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Pacheco v. Drown

January 11, 2010

MILTON MUSA PACHECO, PLAINTIFF,
v.
CURTIS DROWN; DONALD SELSKY; JOHN MITCHELL; FOCUNIER;*FN1 MARIO DE ACEVEDO; LESTER N. WRIGHT; ROBERT HENTSCHEL; MARSHALL TRABOUT; AND JOHN AND JANE DOES, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action filed by Milton Musa Pacheco ("Plaintiff") against eight named employees of the New York State Department of Correctional Services ("Defendants") are (1) Defendants' motion for summary judgment (Dkt. No. 68), (2) United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 84), (3) Defendants' Objections to the Report-Recommendation (Dkt. No. 85), and (4) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 87). For the following reasons, the parties' Objections are rejected; the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted in part and denied in part; and Plaintiff's Amended Complaint is dismissed in part.

I. BACKGROUND

A. Plaintiff's Amended Complaint

On May 15, 2006, Plaintiff filed his Amended Complaint in this action. (Dkt. No. 5.) Construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, between approximately October 2002 and April 2003, while he was incarcerated at Clinton Correctional Facility in Dannemora, New York, the above-captioned Defendants violated his rights in the following manner: (1) by retaliating against him in violation of the First Amendment; (2) by being deliberately indifferent to his serious medical needs in violation of the Eighth Amendment; (3) by being deliberately indifferent to his conditions of confinement in violation of the Eighth Amendment; and (4) by denying him due process in violation of the Fourteenth Amendment. (Id.)

More specifically, Plaintiff alleges as follows: (1) Defendants Mitchell and Fournia retaliated against him by falsely accusing him of forging a medical pass; (2) Defendant Drown violated his right to due process by conducting a flawed and unfair disciplinary hearing; (3) Defendants subjected him to unsafe and unhealthy living conditions in violation of the Eighth Amendment; and (4) Defendants De Azevedo, Hentschel, and Trabout violated his Eighth Amendment rights by canceling his March 2003 follow-up appointment with Dr. Rubinovich. (Id.) For a more detailed recitation of Plaintiff's factual allegations, the Court refers the reader to the Amended Complaint in its entirety, and Magistrate Judge Lowe's Report-Recommendation. (Dkt. Nos. 5, 84.)

B. Defendants' Motion for Summary Judgment and Plaintiff's Response

On May 12, 2008, Defendants filed a motion for summary judgment. (Dkt. No. 68, Attachment 7.) In their motion, Defendants argue that Plaintiff's Amended Complaint should be dismissed for the following reasons, among others: (1) the issuance of the misbehavior report and Plaintiff's disciplinary confinement do not violate federally protected rights; (2) Plaintiff failed to alleged facts plausibly suggesting, and/or adduce admissible record evidence establishing, various claims (including claims regarding the issuance of a misbehavior report, the failure to follow a DOCS directive, the experience of a hardship while in SHU, the denial of certain process at a disciplinary hearing, the conditions of his confinement, and the medical treatment he received); (3) Plaintiff failed to exhaust his available administrative remedies; (4) Plaintiff failed to establish the personal involvement of Defendants Wright, Hentschel, Trabout and DeAzevedo in the constitutional violations alleged; (5) Defendants are protected from liability by the doctrine of qualified immunity as a matter of law; (6) Plaintiff is unable to recover monetary damages under the Prison Litigation Reform Act of 1997, because he has failed to introduce any evidence of physical injury; and (7) Plaintiff's claims against Defendants in their official capacity are barred by the Eleventh Amendment. (Dkt. No. 68, Attachment 7, at 3-28.)

On August 5, 2008, Plaintiff submitted both a response and a memorandum of law in opposition to Defendants' motion for summary judgment. (Dkt. Nos. 76, 77.) In his response, Plaintiff argues as follows: (1) he had no reason or necessity to forge a medical pass because he already possessed a medical pass (Dkt. No. 76, at 3-4); (2) Defendants Mitchell and Fournia accused him of forging a medical pass, and subsequently issued him a misbehavior report, to retaliate against him for filing formal grievances (id. at 4-9); (3) he was denied due process at the grievance hearing (id. at 12-13); (4) he was denied his protected liberty interest when he was issued ninety (90) days confinement in the Special Housing Unit ("SHU") (id. at 14-17); and (5) he was denied medical appointments, showers, outside exercise, food trays on various occasions while confined to the SHU (id. at 19).

In his memorandum of law, Plaintiff argues as follows: (1) Defendants retaliated against him by issuing him a false misbehavior report; (2) he has stated a claim upon which relief can be granted; (3) the Eleventh Amendment does not bar the recovery of injunctive or declaratory relief against Defendants in their official capacities; (4) he may recover monetary damages with or without a showing of physical injury; (5) Defendants are not entitled to qualified immunity; (6) he has exhausted his administrative remedies; (7) Defendants are not entitled to summary judgment because they failed to demonstrate that no triable issues of fact remain; (8) his confinement in SHU for ninety (90) days was an atypical and significant hardship; and (9) all named Defendants were personally involved in the violations. (Dkt. No. 77 at 10-45.)

C. Magistrate Judge Lowe's Report-Recommendation

On September 2, 2009, Magistrate Judge Lowe issued a Report-Recommendation recommending as follows: (1) that all of Plaintiff's claims against the John and Jane Doe Defendants be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m); (2) that all of Plaintiff's claims against the named Defendants in their official capacities be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(h)(3) and the Eleventh Amendment; (3) that all of Plaintiff's claims against Defendants Drown, Selsky, DeAcevedo, Wright, Hentschel, and Trabout in their individual capacities be dismissed with prejudice pursuant to Fed. R. Civ. P. 56; and (4) that Plaintiff's sold remaining claim in this action--i.e., his retaliation claim against Defendants Mitchell and Fournia in their individual capacities--not be dismissed pursuant to Fed. R. Civ. P. 56 due to the existence of genuine issues of material fact regarding those claims. (Dkt. No. 84.)

D. The Parties' Objections

On September 10, 2009, Defendants timely filed their Objections to the Report-Recommendation. (Dkt. No. 85.) In their Objections, Defendants argue that Magistrate Judge Lowe erred in his recommendation that Plaintiff's retaliation claim against Defendants Mitchell and Fournia survive summary judgment. More specifically, Defendants argue that, because Plaintiff's conviction was not favorably terminated, Plaintiff's ...


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