The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c).*fn1 In this civil rights complaint, plaintiff alleges that defendant Fischer is somehow responsible for plaintiff's alleged improper placement in punitive confinement in 2008 for eighteen months.*fn2 (See Compl., Dkt. No. 1). Plaintiff seeks substantial monetary relief as well as injunctive relief.*fn3 Before the court is defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 25). Plaintiff has responded in opposition to defendant's motion. (Dkt. No. 30). For the following reasons, this court finds that defendant Fischer was not personally involved in any alleged violation of plaintiff's constitutional rights, and that the complaint may be dismissed as to defendant Fischer.
The complaint is not a model of clarity. The court has construed plaintiff's claims based on attached grievances,*fn4 as well as information included in his memorandum of law in opposition to defendant's motion.
Plaintiff alleges that in September 2006, officers at Auburn Correctional Facility ("Auburn") "accused" plaintiff of having a shank,*fn5 which resulted in plaintiff being placed in the Special Housing Unit ("SHU") at Southport Correctional Facility until his release from confinement. (Pl.'s Stmt. Pursuant to R. 7.1 ¶ 1). Plaintiff alleges that 120 days after his release, he was arrested because of the incident at Auburn and sentenced by the Cayuga County Court to 1.5--3 years in State Prison. (Id. at ¶¶ 3--4).
Plaintiff arrived back at Auburn on July 1, 2007, and wrote to defendant Fischer on that date, asking to be transferred to another facility. (Id. at ¶¶ 10, 13). Plaintiff alleges that even though he "complained" to defendant Fischer of plaintiff's fear of being "set up" by officers at Auburn, defendant Fischer "failed to act." (Compl. ¶ 6). Plaintiff claims that, despite "repeatedly" requesting that defendant Fischer transfer him out of Auburn, plaintiff was allegedly again "set up" with a weapon in his cell. (Id.) Plaintiff was again charged with the possession of a weapon. (Pl.'s Stmt. Pursuant to R. 7.1 ¶ 16). Plaintiff was later found guilty for possessing the weapon and placed in punitive confinement for 18 months. (Compl. ¶ 6).
Plaintiff asserts three causes of action: (1) Defendant Fischer's "failure to properly train and supervise the officers and other employees under his command is the direct cause of plaintiff's placement in punitive confinement, after a procedurally defective hearing which was appealed to and affirmed by defendant's designee," (2) Defendant Fischer's "failure to follow his own rules and regulations and to properly supervise and train the hearing officers employed by [defendant Fischer] resulted in my placement in punitive confinement in violation of [defendant Fischer's] own regulations which warranted reversal on appeal," and (3) Defendant Fischer's "failure to properly train and supervise the officers under his employ resulted in my placement in punitive confinement without any mental health assessment as is required by [defendant Fischer's] own regulations based upon plaintiff's documented history of mental health treatment." (Compl. ¶ 7).
Defendant moves for summary judgment, arguing that he was not personally involved in the alleged constitutional deprivations. (Dkt. No. 25). Plaintiff has responded in opposition to the motion. (Dkt. No. 30).
Summary judgment is appropriate where there exists no genuine issue of material fact, and based on the undisputed facts, the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272--73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (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, 1224 (2d Cir.1994).
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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin v. Goord, 467 F.3d at 272. When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006). While a court "is not required to consider what the parties fail to point out," the court may in its discretion opt to conduct "an assiduous review of the record" even ...