SAMUEL J. SMOLEN, Plaintiff,
SERGEANT PETER CORCORAN, et al., Defendants.
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Pro se plaintiff Samuel J. Smolen ("Smolen" or "Plaintiff"), an inmate in the custody of New York State Department of Corrections and Community Supervision ("DOCCS"), instituted this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants, employees of DOCCS, violated his constitutional rights in connection with a disciplinary hearing conducted against him on charges of improperly soliciting funds and violating DOCCS' correspondence procedures. Defendants have moved for summary judgment dismissing the complaint, and Plaintiff has opposed the motion.
II. Background In 2006, Plaintiff was involved in setting up a website called "The Innocent Prisoner", located at www.theinnocentprisoner.org.
On January 29, 2007, Sergeant Peter Corcoran ("Sgt. Corcoran") confronted Smolen in the law library about his website. Smolen told him that he did not have a website, but rather his family had set up a website on his behalf. After reviewing Smolen's documents relative to the website, Sgt. Corcoran filed a misbehavior report charging Smolen with violations of Rule 103.20 (inmates shall not solicit goods or services from any person or business) and Rule 180.11 (violation of correspondence procedure). Smolen was keeplocked pending a Tier III disciplinary hearing, which was conducted by Acting Captain Dixon ("AC Dixon") over the time-period spanning February 3, 2007, to March 12, 2007. Several witnesses, including Plaintiff's second cousin, Monica Marshall Celli ("Celli"); the web designer Richard Jones ("Jones"); and Sgt. Corcoran testified at the hearing. Jones testified that he came to knew Smolen through a mutual friend, Robert Leuze, who was interested in publicizing Smolen's story. Eventually Jones was put in touch with Celli, Smolen's niece. The contract for the website design was between Jones and Smolen, but Jones was paid by Celli because Smolen did not have a bank account. Jones suggested making it possible for visitors to the website to donate money to Smolen's defense through PayPal, and Smolen agreed. Smolen testified that he would send letters to his niece, who would then forward them to Jones. Smolen also instructed Jones not to use his business stationery so as not to alert prison officials that he was corresponding with a website designer.
AC Dixon found that Smolen contracted with Jones to set up a website for him to solicit funds for his defense fund without the approval of Attica's Superintendent, and that he conducted this activity through the mail using a third party to send letters to Jones. AC Dixon found Smolen guilty of both charges and recommended a loss of eighteen-months good time credits. He also imposed a six-month loss of correspondence privileges to Celli and Jones; and a ten-day loss of recreation.
Keith Dubray, Acting Director of Special Housing/Inmate Disciplinary Program, affirmed the disciplinary hearing on April 24, 2007. By letter dated May 24, 2007, Plaintiff filed an appeal, which was denied. The appeal, however, did not assert a claim of retaliation. Plaintiff did not file an administrative proceeding pursuant to Article 78 of New York Civil Practice Law and Rules.
Plaintiff filed this action on January 22, 2010. On June 14, 2010, the Court (Larimer, D.J.) dismissed Plaintiff's claims under the Due Process Clause, the Eighth Amendment, and the Equal Protection Clause but permitted Plaintiff's First Amendment retaliation claim to proceed. See Dkt #7. Discovery was conducted over several years, including the taking of Plaintiff's deposition.
On October 2, 2012, an Amended Scheduling Order was issued, extending the deadline for filing dispositive motions until April 1, 2013. On October 11, 2012, Defendants filed a motion for summary judgment (Dkt. #29). The Court (Siragusa, D.J.) issued an order (Dkt. #30) holding the summary judgment motion in abeyance until April 1, 2013. Judge Siragusa issued a scheduling order (Dkt #21) on June 5, 2013, stating that responses were due by July 5, 2013, and replies were due by August 5, 2013.
On June 27, 2013, Plaintiff filed an omnibus motion (Dkt #32) seeking an extension of time to oppose the summary judgment motion, appointment of pro bono counsel, and the reopening of discovery.
This matter was transferred (Dkt #33) to the undersigned on July 24, 2013. For the reasons that follow, Defendants' request for summary judgment is granted, and the complaint is dismissed. Plaintiff's nondispositive motions are denied with prejudice.
III. Summary Judgment Standard
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The movant has the initial burden of showing entitlement to summary judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)). If the movant meets its burden, the burden shifts to the non-movant to identify evidence in the record that creates ...