The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Jason N. Johnson filed this civil rights Complaint, pursuant to 42 U.S.C. §§ 1983, 1985, 1988, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000-cc et seq., bringing the following claims: (1) interference with his freedom of religious expression; (2) due process violations; and (3) conspiracy. Dkt. No. 1, Compl.
Presently before the Court is Defendants' Motion for Summary Judgment. Dkt. No. 19.
Plaintiff opposes the Motion. Dkt. No. 28.*fn1 For the reasons that follow, it is recommended that Defendants' Motion be granted.
The following facts were derived mainly from the Defendants' Statement of Material Facts, submitted in accordance with N.D.N.Y.L.R. 7.1, which were not specifically opposed by Plaintiff in their entirety. See N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." (emphasis in original)).
The allegations in the Complaint relate to the period of September 11, 2007, through December 2007, during which time Plaintiff was incarcerated at the Great Meadow Correctional Facility ("Great Meadow"). Dkt. No. 19-4, Defs.' 7.1 Statement at ¶ 1. On September 11, 2007, P. Roberts, a Psychiatric Assistant,*fn2 wrote a Misbehavior Report charging Plaintiff with violating Rules 101.20 (Lewd Behavior) and 106.10 (Disobeying a Direct Order). Id. at ¶ 2. In the Misbehavior Report, Roberts states that while she was talking to another inmate, she observed Plaintiff with his pants and underwear at his ankles, masturbating while looking at her from an adjoining cell. Id. at ¶ 3. Roberts stated that Plaintiff did not obey her direct order to stop his behavior. Id.
Plaintiff was not present at a Tier III Disciplinary Hearing that was presided over by Lieutenant (Lt.) Juckett*fn3 on September 19, 2007. Id. at ¶ 5. At that hearing, Plaintiff was found guilty of the charges brought in the Misbehavior Report and received a sentence of six (6) months in the Special Housing Unit ("SHU") and a restricted diet for fourteen (14) days, consisting of nutriloaf and cabbage. Id. at ¶ 6. Plaintiff alleges that pursuant to N.Y. COMP. CODES R. & REGS.
("NYCRR"), tit. 7, § 254.6, he was entitled to a Mental Health/Intellectual Capacity Assessment before the hearing officer imposed any penalty at the hearing. Id. at ¶ 7; Compl. at ¶¶ 15 & 17.
By letter dated September 21, 2007, Defendant then-Acting Superintendent Vanguilder informed the Facility Health Services Director about Plaintiff's restricted diet, specifying that it begin on September 24, 2007, and end on October 9, 2007. Defs.' 7.1 Statement at ¶ 13 & Ex. G, Lt., dated Sept. 21, 2007. Plaintiff appealed the Tier III hearing disposition to the Commissioner on the following grounds: (1) the hearing officer failed to conduct a Mental Health/Intellectual Capacity Assessment; (2) an independent inquiry into the reasons for Plaintiff's alleged refusal to attend the hearing was not conducted; and (3) the author of the Misbehavior Report did not testify as to the validity of the report. Id. at ¶ 13 & Ex. H at p. 6, Pl.'s Appeal, dated Sept. 19, 2007. Nowhere in the appeal did Plaintiff raise an issue concerning his restricted diet. Id. On November 21, 2007, the hearing disposition was affirmed by Commissioner Brian Fischer.*fn4 Id. at ¶ 15 & Ex. I, Review of Sup't Hr'g, dated Nov. 21, 2007.
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and [the moving party] is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "'pleadings, depositions, answers to interrogatories, and admissions on file, together with  affidavits, if any,'" that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must "set out specific facts showing [that there is ]a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se,
the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to ...