The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
REPORT AND RECOMMENDATION Plaintiff Elijah Barksdale, a former New York prison inmate who is proceeding pro se and in forma pauperis, has commenced this action against the Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS") as well as the superintendent and two corrections officers stationed at the prison in which he was confined at the relevant times, pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. In his complaint, Barksdale contends that defendants violated his Eighth and Fourteenth Amendment rights by failing to protect him from an attack by another inmate, denying him the right to call a witness at a disciplinary hearing arising out of the incident, affirming the findings from the hearing, and subjecting him to cruel and unusual punishment by confining him in a special housing unit ("SHU") for a period of 120 days. As relief, plaintiff seeks damages in the amount of $100 per day spent in the SHU and punitive damages of $10,000, awardable against each defendant.
Currently pending before the court is a motion for summary judgment brought by the defendants, seeking dismissal of plaintiff's claims. In support of their motion, defendants assert that 1) Commissioner Fischer is entitled to dismissal of plaintiff's claims against him based upon a lack of personal involvement; 2) Barksdale's claims are subject to dismissal based upon his failure to exhaust his administrative remedies; and 3) plaintiff cannot sustain a due process violation related to his disciplinary hearing because he cannot establish a protected liberty interest in remaining free from the challenged SHU confinement. For the reasons set forth below, I recommend that defendants' motion, which the plaintiff has not opposed, be granted in part, but otherwise denied.
Plaintiff, though no longer incarcerated, was formerly a prison inmate confined under the supervision of the DOCCS; at the times relevant to his claims in this action, plaintiff was designated to the Clinton Correctional Facility ("Clinton"), located in Dannamora, New York. See generally Complaint (Dkt. No. 1).
On September 8, 2009, plaintiff was involved in a physical altercation with another inmate. Complaint (Dkt. No. 1) § 6. While plaintiff was delivering meals to SHU inmates, Corrections Officer ("CO") Frenya was conducting showers for SHU inmates. Id. As a fellow inmate named Aiken "exited the shower and was returning to his cell", he turned around and attacked plaintiff. Id. A direct order was given for the two inmates to cease fighting, but was ignored. Id. When the altercation ended, a weapon was discovered in the area. Id.
As a result of the incident, plaintiff was issued a misbehavior report accusing him of multiple prison rule infractions, including possession of a weapon, refusing a direct order, and fighting. Complaint (Dkt. No. 1) § 6. An assistant, J. Kelsh, was assigned to help plaintiff prepare a defense for the charges against him. Id. Kelsh interviewed two potential witnesses on plaintiff's behalf - inmate Aiken and CO Frenya. During those interviews both agreed to testify at a disciplinary hearing scheduled to address the charges, and Aiken indicated that he would confirm that Barksdale did not possess, display or use a weapon during the incident. Id.
A Tier III disciplinary hearing was held on September 14, 2009 before Corrections Hearing Officer ("CHO") Curtis Drown in connection with the charges against the plaintiff.*fn2 Id. Although CO Frenya was made available as a witness on plaintiff's behalf, inmate Aiken was not produced. Id. Plaintiff did not receive "any written notice or oral statements" stating the reason that inmate Aiken was not presented to testify. Complaint (Dkt. No. 1) § 6. At the close of the hearing, defendant Drown found plaintiff guilty of assaulting an inmate, fighting, weapon possession, and refusing to obey a direct order. Complaint (Dkt. No. 1) Exh. A. As a result, a penalty which included 120-days of disciplinary SHU confinement was imposed by the hearing officer. Id.
Plaintiff appealed defendant Drown's decision to Clinton Superintendent Dale Artus, resulting in a decision by Deputy Superintendent LaValley affirming the Tier III hearing determination on the Superintendent's behalf. Complaint (Dkt. No. 1) § 6 and Exh. E. On September 28, 2009, plaintiff appealed LaValley's affirmation to Commissioner Brian Fischer. Complaint (Dkt. No. 1) § 6 and Exh. E. In response, plaintiff received a letter from Norman Bezio, the DOCCS Director of Special Housing and Inmate Disciplinary Program, affirming the hearing on behalf of the Commissioner Fischer.*fn3 Id. at Exh. G.
On November 10, 2009, plaintiff commenced a proceeding under Article 78 of the New York Civil Practice Law and Rules in the New York State Supreme Court, challenging the Tier III disciplinary hearing determination. Complaint (Dkt. No. 1) Exh. I. In that proceeding the state court found in plaintiff's favor and reversed the disposition of the detention hearing, finding that Barksdale's constitutional rights were violated by the failure of the hearing officer to make any attempt to obtain inmate Aiken's testimony at the hearing. Id. at Exh. J.
Plaintiff commenced this action on July 8, 2010, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 4. Plaintiff's complaint names CO Frenya, CHO Drown, Superintendent Artus, and Commissioner Fischer as defendants and, broadly construed, asserts three causes of action. See generally Complaint (Dkt. No. 1) §§ 3, 7. First, plaintiff claims that defendant Frenya failed to protect him by not following proper protocol for conducting showers for SHU inmates. See id. Second, plaintiff asserts that his Fourteenth Amendment Due Process rights were violated by defendant Drown, by virtue of his failure to call a requested witness during plaintiff's disciplinary hearing, and that defendants Artus and Fischer are liable for the resulting procedural due process violation by virtue of their having affirmed the disciplinary determination despite claims of due process violations. Id. Third, plaintiff claims that, in violation of the Eighth Amendment, he was subjected to cruel and unusual punishment when he was sentenced to 120 days of SHU confinement. Complaint (Dkt. No. 1) § 6.
On December 2, 2011, defendants moved for summary judgment dismissing plaintiff's complaint for lack of personal involvement on the part of defendant Fischer, failure to exhaust administrative remedies, and lack of a protected liberty interest in remaining free from the challenged confinement.*fn4 Dkt. No. 44. Plaintiff has not responded to the motion, despite having requested and secured an extension of time for doing so.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc.,391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson,477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, ...