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May 21, 2003


The opinion of the court was delivered by: David E. Peebles, United States Magistrate Judge


Plaintiff Anthony G. Gill, a New York State prison inmate who is no stranger either to this court or to civil rights litigation generally, has commenced this action pro se under 42 U.S.C. § 1983 complaining of alleged constitutional violations committed by the named defendants during the period of his confinement at the Auburn Correctional Facility ("ACF"). Plaintiff's complaint, which stems from incidents occurring in the first half of 2001, contains a variety of claims against the corrections employees sued; those claims can be divided into three groupings, entailing allegations that 1) defendants retaliated against Gill for his exercise of protected First Amendment rights, including his filing of grievances; 2) defendants violated his First Amendment free exercise rights by preventing him from attending religious services; and 3) defendants violated his Eighth Amendment rights by subjecting him to conditions tantamount to cruel and unusual punishment. Plaintiff's complaint seeks compensatory damages for mental anguish and emotional distress in varying amounts ranging from $200,000 to $500,000 against each of the twelve defendants.

Defendants initially responded to plaintiff's filing of an amended complaint — the pleading now before the court — by seeking its dismissal for failure to state a cause of action. Plaintiff has since opposed that motion and cross-moved for summary judgment in his favor. Defendants oppose that motion, arguing that it is premature since they have not yet had an opportunity to conduct discovery concerning plaintiff's claims, and additionally have cross-moved seeking summary judgment dismissing plaintiff's complaint.

Because I find that certain of plaintiff's claims cannot withstand Rule 12(b)(6) scrutiny, I recommend their dismissal. Others, however, have facial merit; as to those, I find that while some are subject to dismissal as a matter of law, others implicate triable issues of material fact which preclude the entry of summary judgment in favor of either the plaintiff or defendants, particularly since pretrial discovery has not yet occurred.


Since this matter is currently before the court both on motion by the defendants challenging the legal sufficiency of plaintiff's complaint and as a result of the filing of cross-motions for summary judgment, I will recite the essential facts as alleged in plaintiff's amended complaint, and will note defendants' counter position concerning any contested allegation.

A. Plaintiff's Amended Complaint

Plaintiff's claims arise out of his confinement within the ACF. Amended Complaint (Dkt. No. 20) ¶ 1. Plaintiff asserts that on or about January 29, 2001, after just having been released from keeplock confinement due to a disciplinary report allegedly "orchestrated" by Corrections Officer V. Hoadley, a defendant in this action, Hoadley instructed fellow Corrections Officer Randolph Calhoun — who is not named as a defendant — to confine Gill to his cell, allegedly as a result of grievances filed by Gill against Hoadley. Id. ¶¶ 2-5. Plaintiff alleges that Corrections Sergeant J. Giannotta then advised Gill that he would not "tolerate any grievances against [his] officers" and threatened him with confinement in the facility's special housing unit ("SHU") if he filed any further grievances. Id. Gill claims that during the course of this conversation defendant Giannotta was hostile and abusive towards him, including by using profanity. Id. ¶ 3.

Plaintiff also maintains that after being placed in keeplock he was deprived of his noon lunch meal due to the fact that his disciplinary confinement was initiated after keeplock "feed-up trays" were delivered to his cell block. Id. ¶ 6, n. 3. Additionally, plaintiff asserts that while confined in keeplock he was denied his one hour daily keeplock exercise for the four day period ending on February 1, 2001 (id. ¶ 9), and that he was denied the opportunity to attend an evening Jehovah Witness religious service on January 29, 2001.*fn1 Amended Complaint (Dkt. No. 20) ¶ 10, n. 4, Exh. D.

Plaintiff's keeplock confinement was followed on or about January 30, 2001 with the issuance of a disciplinary report, authored by defendant Hoadley, charging Gill with violation of prison rules 107.11 (harassment) and 107.20 (lying). Amended Complaint (Dkt. No. 20) ¶ 7, Exh. B. A Tier II disciplinary hearing was conducted on or about February 2, 2001 by Corrections Lieutenant Ashby, another named defendant, concerning the Hoadley disciplinary report.*fn2 Amended Complaint (Dkt. No. 20) ¶ 11. At the conclusion of the hearing the charges against Gill were ordered dismissed. Amended Complaint (Dkt. No. 20) ¶ 11. At the time of dismissal, plaintiff had served four days of keeplock confinement in his cell. Id.

The second facet of plaintiff's complaint stems from his filing on or about April 9, 2001 of a complaint with ACF Deputy Superintendent of Security J. Burns, another named defendant, related to allegations of the posting of Gill's photograph in the ACF Messhall/Kitchen area. Amended Complaint (Dkt. No. 20) ¶ 12, n. 5. According to the plaintiff, that report led to his being placed on keeplock confinement status on or about April 12, 2001, and the subsequent receipt on April 13, 2001 of a disciplinary report, authored by Corrections Officer Walter Pelc, alleging violation of prison rule 107.20 (lying). Id. ¶¶ 12-14, Exh. F. A Tier II disciplinary hearing was commenced by defendant Ashby on April 17, 2001 concerning this latest disciplinary report, although the hearing was later adjourned until April 19, 2001. Id. ¶¶ 17-19. At the conclusion of the hearing defendant Ashby found plaintiff guilty of the infraction alleged, and imposed a sentence of twenty-one days of keeplock confinement, with a corresponding loss of privileges. Id. ¶ 20, Exh. I. Plaintiff alleges that his appeal from the Tier II disposition, filed with ACF. Superintendent Hans Walker on April 19, 2001, went unanswered. Id. ¶ 22.

As a result of the Tier II disposition plaintiff was confined in keeplock status in his cell for a twenty-one day period, ending on May 3, 2001. Id. ¶ 23. During that time plaintiff asserts he was denied permission to attend Jehovah Witness religious services on April 13, 2001, April 16, 2001, April 20, 2001, April 23, 2001, April 27, 2001, and April 30, 2001. Id. ¶ 16, Exh. G.

The third aspect of plaintiff's complaint stems from an incident which occurred on May 4, 2001. Id. ¶ 24. On that date, during the course of a "pat frisk" in a school building basement, plaintiff's watch was lost. Id. ¶ 24. Later that afternoon plaintiff was placed on keeplock status, and the following day received a disciplinary report, authored by Corrections Officer L. Vanderwerff and endorsed by Corrections Officers Franczek and Gibson — all named defendants — alleging violation of prison rules 107.20 (lying), 106.10 (disobeying a direct order) and 104.13 (engaging in disturbance). Amended Complaint (Dkt. No. 20) ¶ 26, Exh. K. Plaintiff alleges that this disciplinary report was a direct result of his accusations that corrections officers had taken his watch. Id. ¶ 27. A Tier II disciplinary hearing was subsequently held in connection with those charges, commencing on May 7, 2001 by Corrections Lieutenant Quinn, another named defendant. Id. ¶ 29. The hearing was thereafter adjourned, and continued on May 9, 2001, and again to a later date, based upon the unavailability of Corrections Officer Vanderwerff. Id. ¶¶ 30-32. During the hearing, which was ultimately conducted on May 23, 2001, plaintiff alleges that defendants Vanderwerff and Franczek submitted false testimony, resulting in a finding of guilt and a sentence of twenty-one days of punitive keeplock confinement, with a corresponding loss of privileges. Id. ¶¶ 32-34, Exh. K. Plaintiff appealed to ACF Superintendent Walker from that Tier II finding on May 23, 2001. Id. ¶ 36. That determination was subsequently affirmed on May 25, 2001 by ACF First Deputy Superintendent J. Burge. Id. ¶ 36, Exh. K.

As a result of the Tier II finding and affirmance plaintiff served a total of twenty-one days in keeplock disciplinary confinement. Amended Complaint (Dkt. No. 20) ¶ 37. During that time plaintiff applied for but was denied permission to attend Jehovah Witness religious services on May 11, 14, 18 and 21, 2001. Id. ¶ 28, Exh. L.

B. Defendants' Counterstatement

Defendants' contentions concerning the January 29, 2001 incident differ slightly, though not materially, from those alleged by the plaintiff. Defendant Hoadley acknowledges issuing a misbehavior report on that date, and that the misbehavior report stems from plaintiff's filing of an inmate grievance. Hoadley Aff. (Dkt. No. 51) ¶¶ 8-9. Hoadley maintains, however, that the misbehavior report was written not in retaliation for the grievance, but rather to address the fact that it contained false information. Id. ¶ 9. Defendant Hoadley also denies depriving the plaintiff of lunch during the time that he was on keeplock status as a result of the January 29, 2001 incident. Id. ¶¶ 12-13. Similarly, defendant Hoadley denies that Gill was not allowed to exercise during that time period. Id. ¶

Defendants also dispute certain of the plaintiff's allegations surrounding the April 12, 2001 keeplock confinement. While plaintiff, as previously indicated, alleges that the confinement was a direct result of his having filed a written complaint on April 9, 2001 to Deputy Superintendent Burns, Burns has no recollection of having received the April 9, 2001 complaint from Gill.*fn3 Burns Aff. (Dkt. No. 60) ¶ 15.

In an affidavit submitted by John W. Burge, who in his prior capacity as First Deputy Superintendent at ACF was required to review appeals from Tier II disciplinary determinations as well as review and respond to complaints filed by inmates at the facility through the inmate grievance procedure, he confirms having received and responded to a grievance concerning the initial Hoadley misbehavior report, stating that it had resulted in dismissal of the report. Burge Aff. (Dkt. No. 61) ¶¶ 2, 5-8, Exh. A. The report goes on to indicate, however, that at the time Gill was subject to keeplock confinement resulting from another matter, and thus the issuance by defendant Hoadley of the misbehavior report did not affect Gill's confinement status.*fn4 Burge Aff. (Dkt. No. 61) ¶ 9. Defendant Burge also responded to a grievance filed by plaintiff concerning Deputy Superintendent Burns' alleged failure to respond to his April 2001 complaint. Burge Aff. (Dkt. No. 61) ¶ 10, Exh. B. That grievance was denied, based upon defendant Burns' claim that he never saw plaintiff's request. Id.

Defendant Burge was also asked to review the April 19, 2001 Tier II determination of Lieutenant Ashby. Burge Aff. (Dkt. No. 61) ¶ 11, Exh. C. That appeal resulted in a reversal and expungement of plaintiff's records. Id. ¶ 12, Exh. D.

Defendants' allegations concerning the May 2001 incident also differ significantly from plaintiff's version. According to the defendants, the circumstances giving rise to the incident were set in motion when it was discovered that plaintiff's boots had custom arch supports which inmates are not permitted to have without a medical permit. Vanderwerff Aff. (Dkt. No. 56) ¶¶ 6-7; Gibson Aff. (Dkt. No. 58) ¶ 8. During the course of an investigation regarding the boots, plaintiff removed his watch but later, according to defendants, put it in his pocket and then made false accusations against corrections officers participating in the event, including Corrections Officers Vanderwerff and Franczek, accusing them of taking the watch. Vanderwerff Aff. (Dkt. No. 56) ¶¶ 8-9; Gibson Aff. (Dkt. No. 58) ¶¶ 9-11. Plaintiff's accusations became "agitated" and were made in front of between twenty-five and thirty inmates. Vanderwerff Aff. (Dkt. No. 56) ¶ 10. Because of the plaintiff's actions and the false nature of his accusations, plaintiff was issued a misbehavior report. Id. ¶¶ 11-13, Exh. A. Officer Vanderwerff ordered plaintiff confined on keeplock status pending a hearing on the charges. Id. ¶ 15.

Defendants have also responded to plaintiff's allegations concerning the religious service permission denials. According to the defendants, under DOCS Directive 4202, Section J, an inmate confined to his or her cell on keeplock status may request permission to attend congregate religious services utilizing a designated Form 2175; any such request must be made at least forty-eight hours prior to the scheduled service. DOCS Directive 4202; see also Burns Aff. (Dkt. No. 60) ¶ 5, Exh. A. Although plaintiff's requests for permission to attend religious services were all addressed to defendant Burns, as ACF Deputy Superintendent for Security, they were referred by him as a matter of routine to Corrections Captain Gummerson for a response. Burns Aff. (Dkt. No. 60) ¶¶ 2, 9; Gummerson Aff. (Dkt. No. 53) ¶ 6. Captain Gummerson acknowledges receipt and denial of requests by Gill to attend services on January 29, 2001, February 2, 2001, April 27, 2001, May 11, 2001, May 14, 2001, May 18, 2001 and May 21, 2001 and states that those requests were denied on the basis of plaintiff's disciplinary problems, described by Captain Gummerson as "chronic". Gummerson Aff. (Dkt. No. 53) ¶¶ 7-9, Exh. A. To buttress this the defendants have submitted a printout of plaintiff's disciplinary history, showing that during the first half of 2001 plaintiff had a number of disciplinary charges made and sustained against him. Id. ¶ 10, Exh. B. Captain Gummerson states that he lacks any specific recollection of other requests allegedly made by Gill, but noted his assumption that any that do not contain notations by him were never received. Id. ¶ 8.


Plaintiff commenced this action on March 6, 2001, and thereafter was granted leave to proceed in forma pauperis. Dkt. Nos. 1, 4. Named as defendants in plaintiff's initial complaint were Corrections Officer Hoadley, Corrections Sergeant Giannotta, and Corrections Captain Gummerson. Dkt. No. 1.

On May 8, 2001 plaintiff sought leave to file a supplemental complaint in the action to name four additional defendants, including Corrections Officer Walter Pelc, Corrections Lieutenant Rodney Ashby, Deputy Superintendent Burns, and Superintendent Hans Walker, as well as to complain of additional incidents occurring subsequent to the filing of his initial complaint. Dkt. No. 8. That motion, which was not opposed, was granted, as a result of the issuance by me of an order dated August 1, 2001. Dkt. No. 15. In a second motion by plaintiff for leave to amend, filed on August 16, 2001, plaintiff sought permission to name five new defendants, in addition to the four added through his first motion, for a total of nine additional defendants. Dkt. No. 17. That motion was also subsequently granted by order issued by me on October 10, 2001, and the five new defendants added as a result of that order include Corrections Officers Vanderwerff, Franczek, and Gibson; Corrections Lieutenant Quinn; and First Deputy Superintendent Burge. Dkt. No. 19. An amended complaint, which is the pleading currently before the court, was subsequently filed in accordance with that order on October 17, 2001.*fn5 Dkt. No. 20.

In response to the filing of plaintiff's amended complaint, defendants moved on February 27, 2002 seeking its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. Nos. 37-38. That motion was met by plaintiff's filing of papers in opposition and in support of a cross-motion for summary judgment in his favor. Dkt. Nos. 41-42. Defendants have since submitted papers urging that plaintiff's summary judgment motion be denied as premature, inasmuch they have not yet had the benefit of discovery, and asking that the court enter summary judgment dismissing plaintiff's complaint in its entirety.*fn6 Dkt. Nos. 47-61.

The parties' cross-motions, which are now ripe for determination, have 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 also Fed.R.Civ.P. 72(b).


A. Rule 12(b)(6) Standard

Since defendants' initial motion to dismiss calls into question the legal sufficiency of plaintiff's allegations, when accepted as true, I will address that aspect of the cross-motions before proceeding to address the parties' motions for summary judgment.

A court may not dismiss an action pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994) (citing, inter alia, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). In deciding a Rule 12(b)(6) motion, the court must accept the material facts alleged in ...

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