The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Pro se Plaintiff Julio Isley Smith ("Smith"), an inmate in the New York State correctional system, commenced this 42 U.S.C. § 1983 action against nine corrections officers, sergeants, and the Deputy Superintendent of Green Haven Correctional Facility ("Defendants"). He claims that the Defendants harassed and threatened him, destroyed or stole his property, and brought groundless disciplinary charges against him in retaliation for his having complained about alleged officer misconduct.
The Court has reviewed Magistrate Judge Dolinger's Report and Recommendation ("R&R") dated July 28, 2011, as well as Smith's objections timely filed on August 29, 2011. For the reasons that follow, the Court adopts Magistrate Judge Dolinger's R&R in its entirety. Defendants' motion is, therefore, GRANTED.
On October 26, 1999, Smith was sentenced to fifty years in prison for his conviction of sexually abusing his nephew and a daughter of his cousin. On December 11, 2006, Smith was transferred to Green Haven Correctional Facility ("Green Haven"); his claims are based on his treatment at this facility. Smith is currently incarcerated at Southport Correctional Facility.
On September 7, 2007, Smith filed his first Complaint in this matter. On December 14, 2007, Judge Kimba M. Wood dismissed it, sua sponte, but granted leave to replead. Smith filed an Amended Complaint on February 25, 2008, in which he alleged that Defendants harassed him, destroyed or stole his property, including his legal papers, brought groundless disciplinary charges against him in retaliation for his having complained about alleged officer misconduct, and violated his due process rights during the disciplinary hearing.
On August 8, 2008, Defendants moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. Rule 12(b)(6). Magistrate Judge Dolinger issued a Report and Recommendation on March 11, 2009. This Court adopted Magistrate Judge Dolinger's Report and Recommendation on March 31, 2009, and granted Defendants' motion with respect to Defendants Maypes-Rhynders, Montegari and Hillman. As to the other Defendants, the Court held that Smith sufficiently pled retaliation, denial of due process, and denial of access to the courts.
On January 19, 2010, the remaining Defendants moved for summary judgment on four grounds. Specifically, Defendants allege that: (1) Smith failed to exhaust his administrative remedies for some or all of his claims; (2) Smith's retaliation claims fail because: (a) he has not shown that the accused officers were present during the alleged retaliatory incidents, (b) an inmate of ordinary firmness would not have been deterred from exercising his rights by the alleged conduct, and (c) the allegedly retaliatory disciplinary reports were later proven to be true; (3) Smith was afforded adequate due process protections at his prison disciplinary hearing; and (4) Smith's access to the courts claim fails because Smith did not show that the accused was responsible for the loss of his legal documents and because he suffered no cognizable injury from this loss.
On July 28, 2011, Magistrate Judge Dolinger issued a Report and Recommendation ("R&R") recommending that Defendants' motion be granted in its entirety. Smith filed timely objections.
II. The PLRA and Magistrate Judge Dolinger's R&R
The PLRA states that "[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 634 U.S. 516, 532 (2002). To properly exhaust administrative remedies, "prisoners must 'complete the administrative review process in accordance with the applicable procedural rules' -- rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Block, 549 U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
"[W]hile the PLRA's exhaustion requirement is 'mandatory,' certain exceptions apply." Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004) (internal citation omitted). A three-part inquiry applies when "a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies . . . ." Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Courts ask first "whether administrative remedies were in fact 'available' to the prisoner." Id. Next, courts consider whether the affirmative defense of non-exhaustion has been forfeited "or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Id. Finally, if the Court determines that administrative remedies were available to the plaintiff, and that the defendants are not estopped from raising the ...