The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate, filed a complaint pro se pursuant to 42 U.S.C. § 1983, alleging twenty-eight causes of action arising from events at two separate correctional facilities. Plaintiff's allegations include the use of excessive force and failure to prevent such conduct, deprivations of procedural due process, cruel and unusual punishment, violation of Plaintiff's right to practice his chosen religion, and retaliation for filing grievances and raising complaints regarding prison conditions.
Plaintiff commenced this action on August 18, 2008. See Complaint. Plaintiff filed an amended complaint on December 8, 2008, and a second amended complaint on December June 19, 2009. See Dkt. Nos. 10, 52. In his second amended complaint, he sought, among other things, an injunction ordering Defendants to release him from administrative segregation, or place him under involuntary protective custody, or continue his confinement to a special housing unit ("SHU") under Directive 499 § 301.5. Plaintiff further sought compensatory damages in the amount of $450,000 and punitive damages in the amount of $10,000 against each Defendant. Defendants moved to dismiss Plaintiff's second amended complaint on September 15, 2009. See Dkt. No. 76. Magistrate Judge Peebles issued a Report and Recommendation on September 27, 2010, in which he recommended that the Court grant Defendants' motion in part and deny it in part. See Dkt. No. 83, Report and Recommendation ("Report-Rec.").
Currently before the Court is Magistrate Judge Peebles' Report and Recommendation, Plaintiff's objections thereto, and Defendants' objections thereto. Specifically, Plaintiff objects to Magistrate Judge Peebles' recommendation that the Court dismiss Plaintiff's fourteenth cause of action, that Defendants Fischer, Roy, and LeClair conspired to hold Plaintiff in administrative segregation. See Dkt. No 88, Plaintiff's Objections ("Pltf. Obj.") at 4-8. Defendants object to the fact that Magistrate Judge Peebles did not recommend that the Court dismiss Plaintiff's complaint in its entirety and assert that the Court should dismiss Plaintiff's first, second, third, fourth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fifteenth, nineteenth, twenty-second, twenty-third, twenty-fourth, twenty-sixth, and twenty-seventh causes of action.
Plaintiff is a New York State prison inmate who was convicted of aggravated murder, attempted murder, and escape. Plaintiff's convictions for murder and attempted murder arose from his shooting and killing two New York State Troopers following his escape from Erie County jail.*fn2
People v. Phillips, 56 A.D.3d 1163 (4th Dep't 2008). After these convictions, Plaintiff entered DOCS custody at the Elmira Correctional Facility ("Elmira") on December 21, 2006. Plaintiff later transferred to the Clinton Correctional Facility ("Clinton"). Plaintiff's complaint includes events that occurred at both Elmira and Clinton.
Section 636 of Title 28 of the United States Code states that "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When reviewing a magistrate judge's report and recommendation, a district court judge "make[s] a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." Id. However, where "an objecting '"party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error."'" Webster v. Fischer 694 F. Supp. 2d 163, 169 (N.D.N.Y. 2010) (quoting Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 417 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))).
Courts use a two-step inquiry when deciding a Rule 12(b)(6) motion. First, they isolate the moving party's legal conclusions from its factual allegations. Second, they presume the factual allegations to be true and examine them for plausibility. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
To survive a Rule 12(b)(6) motion to dismiss, a pleading must contain more than a "blanket assertion" of entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). Rather, Twombly added a requirement that a pleading show plausible grounds for relief to the requirement of Federal Rule of Civil Procedure 8(a)(2) that a pleading "'sho[w] that the pleader is entitled to relief.'" Id. at 557 (quotation omitted). The Supreme Court explained this standard in Ashcroft, where it set forth that to withstand a motion to dismiss, a pleading must be "plausible on its face" such that it contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S. Ct. at 1949 (citation omitted).
When deciding a 12(b)(6) motion, a court may "consider documents attached to or incorporated by reference in [a] complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (citation omitted). Even where a "'plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may . . . take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quotation omitted).
B. Administrative segregation and due process claims*fn3
Plaintiff's fourth, fifth, eleventh, thirteenth, and fourteenth causes of action address his confinement in administrative segregation and the periodic review of this determination.
The Supreme Court has held that the placement of an inmate into administrative segregation may implicate the Fourteenth Amendment where the restraints placed on the inmate constitute 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 Second Circuit has held that confinement for a period of less than 101 days does not typically constitute such a hardship. See Colon v. Howard, 215 F.3d 227, 232 n.5 (2d Cir. 2000). Although the decision to enter an inmate into administrative segregation is typically one made by prison officials, inmates are entitled to procedural safeguards. To this end, due process requires (1) written notice of the charges; (2) the opportunity to appear at a disciplinary hearing to present witnesses and evidence; (3) a written statement by the hearing officer explaining his or her decision and reasoning; and (4), in some situations, the right to call witnesses and present evidence in his defense. See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). The hearing officer's disciplinary determination must have the support of at least "some evidence." Superintendent v. Hill, 472 U.S. 445, 447 (1985).
However, the Sandin decision eroded some of Wolff's safeguards. In Sandin, the Supreme Court held that an inmate's confinement in disciplinary segregation may not constitute such a significant deprivation as to implicate a liberty interest. See Sandin,515 U.S. 485-86. To determine when the full array of Wolff rights applies, the Court considered (1) whether confinement in disciplinary segregation reflected the conditions of other forms of discretionary confinement; (2) whether the decision to place an inmate in administrative segregation presented a major disruption to his environment; and (3) whether the decision affected the duration of the inmate's sentence. See id at 486-87.
Further, "where a prisoner's placement in restrictive confinement has both a punitive and an administrative, non-punitive basis, the placement decision will not be found to have impaired a protected liberty interest." Rosenberg v. Meese, 622 F. Supp. 1451, 1469 (S.D.N.Y. 1985) (citing Sher v. Coughlin, 739 F.2d 77, 81-82 (2d Cir. 1984)) (other citation omitted).
Regarding the hearing itself, "inmates have a right to 'be judged by a fair and impartial hearing officer.'" Kingwood v. Rourke, No. 9:97CV1906, 2002 WL 31309240, *4 (N.D.N.Y. Sept. 3, 2002) (quotation omitted). As a consequence, the participation of an insufficiently impartial hearing officer may infringe on a plaintiff's due process rights. See Wolff, 418 U.S. at 571. However, the mere "[p]reparation of an [administrative segregation] recommendation is not a basis for a § 1983 claim[;]" rather, a prisoner's due process rights remain intact so long as he has an opportunity to rebut the charges against him at a hearing. Edmonson, 21 F. Supp. 2d at 254-55 (citations omitted).
Here, Plaintiff's fourth cause of action implicates his due process rights. First, Plaintiff indicates that he experienced "years" of hardship because as a result of his hearing before Defendant Drown, Plaintiff lived in administrative segregation. See Second Amended Complaint at 37. Although this is a vague statement, it indicates that Plaintiff lived in administrative segregation for more than 101 days. Moreover, Plaintiff's allegation against Defendant Drown, taken as true, is sufficient to demonstrate a level of predisposition against Plaintiff on the part of Defendant Drown. Plaintiff is entitled to an impartial hearing officer, and Defendant Drown's alleged statements indicate a lack of impartiality. Accordingly, the Court adopts Magistrate Judge Peebles' Report and Recommendation and denies Defendants' motion to dismiss Plaintiff's fourth cause of action.*fn4
As to Plaintiff's fifth cause of action, against Defendant Seyfert, Plaintiff merely alleged that Defendant Seyfert filed an administrative segregation recommendation based upon false and misleading statements. However, since the preparation of an administrative segregation recommendation cannot serve as the basis of a § 1983 claim, and since Plaintiff had the opportunity to rebut these allegedly false charges at a hearing, the Court adopts Magistrate Judge Peebles' Report and Recommendation, finds that Plaintiff has not stated a viable claim, and grants Defendants' motion to dismiss Plaintiff's fifth cause of action.
Regarding Plaintiff's eleventh and thirteenth causes of action, Plaintiff does not deny that Defendants conducted periodic post-segregation reviews. Instead, Plaintiff makes conclusory allegations that such reviews were "sham[s]" and "mere formalities." See Second Amended Complaint at ¶¶ 22, 24. However, without allegations to indicate actual bias, Plaintiff's claims are implausible and insufficient to satisfy the Iqbal standard. Accordingly, the Court adopts Magistrate Judge Peebles' Report and Recommendation and grants Defendants' motion to dismiss Plaintiff's eleventh and thirteenth causes of action.
C. Allegedly false misbehavior report
To state a claim for retaliation regarding the filing of a false misbehavior report, a plaintiff must allege that a defendant not only filed the report but that his motivation to do so relates to the plaintiff having engaged in protected activity. See Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). When examining a complaint for allegations of retaliatory animus, courts typically look for "[t]ypes of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation[, such as] . . . temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Barclay v. N.Y., 477 F. Supp. 2d 546, 558 (N.D.N.Y. 2007) (citations omitted).
Here, Plaintiff fails to allege any facts to support a claim of retaliation. First, Plaintiff claims that Defendants filed these allegedly false misbehavior reports to retaliate against him for his murder of two New York State Troopers. See Second Amended Complaint at ¶ 30. Even assuming this is true, Plaintiff's killing of two police officers is criminal conduct, and it is obviously not protected by the constitution or by statute. In addition, the misbehavior report was not false. Plaintiff admitted performing the conduct which resulted in the misbehavior report. See Dkt. No. 67, Exhibit "2" attached thereto, McGowan Declaration. Accordingly, the Court adopts this portion of Magistrate Judge Peebles' Report and Recommendation and grants Defendants' motion to dismiss Plaintiff's seventeenth cause of action.
Inmates have a well-established constitutional right to meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 822 (1977). The Supreme Court has held that to state a claim for denial of access, an inmate "must . . . demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1996). A mere delay in working on a legal action or communicating with the court does not constitute a constitutional violation. See Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (citations omitted).
Plaintiff's second amended complaint states that Defendants Racette and Jarvis interfered with his access to the courts when they denied him permission to receive a contact visit on July 4, 2007, from a paralegal, Wendy Gambles. See Second Amended Complaint at ¶ 23. Plaintiff alleged that this deprived him of the ability to give legal documents to Ms. Gambles, which interfered with his ability to consolidate a pending appeal with a potential appeal. See id.
On this issue, the Court respectfully disagrees with Magistrate Judge Peebles' Report and Recommendation. Plaintiff alleges that his prejudice took the form of a delayed ability to consolidate a pending appeal with a potential appeal. Although this may have caused Plaintiff some inconvenience, Defendants did not take any action that actually prevented Plaintiff from pursuing either of these appeals, one of which was not yet at the appellate stage. Moreover, Plaintiff has not produced any evidence indicating that he experienced an adverse judicial decision in either of these actions because of the alleged denial of access to courts. In fact, Plaintiff ultimately pursued these appeals, and lost. See People v. Phillips, 56 A.D.3d 1163 (4th Dep't 2008); People v. Phillips, 56 A.D. 3d 1168 (4th Dep't 2008). Accordingly, the Court respectfully rejects Magistrate Judge Peebles' recommendation in this regard and grants Defendants' motion to dismiss Plaintiff's twelfth cause of action.
E. Excessive force/Failure to intervene
An Eighth Amendment claim for excessive force has an objective and a subjective element. See Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). The objective element focuses on the effect of a defendant's conduct, while the subjective element focuses on the defendant's motive. See id.
The objective element is "contextual and responsive to 'contemporary standards of decency.'" Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quotation omitted). The Second Circuit has held that, "[w]here a prison official acts 'maliciously and sadistically,' 'contemporary standards of decency always are violated.'" Abreu v. Nicholls, 368 Fed. Appx. 191, 193 (2d Cir. 2010) (quoting Wright 554 F.3d at 268-69). Thus, "[i]n assessing [the objective] component, the court must ask whether 'the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation.'" Wright, 554 F.3d at 268 (quotation omitted).
The subjective element considers whether the prison official acted wantonly. Regarding this element, "[t]he 'core judicial inquiry' . . . [is] . . . 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (quoting [Hudson v. McMillan,] 503 U.S. [1,] 7, 112 S. Ct. 995 [(1992)]) (other citation omitted).Courts may consider the extent of the injury that the plaintiff inmate suffered as an indication of whether the amount of force was reasonably necessary, but a plaintiff need not sustain a serious injury to maintain an excessive force claim. See id.
A corrections officer who witnesses an assault upon an inmate may be responsible for any resulting constitutional deprivation. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted). In addition, law enforcement officials are under an affirmative duty to intervene where other officers violate the constitutional rights of an individual in their presence. See Mowry v. Noone, No. 02-CV-6257, 2004 WL 2202645, *4 (W.D.N.Y. Sept. 30, 2004) (citations omitted); see also Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (stating that "[f]ailure to intercede ...