.” He conjunction with Professor Mar Peter-Raoul (currently the subsequently redesigned the program, creating the Chair of the Department of Philosophy and Religious “Reality and Pain Therapeutic Counseling Program.” See Studies at Marist College), prepared a syllabus which Complaint, at 4. During this period he also served as a included the following: volunteer inmate instructor in the Black Studies program, and was later assigned as a clerk in Green Haven's Senior Counselor's Office, where he helped create a program for *2 a. This is an introductory approach to contemporary sex offenders. See id. at 4. Christian Theology, there will be a broad range of material

provided for the student so that they [sic] may see the evolution of Christian Theology and Contemporary

FN3. The website of the University of Chicago's Theologies, active in the world today. Divinity School provides a good summary of the beliefs of the adherents of the Five Percent Nation of Gods and Earths, commonly known as b. The course is divided into different sessions (1) W hat the “Five Percenters.” See Jonathan Moore, The is Theology; (2) Philosophy & Theology; (3) Five Percenters: Racist Prison Gang or Contemporary Theology; (4) Political and Liberation Persecuted Religion?, SIGHTINGS, May 21, Theology; (5) Feminist/W omanist Theology; and (6) 1 9 9 9 , a v a i l a b l e a t h t t p : / / d i v i Black & Third W orld Theology. nity.uchicago.edu/sightings/archive_1999/sight ings-052199.html. The name of the group stems from its belief that only five percent of people c. This is done so that the student can examine the are aware of and teach the truth. The term evolution of Christian Theology and Contemporary “Gods” refers to black male members; “Earths” Theologies, and arrive at the next step in the process, i.e. refer to black female members. The group was explore the [sic] how to do theology. founded by Clarence 13X, who left the Nation of Islam in 1964. According to Moore, “[m]any of the theological accoutrements of Black Muslim d. This introduction to theology course will be taught from belief remain: many read the Qur'an and Elijah a [sic] interdisciplinary and non-traditional approach. Muhammad's writings (especially his “Message to the Black Man”), and they hold to the exclusive divinity of black men.” Id. (The Moore Complaint, at 5. This syllabus was approved by the article, not part of the record, is provided for appropriate authorities from NYTS, Marist College, and background purposes only). Samuels has the Department of Corrections (“DOCS”). See id. at 5. included two pages outlining the differences between the Nation of Gods and Earths and similar black Muslim groups-the Nation of Islam The central issue in this case involves a search of Samuels' and the Temple of Islam. See Exhibit B. cell. On September 15, 1999, another member of the Five

Percent Nation of Gods and Earths who was involved in the NYTS program was disciplined for allegedly in the Project. See Complaint, at 3. Samuels also possessing a pamphlet entitled “Awake” or “Awaken” alleges that prison officials specifically targeted which addressed topics such as racism in the criminal members of the NYTS and the Five Percent justice system and abuses of the Rockefeller drug laws. Nation of Gods and Earths for compelled work See Complaint, at 6. On October 19, 1999, the assistant participation in the Project. See id. at 4. The inmate director for the NYTS certificate program was planned Y2K protest, in which Samuels claims to interrogated about the program and why some of its have played no role, was intended to protest the members were also members of the Five Percent Nation of program as well as prison conditions generally. Gods and Earths. At the time, Samuels was housed in the inmate honor block housing Unit and taught a pre-G.E.D. and adult basic education class in the morning and FN6. The Kairos Statements (referred to by afternoon and taught his theology class in the evening. See Samuels as “Karios Statements”) are critiques of Complaint, at 6. According to defendants, Sergeant traditional church dogma. The most famous Schwartzman, a member of the prison staff, received a Kairos statement originated as a critique of report from a confidential informant that Samuels was a alleged church complicity in the white apartheid leader of a protest planned to occur around January 1, regime in South Africa. 2000 (“Y2K protest”). FN5 On October 20, 1999, Schwartzman ordered correction officers W illiams and Kelly to search Samuels' cell. Samuels states that the On the above date [10/20/99] and time while conducting confiscated materials included Marist College and NYTS a cell search on cell D-1-21 which houses inmate Samuels, course handouts for the certificate program, previously Maurice 85A0184 the following contraband was found published material from the NYTS and Marist College, and recovered; notes from newspaper articles, a manuscript Samuels had been working on since first attending the NYTS, and Kairos statements. FN6 See Complaint, at 7. According to *3 (1) Folder of papers containing subversive material the Cell Search Report, contraband was found which These papers speak about inmate [sic] uniting together to consisted of a “folder of papers containing subversive fight against opositions [sic] such as the N.Y. parole material.” Ex. G. On the same day, an Inmate Misbehavior system and other dept. of correction [sic] programs. Report was completed. See Ex. H. The rule violations are listed as 104.12 (action detrimental to the order of the facility) and 113.23 (contraband). See id. The narrative This material is consistant [sic] with information recieved section of the Inmate Behavior Report states: [sic] that inmate Samuels has been active in urging others

to participate in a demonstration on or about Jan. 1, 2000, which led to his cell being searched.

FN5. W hile denying a link to the Y2K protest, Samuels provides some background on the matter. According to Samuels, DOCS created a Ex. H. The form is signed by G. W illiams, a correction program at Green Haven through the Corcraft officer, and G. Schwartzman. The documents are not Industry Division Program known as the identified, nor is there an explanation of why they were Recreational Cell Building Project (“Project”). considered “subversive.” Samuels repeatedly asked prison The Project initially used inmate volunteers to authorities to identify the “subversive” documents without build Inmate Recreational Cells at recently success. See, e.g., Exhibits (“Exs.”) J, K, M, N, V, 7, 9. constructed S-Facilities (special housing Defendants have not furnished the confiscated papers for institutions). According to Samuels, because of the Court, and make no representation as to what poor working conditions, low wages, and other documents were found in Samuels' cell or why they are factors, inmates increasingly refused to volunteer considered “subversive.” Samuels states that the materials for the Project and sought other work seized by the prison officials is not literature pertaining to assignments. Samuels alleges that DOCS the Five Percent Nation of Gods and Earths but Christian personnel then began using the disciplinary ministry materials he used in teaching his class and which process to systematically force inmates to work had previously been approved by the NYTS and prison

authorities. See Complaint, at 5. Samuels also states that FN8. Samuels cites a number of failures on newspaper clippings and a manuscript he had been Cecilia's behalf: he failed to turn over working on since 1986 were taken. See Affidavit [of documentary evidence relating to the charges Maurice Samuels] in Support of Opposition Motion against Samuels, he failed to provide a written (“Samuels Aff.”), at ¶¶ 7-9. record of the questions he was supposed to ask

Samuels' witnesses, he failed to record the testimony of the witnesses interviewed on

Samuels was immediately placed in keeplock status Samuels' behalf, he failed to explain exactly what pending a hearing on the misbehavior report. See material that was confiscated constituted Defendants' Memorandum of Law in Support of their contraband, and he failed to interview the Motion to Dismiss the Complaint (“Motion Brief”), at 3. confidential informant to determine his existence Under DOCS rules, Samuels was entitled to an employee or credibility. See Complaint, at 9. assistant to assist in his defense of the charges set forth in the misbehavior report. FN7 An Assistant Selection Form was provided to Samuels, which instructed Samuels to *4 The “Tier III” disciplinary hearing was held on October 27, 1999. FN9 At the hearing, two inmates and Dr. select three people, one of whom would be assigned to him based on availability. See Ex. I. Samuels selected George W . W ebber testified on Samuels' behalf (W ebber Hanna, Lawrence, and Schwartzman as his three choices. testified by telephone). W ebber is the director of the See id. Instead, Paul Cecilia was assigned to Samuels. See Certificate Program and president emeritus of the NYTS. Motion Brief, at 3. Samuels alleges that instead of Sgt. Schwartzman testified against Samuels. See Ex. O. assisting him in the preparation of his case, Cecilia Samuels also submitted a written brief for the hearing. See proceeded to interrogate Samuels, asking him if he was in Ex. M . Samuels was found guilty of “demonstration” and contact with Green Party candidate (formerly “Grandpa “contraband” on November 9, 1999. The hearing officer, Javier Irurre, FN10 summarized his findings as follows: Munster”) Al Lewis, whether he had any letters from him, whether he had any letters from outside organizations involved in prison reform, whether he was involved in any planned Y2K protest, and what the “Kairos” document FN9. Tier III hearings are held for “the most was. See Complaint, at 8. Samuels further alleges that serious violations of institutional rules.” Walker Cecilia did not explain the charges contained in the v. Bates, 23 F.3d 652, 654 (2d Cir.1994). misbehavior report and failed adequately to conduct an investigation on Samuels' behalf. FN8 Cecilia signed an Assistant Form on October 25, 1999, at 12:53 pm, FN10. The name “Javier Irurre” appears on the indicating that he had interviewed witnesses, assisted as Hearing Disposition form. See Ex. P. Samuels requested, and reported back to Samuels. See Ex. J. spells the name “Iurrue,” see Complaint, at 9, However, on October 26, Green Haven officials requested while defendants in turn use two spellings for the a one-day extension to hold a disciplinary hearing on the name-“Iurre” and “Iurrue See Motion Brief, at 3. basis that the “assistant is trying to speek [sic] to with The Court uses the “Irurre” spelling found on the witiness [sic].” Ex. L. The extension was granted by Hearing Disposition form, apparently in Javier “Alternate User 999SHURXR for 999SHU.” See id. The Irurre's own handwriting, and on the Tier III name of the grantor is not listed on the computer printout. assignment form signed by Superintendent Artuz.

See Appendix 7. FN7. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251-4.1 (2002):(a) An inmate shall have the Statement of Evidence Relied Upon: Papers & hand opportunity to pick an employee from an written papers retrieved from your cell show statements established list of persons who shall assist the inciting revolt and prison unrest. Confidential tape shows inmate when a misbehavior report has been similarity between statements made in papers you have issued against the inmate if [...] (4) the inmate is written and others in your possession with statements confined pending a superintendent's hearing [...]. found in written material belonging other [sic] inmates

inciting the so called Y2K revolt. at 27. Neither Samuels nor defendants provides an explanation as to why Samuels was transferred to the

Confidential tape and testimony at the hearing establish a special housing unit facility. Jeff M cKoy (listed in the link between the statements in papers found in your cell caption as Jeffery McCoy) wrote to Samuels on November and phamphlets [sic] circulating among prison population 12, 1999, advising him that he lacked the authority to urging to strike in Y2K. overturn a Tier III disposition. See Ex. R. Bliden wrote to

Samuels on November 18, 1999, stating that any appeal Samuels wished to file had to be directed to the

Reason for Disposition: Inciting revolt can not be tolerated Commissioner in Albany. He stated that “[u]ntil such time in a correctional setting. as we receive a decision from [Albany], I will not modify

the disposition.” Ex. U. Ex. P. Samuels was punished with 180 days of keeplock, 180 days of loss of packages, 180 days of loss of FN11. Placement in a special housing unit commissary privileges, and 180 days of loss of phone involves confinement for twenty-three hours per privileges. See Ex. P; Complaint, at 11. The hearing day. The inmates assigned to special housing officer did not impose special housing unit placement. See units receive virtually no programming, no Ex. P; Complaint, at 11. The Court has not been furnished congregate activities, and very little natural light. with a transcript of the hearing or of the “confidential Reading materials are severely restricted, as are tape” referred to by Irurre. visits. See Ex. 16, at 5-6 (THE NEW YORK

STATE SENATE DEMOCRATIC TASK FORCE ON CRIMINAL JUSTICE REFORM,

Samuels alleges that his due process rights were violated CRIMINAL JUSTICE REFORM: A TIME at the misbehavior hearing. He alleges that he failed to THAT'S COME (2001)). receive a timely hearing, that he received inadequate assistance from the employee assistant assigned to him (Cecilia), and that Dr. Mar Peter-Raoul was not permitted *5 As per Deputy Superintendent Bliden's instructions, to testify on Samuels' behalf. See Complaint, at 9, 11. Samuels submitted a seventeen-page letter to Donald Samuels also protests the fact that the misbehavior report Selsky, the Director of the Inmate Disciplinary Program, never specifies exactly what Samuels did to constitute in Albany. See Ex. V. In the course of his letter to Selsky, “demonstration.” See id. at 11. No written record was Samuels voices his procedurally and substantively-based apparently made stating the reasons Dr. Peter-Raoul was arguments for dismissing his misbehavior adjudication. not permitted to testify. Dr. Peter-Raoul later wrote a Selsky affirmed the November 9, 1999 hearing on January 6, 2000 on behalf of Glenn Goord, the Commissioner. FN12 lengthy letter addressed to defendants Bliden, McCoy, and Irurre in which she explained the nature of the Kairos See Ex. 6. Samuels filed a request for a “time-cut” from documents and stated her desire to serve as a witness for the determination of the Superintendent on February 28, Samuels. See Complaint, at 10. 2000. See Ex. 6. Prisoners' Legal Services of New York

(“PLS”) sent a letter to Selsky on March 2, 2000, asking him to reconsider his decision. On April 27, 2000, PLS

On November 8, 1999 (one day before Irurre found sent a supplemental request for reconsideration, this time Samuels guilty of demonstration and contraband), Samuels outlining in detail the legal bases for which Samuels' submitted a detailed written brief to First Deputy disciplinary charges should be withdrawn (by this point, Superintendent Dennis Bliden and “Jeff Macoy” [sic] on Samuels had already served the imposed penalty; the letter November 8, 1999, requesting that his misbehavior report asks Selsky to reverse the disciplinary hearing and be dismissed. See Ex. N. W hile waiting for a response to expunge the disciplinary charges). See Ex. 9. Selsky did his letter, Samuels was transferred to the Upstate not alter his January 2000 decision. Samuels then appealed Correctional Facility, a special housing unit facility, where to the New York State Supreme Court, apparently by he was housed for 180 days. FN11 See Complaint, at 11;

means of an Article 78 proceeding. The court, Canfield J., Motion Brief, at 4; Plaintiffs' [sic] Memorandum of Law concluded that Samuels' appeal raised a substantial in Opposition to Defendants' Motion (“Opposition Brief”), evidence question that could not be resolved by “reference to the objections in point of law.” Decision and Order claim[s] which would entitle [him] to relief.” ’ Weixel v. dated October 13, 2000. The court then transferred the Board of Educ. of the City of New York, 287 F.3d 138, matter to the Appellate Division, Third Judicial 145 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. Department pursuant to N.Y. C.P.L.R. 7804(g). FN13 See id. 41, 45-46 (1957)). Moreover, when considering a motion

to dismiss a pro se complaint, “courts must construe [the complaint] broadly, and interpret [it] to raise the strongest

FN12. Prisoners' Legal Services of New York arguments that [it] suggest[s].” Weixel, 287 F.3d at 146 cite the date as January 20, 2000. See Ex. 7; (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000) Samuels cites the date as January 20, 1999. See (internal quotation marks omitted)). The Second Circuit Ex. 6. has also emphasized that a liberal reading of a pro se

complaint is especially important when the complaint alleges civil rights violations. See Weixel, 287 F.3d at 146;

FN13. No Appellate Division decision on the Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001). matter is in the record. However, defendants' Consequently, Samuels' allegations must be read so as to argument on the exhaustion of remedies focuses “raise the strongest arguments that they suggest.” Weixel, on administrative remedies and not on this 287 F.3d at 146 (quoting McPherson v. Coombe, 174 F.3d potential deficiency. 276, 280 (2d Cir.1999) (internal quotation marks

omitted)). Samuels then filed the instant action pursuant to 42 U.S.C. § 1983 based on defendants' alleged violations of his due B. Motions to Dismiss Pursuant to FED. R. CIV. P. process, First Amendment, and other constitutional rights, 12(b)(1) & (6) seeking equitable relief as well as compensatory and punitive damages. FN14 The defendants move to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(1) (lack of *6 Defendants move to dismiss the complaint pursuant to subject matter jurisdiction) and (6) (failure to state a claim FED. R. CIV. P.12(b)(1) and (6). The standard of review upon which relief can be granted). For the reasons set for dismissal on either basis is identical. See, e.g., Moore forth below, defendants' motion is granted in part and v. PaineWebber, Inc., 189 F .3d 165, 169 n. 3 (2d denied in part. Cir.1999); Jaghory v. New York State Dep't of Educ., 131

F.3d 326, 329 (2d Cir.1997). In either case, a court must assume as true factual allegations in the complaint and

FN14. In his complaint, Samuels also alleged an construe the complaint in the light most favorable to the Eighth Amendment violation stemming from his plaintiff. See, e.g., York v. Association of Bar of City of treatment during a trip to and from his brother's New York, 286 F .3d 122, 125 (2d Cir.2002); Shipping funeral. This claim was dismissed by order of Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Judge Mukasey dated September 4, 2001. Cir.1998). W hile the question of subject matter

jurisdiction goes to the power of the court to hear a case, the issue on a motion to dismiss is “not whether a plaintiff

III. Legal Standard will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” York, 286 F.3d at 125 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

A. Pro Se Complaints (1974)). The Second Circuit has repeatedly held that pro se IV. Legal Analysis complaints must be read more leniently than those prepared by lawyers. Recently, for example, the Second Circuit noted that a “ pro se complaint should not be A. Exhaustion of Administrative Remedies dismissed unless ‘it appears beyond doubt that the plaintiff[ ] can prove no set of facts in support of [his] 1. Legal Standards G overning Exhaustion of *7 As noted above, Samuels unsuccessfully appealed his Administrative Remedies case within the prison facility and later to defendant

Selsky in Albany, who denied it and denied reconsideration thereof.

Lawsuits by prisoners are governed by 42 U.S.C. § 1997e, which holds in part:

Defendants argue, however, that “if a claim is incidental to a disciplinary determination [...] the fact that the

No action shall be brought with respect to prison disciplinary charge itself has been appealed does not conditions under section 1983 of this title, or any other excuse the failure to file a grievance.” Reply Brief, at 9. Federal law, by a prisoner confined in any jail, prison, or Defendants thus seek to sever the alleged due process other correctional facility until such administrative violations (for which Samuels has exhausted all remedies as are available are exhausted. administrative remedies) from several closely related

claims-Samuels' claims protesting the confiscation of his papers, his transfer to the special housing unit, and DOCS

Under this section, where a prisoner brings an action in a policy regarding the Five Percent Nation of Gods and district court before exhausting all available administrative Earths (for which defendants argue Samuels has failed to remedies, the action must be dismissed. A unanimous exhaust all administrative remedies). See Reply Brief, at Supreme Court has recently interpreted the term “prison 9. conditions” expansively, requiring an exhaustion of all available administrative remedies whether the inmate suit concerns a general prison condition (i.e., quality of food) 2. Confiscation of Documents or a discrete incident specific to one prisoner (i.e., excessive force). See Porter v. Nussle, 122 S.Ct. 983 (2002). The Court also held that the exhaustion Defendants allege that the confiscation of the religious requirement applies regardless of whether the material is a matter separate from the underlying administrative remedies are “plain,” “speedy,” or disciplinary hearing. W hile Samuels directly appealed his “effective,” and also applies when the prisoner “seeks disciplinary adjudication, he concedes that he did not relief not available in grievance proceedings” such as bring any complaint to the inmate grievance program. See monetary damages. Id. at 988. Complaint, at 1. Defendants argue that Samuels' claim

alleging the confiscation of religious material must therefore be dismissed because he failed to exhaust

As a preliminary matter, defendants concede that Samuels administrative remedies. See Reply Brief, at 9-10. has exhausted all administrative remedies concerning his Defendants represent that confiscation of religious due process violations. See Defendants' Supplemental documents from a cell is a grievable matter. The Court Memorandum of Law and Reply Memorandum of Law in notes, however, that in similar cases inmates have been Further Support of Their Motion to Dismiss (“Reply told that such confiscations are not grievable. See, e.g., Brief”), at 9. Defendants' concession is apparently based Allah v. Annucci, 97 Civ. 607, 1999 U.S. Dist. LEXIS on DOCS Directive No. 4040, which holds that: 7171, at *2-*3 (W .D.N.Y. Mar. 25, 1999) (plaintiff filed

an inmate grievance protesting confiscation of religious material and was told such a seizure was not grievable).

[T]he individual decisions or dispositions of the following are not grievable: [...] Media Review, disciplinary proceedings, inmate property claims (of any amount) and As a preliminary matter, there is considerable confusion records review (Freedom of Information Requests, regarding exactly which documents were confiscated. expunction). However, the policies, rules, and procedures Samuels has sought these documents numerous times; of any of these programs or procedures may be the subject defendants have not made the documents available to him of a grievance. or to the Court. Initially, defendants stated that “Plaintiff

specifically alleges in his compliant that the defendants confiscated a pamphlet called ‘Awake’.” Motion Brief, at

8. Later, defendants state that it is “unclear from plaintiff's was, inter alia, his 180 days in keeplock (and complaint and response whether the pamphlet ‘Awake’ later a special housing unit). was confiscated from him or another.” Yet since defendants conducted the search and confiscation of the materials from Samuels' cell, they should know whether Disputes stemming from a disciplinary hearing are “Awake” was confiscated from Samuels' cell. Nonetheless, properly appealed directly and not through the Inmate they claim ignorance. Samuels himself makes his position Grievance Program. To the extent that the confiscation clear: “material taken from Plaintiff [sic] cell [...] was not issue is a constituent element of the misbehavior [...] Awake.” Complaint, at 2. In a later brief, he writes adjudication, Samuels need not file an administrative “Complainant NEVER POSSESSED a pamphlet entitled grievance because he already sought review of the matter “Awake.” Opposition Brief, at 3 (emphasis in original). on his direct appeal. The recent case of Flanagan v. Maly,

99 Civ. 12336(GEL), 2002 W L 122921 (S.D.N.Y. Jan. 29, 2002), is instructive. In Flanagan, the plaintiff brought

In any event, it is clear that certain religiously-oriented two separate claims-one stemming from inadequate access documents were confiscated from Samuels' cell. Samuels to medical and legal resources, and one stemming from an seeks, inter alia, punitive and compensatory damages he alleged due process violation in a disciplinary hearing. claims to have suffered through defendants' alleged The court found that the plaintiff had not exhausted all violation of his rights, including his First Amendment administrative remedies with regard to medical and legal rights. See Complaint, at 13. Defendants argue that access because he failed to utilize the Inmate Grievance Samuels “never appealed any grievance relating to the Program. W ith regard to the disciplinary hearing, confiscation of religious material” to the Inmate Grievance however, the court held that utilization of the grievance Program, citing an affidavit of Thomas G. Eagen (“Eagen procedures was unnecessary because the plaintiff had Aff.”), the Director of DOCS's Inmate Grievance Program, already appealed the issues directly: dated March 13, 2002. W hile this may be true, Samuels did protest the confiscation of documents in his direct appeal to Bliden and McKoy and later to Selsky. See Exs. To require [plaintiff] to file an administrative grievance in N, V, 9. These appeals were denied. these circumstances would be absurd, and Congress

cannot have intended such a requirement. W hen an inmate challenges the procedure at a disciplinary hearing that

*8 As noted, it is factually unclear whether seizures of resulted in punishment, he exhausts his administrative religious materials may be grieved through the Inmate remedies by presenting his objections in the administrative Grievance Program. However, even if such seizures are appeals process, not by filing a separate grievance instead grievable, Samuels' alleged failure to exhaust all of or in addition to his ordinary appeal. Pursuit of the administrative remedies as required by 42 U.S .C. § appellate process that the state provides fulfills all the 1997e(a) goes only to the narrow issue of the confiscation purposes of the exhaustion requirement of [ § 1997e(a) ] FN16 , by giving the state an opportunity to correct any qua confiscation-the damage Samuels suffered from the loss of his property (such as the property value of the errors and avoiding premature federal litigation. Once the books). The main confiscation issue put forward by alleged deprivation of rights has been approved at the Samuels is not the confiscation in and of itself, but the highest level of the state correctional department to which confiscation insofar as it was the basis for the misbehavior an appeal is authorized, resort to additional internal adjudication. FN15 This issue was already effectively grieved grievance mechanisms would be pointless. by Samuels through his direct appeal of his misbehavior determination, which per se implicated the confiscation of documents. Defendants argue nonetheless that any FN16. The district court mistakenly cites the provision as “ § 1997a(e),” a nonexistent section. confiscation that took place is separate from the disciplinary hearing and thus must be separately grieved. The Court does not agree.

Flanagan, 2002 W L 122921, at *2. W hile the issue referred to in Flanagan was a due process defect in the

FN15. The real damage suffered by Samuels disciplinary hearing (not at issue here because defendants concede that Samuels exhausted all available housing unit for 180 days. administrative remedies), the underlying point, that issues directly tied to the disciplinary hearing which have been directly appealed need not be appealed again collaterally 3. Special Housing Unit Confinement through the Inmate Grievance Program, is applicable to the confiscation issue. Moreover, the confiscation in the instant case is part and parcel of the misbehavior Defendants similarly argue that Samuels' claim of adjudication-unlike the medical claim made in Flanagan retaliatory confinement in a special housing unit is barred which was divorced from the due process claim. because he failed to exhaust all available administrative

remedies. FN18 It is not entirely clear whether Samuels is making an argument based on retaliation. On one hand, he

*9 Defendants rely on a single case in support of their states that “Plaintiff [sic] claim is not on issue of contention that the confiscation issue and the disciplinary retaliation.” Samuels Aff., at ¶ 4. Elsewhere, he argues hearing issue are wholly separate, Cherry v. Selsky, 99 that “Plaintiff should not need to fear imposition of Civ. 4636(HB), 2000 U.S. Dist. LEXIS 9451 (S.D.N.Y. [special housing unit] confinement because they [sic] have engaged in prison litigation and/or prison reform activity July 7, 2000). It is not completely clear which section of the opinion defendants are citing, because no pinpoint [...].” Opposition Brief, at 25. As noted above, after being citation is given. In Cherry, Judge Baer held that the filing sentenced, Samuels was apparently transferred to a special of a false misbehavior report by a corrections officer is a housing unit for 180 days, which involves confinement for twenty-three hours per day. grievable matter. See id. at *21. However, Cherry is readily distinguishable from the instant case because in Cherry, the plaintiff had “not brought a claim with respect to the due process afforded him at his disciplinary hearing FN18. There are two separate retaliation issues at play in this action. The first, discussed here, is [...].” Id. at *15. In contrast, Samuels makes this claim. As a consequence, the due process violations, including the Samuels' claim of retaliatory confinement in a allegedly wrongful confiscation (to the extent it led to the special housing unit. The second, discussed misbehavior adjudication) may be appealed directly. below, is Samuels' claim that the misbehavior

adjudication itself was a form of retaliation for the NYTS's opposition to the Cell Building

Consequently, while Samuels has not exhausted his Project. See supra note 5. administrative remedies with regard to the injuries he suffered from the confiscation alone, he has exhausted his administrative remedies with regard to the injuries he Defendants represent to the Court that confinement to a suffered from the confiscation inasmuch as the special housing unit is ordinarily grievable. See Reply confiscation of the religious materials serves as the basis Brief, at 11. Samuels failed to bring this grievance to the for the disciplinary hearing. FN17

Inmate Grievance Program. However, Samuels argues, and defendants do not contest, that Samuels was transferred to the special housing unit as punishment for

FN17. The confiscation of Samuels' documents his misbehavior adjudication, even though he was is not an ancillary issue unrelated to the sentenced to 180 days of keeplock. Consequently, his appeal of his misbehavior adjudication necessarily disciplinary hearing (as was Samuels' Eighth Amendment argument, see supra note 14). implicates his sentence-not only his de jure punishment of Instead, the allegedly improper confiscation of 180 days of keeplock, 180 days' loss of telephone, materials is part and parcel of the disciplinary package, and commissary privileges, but also his de facto punishment of 180 days of special housing unit proceeding. The primary harm suffered by Samuels of the confiscation was not the value of confinement. See Flanagan, 2002 W L 122921, at *2. The the documents seized (which is never mentioned transfer to a special housing unit potentially implicates due by Samuels) but the fact that the confiscation of process concerns. See, e.g., Tookes v. Artuz, 00 Civ. 4969, 2002 W L 1484391, at *3 (S.D.N.Y. July 11, 2002) (noting allegedly harmless materials led to his confinement in keeplock and later in a special that in the Second Circuit, confinement in a special

housing unit for more than 101 days generally implicates which he was deprived. See Motion Brief, at 9. a liberty interest protected by the Due Process Clause). Defendants state that “[other] then [sic] allege that he was

sentenced to keeplock and transferred to Upstate, plaintiff does not allege any facts that distinguishes [sic] the

4. DOCS Policy Regarding the Five Percent Nation of disciplinary sentence from general prison population conditions.” FN19 Id. at 9. Defendants cite Walker v. Goord, Gods & Earths 98 Civ. 5217(DC), 2000 U.S. Dist. LEXIS 3501, at *22 (S.D.N.Y. Mar. 22, 2000) for the proposition that a

*10 Samuels makes an oblique reference to the fact that complaint that merely alleges that a plaintiff was housed DOCS has treated members of the Five Percent Nation of in a special housing unit does not state a due process Gods and Earths unfairly and partially. See Opposition claim. See M otion Brief, at 10. In fact, Walker 's ruling is Brief, at 3. To the extent that Samuels has a claim not so sweeping. In Walker, the court held that to establish regarding DOCS's treatment of members of the Five a liberty interest, a prisoner “must establish that the Percent Nation, it is not directly tied to his disciplinary restraint imposed creates an ‘atypical and significant hearing and has not been grieved through the Inmate hardship on the inmate in relation to the ordinary incidents of prison life.” ’ Walker, at *21 (quoting Sandin v. Grievance Program. Moreover, he has not taken issue with DOCS policies regarding the Five Percent Nation in his Conner, 515 U.S. 472, 484 (1995)). The court also appeal. Consequently, this issue is dismissed with reiterated the Second Circuit's holding that there is no prejudice. “bright-line rule regarding the length or type of sanction”

necessary. Walker, at *21 (citation omitted). The prisoner must also establish that the state has granted its inmates a

5. Dismissal of Action protected liberty interest in remaining free from that confinement or restraint. Id. at *21. Defendants argue that because Samuels seeks to assert certain unexhausted claims, “the entire action should be FN19. As noted supra, Samuels was also dismissed,” irrespective of the fact that some claims are sentenced to 180 days' loss of packages, (as defendants concede) exhausted. Reply Brief, at 11. telephone, and commissary privileges. Defendants point to no binding precedent in support of this contention. The only New York case cited by defendants is Radcliffe v. McGinns, 00 Civ. 4966 (LMM), *11 Samuels is able to meet this burden. The deprivation 2001 U.S. Dist. LEXIS 15528 (S.D.N.Y. Sept. 27, 2001). of liberty Samuels suffered was onerous. He was moved However, Radcliffe does not support defendants assertion from the inmate honor block housing unit to keeplock and that dismissal of some unexhausted claims mandates the then to a special housing unit. See supra note 11. dismissal of all claims, because in that case the claims Moreover, unlike the plaintiff in Walker, Samuels were unexhausted as to all defendants. On that basis, the identifies the length of time he was punished (180 days). Radcliffe court dismissed all claims without prejudice. See Walker, at *22. In light of these facts, and given the This Court thus does not find that dismissal of the length of his confinement, Samuels has met the Sandin test exhausted claims is warranted. cited above. See Tookes v. Artuz, 00 Civ. 4969, 2002 WL

1484391, at *3 (S.D.N.Y. July 11, 2002). Additionally, the requirement of an appealable hearing, with certain

B. Due Process procedural safeguards, see infra, indicates that the state has granted inmates a protected liberty interest in remaining free from keeplock and special housing unit

1. Samuels Pleads a Valid Due Process Claim placement. Defendants argue that Samuels does not plead a valid due Due process requirements for a prison disciplinary hearing process claim, claiming that Samuels does not identify a are “in many respects less demanding than those for liberty interest, protected by the Due Process Clause, of criminal prosecutions.” Espinal v. Goord, 180 F.Supp.2d 532, 537 (S.D.N.Y.2002) (quoting Edwards v. Balisok, Samuels' grievance file. Defendants have failed to submit, 520 U.S. 641, 647 (1997)). At the same time, “[p]rison inter alia, a transcript of the disciplinary hearing, a walls do not form a barrier separating prison inmates from transcript or audio recording of the confidential witness the protections of the Constitution.” Duamutef v. Hollins, statements, a written basis for the rejection of Samuels' 297 F.3d 108, 112 (2d Cir.2002) (citation omitted). W ith witnesses, or a copy of the documents that were respect to Tier III hearings such as the one at issue here, supposedly seized from Samuels' cell. W hile the Court is the Fourteenth Amendment requires that: cognizant of the fact that the instant motion is not one for

summary judgment, without these and other documents, it is difficult for this Court fully to evaluate the merits of the

(1) the inmate receive at least twenty-four hours written parties' arguments. More troubling is the fact that this is notice of the disciplinary charges against him; apparently not the first time an inmate has been sentenced

to a special housing unit on the basis of evidence which has not been preserved for judicial review. Indeed, in

(2) the inmate be permitted to call witnesses and present Cherry v. Selsky, 99 Civ. 4636, 2000 U.S. Dist. LEXIS evidence “when permitting him to do so would not be 9451, at *9-*12 (S.D.N.Y. July 7, 2000), a case cited by unduly hazardous to institutional safety or correctional defendants, the court noted that on more than one goals”; occasion, Selsky was forced to reverse his previous

decision denying an inmate's appeal because the “record of [the disciplinary] hearing was incomplete and the

(3) the inmate be judged by a fair and impartial hearing ‘confidential tape’ was ‘unavailable for judicial review.” officer; ’ Id. at *9 (citation omitted). On the occasion cited by the

Cherry court, the inmate's record was expunged, but only after the plaintiff had served 125 days in a special housing

(4) the disciplinary conviction be supported by some unit. See id. at *9. evidence; and

a. W itnesses (5) the inmate be provided with a written statement of fact findings that support the disposition as well as the reasons for the disciplinary action taken. *12 Samuels argues that his due process rights were

violated because he was not permitted to call Dr. Peter-Raoul as a witness at his disciplinary hearing. See

Espinal, 180 F.Supp.2d at 538 (citing Wolff v. Complaint, at 9; Ex. V, at 2. Defendants state, without McDonnell, 418 U.S. 539, 563-69 (1974)) (internal explanation, that “it is clear that the proffered testimony citations omitted)). would have been irrelevant and redundant.” Motion Brief,

at 13. The Court agrees with defendants that the right of an inmate to call witnesses in his defense is not limitless.

2. W hether Samuels Received the Process Due Him Nevertheless, prison authorities' failure to allow an inmate to call a witness may be grounds for reversal, where the authorities fail to justify their actions. See Ayers v. Ryan,

Defendants concede that Samuels was entitled to the 152 F.3d 77, 81 (2d Cir.1998). In this case, Dr. aforementioned rights under Wolff. See Reply Brief, at 13. Peter-Raoul was apparently the author of some or all of They argue, however, that Samuels received all the the “subversive” materials and had close ties to the procedural safeguards due him. Before analyzing theological seminary program at the prison. According to defendants points in detail, the Court notes the paucity of Samuels, she also “assisted plaintiff with his course the record before it. W hile Samuels has provided nearly syllabus and provided much of the material utilized” fifty exhibits, defendants have provided only a two-page therein. Complaint, at 9. She was therefore in a unique affidavit by Inmate Grievance Program Director Thomas position to explain the appropriateness and relevance of G. Eagen dated March 13, 2002, attached to which is a the materials allegedly possessed by Samuels, who had in nine-line computer printout of what purports to be fact argued that the materials in question were issued to him through the NYTS program with the authorization of evidence. prison officials. See, e.g., Complaint, at 5, Ex. V, at 2. The misbehavior hearing record sheet states that, “if any witness is denied [the opportunity to testify,] form 2176 c. Assistance Provided by the Employee Assistant explaining the reason for that determination must be given to the inmate and included as part of the record.” Ex. O. No such form was filled out, and nowhere in the record do *13 Samuels claims that his employee assistant, Cecilia, defendants explain or justify their exclusion of Dr. violated his due process rights by, inter alia, failing to Peter-Raoul. See Ex. Q. Due process rights may be explain the charges against Samuels, failing to provide violated where prison authorities fail “without rational Samuels with documentary evidence relating to the explanation” to obtain a witness requested by an inmate charges in the misbehavior report, failing to make a during a disciplinary hearing. Ayers v. Ryan, 152 F.3d 77, written record of the questions he asked the interviewees, 81 (2d Cir.1998). Defendants' failure to justify their failing to record the testimony of the witnesses he exclusion of Dr. Peter-Raoul potentially gives rise to a due allegedly interviewed for Samuels, failing to interview the process violation. FN20 Dismissal is therefore inappropriate.

confidential informant on Samuels' behalf, and failing to interview one of the three witnesses requested by Samuels. See Complaint, at 9; Opposition Brief, at 22. Samuels also

FN20. Samuels also appears to allege that complains that his employee assistant did not assist in his Cecilia, his employee assistant, was not defense but instead interrogated him about his alleged permitted to testify on Samuels' behalf, and that links to prison reform activists. See Ex. V, at 5-6. Schwartzman testified outside Samuels' presence. See Ex. V, at 4; Plaintiffs' Supplemental Memorandum of Law and Reply Memorandum Defendants concede that inmates have a limited right to of Law in Further Support of Plaintiffs' Motion assistance in misbehavior proceedings. See Silva v. Casey, to Stay Complaint, at 8. 992 F .2d 20, 22 (2d Cir.1993) (per curiam). W hile

defendants are correct in asserting that inmates do not have the right to appointed or retained counsel at a

b. Confidential Informant misbehavior hearing, see Wolff v. McDonnell, 418 U.S. 539, 570 (1974), they do have a right to assistance in “certain circumstances [in which they] will be unable to

Samuels also protests the fact that he was not furnished ‘marshal evidence and present a defense’ [...].” Silva, 992 with statements of the confidential informant, and argues F.2d at 22. Such situations include where the inmate is that the record is insufficient to permit an assessment of confined pending a superintendent's hearing. See N.Y. the reliability of the informant's testimony. The Second Comp.Codes R. & Regs. tit. 7, § 251-4.1(a)(4). The Green Circuit has noted that “even if due process does require a Haven Notice of Assistance form given to Samuels hearing officer to conduct an independent assessment of specifically states that an “inmate shall have the the informant's credibility, that ‘would not entail more opportunity to pick an employee from established lists of than some examination of indicia relevant to credibility persons who shall assist the inmate when a M isbehavior rather than wholesale reliance upon a third party's Report has been issued against the inmate if [...] [t]he evaluation of that credibility.” ’ Espinal v. Goord, 180 inmate is keeplocked or confined to a special housing unit F.Supp.2d 532, 540 (S.D.N.Y.2002) (quoting Russell v. and is unable to prepare his defense.” Ex. J. In the instant Scully, 15 F.3d 219, 223 (2d Cir.1993)). In the instant case, Samuels was entitled to an employee assistant case, the lack of a full record does not permit the Court to because he was keeplocked immediately after the search determine whether Irurre, the presiding officer at the Tier of his cell and was unable to prepare his defense. III hearing, made the required “examination of indicia relevant to the credibility of the confidential informant[ ], whether by an independent assessment or otherwise.” As noted, Samuels makes broad assertions as to the Espinal, 180 F.Supp.2d at 540. Consequently, dismissal is deficiency of his employee assistant. See Ex. V, at 3-8. inappropriate, because it is uncertain whether Samuels' Based on Samuels' factual assertions, it is possible that punishment was supported by constitutionally sufficient employee assistant Cecilia failed to provide even the “limited” assistance to which Samuels is entitled. FN21 Such

The search took place on October 20, 1999, and the a failure potentially implicates Samuels' due process hearing occurred on October 27, 1999. Under § 251-5.1, rights. See Ayers v. Ryan, 152 F.3d 77, 80-81 (2d the date of the incident is generally excluded. See, e.g., Cir.1998). Because the instant motion requires that the Harris v. Goord, 702 N.Y.S.2d 676 (N.Y.App. Div.3d Court accept Samuels' allegations as true, dismissal is Dep't 2000) (holding that the fourteen-day period in § inappropriate. 251-5.1(b), which runs from the date of the writing of a

misbehavior report, is calculated by excluding the day the report is written). Thus, Samuels' hearing was held within

FN21. By statute, the “assistant's role is to speak seven days of his detention. Moreover, as Samuels admits, with the inmate charged, to explain the charges prison officials sought and received permission to begin to the inmate, interview witnesses and to report the hearing on October 27, 1999, as per the requirements the results of his efforts to the inmate. He may of § 251-5.1(a). See Ex. L. For these reasons, Samuels' assist the inmate in obtaining documentary claim with regard to the timeliness of his hearing is evidence or written statements which may be dismissed. necessary. The assistant may be required by the hearing officer to be present at the disciplinary or superintendent's hearing.” N.Y. Comp.Codes R. f. Notice & Regs. tit. 7, § 251-4.2. W hile failure to adhere to regulations does not itself give rise to a claim under 42 U.S.C. § 1983, it may constitute Defendants reject Samuels' argument that he received evidence of a constitutional deprivation. See, inadequate notice of the charges against him. It is unclear e.g., Duckett v. Ward, 458 F.Supp. 624, 627 from the record what notice Samuels received, either (S.D.N.Y.1978). before or during the disciplinary hearing. W hile the Court

is cognizant of the fact that inmates are entitled to fewer due process rights than other citizens, it is possible to read

d. Actions of the Hearing Officer Samuels' allegations as presenting a valid due process claim. The Court notes, for instance, that inmate rule 104.12 provides that “[i]nmates shall not lead, organize,

W ith respect to the hearing officer, Irurre, Samuels makes participate, or urge other inmates to participate in a variety of claims, including the fact that Irurre prohibited work-stoppages, sit-ins, lock-ins, or other actions which Samuels from calling various witnesses and that he was may be detrimental to the order of the facility.” N.Y. partial. The Court has not been furnished with a copy of Comp.Codes R. & Regs. tit. 7, § 270.2(B)(5)(iii). The the hearing transcript. Because Samuels' claims potentially Appellate Division has held that possession of threatening implicate constitutional rights, and because any holding on materials alone does not violate the rule because the this issue requires that the Court make factual inmate must actually lead, organize, participate, or urge determinations, dismissal is inappropriate. other inmates to participate, and not merely intend to do

so. See, e.g., Abdur-Raheem v. Goord, 665 N.Y.S.2d 152, 153 (N.Y.App. Div. 4th Dep't 1997). While Samuels may

e. Timeliness of the Hearing have possessed the documents, it is unclear whether he received any notice of how he allegedly led, organized, or participated in (or urged others to participate in) a

*14 Samuels claims that his due process rights were prohibited activity. Because the determination hinges on violated because his misbehavior hearing was held eight a factual determination, dismissal is inappropriate. days after Samuels was confined following the search of his cell. W here an inmate is confined pending a disciplinary hearing (as was the case here), the hearing C. Retaliation must be held within seven days of the confinement unless a later date is authorized by the commissioner or his Samuels alleges that his misbehavior adjudication was designee. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251-5.1(a). In this case, Samuels' rights were not violated. based on the prison authorities' perception that members of the NYTS were behind the planned Y2K protest. See to remedy the wrong, (3) the defendant created a policy or Complaint, at 3-6. Samuels alleges that the materials custom under which unconstitutional practices occurred, seized were not subversive and were of a Christian nature. or allowed the continuance of such a policy or custom, (4) Defendants move to dismiss the retaliation argument, the defendant was grossly negligent in supervising arguing that the prison authorities' decision is entitled to subordinates who committed the wrongful acts, or (5) the deference. W hile this may be true, such deference is defendant exhibited deliberate indifference to the rights of inappropriate on a motion to dismiss, particularly given inmates by failing to act on information indicating that the paucity of the record. W ithout, for example, a unconstitutional acts were occurring. transcript of the hearing, a transcript of the testimony of the confidential informant, or a copy of the allegedly subversive documents, the Court cannot blindly defer to Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). The the prison authorities. Consequently, dismissal is Court examines the alleged personal involvement of each inappropriate. Defendants also argue that “even if it was defendant in turn. improper to discipline plaintiff for possession of contraband, the evidence of plaintiff's involvement in the unauthorized dem onstra tio n p ro vid e d a valid 1. Donald Selsky non-retaliatory basis for the disciplinary sanction and transfer.” Reply Brief, at 19. This argument is incorrect for two reasons. First, the argument ignores the fact that Defendants concede Donald Selsky, Director, Special the contraband documents and testimony of the Housing/Inmate Disciplinary Program, was personally confidential informant provide the basis for the prison involved in the alleged due process violations cited by authorities' finding that Samuels was involved in the Samuels. The Court notes that Selsky, acting “on behalf of demonstration. None of these documents is in the record the commissioner,” reviewed and affirmed Samuels' before the Court; thus deference is inappropriate. Second, superintendent's hearing and denied Samuels' appeal. Ex. this argument ignores the fact that Samuels' punishment 6, V. was ultimately based on the fact that he had violated two rules. His prison file reflects a guilty adjudication on two counts; also, had Samuels been disciplined for violating 2. Glenn Goord only one rule, his penalty would likely have been less.

D efendants argue tha t G lenn G oord, D O C S D. Personal Involvement Commissioner, has no personal involvement in this case, and that the only link to him in this action is a newspaper article. See Reply Brief, at 20-21. This is incorrect,

*15 Defendants correctly note that liability of supervisory however, since the denial of Samuels' appeal was written officials under 42 U.S.C. § 1983 may not be premised on by Selsky on behalf of Goord. As noted, defendants the doctrine of respondeat superior. See, e.g., Poe v. concede Selsky's involvement. Goord had a duty to Leonard, 282 F.3d 123, 140 (2d Cir.2002); Emblen v. supervise his subordinate who purportedly acted in his name. FN22 W ithout further evidence, the Court cannot say Port Auth. of New York/New Jersey, 00 Civ. 8877(AGS), 2002 W L 498634, at *10 (S.D.N.Y., Mar. 29, 2002). as a matter of law that Goord was not personally involved, since personal involvement can include gross negligence Consequently, a defendant's personal involvement in the alleged constitutional violation is required. See, e.g., “in supervising subordinates who committed the wrongful Monell v. New York City Dep't of Soc. Servs., 436 U.S. acts.” Colon, 58 F.3d at 873. 658, 690-95 (1978). Such personal involvement may be proven in a number of ways:

FN22. W hereas the doctrine of respondeat superior involves the legal assignment of liability

(1) the defendant participated directly in the alleged to a supervisor for the acts of a subordinate, the instant case involves a subordinate who claims to constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed be (and legally is) acting in the name of his

supervisor. misbehavior adjudication. Consequently McKoy was not personally involved in the matter and all claims against him are dismissed.

3. Paul Cecilia 8. Christopher P. Artuz Defendants concede Paul Cecilia's personal involvement. Christopher P. Artuz is Green Haven's Superintendent. 4. Javier Irurre Samuels states that his involvement stems from his failure to respond to a note sent to him. Although the note to Artuz does not appear to be in the record before the Court,

Defendants concede Javier Irurre's personal involvement. it is referenced in a note from Bliden to Samuels. See Ex. T (“This is in response to your memo of November 12, 1999 to Superintendent Artuz”). Samuels also alleges that

5. Sergeant Schwartzman Artuz failed to respond when contacted by Dr. Peter-Raoul and Dr. W ebber, who sought to intervene on Samuels' behalf. See Opposition Brief, at 27. W hile it is not clear

Defendants concede Sergeant Schwartzman's personal that Artuz was personally involved, the question of Artuz's involvement. involvement in this matter is a factual question. In such

cases, dismissal should be denied. As the Second Circuit noted in Williams v. Smith, 781 F.2d 319, 324 (2d

6. Dennis Bliden Cir.1986), “even if [the prison superintendent] did not actively affirm the conviction on administrative appeal, we cannot say, on this record, that as Superintendent [of the

Defendants allege that Samuels never argues that Bliden prison] he was not directly responsible for the conduct of had the ability to remedy the alleged constitutional prison disciplinary hearings [...].” violation. However, Bliden wrote to Samuels in response to his appeal of the misbehavior adjudication, stating, “You may appeal this hearing to the Commissioner in E. Qualified Immunity Albany. Until such time as we receive a decision from this office, I will not modify the disposition. ” Ex. U (emphasis added). Significantly, Bliden did not state that he could Defendants move to dismiss this action based on the not modify the disposition but stated that he would not. qualified immunity of defendants. As defendants correctly This provides at least prima facie evidence that Bliden had point out, government employees are generally immune the authority to overturn the disposition. W hile further from liability for civil damages “when their conduct does facts may reveal this to be untrue, at this stage dismissal is not violate ‘clearly established statutory or constitutional inappropriate. rights of which a reasonable person would have known.”

’ Duamutef v. Hollins, 297 F.3d 108, 111 (2d Cir.2002) (citation omitted). As a preliminary matter, it should be

7. Jeffery McKoy noted that qualified immunity is only a defense to claims for money damages and are not a defense for equitable relief or injunctions. See, e.g., Charles W. v. Maul, 214

*16 Samuels fails to provide any support for McKoy's F.3d 350, 360 (2d Cir.2000). To the extent that Samuels seeks equitable relief, defendants' potential claims of personal involvement in this action. Indeed, in responding to one of Samuels' appeals, McKoy wrote that “I do not qualified immunity are no bar. have the authority to overturn Tier 3 dispositions.” Ex. R. McKoy does not appear to have been complicit in any The Court is unable to determine at this time whether the alleged deprivation of Samuels' rights, and, in contrast to Bliden, he plainly lacked the authority to overturn the remaining defendants are entitled to qualified immunity in this case. The reason is that without having basic documentary evidence, including a transcript of the disciplinary hearing, a transcript of the testimony of the confidential informant, and the documents allegedly seized from Samuels' cell, the Court cannot determine whether these defendants violated Samuels' clearly established constitutional or statutory rights. Because it is a fact-intensive question, it cannot be disposed of at this stage. V. Conclusion *17 For the reasons set forth above, defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) is DENIED with respect to defendants Selsky, Goord, Cecilia, Irurre, Schwartzman, Bliden, and Artuz. Defendants' motion is GRANTED with respect to Jeffery McKoy, and with respect to the issue of DOCS policy regarding the Five Percent Nation of Gods and Earths and with regard to the timeliness of Samuels' misbehavior hearing. SO ORDERED. S.D.N.Y.,2002. Samuels v. Selsky Not Reported in F.Supp.2d, 2002 W L 31040370 (S.D.N.Y.) END OF DOCUMENT

Case Details

Case Name: Zulu v. Barnhart

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

Date Published: Aug 22, 2018

Docket Number: 9:16-cv-01408

Court Abbreviation: N.D.N.Y.