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Amaker v. Fischer

United States District Court, Second Circuit

October 21, 2013

ANTHONY AMAKER, Plaintiff,
v.
BRIAN S. FISCHER, et al., Defendants.

REPORT, RECOMMENDATION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. ยง 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #9.

By Decision and Order entered March 25, 2013, the Hon. Richard J. Arcara adopted this Court's Report, Recommendation and Order and dismissed plaintiff's complaint without prejudice to filing an amended complaint to allege recently discovered facts supporting a claim of denial of due process during the course of a prison disciplinary hearing conducted in plaintiff's absence by Captain Kearney at the Wende Correctional Facility ("Wende"). Dkt. #45, pp.4-6.

Currently before the Court is defendants' third motion to dismiss plaintiff's pro se complaint. Dkt. #50. For the following reasons, it is recommended that the motion be granted in part.

BACKGROUND

Plaintiff filed an amended complaint on May 23, 2013 seeking compensatory and punitive damages as well as expungement from plaintiff's disciplinary records of a guilty determination on charges of refusing a direct order and refusing assignment to a double bunk which resulted in the imposition of 180 days confinement to the Special Housing Unit ("SHU"). Dkt. #48. Plaintiff's amended complaint alleges the following relevant facts:

1. Plaintiff was released from SHU on May 14, 2010.
2. After entering A-block at Wende at approximately 8:00 p.m., plaintiff was told to double cell. After refusing to double cell, the plaintiff was returned to SHU.
3. On May 18, 2010, plaintiff was interviewed by his assigned assistant, C.O. Croce. Plaintiff requested that C.O. Croce interview Deputy Superintendent Sticht and obtain: (1) a memorandum from plaintiff's file authored by Deputy Superintendent Sticht which states that plaintiff should not be placed in a double cell; and (2) a transcript of a disciplinary hearing from November of 2005 in which then Captain Sticht found plaintiff not guilty of refusing to double bunk and assured plaintiff that he should not be placed in a double cell. C.O. Croce failed to provide the requested assistance.
4. On May 22, 2010, at approximately 9:55 a.m., while using the bathroom, C.O. Croston and C.O. Rynlewicz told plaintiff to get ready for a hearing. Plaintiff informed them he was using the bathroom defecating. Once he finished, C.O. Croston and C.O. Rynlewicz took plaintiff out of his cell and proceeded to pat frisk him. During the pat frisk, plaintiff's hair was pulled by C.O. Croston and when plaintiff protested, he was told by C.O. Rynlewicz, "shut up, he did not pull your hair, " and then returned plaintiff to his cell.
5. Plaintiff filed a grievance (#WDE-32889-10), which was investigated by Lt. Keenan.
6. Plaintiff requested that Lt. Keenan review and preserve the videotape of C.O. Croston and C.O. Rynlewicz pat frisking him outside of his cell and also asked Inmate Record Coordinator ("IRC"), Joyce Krygier to preserve the videotape.
7. In retaliation for plaintiff filing a grievance against them, C.O. Croston and C.O. Rynlewicz issued a misbehavior report against plaintiff regarding the pat frisk on May 22, 2010.
8. On May 28, 2010, plaintiff wrote to SHU Director Bezio about his confinement in SHU and not being released or called to ...

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