The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Samuel Davis ("plaintiff"), brings this action pursuant to 42 U.S.C. § 1983 against nine employees of the Mid-Orange Correctional Facility ("Mid-Orange") alleging that they violated his constitutional rights and retaliated against him for filing a grievance and this lawsuit during his incarceration at Mid-Orange. On December 21, 2007, the plaintiff was transferred from Mid-Orange to Woodbourne Correctional Facility ("Woodbourne"), where he alleges that prison officials at Woodbourne also retaliated against him for his litigation against Mid-Orange prison officials. The plaintiff seeks a preliminary injunction to enjoin the defendants and Woodbourne prison officials from continuing to retaliate against him. The plaintiff has now been transferred from Woodbourne to Franklin Correctional Facility ("Franklin"). The defendants have moved to dismiss the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Where, as here, the plaintiff is proceeding pro se, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a motion to dismiss. See Ainbinder v. Potter, 282 F. Supp. 2d 180, 184 (S.D.N.Y. 2003) (citing McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999)). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007); see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
Because both parties have provided the Court with affidavits and exhibits on the issue of exhaustion that go beyond the information provided in the pleadings, the defendants' motion to dismiss is considered to be a motion for summary judgment for the purpose of determining exhaustion. See Collins v. Goord, 438 F. Supp. 2d 399, 412 (S.D.N.Y. 2006). A court should also give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson, 174 F.3d at 280-81. In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See id. at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999). The defendants provided the plaintiff with express notice under Local Rule 12.1 that the motion to dismiss could be treated as a motion for summary judgment and that a failure to respond could result in the dismissal of his claims without a trial. The plaintiff filed a timely response to the defendants' motion, including an affirmation and a statement of alleged undisputed facts.
For the purposes of deciding the motion to dismiss, the following facts alleged in the amended complaint are accepted as true. The plaintiff is an inmate who was incarcerated at Mid-Orange until December 21, 2007, when he was transferred to Woodbourne. On May 5, 2008, the plaintiff was again transferred from Woodbourne to Franklin. The events which form the basis of the plaintiff's amended complaint in this action occurred at the Mid-Orange facility.
In March 2007, over a period of three weeks, the plaintiff made repeated attempts to obtain a statutory law book from the Mid-Orange Law Library which he needed to prepare a complaint, but was told by the Law Library clerk that the book was out. (Am. Compl. ¶ 18-28.) On March 22, 2007, the plaintiff approached Law Library Officer Rhoomes ("Rhoomes") about the book, who told him that it had been checked out by an inmate worker and that he would have to wait up to thirty days for the book to be returned. (Am. Compl. ¶ 24-25.) The plaintiff returned to the library two days later to see if the book was available, but was told that it was still out. (Am. Compl. ¶ 28.) He complained about the missing book to Rhoomes, who replied: "What you want me to do." (Am. Compl. ¶ 28.)
On March 26, the plaintiff filed his first grievance against Rhoomes, Grievance No. 9263, for allegedly denying him meaningful access to Law Library resources in order to prepare and file legal papers. (Am. Compl. Ex. A.) This grievance was informally resolved by Mid-Orange Deputy Superintendent for Programs Robert Jones ("Jones"), who met with the plaintiff to inform him that the access issue had been resolved and that the Law Library would no longer allow law books to be taken out of the Law Library unless they were returned the next morning. (Am. Compl. Exs. A-1, H.) Jones also told the plaintiff that there would be no harassment or retaliation against him by Rhoomes or anyone else for filing a grievance against her.
On March 29, however, when the plaintiff went to the library to retrieve the book, Rhoomes verbally harassed the plaintiff and followed him around the Law Library. (Am. Compl. ¶ 32.) Rhoomes apparently became upset at the plaintiff and summoned Correction Sergeant Degnan ("Degnan"), who appeared and ordered the plaintiff to leave the library. The plaintiff had also brought Rhoomes seventy-one pages of legal papers to be photocopied, which he claims he was not able to review before Degnan ordered him to leave the library. Rhoomes then left the papers on top of her desk, where she left them unattended for more than an hour. (Am. Compl. ¶ 34.) Later that day, the plaintiff wrote to Jones to inform him of Rhoomes's conduct toward him and prepared another grievance against Rhoomes, Grievance No. 9266, alleging that she harassed him and mishandled his legal papers in retaliation for the plaintiff's filing of a grievance against her. (Am. Compl. ¶ 33, Exs. B, C.) On March 30, Rhoomes issued an Inmate Misbehavior Report ("IMR") against the plaintiff for allegedly creating a disturbance during his library visit. (Am. Compl. ¶ 40, Ex. I.) Correction Officer Andino ("Andino"), who had been present in the library during the plaintiff's visit, endorsed the IMR as an employee witness. (Am. Compl. Ex. I.) The IMR was served upon the plaintiff on April 2. (Am. Compl. ¶ 40, Ex. I.)
On March 30, when the plaintiff returned to the Law Library to retrieve his legal papers and photocopies, Rhoomes again verbally harassed him. The plaintiff then took his papers back to his housing unit and discovered that four pages of the papers were missing. (Am. Compl. ¶ 35, 70.) He then filed Grievance No. 9265, dated March 30, against Rhoomes for retaliation and the destruction of his legal papers. (Am. Compl. ¶ 36, Ex. D.) Grievance No. 9265 also states that an "unknown Sergeant," who has been identified as Degnan, ordered the plaintiff to leave the library before he could check his legal papers. (Am. Compl. Ex. D.)
Both Grievance No. 9265 and No. 9266 were denied by Superintendent Diane Van Buren ("Van Buren"), and the plaintiff appealed both denials. (Am. Compl. ¶ 37, 39, Ex. E, G-1.) In his appeal statement in Grievance No. 9266, he included new allegations of Rhoomes having filed a "bogus Misbehavior Report" against the plaintiff on March 30, 2007. (Am. Compl. Ex. E.) (emphasis in original) His appeal statement for Grievance No. 9265 also mentions having met with Jones to show him the missing pages of his legal papers and claims that Van Buren improperly ignored his evidence and credited Rhoomes' testimony. (Am. Compl. Ex. G-1.) Both denials were affirmed on appeal by the Central Office Review Committee ("CORC"). (Am. Compl. ¶ 38-39, Exs. G, H.)
In a disciplinary hearing held before Correction Lieutenant Faliski ("Faliski") on April 11, the plaintiff was found guilty of interference with an employee and refusing a direct order.
(Am. Compl. ¶ 40.) The resulting penalty was the loss of commissary, package and phone privileges, and recreation for fifteen days. (Am. Compl. ¶ 126, Ex. K.) The plaintiff states that he did not appeal that determination because Faliski harassed him and threatened to give him additional write-ups if the plaintiff appealed the decision. (Am. Compl. ¶ 41, 55c.)
In June 2007, the plaintiff filed his first complaint in this action. (Am. Compl. ¶ 42.) The complaint alleged that Rhoomes, Andino, Degnan, and Faliski harassed and retaliated against the plaintiff in violation of the First, Eighth, and Fourteenth Amendments. The complaint also asserted claims against Van Buren in her supervisory capacity. Rhoomes, Andino, Degnan, and Faliski received service of the summons and complaint on October 2, 2007. (Am. Compl. ¶ 45, Exs. Q, R, S, T.) Shortly afterward, on October 5 and 16, the plaintiff received two IMRs which he claims were retaliatory. (Am. Compl. ¶ 45.) The plaintiff also alleges that Faliski improperly added a weapons charge to the October 5 IMR for the plaintiff's possession of rocks and a net bag, which raised the status of his disciplinary proceeding from Tier II to Tier III. (Am. Compl. ¶ 48.) He further alleges that his disciplinary hearing held before Deputy Superintendent for Programs Jacobsen ("Jacobsen") on October 15 and 16 deprived him of a fair hearing because Jacobsen ignored the fact that the weapons charge had been added and because he lacked substantial evidence to support the decision. (Am. Compl. ¶ 49.) The plaintiff had another disciplinary hearing before Correction Captain Niles ("Niles") on October 22, which he similarly charges as having been unfair and based on insufficient evidence. (Am. Compl. ¶ 53-54.)
The plaintiff submitted another grievance on November 23 ("November 23 Grievance") alleging that Faliski and other correction officers had added fabricated weapons charges to his October 5 and 16 IMRs and that his disciplinary hearings on October 16 and 22 had not been fair. (Am. Compl. Ex. Y; Pl.'s Opp. Ex. Q.) The IMR that included the weapons charge was signed by Correction Officer Kornies ("Kornies"). (Am. Compl. Ex. Y.) The plaintiff received a memo dated November 27 informing him that his grievance was untimely. (Am. Compl. Ex. Y-2.) According to the memo, DOCS regulations require all grievances to be submitted within twenty-one calendar days of the alleged occurrence. (Am. Compl. Ex. Y-2.) The regulations further provide that an exception to the time limit may not be granted more than 45 days after the alleged occurrence. (Am. Compl. Ex. Y-2.) Accordingly, the memo informed the plaintiff that he could submit mitigating circumstances to request an exception to the time limit for his grievance based on the October 16 IMR, but that he was time-barred from grieving the October 5 IMR. (Am. Compl. Ex. Y-2.) The plaintiff offered mitigating circumstances in connection with the October 16 IMR, which were denied as insufficient on November 28. (Am. Compl. Ex. Y-7.) On December 1, the plaintiff filed Grievance No. 30323 to contest the decision denying ...