The opinion of the court was delivered by: Mae A. D'agostino, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), claims that defendants violated his Eighth and Fourteenth Amendment rights. Defendants' moved for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 44). Plaintiff did not oppose the motion. The motion was referred to United States Magistrate Judge David E. Peebles for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3( c ). Magistrate Judge Peebles issued a Report and Recommendation (Dkt. No. 47) recommending that the motion be granted in part and denied in part.*fn1
Defendants filed specific objections to the Report-Recommendation. (Dkt. No. 49). In view of the objections and pursuant to 28 U.S.C. § 636(b)(1), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report and Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y.) aff'd without op., 175 F.3d 1007 (2d Cir. 1999). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
As the parties do not object to Magistrate Judge Pebbles' thorough recitation of the facts, the Court adopts the "Background" and "Procedural History" as set forth therein.
II. Report and Recommendation
On December 2, 2011, defendants moved for summary judgment arguing: (1) that defendant Fisher lacked personal involvement; (2) plaintiff failed to exhaust his administrative remedies; and (3) plaintiff did not possess a protected liberty interest in remaining free from the challenged confinement.
On August 17, 2012, Magistrate Judge Peebles recommended that the Court grant in part and deny in part defendants' motion for summary judgment. Magistrate Judge Peebles recommended that defendants' motion be granted as to all claims against defendant Fisher based upon his lack of involvement in the relevant conduct. Magistrate Judge Peebles also concluded that plaintiff failed to exhaust available administrative remedies with respect to his failure to protect claim against Frenya. Magistrate Judge Peebles recommended denying defendants' motion for summary judgment and dismissal of plaintiff's procedural due process claims against defendants Drown and Artus. Magistrate Judge Peebles reasoned that defendants failed to sustain their burden of demonstrating the lack of genuine issues of fact surrounding whether plaintiff was deprived of a cognizable liberty interest by virtue of his 120-day SHU confinement.
Defendants Drown and Artus object to the portion of the Report-Recommendation that denied their motion for summary judgment and dismissal of plaintiff's procedural due process claims against them. Defendants argue that plaintiff failed to allege or demonstrate any genuine issue of material fact as to whether he suffered from an atypical and significant hardship.
I. Standard on Motion for ...