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 Plaintiff, a prison inmate, alleges that Defendants, employees of the New York State Department of Correctional Services ("DOCS") violated his federal constitutional rights. Plaintiff has sued the following twelve individuals: 1) Donald Selsky ("Selsky"), Director of DOCS's Special Housing/Inmate Disciplinary Program; 2) Lucien J. Leclaire, Jr. ("Leclaire"), DOCS Deputy Commissioner of Correctional Facilities; 3) Calvin W est ("W est"), Superintendent of Elmira Correctional Facility ("Elmira"); 4) Captain Wenderlich ("W enderlich"), a corrections captain at Elmira; 5) Lieutenant Hughes ("Hughes"), a corrections lieutenant at Elmira; 6) Lieutenant Sirois ("Sirois"), a corrections lieutenant at Elmira; 7) Lieutenant W illis ("W illis"), a corrections lieutenant at Elmira; 8) Sergeant Gilboy ("Gilboy"), a corrections sergeant at Elmira; 9) J.P. Cunningham ("Cunningham"), a corrections officer at Elmira; 10) James Esgrow ("Esgrow"), a hearing officer at Elmira; 11) Superintendent Corcorcan ("Corcoran"), Superintendent of Cayuga Correctional Facility ("Cayuga"); and 12) Lt. McGeever, a corrections lieutenant at Cayuga.
Now before the Court are Defendants' summary judgment motion [#14] and Plaintiff's cross-motion for the same relief [#19]. For the reasons that follow, the applications are denied as premature, the previous grant of permission to allow Plaintiff to proceed in forma pauperis is withdrawn, and Plaintiff is directed to pay the filing fee of $250.00 (the applicable filing fee at the time the action commenced), on or before February 20, 2009 or the action will be dismissed without prejudice.
Unless otherwise noted the following are the undisputed facts of this action. On February 11, 2004, while Plaintiff was confined at Cayuga, a Corrections Officer Laboon ("Laboon") issued Plaintiff a misbehavior report, charging him with making false statements and being out of place. Defendant McGeever was designated to conduct a Tier II disciplinary hearing on the charges. At the hearing, Laboon's and Plaintiff's testimony established the following facts: Plaintiff asked Laboon for permission to leave his usual programming in the F-2 dorm to visit the law library, and Laboon agreed. Laboon subsequently called the law library, and learned that Plaintiff was not there. Instead, Plaintiff was in the gym, waiting to obtain a haircut. According to Plaintiff, he had gone to the law library to speak to Corrections Officer Cuddeback ("Cuddeback"), but upon learning that Cuddeback was not there, he instead went to get a haircut. W hen he became aware that Plaintiff was not at the law library, Laboon contacted the gym and directed Plaintiff to return to the F-2 dorm. On his way back to the dorm, Plaintiff stopped at the law library and spoke with Cuddeback. Laboon subsequently issued the misbehavior report charging Plaintiff with making a false statement and being out of place. During the first day of the hearing, Plaintiff did not indicate that he asked Laboon for permission to go anywhere besides the law library. (Plaintiff's Cross-motion [#19], Exhibits 24-25, 39, 42-44). However, on the second day of the hearing, Plaintiff stated that he told Laboon that he was going to the law library and the gym. (Id., Ex. 48). Plaintiff further indicated that when he signed out of the dorm, he wrote in the call-out book that he was going to both the law library and the gym. Later during the hearing, Plaintiff asked to call a Sergeant Locastro as a witness, and in that regard, Plaintiff initially stated that he needed Locastro to testify that Plaintiff had written in the sign-out book that he was going to both the law library and the gym. (Plaintiff's Cross-motion [#19] Ex. 26, 29). Subsequently, Plaintiff stated that Locastro could testify regarding Plaintiff's statements to Laboon upon returning to the F-2 dorm. (Id., Ex.45). However, McGeever denied the request to call Locastro as a witness, stating that his testimony would be irrelevant, and that Locastro had no "direct knowledge of what happened when [Laboon] let ya out." [sic] (Id.; see also Ex. 46). McGeever found Plaintiff guilty of both charges, stating, in relevant part, that "after hearing all testimony this Hearing Officer feels that Pettus did mislead CO Laboon to get to the barbershop." (Id., Ex. 51). McGeever sentenced Plaintiff to twenty-one days in keeplock. Plaintiff maintains that pursuant to DOCS regulations, 7 NYCRR 253, he should have served such sentence in his cell, instead of in the Special Housing Unit ("SHU").*fn1
Plaintiff, who was subsequently transferred to Elmira, commenced a civil action against McGeever in the U.S. District Court for the Northern District of New York. During discovery in that action, the Office of the New York State Attorney General provided Plaintiff with a transcript of the tier disciplinary hearing over which McGeever presided. Upon receiving the transcript, Plaintiff wrote a number of derogatory comments in the margins, which were directed at McGeever. For example, Plaintiff wrote:
How 'STUPID' can one be. Can you say 'mindless moron' who should not preside over any hearing - period!!!!! I was find [sic] guilty because 'I am Black.'
Repeat after me Mr. McGeever Sir. 'I am a racist and should not be presiding over any hearings concerning inmates of color.' Say that, sir, 100,000 times, that what I will be requesting from the courts in compensation. You have been duly notified. Stay tuned.
Can you say 'mindless moron' and 'racist' - very simple. Here's the proof. See ya in court.
You tried very hard for me to become loud and disorderly, however, you failed.
Now I will be questioning you on the witness stand in federal court. I will be relentless!!!!! (Esgrow Declaration [#16], Ex. A). On or about May 2, 2005, Plaintiff mailed the transcript with his added comments to the Inmate Records office at Cayuga with a note stating, "Please make sure Lt. McGeever and Sup't Corcoran get a copy of these transcripts." (Id.)
Upon receiving the transcript, officials at Cayuga notified officials at Elmira. Specifically, officials at Cayuga faxed four pages of the transcript, containing Plaintiff's handwritten comments, to Elmira. Subsequently, Defendant Gilboy issued Plaintiff a misbehavior report, charging him with "harassment" and "facility correspondence violation." The latter charge accused Plaintiff of falsely designating the transcript and letter as "legal mail." The charges were classified as Tier III violations, which Plaintiff maintains was erroneous, since the charges did not involve serious conduct. (Complaint [#1] at 3) ("There was no assault on staff, serious attack on other inmates, weapons possession or possession of illegal drugs."). Defendant West designated Defendant Esgrow to conduct the hearing.