The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Julio Isley Smith ("Plaintiff") against former Great Meadow Correctional Facility Superintendent Gary Greene ("Defendant") and two John Doe correctional employees, are the following: (1) Defendant Greene's motion for summary judgment (Dkt. No. 89); and (2) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendant's motion be granted in its entirety and that Plaintiff's Amended Complaint be dismissed (Dkt. No. 104). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted; Plaintiff's claims against the two John Doe Defendants are sua sponte dismissed; and Plaintiff's Amended Complaint is dismissed in its entirety.
Plaintiff filed his Amended Complaint in this action on December 12, 2006. (Dkt. No. 10.) Generally, construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, between approximately February 27, 2006, and March 16, 2006, while he was incarcerated at Great Meadow Correctional Facility ("Great Meadow C.F.") in Comstock, New York, the above-captioned Defendants violated his constitutional rights. (See generally Dkt. No. 10 [Plf.'s Am. Compl.].) More specifically, Plaintiff alleges, inter alia, that in February 2006 he filed a formal grievance with the New York State Inspector General ("NYSIG") after witnessing an alleged beating of a fellow Muslim prisoner named Cleo Wright. (Id.) Plaintiff further alleges that, as a result of filing this grievance, Defendant Greene retaliated against him, in violation of his First Amendment rights, by ordering his transfer to Auburn Correctional Facility ("Auburn C.F.") on March 16, 2006, the same day that state officials from the NYSIG's office arrived at Great Meadow C.F. to interview Plaintiff about his grievance. (Id.) Finally, Plaintiff alleges that the John Doe Defendants subjected him to excessive force, in violation of the Eighth Amendment. (Id.)
Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Defendant Greene's Motion for Summary Judgment
On September 24, 2010, Defendant Greene filed a motion for summary judgment seeking dismissal of all claims. (Dkt. No. 89.) Generally, in support of his motion for summary judgment, Defendant Greene argues as follows: (1) Plaintiff has failed to adduce admissible record evidence establishing that Defendant Greene was personally involved in Plaintiff's transfer to Auburn C.F.; (2) even assuming that Defendant Greene was personally involved in Plaintiff's transfer, Plaintiff has failed to adduce admissible record evidence establishing that the transfer was retaliatory in nature; (3) Plaintiff has failed to exhaust his administrative remedies with respect to his claims; and (4) based on the current record, Defendant Greene is protected from liability as a matter of law by the doctrine of qualified immunity. (Id.)
On November 18, 2010, after several extensions of time were granted by the Court, Plaintiff filed a response in opposition to Defendant Greene's motion. (Dkt. No. 98.) In his response, Plaintiff argues as follows: (1) Defendant Greene was personally involved in Plaintiff's transfer from Great Meadow C.F. to Auburn C.F.; (2) establishing a prima facie case is not necessary to prevail on a conspiracy claim under 48 U.S.C. § 1985; (3) there is no admissible record evidence establishing that Plaintiff was scheduled for transfer prior to the filing of his grievance; (4) Plaintiff failed to exhaust his administrative remedies with respect to his claims because he was threatened and intimidated by prison staff not to do so; and (4) because Plaintiff is suing Defendant Greene in his individual capacity, Defendant Greene is not entitled to qualified immunity. (Id.)
On November 24, 2010, Defendant Greene filed a reply to Defendant's response. (Dkt. No. 99.) In his reply, in addition to reiterating previously advanced arguments, Defendant argues that, because Plaintiff's conspiracy claim is beyond the scope of his Amended Complaint, it should be dismissed. (Id.)
On January 27, 2011, with permission of the Court, Plaintiff filed a sur-reply. (Dkt. No. 103.) In his sur-reply, Plaintiff argues as follows: (1) because he was not allowed a final opportunity to conduct discovery, the Court has made it impossible for him to (a) respond to Defendant's motion for summary judgment, and (b) establish that Defendant Greene conspired to deny him the right to free speech; (2) he failed to exhaust his administrative remedies because Auburn C.F. correctional officers threatened him, and therefore exhaustion is not a requirement for him to commence this action; (3) Defendant Greene's retaliation effectively chilled him from asserting his constitutional rights; (4) Defendant Greene is not entitled to qualified immunity; and
(5) other Defendants were dismissed from this action prematurely. (Id.)
C. Magistrate Judge Baxter's Report-Recommendation
On February 1, 2011, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendant Greene's motion be granted and that Plaintiff's Amended Complaint be dismissed in its entirety, with prejudice. (Dkt. No. 104.) In support of his recommendation, Magistrate Judge Baxter found, inter alia, as follows: (1) Plaintiff failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Greene was personally involved in Plaintiff's transfer to Auburn C.F.; (2) Plaintiff's retaliation claim should be dismissed because (a) the record evidence establishes that he would have been transferred in March 2006 regardless of whether he complained to DOCS or the IG about the alleged assault on another inmate, and (b) the controlling law on the issue of whether an inmate's complaints about the treatment of another inmate are protected by the First Amendment was unclear in 2006, and therefore any DOCS employee personally involved in the decision to transfer Plaintiff would be protected from liability as a matter of law by the doctrine of qualified immunity; and (3) because the Court has granted Plaintiff numerous opportunities to engage in discovery, articulate and support his claims, and ...