The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
This matter was referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, Chief United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rules N.D.N.Y. 72.3(c).*fn1
In this amended civil rights complaint, plaintiff alleges that defendants have violated his rights to proper medical care, due process, and his right to be free from cruel and unusual punishment. (Dkt. No. 5). Plaintiff also alleges that defendants violated his rights under the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. (Dkt. No. 5). Presently before the court is the defendants' motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 37). Plaintiff has responded in opposition to the motion, and defendants have filed a reply. (Dkt. Nos. 42, 43). For the following reasons, this court will recommend granting the defendants' motion in part, and denying it in part.
I. Facts and Procedural History
The original complaint in this action named only defendants from the Albany Offices of the Department of Corrections and Community Supervision ("DOCCS"), and from Upstate Correctional Facility ("Upstate").*fn2 (Dkt. No. 1). The original complaint alleged only claims relating to plaintiff's medical condition relative to his double-cell lower bunk assignment and his problems with uncomfortable seating in the visiting room. (Dkt. No. 1). In plaintiff's amended complaint, he added several defendants from Clinton Correctional Facility Annex ("Clinton"), claiming violations of his Eighth Amendment rights based on his removal from a "low sodium" diet, his due process rights relative to a disciplinary hearing, and claims of "retaliation."*fn3 (Dkt. No. 5).
On February 3, 2011, Senior U.S. District Judge McAvoy ordered that plaintiff's motion for in forma pauperis (IFP) status be granted, but dismissed the following claims and defendants without prejudice: J. Carver*fn4 and C.O. Lincon; plaintiff's conspiracy claims; and plaintiff's claims that he was denied adequate warmth or food at Upstate. (Dkt. No. 6).
On May 16, 2011, defendants made a motion to revoke plaintiff's IFP status pursuant to 28 U.S.C. § 1915(g) based upon plaintiff's accumulation of "three strikes." (Dkt. No. 25). On December 1, 2011, after briefing by both sides, in this and in a related action,*fn5 plaintiff paid the filing fee in this action, rendering the defendants' "three strikes" motion moot. Defendants filed this motion to dismiss on December 19, 2011. (Dkt. No 37).
1. Special Diet (Clinton)
The court will summarize the facts in plaintiff's remaining claims. Plaintiff claims that on June 14, 2010, while he was incarcerated at Clinton, defendant Leon told plaintiff that he was removing plaintiff's name from the "special diet meal list." (Amended Complaint (AC) at 6, ¶ (h)).*fn6 Plaintiff alleges that when he asked why he was being removed from this list, defendant Leon stated that plaintiff knew why, and it was because "'I was you eating toast.'" (Id.) Plaintiff claims that his "special diet" was low sodium, based upon plaintiff's high blood pressure. As a result of his removal from the diet, plaintiff states that he experienced headaches and dizziness. (Id. at 6, ¶ (i)) When he went to the facility clinic, he was allegedly told that due to his elevated blood pressure, he would have to be monitored to determine whether he should be placed on medication. (Id.) Plaintiff filed a grievance against defendant Leon.*fn7 (Id. at 6 (j)).
2. Retaliation and Due Process (Clinton)
Plaintiff claims that on June 29, 2010, he was sitting in the hall, waiting to be interviewed by the grievance committee, when the "corridor Officer" asked plaintiff what his grievance was about. (Id.) Plaintiff states that when he explained the nature of his grievance, the "corridor Officer" said that plaintiff would lose his grievance because defendant Leon was well-liked, "and filing grievance complaint's [sic] in Clinton Annex would cause plaintiff a lot of problems." (Id.)
Plaintiff claims that one or two weeks after this encounter with the "corridor Officer," plaintiff was on his way to a visit with his wife, when the "hall Officer" asked if plaintiff had a permit for his wedding band. (Id. at 7, ¶ (k)). Plaintiff states that the "hall Officer" gave plaintiff a hard time about the wedding band and sent plaintiff back to his dorm to take his wedding band off and go to his visit without the ring.*fn8 The officer then told plaintiff that this "was only the beginning" because plaintiff liked to write grievances at Clinton Annex. (Id. at 7, ¶ (m)) Plaintiff states that he wrote a grievance, complaining about the "hall Officer," and plaintiff explained to the investigating Sergeant that the "hall Officer's" action was a result of the grievance that he wrote against defendant Leon. The "Sergeant" who was investigating the grievance allegedly told plaintiff that "that was how things work in Clinton Annex." (Id. at 7, ¶ (n)).
The next few paragraphs of the amended complaint discuss an incident with former defendant Lincon on July 8, 2010, involving plaintiff and his wife. (Id. at 8, ¶ (o)). Plaintiff claims that when his wife complained about a long delay in the "processing area" before she could visit with plaintiff, defendant Lincon told her she would have to endure another long delay because it was "his count time." (Id.) Although plaintiff's wife asked to speak with a supervisor, defendant Lincon became belligerent and told her that she should "take it up with Govern [sic] Patterson because he was the person cutting all the jobs." (Id.) Plaintiff claims that he and his wife complained about defendant Lincon's conduct, and were told that complaints against staff were not looked upon favorably. (Id. at 8, ¶ (q)).
Plaintiff alleges that, as he was exiting the bathroom on July 23, 2010, he was escorted to SHU. (Id. at 8, ¶ (r)). On July 26, 2010, plaintiff was escorted to an interview room inside the SHU, where he was questioned by defendant Chase about "all" the grievances and complaints that plaintiff filed while he was at Clinton Annex. (Id. at 9, ¶ (s)). Plaintiff states that he told defendant Chase that he was being harassed, and asked defendant Chase why plaintiff was "being held in SHU." (Id.) Defendant Chase allegedly told plaintiff that he placed plaintiff in SHU, and he could do whatever he wanted at Clinton Annex. Plaintiff states that he was thereafter issued a misbehavior report, charging him with threats, rioting, false statements, and impersonation. (Id.)
Plaintiff alleges that the disciplinary hearing on the above charges was held on July 29, 2010, and defendant Eggleston was the hearing officer. Plaintiff claims that he told defendant Eggleston that the charges were false, and that the "threatening letter was an attempt by someone to have inmate Alexander removed [from] the ILC Committee because of a very controversial issue that he placed on the ILC agenda."*fn9 (Id. at 9, ¶ (t)). Plaintiff states that he tried to explain that the incident "in the threatening letter happen[ed] while [plaintiff] was on the Family Reunion Visit with his wife." (Id.)
Plaintiff alleges that when defendant Chase arrived to testify at plaintiff's disciplinary hearing, he had an ex parte discussion with defendant Eggleston for "approximately seven minute[s]," during which time, plaintiff was told to stand outside the hearing room. (Id. at 9, ¶ (u)). Plaintiff then recounts defendant Chase's testimony at the disciplinary hearing. (Id. at 10, ¶ (v)). Plaintiff claims that defendant Chase testified that plaintiff wrote the threatening letter, and that in making this determination, reviewed handwriting samples of eight other inmate porters. Plaintiff claims that this testimony was insufficient because defendant Chase was not trained in handwriting analysis and could not prove "beyond a reasonable doubt" that plaintiff wrote the letter. (Id.)
Plaintiff asked defendant Eggleston for a copy of the handwriting samples that defendant Chase reviewed and also asked defendant Eggleston to review the samples himself so that she could make her own independent determination as to whether those other inmates should be excluded as the author of the "threatening letter." (Id. at 10, ¶ (w)). Defendant Whalen testified that she was not a handwriting expert either, but "in her view," some of the characters in the threatening letter appeared to match plaintiff's handwriting. She was the individual who reported the incident to defendant Chase. (Id. at 10. ¶ (x)).
Plaintiff states that defendant Eggleston found plaintiff guilty even though inmate Alexander testified on plaintiff's behalf that Alexander was a member of the ILC, and that he was being "set up" because of a controversial issue that he had placed on the agenda of the ILC, involving dorm officers' illegal gambling and other conduct on duty. (Id. at 11, ¶ (y)). Plaintiff claims that defendant Eggleston sentenced plaintiff to a total of 90 days SHU, loss of telephone and commissary privileges, and "loss of good time."*fn10 (Id. at 9, ¶ (z)).
Plaintiff alleges that while he was still in SHU, on July 27, 2010, defendant Whalen issued plaintiff a misbehavior report, charging him with refusing a direct order, a telephone program violation, and "Exchanging pins." (Id. at 11, ¶ (a-1)) The hearing for these charges was conducted by defendant Meskunas. (Id. at 11, ¶ (b-1)). Plaintiff alleges that during the hearing, he testified that he was handcuffed and taken to SHU on July 23, 2010, and all of his property was left in his "curb."*fn11 (Id.) Plaintiff claims that someone must have taken his property and used his telephone number while he was in SHU. (Id.) Plaintiff claims that defendant Meskunas refused to call plaintiff's witness, inmate Anthony Mosely, who allegedly would have testified about the telephone. (Id. at 12, ¶ (c-1)). Plaintiff states that defendant Meskunas found plaintiff guilty of telephone program violations and of exchanging "pins," but not guilty of refusing a direct order. Plaintiff states he was sentenced to two months loss of telephone and commissary privileges. (Id. at 12, ¶ (d-1)). Plaintiff claims that defendant Maskunas was biased and did not call plaintiff's witnesses. Plaintiff states that defendant Prack affirmed both disciplinary determinations on appeal. (Id. at 12, ¶ (e-1)).
3. Medical Care and ADA Claims (Upstate)
Plaintiff states that he was transferred to the Upstate SHU on August 24, 2010, and that upon his arrival, he was placed in a double cell and assigned to the bottom bunk. (AC at 12, ¶¶ (7-a, 7-b)). Plaintiff told the intake nurse that he could not be assigned to a bottom bunk because of his prior back surgery. (Id. at 13, ¶ (c)). Plaintiff states that he told the nurse that the surgery resulted in a limitation on his range of motion, and it would cause him extreme pain if he had to climb in and out of a bottom bunk. (Id. at 12, ¶ (e)). The intake nurse told plaintiff that she would speak to the Sergeant. Plaintiff repeated his concerns to the Sergeant, who after checking with a computer printout from "Movement and Classification," told plaintiff that "it was okay for plaintiff to be housed in a double bunk cell and if he had a problem with that, to take it up with inmate grievance or Superintendent Rock." (Id. at 13, ¶ (f)). Plaintiff states that he wrote a grievance regarding this issue, but that defendant Rabideau reviewed plaintiff's chart and found that plaintiff was cleared to be assigned to a double bunk bottom bunk, denying plaintiff's request to be assigned to a single cell. (AC at 14, ¶ (i)).
Plaintiff also alleges that on August 29, 2010, he went to a visit with his wife, but he had to sit on a small round stool, causing him back pain and requiring him to lean forward to speak with his wife. (Id. at 12, ¶ (h)). Plaintiff states that on September 13 and 27, he complained to defendant Rock when Superintendent Rock was making his rounds of the facility, but the Superintendent simply smiled and walked away. (Id. at 14, ¶ (i)). On November 1, 2010, plaintiff claims that he asked defendant Rock why plaintiff's property was not packed because he was scheduled to be released on November 2, 2010. (Id. at 14, ¶ (j)). Plaintiff claims that defendant Rock told plaintiff to speak with the Sergeant, and that the Sergeant told plaintiff that he could be "held" for up to 30 days past his release date. (Id.) Plaintiff states that he did not leave Upstate until November 4, 2010, and was thus, held two days past his release date. (Id.at 14, ¶ (k)).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam).
In deciding a motion to dismiss, the court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment).
The state itself cannot be sued under section 1983. Komlosi v. New York State OMRDD, 64 F.3d 810, 815 (2d Cir. 1995) (citing Will v. Michigan Department of Police, 491 U.S. 58, 71 (1989)). This is true whether the court is considering Eleventh Amendment immunity or a statutory interpretation of section 1983. Id. at 815 n.3. An action against state officers in their official capacities is tantamount to an action against the state. Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 & n.1 (2d Cir. 1991) (citations omitted).
Plaintiff states that he is suing defendants in their individual and official capacities. (AC at 15, ¶ 8(b)). To the extent that plaintiff is attempting to sue defendants for damages in their official capacities or to the extent that his complaint can be interpreted as raising such official capacity claims, he is barred by ...