The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
This matter was referred to Magistrate Judge Gustave J. Di Bianco for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). Upon Magistrate Judge Di Bianco's retirement, the case was reassigned to me on January 4, 2010 by Norman A. Mordue, Chief United States District Judge. (Dkt. No. 33).
Plaintiff filed his complaint*fn1 pursuant to 42 U.S.C. §§ 1983 & 1985 while plaintiff was an inmate in the custody of the Department of Correctional Services ("DOCS") at Mid-State Correctional Facility ("Mid-State"). (Compl. ¶ 5).*fn2 Plaintiff's complaint lists eight causes of action. The first and second causes of action allege conspiracy and retaliation, relating to defendants Debraccio, Ferraro, Koagle, Moore, Simons, and Strumlofler. The third and fourth causes of action allege "deliberate indifference" and relate to defendant Hulihan. The fifth and sixth causes of action allege conspiracy and retaliation against defendant Cheyne. The seventh and eighth causes of action relate to all defendants and allege cruel and unusual punishment and denial of due process. (Compl. ¶¶ 23--30). Plaintiff seeks declaratory and injunctive relief. (Compl. ¶ 32).
Presently before this court are two motions: plaintiff's motion for a preliminary injunction (Dkt. No. 22), and defendants' cross motion for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 24). Defendants' motion also responds to plaintiff's motion for a preliminary injunction, and plaintiff has responded in opposition to defendants' motion. (Dkt. No. 27). For the following reasons, this court recommends denying plaintiff's motion for a preliminary injunction and granting defendants' cross motion for judgment on the pleadings.
Plaintiff's causes of action arise from a period of time when he was enrolled in a residential treatment program at Mid-State, known as the Alcohol and Substance Abuse Treatment ("ASAT") program. (Def.'s Mem. of Law 1). In January of 2008, plaintiff had recently restarted the ASAT program when he was called into a correctional officer's ("CO") office by defendants Ferraro and Debraccio. (Compl. ¶ 14). Ferraro and Debraccio brought to plaintiff's attention some "pull-ups"*fn3 and a "refuse to do a detail" order. Id. Plaintiff responded that he was not "orientated" and had not signed a contract. Id. On January 8, 2008, plaintiff alleges that defendant Koagle deliberately moved plaintiff's bed so that plaintiff's shoes would not be lined up and then gave plaintiff a pull-up for failing inspection. (Compl. ¶ 15). Plaintiff filed a grievance for receiving this pull-up. Id. The next day, plaintiff received another pull-up for having his typewriter on his bed and after objecting to that pull-up, received another pull-up for a "negative attitude." (Compl. Ex. B-2 at 4).*fn4
Defendant Strumlofler conducted the Inmate Grievance Committee hearing on February 14, 2008, regarding the grievance plaintiff filed after defendant Koagle's January 9, 2008 pull-up. (Compl. ¶ 16). Plaintiff states that defendant Strumlofler didn't want to call plaintiff's witnesses, read plaintiff's grievance on the record, or have plaintiff's representative present. Id. Plaintiff then alleges that, "As a result, the [plaintiff] became argumentative with [Strumlofler] and [Strumlofler] throw [sic] the [plaintiff] out of the hearing." (Compl. ¶ 24).
After leaving the grievance office, plaintiff was called by defendant Moore to go to an interview with the ASAT committee. (Compl. ¶ 17). The committee was comprised of defendants Simons, Ferraro, Debraccio and Strumlofler. Id. Plaintiff alleges that the committee "started threating [sic] to remove me from [the] ASAT program if I write any more grievances and that this will be my last chance." Id. Plaintiff submitted another grievance, "disregarding this threat." Id.
Later that same day, defendant Moore was teaching members of the ASAT program and gave them a five-minute break. (Compl. ¶ 18). When plaintiff returned from the break, defendant Moore told him that he was late, to which plaintiff replied that he knew Moore was "acting actively in cohoots [sic] with Mr. Simons, Mr. Ferraro, and Ms. Debraccio, to throw [plaintiff] out of ASAT." Id. Defendant Moore then placed plaintiff on a "contract."*fn5 Id.
Two weeks later, around February 28, 2008, after plaintiff had been removed from the ASAT program and was awaiting placement to another housing unit, he was called in to the corrections officer's office by defendant Debraccio. (Compl. ¶ 19). Plaintiff alleges that the corrections officer raised his voice and approached plaintiff in a threatening manner. Id. Plaintiff "stood-up [sic] and defended [himself]." Id. Plaintiff was then given a misbehavior report. Id. Plaintiff was found guilty after a hearing, and as a result, he lost package, commissary, phone and recreation privileges for 30 days to "impress upon [inmate] that this type of behavior will not be tolerated." (Compl. Ex. B-2 at 41--42).
One week later, on March 10, 2008, plaintiff met with defendant Cheyne on a mental health callout. (Compl. ¶ 20). Plaintiff alleges that he told defendant Cheyne about his concern that the ASAT staff members "during [sic] something to me when I walk down the walkway," and he requested a transfer to Marcy Correctional Facility. Id. Plaintiff attached a copy of a memorandum written by defendant Cheyne to his complaint. (Comp. Ex. B-2 at 38). The memorandum states that when defendant Cheyne refused plaintiff's request to be transferred to Marcy Correctional Facility and refused to grant him other mental health services, he responded, "What if one day something just sets me off and I lose it[?] I see all the civilians walking up and down that road. There are no [corrections officers] around. By the time you pressed the button and someone got to you, who knows what could happen[?]" (Comp. Ex. B-2 at 38).
As a result of defendant Cheyne's memorandum, plaintiff received a Tier III*fn6 disciplinary hearing on March 19, 2008, after which he lost commissary, phone, and package privileges for two months and was placed on "keeplock" for two months. (Id. at 43). However, these punishments were suspended for one month and deferred for six months. Id. This hearing was reviewed and reversed by the director of the Special Housing/Inmate Disciplinary Program on May 5, 2008. (Compl. Ex. B-2 at 47).
Plaintiff received a memorandum dated May 22, 2008, which apparently was in response to a letter written by plaintiff to defendant Simons. (Compl. Ex. B-2 at 36). The memorandum informed plaintiff that his name had been added back to the ASAT programs need list, but due to plaintiff's "previous past two unsatisfactory removals from ASAT, ...