RALPH ALICEA, 04-A-1138, Upstate Correctional Facility, Malone, New York, Plaintiff pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
In September of 2003, a jury found Plaintiff guilty of criminal charges and he was committed to the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS") for an indeterminate sentence. See Dkt. No. 14 at 4-5. In November of 2005, Plaintiff was placed in the Shawangunk Correctional Facility ("Shawangunk C.F."). See id. at 6.
The facts set forth below arise out of an amended complaint Plaintiff filed against Defendants John Maly, M. Trinidad, E. Bodison, S. Kober, and John/Jane Doe in their individual capacities. See Dkt. No. 14 at 1, 3-4. Defendants are employees of Shawangunk C.F. See id. at 3-4. Plaintiff seeks compensatory and punitive damages, as well as equitable relief, pursuant to 42 U.S.C. § 1983. See id. at 1. In his amended complaint, Plaintiff alleges that Defendants
denied his constitutional rights of access to the courts; denied due process of law; denied free speech; denied confidential communication(s) with his attorney of record; denied free flowing privileged mail with his attorney; denied to be free from retaliation for the redress of grievance(s); and denied to be free from illegal searches and seizures, all acts being conducted in violation of plaintiff's rights as secured and guaranteed under the First, Fourth, Sixth and Fourteenth Amendments of the United States Constitution.
See id. at 1-2. Defendants moved to dismiss the complaint. See Dkt. No. 24-1.
Currently before the Court is Plaintiff's objection to Magistrate Judge Dancks' Report and Recommendation, in which she recommended that Defendants' motion be granted in part and denied in part. See Dkt. No. 32.
In November of 2008, Plaintiff's wife visited inmate Daniel K. Monko (Monko) at Shawangunk C.F., and left him a package of food. See Dkt. No. 14 at 9. Corrections Officer ("C.O.") Freeman, under the belief that Plaintiff was attempting to circumvent package room sanctions, marked the food items with an ultraviolet ink stamp. See id. C.O. Freeman then searched Plaintiff's cell and found food items with the pre-marked ultraviolet ink stamp, among other contraband items. See id. at 9-10. C.O. Freeman issued Plaintiff and Monko misbehavior reports. See id. at 10. During his hearing, Monko informed Defendant Maly that C.O. Freeman had engaged in misconduct in reporting them, and Monko demonstrated that the food delivered by Plaintiff's wife still remained in his cell. See id. at 10-11. Monko was found not guilty of the violations listed in his misbehavior report, and Defendant Maly assured Monko that he would report C.O. Freeman's misconduct. See id. at 11. At Plaintiff's hearing, his violations regarding the food items were also dismissed. See id. at 12. Afterwards, an unnamed corrections officer warned Plaintiff that "Freeman's girl Trinidad was gunning for [Plaintiff]." See id. at 12-13. "Freeman was escorted out of [Shawangunk C.F.] - and will not be allowed to return - pending the outcome of the investigation into her deliberate misconduct against plaintiff." See id. at 13. As a result, "numerous S.C.F. staff advised Plaintiff, on numerous occasions, that the matter with C.O. Freeman was far from over and retaliation will be forthcoming." See id.
Plaintiff claims that he and his family were retaliated against by Shawangunk C.F. employees due to Plaintiff's exposure of C.O. Freeman's misconduct. See id. Plaintiff was passed over for facility jobs. See id. Plaintiff was made to wait for long periods of time for visitation with his family and, on one occasion, another inmate was sent to visit with Plaintiff's family. See id. at 15. Plaintiff was denied barbershop service and was threatened by an employee, who referenced C.O. Freeman in his threat. See id. Defendant Bodison, Plaintiff's corrections counselor, issued Plaintiff unfavorable evaluations and refused to expunge SHU references from Plaintiff's file, despite the misbehavior having been reversed and expunged. See id. Plaintiff stopped meeting with Defendant Bodison due to continuous threats from him. See id. At one point, Defendants Bodison and Kober informed Plaintiff that he and his family had been marked for retaliation. See id. at 15-16.
These threats led Plaintiff to fear for his family's safety, and not allow them to participate in the Shawangunk C.F. Family Reunion Program. See id. at 16. Plaintiff's wife was also subjected to racial slurs. See id. Plaintiff filed grievances and verbally complained upon each of these instances, but no action was taken. See id. at 16-17.
Plaintiff properly submitted an inmate grievance complaint against C.O. Freeman, but the complaint took seven days to reach the Inmate Grievance Resolution Committee ("IGRC"). See id. at 19. The IGRC reached a deadlocked decision on Plaintiff's complaint about C.O. Freeman, and Plaintiff appealed this decision. See id. at 22. Plaintiff's appeal, ...