The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to 42 U.S.C. § 1983 in which prison inmate Robert Cobb ("Plaintiff") alleges that Defendants violated his 14th Amendment right to procedural due process by conspiring to deprive him of due process in connection with a prison disciplinary hearing. Now before the Court is Defendants' application [#24] for summary judgment. For the reasons that follow, Defendants' application is granted and this action is dismissed.
The following are the undisputed facts of this case viewed in the light most favorable to Plaintiff. On March 14, 2004, at Elmira Correctional Facility ("Elmira") where Plaintiff was then housed, defendant Correction Officer John Wood ("Wood") wrote a misbehavior report against Plaintiff, accusing Plaintiff of possessing a weapon. Specifically, Wood indicated that he observed Plaintiff take a sharpened paintbrush handle from another inmate named Ragin. Plaintiff was provided with a copy of the misbehavior report, and was given assistance in preparing a defense by Corrections Officer Brockway. Defendant Calvin West ("West"), the Superintendent of Elmira, designated defendant James Thompson ("Thompson"), Senior Correction Counselor, to conduct a Tier III disciplinary hearing. Thompson convened the hearing on March 19, 2004, at which time he permitted Plaintiff to watch a videotape of the incident. Thompson observed for the record that the videotape showed an inmate approach Plaintiff from behind. Plaintiff initially denied that anyone had approached him, but later admitted that an inmate had approached him and slipped an object into his pocket, although he denied that it was Ragin. At Plaintiff's request Thompson adjourned the hearing in order to allow Wood to testify.
On March 23, 2004, Thompson re-convened the hearing, and Wood testified. Wood indicated that on March 14, 2004, he observed Ragin "go after" another inmate with an object in his hand, and then hand off the object to Plaintiff. Wood indicated that he immediately told Plaintiff to drop the object, which Plaintiff did, and that the object was a sharpened paintbrush handle. Plaintiff declined to cross-examine Wood. Plaintiff also declined to call additional witnesses or present any additional evidence. Plaintiff offered no explanation for why he was in possession of the weapon, other than to say that someone had slipped it into his pocket. Thompson reviewed the evidence with Plaintiff, then found Plaintiff guilty of possessing the weapon. Thompson, noting that Plaintiff already had a conviction for weapons possession*fn1 , imposed a sentence of 9 months in the Segregated Housing Unit ("SHU") and nine months loss of privileges.
Plaintiff appealed his conviction to defendant Donald Selsky ("Selsky"), Director of the Office of Inmate Discipline and Special Housing for the New York State Department of Correctional Services ("DOCS"). In the appeal, Plaintiff alleged the following errors: 1) the misbehavior report was factually deficient; 2) he was denied the right to present documentary evidence and cross-examine witnesses; and 3) the ruling was arbitrary and capricious. On May 20, 2004, Selsky affirmed the hearing disposition.
On March 30, 2004, while his appeal to Selsky was pending, Plaintiff filed an inmate grievance, alleging that Thompson had deprived him of procedural due process.
Plaintiff requested that he be given $10 million and released from SHU. On March 31, 2004, Elmira's Inmate Grievance Review Committee ("IGRC") returned the grievance, with comments indicating that Plaintiff was attempting to pursue judicial remedies, which was inappropriate in a grievance proceeding. On April 3, 2004, Plaintiff sent a letter to West, attempting to appeal the rejection of his grievance. West referred the matter to defendant Cheryl Graubard ("Graubard"), Elmira's Inmate Grievance Program Supervisor. Graubard investigated Plaintiff's complaint and recommended that the grievance be denied, finding, in relevant part, that Plaintiff could not appeal his disciplinary hearing through the inmate grievance program. Graubard recommended that Plaintiff take a direct appeal of his disciplinary conviction. Based on Graubard's recommendation, the IGRC dismissed Plaintiff's appeal. Subsequently, Plaintiff again wrote to West, attempting to appeal the dismissal of his grievance. West again referred Plaintiff's correspondence to Graubard. On April 19, 2004, Graubard replied to Plaintiff, advising him that he could not take a direct appeal to the facility superintendent, but that he could file an appeal with the Inmate Grievance Program Supervisor. Plaintiff declined to do so.
Instead, on April 15, 2004, Plaintiff sent a letter to DOCS' Central Office Review Committee ("CORC"), purporting to appeal the dismissal of his grievance. Plaintiff sent this letter to CORC only five days after he filed his "appeal" with West, and before receiving any response from Graubard. On April 22, 2004, defendant Thomas Eagen ("Eagen"), Director of DOCS' Inmate Grievance Program, responded to Plaintiff's letter, reiterating that Plaintiff would need to file an appeal with Elmira's Inmate Grievance Program Supervisor. Plaintiff again declined to do so.
On November 5, 2004, following the completion of his disciplinary sentence, Plaintiff wrote to defendant Glenn Goord, Commissioner of DOCS, indicating that he had been "capriciously and arbitrarily convicted" at the disciplinary hearing. Plaintiff further indicated that his grievance had been dismissed, and that he had been prevented from exhausting his grievance appeals. Plaintiff additionally indicated that he was transferred to Upstate Correctional Facility ("Upstate") in retaliation for filing grievances. On November 27, 2004, Plaintiff sent a second letter to Goord that was nearly-identical to the first, except that it did not mention retaliation. Goord's staff referred Plaintiff's first letter to Lucien LeClaire ("Leclaire"), DOCS Deputy Commissioner. Leclaire, in turn, referred the matter to Theresa Knapp-David ("Knapp-David"), DOCS Director of Classification and Movement, who responded that Plaintiff's transfer to Upstate was due to his "poor disciplinary behavior while at Elmira." Goord's staff referred Plaintiff's second letter to Edward McSweeney ("McSweeney"), DOCS Assistant Commissioner. McSweeney responded, indicating that plaintiff should pursue his concerns regarding the disciplinary hearing through the "disciplinary appeal mechanism," and further noting that Plaintiff had not sought review of the dismissal of his grievance by Elmira's Inmate Grievance Program Supervisor.
On December 17, 2004, Plaintiff commenced this action, alleging, that defendants conspired to violate his rights under the First, Eighth, and Fourteenth Amendments. (Docket [#5]). Regarding the alleged due process violation, Plaintiff contends, for the first time, that during the disciplinary hearing, Thompson turned off the tape recorder and stated that the evidence against Plaintiff was insufficient, but that he was going to find Plaintiff guilty anyway, based upon Plaintiff's poor disciplinary record.
Plaintiff also alleges that his sentence of 270 days in SHU constituted cruel and unusual punishment in violation of Eighth Amendment. Finally, he alleges that the denial of his grievances, as well as his transfer to Upstate, which he contends was retaliatory, violated his First Amendment rights. Following discovery, Defendants filed the subject summary judgment motion.*fn2 In support of the motion, Defendants maintain, inter alia, that no constitutional violations occurred.*fn3 The Court issued a Motion Scheduling Order, however, Plaintiff filed no opposing papers. ...