The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Kenneth Brobston filed this civil rights action, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens"), against the Defendants claiming his constitutional rights were violated when he was incarcerated at Federal Correctional Institution in Ray Brook ("FCI Ray Brook"). Dkt. No. 1, Compl. On December 15, 2010, Defendants filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. Dkt. Nos. 29 & 32. Plaintiff opposes the Motion. Dkt. No. 34. For the reasons that follow, this Court recommends that Defendants' Motion be granted and this entire action be dismissed.
Unless otherwise indicated, the following facts are well-supported and not reasonably controverted. Pro se Plaintiff Kenneth Brobston is a federal inmate, originally sentenced in the United States District Court for the Central District of Illinois for violating 21 U.S.C. §§ 846, 841(a)(1), & (b)(1)(A) (Conspiracy to Manufacture Methamphetamine). Dkt. No. 29-5, Robin VanWeelden Decl., dated Nov. 19, 2010, at ¶ 4 & Ex. A (docketed as Dkt. No. 29-6) at pp. 1-4.*fn3
On July 6, 2009, while incarcerated at FCI Ray Brook, Plaintiff submitted an Inmate Request to Staff (also known as a "cop out"), complaining about a new prison policy that went into effect on that date and prevented him from leaving the UNICOR factory, where he worked, to go to his dorm during the lunch break. Dkt. No. 29-8, Jon Hensley Decl., dated Nov. 9, 2010, at ¶¶ 5 & 7; Ex. A.
Plaintiff complained that because he could not return to his dorm, he was forced to share the bathroom with three hundred other people and that there was a shortage of toilet paper. Id. He also complained that because he could not freely return to his cell, he had no access to hot water, microwaves, the telephone, or his counselor. Id. The policy in issue, implemented via Memorandum Notice on June 22, 2009, did not, per se, prevent the inmates from returning to their cells during their forty-five minute lunch break, but, for security reasons, if while in their cells the inmates were confined to their housing units because of it being locked down, such inmates could no longer obtain special release from the housing unit in order to return to the UNICOR factory. Hensley Decl. at ¶ 6 & Ex. C.
Defendant Jon Hensley, Ray Brook Superintendent of Industries and Education, responded to Plaintiff's July 6th Complaint, noting that, notwithstanding the new policy, Plaintiff still had access to UNICOR and Recreation toilets and that his other concerns, such as meeting with his counselor or using the telephone, could be met outside his UNICOR working hours. Id. at ¶ 7 & Ex. A. IN fact, UNICOR has three inmate restrooms, each with multiple toilets and urinals. Id. at ¶ 8. On July 13, 2009, Plaintiff submitted a second Request to Staff complaining that on two separate dates, July 6th and 9th, there was a shortage of toilet paper at UNICOR. Id. at ¶¶ 5 & 9; Ex. B. This complaint was made specifically against Defendants Hensley and CO Duckett for their alleged refusal to give Plaintiff the toilet paper he requested. Hensley Decl., Ex. B. According to Plaintiff's written complaint, Plaintiff alerted Defendant Duckett about the shortage of toilet paper on July 6th, but he refused to give Plaintiff any toilet paper; instead, Plaintiff received a roll from another inmate who overheard the conversation. Id. Then, on July 9th, Plaintiff informed Defendants Duckett and Hensley that there was no toilet paper and that he needed to use the bathroom stressing that it was an emergency. Plaintiff was denied toilet paper from 7:30 a.m. until 9:00 a.m., and because there was no move scheduled during that time, he could not return to his cell. Id. Shortly after 9:00 a.m., Defendant Hensley provided Plaintiff with a roll of toilet paper, but en route to use the bathroom, Plaintiff soiled himself. Id. Plaintiff further expressed concern in the "cop-out" that Defendants Hensley and Duckett may be annoyed with him and may be motivated to retaliate against him. Id. According to his verified Complaint, after showering and changing his soiled clothes, Plaintiff informed Mr. Lucas, his Case Manager, and Ms. Sepanek, his Unit Counselor, about what transpired and requested that his complaints be placed on the record. Compl. at ¶ 8.
Defendant Hensley responded to Plaintiff's complaint, indicating that sufficient toilet paper was issued for the week of July 6-10; specifically, in addition to the normal weekly supply, upon being informed of the shortage of toilet paper, the factory issued another week's supply. Hensley Decl., Ex. B.
At some point while at Ray Brook, Plaintiff had inquired whether he could be transferred to another facility in Kentucky so that he could participate in a vocational welding program and be closer to home. Dkt. No. 29-9, Jackii Sepanek Decl., dated Nov. 19, 2010, at ¶ 5. As a result of Plaintiff's inquiry, Case Manager Lucas and the Supervisor of Education consulted with personnel at FCI Ashland in Kentucky and confirmed that Plaintiff met all the criteria for enrollment in their welding program. Id. On July 14, 2009, a Request for Transfer was completed and signed off by Defendant Lucas, Defendant Barbara Darrah, Plaintiff's Unit Manager, and Defendant Deborah Schult, FCI Ray Brook Warden. Id., Ex. B.
Plaintiff claims that on July 13, 14, and 15, 2009, Defendants Lucas, Darrah, and Sepanek denied Plaintiff's requests for "BP.8" forms so that Plaintiff could file a complaint about Defendants Hensley, Duckett, and Peterson, who was the factory manager for UNICOR.*fn4 Compl. at ¶¶ 13-18. He further claims that on July 14th, Defendant Lucas told Brobston that he's been receiving complaints about him because of what happened in UNICOR on July 6th and 9th and that he was holding up Plaintiff's transfer papers. Id. at ¶ 15.
On July 27, 2009, Plaintiff was issued an Incident Report, authored by Defendant Peterson, charging Plaintiff with possessing a narcotic in violation of the prison code. VanWeelden Decl., Ex. F (docketed as Dkt. No. 29-6) at p. 17. According to that Report, on July 27th, at approximately 1:15 p.m., Defendant Peterson and David Kirby*fn5 conducted a visual search of Brobston while he was on the UNICOR loading dock. Id. During this search, Brobston "attempted to stuff a cellophane wad in the floor drain." Id. At Kirby's direction, Brobston handed over the item, which was taken to the Lieutenant Degon*fn6 . Id. at pp. 17 & 19. Reportedly, Brobston was asked what the item was and he responded, "it[']s weed." Id. Lieutenant Degon confirmed that the packets he received contained a green leafy substance and tested positive for marijuana. Id. Peterson's Incident Report was entered on the Bureau of Prison's ("BOP") computerized system with the notation "SUSPENDED PENDING REFERRAL TO AUSA." VanWeelden Decl. at ¶ 7 & Ex. G (docketed as Dkt. No. 29-6) at pp. 28-29. On July 27th, in accordance with BOP policy, Plaintiff was placed in administrative detention within the special housing unit ("SHU") "pending an investigation of a violation of Bureau regulations." Id, Exs. H (docketed as Dkt. No. 29-7) at p. 8 & Ex. I (docketed as Dkt. No. 29-7) at p. 15. According to the Administrative Detention Order, written by Defendant Halladay, Plaintiff received a copy of the notice of administrative detention, as witnessed by S. Degon. Id., Ex. I at p. 15. However, in accordance with BOP policy, because the BOP investigation into Defendant Peterson's Incident Report was suspended pending criminal prosecution, there was no requirement that Plaintiff be provided a copy of the subject Incident Report. Id., Ex. H at pp. 4-5. Also in accordance with BOP policy, during his time in SHU, Plaintiff was subjected to periodic urinalysis testing. Id. at ¶ 11 & Ex. J (docketed as Dkt. No. 29-7) at pp. 16-20.
On July 28, 2009, a "Referral of an Inmate Criminal Matter for Investigation" was completed by Defendant Helms, who is a member of the Special Investigations Section ("SIS") Department, and the matter was referred to the United States Attorney's Office. Id., Ex. F at p. 21. On February 10, 2010, a grand jury in the Northern District of New York issued an Indictment charging Plaintiff with violating 18 U.S.C. §§ 1791(a)(2) and (b)(3), for knowingly possessing "a prohibited object; to wit, marijuana, a schedule I controlled substance." Id., Ex. B (docketed as Dkt. No. 29-6) at p. 6; see also United States of Am. v. Brobston, Case No. 8:10-CR-73 (FJS) (N.D.N.Y.). On March 4, 2010, a Writ of Habeas Corpus Ad Prosequendum was issued, and on March 16, 2010, Plaintiff was released from Ray Brook to the United States Marshals Service for prosecution of this criminal charge. VanWeelden Decl., Ex. C & D (docketed as Dkt. No. 29-6) at pp. 7-10. Plaintiff thereafter appeared before the undersigned for his Initial Appearance and Arraignment, where, after being advised of his rights, he pled not guilty and waived his right to a detention hearing. See United States of Am. v. Brobston, Case No. 8:10-CR-73, Min. Entry, dated Mar. 17, 2010. Plaintiff was remanded to the custody of the U.S. Marshals and was held at the Albany County Correctional Facility. Id., Dkt. No. 3. On July 8, 2010, Plaintiff pled guilty to the one count Indictment with no plea agreement in place. Id., Dkt. No. 19 (Change of Plea Hr'g Tr.). On December 1, 2010, Plaintiff was sentenced to be imprisoned for a term of four months to run consecutively with the current sentence, with three years supervised release to follow. Id., Dkt. No. 15. Plaintiff filed a Notice of Appeal of that Judgment, but subsequently withdrew such appeal. Id., Dkt. Nos. 16 & 20.
In the interim, on February 8, 2010, Plaintiff filed a Petition for a Writ of Habeas Corpus in this District challenging his administrative SHU detention.*fn7 See Brobston v. Schult, 9:10-CV-145 (N.D.N.Y.) (JKS), Dkt. No. 1, Pet. On March 3, 2011, the Honorable James K. Singleton, Visiting United States District Judge, issued a Dismissal Order noting first that Plaintiff's Petition complaining about the conditions of his confinement should have been brought as a action pursuant to 42 U.S.C. § 1983 and that such an action had already been brought by Plaintiff in this District. Id., Dkt. No. 20 at pp. 3-4 (referring to the current case). Judge Singleton further found that to the extent the case is properly brought as a Habeas Petition, the Petition should be denied because Brobston failed to exhaust his administrative remedies and failed to show good cause for such failure. Id. at p. 5. He further found that the Petition was moot because the relief sought in that action was Brobston's release from administrative SHU confinement at FCI Ray Brook, which had been accomplished during the pendency of the Petition when Brobston was transferred from Ray Brook to Albany County Jail pending the criminal prosecution. Id. at pp. 5-6; see also supra note 7. For all these reasons, the Petition was dismissed without prejudice to Brobston continuing his civil rights action. Id. at p. 6.
A. Standard of Review -- Rule 56(b)
The Defendants have moved for dismissal of the Complaint pursuant to FED. R. CIV. P. 12(b)(6), and in the alternative have moved for summary judgment, pursuant to FED. R. CIV. P. 56.
Dkt. No. 18-1. In moving for summary judgment, the Defendants submitted various documents outside the pleadings, which have been considered by the Court. It is within a court's discretion to convert a motion filed under Rule 12(b) and (c) into a motion seeking summary judgment when matters outside of the pleadings have been presented and accepted by the court. Baum v. Northern Dutchess Hosp., 764 F. Supp. 2d 410, 416 (N.D.N.Y. Jan. 24, 2011) (citing Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566 (2d Cir. 2005)) (citations omitted). In light of this additional proof, and because Plaintiff also had notice and an opportunity to submit his own evidence, this Court has decided to proceed under the summary judgment standard of review.
Summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. Rule 56(a). The moving party bears the initial burden through the production of admissible evidence to establish that no genuine dispute ...