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October 15, 1996


The opinion of the court was delivered by: POOLER


 Presently before me are plaintiff Theodore Justice's objections to a report-recommendation from Magistrate Judge Daniel Scanlon, Jr. The magistrate judge recommends that I deny plaintiff's motion for summary judgment and grant defendants' cross-motion for summary judgment. I approve the report-recommendation in large part, but because I find Justice's due process claim presents issues of fact, I deny summary judgment to both parties on that claim.


 Justice, a former inmate in the New York State correctional system, filed this Section 1983 civil rights action on September 30, 1994. Construing his complaint liberally, Justice makes claims of (1) denial of access to the courts and/or prison grievance system, (2) retaliation for filing grievances and complaints, (3) denial of procedural due process in conducting a disciplinary hearing, (4) violation of the Eighth Amendment, and (5) conspiracy. Dkt. No. 2., Compl. PP 25, 27-28, 35. On June 23, 1995, Justice moved for summary judgment granting him all the relief he had requested in his complaint. Dkt. No. 34. Defendants cross-moved for summary judgment dismissing Justice's complaint. Dkt. No. 45.

 The magistrate judge issued a report-recommendation addressing both motions on June 26, 1996. Dkt. No. 49, Report-Recommendation. In the report-recommendation, Magistrate Judge Scanlon found that (1) defendants had not interfered with Justice's right of access to the courts or to the prison grievance system; (2) Justice's claim of retaliation lacked merit because insofar as defendants took action against Justice, they had a legitimate independent basis for their action; (3) plaintiff's due process claim failed because he had not alleged a sufficient liberty interest pursuant to Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995); (4) Justice did not offer any competent evidence that the defendants had been deliberately indifferent to a serious medical need or that they had otherwise subjected him to cruel and unusual punishment in violation of the Eighth Amendment; and (5) because Justice neither alleged nor proved a class based animus, his conspiracy claims failed. Id. The magistrate judge recommended dismissal of Justice's complaint in its entirety. Id. at 14.

 Justice has filed timely objections. Dkt. No. 50, Objections. He objects to the magistrate judge's delay in ruling on his motion, arguing that intervening case law -- probably Sandin, 132 L. Ed. 2d 418, 115 S. Ct. 2293, and its progeny -- has prejudiced his case. Id. at 7. Because I find that Sandin does not bar Justice's due process claim, this objection is moot. However, Justice also contends that he provided substantial evidence to support his claims and particularly his medical claim. Id. Finally, Justice requests the assignment of counsel to protect his rights. Id.


 I. Standard

 Justice objects to the magistrate judge's recommendation that I dismiss his complaint. I therefore review this recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Justice does not explicitly object to the recommendation that his motion for summary judgment be denied. Therefore, de novo review is not necessary. However, for reasons I discuss below, I would deny Justice's motion even utilizing a de novo standard.

 Summary judgment shall enter if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The materiality of facts must be determined with reference to the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial responsibility of demonstrating that there is no genuine issue of material fact to be decided. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). As to any issue on which the moving party does not have the burden of proof, the moving party may satisfy its burden by "pointing out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 Once the moving party satisfies this initial burden, "the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). In satisfying this burden, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Fed. R. Civ. P. 56(e). However, the opponent of summary judgment may include sworn allegations in the complaint as part of its opposition. Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988).

 The defendants did not support their motion with affidavits from persons with personal knowledge although they do submit certain unauthenticated institutional records. Dkt. No. 45, Harris Aff'n PP 6-7, Exs. B-C. Because of the dearth of competent evidence offered in support of the defendants' motion, I view the motion largely as an attack on the sufficiency of Justice's proof and so analyze it. Justice's complaint is not verified, but he has submitted two declarations made under penalty of perjury. See Dkt. No. 37, Declaration in Support of Motion for Summary Judgment or in the Alternative Particial (sic) Summary Judgment ("Justice Decl."), and Dkt. No 48, Declaration in Opposition to Defendant's Motion for Summary Judgment ("2d Justice Decl."). I examine those two declarations as well as those of plaintiff's exhibits authenticated by the declarations in determining whether Justice has demonstrated competent evidentiary support for those claims on which he bears the burden of proof.

 II. Access to the Prison Grievance System and to the Courts

 Justice claims that certain of the defendants interfered with his right to complain about his treatment either through the prison grievance system or to the courts.

 The magistrate judge found that Justice did not offer any competent proof that he had been denied access to the grievance system but rather made certain complaints about the slowness of the system and its mechanics. Report-Recommendation at 9. As noted by the magistrate judge, mere violations of an inmate grievance system do not violate the Constitution. Muhammad v. McMickens, 1988 U.S. Dist. LEXIS 552, 1988 WL 7789 at * 3 (S.D.N.Y. 1988). The magistrate judge also found that Justice's claim that defendant Lamora refused to notarize a state court petition for Justice lacked merit because Justice's own exhibits demonstrated that the state court excused the missing notarization and dismissed the petition because Justice had failed to exhaust administrative remedies. Report-Recommendation at 10; see also Dkt. No. 48, Ex. A. In order to have standing to assert a violation of his right of access to the courts, an inmate must demonstrate that he was actually injured. Lewis v. Casey, 135 L. Ed. 2d 606, 116 S. Ct. 2174, 2180 (1996). Because plaintiff cannot make this critical showing, the magistrate judge correctly recommended that I dismiss Justice's claim that the actions of defendant Lamora violated his right of access to the courts.

 III. Retaliation

 Justice has also complained that after he filed grievances against defendant Mark Vann, the latter retaliated by falsely charging that Justice had threatened to kill him. Compl. § IV, PP 15-16, 25. To state a retaliation claim under Section 1983, Justice bears the burden of showing that (1) he engaged in constitutionally protected conduct and (2) his constitutionally protected conduct "was a substantial or motivating factor" in the prison officials' decision to discipline him. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Because retaliation claims can be fabricated easily, plaintiffs bear a somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Flaherty v. Coughlin, 713 F.2d 10 13 (2d Cir. 1983). If Justice meets this heightened burden, the defendants may still prevail by showing by a preponderance of the evidence that they would have taken the same action based on proper reasons. Graham, 89 F.3d at 79.

 Justice has satisfied the first prong of his burden by pointing to specific grievances and complaints he filed against Vann on November 30, 1993, and January 9, 1994. Justice Decl. PP 4, 9, 11. Prison grievances are constitutionally protected conduct. Graham, 89 F.3d at 80. I therefore examine whether Justice has shown circumstances from which a reasonable fact finder could infer that retaliation was a substantial motivating factor in Vann's decision to process the grievance. Circumstances lending substance to a charge of retaliatory motive include alleged falseness of the disciplinary charges and the singling out of the plaintiff for discipline although other inmates purportedly engaged in the misconduct. Id. at 81. Prior threats of retaliation as well as the fact that a misconduct charge is made shortly after a prisoner files a grievance also tend to show retaliatory motive. Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir. 1995).

 Vann filed the misconduct report against Justice on January 18, 1994, some nine days after Justice's second grievance. See Dkt No. 45, Ex. A. However, despite being warned by defendants' Notice of Cross-Motion that he could not rely on the allegations of his complaint but rather must respond with affidavits or other specific proof, see id Notice of Cross Motion at 2, Justice does not allege in competent form that Vann threatened him with retaliation prior to filing the disciplinary report or that the disciplinary report was false. Given the heightened burden of proof for retaliation claims, I find that Justice has not set forth facts from which a rational fact finder could find that retaliation played a substantial role in Vann's decision to file the disciplinary report. The temporal proximity of the grievances and the disciplinary report standing by itself does not suffice to meet Justice's burden. *fn1" Cf. Colon, 58 F.3d at 873 (indicating that if circumstantial evidence of (1) temporal proximity of protected action and allegedly retaliatory action and (2) plaintiff's prior good conduct were only evidence supporting retaliation claim, court would be inclined to affirm dismissal but that court would reverse based on added direct evidence of threats of retaliation). I reach this conclusion with some reluctance because Justice does allege threats of retaliation in his unsworn complaint. However, Justice himself chose which of his allegations he wished to place in competent evidentiary form.

 IV. Due Process

 I next address Justice's due process claim. On January 18, 1994, defendant Vann charged Justice with threatening to kill him. Dkt. No. 45, Ex. A. Hearing Officer Peter C. Hayden found Justice guilty after a Tier III hearing and imposed a punishment of (1) 180 days in the Special Housing Unit ("SHU"), (2) 180 days loss of packages, commissary, and phone privileges, and (3) six months loss of good time. Dkt. No. 45, Ex. A at 2-3. On March 18, 1994, defendant Selsky modified Justice's sentence to 120 days SHU, 120 days loss of privileges, and 180 days loss of good time. Compl. PP 4, 16; Dkt. No. 45, Ex. A at 3. On May 5, 1994, Selsky reversed Justice's sentence in its entirety. Dkt. No. 45, Ex. A at 10. Selsky reversed based on his findings that an assistant failed to make contact with a potential witness prior to the hearing and the hearing officer did not allow the inmate to introduce documentary evidence. Id. Justice alleges that he was denied due process because he was not afforded adequate assistance and the hearing officer refused to call witnesses and accept documentary evidence without giving adequate reasons. Compl. P 16. Apparently, the documentary evidence disallowed by the hearing officer consisted of Justice's prior complaints against Vann, which Justice attempted to introduce to show that Vann had a motivation to fabricate a misconduct report. Dkt. No.35, Ex. 129.

 Magistrate Judge Scanlon found that plaintiff failed to demonstrate that he had a liberty interest in remaining free from confinement in the SHU that could trigger due process concerns. In so finding, the magistrate judge principally relied on the Supreme Court's 1995 Sandin decision, 132 L. Ed. 2d 418, 115 S. Ct. 2293. Sandin significantly altered the conceptual framework to be employed when a prisoner claims that he or she has been deprived of liberty without due process. See id. However, the Sandin decision does not completely clarify the parameters of prison/due process analysis. See id. Therefore, in assessing de novo the adequacy of Justice's showing, I consider (1) the Sandin decision and earlier Supreme Court precedent that Sandin either expressly reaffirmed or expressly disavowed, (2) the New York regulatory framework ...

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