The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Edward Harrison ("Harrison"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, a DOCS Commissioner, Superintendent, and seven DOCS employees, violated his constitutional rights under the Eighth and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 37. Harrison failed to respond to the motion. For the following reasons, it is recommended that defendants' motion be granted.
Harrison did not oppose defendants' motion. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Defendants provided such notice in their Notice of Motion here. Dkt. No. 37. Despite this notice, Harrison failed to respond. "The fact that there has been no response to a summary judgment motion does not . . . mean that the motion is to be granted automatically." Champion, 76 F.3d at 436. Even in the absence of a response, a defendant is entitled to summary judgment only if the material facts demonstrate his or her entitlement to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).
Because Harrison has not responded to raise any question of material fact, the facts as set forth in defendants' Rule 7.1 Statement of Material Facts (Dkt. No. 37-1) [hereinafter "Defs. Statement"] are accepted as true. See e.g., Lopez v. Reynolds, 998 F. Supp. 252, 256 (W.D.N.Y. 1997)); see also 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).
All of the relevant events occurred during Harrison's incarceration at Bare Hill Correctional Facility ("Bare Hill") from December 2007 until February 2008. Defs. Statement ¶¶ 1-2.
During this time period Harrison was participating in the Residential Alcohol and Substance Abuse Treatment Program ("ASAT"). Defs. Statement ¶ 4. Harrison did not believe he required ASAT and threatened to sue all ASAT and DOCS personnel connected with the ASAT programming. Id. ¶¶ 5-6. Despite his threats, Harrison began the ASAT program on November 5, 2007.*fn2 Id. ¶ 7. Harrison was also transferred to a different dorm, where all ASAT participants were housed. Id. ¶¶ 8-9. Harrison's ASAT Program Director was defendant Johnson. Id. ¶10.
As Program Director, Johnson was responsible for facilitating group sessions, preparing monthly progress reports, and scoring the inmate's progress in ASAT. Defs. Statement ¶ 18. Johnson was also "authorized to assign learning experiences to individual inmates, and to the dorm as a whole, to address behaviors and attitudes that she deemed to be contra-therapeutic to the individual's progress in ASAT or to the therapeutic environment of the ASAT community." Id. ¶ 21.
On January 18, 2008, Harrison turned in his responses to two learning experiences previously assigned to him by Johnson. Defs. Statement ¶ 22. Johnson believed the responses Harrison submitted were personally threatening and harassing. Id. ¶ 23. Johnson reported her concerns to the security personnel in a misbehavior report dated January 18, 2008. Id. ¶ 24. Harrison was found guilty of harassment at a subsequent disciplinary hearing. Id. ¶ 25. As a result, Harrison was penalized with cube confinement and a loss of commissary, telephone, package and recreation privileges for twenty-one days. Id. ¶ 26. Harrison was also transferred to a different dormitory. Id. ¶ 27.
Harrison then filed a grievance*fn3 alleging that "Johnson was showing favoritism to white inmates and making disparaging comments to him in front of her supervisor and improperly supervising the ASAT dorm." Defs. Statement ¶ 28. These complaints were investigated by defendant Daggat, a supervising correction counselor.*fn4 Id. ¶¶13, 30. Daggat "found that [Harrison]'s allegations . . . were unfounded and possibly retaliatory, and that the actions taken by . . . Johnson were appropriate." Id. ¶ 31. Superintendent Yelich , a defendant here, relied on Daggat's report and concluded Harrison's grievance was unfounded. Id. ¶ 32. The Superintendent's determination was never appealed. Id. ¶ 33. Simultaneously, defendant Bradford responded to Harrison's letters of complaint about the investigative report prepared by Daggat. Id. ¶ 34.
On January 23, 2008, Harrison was issued another misbehavior report for an altered item. Defs. Statement ¶ 35. Because of these disciplinary infractions, on January 25, 2008, ASAT personnel held a case conference to determine whether Harrison's continued participation in the ASAT program was therapeutically appropriate. Id. ¶¶ 36-37. The conference was attended by defendant Gilbert and two other unnamed parties. Id. ¶ 38. The members "determined that [Harrison] should be placed on probation and required to write a letter of apology to . . . Johnson as a learning experience for his harassing statements." Id. ¶ 39. Harrison was informed that this letter was due on February 1, 2008, and that any further counseling notifications or misbehavior reports would result in an unsatisfactory discharge from ASAT. Id. ¶ 40.
Subsequently, Harrison filed a grievance alleging that he had been threatened at the case conference and that Johnson's actions in assigning the learning experiences were racially motivated. Defs. Statement ¶ 41. These complaints and the grievance were again thoroughly investigated by Daggett who "determined that the actions taken by staff were appropriately taken in accordance with standard practice and procedure based upon [Harrison's] transfer to the E-1 dorm and his disciplinary infractions." Id. ¶¶ 42-43.
Harrison did not timely complete the assigned learning experiences. Defs. Statement ¶ 44. Harrison was given a counseling notification for his failure to complete his assignments and was also found guilty at his second disciplinary hearing for his misbehavior report on possessing an altered item. Id. ¶¶ 45-46. A subsequent counseling conference was held on February 5, 2008 to discuss Harrison's failure to timely complete his assignments and the most recent disciplinary hearing whereupon it was recommended that "the most therapeutically sound response . . . was to unsatisfactorily discharge [him] from ASAT as was warned in the January 25, 2008 case conference." Id. ¶¶ 47, 49. Harrison was discharged from the program on February 5, 2008 for ninety days. Id. ¶ 50. Gilbert signed Harrison's discharge form. Id. ¶ 51. The decision was also approved by Daggett "based upon [Harrison]'s unsatisfactory program record, the disciplinary infractions he received while participating in ASAT, and his failure to comply with the terms of the January 25, 2008 case conference report." Id. ¶ 52.
Harrison filed another grievance, claiming that his removal from the ASAT program "was unfair and excessive." Defs. Statement ¶ 53. The grievance was referred to the Superintendent by the IGRC, denied by Superintendent Yelich, appealed to CORC, and denied because it was meritless. Id. ¶ 54. This action followed.
Harrison alleges that his experiences in ASAT and his subsequent removal from the program and loss of good time credits resulted in an extension of his imprisonment and cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Defendants seek judgment because (1) Harrison has failed to establish the personal involvement of defendants Fischer, Bradford, Yelich, Stearns, and Donaldson; (2) loss of good time credits is insufficient to establish a § 1983 claim; (3) Harrison failed to exhaust his administrative remedies; (4) Harrison's constitutional claims are meritless; and (5) defendants are entitled to qualified immunity.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
When, as here, a party seeks dismissal or summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will ...