The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
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. #64.
Plaintiff filed this pro se action on or about January 29, 2001 seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Thereafter, plaintiff filed an amended complaint (Dkt. #6) and a second amended complaint (Dkt. #8). By Memorandum and Order filed December 3, 2001, then Senior United States District Judge John T. Elfvin ordered that the complaint "is deemed to consist of the amended complaint and the second amended complaint, taken together" (hereinafter referred to as "complaint"). Dkt. #9. Presently pending before this Court is defendant William Hopkins' (identified by plaintiff as "W.J. Hopin") motion for partial summary judgment. Dkt. #80. As against defendant Hopkins only, plaintiff alleges that while he was incarcerated at the Elmira Correctional Facility ("Elmira"), defendant Hopkins denied him due process in connection with a Tier III disciplinary hearing resulting from a December 20, 2000 incident. As will be discussed in greater detail below, despite being given repeated opportunities to respond to defendant Hopkins' motion for partial summary judgment, plaintiff has failed to file a response to the pending motion. For the following reasons, defendant Hopkins' motion for partial summary judgment is granted.
Plaintiff, proceeding pro se, commenced this action on or about January 29, 2001. Dkt. #1. As originally commenced, the caption for this action was as follows, "Richard Hidalgo, Paulette Carmona*fn1 v. M. Batley Off. Floyd Bennett, Supt., Hopin DSA; C. Shornstiemer, Officer, R. Wanwaring, Officer T. Carpenter, Officer Roy Willette, Sgt. Harvey, in Elmira Correctional Facility and Others." Id. The original complaint alleged that on December 20, 2000, Sergeant Harvey and Officers M. Batley, C. Shornstiemer, R. Manwaring, T. Carpenter and Roy Willette used excessive force against plaintiff Hidalgo when they broke up a fight between inmates. Id. In addition, plaintiff Hidalgo claims that he was denied medical treatment for his injuries, which included back pain, headaches from having his head "stomped on," "busted" lips, swollen leg, and a "torn out" fingernail, despite his repeated requests for treatment over a three-day period. Id. Plaintiff Hidalgo further claims that he was denied access to the courts and that all of the defendants' actions were undertaken in retaliation for his grievances. Id.
March 26, 2001 Decision and Order
By Decision and Order dated March 26, 2001, United States District Judge William M. Skretny dismissed Paulette Carmona as a plaintiff pursuant to 28 U.S.C. §§ 1915 and dismissed certain claims pursuant to 28 U.S.C. § 1915(e)(2)(B), unless plaintiff filed an amended complaint. Dkt. #5. In his Decision and Order, Judge Skretny found that plaintiff had sufficiently alleged an excessive force claim against defendants Harvey, Batley, Shornstiemer, Manwaring, Carpenter, and Willette. Id. at p.4. Judge Skretny found, however, that plaintiff's retaliation claim was too conclusory to survive and that claim was dismissed. Id. at pp.4-5. Judge Skretny further found that plaintiff failed to name any person who was personally responsible for the denial of medical treatment. Id. However, Judge Skretny did permit plaintiff to file an amended complaint, provided that plaintiff "identify the parties he seeks to hold responsible for the denial of medical care,... fully describe the circumstances in which the denial arose, state whether he ever did receive treatment and if so, what kind of treatment." Id. at p.7.
Judge Skretny similarly found that plaintiff's claim relating to the disciplinary hearing was "too sparse to assess and thus subject to dismissal for failing to give notice to the defendant of the basis of the claim." Id. at pp.7-8. As with his denial of medical treatment claim, Judge Skretny provided plaintiff the opportunity to amend this claim. Id. With respect to plaintiff's denial of access to the courts claim, Judge Skretny ordered that "unless plaintiff amends his complaint to show how a non-frivolous legal claim had been frustrated or was impeded by defendant Hopin [Hopkins], the claim must be dismissed." Id. at p.9. Finally, plaintiff's claims of supervisory liability against defendant Bennett and Hopkins were equally insufficient and subject to dismissal unless plaintiff amends the complaint to demonstrate that they were personally involved in specific unconstitutional conduct against plaintiff. Id.
March 2001 "Amended Complaints"
Although it remains unclear from the docket sheet, it would appear as though two documents entitled "Amended Complaint" and filed on March 12 and 19, 2001, were not considered prior to Judge Skretny's March 26, 2001 Decision and Order. On or about March 12 and 19, 2001, plaintiff filed "amended complaints" (Dkt. ## 3 and 4), however, upon closer inspection, the two "amended complaints" are simply the continuation of the original complaint and purport to allege additional claims against additional defendants, including additional retaliation, Eighth Amendment and due process claims. Dkt. ##3 and 4. Specifically, the "amended complaint" filed on March 12, 2001 (Dkt. #4) purports to add Supt. M. McGinnis, Officer Turco, Officer W. McKlevis and Officer J. Baharth as defendants. The "amended complaint" filed on March 19, 2001 (Dkt. #3) purports to add Supt. M. McGinnis, Asst. Dep Supt. Weingartner and Hearing Officer Julie Wilson as defendants. In a Decision and Order filed September 12, 2001, United States District Judge Richard J. Arcara noted, "plaintiff filed two amended complaints (Docket Nos. 3,4) before the Amended Complaint (Docket No. 6) addressed in this action. Dkt. #7. Plaintiff sent a letter to the Court withdrawing those complaints from consideration. This means that plaintiff's next amended complaint will be the Second Amended Complaint." Dkt. #7, p.2, n.2. Based on the foregoing, this Court will not give any further consideration to those documents filed under docket numbers 3 and 4.
Plaintiff filed his first amended complaint on or about April 30, 2001. Dkt. #6. In a Decision and Order filed September 12, 2001, Judge Arcara found that plaintiff's excessive force claims against defendants M. Batley, C. Shornstiemer, R. Manwaring and Roy Willette may proceed as pleaded. Dkt. #7, p.2. With respect to T. Carpenter, identified in the caption of the amended complaint and alleged in the original complaint as having been involved in the excessive force used against plaintiff on December 20, 2000, plaintiff failed to include any allegations against Carpenter in his amended complaint. Accordingly, Judge Arcara dismissed plaintiff's claims against Carpenter without prejudice to plaintiff filing a second amended complaint by November 1, 2001. Id. at pp.2-3.
In addition to the dismissal of plaintiff's claims against the defendants in their official capacities, Judge Arcara dismissed plaintiff's claim against defendant Floyd Bennett, Superintendent, because plaintiff failed to demonstrate defendant Bennett's personal involvement in the alleged constitutional deprivation. Id. at pp.3-4. Judge Arcara further ordered that plaintiff's claims against defendant Hopkins concerning the disciplinary hearing were not sufficiently pleaded. Id. at p.5. As set forth in the Decision and Order, unless plaintiff alleged in a second amended complaint the length of the sentence he received at the hearing and whether he appealed the determination and if so, the result, plaintiff's due process claims against defendant Hopkins would be dismissed with prejudice. Id. Finally, Judge Arcara found that plaintiff's denial of medical care claim was not pleaded with sufficient specificity to proceed. Id. Specifically, Judge Arcara ordered that plaintiff must provide more information about this claim in his second amended complaint or the claims would be dismissed with prejudice. Id. at pp.5-6. Plaintiff was ordered to file his second amended complaint by November 1, 2001 or, as set forth in the Decision and Order, certain of plaintiff's claims would be dismissed with prejudice. Id.
Consistent with Judge Arcara's September 12, 2001 Decision and Order, plaintiff filed a second amended complaint on or about October 15, 2001. Dkt. #8. Because the only defendant presently seeking relief from this Court is defendant William Hopkins, only those allegations in the second amended complaint relating to defendant Hopkins will be discussed herein. In the second amended complaint, plaintiff alleges:
Defendant W.J. Hopin Deputy Supt. of Administration in Elmira Corr. Fac is responsible for holding plaintiff's Tier III hearing proceeding in an impartial and unbiased matter [sic]. Defendant W.J. Hopin denied plaintiff his right to a proper assistant, the right to call witnesses which were vital to plaintiff's defense (case). The witness that was denied is Floyd G. Bennett who plaintiff had written letters requesting mental health before the incident which resulted in plaintiff being sent to Special Housing Unit. Defendant W.J. Hopin denied plaintiff the opportunity to question Dr. Major about plaintiff [sic] state of mind. Defendant W.J. Hopin further demonstrated his partiality when he rendered a predetermination of guilt before plaintiff was allowed to finish with his legal defense [sic] Defendant W.J. Hopin's disciplinary decision was appeal [sic] to Donald Selsky on January 14th 2001 and on March 14th 2001 the one year loss of all privileges, one year of Special Housing Unit was modified to 9 months. Defendant W.J. Hopin is suit [sic] in his personal, individual, and official capacities for the deprivation of plaintiff's due process right to a fair hearing; the defendant W.J. Hopin deprived plaintiff his constitutional right and the defendant W.J. Hopin had acted under the color of state or territorial law.
Dkt. #8, ¶ 1. On or about December 3, 2001, in a Memorandum and Order, United States District Judge John T. Elfvin ordered that "the Complaint is deemed to consist of the amended complaint and the second amended complaint, taken together." Dkt. #9, p.2. Thereafter, on March 18, 2002, defendant Hopkins filed an answer to the complaint. Dkt. #20.
Defendant Hopkins' Motion for Partial Summary Judgment
In the years that followed, the parties engaged in discovery and on or about December 14, 2007, defendant Hopkins filed the instant motion for partial summary judgment. Dkt. #80. This Court issued a text scheduling order on December 14, 2007 which provided that plaintiff's response to defendant Hopkins' motion for partial summary judgment shall be filed and served no later than February 8, 2008 and reply papers, if any, shall be filed and served no later than February 29, 2008, at which time the motion would be taken under advisement without oral argument. Dkt. #85. On or about March 28, 2008, this Court issued an Order to Show Cause directing plaintiff to either respond to the motion for partial summary judgment or show cause in writing by April 29, 2008 why the matter should not be dismissed for failure to prosecute. Dkt. #86. Plaintiff did not comply with the Order to Show Cause as directed. However, in preparing a second Order to Show Cause, the Court discerned that the plaintiff may have been housed at the Auburn Correctional Facility and not the Southport Correctional Facility (the last known address for plaintiff at the time of the filing of the first Order to Show Cause). Dkt. #88. Accordingly, the second Order to Show Cause was sent to both Southport and Auburn Correctional Facilities.
Despite plaintiff's failure to comply with this Court's directives and to keep this Court informed of his current address, the plaintiff was afforded one last opportunity to either respond to the motion for partial summary judgment or show cause, in writing, no later than May 1, 2009 why this matter should not be dismissed for failure to prosecute. Dkt. #88. Notwithstanding the foregoing, plaintiff has failed to submit a response to defendant Hopkins' motion for partial summary judgment.
During the time period alleged in the complaint, plaintiff was incarcerated at Elmira. Dkt. ## 1, 6, and 8. The only defendant presently seeking relief from this Court is defendant William Hopkins, accordingly, only those facts relating to defendant Hopkins will be discussed herein. At all times relevant to plaintiff's allegations, defendant Hopkins was the Deputy Superintendent for Administration at Elmira. Dkt. #81, ¶ 2. On December 20, 2000, plaintiff was issued an Inmate Misbehavior Report relating to an incident that occurred that same day. Dkt. #81, p.13. The Inmate Misbehavior Report charging plaintiff with assault on an inmate 100.10, fighting 100.13, violent conduct 104.11 and possession of a weapon 113.10 provides the following description of the incident:
On 12-20-00 at approx. 10:05 am I was letting inmate Hidalgo 79A0148 on to I-3 Company so he could move into 33 cell. Inmate Rouse 93A2893 who is the 3 Company porter was standing by 3-6 cell with his back to me and Hidalgo. When Hidalgo entered 3 Company he immediately attacked inmate Rouse by hitting him in the head and upper body with a can that was in a net bag that Hidalgo was carrying. As I approached the two inmates Hidalgo continued to assault Rouse by swinging the net bag can at Rouse. I used a bear hug on Hidalgo to prevent him from further striking Rouse. (Net-Bag-Can was placed in DSS locker 2-2).
Id. The Inmate Misbehavior Report was prepared by Officer R. Manwaring. Id. An Unusual Incident Report and a Use of Force Report were also completed. Id. at pp.7-9. As reflected on the Hearing Record Sheet, plaintiff was served with a copy of the Inmate Misbehavior Report on December 22, 2000. Id. at p.12. On December 22, 2000 and December 23, 2000, Tier Assistance Selection Forms were completed. Id. at pp.17-18. Although plaintiff refused to sign either form, taken together, both forms reveal that plaintiff was requesting a Spanish speaking assistant and that among those assistants requested by plaintiff was M. Ducot. Id. Additional documents contained in the complete hearing packet reveal that M. Ducot was assigned to assist plaintiff with the Tier III hearing. Id. at p.14. Indeed, the Assistant Form states that M. Ducot initially met with plaintiff on December 26, 2000 at 9:09 a.m. Id. The form further indicates that plaintiff requested that Superintendent Bennett and Inmate Rouse, #93A2893 be interviewed and that the plaintiff be provided with copies of the Unusual Incident Report and the Use of Force Report. Id.
As part of defendant Hopkins' duties and responsibilities, he may be designated by the Superintendent to run Tier III*fn2 disciplinary hearings. Dkt. #81, ¶ 3. Consistent with these duties and responsibilities, defendant Hopkins was designated to conduct plaintiff's Tier III disciplinary hearing concerning the December 20, 2000 Inmate Misbehavior Report. Dkt. #81, p.29. On December 27, 2000, defendant Hopkins began the Tier III ...