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Murray v. Nephew

United States District Court, Second Circuit

December 5, 2013

ROBERT L. MURRAY, Plaintiff,
v.
SARA NEPHEW, RC II; Mental Health; Clinton Correctional Facility; Defendant.

ROBERT L. MURRAY, 05-A-5765, Plaintiff Pro Se, Dannemora, NY.

CATHY Y. SHEEHAN, ESQ., Assistant Attorney General, HON.ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for the Defendants.

REPORT-RECOMMENDATION AND ORDER [1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Robert L. Murray ("Murray"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant, a DOCCS employee, violated his constitutional rights by issuing a misbehavior report in retaliation for his bringing a lawsuit. Compl. (Dkt. No. 1) at 4. Presently pending is defendant Nephew's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 14. Rosario does not oppose the motion. For the following reasons, it is recommended that defendant's motion be granted.

I. Background

The facts are related herein in the light most favorable to Murray as the non-moving party. See subsection II(A) infra.

On March 5, 2012, Murray filed a § 1983 action against Defendant Nephew and a Dr. Gillani alleging that they "changed [Murray's] mental health diagnosis' so that he would not be able to re-enter the Special Needs Unit ("SNU") in retaliation for filing lawsuits against the Office of Mental Health ("OMH"). Murray v. Gillani, No. 12-CV-401 (LEK)(ATB), 2013 WL 838351, at *1 (N.D.N.Y. Feb. 11, 2013) (hereinafter Murray I) (Ex. A)[2]; see also Compl. at 4 (explaining that the genesis of the current claim came from the lawsuit filed against Nephew). On March 6, 2013, the Hon. Lawrence E. Kahn approved and adopted Magistrate Andrew T. Baxter's Report and Recommendation granting defendants' summary judgment motion, dismissing the action. Murray v. Gillani, No. 12-CV-401, 2013 WL 838306 (N.D.N.Y Mar. 6, 2013) (Ex. B). On December 5, 2012, Murray filed the current action against Nephew alleging that she issued a false misbehavior report in retaliation for the Murray I lawsuit. Compl. at 4-6.

On July 26, 2012, Murray had a call out to Hospital III, and was seen by Defendant Nephew, a Rehabilitation Counselor, at the Clinton Correctional Facility. Compl. at 4. While there, Nephew asked Murray about the March 5th lawsuit he had filed against Nephew and Dr. Gillani, to which Murray responded "don't worry about it." Id. Nephew continued to ask Murray about the lawsuit and when he did not answer, Nephew got up and walked out of the room. Id. When Murray attempted to also walk out of the room, Nephew told the officer to "lock [him] up." Id. When Murray asked Nephew the reason for doing so, Nephew responded that she would "figure something out." Id. On that same day, Nephew issued Murray a misbehavior report for violating rules 107.10: Interference; 102.10: Threats; 106.10: Direct Order; resulting in a sentence of 30 days in Keeplock and loss of privileges. Dkt. No. 1-1 at 13; Dkt. No. 17 at 1. Defendant Nephew states in the misbehavior report that on November 26, 201, Murray "made several threatening statements" such as, "I will sue your ass" and "I will take you to court." Dkt. No. 1-1 at 13. Murray continued to make such comments even after being directed to refrain from doing so. Id . Because of the continued "threatening and intimidating behavior, " Defendant Murray terminated the interview and exited the room. Id . Murray refused to leave the room. Id.

II. Discussion

A. Legal Standard

Under Fed.R.Civ.P. 12 (b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure calls upon the court to assess the facial sufficiency of that pleading using a pleading standard which, "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Iqbal , 556 U.S. at 677-78 (quoting FED.R.CIv.P. 8(a)(2)). That rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "A pleading that offers labels and conclusions' or a formulaic recitations of a cause of action will not do.'" (quoting Twombly , 550 U.S. at 555)).

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus , 551 U.S. 89, 94 (2007) (citing Twombly , 550 U.S. at 555-56); see also Cooper v. Pate , 378 U.S. 546, 546 (1964) (citations omitted); Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 300 (2d Cir. 2003) (citations omitted); Burke v. Gregory , 356 F.Supp.2d 179, 182 (N.D.N.Y. 2005) (citations omitted). However, the tenet that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal , 556 U.S. at 678. To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570); see also Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litiq. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570) (alterations and footnote omitted).

When assessing the sufficiency of a complaint against this backdrop, "[w]e construe plaintiff's complaint liberally accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff's favor. Selevan v. N.Y. Thruway Auth. , 584 F.3d 82, 88 (2d Cit. 2009) (citing Homes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted)). When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that a pro se litigant's submission must be construed liberally, and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we cannot read into pro se litigant's allegations or arguments that the submissions themselves do not suggest that we should not excuse frivolous or vexatious filings by pro se litigants, and that pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law....

Id. (Internal quotation marks, citations, and footnotes omitted); see also Sealed Plaintiff v. Sealed Defendant # 1 , 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)).

B. Retaliation

Courts have been cautioned to approach First Amendment retaliation claims by prisoners with skepticism and particular care. Davis v. Goord , 320 F.3d 346, 352 (2d Cir.2003) (citing Dawes v. Walker , 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds by Swierkiewicz v. Sorema, NA , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). However, that does not mean that such claims are to automatically be dismissed. Such a claim can survive a defendant's motion to dismiss, but only if plaintiff alleges facts tending to establish that (1) the speech or conduct that led to the allegedly retaliatory conduct is the sort of speech or conduct that is protected by the Constitution; (2) defendant(s) took adverse action against the plaintiff; and (3) there is a causal connection between the protected speech or activity and the adverse action. See e.g., Jones v. Harris , 665 F.Supp.2d 384, 398 (S.D.N.Y. 2009). These allegations may not be conclusory; they must have some basis in specific facts that are not inherently implausible on their face. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); South Cherry Street LLC v. Hennessee Group LLC , 573 F.3d 98, 110 (2d Cir.2009). Additionally, if Murray makes these showings, Defendant Nephew may avoid liability if demonstrated that Defendant would have filed the misbehavior report "even in the absence of the protected conduct." Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996) (quoting Mount Healthy Sch. Dist. V. Doyle, 429 U.S. 274).

Furthermore, "[o]nly retaliatory conduct that would deter a similarly-situated individual of ordinary firmness from exercising his... constitutional rights constitutes an adverse action...[; if a] retaliatory act is de minimis, [it falls] outside the ambit of constitutional protection. Davis , 320 F.3d at 353 (citing Dawes , 239 F.3d 489). In this regard, prisoners may be required to tolerate more than public employees or average citizens before a purportedly retaliatory action taken against them is considered adverse. Thaddeus-X v. Blatter , 175 F.3d 378, 392-93 (6th Cir., 1999).

The Second Circuit has defined "adverse action" in the prison context, as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising... constitutional rights.'" Gill v. Pidlypchak , 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis v. Goord , 320 F.3d 346, 353 (2d Cir. 2003). The Second Circuit has "made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits." Id.

Murray claims that Defendant Nephew issued a false misbehavior report in retaliation for the filing of the March 5, 2012 claim, by Murray, against Nephew. However, Defendant Nephew contends that Murray I was a frivolous lawsuit and therefore not protected activity. The right of access to courts is protected by the First Amendment's clause granting the right to petition the government for grievances. California Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 510, 92 S.Ct. 609, 612, 30 L.Ed.2d 642 (1972); Brown v. Grabowski , 922 F.2d 1097, 1111 (3d Cir. 1990). However, "filing a court action that is frivolous is not constitutionally protected activity." Henry v. Dinelle, No. 10-CV-456 (GTS/DEP), 2011 WL 5975027, at *7, n.11 (N.D.N.Y. Nov. 29, 2011) (Ex. C); see also, Hurley v. Blevins, No. Civ. A. 6:04-CV-68, 2005 WL 997317, at *6 (E.D. Tex. Mar. 28, 2005) (noting that "[a] claim of retaliation can be made only for constitutionally protected activity, and the filing of frivolous lawsuits does not fall within this category.") (Ex. D).

In the Murray I lawsuit, which is the genesis for the current claim, the Court determined that the retaliation claim was in fact frivolous, stating "[i]t is clear that plaintiff is attempting to create his own retaliation' by acting so inappropriately that Ms. Nephew finally issued the misbehavior report about which plaintiff has been warned." Murray I, 2013 WL 838351, at *11 (Ex. A). Accordingly, as Murray was not engaged in protected activity, he has failed to meet the first prong of the analysis and his complaint should be dismissed.

Furthermore, even if the analysis was continued as if Murray was in fact engaged in constitutionally protected activity when Defendant Nephew issued a misbehavior report, Murray still fails to meet the remaining prongs for a retaliation claim. Regarding the second prong, there is no dispute that Defendant Nephew filed a misbehavior report against Murray after Defendant Nephew had been served the complaint in Murray I, which constituted adverse action. See Gill v Pidlypchak , 389 F.3d 379, 384 (2d Cir. 2004) (holding that the filing of false misbehavior reports constitutes adverse action). However, questions arise when analyzing the third prong, as there is no evidence to support a casual connection between Murray's filing of the previous lawsuit and Defendant Nephew's issuance of a misbehavior report.

Even if there were evidence to indicate that Defendant Nephew's filing of the misbehavior report, which constituted adverse action, was motivated in part by Murray's protected activity namely, filing a lawsuit, in light of the violations and explanation listed infra, Defendant Nephew would have taken the same adverse action in the absence of the protected activity, thereby allowing Nephew to avoid liability.

For the reasons stated, Defendant's motion to dismiss the retaliation claim should be granted.

C. Collateral Estoppel

Defendant Nephew contends that her actions in writing the misbehavior report were justified because, as determined in Murray I, the court already concluded that she wrote said misbehavior report for proper purposes. While not specifically stated as such, Defendant contends issue preclusion applies, directing an identical finding as in the previous case and dismissing any of Murray's potential retaliation claims.

"Once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first action." Allen v. McCurry , 449 U.S. 90, 94 (1980). Collateral estoppel is applicable:

If (1) there has been a final determination on the merits of the issue sought to be precluded; (2) the party against whom... preclusion is sought has a full and fair opportunity to contest the decision...; and (3) the issue sought to be precluded by the earlier suit is the same issue involved in the later action.

Davis v. Halpern , 813 F.2d 37, 39 (2d Cir. 1987) (citation omitted). The requirement of full and fair opportunity to contest requires that the plaintiff "was fully able to raise the same factual or legal issues" in the prior litigation as asserted in the present case. LaFleur v. Whitman , 300 F.3d 256, 274 (2d Cir. 2002).

In this case, preclusion is appropriate based on collateral estoppel. First, there was a final determination in the Murray I, as the judge directed a verdict in the defendant's favor, on the merits, dismissing Murray's retaliation claims. Specifically, it was noted that the July 26, 2012 misbehavior report stated that Murray had been counseled on prior call outs to refrain from threatening behavior and "a review of the medical records submitted by the defendants shows that defendant Nephew had warned plaintiff several times about his aggressive behavior before she actually filed a misbehavior report against him." Murray I, 2013 WL 838351, at *11 (Ex. A). The court also states that "[i]t is clear that plaintiff is attempting to create his own retaliation' by acting so inappropriately that Ms. Nephew finally issued the misbehavior report about which plaintiff had been warned." Id. Second, Murray had an opportunity to present his case and was afforded, and utilized, an opportunity to file additional materials in support of his position, with the November 28, 2012 order converting the motion to dismiss into a motion for summary judgment. Id. , 2013 WL 838351, at *4-*5 (Ex. A). Third, as demonstrated by reading the Murray I complaint and decision, the underlying factual basis of the claim is identical to the current claim-claiming adverse action allegedly taken in retaliation for the filing of a lawsuit. Thus, it is clear that there was a final determination on the merits, and the issues in contention between the parties in the prior Murray I decision and the case at hand are identical.

Accordingly, relitigating the issue of whether the misbehavior report was issued based on a proper purpose is precluded as the court in Murray I had already determined that such a misbehavior report was issued for a proper purpose. Accordingly, the undersigned comes to an identical conclusion as well. As Defendant Nephew would have issued the misbehavior report irrespective of the filing of the lawsuit, any such retaliation claims are rendered meritless. Allen , 449 U.S. at 94; Davis , 813 F.2d at 39.

Therefore, defendant's motion to dismiss should be granted on this ground as well.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendant's motion to dismiss (Dkt. No. 14) be GRANTED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS , 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Robert L. Murray, pro se.

Gregory J. Rodriguez, AAG, for the Defendants.

Opinion

REPORT-RECOMMENDATION

ANDREW T. BAXTER, United States Magistrate Judge.

*1 In this civil rights complaint, plaintiff alleges that defendants changed plaintiffs "mental health diagnosis" so that he would not be able to re-enter the Special Needs Unit ("SNU") in retaliation for filing lawsuits against the Office of Mental Health ("OMH"). (Compl. ¶ 6 & Causes of Action; Dkt. No. 1). Plaintiff seeks injunctive and monetary relief. (Compl. Prayer for Relief). On July 12, 2012, defendants filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 11). On November 28, 2012, after reviewing defendants' motion to dismiss and plaintiffs response to that motion, I issued an order converting the motion to dismiss to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d) and 56. (Dkt. No. 15). In my November 28th order, I afforded both parties the opportunity to file additional materials in support of summary judgment. ( Id. ) Both plaintiff and defendants have filed additional materials in support of their respective positions. (Dkt. Nos. 22-23 (defendants), 26 (plaintiff)). The court will now proceed to consider the pending motion for summary judgment, incorporating the additional materials submitted by both sides.

DISCUSSION

I. Facts

A. Complaint

In his complaint, plaintiff alleges that on December 17, 2011, defendants Dr. Gillani and RC II Nephew "changed" plaintiffs mental health diagnosis to justify their refusal to transfer plaintiff back into an SNU. (Compl. ¶ 6). Plaintiff claims that defendants' conduct was in retaliation for plaintiff filing lawsuits against OMH and other staff. Plaintiff claims that on December 17, 2011, he asked Dr. Gillani about going back to an SNU program, but that Dr. Gillani told plaintiff "you know what you did." ( Id. ) Plaintiff claims that he responded that "all I did was file a lawsuit against staff..., " and that Dr. Gillani stated "[t]hat's why I'm not sending you back." ( Id. ) Plaintiff claims that he filed lawsuits against the Department of Corrections and Community Supervision ("DOCCS") in 2006, 2008, and 2009, and that he was taken out of SNU "on false pretences [sic]." ( Id. ) Plaintiff states that he must go back into an SNU so that he can get the programs he needs to go home in February of 2013. (Compl. Third Cause of Action).

B. Defendants' Additional Evidence

Defendants have each filed a Declaration in support of summary judgment in their favor. (Dkt. Nos. 23 (Sara Nephew), 23-1 (Dr. Sohail A. Gillani, M.D.)). In addition to the Declarations, defendants have filed plaintiffs related medical records. Defense counsel has also filed the decision of the Central Office Review Committee ("CORC"), denying plaintiffs grievance, dated July 25, 2012. (Dkt. No. 22-3).

Defendant Gillani states that he is currently employed by OMH as a psychiatrist and has been employed at the Satellite Unit of the Central New York Psychiatric Center ("CNYPC") at Clinton Correctional Facility since August 2007. (Gillani Decl. ¶¶ 1-2). Defendant Nephew is currently employed as a Rehabilitation Counselor II ("RCII")[1] by OMH at the Satellite Unit of CNYPC at Clinton, and has been employed there since October of 2007. (Nephew Decl. ¶¶ 1-2).

*2 Plaintiffs records reveal that he arrived at Clinton Correctional Facility on February 11, 2011, and at that time, plaintiffs mental health diagnoses were "Anti Social Personality Disorder ("ASPD") and Borderline Intellectual Functioning. (Nephew Decl. ¶ 4 & Ex. A; Gillani Decl. ¶ 4). Dr. Gillani states that he has been treating plaintiff since that time, and that plaintiffs diagnosis has not changed since he has been at Clinton. (Gillani Decl. ¶ 5). The last time that plaintiffs diagnosis changed was in December of 2009, more than one year before he was transferred to Clinton. (Nephew Decl. ¶ 4). On December 2, 2009, plaintiffs Axis I diagnoses of Schizoaffective Disorder and Mood Disorder NOI (Not Otherwise Specified) were deleted, leaving the ASPD and Borderline Intellectual Functioning diagnoses. ( Id. ) Plaintiff has never had the Schizoaffective Disorder or Mood Disorder diagnoses since then. ( Id. & Ex. A).

Dr. Gillani states that the SNUB, to which plaintiff refers in his complaint, provide programs and housing areas for inmates who have low intellectual functioning and adaptive behavior deficits, are not likely to take care of themselves, and are in general need of additional supervision, (Gillani Decl. ¶ 7; Nephew Decl. ¶ 5). Plaintiff was housed in the General Population at Clinton from the time he arrived on February 11, 2011 until December 17, 2011. (Gillani Decl. ¶ 10). Plaintiff did not report any conflicts with other inmates or staff, and during that time, did not receive any misbehavior reports. ( Id. ) Dr. Gillani states that plaintiff did not evidence any difficulty functioning in the prison environment, "secondary to his mental illness or due to his limited intellectual functioning." ( Id. )

Dr. Gillani saw plaintiff on December 17, 2011, at which time, plaintiff requested that his primary therapist refer him to SNU, however, plaintiffs diagnosis and his ability to function properly in general population did not support a recommendation that plaintiff be referred to SNU. (Gillani Decl. ¶ 12). Plaintiff was taken out of SNU in August 2006, long before his diagnosis was changed in 2009, and long before he was transferred to Clinton and met either one of the defendants. (Gillani Decl. ¶ 13). Dr. Gillani continues to believe that plaintiff does not belong in the SNU, based upon all the evidence in plaintiffs file and based upon his ability for six years to remain out of SNU without any mental health problems. ( Id. ¶ 14).

Defendant Nephew treated plaintiff for the first time on July 26, 2011. (Nephew Decl. ¶ 7). Defendant Nephew has attached her contemporaneous treatment notes as Exhibit B to her declaration. RCII Nephew states that she is a counselor at the Satellite Unit at Clinton and sees patients once per month. When she began seeing plaintiff, he denied any conflicts with other inmates or with staff. ( Id. & Ex. B, Dkt. No. 23 at CM/ECF p. 9). A review of defendant Nephew's progress notes for July 26, 2011 shows that plaintiff was programming in general population and working in the mess hall. ( Id. ) Although plaintiff was cooperative, he requested placement in the Intermediate Care Program ("ICP").[2] ( Id. ) Plaintiff apparently believed (as he seems to believe currently), that he needed ICP "to help me with programs to go home.' "( Id. ) He told defendant Nephew that he wanted ICP so that he could access "ASAT and RSAT"[3] programming. ( Id. ) Defendant Nephew's notes state that she tried to explain to plaintiff "(several times)" that ICP was not appropriate for him because it was for individuals suffering from a serious mental illness, with a focus on treatment of that illness. ( Id. ) However, defendant Nephew states that plaintiff "appeared not to understand writer's explanation of his request for DOCS programming and how this is not what ICP is for." ( Id. )

*3 Defendant Nephew's next report is dated August 17, 2011. ( Id. at CM/ECF p. 11). She specifically noted that there were no changes in diagnosis, level, or medications since her last report. Plaintiff reported no stressors, was feeling well, denied depression or anxiety, and reported improved adjustment to his mess hall job. However, he continued to insist that he belonged in ICP so that "he could go home." Defendant Nephew stated that although plaintiff previously carried psychotic diagnoses, his "current bizarre content is likely a product of his low intellectual functioning and his immature communication. He was functioning appropriately and was "ticket free." ( Id. )

On September 11, 2011, plaintiff was still functioning appropriately in general population. (Nephew Decl. ¶ 9, Ex. B at Cm/ECF p. 12). At that time, plaintiff was still fixated with allegedly having seen defendant Nephew on television.[4] Plaintiff was warned that if he continued to insist on calling defendant a "movie star, " it would lead to a misbehavior report. Defendant Nephew stated that plaintiff was not in agreement with his diagnosis and insisted that he was Schizophrenic. He was concerned that he would not get the proper metal health treatment "on the street." ( Id. ) Although plaintiff still remained "ticket free, " defendant Nephew's assessment states that plaintiff recognized that he "ends up in the box'" when he did not take his medications, but could not make any further connections regarding the behavior that lead to SHU time. He was also "fixated on winning a lawsuit." ( Id. )

Defendant Nephew's next report is dated October 13, 2011. (Nephew Decl. ¶ 10 Ex. B at CM/ECF p. 15). Plaintiff began an ASAT program. He took the program before, but did not complete it successfully because he signs out when he does not want to be "bothered." He stated that he was not sure how long he would be able to last in the program this time, before someone "bothers him.'" ( Id. ) Plaintiff remained "ticket free" at the time. Defendant Nephew also evaluated plaintiff on December 14, 2011. (Nephew Decl. ¶ 12 & Ex. B at CM/ECF p. 9). Plaintiff reported that he was doing well and staying out of trouble. He was programming in Adult Basic Education ("ABE"), and there was no functional impairment at that time. However, he demanded ICP placement, but refused to discuss why he believed that he should be in ICP. He told defendant Nephew that he was not getting adequate mental health care, became verbally aggressive, and used profanity. ( Id. ) Plaintiff told defendant Nephew that she was "stressing [him] out." Defendant Nephew terminated the session, warning plaintiff that further aggressive behavior would result in a disciplinary ticket. ( Id. )

In the declarations of both defendants, they state that, before a referral to SNU is made, that referral is discussed by the patient's "treatment team, " and the Unit Chief of the Satellite Unit signs off on the referral before it is forwarded to the SNU facility.[5] (Nephew Decl. ¶ 6; Gillani Decl. ¶ 8).

C. Plaintiffs Additional Evidence

*4 In an attempt to support his retaliation claim, plaintiff has submitted evidence of a misbehavior report dated July 25, 2012, written against him by defendant Nephew. (Dkt. No. 26 at CM/ECF p. 5).[6] Plaintiff argues that defendant Nephew lied in her declaration, because she did "not tell the court about this ticket." (Dkt. No. 26 at CM/ECF p. 2). Plaintiff then claims that this misbehavior report was written against plaintiff "for filing a law suit against her." ( Id. ) Plaintiff attaches underlined portions of defendant Nephew's declaration which discuss plaintiffs lack of disciplinary tickets while incarcerated at Clinton up to December 17, 2011.[7] ( Id. CM/ECF pp. 3-4). Plaintiff also attaches underlined portions of Dr. Gillani's declaration. ( Id. at pp. 18-19). Plaintiff submits a great many documents referencing events that occurred after plaintiff filed this action.

Plaintiff has also attached a report of his Parole Board appearance dated December 2012. (Dkt. No. 26 at CM/ECF pp. 13-14). Plaintiff appeared before the Parole Board on November 27, 2012. During his Parole Board appearance, plaintiff disagreed with the synopsis of his offense and claimed that he was initially arrested by the police from the 25th precinct "because he had sued the police department and won." ( Id. ) The report discusses plaintiffs "institutional adjustment, " finding that he has made various attempts to participate in substance abuse programs such as ASAT, but then began receiving misbehavior reports and failed to complete the programs. Plaintiff attaches this discussion in an effort to rebut the defendants' allegation that he maintained a good disciplinary record. (Dkt. No. 26 at 13).

Finally, plaintiff has filed a declaration that discusses events occurring in 2005 and 2006. (Dkt. No. 26-1 at 1-2). Plaintiff then writes about an alleged assault in 2006 when he was in the SNU program. ( Id. at 1). He mentions the Western District of New York, and then alleges that on December 7, 2012 (while at Clinton), OMH and Corrections staff stole all the things in his cell, assaulted him, and attempted to kill him. ( Id. at 2). Plaintiff claims that he was kept in a strip cell for seven days. Finally, plaintiff states that he was being paid for a program that he never attended. He claims that the people in the SNU program are angry because plaintiff let the court know what was going on in the program. ( Id. at 3).

II. Summary Judgment

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

*5 In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the non-movant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006) (citing Celotex Corp., 477 U.S. at 23). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.

If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Additionally, while a court "is not required to consider what the parties fail to point out, '" the court may in its discretion opt to conduct "an assiduous view of the record" even where a party fails to respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted).

III. Exhaustion of Administrative Remedies

A. Legal Standards

The Prison Litigation Reform Act, (PLRA), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. This requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion requirement applies, inter alia, to excessive force claims)). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.

The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g, Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y.2009) (citations omitted).

*6 The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103. In Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002), the Second Circuit specifically held that completion of the administrative review process includes receiving the decision on the final appeal of a grievance prior to filing the federal action.

The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (IGRC). N.Y. Comp.Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (CORC). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility).

At the same time that the Second Circuit decided Giano, it also decided four other related cases, clarifying the law in the Second Circuit regarding the PLRA's exhaustion requirement, and specifying various instances in which the requirement could be waived or excused.[8] Based on these cases, the Second Circuit developed a "three part inquiry" to determine whether an inmate has fulfilled the PLRA exhaustion requirement. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir.2006) (citing Hemphill, 380 F.3d at 686). The inquiry asks (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether "special circumstances" justify the inmate's failure to comply with the exhaustion requirement. Id.

Although the Second Circuit has not explicitly held that Hemphill remains good law after Woodford, it has applied the three-part inquiry in recent cases. See, e.g., Macias v. Zenk, 495 F.3d 37 (2d Cir.2007); Davis v. State of New York, 311 F.Appx. 397, 399 (2d Cir.2009); Snyder v. Whittier, 428 F.Appx. 89, 91 (2d Cir.2011).[9]

B. Application

When defendants in this action filed their motion to dismiss, they included the affidavit of Jeffrey Hale, Assistant Director of the Inmate Grievance Program, who stated that although plaintiff filed a grievance requesting to be returned to the SNU, the CORC appeal was still pending at the time plaintiff filed this action. (Hale Decl.; Dkt. No. 11-2). I found that, notwithstanding plaintiffs assertion that he filed a grievance, Mr. Hale's declaration was not incorporated into the complaint by reference. (Dkt. No. 15 at 4) (citing Vandever v. Murphy, No. 3:09-CV-1752, 2012 WL 3727646, at *9 (D.Conn. March 13, 2012)). This was one of the reasons for the conversion to summary judgment.

*7 Plaintiff argues that the CORC has twenty days to issue a decision, and thus, a decision on his grievance should have been issued by April 10, 2012. Plaintiff appears to argue that because the CORC did not decide his appeal in a timely manner, his administrative remedies would be deemed exhausted, and he should have been able to file his action.[10] However, the court notes that plaintiff filed this complaint on March 5, 2012, before he received the Superintendent's decision, and before he ever appealed his Superintendent's decision to the CORC. (Dkt. No. 1). The law is clear that exhaustion must take place prior to filing the federal action, and that subsequent exhaustion of remedies is insufficient to comply with the PLRA. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001).

In addition to Mr. Hale's affidavit, the defendants have now filed the decision of the CORC, denying plaintiff's grievance appeal. (Dkt. No. 22-3 at 3). The CORC decision is dated July 25, 2012, approximately four months after plaintiff filed this action. None of the exceptions to the exhaustion requirement apply in this case. Plaintiff simply filed this action before he completed his administrative appeals. There was no conduct by defendants that would have prevented him from waiting until his remedies were exhausted, and there are no other special circumstances that would have warranted the premature filing of this action. Thus, plaintiff failed to exhaust his administrative remedies prior to filing this action, and the court would be required pursuant to Neal v. Goord to recommend dismissal for failure to exhaust.

The court would also point out that the February 7, 2012 grievance filed by plaintiff states only that he is a mental health patient with special needs, and that he was originally in SNU, but was removed for unknown reasons. (Dkt. No. 13 at 10). Plaintiff also states that he was currently having mental health issues and wished to be returned to the SNU. ( Id. ) There is absolutely no mention of either one of the defendants in this action, of any claim that plaintiffs diagnosis was "changed, " or that plaintiff was being subjected to retaliation for filing lawsuits.

The PLRA's exhaustion requirement is designed to afford corrections officials the opportunity to address complaints internally prior to an inmate filing a federal action. Johnson v. Testman, 380 F.3d at 697. A grievance must contain allegations that are sufficient to alert the defendants to the nature of the wrong for which redress is sought, not unlike the rules of "notice pleading" in federal court. Id. The Johnson court held that "[i]n order to exhaust, ..., the inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id. While the PLRA does not require a legal theory of liability to be set forth in an inmate's grievance, nor does it require specific identification of the defendant, the alleged misconduct must still be described adequately. See Espinal v. Goord, 558 F.3d 119, 126-27 (2d Cir.2009) (as long as the inmate provides enough information about the alleged misconduct, the State will normally be able to identify any direct party to a grievance on its own through investigation).

*8 In this case, plaintiff never mentions either defendant in his grievance. Although this omission would not necessarily constitute a failure to exhaust, plaintiff never mentions that the reason for his failure to be "returned" to SNU was due to the retaliatory actions of any corrections personnel and never mentioned that this retaliatory conduct was based on his winning prior law suits. He has failed to describe the conduct that he is challenging in this action. Thus, plaintiff has not exhausted his administrative remedies with respect to the claims that he now brings in this action, first, because he did not complete the administrative process prior to filing this action, and second, even if he had waited for the appropriate administrative decisions, his grievance did not alert corrections officials to the conduct he is challenging in his federal complaint.

However, this court finds that exhaustion is only one basis for dismissal of plaintiffs complaint, and rather than recommending dismissal without prejudice for failure to exhaust, I will recommend that the complaint be dismissed in its entirety on the merits based on the following analysis.

IV. Retaliation

A. Legal Standards

In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, that he engaged in constitutionally protected conduct, and second, that the conduct was a substantial motivating factor for "adverse action" taken against him by defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). The plaintiff must establish a causal connection between the protected conduct or speech and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Bennett, 343 F.3d at 137 (citation omitted). Accordingly, plaintiff must set forth nonconclusory allegations. Id. Finally, even if plaintiff makes the appropriate showing, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct. Id.

The Second Circuit has defined "adverse action" in the prison context, as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising... constitutional rights.'" Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 2003 U.S.App. LEXIS 13030 (2d Cir. Feb. 10, 2003)) (omission in original). This objective test applies even if the plaintiff was not himself subjectively deterred from exercising his rights. Id.

B. Application

Plaintiff claims that defendants Nephew and Gillani manipulated his mental health diagnoses on December 17, 2011 so that he would not be able to go back to the SNU in retaliation for his filing, and winning, lawsuits against unrelated defendants in the Western District of New York, based on conduct occurring at Attica and Wende Correctional Facilities. Filing lawsuits is clearly constitutionally protected activity, but the evidence shows that plaintiff cannot establish any of the other requirements of a retaliation claim.

1. Adverse Action

*9 Defendants in this case have filed plaintiffs "Diagnosis Record, " showing that the last change in plaintiffs diagnosis was made in 2009, before plaintiff was transferred to Clinton and before he ever met the two defendants in this action. Plaintiff was taken out of SNU in 2006 for disciplinary reasons. Thus, neither defendant had any involvement in his removal from SNU, nor did they "manipulate" plaintiffs diagnoses at any time.[11] Therefore, neither defendant took adverse action against plaintiff. Without an adverse action, plaintiffs retaliation claim must fail.

2. Defendants' Motivation

Neither Dr. Gillani, nor Ms. Nephew have ever worked at Attica or Wende Correctional Facilities. (Nephew Decl. ¶ 2; Gillani Decl. ¶ 2). Each of the defendants affirm that they did not know about any specific law suits filed by plaintiff until this action. (Gillani Decl. ¶ 6; Nephew Decl. ¶ 9). Defendant Nephew states that during her examination of plaintiff on September 15, 2011, he appeared "fixated" on winning a lawsuit about being taken off psychiatric medication, but that defendant Nephew was unaware of the other details of that case. (Nephew Decl. ¶ 9).

The only previous action filed by plaintiff in the Northern District of New York involved excessive force[12] and an allegedly false misbehavior report. Murray v. C.O. Foster, 9:09-CV-872 (LEK/GHL). This action involved conduct that occurred at Great Meadow Correctional Facility in 2009 and was settled in February of 2011. (Dkt. No. 31 in 9:09-CV-872). A review of defendant Nephew's progress notes state that on July 26, 2011 "[p]atient is new to this writer's case." (Dkt. No. 23 at 9). In the same report, defendant Nephew states that the plaintiff was "not known to the writer."[13] ( Id. ) If defendant Nephew did not know plaintiff before July 26, 2011, she could not have been aware of his prior lawsuits and retaliated against him for those cases.

The court notes that in his response, plaintiff continues to complain about conduct that occurred in 2005 and conduct that allegedly occurred in the Western District of New York. At the same time, and in the same paragraph, he states that OMH staff and corrections staff took his property in December of 2012. None of these facts relate to the claim that plaintiff is making in this case, and none of the documents submitted by plaintiff shows any relationship between plaintiffs failure to be placed in SNU, his lawsuits, [14] and these defendants. Thus, plaintiff cannot establish that the defendants were motivated by his prior law suits. See, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) ("As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.") (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (dismissing retaliation claim against a corrections officer when only alleged basis for retaliation was complaint about a prior incident by another corrections officer); Roseboro v. Gillespie, 791 F.Supp.2d 353, 369 (S.D.N.Y.2011) (plaintiff failed to provide any basis to believe that a corrections counselor would retaliate for a grievance that she was not personally named in) (collecting cases); Ciaprazi v. Goord, 9:02-CV-915 (GLS/DEP), 2005 WL 3531464, at *8-9 (N.D.N.Y. Dec. 22, 2005) (granting summary judgment and dismissing retaliation claim based only on plaintiffs conclusory allegations that the manifest falsity of the misbehavior report and testimony during the disciplinary hearing indicated the disciplinary matters were motivated by retaliatory animus due to grievances plaintiff filed against individuals other than the defendants involved in the disciplinary action).

3. Non-Retaliatory Basis for Defendants' Conduct

*10 Defendant Nephew's notes also state that, when plaintiff first asked about SNU at his first interview with her in July of 2011, she did not believe that plaintiff belonged in SN U.She states that she tried to explain that SNU or ICP was for inmates who were suffering from serious mental illnesses, and the mental health professionals did not believe that plaintiffs condition was appropriate for that placement. Although plaintiff initially stated that he understood the explanation, he continued to insist that he be placed in ICP. (Nephew Decl. Ex. B at CM/ECF p. 9).

In support of their position that plaintiffs condition was not appropriate for the placement he requested, defendants state that plaintiff had remained free of disciplinary tickets. One of the reasons that plaintiffs referral to SNU was not warranted was because he was "functioning well in general population." (Nephew Decl. at ¶ 10 & Ex. B). Plaintiff challenges this assertion by filing his Time Allowance Committee Notice and his 2012 Parole Status Report, both indicating that plaintiff received multiple misbehavior reports while in general population. (Dkt. No. 26 at CM/ECF p. 13). However, defendants did not state that plaintiff had never been issued misbehavior reports. Defendant Nephew stated that plaintiff was free of disciplinary tickets since he was transferred to Clinton in February of 2011. A review of the document submitted by plaintiff shows that none of the misbehavior reports to which the committee referred were issued between February of 2011[15] and December of 2011. Defendant Gillani stated that plaintiffs last placement in SNU was in August of 2006, and since that time, he showed the ability to remain out of SNU, had no medical problems, had no problems functioning socially within the general population, participated in Adult Basic Education, was without any significant drop or change in self care and hygiene, and did not experience problems going to the mess hall or utilizing recreation for six years. (Gillani Decl. ¶ 13). The key to Dr. Gillani's statement was plaintiffs ability to function in general population, not his lack of misbehavior reports for six years.[16] It is his professional opinion that plaintiff does not belong in SNU.

The Parole Hearing Report does mention misbehavior reports, but only refers to the disciplinary tickets that plaintiff received prior to being transferred to Clinton. The last misbehavior report mentioned in the Parole Hearing Report was for threats and was dated December 17, 2010. It appears to be one of the reasons that plaintiff was transferred to Clinton. The report discusses plaintiffs subsequent failure to complete programs, but does not indicate that plaintiff received misbehavior reports for failing to do so, and there is no indication that any of plaintiffs problems involved an inability to live in general population.

Plaintiff now alleges that defendant Nephew lied to the court because she did not mention the misbehavior report that she filed against him in July of 2012 "in retaliation" for this law suit. First, the court would point out that the basis of this action was that defendants Nephew and Gillani manipulated plaintiffs diagnoses to keep him out of SNU in retaliation for law suits filed in the Western District of New York, not in retaliation for this lawsuit. It is true that defendant Nephew filed a misbehavior report against plaintiff on July 26, 2012 for "threatening statements" about suing "her ass" and taking her to court.[17] (Dkt. No. 26 at 5).

*11 However, defendant Nephew's July 26, 2012 misbehavior report notes that plaintiff had been counseled on prior call outs to refrain from threatening behavior. ( Id. ) A review of the medical records submitted by defendants shows that defendant Nephew had warned plaintiff several times about his aggressive behavior before she actually filed a misbehavior report against him. It is clear that plaintiff is attempting to create his own "retaliation" by acting so inappropriately that Ms. Nephew finally issued the misbehavior report about which plaintiff had been warned. On November 16, 2011, defendant Nephew's progress note states that plaintiff was being argumentative and demanding transfer to the SNU. (Dkt. No. 23 at 17). On December 14, 2011, defendant demanded ICP placement and talked "over" Ms. Nephew. ( Id. at 19). He became verbally aggressive and used profanity toward defendant Nephew, who terminated the session and stated that "counsel [was] given to Mr. Murray to refrain from this aggressive behavior next session or it will result in a disciplinary ticket." ( Id. )

In addition, a review of defendant Nephew's contemporaneous progress notes shows that, although plaintiff continued to insist that he needed to be in SNU in order to obtain proper programming, this was not true. In fact, defendant Nephew's notes state that plaintiff began an ASAT program on October 13, 2011. (Nephew Ex. B at 15). Ms. Nephew noted that plaintiff had attempted these substance abuse programs before, but admitted to her that he did not know how long he would last in the program until "someone bothered him." ( Id. ) It appears from these notes, and by plaintiffs own admission, that plaintiffs inability to complete the appropriate programming had to do with his behavior while in the program, not because of his "removal" from SNU. It is clear that defendants had a justifiable, and non-retaliatory reason for refusing to place plaintiff in SNU. Thus, plaintiffs retaliation claims may be dismissed.

V. Medical Care

A. Legal Standards

In order to state an Eighth Amendment claim based on constitutionally inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).

The objective prong of the standard is satisfied "when (a) the prisoner was actually deprived of adequate medical care, ' meaning prison officials acted unreasonably in response to an inmate health risk under the circumstances, and (b) the inadequacy in medical care is sufficiently serious.'" Bellotto v. County of Orange, 248 F.Appx. 232, 236 (2d Cir.2007) (quoting Salahuddin v. Gourd, 467 F.3d 263, 279-80 (2d Cir.2006)). If the "unreasonable care" consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is "sufficiently serious." Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003). When a prisoner alleges "a temporary delay or interruption in the provision of otherwise adequate medical treatment, " the court must focus on the seriousness of the particular risk of harm that resulted from the challenged delay or interruption, rather than the prisoner's underlying medical condition alone." Id. at 185. The standard for determining when a deprivation or delay in a prisoner's medical need is sufficiently serious, contemplates a condition of urgency that may result in degeneration of the patient's condition or extreme pain. Bellotto v. County of Orange, 248 F.Appx. at 236 (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) and Smith v. Carpenter, 316 F.3d at 187 (actual medical consequences are highly relevant)).

*12 The subjective prong of the deliberate indifference test is satisfied when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). A plaintiff is not required to show that a defendant acted or failed to act "for the very purpose of causing harm or with knowledge that harm will result, " but must show that the official was aware of facts from which one could infer that "a substantial risk of serious harm" exists, and that the official drew that inference. Id. at 835, 837. The defendant must be subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was "insubstantial or non-existent." Farmer v. Brennan, 511 U.S. at 844. Thus, the court stated in Salahuddin, that the defendant's believe that his conduct posed no risk of serious harm "need not be sound so long as it is sincere, " and "even if objectively unreasonable, a defendant's mental state may be nonculpable." Salahuddin, 467 F.3d at 281.

2. Application

As discussed above, plaintiffs real problem in this case is that he disagrees with defendants over the treatment of his mental illness and does not appear to understand the purpose of SNU. Plaintiff believes that he belongs in SNU, and the defendants disagree with plaintiffs diagnoses and demands. Plaintiff has decided (incorrectly) that he requires this placement in order to go home. It is clear from defendant Nephew's progress notes that plaintiff is mistaken in this assumption, and that SNU is not appropriate housing for plaintiff.

A plaintiffs disagreement with prescribed treatment does not rise to the level of a constitutional claim. Sonds v. St. Barnabas Hosp. Correctional Health Services, 151 F.Supp.2d 303, 311 (S.D.N.Y.2001). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986). Because plaintiff might have preferred an alternative treatment or believes that he did not get the medical attention he desired does not rise to the level of a constitutional violation. Id.

Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citing Estelle v. Gamble, 429 U.S. at 107). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is an inmate. Id . See also Daniels v. Williams, 474 U.S. 327, 332 (1986) (negligence not actionable under § 1983). Thus, to the extent that plaintiffs complaint may be interpreted as raising a claim that he is being denied adequate medical care, that claim may also be dismissed.

*13 WHEREFORE, based on the findings above, it is

RECOMMENDED, that defendant's motion for summary judgment (Dkt. No. 11) be GRANTED and the complaint DISMISSED IN ITS ENTIRETY.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

Robert L. Murray, Dannemora, NY, pro se.

Gregory J. Rodriguez, Office of Attorney General, Albany, NY, for Defendants.

Opinion

DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. BACKGROUND

*1 This matter comes before the Court following a Report-Recommendation filed on February 11, 2013, by the Honorable Andrew T. Baxter, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(d). Dkt. No. 27 ("Report-Recommendation"). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Robert L. Murray ("Plaintiff'), which were filed on February 19, 2013. Dkt. No. 68 ("Objections"). Plaintiff additionally filed "Supplemental Objections" on February 21, 2013. Dkt. Nos. 34-35. The Court has considered the Objections and has determined that the Report-Recommendation should be approved and adopted in its entirety for the reasons stated herein.

On the same date that he filed his Objections, Plaintiff also filed three Motions seeking, respectively: (1) appointment of counsel; (2) leave to appeal the Report-Recommendation in forma pauperis; [1] and (3) preliminary injunctive relief. Dkt. Nos. 30, 32-33. Because the Court adopts the Report-Recommendation, thereby granting Defendants' Motion for summary judgment, the Court also denies Plaintiffs three Motions as moot. See Dkt. No. 11 ("Motion").

II. BACKGROUND

The Court presumes the parties' familiarity with the facts underlying Plaintiffs Complaint and with the procedural history in this matter. Dkt. No. 1 ("Complaint"). The Court recites this brief background only to the extent necessary to decide and contextualize the instant Motion and Report-Recommendation. For a more complete statement of the facts, reference is made to the Complaint.

Plaintiff, a pro se inmate litigant, brought this civil rights claim on March 5, 2012, alleging that in retaliation for filing lawsuits against the Office of Mental Health ("OMH") Defendants changed Plaintiffs "mental health diagnosis" so that he would not be able to re-enter the Special Needs Unit ("SNU"). Compl. ¶ 6.

On July 12, 2012, Defendants filed their Motion for summary judgment as a Motion to dismiss Plaintiff's Complaint. See Mot. Plaintiff filed a Response to the Motion on July 25, 2012. Dkt. No. 13 ("First Response"). On November 28, 2012, after reviewing Defendants' Motion to dismiss and Plaintiffs First Response, Judge Baxter issued an Order converting the Motion to dismiss to a Motion for summary judgment pursuant to Rules 12(d) and 56 of the Federal Rules of Civil Procedure. Dkt. No. 15 ("November Order"). In the November Order, Judge Baxter afforded both parties the opportunity to file additional materials in support of or opposition to summary judgment. Id. Plaintiff submitted a Statement of facts in opposition as well as a Second Response. Dkt. Nos. 17 ("Statement"), 26 ("Second Response"). Defendants also submitted additional materials. Dkt. No. 22. Based on these additional submissions, Judge Baxter recommended that the Court grant Defendants Motion for summary judgment and dismiss Plaintiffs Complaint in its entirety.

III. LEGAL STANDARDS

A. Review of Report-Recommendations

*2 The Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007)) (citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge... 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).

B. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if "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(c). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir.1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, if the moving party has shown that there is no genuine dispute as to any material fact, the burden shifts to the non-moving party to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. This requires the non-moving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). A court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of fact, "not to deciding them." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).

Finally, "[i]t is well established that a court is ordinarily obligated to afford special solicitude to pro se litigants." Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.2010); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.2008); Triestman v. Fed. Bureau ofPrisons, 470 F.3d 471, 474-75 (2d Cir.2006); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990).

IV. DISCUSSION

*3 In his Objections, Plaintiff argues generally that he has provided the Court with proof that Defendants have lied and that the records they have provided to the Court are fraudulent.[2] See generally Obj. In substance, this is the same argument that Plaintiff had initially raised in opposition to the Motion for summary judgment. Compare Obj., with Second Response. Indeed, in his Second Response, Plaintiff includes numerous documents annotated with allegations that they contain inaccuracies and stating that Defendants and other prison personnel have lied.

While the Court is certainly mindful of Plaintiff's pro se status and therefore construes his arguments and submissions liberally, [3] the Court is unable to find that Plaintiff's arguments in his Objections amount to more than a restatement of the ones already raised and rejected by Judge Baxter in his Report-Recommendation. To the extent that the Objections contain slightly different formulations of the arguments raised in the Second Response, they rely entirely on the same contention: that the documentary evidence of Plaintiffs incarceration and medical psychological treatment is entirely fraudulent and so is all testimony by any individuals other than Plaintiff. As a result, the Court reviews the Report-Recommendation only for clear error and finds no such error. See Farid, 554 F.Supp.2d at 307.

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 27) is APPROVED and ADOPTED in its entirety; and it is further

ORDERED, that Defendants' Motion (Dkt. No. 11) for summary judgment is GRANTED in its entirety; and it is further

ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED in its entirety; and it is further

ORDERED, that Plaintiffs Motions (Dkt.Nos. 30, 32-33) are

DENIED as moot; and it is further

IT IS SO ORDERED.

ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the parties to this action.

Sivin & Miller, LLP, Edward Sivin, Esq., of Counsel, New York, NY, for Plaintiff.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Timothy P. Mulvey, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

Opinion

MEMORANDUM-DECISION and ORDER

Hon. GLENN T. SUDDABY, District Judge.

*1 Currently before the Court, in this prisoner civil rights action filed by Jonathan Henry ("Plaintiff') against the five above-captioned employees of the New York State Department of Corrections and Community Supervision ("Defendants"), is Defendants' motion for partial summary judgment. (Dkt. No. 24.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges that, between approximately January 29, 2009, and January 31, 2009, at Ulster Correctional Facility in Napanoch, New York, Defendants violated Plaintiff's following rights in the following manner: (1) Defendants Nurse Jean Norton, Corrections Officer James F. Dinelle, Corrections Officer Russell E. Duckett and Corrections Officer Alfred J. DeLuca violated Plaintiff's rights under the First Amendment by filing retaliatory false misbehavior reports against him, and subsequently providing false testimony against him at administrative disciplinary hearings, which resulted in his spending time in the Special Housing Unit ("SHU"); (2) Defendant Dinelle violated Plaintiff's rights under the Eighth Amendment by assaulting him on two occasions, and Defendants DeLuca and Duckett violated Plaintiff's rights under the Eighth Amendment by assaulting him once; (3) Defendant Sergeant Donald L. Broekema violated Plaintiff's rights under the Eighth Amendment by failing to intervene to prevent one of these assaults from occurring; (4) Defendant Norton violated Plaintiff's rights under the Eighth Amendment by harassing him almost immediately before he was subjected to the above-described assaults; and (5) Defendants Norton, Dinelle, Duckett and DeLuca violated Plaintiff's rights under the Fourteenth Amendment by performing the aforementioned acts, which constituted atypical and significant hardships in relation to the ordinary incidents of prison life. ( See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. ( Id. )

B. Undisputed Material Facts

At all times relevant to Plaintiff's Complaint, Plaintiff was an inmate and Defendants were employees of the New York Department of Corrections and Community Supervision at Ulster Correctional Facility. On January 30, 2009, Defendant Dinelle took Plaintiff to the medical ward, because Plaintiff was experiencing a foul odor and oozing from a wound on his leg. After Defendant Norton treated Plaintiff, she filed an inmate misbehavior report against Plaintiff based on (1) Plaintiff's harassing behavior toward Defendant Norton and Defendant Dinelle, and (2) Plaintiff's disobedience of a direct order to be quiet. The misbehavior report was signed by Defendant Dinelle as an employee witness.

At his deposition, Plaintiff testified, while leaving the infirmary, he was punched and kicked by Defendant Dinelle and two unknown prison officials. Plaintiff was then taken to the SHU, where he waited with Defendants Dinelle and Duckett, and up to three more individuals, for a sergeant to arrive. When Defendant Broekema (a sergeant) arrived at the SHU, Plaintiff was taken to a frisk room, where a frisk was conducted. During the frisk, Defendants Dinelle, Duckett and (Plaintiff suspected) DeLuca used force to bring Plaintiff to the ground. Plaintiff testified that, during the use of force, he was simultaneously punched in the nose by two officers while their supervisor watched.

*2 After the use of force, Plaintiff stated to Defendants Dinelle, Broekema and Duckette, "I will be contacting my attorney, " or "I will be calling a lawyer."[1] Plaintiff never used the term "grievance" when addressing Defendants Dinelle, Broekema and Duckette (or Defendant Norton).[2] Subsequently, Defendant Duckett filed an inmate misbehavior report against Plaintiff based on his disobedience of frisk procedures and a direct order. Defendant DeLuca signed this report as a witness to the events.

Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. ( Id. )

C. Defendants' Motion

Generally, in support of their motion for partial summary judgment, Defendants argue as follows: (1) Plaintiff's claim that Defendants issued false misbehavior reports should be dismissed because Plaintiff has no constitutional right to be free of false misbehavior reports; (2) Plaintiff's First Amendment retaliation claim should be dismissed because he has failed to adduce admissible record evidence from which a rational factfinder could conclude that he (a) engaged in protected activity, or (b) suffered adverse action as a result of engaging in protected activity; (3) Plaintiff's Fourteenth Amendment substantive due process claim should be dismissed because he has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendants deprived Plaintiff of his liberty rights; (4) Plaintiff's Eighth Amendment excessive-force claim against Defendant Norton should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that she (a) used force against Plaintiff, or (b) was in a position to prevent the use of force from occurring, yet failed to do so; (5) Plaintiff's Eighth Amendment excessive-force claim against Defendant DeLuca should be dismissed because Plaintiff's identification of Defendant DeLuca is "very tentative"; (6) Plaintiff's Eighth Amendment failure-to-intervene claim against Defendant Broekema should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Broekema had a realistic opportunity to intervene to prevent or stop the assault, yet failed to do so; and (7) Defendants are protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances. (See generally Dkt. No. 24, Attach. 10 [Defs.' Memo. of Law].).[3]

In Plaintiff's response to Defendants' motion for partial summary judgment, he argues as follows: (1) his retaliation claims should not be dismissed because there are triable issues of fact as to whether Defendants retaliated against him for stating that he would be contacting an attorney; (2) his failure-to-intervene claim against Defendant Broekema should not be dismissed because there are triable issues of fact as to whether Defendant Broekema failed to prevent excessive force from being used against him; (3) his excessive-force claim against Defendant DeLuca should not be dismissed because there are triable issues of fact as to whether Defendant DeLuca used excessive force against him; and (4) Defendants are not protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances. ( See generally Dkt. No. 27, Attach. 5 [Plf.'s Response Memo. of Law].)[4]

*3 In their reply, Defendants essentially reiterate their previously advanced arguments. (See generally Dkt. No. 29, Attach. 1 [Defs.' Reply Memo. of Law].)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions for Summary Judgment

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing motions for summary judgment, the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's decision in Pitts v. Onondaga Cnty. Sheriff's Dep't, 04-CV-0828, 2009 WL 3165551, at *2-3 (N.D.N.Y. Sept.29, 2009) (Suddaby, J.), which accurately recites that legal standard.

B. Legal Standards Governing Plaintiff's Claims

1. First Amendment Retaliation Claim

Claims of retaliation like those asserted by Plaintiff find their roots in the First Amendment. See Gill v. Pidlypehak, 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that, in a prison setting, corrections officials may not take actions which would have a chilling effect upon an inmate's exercise of his First Amendment rights. See Gill, 389 F.3d at 381-383. Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted,

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.

Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds, Swierkewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

To prevail on a First Amendment claim under 42 U.S.C. § 1983, a plaintiff must prove by the preponderance of the evidence that (1) the speech or conduct at issue was "protected", (2) the defendants took "adverse action" against the plaintiff-namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights, and (3) there was a causal connection between the protected speech and the adverse action-in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d 489, 492 [2d Cir.2001]). Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).

*4 In determining whether an inmate has established a prima facie case of a causal connection between his protected activity and a prison official's adverse action, a number of factors may be considered, including the following: (1) the temporal proximity between the protected activity and the alleged retaliatory act; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant concerning his motivation. Reed v. A. W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996); Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y.2002). Even where the inmate has established such a prima facie case, the prison official may be entitled to judgment as a matter of law on the inmate's retaliation claim where the prison official has satisfied his burden of establishing that the adverse action would have been taken on proper grounds alone. Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994); Jordan v. Garvin, 01-CV-4393, 2004 WL 302361, at *6 (S.D.N.Y. Feb.17, 2004).

2. Eighth Amendment Claims of Excessive-Force and Failure-to-Intervene

To establish a claim of excessive-force under the Eighth Amendment, a plaintiff must satisfy two components: "one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009). In consideration of the subjective element, a plaintiff must allege facts which, if true, would establish that the defendant's actions were wanton "in light of the particular circumstances surrounding the challenged conduct.'" Id. (quoting Blvden v. Mancusi, 186 F.3d 252, 262 [2d Cir.1999]). The objective component asks whether the punishment was sufficiently harmful to establish a violation "in light of contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson v. McMillian, 503 U.S. 1, 8 [1992]).

Generally, officers have a duty to intervene and prevent such cruel and unusual punishment from occurring or continuing. Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). "It is well-established that a law enforcement official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated in his presence by other officers." Cicio v. Lamora, 08-CV-0431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb.24, 2010) (Peebles, M.J.). A corrections officer who does not participate in, but is present when an assault on an inmate occurs may still be liable for any resulting constitutional deprivation. Id. at *8. To establish a claim of failure-to-intervene, the plaintiff must adduce evidence establishing that the officer had (1) a realistic opportunity to intervene and prevent the harm, (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated, and (3) that officer does not take reasonable steps to intervene. Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y.2008). Generally, officers cannot be held liable for failure to intervene in incidents that happen in a "matter of seconds." Parker v. Fogg, 85-CV-177, 1994 WL 49696 at *8 (N.D.N.Y. Feb.17, 1994) (McCurn, J.).

3. Fourteenth Amendment Substantive Due Process Claims

*5 The Due Process Clause of the Fourteenth Amendment contains both a substantive component and a procedural component. Zinernon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The substantive component "bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Zinernon, 494 U.S. at 125 [internal quotations marks omitted]. The procedural component bars "the deprivation by state action of a constitutionally protected interest in life, liberty, or property... without due process of law. " Id. at 125-126 [internal quotations marks and citations omitted; emphasis in original]. One of the differences between the two claims is that a substantive due process violation "is complete when the wrongful action is taken, " while a procedural due process violation "is not complete unless and until the State fails to provide due process" (which may occur after the wrongful action in question). Id.

"Substantive due process protects individuals against government action that is arbitrary, ... conscience-shocking, ... or oppressive in a constitutional sense, ... but not against constitutional action that is incorrect or ill-advised." Lowrence v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) [internal quotations marks and citations omitted], aff'g, 91-CV-1196, Memorandum-Decision and Order (N.D.N.Y. filed Jan. 26, 1993) (DiBianco, M.J.) (granting summary judgment to defendants in inmate's civil rights action).

"An inmate has a liberty interest in remaining free from a confinement or restraint where (1) the state has granted its inmates, by regulation or statute, an interest in remaining free from that particular confinement or restraint; and (2) the confinement or restraint imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Whitaker v. Super, 08-CV-0449, 2009 WL 5033939, at *5 (N.D.N.Y. Dec.14, 2009) (Kahn, J. adopting Report-Recommendation by Lowe, M.J.) (quoting Sandin v. Conner, 515 U.S. 472, 484 [1995]). Regarding the first prong of this test, "[i]t is undisputed... that New York state law creates a liberty interest in not being confined to the SHU." Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d Cir.2004). When evaluating whether an inmate's confinement in SHU violates his substantive due process rights, the issue, then, is whether his keeplock confinement imposed "an atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Id. at 64.

"In the Second Circuit, determining whether a disciplinary confinement constituted an atypical and significant hardship' requires examining the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and the duration of the disciplinary segregation compared to discretionary confinement.'" Whitaker, 2009 WL 5033939, at *5 (quoting Palmer, 364 F.3d at 64). "Where a prisoner has served less than 101 days in disciplinary segregation, the confinement constitutes an atypical and significant hardship' only if the conditions were more severe than the normal SHU conditions.'" Id. (quoting Palmer, 364 F.3d at 65).[5]

4. Qualified Immunity Defenses

*6 The qualified immunity defense is available to only those government officials performing discretionary functions, as opposed to ministerial functions. Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991). "Once qualified immunity is pleaded, plaintiffs complaint will be dismissed unless defendant's alleged conduct, when committed, violated clearly established statutory or constitutional rights of which a reasonable person would have known.'" Williams v. Smith, 781 F.2d 319, 322 (2d Cir.1986) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 [1982]). As a result, a qualified immunity inquiry in a civil rights case generally involves two issues: (1) "whether the facts, viewed in the light most favorable to the plaintiff establish a constitutional violation"; and (2) "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.2004), accord, Higazy v. Templeton, 505 F.3d 161, 169, n. 8 (2d Cir.2007).

In determining the second issue (i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted), courts in this circuit consider three factors:

(1) whether the right in question was defined with reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962 , 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992).[6] "As the third part of the test provides, even where the law is clearly established' and the scope of an official's permissible conduct is clearly defined, ' the qualified immunity defense also protects an official if it was objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir.2007).[7] This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).[8] As the Supreme Court has explained,

[T]he qualified immunity defense... provides ample protection to all but the plainly incompetent or those who knowingly violate the law.... Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Malley, 475 U.S. at 341.[9]

III. ANALYSIS

A. Plaintiff's Retaliation Claim Under the First Amendment

As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of this claim because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that he (1) engaged in protected activity, or (2) suffered adverse action as a result of engaging in protected activity. More specifically, Defendants argue that the claim should be dismissed because (1) the statement of an inmate's intent to contact an attorney is not protected conduct, (2) Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Norton knew of Plaintiff's intention to contact an attorney, and (3) Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendants' actions were retaliatory. (Dkt. No. 24, Attach.10.)[10]

*7 After carefully considering the admissible record evidence adduced in this case, and carefully reviewing the relevant case law, the Court has trouble finding that an inmate's one-time making of an oral statement (immediately after the use of force against him) that he would be "contacting [his] attorney, " or "calling a lawyer" at some unidentified point in the future constitutes engagement in activity that is protected by the First Amendment-especially where, as here, the inmate did not reference the prison grievance process in his statement.

Representation by a lawyer is certainly not necessary to file an inmate grievance in the New York State Department of Corrections and Community Supervision, nor does such representation necessarily result in the filing of a grievance. Rather, such representation is most typically associated with the filing of a civil rights action in federal court (as is clear from the motions for appointment of counsel typically filed in federal court actions). As a result, the statement in question does not reasonably imply that Plaintiff would be filing a grievance as much as it implies that he was going to consult an attorney as to whether or not to file a civil rights action in federal court.

Here, such a statement is problematic. This is because, generally, the filing of the prisoner civil rights action in federal court in New York State must be preceded by the prisoner's exhaustion of his available administrative remedies (or his acquisition of a valid excuse for failing to exhaust those remedies). Any filing without such prior exhaustion (or acquisition of a valid excuse), under the circumstances, would be so wholly without merit as to be frivolous. Of course, filing a court action that is frivolous is not constitutionally protected activity.[11]

Moreover, to the extent that Plaintiff's statement could be construed as reasonably implying that he was going to consult an attorney as to whether or not to file a grievance, the Court has trouble finding that such a vague statement is constitutionally protected.[12] As one district court has stated, "[h]oping to engage in constitutionally protected activity is not itself constitutionally protected activity."[13] The Court notes that a contrary rule would enable a prisoner who has committed conduct giving rise to a misbehavior report to create a genuine issue of material fact (and thus reach a jury) on a retaliation claim (alleging adverse action based on the issuance of that misbehavior report) simply by uttering the words, "I'm calling a lawyer, " after he commits the conduct in question but before the misbehavior report is issued.

In any event, even assuming, for the sake of argument, that Plaintiff's statement was constitutionally protected, the Court finds, based on the current record, that Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that his statement to Defendants Dinelle, Duckett, and Broekema that he would be contacting an attorney was a substantial or motivating factor for the issuance of the misbehavior report by Defendant Norton (which was signed by Defendant Dinelle as a witness), and the misbehavior report by Defendant Duckett (which was signed by Defendant DeLuca as a witness). The Court makes this finding for two alternate reasons.

*8 First, with regard to the misbehavior report issued by Defendant Norton, Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that she was aware Plaintiff would be contacting an attorney. In addition, with regard to the report made by Defendant Duckett (which was signed by Defendant DeLuca as a witness), although there is record evidence that Defendant Duckett had knowledge of Plaintiff's statement that he would contact an attorney, Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Duckett had reason to believe, at the time the misbehavior report was issued, Plaintiff would actually follow through with his one-time oral statement, made on the heals of a heated incident.

Second, even assuming that Defendant Duckett or Defendant Norton had reason to believe Plaintiff would contact an attorney, Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Duckett or Defendant Norton would not have issued the misbehavior report anyway, based on Plaintiff's actions. Indeed, at Plaintiff's disciplinary hearings, evidence was adduced that he in fact committed most of the misconduct alleged in the misbehavior reports, which resulted in the hearing officer finding multiple violations and sentencing Plaintiff to SHU.[14] Furthermore, those convictions were never subsequently reversed on administrative appeal.[15] As a result, no admissible record evidence exists from which a rational factfinder could conclude that Plaintiff has established the third element of a retaliation claim-the existence of a causal connection between the protected speech and the adverse action.

For each of these alternative reasons, Plaintiff's retaliation claim under the First Amendment is dismissed.

B. Plaintiff's Claims Under the Eighth Amendment

As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's Eighth Amendment claims because (1) Plaintiff has failed to adduce any admissible evidence from which a rational factfinder could conclude that Defendant Norton used any force against Plaintiff, or was in a position to intervene to prevent the use of force against Plaintiff, yet failed to do so, (2) Plaintiff has failed to adduce any admissible evidence from which a rational factfinder could conclude that Defendant Broekema had a reasonable opportunity to intervene and prevent the alleged assault by Defendants Dinelle, DeLuca and Duckett, yet failed to do so, and (3) Plaintiff's identification of Defendant DeLuca is "very tentative."

As an initial matter, because Plaintiff did not oppose Defendants' argument that his excessive-force claim against Defendant Norton should be dismissed, Defendants' burden with regard to this claim "is lightened such that, in order to succeed, they need only show the facial merit of their request, which has appropriately been characterized as a modest' burden." Xu-Shen Zhou v. S.U.N.Y. Inst. of Tech., 08-C0444, 2011 WL 4344025, at *11 (N.D.N.Y. Sept.14, 2011) (Suddaby, J.). After carefully considering the matter, the Court finds that Defendants have met this modest burden, for the reasons stated by them in their memoranda of law. The Court would add only that, based on its own independent review of the record, the Court can find no record evidence to support the claim that Defendant Norton used force against Plaintiff, or was in a position to intervene to prevent the use of force against Plaintiff, yet failed to do so. As a result, Plaintiff's Eighth Amendment claim against Defendant Norton is dismissed.

*9 Turning to Plaintiff's failure-to-intervene claim against Defendant Broekema, it is undisputed that it was Defendants Duckett, Dinelle and DeLuca who used force against Plaintiff. Plaintiff testified that, while Defendant Broekema was in the room at the time, Defendant Broekema was standing behind Defendant Dinelle on his "immediate right." In addition, Plaintiff testified that Defendant Duckett's threat of physical force against Plaintiff was conditioned on Plaintiff s continued failure to comply with (what Plaintiff perceived to be) conflicting instructions by Defendants Duckett and Dinelle during the frisk. (Dkt. No. 24, Attach. 4, at 97-99.) Furthermore, Plaintiff testified that it was only after he failed to put his hands in his pockets (rather soon after being warned by Defendant Duckett) that either Defendant Duckett or Defendant Dinelle punched him one time with a "closed fist" in the side of his nose, causing him to immediately fall to the ground. ( Id. at 98-99.) Finally, Plaintiff testified that the kicks that he suffered soon after falling to the ground were limited in nature, having occurred only "a couple of times, " and indeed having only possibly occurred. ( Id. at 99.)

While the Court in no way condones the conduct alleged in this action, the Court is simply unable to find, based on the current record, that Plaintiff has adduced sufficient admissible record evidence to reach a jury on his Eighth Amendment claim against Defendant Broekema. Rather, based on the evidence presented, a rational factfinder could only conclude that the use of force was simply too uncertain for a reasonable person in Defendant Broekema's position to expect; and it was too brief in nature to give Defendant Broekema a realistic opportunity to intervene in it, so as prevent the one punch and possibly few kicks that Plaintiff presumably experienced.[16]

Finally, based on the current record, the Court rejects Defendants' third argument (i.e., that Plaintiff's excessive-force claim against Defendant DeLuca should be dismissed because Plaintiff's identification of Defendant DeLuca is "very tentative"). Defendants argue that Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant DeLuca was present during the use of force against Plaintiff (let alone that Defendant DeLuca used force against Plaintiff). This is because Plaintiff's basis for bringing his excessive-force claim against Defendant DeLuca is that he remembered being assaulted by three individuals, including Defendants Dinelle and Duckett, whose last names began with the letter "D." While this fact is undisputed, it is also undisputed that Defendant DeLuca was interviewed by the Inspector General's Office regarding his involvement in the incidents giving rise to Plaintiff's claims, [17] and that both Defendant Broekema's use-of-force report, and Defendant Broekema's Facility Memorandum, state that Defendant DeLuca participated in the use of force against Plaintiff.[18] Based on this evidence, a rational factfinder could conclude that Defendant DeLuca violated Plaintiff's Eighth Amendment rights. As a result, Plaintiff's Eighth Amendment excessive-force claim against Defendant DeLuca survives Defendants' motion for summary judgment. The Court would add only that, although it does not construe Plaintiff's Complaint as alleging that Defendant DeLuca failed to intervene in the use of force against Plaintiff, assuming, (based on Plaintiff's motion papers) that Plaintiff has sufficiently alleged this claim, the claim is dismissed because the entirety of the record evidence as it pertains to Defendant DeLuca establishes that he used force against Plaintiff.

C. Plaintiff's Claim Under the Fourteenth Amendment

*10 As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of this claim because Defendants did not deprive Plaintiff of his liberty rights. As stated above in note 2 of this Decision and Order, Plaintiff failed to address Defendants' argument that his substantive due process claim should be dismissed. As a result, as stated above in Part III.B. of this Decision and Order, Defendants' burden with regard to this claim "is lightened such that, in order to succeed, they need only show the facial merit of their request, which has appropriately been characterized as a modest' burden." Xu-Shen Zhou, 2011 WL 4344025, at *11.

After carefully considering the matter, the Court finds that Defendants have met this modest burden, for the reasons stated by them in their memoranda of law. The Court would add only that, based on its own independent review of the record, although the record evidence establishes that Plaintiff was confined in SHU for 150 days as a result of the misbehavior reports issued by Defendants Norton and Duckett, Plaintiff has failed to adduced admissible record evidence from which a rational factfinder could conclude that the conditions of his confinement during this 150-day period were more severe than normal SHU conditions.[19] As a result, Plaintiff's substantive due process claim is dismissed.

D. Defendants' Defense of Qualified Immunity

As stated above in Part I.C. of this Decision and Order, Defendants seek dismissal of Plaintiff's claims on the alternative ground that they are protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances.

1. Retaliation

The doctrine of qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 [1982]). Here, even assuming that Plaintiff's statement that he would contact an attorney regarding the use of force he experienced constitutes engagement in protected activity, and even also assuming that the only reason Defendant Norton and/or Duckett issued Plaintiff a misbehavior report was because he made this statement, these Defendants are, under the circumstances, entitled to qualified immunity. This is because the Court finds that the right to make this statement (without experiencing any resulting adverse action) was not a clearly established during the time in question (January 2009), based on a review of the relevant case law. See, supra, notes 12 and 13 of this Decision and Order.

As a result, Plaintiff's retaliation claim is dismissed on the alternate ground of qualified immunity.

2. Excessive Force

There is no doubt that the right to be free from the use of excessive force was "clearly established" at the time of the incidents giving rise to Plaintiff's claims. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Moreover, with regard to whether it was objectively reasonable for Defendants to use the alleged amount of force that they used, the Second Circuit has made clear that, "[w]here the circumstances are in dispute, and contrasting accounts present factual issues as to the degree of force actually employed and its reasonableness, a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity." Mickle v. Morin, 297 F.3d 114, 122 (2d Cir.2002) [internal quotation marks omitted].

*11 Here, after carefully reviewing the record, and construing it in the light most favorable to Plaintiff, the Court finds that, even if Defendants Dinelle, DeLuca and Duckett genuinely feared being assaulted by Plaintiff, and even if those three Defendants genuinely perceived Plaintiff's words and movements to constitute an attempt to resist a frisk, admissible record evidence exists from which a rational jury could conclude that those perceptions were not objectively reasonable under the circumstances. As the Second Circuit has observed, it is impossible to "determine whether [Defendants] reasonably believed that [their] force was not excessive when several material facts [are] still in dispute, [and therefore, ] summary judgment on the basis of qualified immunity [is] precluded." Thomas v. Roach, 165 F.3d 137, 144 (2d Cir.1999).[20] For these reasons, the Court rejects Defendants' argument that Plaintiff's excessive force claim should be dismissed on the ground of qualified immunity as it relates to Defendants Dinelle, DeLuca and Duckett.

However, the Court reaches a different conclusion with regard to Plaintiff's failure-to-intervene claim against Defendant Broekema: the Court finds that, at the very least, officers of reasonable competence could disagree on the legality of Defendant Broekema's actions, based on the current record. As a result, Plaintiff's failure-to-intervene claim against Defendant Broekema is dismissed on this alternative ground.

ACCORDINGLY, it is

ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 24) is GRANTED in part and DENIED in part in the following respects:

(1) Defendants' motion for summary judgment on Plaintiff's First Amendment claim is GRANTED;
(2) Defendants' motion for summary judgment on Plaintiff's Fourteenth Amendment substantive due process claim is GRANTED;
(3) Defendants' motion for summary judgment on Plaintiff's Eighth Amendment excessive-force claim against Defendant Norton is GRANTED;
(4) Defendants' motion for summary judgment on Plaintiff's Eighth Amendment failure-to-intervene claim against Defendant Broekema is GRANTED; and
(5) Defendants' motion for summary judgment on Plaintiff's Eighth Amendment excessive-force claim against Defendant DeLuca is DENIED; and it is further

ORDERED that the following claims are DISMISSED with prejudice from this action:

(1) Plaintiff's First Amendment claim;
(2) Plaintiff's Fourteenth Amendment substantive due process claim;
(3) Plaintiff's Eighth Amendment excessive-force claim against Defendant Norton; and
(4) Plaintiff's Eighth Amendment failure-to-intervene claim against Defendant Broekema; and it is further

ORDERED that Defendants Norton and Broekema are DISMISSED from this action; and it is further

ORDERED that, following this Decision and Order, the following claims remain pending in this action: Plaintiff's Eighth Amendment excessive-force claim against Defendants DeLuca, Dinnelle and Duckett; and it is further

*12 ORDERED that counsel are directed to appear on JANUARY 4, 2012 at 2:00 p.m. in chambers in Syracuse, N.Y. for a pretrial conference, at which counsel are directed to appear with settlement authority, and in the event that the case does not settle, trial will be scheduled at that time. Plaintiff is further directed to forward a written settlement demand to defendants no later than DECEMBER 16, 2011, and the parties are directed to engage in meaningful settlement negotiations prior to the 1/4/12 conference.

Freddy Hurley, Palestine, TX, pro se.

Opinion

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

GUTHRIE, Magistrate J.

*1 The Plaintiff Freddy Hurley, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged violations of his constitutional rights. The lawsuit has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

An evidentiary hearing was conducted pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) on December 14, 2004. At this hearing, Hurley testified that he had been having problems with an inmate named Fagan. He stated that he reported the situation to various prison officials at the Powledge Unit, but nothing was done.

Hurley explained that Fagan was having problems with all of the inmates, as early as the summer of 2003. On June 27, 2003, Hurley said that he wrote a letter to the warden and complained that unit officials were using Fagan to assault other inmates. Hurley said that he received a disciplinary case for unauthorized use of a copy machine, supposedly for making copies of this letter to the warden.

Hurley said that Fagan apparently thought that other inmates were receiving favorable treatment. He said that for an example, if some inmates went to recreation and the guards became busy and left them out for longer than they were supposed to, Fagan would think that the guards were showing favoritism to these inmates, and would complain to unit staff about it. He said that some of the wardens and officers would act on these complaints, even though no one was really doing anything wrong, and it got to the point where some of the officers would automatically believe anything that Fagan said.

As a result, Hurley said, the prison officials would routinely start calling Fagan out and asking him what was going on and what Hurley or other prisoners might be doing wrong. Fagan began to believe that he could do anything he wanted and get away with it.

Hurley said that at some point, Fagan was moved from 8 Cell to 12 Cell, right by him.[1] He stated that some officers questioned this, saying that Fagan and Hurley had problems, but conceded that Fagan had problems with everyone. Hurley added that Fagan thought that he, Hurley, had been "directing the animosity" against him, but that this in fact was not true.

Hurley said that he complained about Fagan being a threat to him, and that he talked to a therapist named Sanchez about the situation. He was called for an interview by the Unit Classification Committee, but nothing was done. Hurley noted that some officers were requesting that Fagan be moved out of 8 Cell because it was right by the searcher's desk.

Back in 2002, Hurley said, he had refused to testify in a trial regarding the murder of a guard named Danny Nagle. He explained that while Nagle had been murdered on the McConnell Unit, some inmates from that unit were brought to Powledge and talked to him. Hurley said that the State wanted him to testify that Nagle's assailant had tried to get other inmates to lie for him, but he refused.

*2 Hurley indicated that some officers knew that he had refused to testify. He testified that there was a conspiracy against him going back to his alleged use of the copy machine. Hurley said that the officers manipulated Fagan to believe that he could do anything he wanted, noting that even after Fagan assaulted him, the cell was not shaken down and the area secured for some three hours.

In response to a question about whether the officers' believing Fagan empowered the inmate to assault him, Hurley replied that Fagan was used like a "building tender." He said that the prison officials used Fagan to "assault" other inmates, and guards, and automatically believed anything that Fagan said. Hurley noted that the prison officials wanted to have him "hit" because of his refusal to testify in the Nagle trial, his alleged use of the copy machine, and general unhappiness with other complaints he had made. He conceded that the warden tried to transfer him, but this request was denied.

After he was stabbed, Hurley said, he was taken to the medical department, where the dart was removed. He says that another inmate, Solis, wrote a statement saying that nothing had happened, and that Solis was rewarded for this statement by having all of his disciplinary cases dismissed.

Hurley said that he was being taken for a haircut when he got stabbed. One of his escorting guards was closing the door, while the other was with the barber.

Hurley testified that he sued Warden Blevins because the warden knew that a risk of harm existed, but did nothing. He also said that Blevins was a member of the Unit Classification Committee, which had met four days before the assault.

Warden Hodge was notified of the situation, Hurley said, and also talked to Sanchez, but took no action. He said that Major Melton and Captain Atwood were also members of the UCC.

Hurley said that Amy Jones was the chief of classification for the Powledge Unit and that he talked to her, but nothing was done. He also talked to Gracelia Ramos without success. The unnamed defendants, whom Hurley identifies as "John Does, " are other persons who might be involved. The other two Defendants, Fagan and Solis, are the inmates involved.

At the hearing, Warden Pratt, a TDCJ-CID official, testified under oath concerning prison policies generally. Pratt said that if an inmate complains that his life is in danger, a life endangerment investigation will be done. The Unit Classification Committee normally calls the inmate in and interviews them, and makes a recommendation to the State Classification Committee. He observed that some inmates try to use life endangerment complaints to get moved to areas where they would prefer to be housed.

Warden Pratt stated that inmates in segregation, like Hurley, are single-celled and normally escorted and handcuffed everywhere they go, so the state committee often will not transfer them because they should be safe where they are. Hurley pointed out that on the Powledge Unit, in his housing area, the inmates are not handcuffed. The Court will presume that Hurley's testimony is correct.

*3 Nurse Maciel, a prison nurse also present at the hearing, testified under oath concerning the contents of Hurley's medical records. Maciel said that these records showed that Hurley was taken to the medical department with a "foreign body" in his neck. This was removed and the area cleaned and dressed. This testimony comports with Hurley's account of the incident.

Hurley lodged an objection to the Court's review of the records, but this objection was overruled.[2] He also stated that the Office of the Inspector General (OIG) never came to speak with him about the incident, although an OIG investigation was done.

The Allegations of the Complaint

In his original complaint, Hurley asserts that he has been the victim of retaliation and conspiracy. He notes that he has received numerous false disciplinary cases, which disciplinary cases are presently the subject of a habeas corpus petition pending in this Court. See Hurley v. Director, TDC1-CID, civil action no. 6:04cv314. Because habeas corpus is the proper means for challenging prison disciplinary cases, Edwards v. Balisok, 520 U.S. 641, 644, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997), Hurley's specific claims regarding these disciplinary cases will be addressed in that proceeding so as to avoid duplicative litigation.

On February 14, 2004, Hurley says, he requested a life endangerment investigation because the Defendants Blevins, Hodge, Atwood, Melvin, and Jones were trying to have him assaulted by Fagan in retaliation for his legal activity. On February 18, he says that letters which he wrote to the TDCJ-CID special prosecutor were acknowledged by prison officials.

That same day, the Defendants Blevins, Hodge, Atwood, Melvin, and Jones moved Fagan "almost next door" to him. Five days later, on February 23, Hurley was interviewed by Blevins, Melvin, and Jones for his complaint of life endangerment, and concluded that Hurley had shown no evidence that Fagan posed a threat to him.

The next day, Hurley says, Sanchez told him that he had personally told Warden Hodge of the threat of harm, and that Hodge had replied to Sanchez that "Hurley needs to change his attitude." Hurley says that he wrote to Gary Johnson on February 25, and then was assaulted by Fagan on February 28, 2004.

Following the assault, Hurley says that he filed a grievance and was told that "a security protocol had been breached, " which was not true. He filed another grievance, complaining about the fact that the area was not secured and Fagan's cell not searched, and the response was that there was no indication of Hurley's presence at any offender or staff interview with regard to the incident and that the validity of Hurley's information, secured from sources other than the administration, could not be affirmed as accurate.

On April 20, 2004, Hurley says that he has learned that the Defendants Blevins, Hodge, Melvin, Atwood, Ramos, and Jones had solicited false statements from Solis, promising him reduction in disciplinary punislunent and a unit transfer if he would write a statement saying that the assault did not happen.

*4 Finally, Hurley says that although he has filed numerous grievances, requests, and letters, the Defendants refuse to investigate, interview his witnesses, or review any of his documents. He also says that he is being denied unspecified medical care.

The Prison Records

A review of the prison records shows that, although Hurley made numerous complaints about retaliation, he did not mention Fagan until immediately before the incident in question, except for a letter which he sent in June of 2003. As stated above, in a Step One grievance dated February 14 and received on February 17, 2004, Hurley alleged that his life was in danger because Lt. Chico and Sgt. Ramos questioned inmate Solis about his, Solis's, legal activity, apparently involving a court case which Solis was reading to Hurley about Fagan. He also says that it is a "known fact" that unit officials "coddle" Fagan, especially Major Melvin, who calls Fagan into his office to ask him what Hurley and other inmates are doing. As a result, Hurley says, Fagan taunts other inmates about how he can do anything he wants. He asks if Major Melvin, Warden Blevins, and other officers are trying to "wire Fagan up" to assault him in retaliation for his legal activities and when officers began taking one inmate's word over another's. The response to this grievance was that administrative interviews with administrative segregation inmates are not uncommon, and that majors often conduct these interviews. However, the response says, there was no evidence to support Hurley's contention of a retaliatory conspiracy.

In a Step One grievance signed on February 20 and received on February 23, 2004, Hurley says that he is afraid of Fagan and that Fagan has openly threatened him, in front of unit staff, and has been disciplined behind those threats. He says that prison officials have conspired against him in various ways and that Fagan has now been moved very near him, so that Hurley has to walk in front of his cell. He says that he recently filed a grievance against Fagan and also sent an 1-60 request form to Warden Blevins, but prison officials refuse to take corrective action. The response to this grievance was that Fagan is not assigned to the cell next to his and that the Unit Classification Committee reviewed the issue on February 23, 2004. This review concluded that Hurley could not provide the date nor the time of any threats, nor could he articulate the words uttered in the threat, but that Hurley did voice that he believed there was a conspiracy against him. The Unit Classification Committee determined that no action would be taken at that time. These appear to be the only grievances directly referring to a threat from Fagan.

In his June 27, 2003, letter, Hurley says that Fagan shouted that "he got Clark" and boasted about his fabrications against guards and inmates. He discusses why Fagan is "mad at the world, " because of the circumstances of his, Fagan's, conviction, and mentions the slurs which Fagan yelled regarding inmates and officers on the wing. Hurley specifically said that Fagan did not say anything about him, since the unit staff dislikes him (Hurley) and so he has "no favors coming his way."

*5 Hurley's classification records show that he made a great many other complaints, including letters and inter-office communication forms, alleging that he was the victim of retaliation between July of 2003 and February of 2004, but none of these letters or IOC forms mentioned Fagan until immediately before the incident in this case. On February 25, 2004, Hurley sent a communication to Warden Blevins, attaching a copy of a letter which he directed to Gary Johnson, Executive Director of the Texas Department of Criminal Justice. In this letter, Hurley reiterates his claim that there is a conspiracy against him and says that he is in protective custody and does not pose a threat to the institution. He says that Fagan is "favorably treated" by unit officials and has said that he, Fagan, can do "whatever he wants."

The letter goes on to assert that Warden Blevins had Fagan moved almost next door to him and there repeated his threat of physical harm, supported by Warden Blevins, Warden Hodge, Major Melvin, Captain Atwood, Sgt. Ramos, and others. He says that Sgt. Swanson ordered officers to walk Hurley around Fagan's cell and that some of the guards can't believe that Ramos moved Fagan by Hurley.

The investigation of the February 28, 2004 assault concluded that it was "possible" that Hurley had not been shot by Fagan, but that the wound was self-inflicted. The Court will not credit this version of events but will assume that Fagan shot Hurley with a dart.

Legal Standards and Analysis

Hurley's primary claim is that he has been the victim of retaliation, specifically with regard to the placement of inmate Fagan in close proximity to his cell. The Fifth Circuit has stated that a prisoner who asserts a retaliation claim must assert specific facts; conclusory allegations are not enough. Whittington v. Lynaugh, 842 F.2d 818, 820 (5th Cir.1988). Moody v. Baker, 857 F.2d 256, 258 (5th Cir.1988).

The Fifth Circuit has held that the elements of a claim under a theory of retaliation are the invocation of a specific constitutional right, the defendant's intent to retaliate against the plaintiff for his exercise of that right, a retaliatory adverse act, and causation, which is a showing that but for the retaliatory motive, the action complained of would not have occurred. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.1997). The inmate must produce direct evidence of retaliation or, the more probable scenario, a chronology of events from which retaliation may plausibly be inferred. Woods v. Smith, 60 F.3d 1161 (5th Cir.1995). The relevant showing must be more than the prisoner's personal belief that he is the victim of retaliation. Johnson, 110 F.3d at 310, citing Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.1995).

In this case, Hurley has wholly failed to show that the placement of Fagan in a cell close to his was the result of retaliation for his having refused to testify in a trial almost two years earlier.[3] His pleadings contain little but conclusory allegations that the ranking unit officials orchestrated a retaliatory conspiracy against him; he has offered nothing but his own personal belief that the Defendants intended to retaliate against him.

*6 Nor has Hurley shown that but for the alleged retaliatory motive, the action complained of would not have occurred. Furthermore, Hurley has not shown that the action complained of, the move of an inmate from 8 Cell to 12 Cell, nearer to him, is retaliatory against him in and of itself. In order to make such a showing, Hurley would necessarily have to show that this move was intended to harm him; as will be seen below, Hurley has fallen well short of such a showing.

The Fifth Circuit has held that if the conduct claimed to constitute retaliation would not, by itself, raise the inference that such conduct was retaliatory, the assertion of the claim itself, without supporting facts, is insufficient. Whittington, 842 F.2d at 819. The Fifth Circuit has stated that a "temporal proximity" between complaints made to prison officials, and an inmate's move to more restrictive housing, without more, does not support an inference of retaliation. Pittman v. Shaw, slip op. no. 94-41262 (5th Cir., Oct. 19, 1995) (unpublished). This comports with the Fifth Circuit authority requiring a "but for" test, which the mere temporal proximity does not satisfy.

In this case, the move of an inmate from one cell to another, an activity which occurs routinely within the prison, does not in and of itself raise the inference of retaliation. Hurley has failed to offer supporting facts showing that this move was retaliatory in nature; his repeated expositions of his personal belief in the retaliatory motive of the officers is not a substitute for such a showing. His claim on this point is without merit; in fact, it should be noted that there was not even a temporal proximity between his refusal to testify in a 2002 trial and the cell move of Fagan from 8 Cell to 12 Cell in February of 2004.

Nor has Hurley shown that the officers intended to retaliate against him for any other reason, such as litigation activity. While Hurley filed a habeas corpus petition in this Court in April of 2003 challenging the denial of parole, and a civil rights lawsuit in July of 2003 challenging the provision of psychiatric services, he has not shown that the move of Fagan to closer proximity to his cell in February of 2004 was related in any way to either one of these lawsuits, nor that but for his filing of these lawsuits, this move would not have occurred.

In addition, the Fifth Circuit has held that neither any frivolous filings nor any secondary litigation activity can comprise the basis of a retaliation claim. Johnson, 110 F.3d at 312. This is because, as the Supreme Court has explained, there is no right to file frivolous lawsuits. Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 and n.3, 518 U.S. 343 , 116 S.Ct. 2174, 2181 and n. 3, 135 L.Ed.2d 606 (1996).[4] A claim of retaliation can be made only for constitutionally protected activity, and the filing of frivolous lawsuits does not fall within this category.

In construing this provision of the law, the Fifth Circuit has held, for example, that a claim of an adverse action taken in retaliation for the threat to file a grievance lacks merit where the threatened grievance would itself have been frivolous. Brown v. Craven, et al., slip op. no. 03-11273 (5th Cir., July 26, 2004) (unpublished) (citing Johnson v. Rodriguez, 110 F.3d at 311). The Court has also held that a claim of retaliation for filing grievances lacks merit where the plaintiff asserts that the retaliation came, not because of his own filing of grievances, but because of the plaintiffs actions in assisting other inmates in filing grievances, which is secondary litigation activity. King v. Ellingburg, et al., slip op. no. 03-11267 (5th Cir., April 20, 2004). See also Jones v. Greninger, 188 F.3d 322 (5th Cir.1999); Tighe v. Wall, 100 F.3d 41 (5th Cir.1996).

*7 In this case, Hurley's prior civil rights lawsuit was dismissed as frivolous and therefore cannot form the basis of a retaliation claim. See Hurley v. TDCJ-CID, et al., docket no. 6:03cv323 (E.D.Tex., dismissed November 17, 2003). He has not shown that any of the Defendants in this lawsuit were or even could have been aware of his habeas corpus petition, which was filed in April and dismissed in August of 2003. Thus, Hurley has not shown that but for the filing of this petition, the incidents complained of would not have occurred. His repeated conclusory assertions that Fagan was moved near his cell "in retaliation for his [Hurley's] legal activity" and "tactically orchestrating, in conspiratorial manner, the beginning of his assault, " are not sufficient for such a showing.

Hurley additionally asserts that he received false disciplinary cases as part of the retaliation and conspiracy against him. To the extent that it may be appropriate to address this claim in the present proceeding, rather than Hurley's pending habeas corpus action challenging these same disciplinary cases, it is noteworthy that Hurley offers nothing to show that these cases were in fact false, but appears to rely on the sheer number which he received-over 15 disciplinary cases between July of 2003 and March of 2004-as proof of retaliation and conspiracy.

The Fifth Circuit has cautioned as follows:

The prospect of endless claims of retaliation on the part of inmates would disrupt prison officials in the discharge of their most basic duties. Claims of retaliation must therefore be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions.

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995). The Court went on to explain that district courts must "carefully scrutinize" claims of retaliation in order to ensure that prisoners do not "inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around themselves." Woods, 60 F.3d at 1166; accord, Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990) (noting that "while a prisoner can state a claim of retaliation by alleging that disciplinary actions were based upon false allegations, no claim can be stated when the alleged retaliation arose from discipline imparted for acts that a prisoner was not entitled to perform."). As the Eighth Circuit explained, any other rule would allow a prisoner to openly flout prison regulations after filing a grievance and then bring a claim under Section 1983 arguing that prison officials disciplined him in retaliation for filing a grievance. Orebaugh, 910 F.3d at 528.

Thus, the mere fact that Hurley received a large number of disciplinary cases in a relatively short period of time is not by itself proof of retaliation or conspiracy. Iinmates cannot flout prison rules repeatedly and then claim retaliation because they were repeatedly cited for their behavior, and Hurley fails to show that the disciplinary cases which he received were in fact false. His claim on this point is without merit.

*8 Hurley also complains that the officials solicited "false statements" from an inmate named Solis with regard to the assault upon him by Fagan. The Internal Affairs Report contains statements by Officers Gillispie, Brown, Seeton, Glover, and Jones, Nurse McDaniel, and two grievances by Hurley setting out what had happened. Major Melvin sent an inter-office communication to Warden Hodge advising him of the incident, as did Lt. Chico, and a report was done by an investigator named Bell. None of these documents mention an inmate named Solis.

Assuming Hurley's statement that false statements were solicited from Solis is true, he has failed to show that he suffered any harm as a result of this. The Office of the Inspector General's investigation did not rely on or even mention any statements by Solis, and these statements are not contained in the report file. In the absence of any harm, Hurley has failed to show that a constitutional violation occurred. See Memphis Community School District v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (for a Section 1983 claim to be viable, the plaintiff must allege an injury).

Nor has Hurley shown that the Defendants were deliberately indifferent to his safety. The Fifth Circuit has held that prison officials have a duty not to be deliberately indifferent to the safety of their inmates. Johnston v. Lucas, 786 F.2d 1254, 1260 (5th Cir.1986); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.1986). A showing of mere negligent indifference is not enough for a constitutional claim. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

In Davidson, the Supreme Court faced the issue of what constitutes deliberate indifference to an inmate's safety. There, an inmate named Davidson was threatened by another inmate, McMillian. Davidson sent a note to the Assistant Superintendent of the prison, Cannon. Cannon passed the note to a guard named James. James, however, left the note on his desk and later forgot about it. McMillian later assaulted Davidson, causing serious injuries.

The Supreme Court acknowledged that the Defendants' lack of due care resulted in serious injury, but held that the lack of due care alone did not approach the sort of abusive governmental conduct that the Due Process Clause was designed to prevent. The Court emphasized that negligence alone was insufficient to trigger the protections of the Fourteenth Amendment. Davidson, 474 U.S. at 347-48.

The Supreme Court has specifically addressed the issue of deliberate indifference to an inmate's safety in prison. The Court explained that

[A] prison official cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference....
*9 But an official's failure to alleviate a significant risk which he should have perceived, but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994); see Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.1994).

In this case, Hurley has offered nothing beyond conjecture and speculation to show that the prison officials were deliberately indifferent to his safety in moving Fagan to a cell two doors down from his. He states that he had previously notified the prison officials that Fagan posed a threat to him, in his letter of June 27, 2003, but as set out above, this letter contains nothing to place officials on notice that Fagan poses a threat to Hurley. In fact, Hurley said in the letter that Fagan yelled about an inmate named Clark, and about how he, Fagan, fabricated claims against guards and inmates, but that Fagan said nothing about him, since the unit staff dislikes him (Hurley) and so he has "no favors coming his way."

The first grievance which Hurley filed specifically referring to Fagan was filed on February 14, 2004. In this grievance, Hurley begins by complaining about how officers have been interviewing inmate Solis. He goes on to say that it is a "known fact" that officials have conspired against him and so they are coddling Fagan. In response to this coddling, Hurley says, Fagan taunts the other inmates about how he can do anything he wants and get away with it. He states as follows:

Is [sic] Major Melvin, Warden Blevins, Sgt. Welch, etc., going to wire inmate Fagan up to assault me in retaliation for my legal activity (yes, Warden Blevins knows that I am in the process of mailing out over 40 letters regarding the conspiracy against me by his officials, and the fact that unit officials refuse to return my property through denial of due process, including false disciplinary reports).
Sgt. Welch, after inmate Fagan's visit with the major, asked me why Level II inmates get more than 4 hours of recreation a week. That he claims is a policy violation -is not Sgt. Ramos the assigned ad seg supervisor in charge of my recreation? Why is Sgt. Welch talking to another inmate about my recreation? Is Sgt. Welch trying to wire inmate Fagan (or the inmates he gathers contrived statements from) to assault me.
It is a known fact that when he was a guard that he was quite sympathetic, and now that he is a sergeant he is attacking the white and Hispanic ex-gang members, unless they are snitches for him. Since when do TDCJ-ID officials start taking an inmate's word over another inmate as unit officials are doing. Now Major Melvin and Sgt, Welch have took [sic] the word of inmate, contriving statements against me. Is this a plot to keep my property from me?

This grievance does not put the prison officials on notice that Fagan poses a threat to Hurley; rather, it appears to be wondering whether unit officials, including the warden and the major, are planning to use Fagan to assault him.

*10 In his other grievance concerning Fagan, signed by Hurley on February 20, 2004, he says that he is afraid of Fagan because Fagan has threatened him, in front of unit staff and inmates, "and been disciplined behind said threat." He complains about the conspiracy against him, including the move of Fagan from 8 Cell to 12 Cell, and says that "prison officials know that inmate Fagan has openly threatened me and other PC [protective custody] inmates." He asserts that unit officials are using Fagan, trying to have Hurley assaulted, and that it is a "known fact" that unit staff, including Warden Blevins, Warden Hodge, and Major Melvin, coddle Fagan and use him to do their dirty work. He says that all of the inmates there are afraid of Fagan and his threats, and that this is why Fagan was moved near him.

Hurley goes on to assert that on February 19, 2004, Lt. Ofiel investigated the threat which Fagan poses, and Sanchez and a person named Ms. Watts have spoken to the warden, but nothing is done. He states that through a "chronology of events, " he has shown that unit officials are conspiring against him in retaliation for his legal activity and that they have lied in response to the grievances he has filed. He says that Fagan has been moved next to him and so "the conspiracy is blatant." The response, as noted above, is that Fagan is not assigned to the cell next to his and that his grievance was investigated by the UCC, but Hurley could not provide the date or time of any threat, nor articulate the words uttered in the threat. Instead, Hurley only said that he believed that there was a conspiracy against him. Based on this, the UCC determined that no action was necessary.

This grievance also does not place the unit administration on notice that Fagan poses a real or imminent threat to Hurley. Nor has he shown that the failure to move Fagan amounted to deliberate indifference to his safety; Hurley concedes that an investigation was done, and the grievance response shows that after this investigation, no action was deemed necessary because Hurley was unable to voice any specifics about an alleged threat, but merely opined that he was the target of a conspiracy.

The Fifth Circuit has held that prison officials have a duty to protect inmates from violence at the hands of other prisoners; however, not every injury suffered by a prisoner at the hands of another rises to the level of a constitutional violation. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir.1995). The plaintiff prisoner must prove both that he is incarcerated under conditions "posing a substantial risk of serious harm" and that the prison official's state of mind is one of "deliberate indifference" to the inmate's health or safety. Horton, 70 F.3d at 401, citing Farmer, 114 S.Ct. at 1977.

There is no concise definition of what types of prison conditions pose a "substantial risk of serious harm" under the Eighth Amendment. Instead, the Fifth Circuit said, this component of the test must be examined conceptually, making sure to be responsive to "contemporary standards of decency." The Court must consider "whether society considers the risk... to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Horton, 70 F.3d at 401, citing Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Prison authorities must protect not only against current threats, but also must guard against "sufficiently imminent dangers" that are likely to cause harm "in the next week or month or year." Horton, 70 F.3d at 401.

*11 In Horton, the plaintiff arrived at the Clements Unit and was immediately approached by an inmate named Jackson, who threatened to assault him unless he paid extortion money. Horton reported the threat the next morning to a desk officer, who said that he could not do anything and referred Horton to his correctional counselor. Later that same day, Jackson approached Horton and made threatening gestures; Horton, believing that he had no choice, punched Jackson in selfdefense. Both Horton and Jackson were placed in pre-hearing detention.

Horton filed a grievance the next day stating that Jackson was assaultive and had tried to extort money from him. The warden refused Horton any relief and referred him to his correctional counselor. Horton appealed, saying that he had already talked to his counselor, but the appeal was denied.

Horton and Jackson were sent to the same section of the prison when they were released from detention. Horton continued to file grievances concerning Jackson's violent tendencies. Several days later, Jackson approached Horton and punched him in the eye. Horton and Jackson were again charged with fighting, and the disciplinary committee would not consider Horton's plea of self-defense.

The Fifth Circuit determined that based upon these facts, Horton had stated an arguably valid claim of failure to protect, because he had alleged both a sufficiently imminent danger and a substantial risk of serious harm. In this case, by contrast, Hurley presented nothing to the prison officials that would place them on notice that Fagan represented a sufficiently imminent danger posing a substantial risk of serious harm. His general allegations that Fagan taunted and threatened other inmates, and that the ranking officials on the unit were part of a conspiracy to use Fagan to have Hurley assaulted, are wholly insufficient to meet the standards set out by the Fifth Circuit. To the extent that Hurley claims that the prison officials were deliberately indifferent to his safety, his claim is without merit.

Neither has Hurley set out a valid conspiracy claim. The Fifth Circuit has held that specific facts must be pled when a conspiracy is alleged; mere conclusory allegations will not suffice. Hale v. Harney, 786 F.2d 688, 690 (5th Cir.1986). In pleading these specific facts, the Plaintiff must allege the operative facts of the alleged conspiracy. Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir.1987).

The Fifth Circuit has stated that "charges as to such conspiracies must be based on substantial and affirmative allegations, and no mere gossamer web of conclusion or inference, as here, trifles light as air, " will suffice to sustain a claim of conspiracy. Crummer Co. v. Du Pont, 223 F.2d 238, 245 (5th Cir.1955, reh.den.). In other words, as the Fifth Circuit has explained, more than a "blanket of accusation" is needed to support a conspiracy claim. Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982).

*12 Hurley's pleadings and testimony are wholly insufficient to set out a valid conspiracy claim. The mere multiplicity of allegations of the existence of a conspiracy is not a substitute for the specific facts required by the Fifth Circuit. His claim on this point is without merit.

Next, Hurley complains that although he has filed numerous grievances, complaints, and communications with prison officials, these officials refuse to investigate, to interview his witnesses, or to review documents in his possession which support his claim.

The Fifth Circuit has stated that a prisoner's claim that a defendant "failed to investigate and denied his grievance" raises no constitutional issue. Edmond v. Martin, et al., slip op. no. 95-60666 (5th Cir., Oct. 2, 1996) (unpublished); Thomas v. Lensing, et al., slip op. no. 01-30658 (5th Cir., Dec. 11, 2001) (unpublished) (same). Along the same lines, the fact that he filed a grievance which was denied when he thought it should have been granted does not implicate any rights or liberty interests under the Constitution. Austin v. Lehman, 893 F.Supp. 448, 454 n. 4 (E.D.Pa.1995); accord, Jackson v. Central New Mexico Correctional Facility, 976 F.2d 740 (9th Cir., September 21, 1992) (Table); Nieves v. Dragovich, 1997 WL 689490 (E.D.Pa., November 3, 1997) (unpublished). Hurley has no constitutionally protected liberty interest in having prison officials investigate his grievances in the manner which he deems most appropriate, nor to arrive at the result which he thinks best. His claim on this point is without merit.

Hurley named two prison inmates, Fagan and Solis, as Defendants in his lawsuit. However, he has failed to show that either of these inmates acted under color of state law, as is required for liability under Section 1983. Hagerty v. Succession of Clement, 749 F.2d 217, 221 (5th Cir.1984). As discussed above, Hurley has also failed to show that either of these inmates were themselves part of a conspiracy with state actors so as to bring them under color of state law. His claims against Fagan and Solis are without merit.

Finally, Hurley complained that he is being denied proper medical care. The body of his complaint on this point reads, in its entirety, as follows:

In response to Plaintiffs request for medical treatment involving his assault TDCJ-Defendant Blevins refuses treatment denied through word-game tactics, and Plaintiff continues to suffer from injury, pain, and mental distress.

In the "argument and authorities" section of his complaint, Hurley says that

Plaintiff also contends that he has been denied adequate medical care in response to his assault, and in the context of medical care, prison officials violate the Eighth Amendment when they act with deliberate indifference to a personal's medical, psychological, or psychiatric needs. Plaintiff can show that medical treatment continues to be denied in response to his assault, supporting his alleged conspiracy claim, thereby violating his right to be free from cruel and usual punishment.

*13 However, he offers no specific facts showing that he has been denied medical care, nor does he name anyone, other than the unit warden, allegedly responsible for this denial. In his testimony, he acknowledged that he was taken to the medical department, the dart was removed, and the wound was cleaned and dressed. In the absence of any specific facts whatsoever, Hurley's claim on this point is without merit. Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.1986); see also Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.1996) (Section 1983 actions against individual governmental officials require "claims of specific conduct and action giving rise to a constitutional violation, " not merely conclusory assertions).

Conclusion

28 U.S.C. § 1915A requires that as soon as practicable, district courts must review complaints wherein prisoners seek redress from governmental entities or their employees. Section 1915A(b) requires that upon review, the court shall identify cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

The term "frivolous" means that a complaint lacks an arguable basis in law or fact; a complaint is legally frivolous when it is based upon an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 325-7, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted if as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338, (1989), citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995).

In this case, Hurley's complaint lacks any arguable basis in law and fails to state a claim upon which relief may be granted. Consequently, his lawsuit may be dismissed as frivolous under 28 U.S.C. § 1915A(b). See generally Thompson v. Patteson, 985 F.2d 202 (5th Cir.1993).

RECOMMENDATION

It is accordingly recommended that the above-styled civil rights lawsuit be dismissed with prejudice as frivolous. 28 U.S.C. § 1915A.

A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the un-objected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) ( en banc ).

So ORDERED.


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