United States District Court, W.D. New York
John Doe, Plaintiff, Pro se, Attica, NY.
For Donald Selsky, J. Wood, D. Squires, C. Schoonover, Sergeant Harvey, Christine A. Antenore, Peter Russell, J. Thompson, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
This is a pro se prisoner action under 42 U.S.C. § 1983. On March 7, 2013, the Court of Appeals for the Second Circuit issued a mandate in this case (Dkt. #50), vacating this Court's dismissal of the complaint, with instructions that this Court determine whether plaintiff's filing of administrative grievances tolled the statute of limitations on his claims, so as to make his complaint in this action timely.
After the parties filed additional submissions addressing the issues on remand, this Court issued a Decision and Order on June 10, 2013, 948 F.Supp.2d 306, 2013 WL 2477255, directing the Clerk of the Court to reinstate plaintiff's first amended complaint (Dkt. #10), with the proviso that plaintiff's first cause of action, asserting a claim for malicious prosecution, would remain dismissed. The Court also noted that because plaintiff's claims had previously been dismissed as time-barred (with the exception of the
malicious prosecution claim, which was dismissed on the merits), " defendants ha[d] never had occasion to present, and this Court ha[d] never had occasion to consider, other possible defenses to those claims, including exhaustion, or the substantive merits of the claims."
[WL] at *4. The Court added that whether those reinstated claims might be subject to dismissal at a later date remained to be seen. Id.
Following reinstatement of the complaint, defendants moved for summary judgment dismissing all of plaintiff's remaining claims. Plaintiff has filed papers opposing the motion.
I. Due Process
In his second cause of action, plaintiff alleges that defendant Thompson, who conducted plaintiff's disciplinary hearing, violated his constitutional due process rights by finding plaintiff guilty based on a false misbehavior report that was issued by defendant Wood. The third cause of action asserts a similar claim against defendant Selsky for failing to overturn Thompson's decision.
Plaintiff fails to identify any manner in which his due process rights were violated by Thompson or Selsky. The Court has also reviewed the hearing transcript, which has been submitted by defendants, and has not found any obvious basis for this claim. The claim appears to be based on little more than plaintiff's allegation that the charges against him were false; he alleges that he was " set up" by Woods, and ...