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HATTLEY v. GOORD

United States District Court, Southern District of New York


March 27, 2003

MATTHEW HATTLEY, PLAINTIFF,
v.
GLENN S. GOORD, COMMISSIONER, DONALD SELSKY, DIRECTOR, SPECIAL HOUSING, CHRISTOPHER ARTUZ, SUPERINTENDENT, GEORGE SCHNEIDER, DEPUTY SUPERINTENDENT OF SECURITY, GAYLE HAPONIK, DEPUTY SUPERINTENDENT OF ADMINISTRATION, LT. QUACKENBUSH, REVIEW OFFICER, SERGEANT S. ULLRICH, JAMES LAGOY, SUPERVISOR INMATE GRIEVANCE PROGRAM AND CORRECTION OFFICER WILLIAM KELLEY, JOINTLY, SEVERALLY AND INDIVIDUALLY, RESPECTIVELY, DEFENDANTS.

The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the HONORABLE WILLIAM H. PAULEY III, United States District Judge

I. INTRODUCTION

On March 26, 2002, pro se plaintiff Matthew Hattley ("Hattley"), filed a complaint against Glenn S. Goord ("Goord"), Donald Selsky ("Selsky"), Christopher Artuz ("Artuz"), George Schneider ("Schneider"), Gayle Haponik ("Haponik"), Lt. T. Quackenbush ("Quackenbush"), Sergeant S. Ullrich ("Ullrich"), James Lagoy ("Lagoy"), and William Kelley ("Kelley"), (collectively "defendants"), for various violations of his Fifth, Eighth, and Fourteenth Amendment rights, as well as violations of 42 U.S.C. § 1983. On August 20, 2002, defendants filed a motion to dismiss for failure to exhaust administrative remedies, failure to state a claim, lack of subject matter jurisdiction, failure to allege personal involvement, and qualified immunity grounds. For the reasons set forth below, I recommend that defendants' motion to dismiss be GRANTED as to the due process claims against Goord, Artuz, Selsky and Schneider, as to any claims against Ullrich, Quackenbush and Kelly individually, as to Hattley's Eighth Amendment claims, and as to any conspiracy claims, and DENIED as to the defendants's motion to dismiss the complaint as a whole pursuant to 42 U.S.C. § 1997e(a), defendants' motion to dismiss Hattley's due process claims regarding his SHU confinement, defendants' motion to dismiss Hattley's due process claims regarding his inability to call a witness, and defendants' motion to dismiss the due process claims against Haponik individually.

II. BACKGROUND

Hattley was incarcerated at Green Haven Correctional Facility on December 27, 1999. See Amended Complaint at ¶ 1. During the course of the day, an administrative shut-down was ordered, and all prisoners were confined to their cells. Id. At some point that afternoon, Artuz ordered Ullrich and Lagoy to open the Inmate Grievance Program, and to find any prisoners who wanted to work. Id. at ¶ 2. Ullrich approached Hattley and asked if he was going to work, and Hattley gave a negative answer. Id. at ¶ 3. Ullrich then ordered Kelley to place Hattley in mechanical restraints and remove him to another cell for disciplinary confinement. Id. at ¶ 4. Ullrich filed a disciplinary report, accusing Hattley of violating Rule 104.12 (work stoppage) and Rule 106.10 (failure to obey a direct order). Id.

Artuz and deputy superintendent of security Schneider designated Quackenbush as review officer. Id. at ¶ 5(A). Quackenbush determined that Hattley's misbehavior report would be adjudicated as a Tier III disciplinary hearing. Id. at ¶ 5(B). Artuz and Schneider designated Haponik as the Hearing Officer for the Tier III hearing. Id. at ¶ 5(D). On January 3, 2000, Artuz and Schneider sought and were granted an extension of time for the hearing. Id. at ¶ 5(E). The hearing was held January 4-7, 2000. Id. at ¶ 5(F). Hattley asked to call Artuz, whom he hoped would testify that he'd given an order to only look for volunteers. Id. at ¶ 15. Haponik denied the request, noting that Artuz was not present at the time of the alleged incident. See Defendant's Memorandum of Law In Support of Their Motion to Dismiss the Complaint ("Def. Mem.") at Exh. A. Haponik found Hattley guilty as charged and ordered Hattley to be locked in the Special Housing Unit ("SHU") for 180 days, twelve days of pre-trial confinement, and 180 days loss of commissary, packages and phone calls. See Amended Complaint at ¶ 5(I).

On January 7, 2000, Hattley filed an administrative appeal based upon the guilty determination. Id. at ¶ 6. On February 18, 2000, Goord and Selsky modified Hattley's punishment to 120 days in SHU, 120 days of loss of commissary, packages and phone calls, and twelve days pre-trial confinement. Id. On April 22, 2000, Hattley filed an Article 78 petition with the Supreme Court of New York, Franklin County. Id. at ¶ 7. The petition was dismissed by the court on December 15, 2000. Id. Hattley served 132 days in SHU before he was released. See Def. Mem. at 4. Hattley concedes that he did not use the prison grievance procedures which were available to him to complain about prison conditions. See Amended Complaint, Sec. II (B).

III. DISCUSSION

A. Standard for dismissal under Rule 12(b)

In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. See Shipping Financial Services Corporation v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In doing so, the court may consider extra-pleading material, given that the validity of a 12(b)(1) motion "rarely is apparent on the face of the pleading and motions raising [it]." Wright & Miller, 5A Fed. Prac. & Proc. Civ.2d § 1364; see also, Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998) (quoting Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992)). This is especially so where, as here, a plaintiff is pro se. Accordingly, this Court considers the entirety of Hattley's submissions in deciding the existence of subject matter jurisdiction in this case.

A Rule 12(b)(1) motion may be appropriate when a plaintiffs federal claim is not even minimally plausible. See Town of West Hartford v. Operation Rescue, 915 F.2d 92-99 (2d Cir. 1990); see also AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148, 152-53 (2d Cir. 1984) ("[W]hen the contested basis of federal jurisdiction is also an element of plaintiffs asserted federal claim, the claim should not be dismissed for want of jurisdiction except when it appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.") (internal quotation marks omitted).

In most cases, the court will consider a 12(b)(1) motion before ruling on any other motions to dismiss, since dismissal of an action for lack of subject matter jurisdiction will render all other accompanying defenses and motions moot. See United States ex rel Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), cert. denied sub nom. Kreindler & Kreindler v. United Technologies Corp., 508 U.S. 973 (1993); see also Rhulen Agency. Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Thus, a court confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) should decide the jurisdictional question first because "a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 158 (E.D.N.Y. 1998); see also, Rhulen, 896 F.2d at 678. A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only if it appears beyond doubt that "`no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Hishon, 467 U.S. at 73. The Court does not, however, have to accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994), cert. denied, 513 U.S. 1079 (1995) (citing 2A Moore & Lucas, Moore's Federal Practice ¶ 12.08, at 2266-69 (2d ed. 1984)). The review is limited, and "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims[.]" Villager Pond. Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996).

Pleadings prepared by pro se plaintiffs are held to less stringent standards than those prepared by lawyers. See Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). Thus, some courts have considered factual allegations in opposition papers by pro se plaintiffs. See, e.g., Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering allegations in pro se plaintiffs affidavit submitted in opposition to motion to dismiss); Riordan v. Am. Fed'n of Gov't Employee, AFL-CIO, 2001 WL 1352464, at *3 n. 5 (S.D.N.Y. Nov. 1, 2001) (considering factual allegations in affidavit that were consistent with allegations in the amended complaint); Burgess v. Goord, 1999 WL 33458, at * 1 n. 1 (S.D.N.Y. Jan. 26, 1999) (citing Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.")).

Pro se plaintiffs are not, however, completely relieved of pleading requirements. In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[1][b] (3d ed. 1997)); see also Alfaro Motors. Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (stating that civil rights complaints "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983").

B. Hattley's Claims Against the Defendants Collectively

1. Administrative Exhaustion Under the Prisoner Litigation Reform Act ("PLRA")

a. Subject Matter Jurisdiction and Defendant's 12(b)(1) Motion

Under the PLRA, "[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). Hattley has conceded he has not exhausted his Eighth Amendment claims with respect to conditions in the SHU. Although the defendants have not made it clear whether they believe their exhaustion arguments deprive this Court of jurisdiction, it should be noted that every court that has confronted this issue has held otherwise. See, e.g., Arnold v. Goetz, 2003 WL 256777 *2 (S.D.N.Y. 2003); Graham v. Perez, 121 F. Supp.2d 317, 322 (S.D.N.Y. 2000); Johnson v. True, 125 F. Supp.2d 186, 187-88 (W.D. Va 2000); Thorp v. Kepoo, 100 F. Supp.2d 1258, 1262 (D. Haw. 2000); Cooper v. Garcia, 55 F. Supp.2d 1090, 1093-94 (S.D. Cal. 1999). Indeed, § 1997e(a) "addresses a party's right to bring a suit in court and does not speak in terms of jurisdiction or the power of the court; it is merely an exhaustion requirement." Wright v. Morris, 111 F.3d 414, 421 (6th Cir. 1997). Furthermore, "the fact that there are claims within the complaint that may not have been exhausted does not deprive this court of subject matter jurisdiction to rule on such claims." Johnson, 125 F. Supp.2d at 188. As noted by other courts, "when a defendant raises a prisoner's failure to comply with the PLRA's exhaustion requirement, the failure is properly assessed as an affirmative defense." Arnold, 2003 WL 256777 at *2 (citing Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, 2000 WL 274184 *3 (S.D.N.Y. 2000)). Therefore, to the extent the defendants seek to have Hattley's complaint dismissed pursuant to 12(b)(1), their motion should be denied.

b. Dismissal under § 1997e(a)

The defendants argue that pursuant to Porter v. Nussle, 534 U.S. 516 (2002), this Court should dismiss Hattley's entire complaint because it contains both exhausted and unexhausted claims. See Def. Mem. at 6, 8. In Porter, the Supreme Court ruled that suits against prison guards for excessive force fall within the meaning of § 1997e(a)'s "prison conditions" language, and thus, all prisoner suits had to have their claims exhausted before proceeding to trial. See 534 U.S. at 532. However, while the Court ruled that all claims had to be exhausted, it did not address how to handle "mixed complaints."

The Second Circuit also has not ruled on how courts should treat mixed complaints. While some courts within this district have ruled on the question, none have fully developed the reasoning behind their rulings. Compare Samuels v. Selsky, 2002 WL 31040370 * 10 (S.D.N.Y. 2002) (Schwartz, J.) (noting that there is no binding precedent in this circuit for total exhaustion); Dixon v. Goord, 224 F. Supp.2d 739, 751 (S.D.N.Y. 2002) (Marrero, J.) (dismissing only unexhausted claims); Espinal v. Coughlin, 2002 WL 10450 * 1 (S.D.N.Y. 2002) (Patterson, J.) (same); with Saunders v. Goord, 2002 WL 1751341 *3 (S.D.N.Y. 2002) (Koeltl, J.) (finding "plain language" of statute mandates total exhaustion); Radcliffe v. McGinnis, 2001 WL 1142187 (S.D.N.Y. 2001) (McKenna, J.) (dismissing entire mixed complaint).

Only the Eighth Circuit has directly confronted the issue. In Graves v. Norris, 218 F.3d 884,885 (8th Cir. 2000) (per curiam), the court ruled that the "plain language" of Section 1997e(a) necessitates dismissal of a mixed complaint. The issue has been raised collaterally in the Sixth Circuit, with inconsistent results. See, e.g., Riley v. Richards, 2000 WL 332013 *2 (6th Cir. 2000) ("If a complaint contains exhausted and unexhausted claims, the district court may address the merits of the exhausted clams and dismiss only those that are unexhausted."); but see Keenan v. Twommey, 2000 WL 1175621 *1 (6th Cir. 2000) (upholding dismissal of mixed complaint because the plaintiff "did not carry his burden of demonstrating that he exhausted available administrative remedies regarding his claim."). District courts in various other circuits have split on how to handle mixed complaints.

c. The Case for Complete Exhaustion

Of the district courts which have ruled that § 1997e(a) requires "total exhaustion," three courts provide perhaps the strongest arguments for such an interpretation. See Smeltzer v. Hook, 2002 WL 31094815 (W.D. Mich. 2002); Rivera v. Whitman, 161 F. Supp.2d 337 (D.N.J. 2001); Thorp, 100 F. Supp.2d 1258 (D. Haw. 2000). In Rivera, the court initially analyzed Section 1997e(a) by examining the plain meaning of the statute. See Rivera, 161 F. Supp.2d at 340. The court noted that "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Id. Further, in determining statutory construction, "words will be interpreted as taking their ordinary, contemporary, common meaning." Id. The court observed that "Congress defined the term "action with regard to prison conditions' in another provision of the PLRA as "any civil proceeding. with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. . . ." Id. at 340-41 (citing 18 U.S.C. § 3636 (g)(2)). Rivera and Smeltzer note that the words "action" and "claim" are not interchangeable, as can be seen in the same section. In particular, the courts found that "[s]ection 1997e(c)(1) provides that the district court shall dismiss any "action" which is frivolous, malicious or fails to state a claim. However, § 1997e(c)(2) provides that the district court may dismiss a "claim' which is frivolous, malicious or fails to state a claim without first requiring exhaustion of administrative remedies." Smeltzer, 2002 WL 31094815 at *6; Rivera, 161 F. Supp.2d at 341.

All three courts noted that Section 1997e(a) was amended to its present form "largely in response to concerns about the heavy volume of frivolous prison litigation in the federal courts." Rivera, 161 F. Supp.2d at 341; Smeltzer, 2002 WL 31094815 at *7; Thorp, 100 F. Supp.2d at 1263. The court in Rivera opined, "by requiring that all claims be exhausted before the federal court considers them, § 1997e(a) ensures that prisoner actions are more focused and that some frivolous claims are screened out." Id. at 342. Further, "[i]f only the unexhausted claims were dismissed from a mixed complaint, there would be nothing to deter prisoners from raising unexhausted claims indiscriminately. Morever, the assessment of a second filing fee after the prisoner has properly exhausted all of his claims also serves as a deterrent against filing unexhausted or frivolous claims." Smeltzer, 2002 WL 31094815 at *7 In Thorp, the court observed that "Congress most certainly did not intend the inefficient result of permitting actions to proceed in part while other claims remained to be tried only after they had been exhausted. Had Congress intended to permit the piecemeal adjudication of claims relating to prison conditions, the statute would have precluded the bringing of unexhausted claims rather than actions." 100 F. Supp.2d at 1263.

Finally, in comparing the mixed complaints with mixed petitions for writ of habeas corpus, two of the courts also looked to promoting comity. "Not only do § 1983 actions implicate many of the same comity interests as habeas petitions but § 1997e(a) also irons out the jurisdictional wrinkle that would result from requiring full exhaustion in habeas corpus cases involving life and liberty but not in § 1983 cases." Rivera, 161 F. Supp.2d at 343; Smeltzer, 2002 WL 31094815 at *8. Furthermore, "under the principles of comity, prison officials should have a full opportunity to address claims raised by prisoners before they are brought to federal court. By requiring total exhaustion, the federal courts will not only promote comity, but reap the benefits of "more focused complaints and more developed evidentiary records." Smeltzer, 2002 WL 31094815 at *8.

d. The Case for Dismissing Only Unexhausted Claims

Of the courts which have not required total exhaustion, this Court notes three which fairly represent the relevant arguments. See Johnson, 125 F. Supp.2d 186 (W.D. Va. 2000); Jenkins v. Toombs, 32 F. Supp.2d 955 (W.D. Mich. 1999); Cooper, 55 F. Supp.2d 1090 (S.D. Cal. 1999). The court in Jenkins noted that the language "`no action shall be brought' does not compel adoption of [either dismissing the complaint altogether or limiting the complaint to exhausted claims]." 32 F. Supp.2d at 957. The court examined the language of other sections of the statute, in particular, 42 U.S.C. § 1997e(c)(1), which demands that courts dismiss "any action . . . [that] is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." The court noted that:

[a]dopting the total exhaustion requirement and giving a consistent meaning to the term "action" in both sections, the court would be required to dismiss a prisoner's entire complaint if any of the claims therein were found to be frivolous or insufficient to justify relief. Congress does not appear to have intended this result, since it specifically provides for dismissal of unexhausted individual claims for frivolousness, failure to state a claim or failure to seek relief other than monetary damages [in 42 U.S.C. § 1997e(c)(2)].
Id. at 958. The court also observed that "courts have applied 42 U.S.C. § 1997e(c)(1) to dismiss specific claims, rather than entire complaints." Id. (citing McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997); Dean v. Brandon, 162 F.3d 1161 (6th Cir. 1998); Stamps v. McWherter, 888 F. Supp. 71, 72 n. 2 (W.D. Tenn. 1995)).

The courts in Jenkins and Johnson noted that nothing in the legislative history of the statute indicated that Congress intended a total exhaustion requirement. See Jenkins, 32 F. Supp.2d at 958; Johnson, 125 F. Supp.2d at 188. All three courts noted that "[p]ost conviction relief under 28 U.S.C. § 2254 and prisoner civil rights relief under 42 U.S.C. § 1983 are analytically very different." Cooper, 55 F. Supp.2d at 1094 (citations omitted); Johnson, 125 F. Supp.2d at 188; Jenkins, 32 F. Supp.2d at 959. First, "[w]hile exhaustion in prisoner civil rights actions is meant primarily as a docket management strategy, exhaustion in habeas cases is intended to promote comity by protecting the state courts' role in the enforcement of federal law and preventing disruption of state judicial proceedings, to ensure factual development through evidentiary hearings within the state courts, and to avoid the problem of exhausted and unexhausted claims based on intermingled facts and the resulting temptation to resolve unexhausted claims which are tightly linked to exhausted claims." Jenkins, 32 F. Supp.2d at 959 (citations omitted). Second, "there is no comity issue involved in prisoner civil rights actions, since prisoners are not required to press their claims in state courts and prison administrators generally limit their review to determining whether prison policy has been violated." Id. Furthermore, "the administrative remedies developed by the prisons may not involve evidentiary hearings of the type that are held in state courts." Id. Finally, the court noted, "resolving all of a prisoner's civil rights claims together may be less important, since the claims raised in a single complaint are less likely to deal with interrelated or intermingled factual issues than the claims raised in habeas petitions." Id. Perhaps the largest difference in the habeas statutes and § 1997e(a) is that "courts have not established a system by which prisoner civil rights claims which are incapable of exhaustion may be reviewed." Id. This is especially important "[b]ecause of the limited time frame for pursuing administrative remedies [in most prison systems]." Id. at 958. Therefore, if the total exhaustion rule is used, "a prisoner may not be able to raise or resolve unexhausted claims." Id. at 959.

The courts observed that "total exhaustion delays the resolution of claims that are not frivolous and tends to increase, rather than alleviate, the caseload burden on the federal court." Cooper, 55 F. Supp.2d at 1095 (citation omitted). If the total exhaustion rule were adopted, prisoners would simply refile their complaint without the unexhausted claims, and "courts would be faced with exactly the same claims that could have been resolved at the outset." Jenkins, 32 F. Supp.2d at 959; Johnson, 125 F. Supp.2d at 188. The total exhaustion rule can also be viewed as unduly punitive because "[i]f a prisoner's civil action is dismissed for any reason, he is required to pay a second fee to refile." Id.

e. Application of the Exhaustion Requirement to Hattley's Complaint

This Court has considered the arguments advanced by courts on both sides of the issue and agrees with the courts which find that total exhaustion is not mandated by the language of § 1997e(a). As a practical matter, dismissing the entire complaint does little to further any goal of the PLRA identified by the parties or courts, since the complaint can simply be refiled and contain the exact same issues the court could have resolved had it dismissed only the unexhausted claims. Further, the language of the statute is ambiguous enough that it can fairly be read under either interpretation (i.e. requiring total exhaustion and thus dismissal of mixed complaints, or only dismissal of unexhausted claims). Therefore, Hattley's complaint should not be dismissed in its entirety. The language of § 1997e(a) mandates only dismissal of unexhausted claims, and not the entire complaint.

2. Hattley's Unexhausted Eighth Amendment Claim

Having concluded that § 1997e(a) mandates only dismissal of unexhausted claims, Hattley's case presents yet another problem. Hattley can no longer exhaust his administrative remedies regarding this Eighth Amendment claim. See Vasquez v. Artuz, 1999 WL 440631 *5 (S.D.N.Y. 1999) (citing 7 N.Y.C.R.R. § 701.7(a)(1)) (noting that the Department of Correctional Services ("DOCS") regulations "require that an inmate submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence."). The Court is aware of only one court which has dealt squarely with this issue. When faced with a prisoner who brought an action with unexhausted claims beyond the statute of limitations to file an administrative grievance in his prison, the court in Johnson deemed that "dismissal [of the unexhausted claims] would be inappropriate in that any attempt by [plaintiff] to further exhaust such claims [] would be futile." 125 F. Supp.2d at 189. The court, therefore, found "that the requirements under § 1997e(a) have been met." Id. In the case before this Court, Hattley's only unexhausted claim is his Eighth Amendment claim as to prison conditions. It is too late for Hattley to file a grievance within the prison system based upon his stay in the SHU in 2000, as his time to bring said claims has expired. However, the Court need not address whether or not Hattley's Eighth Amendment claim should be deemed exhausted as in Johnson, as the claim fails to state a cause of action upon which relief can be granted, and therefore should be dismissed pursuant to 42 U.S.C. § 1997e(c)(2). See Graham, 121 F. Supp.2d at 323.

Hattley alleges that the conditions in SHU violated his Eighth Amendment rights. See Amended Complaint at ¶ 24. He alleges, among other things, the following conditions of the SHU: one recreation per day, twenty-three hours locked in the cell, restrictions on personal property, two showers a week, no access to the law library and educational programs, poor lighting and ventilation, being subjected to the cigarette smoke of both other prisoners and prison officials, and limited visitation privileges. Id. at ¶ 8(A)(ii)-(v), (ix)-(xix), (xxi)-(xxii), ¶ 8(B). These, however, are the normal conditions of an SHU. See Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000); Dixon, 224 F. Supp.2d at 742; Williams v. Goord, 111 F. Supp.2d 280, 289 (S.D.N.Y. 2000); Graham, 121 F. Supp.2d at 323 n. 10. Hattley does allege, however, other conditions — such as not being allowed to wear thermal underwear, receiving cold meals in dirty trays, and being subjected to a cell with a toilet which was not cleaned after the prior prisoner which have not been adjudicated as "normal." Id. at ¶ 8(A)(iv), (vi)-(viii), (xx). Nonetheless, with these additional allegations, Hattley still cannot maintain a claim for a violation of his Eighth Amendment rights. The Second Circuit has noted that in order to prove an Eighth Amendment violation, a plaintiff must allege conditions that are "sufficiently serious such that the deprivation denied the minimal civilized measures of life's necessities." Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir. 1996). The plaintiff must also allege that prison officials acted with "deliberate indifference in that they knew of and disregarded an excessive risk to inmate health or safety." Id.; see also Graham, 121 F. Supp.2d at 323. Objectively, Hattley's allegations do not survive the first prong of the test, as there are no allegations of "serious deprivations of basic human needs." Graham, 121 F. Supp.2d at 323. Therefore, should the Court review Hattley's Eighth Amendment claim, I recommend that it be dismissed.

3. Hattley's Due Process Claims with Respect to SHU Confinement

Hattley claims that his 132 days in SHU confinement violated his Fifth Amendment right to due process. Id. at ¶ 22. The defendants maintain, based upon their assertions in their memorandum of law, that Hattley's due process rights were fully protected. See Def. Mem. at 11. The Second Circuit in Colon, 215 F.3d at 32, affirmatively noted, "we think it appropriate to advise the district courts of this Circuit that in cases challenging SHU confinements of duration within the range bracketed by 101 days and 305 days, development of a detailed record will assist appellate review." See also Welch v. Bartlett, 196 F.3d 389, 394-95 (2d Cir. 1999); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997). Among other things, the Court noted that the parties could "present evidence of the psychological effects of prolonged confinement in isolation and the precise frequency of SHU confinements of varying durations." Id. In this case, no evidence of this kind has been presented, as the parties have not engaged in discovery yet. Therefore, consistent with the Court's directive in Colon, the defendants' motion regarding Hattley's due process claims should be denied.

4. Hattley's Due Process Claims with Respect to Calling Witnesses

Hattley claims that during his Tier III hearing, he was not allowed to call Artuz as a witness, in violation of his right to due process. Defendants contend that this claim should be dismissed pursuant to the Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539 (1974). In Wolff, the Court noted that "the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id. at 566. However, "[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority." Id. In a later case, the Court also noted that a prisoner's request for a witness can be denied on the basis of irrelevance or lack of necessity. See Ponte v. Real, 471 U.S. 491, 496 (1985).

In this case, Hattley sought to call Artuz to support his defense that he was acting under Artuz's order. Haponik denied the request because Artuz "was not present at the time of the incident." See Def. Mem. at Exh. A. Further, in their memorandum of law, defendants argue that Hattley's request was denied because Artuz's testimony would have been irrelevant based upon the rule Hattley was charged with violating. Id. at 13. However, in deciding a motion to dismiss under Fed.R.Civ.P. 12(b), the Court must "confine its consideration `to facts stated on the face of the complaint, and in documents appended to the complaint or incorporated in the complaint by reference and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell. Inc., 945 F.2d 40, 44 (2d Cir. 1991)). Therefore, there is nothing this Court can consider at this point which demonstrates that Haponik's decision was motivated by a concern that Hattley's request was "unduly hazardous to institutional safety or correctional goals' or that Artuz's testimony would indeed be `irrelevant' or unnecessary. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991). The defendants' motion to dismiss Hattley's due process claims based on his inability to call witnesses should be denied.

5. Hattley's State Law Claims

The defendants argue that Hattley's state law claims should be dismissed because they fail to state a violation of federally protected interests. See Def. Mem. at 14-15. However, "[u]nder 28 U.S.C. § 1367, a district court has "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy' once original jurisdiction has been established." Cicio v. Does 1-8, 2003 WL 283150 (2d Cir. 2003). If the state law claim and the federal law claim "derive from a common nucleus of operative fact[s]," then the state law claim is considered part of the same controversy. City of Chicago v. International College of Surgeons, 522 U.S. 156, 165 (1997). In this case, it is clear that all of Hattley's state law claims involve the same set of facts as his Due Process claims, and therefore this Court should exercise supplemental jurisdiction over these claims, and the defendants' motion regarding these claims should be dismissed.

C. Hattley's Claims Against the Defendants Individually

1. Defendants Goord, Artuz, Selsky and Schneider

Hattley contends that Goord, Artuz, Selsky and Schneider violated his due process rights by seeking and granting a one-day extension of time to commence his Tier III hearing. See Amended Complaint at ¶ 9. Defendants argue that as supervisors, Hattley has not alleged any personal involvement of the individual defendants. See Def. Mem. at 16-17. However, it is clear from reading the complaint that the defendants were personally involved. See Amended Complaint at ¶ 5(E). However, the one-day extension of time did not violate Hattley's right to due process. See Jackson v. Keane, 1995 WL 622593 *3 (S.D.N.Y. 1995) (holding that a two day extension of time to start disciplinary hearing did not violate prisoner's due process rights). Although the New York State Regulations require the hearing to start within a certain period of time, under federal standards, the hearing must merely start within a "reasonable time." See Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990). Therefore, Hattley's federal due process claims against Goord, Artuz, Selsky and Schneider should be dismissed. However, this Court offers no opinion as to Hattley's state law claims against these defendants.

2. Defendants Ullrich, Quackenbush and Kelly

Even reading the complaint liberally, this Court can only make out one claim against Ullrich, and no claims against Quackenbush and Kelly. See Amended Complaint at ¶ 21. Hattley alleges that Ullrich violated his Fifth and Fourteenth Amendment rights when he gave Hattley an order contrary to the order Artuz gave him. Id. Even if true, this does not rise to the level of a due process violation. Therefore, this claim should be dismissed.

To the extent any other claims are alleged against these individually named defendants (which Hattley, in his reply papers, alleges), these too should be dismissed. The most Hattley alleges against Kelly is that he placed Hattley in restraints and removed him from his cell pursuant to an order given by Ullrich. See Amended Complaint at ¶ 4. Aside from what has been discussed supra, Hattley also alleges that Ullrich wrote the misbehavior report. Id. Hattley alleges that Quackenbush's only action in this case was to recommend that the case be adjudicated as a Tier III disciplinary hearing. Id. at ¶ 5(B). These facts are insufficient to sustain any cause of action against these individual defendants. As to Ullrich, the "mere filing" of a misbehavior report does not satisfy the "personal involvement" requirement of § 1983 liability. See Kingwood v. Coombe, 1997 WL 323913 *3 (S.D.N.Y. 1997). Furthermore, "[l]ike one who simply writes a misbehavior report, one who reviews the report does not violate an inmate's rights, so long as he receives due process at the hearing." Bolanos v. Coughlin, 1993 WL 762112 *25 n. 12 (S.D.N.Y. 1993). Therefore, the claims against Ullrich and Quackenbush, to the extent any exist, should be dismissed. Finally, as Hattley alleges no form of physical abuse by Kelly in applying the restraints and removing him from his cell, any causes of action against Kelly should also be dismissed.

D. Qualified Immunity of Haponik

Government employees are entitled to qualified immunity from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has noted that "[w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings, so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier. Katz, 533 U.S. 194, 200 (2001). Viewing the matter "in the light most favorable to the party asserting the injury," the Court must determine whether the facts alleged show the officer's conduct violated a constitutional right. Id. at 201. The constitutional right alleged to be violated must be "clearly established" at the time of the alleged violation. Id. To establish this, it must be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. At the time of the hearing, it was clearly established that a prisoner had the right to call witnesses of choice, subject to a small list of exceptions laid out by the Supreme Court. See Wolff, 418 U.S. at 566; Ponte, 471 U.S. at 496. While the defendants have listed numerous reasons for Haponik's denial of Hattley's request, as this Court noted supra, in considering a 12(b) motion, the Court's review is limited to the four corners of the complaint. See Israel Discount Bank of New York, 199 F.3d at 107. Therefore, while the defendants may successfully argue qualified immunity on Haponik's behalf later in the litigation, at this stage, it is too early to declare Haponik was protected in his decision by a qualified immunity defense. Therefore, the defendants' motion regarding Haponik's qualified immunity should be denied without prejudice.

E. Hattley's Conspiracy Claims

In his amended complaint, Hattley alleges in two different causes of action that all of the named defendants conspired to deprive him of his constitutional rights. See Amended Complaint at ¶¶ 22, 24. Although not specifically alleged, the Court will treat these claims as 42 U.S.C. § 1983 conspiracy claims. The defendants seek to have both causes of action dismissed for failure to state a claim. In deciding Section 1983 cases, the Second Circuit has made clear that

[I]n order to state a claim of conspiracy under § 1983 the complaint must contain more than mere conclusory allegations. And while a plaintiff should not plead mere evidence, he should make an effort to provide some details of time and place and the alleged effect of the conspiracy. Thus, complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.
Dwares v. City of New York, 985 F.2d 94, 99-100 (2d Cir. 1993) (citations omitted). Further, in order to properly plead a claim for conspiracy, "plaintiffs must plead specific facts suggesting that there was a mutual understanding among the conspirators to take action directed toward an unconstitutional end." Pollack v. Nash, 58 F. Supp.2d 294, 302 (S.D.N.Y. 1999) (citations omitted).

Hattley alleges that the named defendants "aided and abetted and participated in direct active concert with each other." See Amended Complaint at ¶¶ 22, 24. However, "there is not a single allegation as to when, where or how this conspiracy was formed. This failure, of course, ignores the basic requirement that there be an agreement or meeting of the minds between the conspirators." Pollack, 58 F. Supp.2d at 302. Hattley simply puts forth the type of conclusory allegations which the Second Circuit has warned plaintiffs not to rely on for a conspiracy claim. Therefore, Hattley's conspiracy claims should be dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, I recommend that defendants' motion to dismiss be GRANTED as to the due process claims against Goord, Artuz, Selsky and Schneider, as to any claims against Ullrich, Quackenbush and Kelly individually, as to Hattley's Eighth Amendment claims, and as to any conspiracy claims, and DENIED as to the defendants's motion to dismiss the complaint as a whole pursuant to 42 U.S.C. § 1997e(a), defendants' motion to dismiss Hattley's due process claims regarding his SHU confinement, defendants' motion to dismiss Hattley's due process claims regarding his inability to call a witness, and defendants' motion to dismiss the due process claims against Haponik individually. Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable William H. Pauley, III, 40 Centre Street, Room 234, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).

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