The opinion of the court was delivered by: Denise Cote, District Judge
The defendants have moved to dismiss the complaint filed by Kevin Martin ("Martin"), an inmate at Fishkill Correctional Facility ("Fishkill"), which principally challenges the imposition of a penalty of 37 days in keeplock following a Tier II disciplinary hearing. For the following reasons, the motion is granted.
According to his complaint,*fn1 Martin's incarceration in Fishkill began on December 19, 2006, and within days he was assigned to housing in the medical unit. By January 9, 2007, he had been assigned to work in the laundry facility beginning on January 16, but with restrictions on lifting and standing. (Martin has attached to his complaint a January 26, 2007 medical work status assignment, which reflects a starting date of February 3, 2007 and a lifting restriction.) When Martin reported to the laundry room on January 16 and presented his written assignment, which reflected restrictions on lifting and standing, defendant Harrington, who is a civilian employee, told him to return once he had been cleared by the medical department to work without any restrictions. Martin returned to his housing unit and explained what had happened to the officer in charge.
On March 5, defendant Officer Rivera (identified by Martin as Rivers) issued a misbehavior report against Martin, and with defendant Sergeant Medwick's approval, confined Martin in the Special Housing Unit ("SHU"). As defendant Medwick escorted Martin to the SHU, Martin tried to explain what had happened, and Medwick threatened him with more serious charges if he did not keep quiet.
Martin received the misbehavior report for the hearing on March 6. It charged Martin with refusing to obey a direct order, verbal harassment, lying, and refusing to comply with a program assignment. Specifically, the misbehavior report alleges that on March 5, Martin had asked Rivera for a pass to the library. When asked why he was not "at his program," Martin explained that he was "medically unassigned." When Martin could not produce a medical disposition form, Rivera ordered Martin to report to his program, but Martin refused, using profanity. Rivera then called the nurse and was told that Martin was not excused from working or attending a program but that his folder contained a limitation on prolonged standing. When Rivera called the laundry, the civilian employee reported that Martin was "still on her payroll."
A Tier II disciplinary hearing commenced before defendant Lieutenant Michael on March 9. After several adjournments and extensions, the hearing convened again on March 27 and 29. According to Martin, Harrington testified in a way that was "inconsistent" with what had actually occurred on January 16.
The hearing officer found against Martin and Martin asserts that he imposed 45 days in keeplock as punishment, to begin as of March 19, and a loss of privileges for 30 days. On April 4, defendant Captain Pelc addressed Martin's appeal and reduced his punishment by seven days. The ruling explained that Martin had been credited with 14 days of pre-hearing confinement, running from March 5 to 19, and had been given a sentence of 30 days keeplock, running from March 19 to April 18. On April 4, defendant Superintendent William Connolly affirmed that disposition and ruled that the lost privileges would not be restored before the expiration of the 30 day term.
Martin's pro se complaint was received by this district's Pro Se Office on July 17, and filed on August 13. It names the six defendants identified above.
On January 7, 2008, the defendants moved to dismiss the entire complaint on the grounds that: 1) the claims against Rivera, Harrington, and Medwick do not state constitutional claims; 2) Connelly and Pelc were not personally involved in the actions of which Martin complains; 3) 37 days in keeplock does not violate Martin's due process rights; and 4) all defendants are entitled to qualified immunity. In his opposition to the motion Martin has identified the claims on which he wishes to proceed in this litigation and has responded to the defendants' arguments.*fn2 Martin complains principally that his sentence was illegally imposed since a Tier II sentence cannot exceed 30 days in keeplock and he was held in keeplock for 38 days.*fn3 He also complains that the hearing was illegally adjourned, that Rivera filed a false misbehavior report, that Harrington gave false testimony, and that Pelc and Connelly should have ruled in his favor when he appealed.
When considering a motion to dismiss under Rule 12(b)(6), a trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). At the same time, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). A court must apply a "flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). "[W]hen a plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (citation omitted). In deciding the motion, a court may consider "any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citation omitted).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of his constitutional or statutory rights by a person acting under the color of state law. When asserting a due process claim under § 1983 for improper confinement, "a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (citation omitted). "Prison discipline implicates a liberty interest when it 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Confinement in SHU without unusual conditions for a period of up to 101 days is not an atypical hardship. Id.
It is unnecessary to address whether Martin has sufficiently alleged that his confinement in SHU implicated a liberty interest since his complaint fails to plead a deprivation of due process. Martin has failed to identify any violation of Department of Correctional Services ("DOCS") regulations concerning either the adjournment of the hearing or the imposition of penalties at the conclusion of the hearing. Moreover, filing a false misbehavior report or providing false testimony are insufficient standing alone to support a claim. Finally, there can be no supervisory liability without the ...