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Chavis v. Vonhagn

January 29, 2009

GEORGE M. CHAVIS, 91-A-3261, PLAINTIFF,
v.
S. VONHAGN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #42.

Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. ##1 and 9. Plaintiff alleges that while an inmate at the Southport Correctional Facility, his rights pursuant to the First, Eighth, and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is defendants' motion for summary judgment. Dkt. #79. For the following reasons, defendants' motion for summary judgment is granted in its entirety.

BACKGROUND

Plaintiff, proceeding pro se, filed this action on or about February 11, 2002, seeking "dismissal" (expungement) of each "disciplinary ticket" (hereinafter referred to as "Misbehavior Report") addressed in the amended complaint, termination of each defendant's employment with the New York Department of Correctional Services, and compensatory and punitive damages for violations of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution.*fn1 Id. The following claims remain and are presently before this Court on defendants' motion for summary judgment: (1) in or about December 1999, defendants Brandt and vonHagn denied plaintiff emergency medical care and defendant Brandt denied plaintiff medication in or about January 2001; (2) defendants Brandt and vonHagn retaliated against plaintiff because plaintiff had filed grievances against defendants Brandt and vonHagn; (3) defendants Donahue, Gilmore, Irizarry, Quinn, Ryan, Selsky, Sheahan and Wilcox violated plaintiff's due process rights under the Fourteenth Amendment in connection with disciplinary hearings and appeals handled by each of the defendants; (4) defendant Gardner interfered with plaintiff's legal mail and denied plaintiff permission to take a religious correspondence course in violation of the First Amendment; and (5) defendants Corcoran and Weingartner violated plaintiff's First Amendment right of access to the New York Court of Claims.

A. Deliberate Indifference Claim

At all times relevant to the allegations in the amended complaint, defendants Sabrina vonHagn, R.N. and Robert Brandt, R.N. were employed by the New York State Department of Correctional Services ("DOCS") at the Southport Correctional Facility ("Southport"). Dkt. #82, ¶ 1; Dkt. #83, ¶ 1. Plaintiff's deliberate indifference claim against defendant vonHagn states, in part:

On the date [sic] of 12-16-99 to 12-22-99, S. VonHagan [sic], inside of this Southport Prison, while acting under State color [sic], in her individual and official*fn2 capacities, had [sic] knowingly, intentionally, and wilfully denied me 'emergency' medical care for a serious - extremely painful ear infection resulting in my total loss of hearing ability in my ear for a time period of two weeks.

Dkt. #9, p.5. Similarly, plaintiff's deliberate indifference claim against defendant Brandt states, in part:

Additionally, on the date [sic] of 12-16-99 to 12-22-99, this same defendant [Brandt], who is the medical staff co-worker and morning partner of defendant S. VonHagan [sic] (para #1), had done [sic] SHU-AM cell visits on these dates above and knowingly, wilfully, and intentionally 'aided' in the denial of my receiving [sic] 'emergency' medical care for my ear infection resulting in extreme pain and loss in hearing ability for a two week time period.

Id. at p.5-B (emphasis in original). Plaintiff also alleges (as part of his retaliation claim) that defendant Brandt "violated my right to proper medication" in January 2001. Dkt. #9, p.5-A.

In or about December 2004, defendant vonHagn had been a licensed registered nurse for approximately 28 years and had been employed as a registered nurse at Southport since 1994. Dkt. #83, ¶ 1. Also in or about December 2004, Defendant Brandt had been a licensed registered nurse for approximately 25 years and had been employed as a registered nurse at Southport since 1992. Dkt. #82, ¶ 1. At all times relevant to the claims alleged in the amended complaint, John Alves, M.D. was the Facility Health Services Director of the Medical Services Unit at Southport and held that position since 1995. Dkt. #81, ¶ 1. As of December 2004, Dr. Alves had been licensed to practice medicine for approximately 25 years. Id.

1. December 1999

Plaintiff was transferred to Southport on or about March 24, 1999. Dkt. #81, ¶ 6. During December 1999, plaintiff's ambulatory health records reveal that he had eighteen encounters with medical staff. Dkt. #81, ¶ 7. Indeed, prior to December 16, 1999, plaintiff was seen by medical staff on the following nine occasions, December 2 (Brandt), December 3 (vonHagn), December 4 (vonHagn), December 7 (vonHagn -twice), December 10 (vonHagn), December 13 (Brandt), and December 14 (Brandt and Hearn). Dkt. #81, ¶¶ 7-11; Dkt. #82, ¶ 9; Dkt. #83, ¶¶ 8-9. On December 16, 1999, plaintiff was seen by defendant Brandt during morning sick call. Dkt. #81, ¶ 12; Dkt. #82, ¶ 10. During this sick call, plaintiff requested an ear check and stated that he could not hear. Id. On or about December 16, 1999, defendant Brandt made the following notations in plaintiff's medical records, "ear % some wax noted drum visible canal mildly irritated from inmate using pen cap paper [sic] for cleaning ear." Id.; Dkt. #70, p.0843. Defendant Brandt advised plaintiff of his findings and plaintiff demanded ear drops. Id. Defendant Brandt further advised plaintiff that ear drops were not indicated and defendant Brandt noted that plaintiff was "very verbal, screaming, banging on cell bars." Id. Defendant Brandt again saw plaintiff on December 17, 1999, wherein plaintiff again demanded ear drops and complained of a headache. Id. Defendant Brandt again advised plaintiff against cleaning his ears with foreign objects and provided plaintiff with Advil. Id.

Plaintiff was seen by defendant vonHagn on December 18, 1999, during morning sick call. Dkt. #70, p.0843; Dkt. #81, ¶ 13; Dkt. #83, ¶ 10. At that time, plaintiff demanded a second ear check and stated that he could not hear out of both ears. Id. Defendant vonHagn advised plaintiff that she would schedule an ear examination with Dr. Alves, if possible, and noted in plaintiff's medical records for plaintiff to follow up with the block RN. Id. Defendant vonHagn further noted that, despite complaints that he could not hear, plaintiff heard her statements. Id. Plaintiff began demanding an ear examination immediately. Id. Defendant vonHagn also saw plaintiff during morning sick call on December 19 and 20, 1999. Dkt. #70, p.0842; Dkt. #81, ¶ 14; Dkt. #83, ¶ 11. On December 19, 1999, plaintiff requested Advil, however, defendant vonHagn noted that plaintiff had received Advil on December 17, 1999 and it could not be refilled until December 20, 1999. Id. Notwithstanding the foregoing, defendant vonHagn provided plaintiff with Advil and as reflected in plaintiff's medical records, advised plaintiff that he was on the MD list for an ear examination. Id.

On December 20, 1999, plaintiff continued to complain of ear blockage and an infection. Dkt. #70, p.0842; Dkt. #81, ¶ 15; Dkt. #83, ¶ 12. In plaintiff's medical records, defendant vonHagn noted that plaintiff's ear examination was rescheduled, and that an ear examination was conducted in the office. Id. Defendant vonHagn also made the following notes in plaintiff's medical records: "ear % in office left ear cereum [sic] impaction seen, right ear some impaction seen, no visualization of tm (tampanic*fn3 [sic] membrane) seen in either ear." Id. According to both Dr. Alves and defendant vonHagn, "visualization" is a sign of an ear infection and as noted, defendant vonHagn did not observe any visualization. Dkt. #81, ¶ 15; Dkt. #83, ¶ 12. Defendant vonHagn further noted that she provided plaintiff with debrox (ear drops) daily for seven days and ear wash and noted to schedule a follow up. Dkt. #70, p.0842; Dkt. #81, ¶ 15; Dkt. #83, ¶ 12.

It was not until December 23, 1999, that plaintiff again requested morning sick call. Dkt. #70, p.0842; Dkt. #81, ¶ 16; Dkt. #82, ¶ 11. Plaintiff was seen by defendant Brandt and requested over-the-counter medication for general use and defendant Brandt provided him with skin cream, lip balm and Sudafed. Dkt. #70, p.0842; Dkt. #81, ¶ 16; Dkt. #82, ¶ 11. Notably, plaintiff made no complaint of ear pain on December 23, 1999. Id. Plaintiff next requested a morning sick call on December 27, 1999, at which time he was seen by defendant Brandt. Dkt. #70, p.0841; Dkt. #81, ¶ 17; Dkt. #82, ¶ 12. Defendant Brandt noted in plaintiff's medical records that plaintiff wrote the following on his sick call request, "c/o [complains of] ears and ear drops." Id. Defendant Brandt further noted that he stopped at plaintiff's cell to do an ear check and plaintiff refused an ear examination, was extremely verbal, nasty and confrontational and stated, "get the fuck away from me white boy you fucking piece of racist homo shit. Leave me alone and stick those [ear drops] up your white homo asshole." Id. Thereafter, defendant Brandt terminated plaintiff's sick call, provided ear drops to plaintiff and made a note in plaintiff's medical records to follow up by afternoon sick call, if plaintiff was more compliant and less confrontational. Id.

Two days later on December 29, 1999, plaintiff again requested morning sick call and plaintiff was seen by defendant Brandt. Dkt. #70, p.0841; Dkt. #81, ¶ 18; Dkt. #82, ¶ 13. Plaintiff complained of his ears and requested over-the-counter medications. Id. Defendant Brandt attempted to check plaintiff's ears but plaintiff refused, stating, "fuck you white homoboy." Id. Defendant Brandt made the following additional notations in plaintiff's medical records, "balm, AF, MD callout." Id. Nurse vonHagn next saw plaintiff on December 31, 1999, during morning sick call. Dkt. #70, p.0841; Dkt. #81, ¶ 19; Dkt. #83, ¶ 13. At that time, plaintiff requested Eucerin cream and when asked to show defendant vonHagn his dry skin, plaintiff refused and became verbally abusive. Id. In addition, plaintiff requested and was provided with Sudafed. Id.

On January 4, 2000, plaintiff refused to see Dr. Alves during the MD callout and Dr. Alves noted plaintiff's refusal in plaintiff's medical records. Dkt. #70, p.0840; Dkt. #81, ¶ 20. Defendant Brandt also noted plaintiff's refusal to see Dr. Alves in plaintiff's medical records and further noted that when he tried to speak to plaintiff, plaintiff stated "F you your Dr to check my ear assholes." Dkt. #70, p.0840; Dkt. #81, ¶ 21; Dkt. #82, ¶ 15.

2. January and February 2000*fn4

Plaintiff was next seen at morning sick call on January 8, 2000 by Nurse Whedon who noted that plaintiff requested refills of certain medications, however, Nurse Whedon noted that plaintiff did not have any symptoms of a cold, cough or congestion. Dkt. #70, p.0840; Dkt. #81, ¶ 22. Plaintiff made no complaint on January 8, 2000 about his ears. Id. On January 12, 2000, plaintiff was seen during morning sick call by defendant Brandt wherein plaintiff complained of a cold and a sore throat. Dkt. #70, p.0839; Dkt. #81, ¶ 23; Dkt. #82, ¶ 16. Plaintiff requested hydrocortisone cream and Eucerin, but plaintiff refused to show a need for the cream and became verbally abusive. Id. Plaintiff did not make any complaints about his ears on January 12, 2000. Id.

Defendant vonHagn next saw plaintiff on January 14, 2000 during morning sick call, wherein plaintiff signed for his eyeglasses and became verbally abusive to defendant vonHagn.*fn5 Dkt. #70, p.0839; Dkt. #81, ¶ 24; Dkt. #83, ¶ 15. Plaintiff did not make any complaints about his ears on January 14, 2000. Id. On January 18, 2000, plaintiff requested morning sick call and was seen by defendant Brandt. Dkt. #70, p.0839; Dkt. #81, ¶ 25; Dkt. #82, ¶ 17. At that time, plaintiff refused his tuberculosis test and became verbally abusive; plaintiff did not, however, complain about his ears. Id. According to plaintiff's medical records, plaintiff requested morning sick call on January 24, 25, and 29, 2000 and February 6, 2000. Dkt. #70, pp.0838-0837. Plaintiff was not seen by either defendant Brandt or defendant vonHagn on the three remaining dates in January 2000 or on February 6, 2000 and according to plaintiff's medical records, plaintiff did not complain about his ears during any of those visits. Id.; Dkt. #81, ¶ 26. Thereafter, plaintiff was transferred from Southport to Coxsackie Correctional Facility ("Coxsackie") on or about February 7, 2000. Dkt. #81, ¶ 27. Plaintiff remained at Coxsackie until in or about May 2000 at which time he was returned to Southport. Id.

3. May - December 2000

For the period May 2000 through December 2000, plaintiff had thirty-eight encounters with medical staff.*fn6 Dkt. #70, pp.0754-0763 and pp.0815-0817; Dkt. #81, ¶¶ 28-49. Plaintiff was seen by defendant Brandt on May 25, 2000, at which time plaintiff demanded Eucerin cream. Dkt. #70, p.0817; Dkt. #81, ¶ 28. Because no need for the cream was demonstrated, defendant Brandt denied plaintiff's request. Id. Plaintiff was seen by defendant vonHagn on July 6, 2000, at which time plaintiff requested a plastic basin and Epsom salts to soak his feet because his toes were bothering him. Dkt. #70, p.0763; Dkt. #81, ¶ 30. Plaintiff did not show defendant vonHagn his toe nails and defendant vonHagn noted in plaintiff's medical records that there should be follow up with the block nurse to cut plaintiff's toe nails. Id. When plaintiff was seen by defendant vonHagn on September 29, 2000, he again requested Epsom salts, Sudafed and athlete's foot cream. Dkt. #70, p.0760; Dkt. #81, ¶ 32. Defendant vonHagn noted that because there was no order from the doctor for a foot soak, she only provided plaintiff with Sudafed and athlete's foot cream. Id. On October 10, 2000, plaintiff was seen by defendant Brandt wherein plaintiff requested over-the-counter skin cream and he was provided with athlete's foot cream and Eucerin. Dkt. #70, p.0760; Dkt. #81, ¶ 34. Plaintiff was also seen by defendant Brandt on October 23, 2000, wherein plaintiff requested a laxative; defendant Brandt provided plaintiff with Fleet enemas. Dkt. #70, p.0759; Dkt. #81, ¶ 36. During November 2000, plaintiff was seen by both defendant vonHagn and defendant Brandt. Dkt. #70, p.0758; Dkt. #81, ¶ 38-39. On November 3, 2000, plaintiff was seen by defendant vonHagn and requested Epsom salt, Sudafed and Eucerin cream. Id. Defendant vonHagn provided plaintiff with Sudafed. Id. Thereafter, plaintiff was seen by defendant Brandt on November 29, 2000 and requested Eucerin cream. Id. Defendant Brandt noted that plaintiff was provided with Eucerin cream on October 10, 2000 and was not due for a refill until January 10, 2001. Id. Defendant Brandt provided plaintiff with balm and Sudafed. Id.

Plaintiff was seen by defendant vonHagn on December 13, 20, 24 and 26, 2000. Dkt. #70, pp.0755-0757; Dkt. #81, ¶¶ 42-45. On December 13, 2000, plaintiff again requested Eucerin and athlete's foot cream. Dkt. #70, p.0757; Dkt. #81, ¶ 42. Plaintiff was provided with athlete's foot cream and balm and it was noted again in plaintiff's medical records that plaintiff was not due for more Eucerin until January 10, 2001. Id. On December 20, 2000, plaintiff requested and was provided with Sudafed. Dkt. #70, p.0756; Dkt. #81, ¶ 43. Plaintiff requested Advil, a laxative and to have a toe nail removed on December 24, 2000 when he was seen by defendant vonHagn. Dkt. #71, p.0756; Dkt. #81, ¶ 44. Defendant vonHagn provided plaintiff with Advil and Fleet enemas. Id. Again on December 26, 2000, plaintiff requested Advil and laxative and defendant vonHagn provided both to plaintiff. Dkt. #70, p.0755; Dkt. #81, ¶ 45. Defendant Brandt saw plaintiff on December 27 and 28, 2000. Dkt. #70, p.0755; Dkt. #81, ¶¶ 46-47. On December 27, 2000, plaintiff requested and was provided with Advil. Id. On December 28, 2000, plaintiff complained of a rash and was provided with hydrocortisone cream. Id. Plaintiff requested sick call on December 29, 2000 and when defendant vonHagn went to plaintiff's cell, plaintiff did not respond to defendant vonHagn's inquiries. Dkt. #70, p.0754; Dkt. #81, ¶ 48. Finally, on December 30, 2000, plaintiff was seen by defendant Brandt wherein plaintiff requested and was provided with laxative and Advil. Dkt. #70, p.0754; Dkt. #81, ¶ 49.

4. January 2001

Plaintiff had twelve encounters with medical staff during January 2001. Dkt. #70, pp.0750-0754; Dkt. #81, ¶ 50. Plaintiff was seen by defendant Brandt on January 2, 9, 10, 22, 23 and 24, 2001. Dkt. #70, pp.0752-0754; Dkt. #81, ¶¶ 51-56. On January 2, 2001, plaintiff complained of his sinuses and requested band-aids for his toes. Dkt. #70, p.0754; Dkt. #81, ¶ 51. Defendant Brandt provided plaintiff with Sudafed and band-aids. Id. On January 9, 2001, plaintiff complained of a sore throat and of his toes; defendant Brandt provided plaintiff with throat lozenges and band-aids. Dkt. #70, p.0753; Dkt. #81, ¶ 52. Plaintiff complained of a headache and a sore throat on January 10, 2000 and defendant Brandt provided him with Advil and throat lozenges. Dkt. #70, p.0753; Dkt. #81, ¶ 53.

On January 14, 2001, plaintiff was seen by Nurse Whedon during morning sick call and requested Sudafed for sinus congestion, hydrocortisone cream and "mom." Dkt. #70, p.0753. On January 22, 2001, plaintiff complained of a rash and defendant Brandt provided him with athlete's foot cream and hydrocortisone cream. Dkt. #70, p.0752; Dkt. #81, ¶ 54. Plaintiff was seen by defendant Brandt on January 23, 2001 and defendant Brandt noted in plaintiff's medical records that plaintiff threw hydrocortisone cream at defendant Brandt and stated, "next time I'll spit shit on you." Dkt. #70, p.0752; Dkt. #81, ¶ 55. The sick call was terminated and defendant Brandt issued a Misbehavior Report.*fn7 Id. The following day, on January 24, 2001, plaintiff was again seen by defendant Brandt and plaintiff requested over-the-counter medication for general use. Dkt. #70, p.0752; Dkt. #81, ¶ 56. Defendant Brandt provided plaintiff with throat lozenges and Motrin. Id. On January 26, 2001, plaintiff was seen by defendant vonHagn and plaintiff requested hydrocortisone cream and Sudafed. Dkt. #70, p.0751; Dkt. #81, ¶ 57. Defendant vonHagn noted in plaintiff's medical records, "no ointment while on level 1" and further noted that plaintiff had received hydrocortisone cream on January 23, 2001.*fn8 Id. Accordingly, defendant vonHagn provided plaintiff with Sudafed. Id.

Plaintiff was again seen by Nurse Whedon on January 27 and 28, 2001. Dkt. #71, p.0751; Dkt. #81, ¶¶ 59-60. On January 27, 2001, plaintiff requested hydrocortisone ointment and laxative. Id. Nurse Whedon noted in plaintiff's medical records "no ointment on level 1" and provided plaintiff with a laxative. Id. On January 28, 2001, plaintiff requested analgesic balm for sore muscles and hydrocortisone ointment. Id. Nurse Whedon provided plaintiff with analgesic balm. Id. Plaintiff requested sick call on January 29 and 31, 2001 and defendant Brandt attempted to see plaintiff on both days, however on January 29, 2001, plaintiff refused to get out of bed and refused to answer defendant Brandt. Id. Similarly, on January 31, 2001, plaintiff refused to acknowledge defendant Brandt. Id.

5. February 2001

During February 2001, plaintiff had fifteen encounters with medical staff. Dkt. #70, pp.0745-0750; Dkt. #81, ¶ 63. Plaintiff was seen by defendant vonHagn on February 1, 4, 8, 9, and 13, 2001. Dkt. #70, pp.0748-0750; Dkt. #81, ¶¶ 64 and 66-68. On February 1, 2001, plaintiff requested hydrocortisone ointment on the call out slip, however, plaintiff refused to answer defendant vonHagn and refused to get out of bed. Dkt. #70, p.0750; Dkt. #81, ¶ 64. On February 3, 2001, plaintiff was seen by Nurse Whedon and requested hydrocortisone ointment and throat lozenges, plaintiff was provided with only throat lozenges. Dkt. #70, p.0749; Dkt. #81, ¶ 65. Plaintiff requested hydrocortisone ointment for his scalp from defendant vonHagn on February 4, 2001. Dkt. #70, p.0749; Dkt. #81, ¶ 66. Plaintiff's medical records reveal that plaintiff refused to answer defendant vonHagn and refused to show any medical need (by examination) for the ointment. Id. Plaintiff was again seen by defendant vonHagn on February 8, 2001 and plaintiff refused to answer when he was called for sick call. Dkt. #70, p.0749; Dkt. #80, ¶ 67. According to the sick call request, plaintiff requested Eucerin, Sudafed and hydrocortisone cream. Id. Defendant vonHagn provided plaintiff with Sudafed and hydrocortisone cream. Id. According to plaintiff's medical records plaintiff was not eligible to receive additional Eucerin until March 13, 2001. Id. Finally, plaintiff was seen by defendant vonHagn on February 9, 2001 and requested hydrocortisone ointment and Eucerin. Dkt. #70, p.0748; Dkt. #81, ¶ 68. Defendant vonHagn once again noted that plaintiff was not due for Eucerin until March 13, 2001 and that plaintiff failed to respond to her requests to demonstrate a medical need for hydrocortisone ointment. Id.

On February 11, 2001, plaintiff was seen by Nurse Whedon who noted that plaintiff submitted a sick call slip threatening to sue Nurse Whedon if he wasn't provided with hydrocortisone ointment. Dkt. #70, p.0748; Dkt. #81, ¶ 69. Nurse Whedon noted in plaintiff's medical records that there was no medical need shown for hydrocortisone ointment and that plaintiff would not acknowledge the sick call and remained in bed. Id. Plaintiff was seen by defendant vonHagn on February 13, 2001 and he requested balm, hydrocortisone ointment and Motrin. Dkt. #70, p.0748; Dkt. #81, ¶ 70. Defendant vonHagn noted in plaintiff's medical records that no tubes or envelopes were returned.*fn9 Plaintiff requested morning sick call on February 14, 2001, however, defendant Brandt noted in plaintiff's medical records that plaintiff refused to get up for sick call. Dkt. #70, p.0747; Dkt. #81, ¶ 71.

Plaintiff was seen on February 18, 2001 by Nurse Brink at which time he requested and was provided with athlete's foot cream and analgesic balm for sore muscles. Dkt. #70, p.0747; Dkt. #81, ¶ 72. Plaintiff was seen by Nurse Whedon on February 19, 2001 and complained of chronic constipation and requested a high fiber diet; Nurse Whedon recommended a fiber laxative, plaintiff refused stating that they don't work. Dkt. #70, p.0747; Dkt. #81, ¶ 73. Nurse Whedon also noted in plaintiff's medical records that plaintiff continues to request hydrocortisone ointment and plaintiff showed Nurse Whedon scaly patches on his scalp. Id. On February 22, 2001, plaintiff was seen by Nurse DeMeritt and requested minor surgery for his right toenail and noted that plaintiff had a left toenail removed in December 2000. Dkt. #70, p.0746; Dkt. #81, ¶ 74. Nurse DeMeritt submitted a request for right toenail surgery. Id.

Plaintiff was seen by Nurse Whedon on February 24, 2001, wherein plaintiff requested hydrocortisone ointment, Sudafed for congestion and a natural laxative. Dkt. #70, p.0746; Dkt. #81, ¶ 75. Nurse Whedon noted in plaintiff's medical records that his request for hydrocortisone ointment was denied, plaintiff refused a fiber laxative and plaintiff was provided with Sudafed. Id. Plaintiff was seen again by Nurse DeMeritt on February 26 and 28, 2001. Dkt. #70, p.0745; Dkt. #81, ¶¶ 76-77. On February 26, 2001, plaintiff requested foot cream and hydrocortisone cream and Nurse DeMeritt noted that plaintiff returned the empty tubes and also noted "tinea pedis/uticaria" (athlete's foot) to be treated with over-the-counter medication. Id. Plaintiff was provided with mycelex and hydrocortisone cream. Id. Plaintiff requested a laxative "to clean his system out" on February 28, 2001, however, Nurse DeMeritt did not note any distress and recommended treatment with over-the-counter medication and fluids and provided plaintiff with Fleet enemas. Id.

Dr. Alves, as the Facility Health Services Director of the Medical Services Unit at Southport, reviewed plaintiff's medical records and based upon his review, Dr. Alves concluded that defendants Brandt and vonHagn were not deliberately indifferent to plaintiff's medical complaints about ear pain in December 1999. Dkt. #81, ¶ 78. Moreover, Dr. Alves concluded that neither defendant Brandt nor defendant vonHagn refused to treat plaintiff's complaints of ear pain. Id. Indeed, Dr. Alves further concluded that defendants Brandt and vonHagn treated plaintiff's complaints of ear pain, provided him with debrox, scheduled and performed ear examinations and referred plaintiff to the MD callout as necessary. Id. Although plaintiff at times refused the debrox, Dr. Alves found that plaintiff did not require any treatment other than debrox and that debrox was the appropriate medication to treat his complaints of ear pain. Id. at ¶ 80. Dr. Alves further opined that plaintiff did not suffer any hearing loss in December 1999 or at anytime related to his treatment of ear pain during December 1999. Id. at ¶ 79. Notably, Dr. Alves stated that plaintiff did not complain of ear pain at any time after January 2000. Id. at ¶ 84. Finally, Dr. Alves determined that nothing in plaintiff's medical records indicated that either defendant vonHagn or defendant Brandt, either prior to or after issuing a Misbehavior Report regarding plaintiff, refused or failed to provide plaintiff with medical care for the period December 1999 through February 2001. Id. at ¶¶ 82-83.

B. Retaliation Claim

The amended complaint alleges that on or about January 25, 2000 and on or about December 13, 2000, defendant vonHagn issued Misbehavior Reports against plaintiff in retaliation for his complaints about her. Dkt. #9, pp.5 to 5-A. Similarly, plaintiff further alleges in the amended complaint that on or about January 23, 2001, defendant Brandt issued a Misbehavior Report against plaintiff in retaliation for plaintiff's complaints about him. Id. at pp.5-A to 5-B. With respect to the hearings held on the allegedly retaliatory Misbehavior Reports issued by defendants vonHagn and Brandt, plaintiff separately alleges that his due process rights were violated by the hearing officers who presided over the hearings. Dkt. #9. Those claims of due process violations will be separately addressed below. See generally pp.30-65 infra. Specifically, as against defendant vonHagn, plaintiff alleges:

Additionally, on the date of 1-25-00, this defendant [vonHagn] 'retaliated' against me with a ticket after my prior inmate grievances against her on 'numerous' occasions for denying me proper medical care for many illness'es [sic] I suffered with/from. Furthermore, on the date of 12-13-00 (hearing date of 12-29-00), this same defendant [vonHagn] again retaliated upon [sic] me with a ticket after my inmate grievances against her.

Dkt. #9, pp. 5-5A (emphasis in original). As against defendant Brandt, the amended complaint states:

This defendant [Brandt] on the date on 1-23-01, inside of this Southport Prison, while acting under state color, in his individual and official*fn10 capacities, had knowingly, wilfully, and intentionally retaliated against me with a ticket after my inmate grievance against him on date of 1-22-01, after his violation of my right to proper medication.

Dkt. #9, p. 5A.

1. "January 25, 2000" Misbehavior Report - Defendant vonHagn

Defendant vonHagn did not file a Misbehavior Report against plaintiff on January 25, 2000. Dkt. #83, ¶ 19. Defendant vonHagn did, however, issue a Misbehavior Report against plaintiff on January 14, 2000 (Dkt. #44, p.0029) and the hearing with respect to the January 14, 2000 Misbehavior Report was held on January 25, 2000 (Dkt. #44, p.0026).*fn11 The January 14, 2000 Misbehavior Report charging violations of rules 107.10 (verbal interference) and 107.11 (verbal harassment) states:

At approx 7:35/am the writer of this report [defendant vonHagn] stopped at B-10-20 cell to deliver inmate Chavis, G 91A3261 glasses [sic] Before the writer of this report could say anything inmate Chavis G told the writer to move on. The writer of this report was able to convince inmate Chavis to sign for glasses so they could be delivered. He was asked not to tear copy away [sic] both needed to be returned to eye glass clinic coord. Patient asked if he wished a copy he could write the nurse adm. Inmate Chavis 91A3261 B-10-20 then said, "you are a stupid asshole." "You want 25ó to give me a fucking copy of my glasses receipt." "I'll take your fucking money in court. I'll tear you apart in court" [sic] "I'm not as fucking stupid as you are." "You stupid fucking asshole." "Get the fuck away from my cell you asshole." This continued abuse made continuing [sic] sick call on B-10 gallery difficult to hear B-10-17 cell for sick call.

Dkt. #44, p.0029. The Tier 2*fn12 disciplinary hearing was held on January 25, 2000 and conducted by defendant Lieutenant ("Lt.") Ryan.*fn13 During the disciplinary hearing, plaintiff advised Lt. Ryan that he believed that the January 14, 2000 Misbehavior Report was written by defendant vonHagn in retaliation for complaints plaintiff had previously filed against defendant vonHagn. Dkt. #44, pp.0032-0038; Dkt. #83, ¶ 23. Specifically, plaintiff stated, "I'm objecting to the ticket and I'm objecting to the hearing. That ticket is retaliatory and uh let the record also reflect that uh this here uh write up [sic], who happens to be a medical female staff aid, uh has been violating my natural rights since I've entered this here facility." Dkt. #44, pp.0032-0038. In the amended complaint, plaintiff alleges that the January 14, 2000 Misbehavior Report issued by defendant vonHagn was in retaliation for the prior grievances filed by plaintiff against defendant vonHagn. Dkt. #9, pp.5-5A. On or about December 30, 1999, plaintiff filed a grievance against unspecified persons, Grievance No. SPT-17707-99. Dkt. #65, pp.0433-0444; Dkt. #83, ¶ 36. Grievance No. SPT-17707-99 is discussed in greater detail below. See pp.21-23 infra. Correction Officer R. Martino testified at the hearing that he was present on January 14, 2000 when defendant vonHagn attempted to give plaintiff his eyeglasses and when plaintiff was verbally abusive toward defendant vonHagn. Dkt. #44, pp.0032-0038. Notwithstanding plaintiff's claim of retaliation and relying upon the testimony of Officer Martino, Lt. Ryan found plaintiff guilty of verbal interference and verbal harassment. Id.

a. Grievance No. SPT-17707-99

In Grievance No. SPT-17707-99, plaintiff asserts that:

(1) On this date above [Dec. 27, 1999] (after submitting a sick call slip last night (12-26-99), the same old white ill-minded white fool who denied me emergency ear examination and ear drops for infection (12-14-99) had [sic] done nothing for my continual inability to hear when he visited my cell, and after I requested outside expert medical attention, he put (wrote) down "refusal" on his sick call log instead of provid [sic] me with proper medical help outside of this place!! (2) On that date of 12-25-99, the officer (KKK racist), in the control room had deliberately turned off the T.V. hole after that 10-g (illegible) had asked for NBA sports station!

Dkt. #65, p.0438. In support of defendants' motion for summary judgment, defendant vonHagn, in her affidavit, summarized the assertions in Grievance No. SPT-17707-99 as follows,

In Grievance No. SPT-17707-99, plaintiff asserted that on or about December 26, 1999, Nurse Brandt denied his request for outside medical treatment for his complaints of ear pain; that Nurse Brandt indicated that plaintiff refused treatment; that on December 14, 1999, Nurse Brandt denied him an emergency ear examination and ear drops; and that from December 14, 1999 to December 21, 1999, Nurse Brandt and I [defendant vonHagn] denied him medical treatment for an ear infection.

Dkt. #83, ¶ 37.*fn14

On December 13 and 14, 1999, plaintiff was seen by defendant Brandt during morning sick call. Dkt. #70, p.0844; Dkt. #80, ¶ 12. Defendant Brandt noted in plaintiff's medical records that plaintiff requested a refill of hydrocortisone cream for a rash and lip balm and further that plaintiff complained about his sinuses and refused a PPD test. Id. Defendant Brandt provided plaintiff with hydrocortisone cream and Sudafed. Id. For a complete discussion of the medical treatment provided to plaintiff by defendants Brandt and vonHagn for the period December 16-31, 1999, please refer to pp.4-8 supra, which is incorporated by reference herein.

In response to Grievance No. SPT-17707-99, Nurse Felker and defendant Brandt advised the Inmate Grievance Review Committee ("IGRC") that defendant Brant delivered ear medication to the plaintiff; that plaintiff began verbally harassing defendant Brandt and refused to accept the medication. Dkt. #65, p.0444. Accordingly, the Superintendent dismissed plaintiff's grievance, finding that the medical staff had stated that medication was delivered to plaintiff for ear pain, however, plaintiff began to verbally harass the nurse [defendant Brandt] and refused the medication. The Central Office Review Committee ("CORC") upheld the Superintendent's determination. Dkt. #65, pp.0433-0434. CORC advised plaintiff to follow the treatment plan outlined by health services staff and noted that there was no medical need for an outside consultant at that time. Id.

Thus, defendant vonHagn submits that she did not file the January 14, 2000 Misbehavior Report in retaliation for Grievance No. SPT-17707-99 filed by plaintiff on or about December 30, 1999, or any other grievance filed by plaintiff. Dkt. #83, ¶ 42. Rather, defendant vonHagn submits she filed the January 14, 2000 Misbehavior Report because of plaintiff's harassing language on that date. Dkt. #83, ¶ 43; see pp.19-21 supra. Moreover, as discussed above, defendant vonHagn contends that notwithstanding plaintiff's claim of retaliation, which Lt. Ryan received, Lt. Ryan found plaintiff guilty of the violations (verbal interference and verbal harassment) based on the testimony of Officer Martino who was present during the January 14, 2000 incident.

2. December 13, 2000 Misbehavior Report - Defendant vonHagn

Plaintiff further alleges in the amended complaint against defendant vonHagn that, "on the date of 12-13-00 (hearing date of 12-29-00), this defendant [vonHagn] again retaliated upon [sic] me with a ticket after my inmate grievances against her." Dkt. #9, pp. 5-5A (emphasis in original).

a. Grievance No. SPT-20137-00

Plaintiff filed a grievance, Grievance No. SPT-20137-00, against both defendant Brandt and defendant vonHagn on or about December 11, 2000 alleging that defendants Brandt and vonHagn failed to provide plaintiff with a refill of skin cream and that defendants Brandt and vonHagn were racist and biased toward him. Dkt. #44, pp.0228-0239; Dkt. #83, ¶¶ 50-51. Specifically, plaintiff alleged in Grievance No. SPT-20137-00 that:

On the prior date of 12-6-00 I submitted a sick call slip, and on the next am morning no [sic] medical staff PA visited my cell (S. VonHagn), to inquire about my illnesses! This continual violation in total disregard by most medical staff of character vindictiveness [sic] and KKK corruption for forcing severe suffering on black SHU prisoner is still being allowed by Michael McGinnis, Dr. Alves, O'Bremski [sic], and you James Meck - and Sgt Decker in yourselves [sic] concealing inmate grievances of theft by officers/racism by medical staff (S. VonHagn [sic] Brandt and Ms. Peter).

Dkt. #44, p.0233.

In response to Grievance No. SPT-20137-00, Nurse Administrator Obremski advised the IGRC that plaintiff's medical records do not indicate that a sick call request was ever submitted by plaintiff on December 6, 2000. Dkt. #83, ¶ 52. Plaintiff's medical records do indicate, however, that on December 13, 2000, plaintiff requested a skin cream refill but plaintiff was not due for a refill until January 1, 2001 and that plaintiff was advised of that fact. Id. Finally, Nurse Administrator Obremski stated that, absent any evidence, plaintiff's allegations of racism and corruption were unfounded. Id.; Dkt. #44, p.0237. The Superintendent denied plaintiff's grievance, and the CORC upheld the Superintendent's determination that the Nurse Administrator indicated that plaintiff received medication refills on the appropriate dates and received proper medical care. Dkt. #44, pp.0228-0229; Dkt. #83, ¶ 53.

After the filing of the aforementioned grievance, defendant vonHagn next saw plaintiff on December 13, 2000, at which time she noted that plaintiff had received a 90 day supply of Eucerin on October 10, 2000 which was not to be refilled until after January 10, 2001. Moreover, on December 13, 2000, defendant vonHagn provided plaintiff with athlete's foot cream and balm. Dkt. #83, ¶ 54. On that same date, defendant vonHagn issued a Misbehavior Report based on plaintiff's threats to her and to the male assists. Dkt. #83, ¶ 29. The December 13, 2000 Misbehavior Report states,

While making rounds on B Block 3 Gallery this nurse [defendant vonHagn] stopped to see Inmate Chavis, G. 91A3261 B-3-19 for sick call. He requested refills. He was asked about old containers. He immediately got an attitude and said, 'He wasn't every other inmate and just get him what he wanted.' As this nurse walked away from his cell, inmate Chavis, G. says [sic] 'I'm going to hit that white bitch in her head with a baseball bat.' C.O. Stamp told inmate Chavis, G 91A3261 that statement was not necessary. Inmate Chavis, G. then said, shut up you fuck ass white mother fucker, I'll kill you too after I kill her. Inmate Chavis, G. continued to threaten this nurse and Correctional Officer until we left gallery area.

Dkt. #44, p.0104; Dkt. #83, ¶ 31.

A Tier 3 disciplinary hearing was held on December 26, 2000 (and continued on December 29, 2000) by Lt. Sheahan in relation to the December 13, 2000 Misbehavior Report.*fn15 Dkt. #44, pp.0160-0199. During the hearing, plaintiff advised Lt. Sheahan that defendant vonHagn wrote the December 13, 2000 Misbehavior Report in retaliation for grievances filed by plaintiff. Dkt. #83, ¶ 32. Lt. Sheahan received plaintiff's evidence of complaints against defendant vonHagn, but nevertheless found plaintiff guilty of making threats against defendant vonHagn and other staff. Id. Indeed, Lt Sheahan found that the evidence submitted by plaintiff of past grievances against defendant vonHagn and other medical staff did not establish that the December 13, 2000 Misbehavior Report was retaliatory. Id. at ¶ 33. Moreover, Lt. Sheahan indicated that the disposition was given to plaintiff to impress upon him that threats to staff will not be tolerated. Dkt. #44, p.0102; Dkt. #83, ¶ 33.

Following the December 13, 2000 Misbehavior Report, and during the balance of December 2000, January and February 2001, defendant vonHagn saw plaintiff a total of ten times, December 20, 24, 26, and 29, 2000, January 26, 2001, February 1, 4, 8, 9, and 13, 2001. Dkt. #81, ¶¶ 43-77. For a complete discussion of the medical treatment provided to plaintiff by defendant vonHagn on the preceding dates, see pp.10-17 supra. At each time after the December 13, 2000 Misbehavior Report, defendant vonHagn continued to provide plaintiff with appropriate care and treatment. Dkt. #81, ¶ 82; Dkt. #83, ¶ 35.

3. January 23, 2001 Misbehavior Report - Defendant Brandt

In the amended complaint, plaintiff alleges that defendant Brandt, in retaliation for the grievances filed against him by plaintiff, issued a retaliatory Misbehavior Report on January 23, 2001. Dkt. #9, p.5-A. During the time period relevant to the allegations in the amended complaint, plaintiff filed three grievances against defendant Brandt, December 30, 1999 (Grievance No. SPT-17707-99), May 24, 2000 (Grievance No. SPT-18746-00) and December 11, 2000 (Grievance No. SPT-20137-00). Plaintiff was seen by defendant Brandt on January 23, 2001 and defendant Brandt noted in plaintiff's medical records that plaintiff threw hydrocortisone cream at defendant Brandt and stated, "next time I'll spit shit on you." Dkt. #70, p.0752; Dkt. #81, ¶ 55. The sick call was terminated and defendant Brandt issued a Misbehavior Report. Id.

The Misbehavior Report charged plaintiff with violating rule 102.10 (threats) and states, "[w]hile conducting sick call rounds this writer [defendant Brandt] stopped at Inmate Chavis 91A3261 cell to deliver medication. He asked what it was I told him hydrocortisone cream. He got up slid it back under the door and stated 'I want ointment and the next time you do this I'll spit on you then throw shit on you.'" Dkt. #44, p.0115. A Tier 2 disciplinary hearing was held on January 29, 2001 and was conduced by Lt. Donahue.*fn16

During plaintiff's Tier 2 disciplinary hearing, plaintiff advised Lt. Donahue that he believed that the January 23, 2001 Misbehavior Report was written by defendant Brandt in retaliation for complaints which plaintiff filed against defendant Brandt and/or the medical staff at Southport. Dkt. #44, pp.0124-0128; Dkt. #82, ¶ 27. Lt. Donahue received plaintiff's testimony and notwithstanding plaintiff's claim of retaliation, found plaintiff guilty of making threatening statements to defendant Brandt. Id.

a. Grievance No. SPT-17707-99

A thorough discussion of Grievance No. SPT-17707-99 is set forth in the preceding section at pp.21-23 and is incorporated by referenced herein.

b. Grievance No. SPT-18746-00

With respect to Grievance No. SPT-18746-00 filed on or about May 24, 2000, plaintiff claimed that on or about May 21, 2000: (1) defendant Brandt refused to provide him with medical care; (2) defendants vonHagn and Brandt were racist; (3) defendant Brandt told other members of the nursing staff not to treat plaintiff; (4) plaintiff had previously grieved defendant Brandt's and defendant vonHagn's failure to treat his ear infection in December 1999; and, (5) defendant Brandt refused to provide plaintiff with skin cream. Dkt. #82, ¶ 36; Dkt. #83, ¶ 46.

With respect to Grievance No. SPT-18746-00, Nurse Felker advised the IGRC that plaintiff had been seen several times for his skin condition, that plaintiff does not have a skin condition that required the skin cream requested and that the medical staff advised that plaintiff is verbally abusive on a regular basis, to wit, whenever he is seen by the medical staff. Dkt. #65, p.0419; Dkt. #83, ¶ 47. On or about May 26, 2000, the IGRC recommended that plaintiff's grievance be dismissed and on or about June 12, 2000, the Superintendent agreed. Dkt. #65, p.0414 and 0417; Dkt. #83; ¶ 48. Upon the recommendation of the Division of Health, on or about August 2, 2000, CORC upheld the Superintendent's determination. Dkt. #65, p.0409; Dkt. #83, ¶ 48. In so finding, CORC noted that plaintiff had been issued skin cream on June 5, 2000 and that his allegations against the staff had not been substantiated. Id.

c. Grievance No. SPT-20137-00

The third grievance filed by plaintiff against defendant Brandt during the time period relevant to the allegations in the amended complaint was filed on or about December 11, 2000 (Grievance No. SPT-20137-00). A thorough discussion of Grievance No. SPT-20137-00 is set forth in the preceding section at pp.24-26 and is incorporated by reference herein.

C. Due Process Claims - Hearing Officers

The amended complaint alleges several causes of action against defendants Donahue, Gilmore, Irizarry, Quinn, Ryan and Sheahan premised on the theory that the defendants denied plaintiff his due process rights during ten disciplinary hearings under the Eighth and Fourteenth Amendments to the United States Constitution.

1. Defendant Lieutenant Donahue

During the relevant time period alleged in the amended complaint, plaintiff claims that defendant Lt. Donahue conducted six Tier 2 disciplinary hearings concerning plaintiff: January 11, 2000 (December 31, 1999 Misbehavior Report); January 25, 2000 (this disciplinary hearing was in fact conducted by defendant Ryan, see pp.59-62 infra.); November 20, 2000 (November 12, 2000 Misbehavior Report); December 21, 2000 (December 12, 2000 Misbehavior Report); January 29, 2001 (January 23, 2001 Misbehavior Report); and, March 7, 2001 (February 29, 2001 Misbehavior Report). Dkt. #9.

As against defendant Donahue, the amended complaint states as follows: This defendant [Donahue], on the dates of 3-7-01, 1-29-01, 12-21-00, 11-29-00, 1-25-00, and 1-21-00, inside of this Southport Prison, while acting under state color [sic], in his individual and official*fn17 capacities, had violated my 'due process' rights in each one of these separate tier hearing [sic] by 'denying' me all witnesses in each hearing stated above. Additionally, my 'requested' need for 'assistance' during and prior to these separate hearings, had been denied by this defendant, and each separate disposition had [sic] sentenced me to 30-days cell confinement (30 x 6 = 180 days cell confinement), after knowingly and intentionally [sic]

I suffered more 'extended' SHU-punative [sic] segregation time (see para #5), for ticket, I never received but [sic] a hearing I attended with my right to due process violated due to deliberate indifference, and racism. Finally, I had appealed each disposition (stated), in bias - partiality, however, each one of my appeals were 'ignored' and these 'retaliatory' dispositions affirmed (by defendant W. Wilcox see para #9).

Dkt. #9, pp.6-D to 6-E (emphasis in original).

Additionally, plaintiff alleges that at the conclusion of the December 21, 2000 Tier 2 disciplinary hearing, defendant Donahue issued a retaliatory Misbehavior Report for conduct that occurred as plaintiff was being transported back to his cell after the hearing. Dkt. #9. Defendant Donahue contends that the December 21, 2000 Misbehavior Report was not issued for retaliatory reasons. Specifically, plaintiff alleges:

Furthermore, on the date of 12-21-00, immediately after conducting a tier hearing against me, after violating my due process rights knowingly and vindictively, this defendant had verbally discriminated against me this date after hearing completion [sic], and proceeded to retaliate against me with another misbehavior ticket on this 12-21-00 date, for alleged verbal threats I had [sic] not been guilty of; as this retaliatory ticket against me, by this defendant had resulted after my contacts in numerous official complaints against this defendant (after his direct orders to SHU escort officers to physically assault me, while I be [sic] in full restraints unable to protect myself and further his referring to me during several separate hearings as a 'piece of shit' and a 'boy') resulting in a nine month Albany investigation by the top DOCS officials and the Inspector Generals [sic] office!. I have valid official exhibits from Albanys [sic] DOCS top officials to prove this claim.

Dkt. #9, pp.6-D to 6-E (emphasis in original)

Defendant Donahue, a Lieutenant at Southport, has held that position since 1998 and has been an employee of DOCS since 1984. Dkt. #84, ¶ 1. From time to time, defendant Donahue's duties include conducting inmate disciplinary hearings as the Superintendent's designee pursuant to 7 N.Y.C.R.R. § 254.1. Id. at ¶ 3.

a. January 11, 2000 Tier 2 Disciplinary Hearing

The January 11, 2000 Tier 2 disciplinary hearing was conducted following the issuance of a Misbehavior Report on December 31, 1999 by Sergeant Kerbein charging plaintiff with violating Rules 107.11 (harassment) and 102.10 (threats). Dkt. #84, ¶ 9. The Misbehavior Report states:

DSS Morse received a letter from you dated 12-29-99 and addressed to Supt. McGinnis or Deputy Superintendent in which you called them/state 'and the vindictiveness of your racist, bias and extremely prejudice/rotton [sic] character!!'. [sic] Another statement you state 'well, DOCS employee of redneck and corrupted character are you satisfied now!". [sic] Your final statement was 'I sincerely hope you're just as strong after you do [sic] receive your New Years [sic] present from me, as I believe it'll be a suitable gift for you and you will receive [sic] it in soon [sic] time arriving [sic].'

Dkt. #44, p.0013; Dkt. #84, ¶ 9. According to defendant Donahue, the regulations (7 N.Y.C.R.R. §§ 251-2.2(2); 251-4.1(a) and (b); 253.4) provide that where, as here, an inmate is charged with a violation warranting a Tier 2 disciplinary hearing, the inmate is not entitled to an employee assistant for purposes of that hearing. Dkt. #84, ¶ 10. Rather, the hearing officer, in his discretion, may offer an inmate the opportunity to select an inmate assistant, where such assistance would enable the inmate to comprehend the case in order to respond to the charges. Id. at ¶ 11.

According to the Tier Assistance Selection Form, plaintiff was served with a copy of the December 31, 1999 Misbehavior Report and on January 2, 2000, plaintiff requested and received a copy of DOCS Directive No. 4932, Chapter V, Standards, Behavior & Allowances (7 N.Y.C.R.R. Part 251C). Dkt. #44, p.0016; Dkt. #84, ¶ 13. The Tier Assistance Selection Form also indicates that no assistance is required for the hearing and further that plaintiff refused to sign the form. Id. At the outset of the hearing, plaintiff objected stating that he had not been served with a copy of the Misbehavior Report. Dkt. #44, pp.0002-0007; Dkt. #84, ¶ 14. After defendant Donahue read the Misbehavior Report, defendant Donahue asked plaintiff to enter his plea to the charges; plaintiff refused, stating, "I told you I never received the ticket. I don't have anymore to say here." Dkt. #44, p.0003. Accordingly, defendant Donahue entered a plea of not guilty on plaintiff's behalf and proceeded with the hearing. Dkt. #44, p.0003; Dkt. #84, ¶ 14.

In response to plaintiff's objection, defendant Donahue indicated that he was going to attempt to locate Officer Comfort who served plaintiff with a copy of the Misbehavior Report. Dkt. #44, p.0003. Plaintiff objected to Officer Comfort's anticipated testimony. Id. Due to Officer Comfort's unavailability, the disciplinary hearing was adjourned and continued on January 21, 2000. Id. Over plaintiff's objections, Officer Comfort did in fact testify that he served plaintiff with a copy of the Misbehavior Report. Id. at p.0005; Dkt. #84, ¶ 16. Thereafter, plaintiff indicated that he did not have any questions for Officer Comfort. Id. Plaintiff further objected to the hearing on the grounds that he was not provided with any assistance. Dkt. #44, p.0005; Dkt. #84, ¶ 17. Defendant Donahue explained to plaintiff that pursuant to the applicable regulations, plaintiff was not entitled to any assistance on a Tier 2 disciplinary hearing. Id. Plaintiff continued to object to the hearing, insisting that he did not receive the Misbehavior Report and further, that defendant Donahue had previously threatened his life and health. Dkt. #44, p.0006; Dkt. #84, ¶ 19. Specifically, plaintiff stated, "Let the record reflect that at, that at uh, uh at a previous time my life and health was threatened by this Lt. Donahue here. After he had flipper [sic] off the cassette he ordered the escort officer to uh escort this piece of shit back to his cell and bounce him on his head." Dkt. #44, p.0006.

Thereafter, defendant Donahue asked whether plaintiff had any evidence to present related to the Misbehavior Report and plaintiff responded, "I don't know what you are talking about." Dkt. #44, p.0006. Stating that plaintiff was being uncooperative, defendant Donahue concluded the hearing to consider his decision. Id. Defendant Donahue based his decision on the Misbehavior Report which he found to be credible and on plaintiff's December 28, 1999 letter (the basis for the December 31, 1999 Misbehavior Report). Dkt. #44, p.0014; Dkt. #84, ¶ 20. As reflected on the Disciplinary Hearing Disposition Rendered form, defendant Donahue relied upon "[t]he written report of Sgt Kerbein which I find to be credible. Also the threatening letter written by inmate Chavis which I have examined. This inmate makes harassing and threatening statements in a letter sent to the Supt or DSS." Dkt. #44, pp.0008-0009; Dkt. #84, ¶ 21. In addition, defendant Donahue noted that the reasons for his disposition were to serve as a deterrent of future misconduct by plaintiff and others and further, defendant Donahue noted that this type of conduct will not be tolerated at Southport. Id. Defendant Donahue imposed a penalty of 30 days keeplock confinement (7/18/00 -8/17/00) which was modified to run from January 21, 2000 through February 20, 2000. Id. Plaintiff did not appeal defendant Donahue's determination. Dkt. #84, ¶ 23; Dkt. #86, Exhibit A.

b. November 29, 2000 Tier 2 Disciplinary Hearing

Defendant Donahue conducted a Tier 2 disciplinary hearing on November 29, 2000 in relation to a Misbehavior Report issued on November 12, 2000. Dkt. #84, ¶ 26. The November 12, 2000 Misbehavior Report charged plaintiff with violating Rule 107.10 (interference with employee) and Rule 102.10 (threats). Dkt. #44, p.0072. The Misbehavior Report prepared by Sergeant ("Sgt.") Cleveland states:

On the above date and time [11/12/00 6:45 a.m.], I received a copy of a letter that was authored by the above inmate (Chavis 91A3261 D-5-21) from Lt. Sheehan [sic]. Upon my review of this letter I identified that it had been sent from inmate Chavis to Dep. Commissioner L. LeClaire on 10/3/00. The content of this letter was harassing in nature and contained insolent and abusive language directed towards Mr. LeClaire and Commissioner Goord. Inmate Chavis also stated in his letter, "you respect me, and I'll respect you, because after release you and whoever else WILL be respecting me". [sic] I interpreted this comment to be an implied threat to Mr. LeClaire. A copy of this letter was placed in the Captains [sic] office contraband file as evidence.

Dkt. #44, p.0072; Dkt. #84, ¶ 27. At the outset of the hearing, plaintiff was advised by defendant Donahue that he had the right to present witnesses on his own behalf and that he should present any oral or documentary evidence he wished to be considered during the hearing. Dkt. #44, p.0064-0068. Plaintiff responded that he understood his rights. Id. With respect to the service of the charges, plaintiff stated that he didn't know if he was served with a copy because he was asleep and when he woke up there was a Misbehavior Report on his gate. Id. Thereafter, defendant Donahue noted that there had been an extension granted to complete the hearing because plaintiff had been out to court and the extension was granted to complete the hearing within twelve days of plaintiff's return from court and plaintiff returned from court on November 27, 2000. Id.

In response to defendant Donahue's inquiry as to how he intended to plead to the charges, plaintiff stated "[a]t this particular time I'm going to object to the hearing." Dkt. #44, p.0066. Plaintiff objected on the following grounds, "[t]he fact that on the date of September 8th I had sent the letter to uh Commissioner Gord [sic] with a complaint against you and uh Lt. Ryan, for your misconduct during the tier hearing process while I been in the facility here." Id. Accordingly, defendant Donahue entered a plea of not guilty to the charges on plaintiff's behalf. Id. Plaintiff also voiced an objection to the entry of a plea of not guilty and requested that the hearing be adjourned and another hearing officer be assigned. Id. at pp.0066-0067. Plaintiff's objections to the hearing and the hearing officer were noted on the record and plaintiff did not offer any evidence or any statement with respect to the Misbehavior Report. Id.

Thereafter, defendant Donahue concluded the hearing and contemplated his decision. The plaintiff chose to return to his cell before defendant Donahue read his decision. Id. Defendant Donahue found plaintiff guilty of charge 107.10 (interference) and guilty of 102.10 (threats). Id. at p.0068. Defendant Donahue imposed a penalty of 30 days keeplock confinement to run from September 5, 2001 to October 5, 2001. Id. In his statement of evidence relied upon, defendant Donahue stated that he relied upon the written report of Sgt. Cleveland and his examination of the letter in evidence and further that he found Sgt. Cleveland's report to be credible. Dkt. #44, p.0070. Defendant Donahue stated that the reasons for his disposition were to serve as a deterrent for future misconduct by the plaintiff and that "threats towards employees of this department will not be tolerated." Id. On or about December 11, 2000, Captain Wilcox affirmed defendant Donahue's determination. Dkt. #86, Exhibit A.

c. December 21, 2000 Tier 2 Disciplinary Hearing

Defendant Donahue conducted a Tier 2 disciplinary hearing involving plaintiff on December 21, 2000. Dkt. #44, pp.0081-0100; Dkt. #84, ¶ 41. The December 21, 2000 disciplinary hearing related to a Misbehavior Report issued on December 12, 2000 by Correction Officer Gary Morse and charged plaintiff with a violation of Rule 102.10 (threats). Dkt. #44, p.0090; Dkt. #84, ¶ 42. The December 12, 2000 Misbehavior Report states:

On the above date [12-12-00], inmate Chavis, George 91A3261 sent a grievance to the Inmate Grievance office. This grievance contained a number of threatening statements. These statements include: 'However, if he attempts to disregard my handicap again, I'll exit my cell and compel him to regard me the next shower time so he had better be prepared next shower. Sgt. Mulvern had been informed of this and P. Jayne needs to seriously beware.'

Chavis goes on to state, 'Emergency ambulance after P. Jayne disregards my handicap again on scheduled shower day. The ambulance will be for him not me'. [sic] 'I have surgical scars on my right wrist, and P. Jayne better realize it or suffer a penalty.' These threats are aimed at C.O. P. Jayne who is a shower officer.

Dkt. #44, pp.0090 and 0092.

At the outset of the hearing, defendant Donahue advised plaintiff that he had the right to have witnesses testify on his behalf, that plaintiff should present any oral or documentary evidence that he wishes to have considered at the hearing and that plaintiff should raise any procedural objections during the hearing. Dkt. #44, pp.0081-0086. Thereafter, plaintiff indicated that he understood his rights and that he had received a copy of the charges. Id. After defendant Donahue read the charges and asked plaintiff how he plead to the charges, plaintiff objected to defendant Donahue serving as the hearing officer on the grounds that there was a pending investigation into defendant Donahue's conduct as it related to plaintiff.*fn18 Id.; Dkt. #44, ¶ 43. Moreover, plaintiff objected stating, "[l]et the record also reflect that uh that's a grievance. And uh Section uh 6 Letter B states that no inmate shall, shall suffer deprivals [sic] because of a grievance." Dkt. #44, p.0083; Dkt. #84, ¶ 45.

Defendant Donahue entered a plea of not guilty on plaintiff's behalf and asked whether plaintiff had any testimony or evidence to present. Dkt. #44, p.0084; Dkt. #84, ¶ 46. Plaintiff indicated that he wished to call Thomas C. Egan, CORC Director and Commissioner "Gordon" [Goord] as witnesses. Dkt. #44, p.0084; Dkt. #84, ¶ 47. On the grounds that neither Director Egan nor Commissioner Goord had any knowledge of the Misbehavior Report or of plaintiff's grievance, defendant Donahue denied plaintiff's request to call them as witnesses during the disciplinary hearing. Dkt. #44, pp.0084-0085; Dkt. #84, ¶ 48. In response to this denial, plaintiff objected stating that defendant Donahue's denial illustrated that he is biased and racist. Dkt. #44, p.0084; Dkt. #84, ¶ 43.

Defendant Donahue noted that plaintiff was returned to his cell because he was being disruptive and for making threats. Dkt. #44, p.0085; Dkt. #84, ¶ 52. Thereafter, defendant Donahue found plaintiff guilty of violating Rule 102.10 (threats) and imposed 30 days keeplock confinement as the penalty to run from October 5, 2001 to November 4, 2001. Dkt. #44, p.0085; Dkt. #84, ¶ 53. According to the transcript of the hearing and the disposition record, in reaching his determination, defendant Donahue relied on the written report of Correction Officer Morse which he found to be credible and his examination of the threatening letter written by plaintiff to the Inmate Grievance Office. Dkt. #44, pp.0085 and 0088; Dkt. #84, ¶ 53. Defendant Donahue stated the following as his reasons for the disposition, "[t]he disposition is given to serve as a deterrent of future misconduct for this inmate as well as others. Threats toward staff will not be tolerated at the facility, including in the form of written grievances." Dkt. #44, p.0088; Dkt. #84, ¶ 53.

d. December 21, 2000 Misbehavior Report

Following the December 21, 2000 disciplinary hearing (see pp.37-40 supra), defendant Donahue issued a Misbehavior Report based on plaintiff's threatening and harassing language as he was being escorted back to his cell after the hearing. Dkt. #84, ¶ 89. As discussed above, plaintiff was returned to his cell prior to hearing defendant Donahue's determination because he was being disruptive and was making threats. Id. at ¶ 90. A Tier 3 disciplinary hearing was held on January 4, 2001 concerning the December 21, 2000 Misbehavior Report and was conducted by defendant Irizarry. Id. at ¶ 91. A complete discussion of plaintiff's ...


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