The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are the following motions: respective motions for partial summary judgment (Docket Nos. 69, 94 and 95); plaintiff's motion to compel discovery (Docket No. 116); defendants' motion for an extension of time to complete discovery (Docket No. 137); plaintiff's motion to appoint counsel (Docket No. 145); defendant's motion for a protective order (Docket No. 148) and plaintiff's motion for the Court to subpoena records (Docket No. 151).*fn1
The plaintiff, Ronnie Cole ("Cole"), commenced this action alleging that his rights under 42 U.S.C. § 1983 were violated because he was asked by a corrections officer to make a donation to the correction officer's church; that he was wrongly convicted of a misbehavior report for possession of a CD player in his cell; and that he has been otherwise harassed by various corrections officers. The plaintiff names 14 individuals as defendants in this action: Brian Fischer ("Fischer"), Robert Kirkpatrick ("Kirkpatrick"), Susan Shcumacher ("Shumacher"), Thomas Stich ("Stich"), D. Venettozzi ("Venettozzi"), Karen Bellamy ("Bellamy"), R. Shroder ("Shroder"), Michael J. Skelly ("Skelly"), D. McGuire ("McGuire"), Molloy "Molloy"), Miran Hodge ("Hodge"), R. Mehnert ("Mehnert"), B. Trotter ("Trotter") and D. Nixon ("Nixon").
More specifically, Cole alleges that on April 17, 2008, Hodge asked him to make a donation to Hodge's church in the amount of $1000. (Docket No. 1 at ¶ 20). The plaintiff asserts that he told Hodge's that he would do so, but that he never actually intended to make the donation, but instead was going to include the fact that Hodge's asked him for the money in a letter to the New York State Governor. (Docket No. 1 at ¶21). Cole asserts that he wrote a separate letter to defendant Kirkpatrick regarding Hodge's solicitation of money. (Docket No. 1 at ¶23). The plaintiff states that on April 28, 2008, Hodges asked him whether he made the donation to Hodge's church and explained that the money was to pay for an church function featuring Bishop T. D. Jakes, as well as entertainers Jay Z and Mary J. Blige. (Docket No. 1 at ¶25). Cole asserts that later that day, Hodges came back to Cole's cell, handed Cole a disbursement form and stated "Come on Ronnie, make it happen." (Docket No. 1 at ¶ 28). Hodges then allegedly stood there while Hodges made out the disbursement form. Cole asserts that he did not print his name on the back of the form or place a postage stamp on the front "knowing that this would cause the inmate disbursement form to return." (Docket No. 1 at ¶ 28). Cole asserts that he sent a second letter to Kirkpatrick. (Docket No. 1 at ¶¶ 29-30). On April 29, 2008, the plaintiff asserts that Hodges again returned with the disbursement form, which was returned as Cole predicted, and that Hodges asked Cole to print his name on the back of the form and place a stamp on it so Hodges could bring it "up front" to be processed. (Docket No. 1 at ¶ 31). Cole alleges that he told Hodges to leave the form because he was busy with something, and that Hodges did so. (Docket No. 1 at ¶ 32). Cole asserts he reviewed the form and determined that Hodges had forged Captain M. Kearney's initials on the form. (Docket No. 1 at ¶ 32). The plaintiff alleges that he sent a third letter to Kirkpatrick. (Docket No. 1 at ¶¶ 33). On April 30, 2008, according to Cole, Hodges advised him that his Pastor had suggested that they should give tithings once a month. (Docket No. 1 at ¶ 34). Cole claims that Hodges asked him to give "a million dollars to the church." (Docket No. 1 at ¶ 35). Cole alleges that he wrote a fourth letter to Kirkpatrick. (Docket No. 36). The plaintiff states that on May 10, 2008, Hodges came to his cell and advised him that the money had not been received by Hodges' Church. (Docket No. 1 at ¶ 39). According to Cole, on May 11, 2008, Hodges came to his cell and gave him a CD player, with headphones and a CD of a religious sermon. (Docket No. 1 at ¶ 40). Three days later, on May 14, 2008, Cole asserts that he requested to speak with Sergeant Lambert. The plaintiff contends that when Lambert arrived at his cell on that date, Cole had the CD player "in full review to present it to" Lambert. (Docket No. 1 at ¶ 43). Cole claims that later that afternoon, he was told he had a phone call "up front with a Judge," but that when he arrived "up front" he was brought into a room with Lambert and three "IG Investigators." Lambert asked Cole for the CD player and Cole stated that it was on the desk in his cell. According to Cole, one of the investigators then had a phone conversation with another correctional officer who initially stated that he could not find the CD player in the cell, but eventually found the CD player. (Docket No. 1 at ¶¶44-45) On May 15, 2008, Cole received a misbehavior report signed by defendant Skelly charging Cole with possession of contraband and smuggling. (Docket No. 1 at ¶ 45).*fn2
Cole alleges that this is a "false misbehavior report" because the CD player was presented to him by Hodges. (Docket No. 1 at ¶ 46). Cole asserts that he has a right to be present during a cell search pursuant to Department of Correctional Services ("DOCS") Directive 4910. (Docket No. 1 at ¶ 47). Cole also contends that the false misbehavior report was written in retaliation against Cole because Hodges had been escorted out of the facility and was subject to disciplinary proceedings. (Docket No. 1 at ¶ 48). The plaintiff claims that he has been harassed in that he has been threatened, that his mail is placed in the wrong mail box, that he finds detergent in his drinks, staples and other things in his food. Cole claims that he complained about this to defendants Trotter and Malloy, but that they laughed at him, asked if he saw the movie "Shawshank Redemption," told him to file a grievance and that they would deny everything. (Docket No. 1 at ¶ 49).
On June 9, 2008, after a disciplinary hearing, Cole was found guilty of possessing contraband and sentenced to 30 days keep lock. (Docket No. 1 at ¶ 52). Cole alleges that he wrote letters advising defendants Fisher, Kirkpatrick and Schumacher of the alleged acts of retaliation against him. (Docket No. 1 at ¶ 58). The plaintiff further asserts that in July of 2008 defendant Mehnert continued the retaliation by threatening him, asking him for sex, calling him names and filing a false misbehavior report against him. (Docket No. 1 at ¶¶58-60).*fn3 Cole states that he again wrote to Kirkpatrick. (Docket No. 1 at ¶ 61). Cole claims that on July 31, 2008, he was "assaulted" by defendant McGuire "for turning in" defendant Hodges. (Docket No. 1 at ¶ 65). He claims that defendants Malloy and Skelly were supervisors to Hodges, Mehnert, Nixon and Trotter. (Docket No. 1 at ¶ 66).*fn4 The plaintiff alleges that defendants Fischer, Kirkpatrick, Schumacher, Stich, Shroder, Venettozzi, Bellamy, Skelly and Malloy failed to act to stop the various acts of retaliation. (Docket No. 1 at ¶¶ 68-74).
Motions for Summary Judgment
The plaintiff seeks partial summary judgment against all fourteen defendants (Docket No. 69 at page 1) as to liability based upon an alleged violation of his due process rights in connection with the June 9, 2008 disciplinary hearing in which he was found guilty of being in the possession of contraband. Cole asserts that he had requested copies of cell search slips and log books but that these requests were denied by Hearing Officer Gilbert Casaceli. (Docket No. 69 pages 3-4). Cole fails to articulate any basis to maintain this claim against defendants Bellamy, Schroder, Skelly, Malloy, Nixon, Hodges, Trotter or McGuire. Thus, the plaintiff's due process claims as against these defendants are dismissed. The plaintiff contends that defendants Kirkpatrick, Ventrtozzi, Fischer, Schumacher and Stich are liable for these alleged due process violations because they failed to correct them upon administrative appeal. (Docket No. 69 at page 7). These defendants have cross-moved for summary judgment (Docket No. 95). The defendants contend that the documents requested by the plaintiff with respect to the June 9, 2008 disciplinary hearing were not material inasmuch as there was no dispute that Hodges presented Cole with the contraband. (Docket No. 99-3 at page 12). There was no dispute as to whether Cole voluntarily advised Officer Lambert that Hodges have given Cole the contraband. (Docket No. 99-3 at pages 20-23). There was no dispute that Cole cooperated with the investigation relating to Hodges providing the CD player to Cole. (Docket No. 99-3 at page 26). Notwithstanding Cole's cooperation, Hearing Officer Casaceli found Cole guilty of possession of contraband (but not-guilty of the smuggling charge also included in the misbehavior report). Contrary to Cole's contention, Hearing Officer Casaceli explained this decision to him by advising Cole that "possession of contraband no mater how received is still a violation of rules in this and any other facility." (Docket No. 99-3 at page 56). In light of the agreement as to the factual circumstances relating to how Cole obtained the contraband, as well as the agreement relating to Cole's conduct in bringing Hodges' actions to the attention of the authorities, the documents requested by the plaintiff did not go to any disputed issues. Thus, the failure to provide those documents to Cole did not constitute a due process violation.
Moreover, Cole was sentenced to only 30 days keeplock as a result of the disciplinary proceeding at issue. An inmate's liberty interest is implicated by prison discipline only if the discipline "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). The duration and conditions of confinement are factors to be considered by a court when determining whether a confinement rises to the level of "atypical and severe hardship." See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004). While the Second Circuit has cautioned that "there is no bright-line rule regarding the length or type of sanction" that meets the Sandin standard, Courts in this Circuit had held that punishment more severe than 30 days of keeplock was insufficient to establish a protected liberty interest. See Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir.1999) (101 days in normal Special Housing Unit conditions was not atypical or significant); Walker v. Caban, 2008 WL 4925204, at *11 (S.D.N.Y. Nov.19, 2008)(finding 90 day period in solitary confinement, without more, did not implicate a liberty interest under Sandin); Rivera v. Coughlin, 1996 WL 22342, at *5 (S.D.N.Y. Jan.22, 1996) (89 days in keeplock does not create a liberty interest). The plaintiff has not articulated a protected liberty interest under the undisputed facts in this case.*fn5 Thus, the plaintiff's motion for partial summary judgment (Docket No. 69) is denied, and the defendants motion for partial summary judgment (Docket No. 95) is granted.
Defendant Hodges also seeks summary judgment as to all claims against him in this matter. (Docket No. 94). Hodges asserts that the plaintiff has failed to articulate facts attributable to Hodges in support of his due process and retaliation claims. Much of the plaintiff's response to the instant motion is taken up with argument demonstrating that Hodges did, in fact, request that Cole donate money to Hodges' church and that Hodges took steps to facilitate Cole's donation.*fn6
However, the fact Hodges had, in fact, made a request to Cole for the donation and had taken steps to obtain the donation from Cole are not in dispute in this action. Indeed, it is undisputed that defendant Hodges was disciplined*fn7 by his employer for asking Cole to donate money to Hodges' church.
Hodges conduct in this matter is reprehensible. Hodges took advantage of his position of authority over an inmate to ask the inmate to make a donation to Hodges' church. Further, Hodges compromised the safety of the entire population of inmates and employees at the correctional facility by providing an inmate with contraband -- a CD -- which, if broken, could have been made into a weapon. Notwithstanding the outrageous nature of Hodges' conduct, the plaintiff has failed to articulate a constitutional claim attributable to Hodges. It is undisputed that the plaintiff did not make any payment to ...