The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate*fn2 in the custody of the New York State Department of Correctional Services ("DOCS")*fn3 , alleges that Defendants, all employees of DOCS, violated his federal constitutional rights.
Now before the Court are Defendants' Motion for Summary Judgment [#27] and Plaintiff's Cross-Motion for Summary Judgment [#37]. For the reasons that follow, Defendants' motion is granted in part and denied in part, and Plaintiff's cross-motion is denied.
On September 26, 2003, while Plaintiff was housed at Attica Correctional Facility ("Attica"), he was walking to his job at the facility law library, when he was stopped by Corrections Officer Fleckenstein ("Fleckenstein"), who searched a file of papers that Plaintiff was carrying. (Plaintiff's Deposition "Pl. Dep." at 17-19). In searching the file, Fleckenstein observed documents pertaining to an organization named Association for Community Teamwork ("ACT"), a non-profit corporation of which Plaintiff was the President.*fn4 Previously, Plaintiff had been told by DOCS officials that he could possess four pages of documents pertaining to ACT. Specifically, in or about 2003, officials at Attica confiscated certain mail from Plaintiff concerning ACT, and he filed an inmate grievance. See, Jackson v. Goord, 305 A.D.2d 839, 840, 758 N.Y.S.2d 558 (3d Dept. 2003). Ultimately, see id., on May 21, 2003, DOCS's Central Office Review Committee ("CORC") determined that Plaintiff could have four pages of the confiscated mail returned to him. See, [#37-2] at 20. The four pages consisted of "various literature related to the Association for Community Teamwork Inc. To include two form letters, one Certificate of appointment, and one Certificate of Association." Id. at 22. Notably, CORC's decision did not explain why Plaintiff was entitled to have those documents, and what, if any, documents were not returned to him. Nor did CORC indicate that Plaintiff was able to establish ACT as an inmate organization. Moreover, Plaintiff admits that ACT was not an approved inmate organization, and that he had not applied to have ACT approved as an inmate organization, though he had considered doing so. Id. at 38-40, 79. Of the documents that Fleckenstein seized from Plaintiff's file, one was a letter written by Plaintiff on ACT letterhead, dated "September, 2003," which was obviously created after the CORC decision. See, Levine Declaration, Ex. B.
In addition to the ACT materials, Fleckenstein found other documents in Plaintiff's possession, some of which he surmised were created using Attica's law library's computer. Specifically, they are: 1) a letter, written by Plaintiff, to the "Nation of Gods & Earth*fn5 , North, South, East & West," from "The Nation of Gods & Earths, Attica State Prison," containing the names, identification numbers, and locations of nineteen prisoners ; 2) correspondence regarding the Nation of Gods and Earths; and 3) a writing entitled "The Confederate Order," which purports to be Plaintiff's statement to the U.S. Congress concerning a conspiracy to deprive him of his rights.*fn6
Upon discovering these materials, Fleckenstein issued Plaintiff a misbehavior report, charging him with three infractions: 1) possessing unauthorized organization materials; 2) smuggling; and 3) misuse of state property. With regard to the unauthorized organizations violation, Fleckenstein's misbehavior report refers to ACT, "which is not a DOCS approved organization," and "another non DOCS organizational group with other inmates' names and numbers," apparently referring to the Nations of Gods & Earth letter, which contains such information. Fleckenstein's report indicates that he turned the confiscated materials into the facility's contraband office.
Fleckenstein notified defendant Corrections Sergeant Norcross ("Norcross") concerning his search of Plaintiff's file, and Norcross authorized Fleckenstein to search Plaintiff's cell. Fleckenstein searched Plaintiff's cell and confiscated two "draft bags" of documents, including additional documents pertaining to ACT, Plaintiff's personal letters and diary, and literature concerning various religions. Some of the documents allegedly indicated that Plaintiff was soliciting membership in ACT among inmates and persons outside the prison,*fn7 that he had provided legal advice to an inmate, and that he was requesting that someone outside the prison send him cigars to sell inside the prison. On October 2, 2003, Norcross issued a second misbehavior report, charging Plaintiff with five infractions: 1) soliciting goods or services; 2) smuggling; 3) unauthorized organization activity; 4) violation of facility correspondence rule; and 5) providing unauthorized legal assistance. Regarding the charge for unauthorized organization activity, Norcross's misbehavior report states, in pertinent part: "While going through the papers I found that Jackson is and has been soliciting inmates and civilians to join the unauthorized organization (ACT). . . . Papers also show that inmate Jackson is having D. Morris send materials for ACT into DOCS facilities by marking them Legal Mail." Norcross Misbehavior Report dated October 2, 2003.
Defendant Randy James ("James"), Deputy Superintendent for Security at Attica, ordered that Plaintiff be placed in the Special Housing Unit ("SHU") pending his disciplinary hearing. In the SHU, Plaintiff was initially given clothing that was dirty, or at least stained. Id. at 23. After he complained, Plaintiff was given different clothing. Id. at 24. Plaintiff was unable to sleep because of noise being made by other inmates. There were security cameras in the SHU, including in the shower area, and Plaintiff believes that the cameras invaded his privacy. Plaintiff went on a hunger strike to protest his placement in SHU and the conditions in the SHU. Plaintiff wrote to Attica's Superintendent, defendant James Conway ("Conway"), to complain about the conditions in the SHU and to notify Conway that he was on a hunger strike. Conway did not intervene in Plaintiff's hunger strike, which lasted fourteen days. Id. at 25-26. However, Conway responded that Attica's Medical Department typically oversaw hunger strikes. See, Conway Memo to Plaintiff dated September 30, 2003. Subsequently, Plaintiff, who was taking fluids, was seen by facility medical staff at various times during his hunger strike. A nurse came through the SHU for sick call each day, and a doctor provided Plaintiff with sleeping pills. Pl. Dep. at 65.
On October 10, 2003, defendant James Kennedy ("Kennedy"), a hearing officer at Attica, concluded Plaintiff's disciplinary hearings on Fleckenstein's and Norcross's misbehavior reports. Kennedy found Plaintiff guilty of smuggling and unauthorized organizational activities, but not guilty of damaging/misusing state property. In his written determination, Kennedy observed that Plaintiff believed that he was entitled to possess materials pertaining to ACT, "due to the decision in a prior superintendent's proceeding."*fn8
However, Kennedy found that Plaintiff was not entitled to engage in organizational activities for ACT, since ACT was not an authorized prison organization. Kennedy imposed a total sentence of 90 days keeplock*fn9 and 90 days loss of privileges. *fn10 Upon completion of the hearing, Plaintiff was released from SHU, to begin serving his keeplock sentence. Accordingly, Plaintiff spent fourteen days in SHU before being released to keeplock. See, Pl. Dep. at 28.
Plaintiff appealed Kennedy's ruling to Conway, and on October 23, 2003, Conway reversed Plaintiff's conviction on Norcross's misbehavior report, and affirmed Plaintiff's conviction on Fleckenstein's misbehavior report, which reduced Plaintiff's keeplock sentence to 45 days. Plaintiff again appealed, and on November 20, 2003, Donald Selsky ("Selsky"), DOCS Director of Special Housing/Inmate Discipline, reversed the conviction on Norcross's misbehavior report, and expunged Plaintiff's record. Plaintiff served about a month in keeplock before the reversal. See, Pl. Dep. at 28, 30, 59.). Such keeplock confinement consisted of Plaintiff being confined to his usual prison cell, where he ate his meals. See, Pl. Dep. at 31 ("I was in general population, but I was confined to a regular cell.").
On November 23, 2003, Plaintiff wrote to James and requested the return of the materials that were seized from his cell. On December 3, 2003, James denied Plaintiff's request. Plaintiff then wrote to Conway, and on December 29, 2003, Conway responded that Plaintiff was not permitted to have materials pertaining to ACT, since it was an unauthorized organization. The facility retained documents pertaining to the Nation of Gods and Earth in Plaintiff's file,*fn11 and had Plaintiff mail the ACT documents out of the facility to family members.
On October 14, 2003, Plaintiff filed an inmate grievance, seeking a determination that the search of his cell was not authorized by DOCS rules,*fn12 and also seeking the return of the confiscated items. Plaintiff also sought a declaration that ACT was an organization that did not need approval from DOCS. Additionally, Plaintiff complained about the conditions in the SHU, and he maintained that his confinement in SHU was improper. The Inmate Grievance Review Committee ("IGRC") dismissed the grievance. On November 7, 2003, Plaintiff filed an inmate grievance, demanding that he be provided with his property and that he be able to witness the collection and storage of his property. IGRC denied the grievance, and on January 21, 2004, Conway denied Plaintiff's appeal. On March 3, 2004, the Central Office Review Committee ("CORC") accepted Plaintiff's appeal in part. On November 6, 2003, Norcross issued a memo, indicating that "all" papers pertaining to ACT had been mailed out of the facility, and that the papers concerning the Nation of Gods and Earths had been put in Plaintiff's file. On November 7, 2003, Conway sent a memo to Plaintiff which stated that "ACT is not an authorized organization and you are not permitted to solicit membership in an unauthorized organization."
On November 24, 2003, Plaintiff filed a grievance seeking the return of his property. IGRC denied the grievance, and on December 23, 2003, Conway denied Plaintiff's appeal. On February 18, 2004, CORC affirmed Conway's ruling. In that regard, CORC indicated that although DOCS was in the process of preparing a program to accommodate the religious practices of the Nation of Gods and Earths, materials pertaining to the group were "currently considered unauthorized materials and should be disposed of in accordance with Directive #4422, Section III.G.4." CORC further indicated that the ACT materials were contraband, and that after being given his "disposal options," Plaintiff had chosen to have the materials mailed "out of the facility," presumably to a family member.
In December 2003 and January 2004, Plaintiff filed additional grievances demanding the return of seized religious materials and materials pertaining to ACT. Conway denied both grievances, and CORC affirmed Conway's rulings.
On April 28, 2004, Plaintiff filed an inmate grievance against unnamed staff who allegedly harassed him in C Block. See, Pl. Request for Discretionary Review dated May 20, 2004. On May 1, 2004, Plaintiff was elected by his fellow inmates to serve as an inmate representative on Attica's IGRC. On May 2, 2004, Plaintiff filed a grievance against unnamed staff members who allegedly conspired to intimidate him. Id. On May 9, 2004, Plaintiff, who was housed in C Block, filed an inmate grievance against A Block officers who searched him as he was returning to his cell from the visiting room. On May 12, 2004, Plaintiff was transferred from C Block to A Block. Complaint ¶ 55. On May 17, 2004, Corrections Sergeant Burlow ("Burlow") interviewed Plaintiff concerning the grievances that he had recently filed. See, Pl. Request for Discretionary Review dated May 20, 2004.
On or about May 18, 2004, Burlow issued Plaintiff a misbehavior report for violating the facility's phone policy, which limited calls to 15 minutes. According to the misbehavior report, on April 22, 2004 and May 13, 2004, Plaintiff violated Directive 4423 by having thirty-minute phone calls, in violation of the fifteen-minute call limit. Plaintiff was placed in keeplock pending the outcome of his hearing. Pl. Dep. at 96. Also that day, James ordered that Plaintiff undergo urinalysis for drug use. Corrections Officer Bochynski ("Bochynski") collected Plaintiff's urine sample, and Corrections Officer Connor ("Connor") tested the sample using the ETS Automated Drug Analyzer. See, Connor Misbehavior Report dated May 19, 2004. Connor reportedly conducted two tests, both of which indicated that Plaintiff had used cannabinoids. On May 19, 2004, Connors issued Plaintiff a misbehavior report for violating Rule 113.24, which prohibits drug use. Plaintiff maintains that the test results were false.
On May 18, 2004, at Burlow's direction Corrections Officer Odachonski ("Odachonski") searched Plaintiff's cell and seized various documents. As a result, on June 14, 2004, Norcross issued Plaintiff another misbehavior report, charging him with a Tier III infraction, for possessing documents pertaining to ACT and engaging in unauthorized organizational activity, in violation of Rule 105.12. In that regard, Norcross indicated that Plaintiff possessed "many pages of typed and written information about an organization called Action for Community Team Work (ACT)[.] [T]his is an unauthorized organization by DOCS[.] [W]ithin the material Jackson is trying to recruit inmate members from the Attica Correctional Facility inmate population." Hearing Transcript at 2.
On May 20, 2004, Corrections Lieutenant Dougherty conducted a Tier II disciplinary hearing on the phone infraction, and found Plaintiff guilty. According to Dougherty's written disposition, Plaintiff admitted that he exceeded the fifteen-minute phone call limit, but did not think that it was a problem because no one was waiting to use the phone, and because no one warned him that this time had expired, until after 30 minutes had elapsed. Plaintiff also argued that pursuant to Directive 4423(8)-(E)(6), he was permitted to use the phone for up to thirty minutes. Plaintiff admitted that Conway had discretion to limit that to 15 minutes, which he had done in a memorandum dated December 3, 2002, but Plaintiff argued that the reason Conway had done so was only to ensure that other inmates would not be prevented from using the phone. Plaintiff further argued that a buzzer or other warning should have sounded after fifteen minutes. Dougherty disagreed and imposed a sentence of 30 days keeplock and 30 days loss of phone. Plaintiff did not actually serve the keeplock sentence, however, because in the interim he was keeplocked on the separate Tier III disciplinary charge for drug use. Pl. Dep. at 102.
On May 20, 2004, Plaintiff appealed Dougherty's ruling to Superintendent Conway, alleging that he was being retaliated against for filing grievances. Specifically, Plaintiff alleged that on May 17, 2004, Burlow interviewed him regarding his grievances, and that subsequently he received the aforementioned misbehavior reports. Plaintiff alleged that Burlow was retaliating against him, by filing misbehavior reports regarding the phone, and by selecting him for urinalysis and a cell search. He also alleged that Dougherty imposed the maximum sentence, 30 days keeplock, in order to prevent Plaintiff from acting in his capacity as an elected IGP representative. On May 24, 2004, James denied the appeal, and indicated that there was no evidence of a conspiracy against Plaintiff. Conway denied Plaintiff's request for discretionary review and appeal.
On May 26, 2004, Corrections Counselor J. Roach ("Roach") concluded a Tier III disciplinary hearing on the drug misbehavior report. At the hearing, James testified that the urinalysis was not random, and that Plaintiff was part of a group that he had specifically selected for testing, based on information that he had obtained. Hearing Transcript ("I identified him as part of [a] group. There's nothing random about it. It was [sic] he was selected by me because of definite and specific material."). However, James declined to explain the reason for the testing. Plaintiff maintained that the test result was false, because the tested urine was not his, and that he was set up in order to remove him from the Inmate Grievance Program. However, Bochynski testified that the urine sample that he collected was Plaintiff's, and Connors testified to the procedures he followed when testing the urine. At the conclusion of the hearing, Roach found Plaintiff guilty of drug use, and imposed a sentence that included twelve months in SHU and loss of good time credit. Pl. Dep. at 111. Roach's disposition also indicated that Plaintiff would be removed from his position as an Inmate Grievance Program Representative for a period of 24 months. Plaintiff appealed, and on July 22, 2004, Keith Dubray ("Dubray"), Acting Director for Special Housing/Inmate Disciplinary Program, reduced the sentence to six months in the SHU. Pl. Dep. at 111.*fn13
On June 19, 2004, Corrections Lieutenant Monin ("Monin") conducted a
disciplinary hearing on the misbehavior report charging Plaintiff with
unauthorized organizational activity. Norcross testified that he had
checked with DOCS Deputy Superintendent for
Programs to see whether ACT was an authorized organization, and was
advised that it was not. Hearing Transcript at 18. However, Plaintiff
advised Monin that he had already been charged with possessing ACT
materials, and that the conviction was later set aside. Id.
10. Moreover, he disputed whether the documents for which he was
being charged had actually been in his cell.*fn14 In
that regard, Plaintiff indicated that the documents which Monin had at
the hearing were confiscated from him at some earlier time, and that
DOCS officials must have held the documents until there was an
opportune time to use them to retaliate against him.*fn15
In addition, he stated that he did not actually attempt to
recruit any inmates to join ACT. On June 26, 2004, Monin found
Plaintiff guilty, and imposed a sentence that included ninety days of
keeplock and loss of privileges. Id. at 28. Plaintiff appealed, and on
July 2, 2004, Conway suspended the sentence for 180 days, and as a
result, Plaintiff served his SHU conviction for drug use, but did not
serve any additional time as a result of the conviction for possessing
ACT materials. Pl. Dep. at 124-125.
Plaintiff served his SHU Sentence at Upstate Correctional Facility ("Upstate"). Pl. Dep. at 141-142. Plaintiff was placed in a two-man SHU cell with inmate Devon Toney ("Toney"). On October 24, 2004 and October 30, 2004, Plaintiff wrote grievances indicating that he and Toney were "on the verge of causing 'blood-shed' among one another." On November 15, 2004, Plaintiff filed a grievance indicating that there were "irreconcilable differences" between himself and Toney, which were "on the verge of erupting into violence." On November 15, 2004, Sergeant Gill ("Gill") interviewed Plaintiff about his concerns. Pl. Dep. at 147-148. Plaintiff told Gill that Toney was mentally ill, and that he was afraid that he would have to defend himself if Toney attacked him. Id. at 149. Plaintiff noted, for example, that on one occasion, Toney became angry when Plaintiff gave him a food tray that he did not want. Pl. Dep. at 151. However, Gill decided that it was not necessary to separate the two. On November 17, 2004, Toney pulled Plaintiff onto the floor from the top bunk, while Plaintiff was sleeping. Plaintiff felt pain in his shoulder and leg as a result of falling to the floor. Id. at 157-158. Immediately following that incident Plaintiff was placed in a different cell.
Plaintiff was subsequently transferred from Upstate to Clinton Correctional Facility ("Clinton"), where he was given another misbehavior report for using marijuana. Pl. Dep. at 160. Plaintiff received a 60-day keeplock sentence, and he served 40 of those days back at Upstate, in SHU. Id. at 161-162. Plaintiff alleges that such placement in SHU to serve a keeplock sentence violated his rights and violated DOCS Directive 4933. Id. at 162-163. Plaintiff filed a grievance, which Woods denied. Id. at 164.
On March 27, 2006, Plaintiff commenced this action, naming Goord, Conway, James, Kennedy, Monin, Dougherty, Norcross, Roach, and Woods as defendants. Plaintiff's Complaint [#1] asserts the following causes of action: 1) unlawful search and seizure of items from his cell at Attica on September 26, 2003 (Norcross seized the materials, violating his right to privacy, Conway and James refused to return the items, violating his right to association and religion);*fn16 2) unlawful conditions of confinement in Attica's SHU between September 26, 2003 and October 10, 2003 (James violated due process by placing Plaintiff in SHU in violation of 7 NYCRR § 251-1.6(d), and Conway violated Plaintiff's 8th amend rights by ignoring his conditions in SHU, while both James and Conway violated Plaintiff's 1st and 14th amend rights by allowing his property to be withheld and destroyed); 3) retaliation against Kennedy, for imposing sentence to deter Plaintiff from associating with ACT or possessing its materials;*fn17 4) refusal to return confiscated material even though it was not contraband, against James, Conway, and Goord (Goord's liability is based on fact that Plaintiff wrote to him, and he referred the matter to a subordinate. Pl. Dep. at 74); 5) retaliation (phone, urinalysis, search of cell, water in his cell, search and confiscation of property on June 3, 2004, false misbehavior report regarding possession of ACT material) against Conway, James, Norcross; 6) disciplinary actions in furtherance of conspiracy (essentially a procedural due process claim against Dougherty*fn18 , Roach*fn19 , Monin*fn20 ; 7) failure to protect him from Toney, against Wood; and 8) violation of due proess for forcing him to serve his forty-day keeplock sentence in SHU at Upstate, against Wood and Goord. Plaintiff demands declaratory and injunctive relief, compensatory damages, and punitive damages.
On January 6, 2010, following the completion of pretrial discovery, Defendants filed the subject motion [#27] for summary judgment. With respect to their application, Defendants make the following arguments: 1) the official-capacity claim against Goord is barred by the Eleventh Amendment; 2) the Fourth Amendment cell-search claim must be dismissed, since inmates do not have an expectation of privacy in their cells; 3) the claim for lost property must fail, since New York State provides an adequate post-deprivation remedy; 4) the First Amendment freedom-of-association and freedom-of-religion claim must fail since Defendants were entitled to confiscate the ACT materials; 5) the pre-hearing SHU claim does not establish a constitutional violation; 6) the procedural due process claims fail because Plaintiff did not have a protected liberty interest, the hearing officers did not violate Plaintiff's due process rights, and any error was harmless; 7) the retaliation claims fail for lack of evidence; 8) the failure to protect claim fails because Woods was not personally involved and was not deliberately indifferent to Plaintiff's safety; and 9) the claim concerning Plaintiff's keeplock sentence at Upstate's SHU must fail, because Defendants were not personally involved, and because such placement was authorized by law.
On April 15, 2010, Plaintiff filed the subject cross-motion [#37] for summary judgment. He contends that he is entitled to summary judgment for the following reasons:
1) the search of his cell by Fleckenstein violated DOCS procedures, specifically Directives 4422 and 4910; 2) the refusal to return the property taken from his cell, which was not contraband, violated his rights of freedom of association, freedom of expression, and freedom of religion; 3) Defendants should have conducted a pre-deprivation hearing; 4) his pre-hearing detention in Attica's SHU, without a hearing,ordered by James, violated due process and did not comply with state regulations (7 NYCRR § § 301.2 & 301.7); 5) Conway was deliberately indifferent to Plaintiff's pre-hearing conditions of confinement in the SHU; 6) Kennedy retaliated against him, to punish him for his association with ACT; 7) there was a conspiracy between James, Dougherty, and Roach to retaliate against him (phone, urinalysis, ACT materials, removal from IGP), which Goord and Conway did not stop; 8) Roach and Monin violated his due process rights at the hearings; 9) the dispositions by Roach, Dougherty, and Monin should be reversed and expunged; 10) ...