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
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.
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).
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[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 ...