The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In a Report and Recommendation dated February 21, 2008, Magistrate Judge Peebles recommended that this Court grant Defendants' motion for partial summary judgment, deny Plaintiff's cross-motion for leave to amend his complaint except insofar as his request for leave to assert a claim for punitive damages is concerned, and schedule a trial in this action with regard to the remaining claims. See Dkt. No. 131. Plaintiff filed objections to some of these recommendations. See Dkt. No. 132.
Specifically, Plaintiff objects to Magistrate Judge Peebles' recommendations that this Court dismiss Plaintiff's retaliation claims against Defendants Thompson, Duvall, and LaBrague; dismiss Plaintiff's procedural due process claim against Defendant Naughton; and deny Plaintiff's cross-motion to amend his complaint to allege intentional-infliction-of-emotional-distress claims. See Plaintiff's Objections at 1.*fn1 The Court will address each of Plaintiff's objections in turn.
A. Plaintiff's retaliation claims against Defendants Thompson, Duvall and LaBrague
Plaintiff alleges that Defendants took certain adverse actions against him, including subjecting him to the use of excessive force and disciplinary confinement, in retaliation for his having exercised his right to file grievances. See Amended Complaint at ¶¶ 85-86. In support of their motion for partial summary judgment, Defendants argued that the adverse actions that form the basis for Plaintiff's retaliation claim occurred prior to Plaintiff filing two grievances on March 23, 2003, after his transfer from Oneida Correctional Facility to Mohawk Correctional Facility, and, therefore, no reasonable factfinder could conclude that the actions about which Plaintiff complains were motivated by retaliatory animus.
As Magistrate Judge Peebles noted, to state a prima facie claim under § 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that
1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action -- in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. . . . If the plaintiff carries this burden, the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." . . . If taken for both proper and improper reasons, then, state action may be upheld if the action would have been taken based on the proper reasons alone. . . .
See Report and Recommendation, dated February 21, 2008, at 36-37 (internal quotations and other citations omitted).
Applying these legal principles to this case, Magistrate Judge Peebles concluded that "the record discloses that the adverse actions allegedly taken by the defendants toward the plaintiff between February 25, 2003 and March 5, 2003, while at Oneida, could not have been prompted by animus in retaliation for having filed the two grievances on March 23, 2003, while at Mohawk, concerning those events." See id. at 38 (footnote omitted). Moreover, Magistrate Judge Peebles found that "Plaintiff's amended complaint contains no allegations regarding any efforts on his part to lodge formal protests regarding reactions of the defendant[s], including corrections officer Thompson, prior to the filing of grievances on March 23, 2003." See id. at 39.
In addition, Magistrate Judge Peebles found that, although in his affidavit in opposition to Defendants' motion, Plaintiff had "allege[d] in conclusory fashion that '[i]n the days immediately following my February 25, 2003 "threat" to file a complaint against Thompson, Thompson and several other corrections officers engaged in [a] pattern of retaliation against me.' Martinez Aff. (Dkt. No. 120) ¶ 6," Plaintiff had not provided any specifics "regarding his 'threat' to file a complaint, nor ha[d] he offered any evidence from which a reasonable facfinder could find the requisite nexus between that 'threat' and the ensuing issuance of misbehavior reports." See id. Therefore, "based upon plaintiff's failure to come forward with evidence establishing the existence of material, genuinely disputed facts regarding his retaliation claim," Magistrate Judge Peebles recommended that the Court dismiss Plaintiff's second cause of action. See id. at 39-40.
In his objections, Plaintiff states that "[t]he gravamen of plaintiff's retaliation claims is that Thompson, Duvall and LaBrague filed false misbehavior reports against plaintiff on February 26, 2003 and March 5, 2003 in retaliation for plaintiff's stated intention on February 25, 2003 to complain to a sergeant about Thompson's actions toward plaintiff." See Plaintiff's Objections at 2 (citing Plaintiff's Memorandum of Law in Partial Opposition to Defendants' motion for Partial Summary Judgment, Docket No. 121, pp. 10-12) (footnote omitted). Plaintiff explains further that he is not contending that Defendants Thompson, Duvall and LaBrague filed false misbehavior reports in response to his filing two grievances on March 23, 2003. See id. at n.1 (citing Report and Recommendation, p. 38).
In addition, Plaintiff asserts that he has offered specific evidence regarding the "threat" and sufficient evidence from which a reasonable factfinder could find the required nexus between the "threat" and the issuance of the misbehavior reports. See id. at 3. Plaintiff notes that, in his affidavit in opposition to Defendants' motion, he alleged that on February 25, 2003, he "'told Thompson that [he] wanted to speak to a sergeant to complain about Thompson's actions.'" See id. (citing Docket No. 120, par. 4). ...