The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On January 5, 2011, Plaintiff, a New York State prison inmate, commenced this civil rights action, pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Plaintiff claims that Defendants violated his rights under the First and Fourteenth Amendments to the United States Constitution. See id. Plaintiff seeks monetary damages, as well as declaratory and injunctive relief. See id. at ¶2.
On September 29, 2011, Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 25. On June 22, 2012, Magistrate Judge Treece issued a Report-Recommendation and Order recommending that the Court grant-in-part and deny-in-part Defendants' motion to dismiss. See Dkt. No. 29.
Currently before the Court are Plaintiff's objections to Magistrate Judge Treece's Report-Recommendation and Order. See Dkt. No. 31.
Plaintiff is presently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Great Meadow Correctional Facility ("Great Meadow"), which serves as the location of the events giving rise to this complaint. See Dkt. No. 1 at ¶¶ 5, 17. Plaintiff describes himself as "a devoted practicing Muslim, who attends religious services every Friday afternoon, including all religious classes." See id. at ¶ 15. Moreover, Plaintiff was an Inmate Liaison Representative for an unspecified period of time and currently works in Great Meadow's metal furniture shop. See id. at ¶¶ 15, 17.
On or about October 25, 2009, Plaintiff submitted a letter to Thomas LaValley, Superintendent of Great Meadow, concerning "harassment and discrimination against the Muslim faith" by staff members at Great Meadow. See Dkt. No. 1 at Exhibit "A." In this letter, Plaintiff recounts, among others, the following events: (1) an October 24, 2009 incident in which a sergeant, who is not a defendant in this action, stopped him while he was on his way to Arabic/Salat class and advised him that his pants were in violation of prison regulations because they were too short; (2) harassment and discrimination suffered by Muslim inmates; and (3) Lieutenant Sawyer's assault on Plaintiff in the sergeant room while Officer Green, who is not a defendant in this action, watched. See id.*fn1 In this letter to Superintendent LaValley, after informing him of the various problems he has with the staff at Great Meadow, Plaintiff states that "I would like for you to address this matter because I can start things also." See id. Plaintiff proceeds to state that "I really don't want to start anything but if I'm force[d] to I will." See id. Finally, in his letter, Plaintiff makes the following request: "I ask that you respond back or speak with me whenever you can . . . but once again, I ask that you clear this up because I really don't want to take this out [of] the facility without giving you the chance to correct the matter first." See id.
On October 31, 2009, Plaintiff received a misbehavior report, authored by Defendant DeLuca, regarding the "threat" made in his letter and also for refusing a direct order when Plaintiff refused to be interviewed by Defendant DeLuca about his comment that he "can start things also." See id. at Exhibit "B." Plaintiff claims that he did not report to Defendant DeLuca because he feared for his safety because Defendant DeLuca "has a history of assaults on inmates." See id. at ¶ 24.
Defendant Zarnetski held a disciplinary hearing on the misbehavior report. See id. at ¶ 25. Plaintiff claims that Defendant Zarnetski was biased during the hearing and repeatedly referred to him as "nigger," stupid," and "asshole." See id. Plaintiff also objected to Defendant Goodman being present at the hearing as an observer because he was not a witness or a party to the misbehavior report. See id.
Defendant Zarnetski found Plaintiff guilty of issuing a threat but not guilty of refusing to obey a direct order. See id. at ¶ 27 and Exhibit "C." Initially, the misbehavior report determination was upheld by Defendant Kelly, the Deputy Superintendent for Security. See id. at Exhibit "C." On February 12, 2012, however, Defendant Kelly reversed the hearing determination and expunged Plaintiff's record because the hearing was not completely recorded, per established procedure. See id. at Exhibit "E."
On February 5, 2010, Plaintiff was issued another misbehavior report, charging him with altering state property, giving false statements or information, and refusing a direct order. See id. at ¶ 33 and Exhibit "G." Defendant Black indicated on the misbehavior report, "per Hearing Lt. Goodman, this will be I/M Wilson's third time being cited for altered clothing. Also I/M has been given numerous direct orders from staff members not to wear hemmed pants that are hemmed incorrectly/illegally." See id. at Exhibit "G." During the hearing on this misbehavior report, Plaintiff objected to Defendant DeLuca's testimony as biased. See id. at ¶ 35. Plaintiff was found guilty on all charges and sentenced to fifteen-days keeplock confinement. See id. at Exhibit "H." Thereafter, on February 23, 2010, Plaintiff's FOIL request for a copy of the tape of the hearing was denied because the tape was "expunged/not available." See id. at Exhibit "L." On February 24, 2010, Defendant Kelly reversed and expunged this hearing disposition from Plaintiff's record. See id. at Exhibit "K."
As a result of the hearing determinations and resulting forty-five days combined keeplock confinement, Plaintiff missed seven religious services. See id. at ¶ 15. Plaintiff also alleges that, for two years, he volunteered as an inmate cook during the Muslim Ramadan Id festival. See id. at ¶ 18. Plaintiff had also worked in the kitchen and mess hall "as an assigned program without incident." See id. On or about July 30, 2010, Defendant Vladyka removed Plaintiff's name from the kitchen assignment list for the Ramadan festival. See id. at ¶ 20. Prior to this, Defendant Vladyka made comments about Plaintiff filing complaints and grievances against staff. See id. Defendant Vladyka claimed that Plaintiff was a security risk because of his behavior. See id. at ¶ 21.
B. Magistrate Judge Treece's June 22, 2012 Report-Recommendation and Order
In his June 22, 2012 Report-Recommendation and Order, Magistrate Judge Treece recommended that the Court grant in part and deny in part Defendants' motion to dismiss. See Dkt. No. 29. Specifically, Magistrate Judge Treece recommended that the Court deny the motion as to Plaintiff's First Amendment retaliation claim against Defendant DeLuca, but grant the motion as to Plaintiff's First Amendment retaliation claims against the remaining Defendants. See id. at 9-12. Moreover, Magistrate Judge Treece recommended that the Court grant Defendants' motion to dismiss Plaintiff's First Amendment Free Exercise claims because Plaintiff failed to allege facts indicating that a substantial burden was placed on his religious beliefs and because Plaintiff failed to allege the personal involvement of any Defendant. See id. at 12-14. Magistrate Judge Treece also recommended that the Court dismiss Plaintiff's conspiracy claim against all Defendants because he failed to plausibly allege an agreement between two or more actors. See id. at 14-15.
Next, regarding Plaintiff's due process claims, Magistrate Judge Treece found that neither the fifteen nor the thirty day keeplock sentence imposed upon Plaintiff constituted a significant or atypical hardship. See id. at 17-18. Further, he found that "Plaintiff's inability to attend seven Muslim religious services, loss of his honor block cell status and loss of wages, which all occurred because he was held in keeplock confinement, do not constitute deprivation of a liberty interest." See id. at 18. As such, Magistrate Judge Treece recommended that the Court grant Defendants' motion to dismiss as to these claims. See id.
Finally, Magistrate Judge Treece found that Defendant DeLuca is entitled to Eleventh Amendment immunity as to Plaintiff's claim for money damages against him in his official capacity. See id. at 21. However, Plaintiff's claims against Defendant DeLuca in his official capacity for injunctive and declaratory relief may proceed. See id.
C. Plaintiff's objections to Magistrate Judge Treece's Report-Recommendation and Order Plaintiff raises five numbered objections to the Report-Recommendation and Order. See Dkt. No. 31. First, Plaintiff argues that Defendant Kelly should not be dismissed from this action because when he initially upheld the disciplinary hearing's outcome relating to the October 31, 2009 misbehavior report, he inaccurately stated that "the hearing was held in accordance with departmental directive # 4932 and established procedure" because it was later determined that there was no tape of the hearing as required by the directive. See id. at ¶ 1. Further, Plaintiff contends that Defendant Kelly's decision to reverse his initial decision to uphold the disciplinary hearing's outcome and expunge his record was because Plaintiff requested that the Superintendent review the matter and this would allow Defendant Kelly to avoid "being censored by his supervisor." See id.
Second, Plaintiff objects to the recommended dismissal of Defendant Black because her "verbal harassment of [his] religious choice, and her prohibiting [him] from having pants hemmed, and her initiating the disciplinary proceeding (which lead to 15 days of confinement & the miss[ing] of (3) obligatory religious services) . . . violated [his] freedom of religion." See id. at ¶ 2. Plaintiff claims that in her misbehavior report, Defendant Black fails to provide the name of the official(s) who allegedly gave Plaintiff a direct order that was ignored or who had allegedly cited Plaintiff in the past for his behavior. See id.
Third, Plaintiff objects to the recommended dismissal of Defendant Zarnetski because he violated his due process right to a fair hearing by creating a "hostile and intimidating hearing environment" and because he failed to record the hearing, thereby preventing Plaintiff from exercising his right to a meaningful appeal. See id. at ¶ 3. Plaintiff claims that Defendant Zarnetski purposely failed to record the disciplinary hearing in an effort to deprive him of his rights and to retaliate against him. See id.
Fourth, Plaintiff objects to the recommended dismissal of Defendant Besson because Defendant Besson failed to provide him with a fair and adequate hearing. See id. at ¶ 4. Plaintiff claims that the evidence at the hearing was clearly contradictory and finding Plaintiff guilty of refusing a direct order but not guilty on the tampering with state property charge was inconsistent with the evidence. See id. As such, Plaintiff claims that Defendant Besson's "clear contradiction demonstrates pure vindictiveness." See id. Plaintiff asserts that Defendant Besson's vindictiveness is further demonstrated by the fact that his written disposition finding Plaintiff guilty was drafted and signed by Defendant Besson on February 17, 2010, one day prior to the conclusion of the hearing. See id.
Finally, Plaintiff objects to the recommended dismissal of Defendant Vladyka. See id. at ¶ 5. Plaintiff claims that he "provided sufficient information within the complaint for a reasonable jury to determine if defendant Vladyka['s] actions w[ere] motivated by a retaliatory act, since defendant had refused to state or show his reasoning for declaring plaintiff a security concern and not allowing plaintiff to cook during the month of [R]amadan as [he] had done (2) consecutive years prior to filing of his grievances." See id. Plaintiff asserts that, ...