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August 3, 2004.

EDWARD AKAM, Plaintiff,

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  Plaintiff, formerly an inmate at Mt. McGregor Correctional Facility, commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Fourteenth Amendment. Specifically, Plaintiff asserts that, while he was an inmate at Mt. McGregor, Defendants improperly removed him from a temporary release program based upon false misbehavior reports, denied him due process at hearings concerning those reports, improperly docked his merit time, and retaliated against him when he complained to a supervisor.


  Plaintiff alleges that on June 12, 1998, while he was a participant in a work-release program, which required him to travel to a Menands warehouse facility, he entered the breakroom at the warehouse to use the microwave. An inmate in the room at the time, Mr. Estrella, yelled at Plaintiff and ordered him to leave the room. A guard, Defendant O'Malley, intervened and told Plaintiff to "`get the fuck out' while [Estrella] moped [sic] the floor." See Transcript of Tier II Disciplinary Hearing, Exhibit "C" to Defendants' Motion for Summary Judgment, at 2. Plaintiff contends that Defendant O'Malley then observed without intervening while Mr. Estrella made profane statements toward Plaintiff.

  Plaintiff alleges that he immediately reported the confrontation to a work-release supervisor, Bud Saddlemire, and to another supervisor, Andy Orcot. Shortly thereafter, Defendant O'Malley verbally harassed Plaintiff, swore at him, and created a false disciplinary ticket (report) about the incident. In the disciplinary ticket, Defendant O'Malley charged Plaintiff with creating a disturbance, harassment, and refusing a direct order. Plaintiff contends that, later that same day, he overheard Defendant O'Malley threaten Daryl Keels, another inmate, and warn him not to act as a witness on Plaintiff's behalf. Upon Plaintiff's return to Mt. McGregor, administrators immediately removed him from the work-release program.

  On June 15 and 18, 1998, Plaintiff received disciplinary tickets from Defendant Brown. The June 15 ticket charged Plaintiff with falsely stating that he had permission to visit the Mt. McGregor library. The June 18 ticket charged Plaintiff with failing to comply with discipline that officers imposed in a June 17 hearing, described below.*fn1 As punishment for the tickets, Plaintiff had to perform a seven-day work detail under Defendant Waite's supervision. Plaintiff alleges that, while Defendant Waite supervised him, he verbally abused him for several hours each day.

  On June 17, 1998, Defendant Batchelder, a corrections lieutenant, convened a Tier II disciplinary hearing to allow Plaintiff to answer Defendant O'Malley's June 12, 1998 charges. Plaintiff alleges that he planned to call a witness at the hearing, but Defendant Batchelder denied his request. Defendant Batchelder refused to overturn the June 12 charges. Plaintiff contends further that he was never able to obtain a tape of the hearing in order to perfect his appeal. On June 19, Defendant Battiste, an industrial training counselor, informed Plaintiff via memorandum that he would not schedule a Temporary Release Committee ("TRC") hearing, which would determine whether Plaintiff could remain in the industrial training/temporary release program, until the June 15 and the June 18 charges were finally resolved.

  On June 23, 1998, Defendant Batchelder convened another disciplinary hearing to review the June 18 disciplinary charge. Defendant Batchelder found Plaintiff guilty, verbally reprimanded him, and suspended his telephone privileges. Plaintiff appealed this disposition, and administrators rejected his appeal.

  On June 25, Defendants Kirker, a corrections counselor, and Byers, a corrections lieutenant, convened a TRC hearing to allow Plaintiff to answer the pending order to remove him from the work release program. Plaintiff contends that the hearing lasted barely three minutes and was a sham. As a result of the series of hearings and disciplinary measures, Defendant Recore denied Plaintiff access to the work release program permanently. Plaintiff also lost merit time. Plaintiff then sent letters protesting his removal to various administrators, including Defendant Quinones, Mt. McGregor Superintendent; Defendant Garcia, Mt. McGregor Deputy Superintendent; and Defendant Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"). Plaintiff contends that his letters remained unanswered, that Defendants deliberately hid or delayed sending him the transcripts that he requested, and that he received perfunctory responses to his inquiries.

  Plaintiff filed the present action on May 5, 1999, and filed an amended complaint on March 30, 2000. In his amended complaint, Plaintiff alleges that Defendants' actions regarding the above-cited events violated his constitutional rights. On June 27, 2000, Defendants moved to dismiss Plaintiff's amended complaint for failure to state a claim. Magistrate Judge Randolph Treece issued a Report-Recommendation, in which he recommended that the Court grant the motion in part and deny the motion in part. Neither Plaintiff nor Defendants filed objections. By Order dated April 12, 2002, this Court adopted the Report-Recommendation in its entirety.*fn2

  As a result, the remaining claims in this action are (1) Plaintiff's claim against Defendants Kirker and Byers for due process violations arising from the June 25, 1998 hearing, (2) Plaintiff's claim against Defendant Batchelder concerning the denial of his due process rights at the June 17, 1998 disciplinary hearing, (3) Plaintiff's retaliation claim against Defendants O'Malley, Waite and Brown,*fn3 and (4) Plaintiff's due process claims against Defendants Brown, Waite, Battiste, Quinones and Garcia.

  Presently before the Court is Defendants' motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies with respect to his due process claims arising ...

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