Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kerry Kotler v. Brian Fischer

March 19, 2012

KERRY KOTLER, PLAINTIFF,
v.
BRIAN FISCHER, COMMISSIONER, NYS DEPARTMENT OF CORRECTIONAL SERVICES; ROBERT WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY; MARIAN B. TIRONE, DEPUTY/ACTING SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY; KAREN BELLAMY, DIRECTOR OF INMATE GRIEVANCE PROGRAM FOR DOCS; C. GREGORY, SUPERVISOR, INMATE GRIEVANCE RESOLUTION COMMITTEE, UPSTATE CORRECTIONAL FACILITY; D. QUINN, CAPTAIN, UPSTATE CORRECTIONAL FACILITY; R. LAMORA, LIEUTENANT, UPSTATE CORRECTIONAL FACILITY; AND ANTHONY ANNUCCI, EXECUTIVE DEPUTY COMMISSIONER FOR D.O.C.S., DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In a complaint dated November 13, 2009, Plaintiff pro se seeks monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983, for alleged violations of his constitutional rights while he was incarcerated by the New York State Department of Correctional Services ("DOCS").*fn1 See Dkt. No. 1. Primarily, Plaintiff claims that he was subjected to retaliation and denied due process by various DOCS employees in connection with a disciplinary proceeding conducted at Upstate Correctional Facility ("Upstate") in 2007. See id.

In an Amended Report-Recommendation dated January 31, 2012, Magistrate Judge Baxter recommended that the Court deny, without prejudice to renewal, the summary judgment motion as to the due process claims against Defendants LaMora and Quinn. See Dkt. No. 85 at 2. Further, Magistrate Judge Baxter recommended that the Court grant Defendants' summary judgment motion as to all remaining claims and Defendants, including Plaintiff's retaliation claims against Defendants Gregory, Bellamy, LaMora, Quinn and Annucci. See id.

Currently before the Court are Defendants' objections to Magistrate Judge Baxter's January 31, 2012 Amended Report-Recommendation. See Dkt. No. 86.

II. BACKGROUND

In May 2007, Plaintiff was transferred to Upstate, for alleged disciplinary infractions not related to the instant claims. At that time, Plaintiff had an unrelated civil rights action and a number of grievances pending against DOCS employees other than the named Defendants in this action. See Dkt. No. 79-1 at ¶¶ 2-14. Starting in early June 2007, Plaintiff wrote a series of letters to Defendant Gregory -- Upstate's Inmate Grievance Program ("IGP") Supervisor -- and Defendant Bellamy -- the IGP Director -- criticizing Defendant Gregory's handling of Plaintiff's grievances. See Dkt. No. 79-3 at 17-27.*fn2

On June 22, 2007, Plaintiff submitted for photocopying at the Upstate library a copy of DOCS Form 2133 relating to a past grievance, which Plaintiff had redacted to create a blank version of the form. See Dkt. No. 71-24 at ¶ 7. Form 2133 is typically used to set forth the ruling of a facility Superintendent on a grievance, and has a block for the Superintendent's signature and a space at the bottom for the inmate to indicate his intention to appeal the Superintendent's decision to the DOCS Central Office Review Committee ("CORC"). See Dkt. No. 71-12. Corrections Officer ("C.O.") Santamore, who is no longer a Defendant in this action, asked Defendant Gregory whether inmates were allowed to have blank copies of Form 2133, and Defendant Gregory advised that inmates were not allowed to possess that form in blank. C.O. Santamore, after consulting with his supervisor, decided to file an inmate misbehavior report against Plaintiff, charging him under a disciplinary rule that prohibits altering, forging, or counterfeiting any document, as well as distributing or possessing DOCS documents "without authorization." See Dkt. No. 71-24 at ¶¶ 7-9 & Exhibit "A" attached thereto. After the misbehavior report was filed against Plaintiff, but before the disciplinary hearing, Defendant Gregory confirmed with her IGP supervisors, including Defendant Bellamy, that inmates were not allowed to possess Form 2133 in blank. See Dkt. No. 71-19 at ¶¶ 8-11 & Exhibit "A" attached thereto.

Defendant LaMora presided over Plaintiff's disciplinary hearing, at which C.O. Santamore and Defendant Gregory testified. Plaintiff argued that Defendant Gregory and others in the IGP were mistaken in their interpretation that DOCS' rules prohibit inmates from possessing Form 2133 in blank. See Dkt. No. 71-28 at 13-14, 21. Plaintiff claimed that DOCS inmates had been allowed to possess blank copies of the form in order to appeal the denial of a grievance to the CORC when the facility Superintendent did not review the denial on a timely basis. See id. at 24-25. Plaintiff asserted that he tried to secure blank copies of Form 2133 from the library so that he could appeal, in good faith, a prior grievance for which he had not yet received a Superintendent's ruling. See id. at 12-14.

Defendant LaMora, accepting the testimony of Defendant Gregory that inmates are not allowed to possess blank copies of Form 2133, found Plaintiff guilty on the misbehavior report, and sentenced him to 30 days of "keeplock" confinement, along with the suspension of certain other privileges. See id. at 28. Defendant Quinn reviewed and denied Plaintiff's appeal of the disciplinary action against him. See Dkt. No. 79-3 at 41-54.

Plaintiff claims that, as a result of the Progressive Inmate Movement System ("PIMS") in place at Upstate, he served significantly more than thirty (30) days of disciplinary confinement as a result of the misbehavior report against him. See Dkt. No. 79-1 at ¶¶ 45-48; Dkt. No. 79-3 at 35-40. Plaintiff alleges, in considerable detail, how the conditions of his confinement at Upstate amounted to an "atypical and significant hardship." See Dkt. No. 79-1 at ¶¶ 137-171.

Plaintiff wrote numerous letters complaining to Defendants Bellamy and Fischer that the imposition of disciplinary sanctions against him were contrary to DOCS' rules, were fundamentally unfair, and were the result of retaliation against him because of his extensive grievance-related activities. See Dkt. No. 79-5 at 4-33. Both Defendant Bellamy and Defendant Annucci, the DOCS Executive Deputy Commissioner, replied to Plaintiff. They advised Plaintiff, in essence, that his recourse was limited to the appeal of the disciplinary action, which had already been decided, and that they would not or could not conduct any further investigation or take any other remedial action. See id. at 13, 19, 25, 33.

In his complaint, Plaintiff alleges that Defendant LaMora violated his due process rights because he was a biased hearing officer, who conducted the disciplinary hearing in an unfair and partial manner. Further, the complaint alleges that Defendants Annucci and Quinn denied Plaintiff due process by ratifying and failing to correct the violations allegedly committed by Defendant LaMora. See Dkt. No. 1 at 16. Moreover, the complaint alleges that Defendants LaMora, Gregory and Bellamy retaliated against Plaintiff because of his "protected grievance related activities" by pursuing the disciplinary charges against him. Plaintiff also claims that Defendants Annucci, Bellamy, and Quinn are liable for this purported retaliation because they ratified and failed to correct the conduct of Defendants more directly involved in the disciplinary proceeding. See id. at 15.

In his January 31, 2012 Amended Report-Recommendation, Magistrate Judge Baxter recommended that the Court grant in part and deny in part Defendants' motion for summary judgment. See Dkt. No. 85. Specifically, Magistrate Judge Baxter recommended that the Court deny without prejudice to renewal the summary judgment motion as to the due process claims against Defendants LaMora and Quinn and that the Court grant the motion as to all of the remaining Defendants ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.