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Blackshear v. Captain Woodward

United States District Court, N.D. New York

June 17, 2014

KEVIN BLACKSHEAR, Plaintiff,
v.
CAPTAIN WOODWARD, Captain-Hearing Officer, Watertown Correctional Facility; LIEUTENANT ZEHR, Lieutenant-Watch Commander, Watertown Correctional Facility; D. VENETTOZZI, Acting Director, Special Housing Inmate Disciplinary Program, NYS Department of Corrections and Community Supervision, Defendants, [1]

KEVIN BLACKSHEAR Johnstown, New York, Plaintiff Pro Se.

HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York, Albany, New York, ADELE M. TAYLOR-SCOTT, ESQ., Assistant Attorney General, Attorney for Defendants.

REPORT-RECOMMENDATION AND ORDER [2]

CHRISTIAN F HUMMEL, Magistrate Judge.

Plaintiff pro se Kevin Blackshear ("Blackshear"), an inmate currently in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983. Compl. (Dkt. No. 1) at 1; Blackshear Resp. (Dkt. No. 22-1) at 1. Blackshear alleges that defendants Captain Woodward, Lieutenant Zehr, and Acting Director Venettozzi, employees of DOCCS, violated his rights under the Fourteenth Amendment. Compl. at 1; Blackshear Resp. at 1. Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Defs.' Mot. Summ. J. (Dkt. No. 16). Blackshear opposes the motion. Blackshear Resp. at 1. For the following reasons, it is recommended that defendants' motion be granted.

I. Background

All facts are related in the light most favorable to Blackshear as the non-moving party. See subsection II(A) infra. At all relevant times, Blackshear was an inmate at Watertown Correctional Facility ("Watertown").

A. Search and Investigation

On July 2, 2011, at Watertown, non-party Corrections Officer Maitland performed a routine search of Blackshear's bed area. Compl. at 2; Dkt. No. 16-3 at 30. Maitland discovered a gap in the cover of a heater located between Blackshear's locker and bed. Dkt. No. 16-3 at 30. Inside of this gap, Maitland reported finding toilet paper, which he removed. Id . Inside of the toilet paper was the finger of a latex glove, which contained three additional latex glove fingers, additional toilet paper, and three orange pills, one in each finger. Id . Non-party Nurse Hall identified these pills to Maitland as suboxone. Id . Maitland then issued Blackshear a Tier III misbehavior report, charging Blackshear with possession of drugs in violation of § 113.25 of the State of New York Department of Correctional Services Standards of Inmate Behavior. Id .; Compl. at 2.

A contraband receipt was created for the suboxone, which was transferred from Maitland to non-party Corrections Officer Kogut. Dkt. No. 16-3 at 42. Kogut arranged the suboxone for non-party Sergeant Thomas to photograph and then placed the suboxone in Watertown's contraband box. Id . Blackshear was taken to the Special Housing Unit ("SHU") per defendant Lieutenant Zehr's ("Zehr") authorization.[3] Id. at 30. Zehr later requested that the suboxone be identified by Watertown's pharmacist, who visually confirmed Nurse Hall's identification of suboxone. Id. at 42. In the early morning the next day, July 3, 2011, Blackshear was provided with a copy of Maitland's report. Compl. at 2.

Blackshear first met with his inmate assistant on July 5, 2011. Compl. at 3; Dkt. No. 16-3 at 37. Blackshear indicated he did not wish to call any witnesses, but did request "DNA testing on items" and "evidence from his inmate records." Dkt. No. 16-3 at 37. The same day, Blackshear was provided with a copy of the photographs taken of the contraband. Dkt. No. 16-3 at 37.; Compl. at 3.

B. Tier III Disciplinary Hearing

Blackshear's Tier III disciplinary hearing in connection with the July 2, 2011 misbehavior report commenced on July 6, 2011 before defendant Woodward, who would serve as hearing officer. Compl. at 3; Tier III Hr'g Tr. (Dkt. No. 16-3 at 58-76) at 58. Blackshear defended himself against the allegation by claiming that forty-six other men had access to his room, in addition to the four who lived with him. Compl. at 4; Tier III Hr'g Tr. at 60-61. Thus, many others had access to the area where Maitland found the suboxone. Compl. at 4; Tier III Hr'g Tr. at 60-61. Blackshear argued that he was not the one who placed the suboxone in the heater and that he was unfamiliar with suboxone. Tier III Hr'g Tr. at 61-62. Additionally, Blackshear contended that he did not receive access to all relevant documents. Id. at 65-66; Compl. at 3-4. Woodward then provided Blackshear with a copy of the pharmacist's report identifying the pills found in the heater as suboxone and Form 2080, which is the chain of custody form for the suboxone. Compl. at 5; Tier III Hr'g Tr. at 65-66, 70. Woodward adjourned the hearing to allow Blackshear time to review the documents he was provided. Tier III Hr'g Tr. at 68.

The hearing recommenced on July 13, 2011. Tier III Hr'g Tr. at 68. Kogut testified that Thomas's name did not appear on Form 2080 because Thomas had never handled the suboxone. Id. at 68-69. Non-party Pharmacist Goodnough explained the visual process by which she identified the pills found as suboxone. Id. at 71-72. By comparing the markings and appearance of the pills found to the Physician's Desk Reference, Goodnough was able to confirm the pills as suboxone. Id. at 42, 72. Woodward then briefly adjourned the meeting to create a written disposition. Id. at 73; Compl. at 6. Woodward returned to read his disposition, which found Blackshear guilty of drug possession and imposed penalties of three months in SHU, and three months loss of recreation, packages, commissary, and phone use. Compl. at 6; Tier III Hr'g Tr. at 73. In his decision, Woodward noted that he relied upon the following to make his conclusions: the written report of non-party Maitland, the verbal testimonies of Blackshear and non-parties Kogut and Goodnough, Form 2080, and the photograph of the suboxone. Compl. at 6; Tier III Hr'g Tr. at 73-74.

Blackshear made several allegations concerning the conditions of SHU confinement. Compl. at 11. Specifically, Blackshear alleges that he had limited privileges generally, was confined in a small cell, was permitted only one hour of exercise a day in a small space, and had limited interaction with correction officers. See id.

C. Administrative Appeal

Blackshear appealed Woodward's determination of his guilt in an administrative appeal process. Compl. at 6; Dkt. No. 16-3 at 78. Blackshear posited three grounds for his appeal.[4] See Dkt. No. 16-3 at 78-80. First, Blackshear claimed that Woodward was personally involved in the investigation because his name appeared on Form 2080. Id. at 78-79. Blackshear noted that parties involved in the investigation were unable to serve as hearing officers to any cases they had investigated. Id. at 78. Blackshear contended that, because Woodward's name appeared on the chain of custody form, Woodward was involved in the investigation and thus, ineligible to serve as hearing officer. Compl. at 7. Second, Blackshear contended that Zehr's insistence on the suboxone being tested compromised his ability to fairly evaluate the seriousness of the infraction for purposes of assigning it to a tier. Compl. at 7-8; Dkt. No. 16-3 at 79-80. Blackshear asserted that Zehr's involvement in the suboxone's testing left Zehr's "mind... compromised" and unable to properly evaluate the infraction. Dkt. No. 16-3 at 80. Lastly, Blackshear argued that there was insufficient evidence to conclude that the drugs found were in fact his because the drugs, while found between his bed and locker, were not found in an area he exclusively controls. Id . Defendant Venettozzi, as the Acting Director of Special Housing and Inmate Disciplinary Program, reviewed and denied the appeal. Id. at 90.

D. State-Level Action

[5] ence. Dkt. No. 16-3 at 96-97. On January 9, 2013, the July 13, 2011 disciplinary hearing was administratively reversed as a result of conversations between Albert Prack, the director of special housing and inmate discipline, and the Office of the Attorney General. Id. at 101-03. Any references to the incident were to be expunged from Blackshear's records and he was to be returned the good time credits he had forfeited as a result of the July 13, 2011 decision. See id. On June 13, 2013, the Third Department issued a judgment dismissing Blackshear's claim, indicating that it was moot as the administrative reversal had given him "all relief to which he is entitled." Id. at 105-06. This action followed.

II. Discussion

Blackshear alleges that his Fourteenth Amendment procedural due process rights were violated when: (1) defendant Woodward failed to afford Blackshear due process rights during the disciplinary heaing; (2) defendant Zehr failed to investigate the alleged rule infraction in an adequate and non-biased way; and (3) defendant Venettozzi failed to train, supervise, and discipline Woodward and Zehr in a manner that would protect Blackshear's rights and affirmed Woodward's decision based on insufficient evidence. Compl. at 9-11. Although not specifically pled, Blackshear also indicates to the Court that he did not receive adequate assistance and proper protocol was not followed in testing the suboxone, both in violation of his due process rights. Id. at 3, 4. Blackshear seeks declaratory relief and monetary damages for the aforementioned violations. Id. at 12.

Defendants seek dismissal of the complaint, contending that: (1) Blackshear's liberty interests at stake are too de minimus to support a claim that his due process rights have been violated; (2) in any event, Blackshear was provided with all the process that he was due; (3) the evidence was sufficient to support Woodward's finding and Venettozzi's affirmation of Blackshear's guilt; (4) Blackshear's claims of bias on the part of Woodward and Zehr do not raise triable issues of fact; and (5) Woodward, Zehr, and Venettozzi are protected from Blackshear's suit by qualified immunity. Defs.' Mot. Summ. J. at 6-12.

A. Legal Standard

Summary judgment may be granted by a court when the moving party has demonstrated that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(A). The moving party bears the burden of establishing the lack of genuine issue of material fact. Id .; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("[A] party seeking summary judgment always bears the initial responsibility of... identifying [materials] which it believes demonstrate the absence of a genuine issue of material fact."). Facts are to be considered "material" where they have the potential to affect the outcome of a case under current and applicable law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Any ambiguities and inferences should be reconciled in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). Similarly, all facts must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (finding that facts may only not be viewed most favorably to the non-movant when there has been shown to be no genuine issue of material fact).

It then falls to the party opposing the motion for summary judgment to demonstrate that there is a genuine issue of material fact facilitating the need for trial. For this issue to be "genuine" it must rise above the level of casting mere doubt concerning the nature of the fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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 has 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 submissions 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 submissions claims that are not "consistent" with the 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. (citations and footnote omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the allegations of pro se plaintiffs are to be held to "less stringent standards than formal pleadings drafted by lawyers."); 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)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment states that "[n]o State shall... deprive any person of life, liberty, or property without due process of law." U.S. CONST. amend. XIV § 1. To make a claim for depravation of procedural due process, a plaintiff must show that: (1) they enjoyed a protected liberty interest; and (2) they were deprived of that interest absent due process. Taylor v. Rodriguez, 238 F.3d 188, 191 (2d Cir. 2001) (citing Tellier v. Fields, 230 F.3d 502, 511 (2d Cir. 2000). It is important to emphasize that due process "does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished without due process of the law." Baker v. McCollan, 443 U.S. 137, 145 (1979) (internal quotation and citations omitted). "A liberty interest may arise from the Constitution itself, ... or it may arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted).

1. Liberty Interest

An inmate retains a protected liberty interest to remain free from segregated confinement if the prisoner can satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). In Sandin, the Court held that while segregated housing does not automatically implicate a liberty interest, it can if the inmate can establish the confinement created an, "atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 484. The Second Circuit has articulated a two-part test whereby the length of time a prisoner was placed in segregation as well as "the conditions of the prisoner's segregated confinement relative to the conditions of the general prison population" are to be considered. Vasquez v. Coughlin, 2 F.Supp.2d 255, 259 (N.D.N.Y. 1998). This standard requires a prisoner to establish that the confinement or condition was atypical and a significant hardship in relation to ordinary prison life. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). Thus, due process claims are "reserved for prisoners enduring a hardship that is substantially more grave" than that of the general prison population. Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir. 1999).

While not a dispositive factor, the duration of a disciplinary confinement is a significant factor in determining atypicality.[6] Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citations omitted). The Second Circuit has not established "a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights." Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (citations omitted). Despite this, past courts have allowed summary judgment for defendants in cases of SHU confinement and "the cases show a consensus in this Circuit that an inmate's confinement in the SHU for 101 days or less-without further deprivation-does not constitute an atypical or significant hardship." Alvarado v. Kerrigan, 152 F.Supp.2d 350, 355 (S.D.N.Y. 2001); see also Tookes v. Artuz, No. 00CIV4969RCCHBP, 2002 WL 1484391, at *3 (S.D.N.Y. July 11, 2002)[7] (collecting cases) (ninety-six days in SHU did not implicate a liberty interest); Carter v. Carriero, 905 F.Supp. 99, 104 (W.D.N.Y. 1995) (270 days in SHU did not implicate a liberty interest).

Even when accepting the complaint as true and viewing all facts most favorably to Blackshear, it is apparent that Blackshear lacked a protected liberty interest. Blackshear was subjected to ninety-days' confinement in SHU, below the 101 day threshold noted in Alvarado. 152 F.Supp.2d at 355. As Blackshear's time spent in SHU cannot alone implicate a liberty interest, the nature and condition of his confinement must also be considered. See Vasquez, 2 F.Supp.2d at 259. Here, Blackshear only asserts that he had limited privileges while in SH U.Such a claim falls short of establishing a liberty interest as Blackshear fails to allege any particular condition or further deprivation outside of those generally applicable to the incidents of prison life in SHU confinement. See id.; Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (explaining that while prisoners in SHU may be deprived of "certain privileges that prisoners in the general population enjoy, " there exists no liberty interest in remaining a part of the general prison population); see also Alvarado, 152 F.Supp.2d at 355 (finding restrictions such as loss of phone privileges, one hour of exercise a day, and three showers per week, fail to meet Sandin requirements).

Blackshear lacked a protected liberty interest and, thus, necessarily lacks a Fourteenth Amendment procedural due process claim. Accordingly, defendants' motion on this ground should be granted.

2. Procedural Due Process

Even assuming a liberty interest exists, Blackshear's claim must fail because he was afforded all process due to him. It is important to note that prisoners retain the constitutional right to due process protections. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citations omitted) ("[Prisoners] may not be deprived of life, liberty, or property without due process of law."). Though prisoners retain these rights, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." See id.; see also Horne v. Coughlin, 155 F.3d 26, 30 (2d Cir. 1998) (finding that prisoners have no right to a "counsel substitute" for prison disciplinary hearings). Nevertheless, a prisoner is entitled to: (1) advanced written notice of the charges against him; (2) a hearing with reasonable opportunity to call witness and present documentary evidence; (3) a fair and impartial hearing officer; and (4) a written statement of the hearing officer's decision, including the evidence relied upon in making said decision. Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted); see Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986) (citations omitted). Additionally, a prisoner has the right to non-counsel assistance in establishing a defense. Eng v. Coughlin, 858 F.2d 889 (2d Cir. 1988); Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998); see Horne, 155 F.3d at 30.

a. Advanced Written Notice

An accused prisoner has the right to be provided with advanced written notice of the charge or charges he has been accused of. Sira, 380 F.3d at 69. Blackshear was provided with a copy of his misbehavior report, the document indicating the violation he was charged with, on July 3, 2011 at 7:10 a.m., well before Blackshear's first appearance for his disciplinary hearing on July 6, 2011 at 1:31 p.m. Compl. at 2-3; Dkt. No. 16-3 at 30. Thus, Blackshear was provided with written notice of the charges he was accused of in advance of his hearing.[8]

Accordingly, Blackshear had advanced written notice of his charges.

b. Opportunity to Call Witnesses and Present Documentary Evidence

An accused prisoner has the right to a hearing where he is given the reasonable opportunity to call witnesses and present documentary evidence. Sira, 380 F.3d at 69. In this case, Blackshear did not inform his assistant on July 5, 2011 of any witnesses he wished to call, nor did he indicate he wished to present any documentary evidence. Compl. at 3; Dkt. No. 16-3 at 36-37, 58-59. Blackshear's requests to his assistant were limited to the production of "evidence from inmate records" and "DNA testing on items." Dkt. No. 16-3 at 36-37, 58-59. Defendant Woodward, as hearing officer, received confirmation from Blackshear that he wished to call no witnesses and advised Blackshear that the hearing was Blackshear's opportunity to present any documentary evidence. See Dkt. No. 16-3 at 58. Additionally, when asked at his hearing if he was satisfied with his assistant, Blackshear indicated he was. Id. at 59.

The record thoroughly supports the conclusion that Blackshear was granted a hearing with reasonable opportunity to call witnesses and present documentary evidence.[9]

c. Fair and Impartial Hearing Officer

Blackshear claims defendant Woodward was biased against him in serving as hearing officer and, accordingly, violated his due process rights. Compl. at 9-10. An accused prisoner has the right to have a fair and impartial hearing officer preside over his disciplinary hearing. Sira, 380 F.3d at 69. However, "[t]he degree of impartiality required of prison officials does not rise to the level of that required of judges... [as i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citations omitted). The Supreme Court held "that the requirements of due process are satisfied if some evidence supports the decision by the [hearing officer]..." and the Second Circuit has held that the test is whether there was "reliable evidence' of the inmate's guilt." Luna v. Pico, 356 F.3d 481, 487-88 (2d Cir. 2004); see also Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).

Blackshear appears to make four claims as to why Woodward was a biased hearing officer.[10] See Compl. at 10-11. First, Blackshear contends Woodward was generally biased against him in his decisions and determinations. See id. Second, Blackshear claims Woodward was involved in investigating Blackshear's alleged violation and, as such, was inherently compromised by a conflict of interests. See id. Blackshear's third claim is that Woodward demonstrated bias by imposing a harsh punishment unsupported by the evidence. See id. The final claim made is that Woodward violated Blackshear's due process rights when he found Blackshear guilty absent sufficient evidence.[11] See id.

Blackshear first alleges that defendant Woodward was generally biased in failing to view facts in a neutral manner. See id. This claim is not supported by the record. The Tier III hearing transcript indicates quite the opposite, with Woodward taking numerous precautions for the benefit of Blackshear. See, e.g., Tier III Hr'g Tr. at 58-61. Woodward began the hearing by reviewing numerous facts with Blackshear for confirmation. See id. When Blackshear complained to Woodward that he did not receive all of the documents he requested through his assistant, Woodward provided them to him as well as adjourned the hearing for one week to allow Blackshear to review them, despite Woodward's belief that they were irrelevant.[12] See id. at 60-68. Furthermore, upon resuming the hearing, Woodward asked two witnesses questions that Blackshear had raised in an effort to remove lingering confusion. See id. at 68-73. This was done even though Blackshear had no constitutional right to pose questions to witnesses. See Wolff, 418 U.S. at 567-68 (stating that "it does not appear that confrontation and cross-examination are generally required [for prison disciplinary hearings] and "that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination."). The record thus does not support a finding that Blackshear was prejudiced by Woodward being a biased hearing officer, but, rather, that Woodward afforded Blackshear more latitude than Blackshear was legally entitled to.

Blackshear's second claim concerning Woodward's bias is that Woodward was involved in the investigation of the incident and thus, had a conflict of interest which prevented him from serving as hearing officer. Blackshear bases this claim on the appearance of Woodward's name on Form 2080 for the suboxone found near Blackshear's bed. Blackshear contends that by being in possession of the suboxone, Woodward was involved in its related investigation. Blackshear asserts that Woodward thus violated N.Y. Comp. Codes R. & Regs. tit. 7, § 254.1 which provides, in relevant part: "The following persons shall not be appointed to conduct the proceeding:... a person who has investigated the incident." Blackshear's argument hinges on whether or not being in physical possession of contraband constitutes "investigating" the contraband. It should be noted that, "the mere involvement of a hearing officer in related investigations or proceedings does not evidence bias." Rodriguez v. Selsky, No. 09:07-CV-0432(LEK/DEP), 2011 WL 1086001, at *11 (N.D.N.Y. Jan. 25, 2011) (citing Vega v. Artus, 610 F.Supp.2d 185, 200 (N.D.N.Y. 2009)). Here, Woodward's conduct-possession the contraband-cannot be said to rise to the level of "investigation, " but is merely tangential involvement. See Vidal v. Goord, 273 A.D.2d 535, 535 (2000) (finding that the signature of a hearing officer at the bottom of a disbursement form did not constitute "investigation"). As Woodward only appeared on the chain of custody form as a result of his need to remove the suboxone from the drop box in order to have them transported to a pharmacist for testing, his involvement was merely tangential and does not rise to the level of evidencing bias. See Rodriguez, 2011 WL 1086001 at Thus, the record does not support a finding that Woodward investigated Blackshear's case.

Blackshear's third claim regarding Woodward is that Woodward was not a fair and impartial hearing officer because he imposed an unduly harsh punishment. Dkt. No. 16-3 at 7, 9-13. Contrary to Blackshear's assertion, the punishment imposed by Woodward does not run afoul the Sandin test for being an "atypical and significant hardship in relation to the ordinary incidents of prison life." See subsection II(B)(1) supra (discussing how Blackshear's punishment of ninety-days' SHU confinement is not an "atypical and significant hardship in relation to the ordinary incidents of prison life"). By not violating the Sandin test, Woodward's recommended punishment does not support the conclusion that he was not a fair and impartial hearing officer.

Lastly, Blackshear claims his due process rights were violated when Woodward found him guilty of the alleged violation. Compl. at 9. A similar claim is made against defendant Venettozzi. Blackshear argues that there was insufficient evidence for Venettozzi to affirm Woodward's finding of guilt. Id. at 11. As a prison disciplinary hearing is not a formal criminal proceeding, accused prisoners are not afforded the same rights. See Wolff, 418 U.S. at 556. Instead, due process requirements are fulfilled when there is some evidence of the inmate's guilt. Luna, 356 F.3d at 487-88. The record indicates that Woodward found Blackshear guilty in part because of the location of the suboxone between two areas of his control, his locker and his bed. Tier III Hr'g Tr. at 60-61, 74. This undisputed fact provides sufficient evidence for a finding of guilt as it provides "some evidence" of Blackshear's guilt. See Luna, 356 F.3d at 487-88. Similarly, in reviewing the record, Venettozzi was justified in affirming that finding on administrative appeal for the same reasons. See id. Accordingly, defendants Woodward and Venettozzi did not violate Blackshear's due process rights because they had sufficient evidence to support the finding of guilt.

Contrary to Blackshear's assertion, the record does not support the claim that Woodward was not a fair and impartial hearing officer. Woodward did not fail to view facts in a fair and neutral manner, nor did he investigate the incident or impose an atypical punishment. Similarly, there was ample evidence to support a finding of guilt. As such, defendant Woodward did act as a fair and impartial hearing officer and did not deprive Blackshear of his constitutional rights.

d. Written Statement of Decision

An accused prisoner has the right to a written statement of decision, including a statement of the evidence relied upon by the hearing officer. Sira, 380 F.3d at 69. In this case, Blackshear does not allege, nor does the record support, a claim that he was not provided with such a written statement of Woodward's decision. See Dkt. No. 16-3 at 73-75. In his decision, which he read aloud on-the-record, Woodward stated that to make his decision, he relied upon the written report of Maitland, the verbal testimonies of Blackshear and non-parties Kogut and Goodnough, Form 2080, and the photograph of the suboxone. Id. at 73-74. As Blackshear did not allege, nor does the record indicate, that Blackshear was not provided with a copy of this written report, including the evidence relied upon by Woodward, the notion that this prong of the Sira test was not met is without merit.

Accordingly, Woodward acted as a fair and impartial hearing officer and did not deprive Blackshear of his constitutional rights.

e. Pharmacological Analysis of Suboxone

Although inartfully alleged, Blackshear seems to state that his due process rights were violated when Woodward allowed evidence of the suboxone to be used where the suboxone was not tested in accordance with Directive 4938. See Compl. at 4; Tier III Hr'g Tr. at 62-64. The record however, indicates that the proper protocol was used, allowing for the reliance on the suboxone as evidence. See Dkt. Nos. 16-3 at 42; 22-4 at 6. Directive 4983, § 1010.4 outlines the procedure to be used when testing contraband drugs. See Dkt. No. 22-4 at 6. It provides, in relevant part: "If the substance is in tablet or capsule form, it shall be inspected at the facility pharmacy for possible identification." Id . Only if the substance cannot be conclusively identified at the pharmacy will another test be implemented. See id. In this case, Pharmacist Goodnough was able to conclusively identify the substance as suboxone. Dkt. No. 16-3 at 42; see Dkt. No. 22-4 at 6. As a result, there was no need to undertake another type of test, including the chemical test sought by Blackshear. See Dkt. No. 22-4 at 6; Compl. at 4; Tier III Hr'g Tr. at 62-64.

As Directive 4983 was strictly adhered to, Blackshear's procedural due process rights were not violated.

f. Adequacy of Assistance

Blackshear also contends that his due process right was violated because he was not afforded the benefit of sufficient assistance, claiming that "[n]o other evidence [beyond a photograph of the suboxone, ] [Blackshear] asked his assistant for was given, nor did the assistant ever appear to assist [Blackshear]." See Dkt. No. 1 at 3. The Second Circuit has explained that:

the assistant's role is to speak with the inmate charged, to explain the charges to the inmate, interview witnesses and to report the results of his efforts to the inmate. He may assist the inmate in obtaining documentary evidence or written statements which may be necessary. The assistant may be required by the hearing officer to be present at the disciplinary or superintendent's hearing.

Horne v. Coughlin, 155 F.3d 26, 29 (2d Cir. 1998) (citing N.Y. COMP. CODES R. & REGS. § 251-4.2). The assistant need only perform what the plaintiff would have done but need not go beyond the inmate's instructions. Lewis v. Johnson, No. 08-CV-482 (TJM/ATB), 2010 WL 3785771, at *10 (N.D.N.Y. Aug. 5. 2010) (citing Silva, 992 F.2d at 22). Furthermore, "any violations of this qualified right are reviewed for harmless error.'" Clyde v. Schoellkopf, 714 F.Supp.2d 432, 437 (W.D.N.Y. 2010) (citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009)).

A review of the record yields no indication that Blackshear was not adequately assisted. As Blackshear had initially indicated he was satisfied with the assistance he received, his claim must logically come from some failure of his assistant discovered during the hearing. See Dkt. No. 16-3 at 59. During his hearing, Blackshear contended that a document he had requested had not been provided to him by his assistant. Id. at 65. Even accepting that Blackshear had indeed made this request, it amounts to a harmless error because defendant Woodward provided the document to Blackshear and adjourned the hearing to give Blackshear time to review the document and formulate a defense.[13] Id. at 68; see Clyde, 714 F.Supp.2d at 437.

As Blackshear was afforded all assistance he had requested and any assistance he did not receive amounted to harmless error, none of Blackshear's due process rights can be said to have been violated by inadequate assistance.

g. Failure to Investigate

While inartfully alleged, Blackshear indicates that his due process rights were violated by Zehr's failure to further investigate the origin of the suboxone. See Compl. at 10. Blackshear alleges that the mere fact that the suboxone was found near his possessions is not enough to confirm his guilt for possession of suboxone. Tier III Hr'g Tr. at 61-62. Thus, Blackshear seems to assert the claim that Zehr erred by failing to investigate any other potential origins of the suboxone. See id.; Compl. at 10. This argument, however must fail. A prison disciplinary hearing is not a formal criminal proceeding and thus, the accused lack the same protections which would be afforded to them in a criminal matter. See subsection II(B)(2) supra discussion of Wolf and Horne. Among the distinctions between the two proceedings, a prison disciplinary hearing's burden of proof is not beyond a reasonable doubt, but a much lower standard requiring only reliable evidence of a prisoner's guilt. Luna, 356 F.3d at 487-88. Accordingly, Zehr was not required to undergo additional investigation to further establish Blackshear's guilt-or, as Blackshear asserts, potentially exonerate him-as Zehr had already discovered evidence sufficient for a finding of guilt. See id. As Zehr conducted an adequate investigation, Blackshear's claim to the contrary is without merit.

Blackshear was afforded all process he was due during all phases of his proceedings-investigation, hearing, and administrative appeal-and, thus, Blackshear necessarily lacks a claim that his Fourteenth Amendment procedural due process rights were violated. Accordingly, defendants' motion on this ground should be granted.

C. Failure to Train and Supervise

Blackshear claims that Venettozzi violated his due process rights when Venettozzi failed to adequately train, supervise, and discipline his employees in such a way as to prevent the unfairness and bias that Blackshear claims plagued his hearing and violated his due process rights. Compl. at 11. As discussed supra, the record shows no evidence of any violations of Blackshear's due process rights by any of Venettozzi's subordinates. Accordingly, Blackshear's claim that Venettozzi is vicariously liable for these violations must necessarily fail and defendants' motion on this ground should be granted.

D. Qualified Immunity

Defendants contend that even if Blackshear is found to have a legitimate Fourteenth Amendment claim, they are protected from civil liability by the doctrine of qualified immunity. Qualified immunity generally protects governmental officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Aiken v. Nixon, 236 F.Supp.2d 211, 229-30 (N.D.N.Y. 2002) (McAvoy, J.), aff'd, 80 F.App'x 146 (2d Cir. 2003). However, even if the constitutional privileges "are so clearly defined that a reasonable public official would know that his actions might violate those rights, qualified... immunity might still be available... if it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991); Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990) (internal citations omitted)). A court must first determine whether, if plaintiff's allegations are accepted as true, there would be a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if there is a constitutional violation does a court proceed to determine whether the constitutional rights were clearly established at the time of the alleged violation. Aiken, 236 F.Supp.2d at 230. Here, the second prong of the inquiry need not be addressed with respect to Blackshear's Fourteenth Amendment claims against these defendants because, as discussed supra, it has not been shown that defendants violated Blackshear's Fourteenth Amendment rights. Accordingly, defendants' motion on this ground should be granted.

III. CONCLUSION

For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 16) be GRANTED as to all claims against all defendants.

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 "within fourteen (14) days after being served with a copy of the... recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). 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).

United States District Court, S.D. New York. Willie TOOKES, Plaintiff, v. Christopher ARTUZ, Superintendent Green Haven Correctional Facility; G. Synder, Deputy Superintendent of Security Services; Lt. Plowden, Review Officer; Sgt. G. Schwattzman, all of Green Haven Correctional Facility; and J.A. Nicholson, Deputy Super-Intendent of Mid-State SHU 200, Defendants. No. 00CIV4969RCCHBP. | July 11, 2002.

Opinion

Opinion and Order

CASEY, D.J.

*1 Pro se plaintiff Willie Tookes ("Tookes"), an inmate currently incarcerated at the Woodbourne Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983 against three officials at the Green Haven Correctional Facility ("Green Haven"), namely former Superintendent Christopher Artuz ("Artuz"), Deputy Superintendent George Schneider ("Schneide") and Sergeant George Schwartzman ("Schwartzman"), as well as against two officials at the Mid-State Correctional Facility ("Mid-State"), namely Lieutenant Harry Plowden ("Plowden") and Deputy Superintendent James A. Nichols ("Nichols").[1] Tookes seeks monetary damages and other relief arising from his term of confinement in the Special Housing Unit ("SHU") after he was found guilty of urging other inmates to participate in a planned labor strike. Tookes disclaims any involvement in the work stoppage and contends that defendants Artuz, Schneider, Plowden and Schwartzman conspired together to file a false misbehavior report against him. Tookes also claims that he was unable to rebut the report because he was denied due process at the subsequent disciplinary hearing.

Defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). First, regarding the disciplinary hearing, defendants argue that Tookes cannot make out a procedural due process claim because his 96-day confinement in the SHU does not implicate a liberty interest. Second, defendants contend that plaintiff's conspiracy allegation also is not actionable because plaintiff does not have a constitutional right to be free from untrue accusations. Alternatively, defendants contend that dismissal of this claim is appropriate because plaintiff has failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). Finally, defendants argue that former Superintendent Artuz cannot be held liable because he had no personal involvement in the events at issue. Defendants' motion is unopposed. For the reasons set forth below, defendants' motion is granted.[2]

I. BACKGROUND

The following facts are culled from the complaint and the attached exhibits, and are taken as true for purposes of this motion. During the summer of 1999, certain inmates at Green Haven began planning a labor strike scheduled to occur on January 1, 2000. (Compl.¶ 6.) On December 1, 1999, defendant Schwartzman commenced an investigation based upon information, supplied by confidential informants, that Tookes was urging other inmates to participate in the strike. ( Id. ) On December 24, 1999, Schwartzman issued an inmate misbehavior report charging Tookes with a violation of Rule 104.12 (Demonstration), which prohibits inmates from leading, organizing, participating or urging other inmates to participate in a work stoppage. ( Id. Ex. A.) Defendant Schneider, the Green Haven Deputy Superintendent, endorsed the report. ( Id. ) On that same day, Schneider and Green Haven Superintendent Artuz caused Tookes to be transferred from Green Haven to Mid-State. ( Id. ¶ 1.)

*2 Upon arrival at Mid-State, Tookes was placed in the SHU. ( Id. ¶¶ 1-2.)On December 28, 1999, Tookes was served with a copy of the misbehavior report following a review by defendant Plowden, a Mid-State official. ( Id. ¶¶ 2-3.)Defendant Nichols presided over the subsequent hearing, which commenced on December 30, 1999. ( Id. ¶ 4 & Ex. B.) Nichols denied Tookes' request to call 17 Green Haven employees to testify at the hearing, finding that their testimony would be redundant, and permitted only five witnesses. ( Id. ¶ 6.) At the conclusion of the proceedings on January 10, 2000, Nichols determined that the misbehavior report and the supporting documentation were "strongly written" and that Tookes had not disproved his involvement in the charged offense. ( Id. ¶ 5 & Ex. C.) Although Nichols credited Tookes for his limited disciplinary history, Nichols ultimately found Tookes guilty. ( Id. ¶ 5.) Nichols imposed a penalty of confinement in the SHU for 180 days and the loss of certain privileges. ( Id. ¶ 4.) He also recommended three months' loss of good time credits. ( Id. )

Tookes appealed Nichols' decision administratively and the ruling was reversed on March 16, 2000. ( Id. ¶ 7.) Tookes was released from the SHU approximately two weeks later, on March 28, 2000, after a total of approximately 96 days. ( Id. ) Tookes thereafter filed the instant suit in this Court.

II. DISCUSSION

When deciding motions pursuant to Fed.R.Civ.P. 12(b) (6), the Court must presume all factual allegations in the complaint to be true and must view them in the light most favorable to the plaintiff. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993), cert. denied, 513 U.S. 1014, 115 S.Ct. 572, 130 L.Ed.2d 489 (1994). Moreover, where, as here, the plaintiff is pro se, the complaint must be liberally construed in his favor and held to "less stringent standards than formal pleadings drafted by lawyers."Id. (citing Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam)); see also Lerman v. Board of Elections, 232 F.3d 135, 139-140 (2d Cir.2000) ("Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel."). Thus, the ultimate question for the Court is whether the complaint, viewed in this manner, states any valid ground for relief. Ferran, 11 F.3d at 22.

A. Procedural Due Process' [3]

Tookes alleges that his due process rights were violated because he was denied the opportunity to call sufficient witnesses at his hearing. (Compl. ¶¶ 12-19.) Plaintiff argues that the additional witnesses would have provided "insight on [his] character" and would have "account[ed] for [his] whereabouts seven days a week, " thus enabling him to disprove the allegations contained in the misbehavior report. ( Id. ¶ 6.) Reading the complaint liberally, plaintiff also appears to suggest that he lacked adequate notice of the charge against him because the misbehavior report was not sufficiently detailed. ( Id. ¶¶ 8-11.)

*3 Before considering whether an inmate was confined to the SHU without procedural due process, courts initially must decide if a protected liberty interest is involved. See Williams v. Goord, 111 F.Supp.2d 280, 288 (S.D.N.Y.2000) ("A prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing must first identify a liberty interest protected by the Due Process Clause of which he was deprived.") (citations omitted); Sealey v. Coughlin, 997 F.Supp. 316, 319 (N.D.N.Y.1998) ("[I]t is well settled that only a limited range of interests will qualify as a liberty interest protected by the Fourteenth Amendment of the United States Constitution.").

In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that a prisoner's confinement to segregated housing does not automatically implicate a liberty interest. Rather, in order to prevail on a § 1983 claim, the plaintiff must establish that the confinement created an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" and that "the state has granted to its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint."Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996).

A disciplinary sanction is not an "atypical and significant hardship" unless it is "onerous." Alvarado v. Kerrigan, 152 F.Supp.2d 350, 354 (S.D.N.Y.2001) (quoting Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999)). In other words, due process claims are reserved for those prisoners who endure hardships that are "substantially more grave" than those hardships that prisoners would ordinarily experience in the general prison population. Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir.1999). In order to make that determination, the court must consider the duration of the inmate's confinement as well as the conditions thereof. Ayers v. Ryan, 152 F.3d 77, 83 (2d Cir.1998).

Even accepting the complaint as true, Tookes does not adequately allege that his time in the SHU constituted an atypical and significant hardship. The only detail that can be discerned from the complaint is that plaintiff's confinement lasted 96 days. However, courts in this Circuit routinely hold that an inmate's confinement in special housing for 101 days or less, absent additional egregious circumstances, does not implicate a liberty interest. See Alvarado, 152 F.Supp.2d at 355 ("[T]he cases show a consensus in this Circuit that an inmate's confinement in the SHU for 101 days or less- without further deprivation-does not constitute an atypical or significant hardship."); see also Sealey, 997 F.Supp. at 319 (152-day SHU); Trice v. Clark, No. 94 Civ. 6871, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (150-day SHU).

No such additional egregious circumstances are pled here. Indeed, the complaint is devoid of any allegations regarding the circumstances of plaintiffs confinement. Nor has Tookes responded to the defendants' motion in order to provide further detail. Therefore, dismissal of plaintiff's due process claims is appropriate here. See Alvarado, 152 F.Supp.2d at 355 (dismissing case where plaintiff failed to allege conditions that would "elevate his [93 day] confinement to the level of deprivation required under Sandin'"); Baker v. Finn, No. 00 Civ. 3886, 2001 WL 1338919, at *4 (S.D.N.Y. Oct.31, 2001) (dismissing case where plaintiff failed to allege that his 136 day confinement included "conditions atypical, or onerous, as compared to those experienced by other prisoners"); Prince v. Edwards, No. 99 Civ. 8650, 2000 WL 633382, at *5 (S.D.N.Y. May 17, 2000) (dismissing case where the complaint "contains no allegations whatsoever regarding the conditions of [plaintiff's 66-day] confinement").[4]

B. False Misbehavior Report

*4 Plaintiff also alleges that defendants Artuz, Schneider, Schwartzman and Plowden conspired to subject the plaintiff to a false misbehavior report. (Compl.¶¶ 8-11.) Even if the Court were to consider plaintiff's unsupported conspiracy speculation as true, a false misbehavior report generally does not in and of itself give rise to a constitutional claim. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988) ("The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest.").

Moreover, even if Tookes was able to state a claim on this basis, defendants correctly point out that Tookes has failed to exhaust his administrative remedies in this regard. The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."42 U.S.C. § 1997e(a). This exhaustion requirement applies to "all inmate suits about prison life... whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).

Defendants acknowledge that Tookes properly exhausted his procedural due process claims by appealing the disciplinary sanctions, which were ultimately reversed. However, it is undisputed that Tookes failed to exhaust the administrative remedies available to him regarding the filing of the misbehavior report.

Because "allegations of employee harassment are of particular concern, " the New York Department of Corrections ("DOCS") has an expedited process in place to consider such complaints. DOCS Directive 4040, § VIII; see also 7 N.Y.C.R.R. Part 701. Here, Tookes never followed such procedures to raise his claim that defendants conspired to file unfounded charges against him. In such a situation, courts have held that the unexhausted claim must be dismissed. See Richardson v. Hillman, 201 F.Supp.2d 222, 2002 WL 745579, at *4 (S.D.N.Y. Apr.18, 2002) (dismissing claims against various prison officials where plaintiff failed to exhaust his administrative remedies); see also Cherry v. Selsky, No. 99 Civ. 4636, 2000 WL 943436, at *7 (S.D.N.Y. July 7, 2000) (dismissing claim that defendant official filed a false misbehavior report where plaintiff did not follow the applicable grievance procedures).[5]

III. CONCLUSION

Because the complaint on its face fails to state a claim, defendants' motion is GRANTED and the action is hereby dismissed. The Court therefore need not address defendants' additional arguments in support of their motion. The Clerk of the Court is directed to close this case.

SO ORDERED.

United States District Court, W.D. New York. Angel CLAUDIO, #84-B-2291, Plaintiff, v. Victor T. HERBERT, T. Breckon, J. Keenan, N. Buth, D. Perrine, J. Porter, J. Johnson, Donald Carriero, and R. Meltner, Defendants. No. 01-CV-0120SR. | Feb. 10, 2005.

Angel Claudio, Romulus, NY, pro se.

Darren Longo, Esq., Darren Longo, Esq., Office of the New York State Attorney General, Buffalo, NY, for Defendants.

Opinion

DECISION AND ORDER

SCHROEDER, Magistrate J.

*1 Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #31.

Currently before the Court is defendant Breckon's motion for summary judgment dismissing plaintiffs amended complaint alleging that he denied plaintiff due process during a prison disciplinary hearing and plaintiffs motion for summary judgment against defendant Breckon. Dkt.33, 61. For the following reasons, defendant Breckon's motion is granted and plaintiffs motion is denied.

BACKGROUND

On May 25, 2000, plaintiff, an inmate at the Attica Correctional FaciIity ("Attica"), received an Inmate Misbehavior Report charging that on May 24, 2000, he violated prison rules 100.11 (inmates shall not assault staff), and 104.11 (inmates shall not engage in any violent conduct). Dkt. #36, Exh. C, p. 4. Specifically, Corrections Officer ("C.O."), Buth alleged that as plaintiff was waiting in B lobby to return to his cell after having being identified as a participant in a fight among a number of inmates in B Yard, [1] "he turned and elbowed me-CO Buth in the left forehead above the eye using his left elbow."Dkt. #36, Exh. C., p. 4.

Plaintiff appeared before Commissioner's Hearing Officer ("CHO"), Sinski on May 30, 2000, but the hearing did not commence because plaintiff complained that he had not been assigned a civilian assistant as requested. Dkt. #36, Exh. A, pp. 2-3. The hearing reconvened on June I, 2000 before CHO Breckon. Dkt. #36, Exh. B, p. 1 ("B1"). Plaintiff complained that he was appearing before a different CHO and that he objected to the extension of the hearing. B4.

Plaintiff requested that his mechanical restraints be applied in front, but CHO Breckon informed him that he was required to be cuffed from behind anytime he was out of his cell because he was on a restraint order in SHU. B7-8. CHO Breckon advised plaintiff that he could access his papers if he stood up and placed his papers on "that shelf." B8. Plaintiff continued to object to the placement of his handcuffs at various times during the disciplinary hearing. B17, 20.

In contrast to the allegations in the misbehavior report, plaintiff alleged that as he turned the corner to be escorted back to his cell,

Officer Prine jumped me with his nightstick in my back. That took my wind. Officer Buth slapped my head into the corner, and the from that point, it was just... a total... ass whipping. I don't basically know... what the hell was happening... Now, Officer Johnson, Officer... Porter, uh, Prine, Sgt. Keenan hit me with the handcuffs on my elbow, and there is a scar right there. He hit me, and it busted my skin open.

B15. Plaintiff claimed that this assault was fabricated in retaliation for plaintiff's complaints about corrections officers during his prior stay at Attica, which precipitated an Inspector General's investigation. B11.

*2 Specifically, plaintiff alleged that he and CO Buth "had problems when I was in B-Block" in 1994. B15. Plaintiff also alleged that CO Buth, Prine, Yackeren and Phelps, "all these guys" who are "still here in this jail, " remembered plaintiff's complaint sparking the Inspector General's investigation because "some of them got suspended or something to that effect, and that is why I am asking you to bring all of this stuff into the record to show that these charges are fabricated."B16. Plaintiff reiterated his request for the Inspector General's report to "prove to you that these allegations that... I am charged with are false."B11. CHO Breckon accepted plaintiff's testimony that he had "made these allegations, " but denied his request for the Inspector General's report, stating "I don't feel you are entitled to them. I don't feel they are essential."B11-12. CHO Breckon clarified, "these are all prior incidents that you claim took place. They will not rebuttal [sic] what the officer is saying."B12.

Plaintiff also claimed that several of the officers implicated in the Inspector General's investigation had made remarks such as, "I remember you;" "I was afraid it was you;" or "I heard you back in, " and had "burned" him from "Yard, chow, phone calls, showers...." B11. Plaintiffs request to call inmates Diaz, Jones, Gonzales and Malowsky to testify as to these prior acts of retaliation by corrections officers against plaintiff was denied after plaintiff admitted that these inmates were not present at the time of the incident. B10, 18-19, 57.

CHO Breckon also accepted plaintiff's claim that he expressed concern to his family and civilian assistant that he was in harm's way as long as he remained at Attica, but denied plaintiff's request to call his civilian assistant and family members to testify regarding plaintiff's expression of this fear as irrelevant. B8-9. CHO Breckon also denied plaintiff's request for CO Stovall to testify that plaintiff informed him of his issues with corrections officers during his previous stay at Attica and was advised to contact Classification and Movement as irrelevant and redundant. B64, 79.

Plaintiff also requested that his civilian assistant be called to testify with respect to who informed him that production of certain documents was denied and the steps he took to investigate this matter, but CHO Breckon denied this request, stating

it is not his job to investigate the matter. It is his job to obtain documents for you and to interview witnesses if you wish them interviewed... Or to see if they want to testify... He did that. Documents that he went to obtain were denied. I went over those documents again with you at the beginning of this hearing. I am also denying them. Therefore, no, I am not calling him as a witness.

B8, 42-43, 57.

In addition to the Inspector General's Report, plaintiff sought medical reports and photographs of the injuries sustained by CO Buth. B7. CHO Breckon denied that request, stating "We don't give you staff... reports regarding our medical."B7. Plaintiff repeated his request for CO Buth's medical record "[t]o prove that he was not hit by me."B13. Plaintiff claimed that "Officer... Buth is 6#4#. I am 5#7#. It would be impossible for me to hit him with my elbow on his... eye... he is too high."B13.

*3 CO Porter testified that he observed plaintiff strike CO Buth and that he assisted CO Buth in the Use of Force to subdue plaintiff by grabbing his legs. B21-22. CO Porter recalled that CO Buth was standing at the time he was struck. B22.

The hearing continued on June 5, 2000, with the testimony of CO Johnson, who stated that he did not witness the alleged assault on CO Buth. B25. CHO Breckon denied plaintiff's request to ask CO Johnson if he was the CO who escorted him to SHU, stating, "[t]here is nothing in this Misbehavior Report indicating that I should be having to decide what happened or what didn't happen after the incident."B25-26. Plaintiff responded:

Well, Officer Johnson was there, also and he was the one also hitting me when they were trying to put restraints on me. Okay. So you didn't even afford me the opportunity to ask any questions. You just determined that there was no further questions and excused him. That's not being fair, sir.

B26. Because CO Buth and Prine were not on duty, the hearing was adjourned until June 6th. B27.

On June 6th, CO Prine testified that he observed plaintiff strike CO Buth with his elbow and then helped subdue plaintiff. B29, 32. CO Prine denied any prior "dealings" or verbal confrontations with plaintiff and specifically denied firing plaintiff from his job in "feed up, " in 1993 or 1994, stating that he was never "in control of feed up men."B33-34. CO Prine did not recall whether CO Johnson was in the area at the time of the incident, but did recall that Sgt. Keenan supervised the application of restraints on plaintiff. B36-37. CO Prine testified that plaintiff

struggled for awhile, and then I believe we got his hands and arms behind his back. That's when he stopped. Somebody had to hold his legs.

B37. CO Prine denied striking plaintiff in the face and denied observing any other officers strike plaintiff in the face, but indicated that plaintiff fell into the radiator during the struggle. B38-39.

CHO Breckon informed plaintiff that CO Buth was off duty, and that he would need to request an extension if he wanted to call CO Buth as a witness. B42. Plaintiff indicated that he wanted CO Buth to testify. B42. Plaintiff's hearing continued on June 20th, at which time CHO Breckon noted that an extension had been obtained so that CO Buth could testify. B43-44.

CO Buth testified that he is 6#5# and agreed that plaintiff was approximately 5#8#. B44. CO Buth recalled bringing plaintiff into the B-Block hallway, but did not recall whether he or CO Prine conducted the pat frisk. B46. CO Buth testified that after plaintiff moved from the hallway into the lobby, while waiting in B-Lobby for other inmates to be locked into their cells, plaintiff hit CO Buth above his eye with his left elbow. B49. CO Buth stated that he was not standing upright at the time, explaining:

When I am positioned behind an inmate, I never stand staring [sic] up in an upright position because that is letting myself and my guard down because I could very easily be knocked on my buttocks if I stood straight up by an elbow or a kick... I always bend down and lower myself to the level of that inmate.

*4 B49. Thereafter, CO Buth grabbed plaintiff from behind his upper body with both arms in a "bear hug type of hold." B50. CO Buth denied losing any work time following the incident. B49. He also denied any prior dealings with plaintiff. B51.

Following CO Buth's testimony, plaintiff noted that CO Prine and CO Porter testified that CO Buth was standing straight up when plaintiff hit him, which contradicted CO Buth's testimony that he was stooped over. B52. CHO Breckon responded that "so far, everyone of your witnesses have said that you hit this officer."B52. CHO Breckon also opined that "[e]ven if [he] was standing straight up, I could see where you could hit him very easily."B53.

CO Zak testified that he escorted plaintiff out of the Yard and turned him over to CO Buth before returning to the Yard with Sgt. Keenan. B53-54. Thus, CO Zak did not see the incident. B53. Plaintiff then noted that he had "just established that Officer Buth did have control of me entering from the Yard and that Officer Buth, in fact, did pat frisk me."B55. In response, CHO Breckon stated: "I got to tell you right now... so far... the only thing you have established with any certainly [sic] at all... is that you hit Officer Buth."B55. CHO Breckon then denied plaintiff's assertion that he was "predeterminating" the judgment, informing plaintiff that

I am letting you know that while you are bringing up little minute things and... people's perceptions of how they stand or how they fall or how somebody gets hit are all gonna be different. Nobody is ever going to see exactly the same picture. Nobody has yet said that you did not hit Officer Buth.

B55.

Plaintiff then requested the B-Block Hall Captain, Officer Kozlowski, to "verify that I did not strike this Officer."B56-57. CHO Breckon determined that the Hall Captain was off duty and offered to obtain another extension to complete the hearing, but opined, "quite frankly, I doubt very much that he is going to come forward and say that you didn't strike Officer Buth."B57. Thereafter, plaintiff complained that the CHO was not permitting him to submit evidence with respect to his prior relationship with certain corrections officers, prompting the following exchange: CHO: So, since you had problems with some other officer here. [sic] Now, you're always gonna have problems. is that what you're saying?

PI: Of course I am.

CHO: No, not at all.

PI: Because Prine, Officer Prine was one. All right. Officer Prine was one, and he was there. Now, you [sic] not letting me establish that. Now, we called the guy... Zak. Zak said that he did actually bring me in. Now, all these guys, they are gonna come in here, and they are gonna tell you, "Listen, I have no recollection. I have this. I have that."Of course they are gonna say that. That's the code of silence.

CHO: So, then I should say then of course you're gonna lie and say you didn't do it. You're just and [sic] inmate, and you're just lying. So, then I should say that?

*5 PI: Well, of course no.

CHO: Is that what you are telling me?

PI: No. I'm trying to prove to you that I did not do it.

CHO: Okay.

PI: Because that officer is 6#5#, and he said he squatted down. That's bullshit because you have Porter and you have Prine that said that he was standing straight up. So, who's lying here?

CHO: I don't believe anybody's lying here as far as they go.

B60-61.

The hearing continued on June 13, 2000. B62. CO Kozlowski testified that he was busy at the lobby desk answering phones as the inmates were being brought in from the yard, and that he did not recall observing this particular incident. B62-63.

Plaintiff then requested testimony from CO Curello, but was advised that there is no individual by the name of Curello. B64. Plaintiff indicated that the CO might be named Turello, stating

Turello, Curello, something like that, something to that effect. He works in Block, and he was one of the responding officers that came to that area.

B64-65. CO Turello testified that he was not working at the time of the incident. B77. CHO Breckon denied Plaintiff's request for testimony from CO Curello on the grounds that there was no such officer. B79.

Plaintiff also requested testimony from Sgt. Randall regarding the misbehavior report involving the altercation in the yard that day, which was dismissed. B65. The CHO accepted Plaintiff's statement that he did not participate in the events that took place in the yard, but denied Sgt. Randall as a witness on the ground that his testimony was not relevant. B79. CHO Breckon denied the testimony from the B-Yard Tower Officer for the same reason. B79.

Sgt. Keenan testified that he escorted plaintiff in from the yard and handcuffed plaintiff in the lobby. B67, 69. Although he completed the Use of Force report with respect to this incident, he did not witness the use of force, but completed the report based upon information obtained from those officers who were involved in the incident. B70. CHO Breckon denied plaintiffs request to question Sgt. Keenan regarding the extent of CO Buth's injury or whether Sgt. Keenan yelled to the officers to stop hitting plaintiff. B71, 73.

In response to Plaintiff's ongoing argument that he could not have elbowed CO Buth in the forehead because his hands were behind his back and CO Buth was so much taller than plaintiff, CHO Breckon opined that

This is what I have gotten so far from the testimony that has been given. You were brought in. Whether or not your hands [were] behind your back or they had a hold of your arms really isn't relevant. They may... very well have had them, your arms... behind your back and had been... controlling you at that point. It sounds from the testimony gathered that you were taken through the metal detector in B-Corridor, cleared that. You were brought back into B-Lobby, and you were standing in a corner or standing against the wall or standing somewheres [sic] in B-Lobby waiting to go upstairs. At that point, you may or may not have had your hands behind your back. They may have been on the way. They may or may not have been controlling you. It sounds like they were bringing in an awful lot of inmates... At that point, they may have felt you posed no threat. Then, for whatever reason, according to all the testimony that was given by your witnesses, you assaulted Officer Buth by elbowing him. Now, you say you can't do this because he's standing straight up. He says he was bent over. Two other officers say he was straight up. Their recollections of that may not be accurate. I don't know. I don't care if he was standing on a stool. Quite frankly, if you want to strike somebody, you can strike them.

*6 B77-78. Plaintiff then asked what reason he would have to strike CO Buth, prompting the following exchange: CHO: I don't know. Why do inmates ever assault officers, Inmate Claudio? Probaby because... there is something wrong with them. That's why they're inmates. That's why they're in jail because they are violent individuals.

PI: But there has to be a reason. This is my point. There has to be a reason.

CHO: Well, I guess the reason must be because you are a violent individual.

PI: You just don't go and strike a person for no reason. There has to be a reason. I don't know this guy. I don't know him. I'm telling you that these that this shit here was a set-up.

CHO: Maybe you don't like officers.

PI: Oh my god. Well-CHO: Anything else?

PI: Yes. Well... I've been confined for twenty years. All right, and I have no assault on staff. So, why all of the sudden out of just the clear blue sky I'm just gonna decide one day fuck it. I'm gonna get up, and I'm gonna strike an officer for no apparent reason.

CHO: I don't know. Why, out of, just out of the clear blue sky somebody decides to go out and kill somebody? They just do.

Right?

B78-79.

CHO Breckon found plaintiff guilty of both charges and sentenced him to 24 months SHU confinement, including loss of packages, commissary, telephones, personal headphones or earphones. B80. Upon release from SHU, plaintiff would lose recreation privileges for an additional 24 months. B80. In support of this sentence, CHO Breckon indicated that

Consideration was given to the fact that you were just released from a previous disposition. That was on 4/7/00, of approximately thirteen months confinement to S.H.U. for assaulting an inmate. Apparently, you were unable to control yourself for more than two months in population. Hopefully, this disposition will serve that purpose and deter you the next time you are released to population.

B80.

The results of the disciplinary hearing were reversed upon review by the Director of Special Housing/Inmate Disciplinary Program on March 26, 2001. Dkt. # 36, Exh. E. By letter dated May 16, 2002, Director Selsky advised plaintiff that the "hearing was reversed due to a problem with witnesses."Plaintiffs Exh. M.

Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983, alleging, as relevant to the instant motions for summary judgment, that defendant Breckon denied him due process during the course of the June, 2000 disciplinary hearing. Dkt. # 5, p. 6. Specifically, plaintiff complains that defendant

Breckon denied the Plaintiff meaningful employee assistan[ce]; medical reports/pictures of the officers' injuries; inmate witnesses; denial of past documentary evidence file on officers [sic]; denial of civilian witnesses; handcuff from behind;
Plaintiff had two hearing officers;[2] the extensions that were given were in violation; denied the right to question witness J. Johnson; the hearing officer was unfair/partial and he prove[d] this by the statements he made and actions; failed to obtain the true identification of Officer Carrier [sic]; the penalty impose[d] was in violation of the departmental guidelines for disposition.

*7 Dkt. # 5, p. 6.

ANALYSIS

Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)."In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F.Supp. 794, 799 (W.D.N.Y.1997) (internal citations omitted).

A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment

must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.

Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

Deprivation of Due Process

To state a cognizable § 1983 due process claim, a plaintiff must demonstrate that he possessed a protected liberty or property interest and that he was deprived of that interest without due process. Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996); Frazier v. Coughlin, 81 F.3d 313, 316 (2d Cir.1996). Assuming for the purposes of this motion that the duration and conditions of Plaintiff's disciplinary confinement of 10 months SHU confinement constitute an "atypical and significant hardship... in relation to the ordinary incidents of prison life, " sufficient to implicate a liberty interest, the Court will focus its attention on the second prong of the due process analysis, to wit, whether plaintiff received due process. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Colon v. Howard, 215 F.3d 227, 231 (2d Cir.1999).

Extension of Time to Conduct Disciplinary Hearing

Plaintiff asserts that it was an abuse of power and a violation of DOCS protocol to extend the deadline for completion of his disciplinary hearing. Dkt. # 42, p. 11. The defendant asserts that the hearing extensions do not implicate constitutional rights and did not violate state procedures inasmuch as the extensions were granted to accommodate Plaintiff's request for witnesses. Dkt. # 34, p. 12.

*8 Pursuant to 7 N.Y.C.R.R. § 251-5.1, prison disciplinary hearings must be commenced within seven days and completed within fourteen days of the alleged violation unless a delay has been authorized by the Commissioner. The misbehavior report involved an incident which transpired on May 24, 2000. Dkt. # 36, Exh. C. His disciplinary hearing commenced on May 30, 2000, within the seven day window. Dkt. # 36, Exh. A, p. 1. However, in response to Plaintiff's complaint that he had not received a civilian employee assistant as requested, the CHO found a civilian employee assistant for plaintiff and adjourned the hearing so that plaintiff could receive assistance from him. Dkt. # 36, Exh. A, pp. 2-3. Accordingly, an extension was granted so that the hearing could reconvene on June 1, 2000. Dkt. # 36, Exh. B. Thereafter, the hearing was adjourned to accommodate the schedules of witnesses requested by plaintiff, with extensions requested and granted through June 13, the date of disposition. Dkt. # 36, Exh. C. Thus, there was no violation of DOCS regulations. Even if there were, violations of state procedural regulations do not establish federal constitutional violations. See Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995); Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.), cert. denied 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987).

Denial of Documents and Witnesses

Plaintiff complains that the CHO improperly denied him access to documents and testimony from witnesses. Dkt. # 42, pp. 2-10.

In Wolff v. McDonnell , the Supreme Court of the United States determined that an

inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.

418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In reaching this conclusion, the Court recognized that

Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.

Id. In exercising that discretion, prison officials must be able to

explain, in a limited manner, the reason why witnesses were not allowed to testify... either by making the explanation a part of the "administrative record" in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a "liberty" interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it "later."

Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985). A hearing officer may rationally exclude witnesses or documents when they would be irrelevant or unnecessary to a determination of the issues in the disciplinary hearing. Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir.1999). The burden is on the prison official to demonstrate "the rationality of his position." Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir.1990).

Employee Assistant

*9 Plaintiff claims that the CHO violated DOCS protocol by refusing to call his civilian assistant regarding the production of documents. Dkt. # 42, p. 7. CHO Breckon denied this request, informing plaintiff that because he had "made the final decision" to deny some of the documents requested, the assistant's testimony would not be relevant. B8, 42-43, 57. This is a rational basis for the denial of plaintiff's employee assistant as a witness. CHO Breckon discussed with plaintiff the reason for his denial of certain documents, rendering the assistant's testimony with respect to such documents moot.

Testimony & Documents Regarding Retaliation

Plaintiff asked for documents and witnesses relating to his defense that the misbehavior report was fabricated against him in retaliation for plaintiff's prior complaints about corrections officers at Attica, which allegedly resulted in an Inspector General's investigation of the facility. Specifically, plaintiff requested production of the Inspector General's 1994 Report; testimony from his assistant and plaintiff's family members confirming plaintiff's fear of retaliation; testimony from inmates Diaz, [3] Jones, Gonzales and Malowsky regarding prior acts of retaliation by corrections officers against plaintiff; and testimony from CO Stovall that in response to plaintiff's fear of retaliation, he instructed plaintiff to contact Classification and Movement. B8-9, 11-12, 18-19, 57, 64, 79. CHO Breckon accepted plaintiff's statements that he had made complaints which generated an Inspector General's investigation and plaintiff's expressed feared of retaliation, but denied these requests as irrelevant. B8-12, 18-19, 57, 64, 79.

CHO Breckon was justified in accepting plaintiff's testimony that his complaints precipitated an Inspector General's investigation without producing the report since the plaintiff's complaints and the resulting investigation would provide ample motivation for retaliation by the corrections officers regardless of the results. CHO Breckon was also justified in accepting Plaintiff's assertion that he feared retaliation without receiving testimony from witnesses who heard plaintiff express that fear. Accepting these statements as true, however, did not preclude CHO Breckon from finding plaintiff guilty of the disciplinary charges.

The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing.

Superintendent v. Hill, 472 U.S. 445, 457, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Thus, CHO Beckon was free to weigh the time that had lapsed between the Inspector General's investigation and the misbehavior report; the testimony of CO Buth and CO Prine denying any prior interaction with plaintiff; Plaintiff's contradictory testimony that he and CO Buth had problems in 1994 and that he didn't "know this guy;" and the testimony from CO Buth, CO Prine, and CO Porter that plaintiff did hit CO Buth in finding plaintiff guilty of the disciplinary charges. B15, 21-22, 29, 32-34, 49, 51, 78-79.

Production of Documents-Medical Records

*10 Plaintiff asserts that CO Buth's medical records would demonstrate that CO Buth was injured by a nightstick, not Plaintiff's elbow. Dkt. # 42, p. 9. However, at no time during the disciplinary hearing did plaintiff allege that CO Buth was injured by a nightstick. Rather, plaintiff requested the medical reports to prove that CO Buth was not hit by plaintiff. B13. It is unclear, however, how the medical reports would establish that fact. Moreover, to the extent that plaintiff sought the medical records to demonstrate the height differential between him and CO Buth, plaintiff did establish that CO Buth is 6#5# and that he was approximately 5#8#. B44. Accordingly, CHO Breckon's denial of this request was rational.

Testimony From Other Non-Witnesses to the Incident

Plaintiff complains that the CHO deprived him of his constitutional rights when he refused to allow further questioning of CO Johnson. Dkt. # 42, p. 2. However, the additional questions plaintiff sought to ask CO Johnson went to Plaintiff's claim of assault by the corrections officers, not CO Buth's claim of assault by plaintiff. Once it was determined that he did not witness the alleged assault on CO Buth, it was justifiable for CHO Breckon to preclude further questioning of CO Johnson, particularly given the number of witnesses who had already been called to testify. B25. Testimony from Sgt. Randall and the B-Yard Tower Officer regarding events which transpired in the yard prior to the alleged incident was also properly excluded as irrelevant to the charges contained in the misbehavior report.

Failure to Identify CO Carriero

Plaintiff alleges that the CHO purposefully failed to discern that his request for Officer "Curello" referred to Officer Carriero. Dkt. # 42, pp. 5-6. Given the number of witnesses produced at Plaintiff's request and CHO Breckon's attempts to discover the identity of CO Carriero, e.g., producing CO Turello, the failure to discover and produce CO Carriero cannot be said to deny Plaintiff's right to call witnesses in his defense. See Dixon v. Goord, 224 F.Supp.2d 739, 746 (S.D.N.Y.2002) (inability to identify corrections officer based upon Plaintiff's description constitutes logical reason for failing to produce as a witness).

Failure to Cuff in Front with a Waist Chain

Plaintiff argues that it was an abuse of power for the CHO to refuse to order removal of Plaintiff's handcuffs from behind his back during the course of his disciplinary hearing. Dkt. # 42, pp. 11-12. Because plaintiff does not have a constitutional right to be present at his disciplinary hearing, he cannot claim a right to be unencumbered by mechanical restraints if physically present during his disciplinary hearing. See Bogle v. Murphy, 2003 WL 22384792 (W.D.N.Y. Sept.9, 2003) ("since Wolff does not positively grant an inmate the right to be present at his hearing, such a due process right cannot be implied."); see also Brown v. Coughlin, 1995 WL 643349, at *3 (W.D.N.Y. Oct.13, 1995) (concluding that "plaintiff does not have a liberty interest in being unencumbered by mechanical restraints during his exercise period."). Plaintiff does not dispute that he was subject to a valid restraint order. See Plaintiff's Exhibit C. Moreover, the transcript does not suggest that the mechanical restraints interfered with his ability to call witnesses and present evidence or otherwise participate in the disciplinary hearing.

Sentencing Guidelines

*11 Plaintiff argues that his punishment exceeded DOCS "Guidelines for Disciplinary Dispositions." Dkt. # 42, p. 12. Plaintiff also argues that the CHO violated DOCS protocol by using his prior disciplinary record to infer guilt of the instant charge. Dkt. # 42, pp. 12-13.

Contrary to plaintiff's allegations, the transcript does not suggest that the CHO used plaintiff's prior disciplinary record to infer his guilt on the instant charge. The evidence was sufficient to demonstrate that plaintiff assaulted CO Buth, and the only mention of plaintiff's prior disciplinary record was with respect to the appropriate punishment, i.e., that because a sentence of 13 months for assault on an inmate failed to deter further assaults by plaintiff, and because this assault was on a corrections officer, a more severe punishment was warranted.

With respect to the length of the sentence, plaintiff has no federal constitutional right to a sentence in accordance with DOCS Sentencing Guidelines inasmuch as "the failure to follow a DOCS Directive or prison regulation does not give rise to a federal constitutional claim." Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 (S.D.N.Y.2002)."Absent a clear showing of gross abuse, a prison authority's judgment in ordering confinement should prevail and will not give rise to a cause of action under section 1983." Id. at 125, citing Anderson v. Coughlin, 700 F.2d 37, 44 (2d Cir.1982). In any event, "[a]t a Tier 111 hearing, the maximum penalty that may be imposed is keeplock or SHU confinement for a period of time limited only by the length of the inmate's sentence, as well as a loss of good time credit and privileges." Jackson v. Johnson, 15 F.Supp.2d 341, 355 (S.D.N.Y.1998).

Impartiality of Hearing Officer

Plaintiff alleges that the CHO demonstrated his partiality by refusing to allow him to present evidence with respect to his claim of retaliation. Dkt. # 42, p. 9. Plaintiff also complains that the CHO had predetermined plaintiff's guilt. Dkt. # 42, pp. 14-15.

"An inmate subject to a disciplinary hearing is entitled to an impartial hearing officer."Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996); see Wolff, 418 U.S. at 570-71; Russell v. Selsky, 35 F.3d 55, 59 (2d Cir.1994). An impartial hearing officer "is one who, inter alia, does not prejudge the evidence and who cannot say... how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990); see Francis, 891 F.2d at 46 ("it would be improper for prison officials to decide the disposition of a case before it was heard").

It is well recognized, however, "that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen, 100 F.3d at 259; see Francis, 891 F.2d at 46 ("Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process."). For example, "[t]he degree of impartiality required of prison officials does not rise to the level of that required of judges generally." Allen, 100 F.3d at 259; see Francis, 891 F.2d at 46.

*12 A review of the hearing transcript does not establish that the CHO was partial. To the contrary, the CHO permitted plaintiff to call numerous witnesses, accepted plaintiff's allegation that he had made complaints against corrections officers during his prior stay at Attica and that those complaints resulted in an Inspector General's investigation, and permitted plaintiff to argue that the misbehavior report was fabricated in retaliation for these prior complaints. The CHO's comments with respect to evidence already presented does not demonstrate prejudice, and the CHO's comments with respect to plaintiff's potential motive for striking CO Buth was hypothetical and in response to plaintiff's claimed lack of motive.

CONCLUSION

For the foregoing reasons, defendant Breckon's motion for summary judgment (Dkt.# 33), is GRANTED and plaintiff's motion for summary judgment against defendant Breckon (Dkt.# 61), is DENIED. The Clerk of the Court is directed to enter judgment in favor of defendant Breckon.

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.

United States District Court, N.D. New York. Nelson RODRIGUEZ, Plaintiff, v. Donald SELSKY, Defendant. Civil Action No. 9:07-CV-0432 (LEK/DEP). | Jan. 25, 2011.

Nelson Rodriguez, Attica, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General of the State of New York, Aaron M. Baldwin, Esq., Assistant Attorney General, of Counsel, Albany, NY, for the Defendant.

Opinion

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

*1 Plaintiff Nelson Rodriguez, a New York state prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 alleging deprivation of his civil rights. In his complaint, as amended, Rodriguez alleges that prison officials at the facility in which he was confined at the relevant times issued him two fabricated misbehavior reports ("MBRs") falsely accusing him of violating prison rules and denied him procedural due process during the course of the ensuing disciplinary hearing.[1] Plaintiff attributes those actions to retaliation for his having filed a civil action against a corrections employee who was not named as a defendant in his complaint.

The sole remaining claim in this action is asserted against defendant Donald Selsky, the former Director of Special Housing and Inmate Disciplinary Programs for the New York State Department of Correctional Services ("DOCS"), alleging deprivation of procedural due process arising out of plaintiff's disciplinary hearing and defendant Selky's review of the resulting determination.

Currently pending before the court is defendant's motion for summary judgment dismissing plaintiff's amended complaint.

In his motion, defendant argues that 1) he was not sufficiently involved in the constitutional deprivation alleged to support a finding of liability; 2) plaintiff was afforded procedural due process in connection with the disciplinary proceedings at issue, and 3) in any event he is entitled to qualified immunity from suit. For the reasons set forth below, I recommend a finding that plaintiff was not deprived of procedural due process, and that his complaint therefore be dismissed.

I. BACKGROUND [2]

Plaintiff is a prison inmate entrusted to the custody of the DOCS; at the times relevant to his due process claim plaintiff was housed at the Shawangunk Correctional Facility ("Shawangunk"), located in Wallkill, New York. Amended Complaint (Dkt. No. 7) ¶ 3; Selsky Decl. (Dkt. No. 62-3) ¶ 15.

As a result of an incident involving another inmate occurring on December 30, 2003, plaintiff was issued two MBRs. Amended Complaint (Dkt. No. 7) ¶¶12-15. Selsky Decl. (Dkt. No. 62-3) ¶ 16. The first, issued on December 30, 2003 and authored by Corrections Officer Goosby, charged Rodriguez with fighting and refusal to obey a direct order. Selsky Decl. (Dkt. No. 62-3) ¶ 17 and Exh. A (Dkt. No. 62-4). The second, issued on January 2, 2004 by Corrections Lieutenant Wright, addressed the same incident and accused Rodriguez of fighting, engaging in violent conduct, and participating in a demonstration detrimental to the order of the facility. Selksy Decl. (Dkt. No. 62-3) ¶ 18 and Exh. A (Dkt. No. 62-4).

The parties differ as to when the two MBRs were served upon Rodriguez. Plaintiff and defendant appear to be in agreement that the second MBR was served upon him on January 2, 2004. Selsky Decl. (Dkt. No. 62-3) ¶ 19 and Exh. A (Dkt. No. 62-4); Plaintiff's Local Rule 7.1(a)(3) Statement (Dkt. No. 68) ¶ 16. While defendant asserts that both MBRs were served on January 2, 2004, see Selsky Decl. (Dkt. No. 62-3) ¶ 19 and Exh. A (Dkt. No. 62-4), plaintiff denies that he received the December 30, 2003 MBR until the commencement of his disciplinary hearing.[3] Plaintiff's Local Rule 7.1(a)(3) Statement (Dkt. No. 68) ¶ 16.

*2 The two MBRs were consolidated, over plaintiff's objection, and a Tier III disciplinary hearing was conducted, beginning on January 7, 2004, to address the charges set forth within them.[4], [5] Amended Complaint (Dkt. No. 7) ¶ 15; Selsky Decl. (Dkt. No. 62-3) ¶ 21 and Exhs. A (Dkt. No. 62-4) and B (Dkt. Nos. 62-5 and 62-6). In advance of the hearing plaintiff was given the opportunity to express his preferences for an assistant, and based upon his selection Corrections Counselor Roddy was assigned to assist him. Selsky Decl. (Dkt. 62-3) ¶ 20 and Exh. A (Dkt. No. 62-4).

Following its commencement on January 7, 2004, the hearing officer twice adjourned the hearing, initially to January 8, 2004, and again from January 8, 2004 to January 13, 2004, to allow the plaintiff an opportunity to prepare his defense. Selsky Decl. (Dkt. No. 62-3) and Exh. B (Dkt. No. 62-5) pp. 4-20, 20-58. During the course of the hearing plaintiff was permitted to call at least eleven witnesses to testify on his behalf, and also to introduce documentary evidence in his defense Selsky Decl. (Dkt. No. 62-3) ¶ 44 and Exh. A (Dkt. No. 62-4); Exh. B (Dkt. No. 62-5) at pp. 60-86, 94-115, 136-83, 185-209, and Exh. B (Part 2) (Dkt. No. 62-6) at pp. 2-12, 30-43, 59-71, 72-78, 76-83, 105-111, 111-117, 117-21, 122-26, 128-39. Two inmate witnesses listed by the plaintiff declined to testify, and executed refusal forms stating that they did not wish to be involved in the matter. Selsky Decl. (Dkt. No. 62-3) ¶ 42 and Exh. A (Dkt. No. 62-4). The hearing officer rejected plaintiff's request that he be permitted to adduce testimony from two other witnesses, his wife and his attorney, concluding that the testimony would not be relevant to the issues involved in the hearing. Selsky Decl., Exh. B (Part 2) (Dkt. No. 62-6) pp. 98-99.

At the conclusion of hearing, plaintiff was found guilty of fighting (one count), refusing to obey a direct order, engaging in violent conduct, and participating in a demonstration, but was acquitted on the second count of fighting. Selsky Decl. (Dkt. No. 62-3) ¶ 22 and Exh. A (Dkt. No. 62-4). Based upon his findings, which were both noted in writing and stated orally at the hearing, the hearing officer imposed a penalty that included twenty-four months of disciplinary SHU confinement and a corresponding loss of package, commissary and telephone privileges. Selsky Decl. (Dkt. No. 62-3) ¶ 23; see also Exh. A (Dkt. No. 62-4) and Exh. B (Part 2) (Dkt. No. 62-6) pp. 156-58.

On February 11, 2004, plaintiff appealed the disciplinary determination to defendant Selsky's office. See Amended Complaint (Dkt. No. 7) ¶ 21; Selsky Decl. (Dkt. No. 62-3) ¶ 26 and Exh. C (Dkt. No. 62-7). Plaintiff also submitted a supplemental appeal on or about March 12, 2004. Selsky Decl. (Dkt. No. 62-3) ¶¶ 26-27, Exhs. C (Dkt. No. 62-7) and D (Dkt. No. 62-8). Defendant Selsky issued a determination on behalf of the DOCS Commissioner on April 8, 2004, modifying the results of the hearing by dismissing the charge of engaging in a demonstration and reducing the penalty imposed to twelve months of SHU confinement with a corresponding loss of privileges.[6] Selsky Decl. (Dkt. No. 62-3) ¶ 28 and Exh. E (Dkt. No. 62-9). That determination was based upon defendant Selsky's finding that the nature of the incidents giving rise to the MBRs did not warrant the full extent of the penalty imposed and that the charge of engaging in a demonstration was not substantiated. Id. at ¶ 28 and Exh. E (Dkt. No. 62-9). Based upon his review, however, Selsky concluded that plaintiff received all of the procedural due process mandated under the Fourteenth Amendment and that there was evidence in the record substantiating the charges for which Rodriguez was found guilty. Id. at ¶ 29.

II. PROCEDURAL HISTORY

*3 This action was commenced on April 11, 2007 in the Southern District of New York, but was subsequently transferred to this district by order issued by Chief District Judge Kimba M. Wood on April 11, 2007.[7] Dkt. Nos. 1, 3. Plaintiff's original complaint challenged not only the MBRs issued and the disciplinary action that ensued, but also chronicled alleged continued harassment and acts of retaliation that he experienced following his transfer into the Attica Correctional Facility, naming as defendants several DOCS employees including Donald Selsky. See Complaint (Dkt. No. 1).

Upon transfer of the case to this district and the court's initial review of plaintiff's complaint and accompanying request for leave to proceed in forma pauperis ("IFP"), by order dated May 17, 2007, Senior District Judge Lawrence E. Kahn granted plaintiff IFP status but directed that he file an amended complaint, noting several deficiencies in the original pleading including, inter alia, the apparent untimeliness of certain of his claims. Dkt. No. 5. In accordance with the court's directive, plaintiff filed an amended complaint on June 26, 2007. Dkt. No. 7. Upon review of that pleading District Judge Kahn issued an order on July 19, 2007 accepting the amended complaint for filing, but dismissing plaintiff's claims against the majority of the defendants as time-barred and further directing dismissal of plaintiff's claims against a newly-added defendant, Corrections Sergeant Corcran, without prejudice to plaintiff's right to file a separate action against that defendant in the

Western District of New York.[8] As a result, Donald Selsky was left as the sole remaining defendant in the action. After filing an answer generally denying plaintiff's allegations against him and asserting various affirmative defenses, see Dkt. No. 10, defendant Selsky moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings, urging dismissal of plaintiff's amended complaint on the ground that it failed to allege the requisite degree of his personal involvement in any wrongdoing to support a finding of liability. Dkt. No. 47. The motion resulted in my issuance of a report on February 25, 2010 recommending that the motion be denied. Dkt. No. 54. That recommendation was adopted by District Judge Lawrence E. Kahn by order issued on September 13, 2010. Dkt. No. 67.

On June 18, 2010, defendant again moved, this time for summary judgment dismissing plaintiff's complaint. Dkt. No. 62. In his motion defendant reiterates his claim of lack of personal involvement, and additionally asserts that in any event plaintiff's due process claim lacks merit since the plaintiff was afforded all of the procedural safeguards required under the Fourteenth Amendment, and further that he is entitled to qualified immunity from suit. Id. Plaintiff has since responded in opposition to defendant's motion, Dkt. No. 68, and defendant has submitted a reply memorandum addressing plaintiff's arguments and further supporting his motion. Dkt. No. 74.

*4 Defendant's motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986);. Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Personal Involvement

*5 In his motion defendant Selsky renews an argument previously made and rejected-that his limited involvement in reviewing the disciplinary determination in question based upon plaintiff's appeal of that decision is insufficient to support a finding of liability for any procedural due process violation which may have occurred in the context of that hearing. In response, plaintiff counters that the record reveals facts from which a reasonable factfinder could conclude that the defendant personally participated in the due process violation, including by conducting an inadequate review of the disciplinary hearing record.

It seems clear, particularly in light of the Supreme Court's relatively recent decision in Ashcroft v. Iqbal, ___ U.S. ___ 129 S.Ct. 1937, 1948-49 (2009), that to be held accountable for a constitutional deprivation under section 1983 a defendant must have had personal involvement in the conduct giving rise to the deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) ( citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978); Scott v. Fischer, 616 F.3d 100, 110 (2d Cir.2010) ("In this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983.") (quoting McKinnon ). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986).

As was noted in my prior report and recommendation, the question of whether defendant Selsky's review of an allegedly infirm disciplinary hearing provides grounds for establishing his personal involvement is one that has divided the courts. Some courts have found the mere allegation that Selsky has reviewed and affirmed a hearing determination that was the product of a due process deprivation is insufficient to establish liability for the underlying violation. See, e.g., Abdur-Raheem v. Selsky, 598 F.Supp.2d 367, 370 (W.D.N.Y.2009) ("The only allegation concerning Selsky in the case at bar is that he affirmed the disposition of plaintiff's administrative segregation hearing, pursuant to which plaintiff was confined to SHU.... That is not enough to establish Selsky's personal involvement."); Ramsey v. Goord, No. 05-CV-47A, 2005 WL 2000144, at *6 (W.D.N.Y. Aug. 13, 2005) ("[t]he fact that Commissioner Goord and SHU Director Selsky, as officials in the DOCS chain of command, ' affirmed defendant Ryerson's determination on appeal is not enough to establish personal involvement of their part.");[9] see also Odom v. Calero, No. 06 Civ. 15527, 2008 WL 2735868, at *7 (S.D.N.Y. Jul. 10, 2008) (concluding that a due process violation is complete upon the hearing officer rendering a decision, even when the liberty interest deprivation persists, and therefore is not "ongoing" when an appeal is taken to Donald Selsky).

*6 On the other hand, other courts have found that the act of reviewing and affirming a determination on appeal can provide a sufficient basis to find the necessary personal involvement of a supervisory employee like defendant Selksy. See, e.g., Bennett v. Fischer, No. 9:09-CV-1236, 2010 WL 5525368 (N.D.N.Y. Aug 17, 2010) (Peebles, M.J.) (finding questions of fact regarding Commissioner Fischer's personal involvement in disciplinary precluding summary judgment), Report and Recommendation Adopted, 2011 WL 13826 (N.D.N.Y. Jan. 4, 2011) (Scullin, S. J.); Baez v. Harris, No. 9:01-CV-807, 2007 WL 446015, at *2 (N.D.N.Y. Feb. 7, 2007) (Mordue, C.J.) (fact that defendant Selsky responds personally to all disciplinary appeals by inmates found sufficient to withstand summary judgment motion based on lack of personal involvement); Cepeda v. Coughlin, 785 F.Supp. 385, 391 (S.D.N.Y.1992) ("The Complaint alleges that [t]he Commissioner and/or his designee entertained plaintiff[]s appeal and also affirmed.'... [T]he allegation that supervisory personnel learned of alleged misconduct on appeal yet failed to correct it constitutes an allegation of personal participation. Assuming that this allegation is true, as this court must on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)..., Cepeda has pleaded personal involvement by Commissioner Coughlin sufficiently to withstand this motion.") (citations omitted); Johnson v. Coombe, 156 F.Supp.2d 273, 278 (S.D.N.Y.2001) (finding that plaintiff's complaint had sufficiently alleged personal involvement of Superintendent and Commissioner to withstand motion to dismiss because plaintiff alleged that both defendants had actual or constructive notice of the defect in the underlying hearing); Ciaprazi v. Goord, No. 9:02-CV-0915, Report-Recommendation, 2005 WL 3531464, at *16 (N.D.N.Y. Mar. 14, 2004) (Peebles, M.J.) (recommending that Selsky's motion for summary judgment for lack of personal involvement be denied because Selsky's review of plaintiff's disciplinary hearing appeal "sufficiently establishes his personal involvement in any alleged due process violations based upon his being positioned to discern and remedy the ongoing effects of any such violations."), adopted, 2005 WL 3531464, at *1-2 (N.D.N.Y. Dec. 22, 2005) (Sharpe, J.).

In support of his argument regarding personal involvement defendant cites Tafari v. McCarthy, 714 F.Supp.2d 317 (N.D.N.Y. My 24, 2010), in which another magistrate judge of this court, in a report and recommendation adopted by the assigned district judge, wrote that "[t]he affirming of a disciplinary conviction does not constitute personal involvement in a constitutional violation." Tafari, 714 F.Supp.2d at 383. (citing Joyner v. Greiner, 195 F.Supp.2d 500, 506 (S.D.N.Y.2002)). I respectfully disagree with my esteemed colleague and maintain that the cases holding that Selsky's affirmance, or that of someone in his corresponding position, of a constitutionally defective disciplinary determination at a time when the inmate is still serving his or her disciplinary sentence, and the violation can therefore be abated, falls within the Colon factors articulated in the Second Circuit for informing the supervisory liability analysis. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). In any event, this case is distinguishable from Tafari since here plaintiff has alleged that through his own conduct in inadequately reviewing the underlying determination defendant Selsky committed a due process violation, see Amended Complaint (Dkt. No. 7) ¶ 21, thereby satisfying the Supreme Court's admonition that a defendant can only be held liable for his or own conduct for purposes of a civil rights violation. Iqbal, 129 S.Ct. at 1948.

*7 As I noted in my prior report, I believe that those cases concluding that a plaintiff's allegation that defendant Selsky reviewed and upheld an allegedly constitutionally suspect disciplinary determination is enough to show his personal involvement in the alleged violation appear to be both better reasoned and more consonant with the Second Circuit's position regarding personal involvement. See Black v. Coughlin, 76 F.3d 72, 75 (2d Cir.1996) (criticizing a district court's denial of leave to amend to add Donald Selsky as a defendant in a due process setting and appearing to assume that Selsky's role in reviewing and affirming a disciplinary determination is sufficient to establish his personal involvement). While it may be true that the due process violations cited by Rodriguez occurred and were no longer ongoing when his appeal was taken to defendant Selsky, because it appears that the sentence imposed was still being served at the time of his review, the liberty interest deprivation allegedly effectuated without due process was therefore ongoing, and defendant Selsky was in a position to remedy the violation, at least in part, at a time when his intervention would still have been meaningful.

C. Merits of Plaintiff's Due Process Claim

To successfully state a claim under 42 U.S.C. § 1983 for the denial of procedural due process arising out of a disciplinary hearing, a plaintiff must show that he or she 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) (citations omitted); Hynes, 143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). Defendant concedes that plaintiff's eight months of SHU disciplinary confinement "at least arguably" impacted a protected liberty interest, see Defendant's Memorandum (Dkt. No. 62-14) at p. 3, and I agree. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000) (finding that disciplinary confinement for a period of 305 days is "a sufficient departure from the ordinary incidents of prison life to require procedurally due process protections."). Plaintiff's claim, then, boils down to whether he was provided the procedural safeguards guaranteed under the Fourteenth Amendment prior to that deprivation.[10]

The procedural rights to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well-established, the contours of the requisite protections having been articulated in Wolff v. McDonnell, 418 U.S. 539, 564-67, 94 S.Ct. 2963, 2978-80 (1974).[11] Under Wolff, the constitutionally mandated due process requirements include 1) written notice of the charges; 2) the opportunity to appear at a disciplinary hearing and present witnesses and evidence, subject to legitimate safety and penological concerns; 3) a written statement by the hearing officer explaining his or her decision and the reasons for the action being taken; and 4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564-67, 94 S.Ct. at 2978-80; see also Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir.1988). In addition, to pass muster under the Fourteenth Amendment the hearing officer's disciplinary determination must garner the support of at least "some evidence". Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768 (1985).

1. Notice of Charges

*8 The record now before the court, when interpreted in a light most favorable to the plaintiff, suggests that while the second of the two MBRs addressed at plaintiff's disciplinary hearing was served on Rodriguez on January 2, 2004, the earlier report was not received by him until the date on which the hearing was to begin.[12] Under Woljf, an accused inmate is entitled to meaningful advance written notice of the charges against him; in this circuit, a minimum of twenty-four hours of advance notice is generally considered to be required. Sira v. Morten, 380 F.3d 57, 70 (2d Cir.2004). The purpose of the notice requirement is to place the inmate on notice of the charges faced in order to permit the preparation of an adequate defense. Id . (citing Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir.2001); see also Martin v. Mitchell, No. 92-CV-716, 1995 WL 760651, at *2 (N.D.N.Y. Nov. 24, 1995) (McAvoy, J.) (citing Wolff, 418 U.S. at 564, 94 S.Ct. at 2978) (holding that the purpose of the twenty-four hour notice rule is to provide inmates with sufficient time to prepare a defense, "not to hold hearing officers to a rigid and useless requirement that they only may call an inmate into a hearing room once they are positive that the inmate received a copy of the misbehavior report at least twenty-four hours earlier").

In this instance, any failure on the part of prison officials to provide plaintiff with notice of the charges lodged against him prior to the scheduled hearing was harmless in light of the hearing officer's agreement to adjourn the hearing, initially from January 7, 2004 to January 8, 2004, and then again to January 13, 2004, in order to allow the Rodriguez to prepare his defense. The record clearly reflects that, during those intervening periods, he was afforded the opportunity to prepare a defense to both charges before any testimony was taken. See Plaintiff's Memorandum (Dkt. No. 68-1) at p. 5 (admitting that plaintiff was served with the first misbehavior report at the hearing prior to any testimony having been taken).

The notice requirements of Wolff were therefore satisfied in this case, and no reasonable factfinder could conclude otherwise.

2. Assistance in Preparation of a Defense

Under Wolff and its progeny, a prisoner is entitled to an "employee assistant" to aid in the preparation for a disciplinary hearing when the inmate is illiterate, confined to the SHU, or unable to grasp the complexity of the issues involved. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993); see also Eng, 858 F.2d at 897. The Supreme Court has made it clear, however, that the assistance due prisoners is limited and is not equivalent of the right of a criminally accused legal counsel. Wolff, 418 U.S. at 570, 94 S.Ct. at 2981. An assistant is only required to act as the inmate's "surrogate -to do what the inmate would have done were he able. " Silva, 992 F.2d at 22 ("The assistant is not obliged to go beyond the specific instructions of the inmate because if he did so he would then be acting as counsel.")

*9 Because Rodriguez had been relegated to SHU confinement by the time of the disciplinary hearing he was entitled to and was in fact assigned an employee assistant, Ms. Roddy, to help him prepare for the hearing. Rodriguez asserts that the assistant, however, refused to provide him with requested documents and threatened to "write him up" if he requested further assistance. Plaintiff's Memorandum (Dkt. No. 68-1) at pp. 14-17. Specifically, plaintiff claims that he was refused access to documents that would have helped prove his innocence, including a list of officers involved in the incidents involved, letters written by another inmate, video footage of a different inmate being led to the SHU, all misbehavior reports concerning other inmates' involvement in the incidents, and all pertinent "To/From" memoranda produced by staff or inmates with knowledge of the relevant events. Id. at p. 15.

A careful review of the assistant forms and attachments in the record shows that the assigned assistant fulfilled her duty as plaintiff's surrogate. Plaintiff provided several lists of documents requested to prepare his defense.[13] Selsky Decl., Exh. A (Dkt. No. 62-4) pp. 46-49, 54-61. Ms. Roddy indicated on the assistant form that she pursued all of plaintiff's requests and provided him with at least twenty pages of documents. Id. at pp. 17-18. On the handwritten lists, Ms. Roddy noted which documents were provided to plaintiff and gave brief explanations as to why some of the requested documents could not be produced. It was noted, for example, that plaintiff was denied access to the handwritten notes of another inmate, several requested "To/From" forms simply did not exist, and that the video footage would be available for viewing at the hearing if deemed pertinent to the pending charges. Id. at pp. 46-49.

There is no indication that any documents were withheld from plaintiff without justification or as a result of Ms. Roddy's ineffective assistance. Ms. Roddy's role as plaintiff's assistant was limited to acting as his surrogate; if he was not permitted to receive certain documents, Ms. Roddy likewise could not access them. Even assuming plaintiff's claim that Ms. Roddy was rude and hostile toward him is accurate, such conduct in and of itself does not violate his federal due process rights. See Gates v. Selsky, No. 02 CV 496, 2005 WL 2136914, at * 7 (W.D.N.Y. Sept. 02, 2005) (noting that the duty owed by an employee assistant is the provision of requested services in good faith and in the best interest of the inmate and to perform as instructed by the inmate). In short, there is no evidence now before the court from which a reasonable factfinder could conclude that plaintiff was denied effective assistance in preparing his defense to the pending disciplinary charges.

3. Opportunity to Present Evidence

The due process clause of the Fourteenth Amendment plainly guarantees the right of an accused inmate to present a defense to disciplinary charges. Wolff, 418 U.S. at 555-56, 94 S.Ct. at 2974. That right, however, is not unfettered and does not apply to the same extent as the constitutional guarantee to a criminally accused defendant of the right to present a meaningful defense. Hernandez v. Selsky, 572 F.Supp.2d 446, 454 (S.D.N.Y.2008) (citing Wolff ). Instead, in order to keep a disciplinary hearing to within reasonable limits, a hearing officer "must have the necessary discretion... to refuse to all witnesses that may create a risk of reprisal or undermine authority" Wolff, 418 U.S. at 566, 94 S.Ct. at 2980.

*10 An inmate's request to have specific witnesses called to testify may be refused if the hearing officer reasonably finds that such witnesses' testimony would be duplicative, non-probative, or would interfere with correctional goals. See Russell v. Selsky, 35 F.3d 55, 58 (2d Cir.1994)."[A] hearing officer does not violate due process by excluding irrelevant or unnecessary testimony." Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir.1999).

In support of his claim that he was denied the opportunity to present a meaningful defense plaintiff first points to the hearing officer's refusal to allow him to call his mother and attorney as witnesses. According to the plaintiff, both would have substantiated his claim of retaliatory motives on the part of correctional officials. Plaintiff's Memorandum (Dkt. No. 68-1) at p. 8; see also Selsky Decl., Exh. B (Dkt. No. 62-6) pp. 98-99. Neither witness, however, was present in the prison during any of the events giving rise to plaintiffs claims. The only testimony those individuals could have offered would not only have been hearsay, but would have come directly from Rodriguez himself, who was present to testify. Accordingly, the hearing officer properly determined that such testimony would have been irrelevant or unnecessarily redundant.

Plaintiff also challenges the hearing officer's failure to submit written questions to two fellow inmates who refused to testify at the hearing. Despite plaintiff's claim to the contrary, a hearing officer is under no affirmative duty to compel a response from an inmate who refuses to testify at a disciplinary hearing. If a witness has indicated that he or she will not testify if called, it would be futile and unnecessary to pursue his or her testimony further. Silva, 992 F.2d at 22; see also Johnson v. Doling, No. 9:05-CV-376, 2007 WL 3046701, at *7 (N.D.N.Y. Oct. 17, 2007) (McAvoy, J. and Treece, M.J.) (the failure to summon the testimony of a witness who refuses to testify does not violate due process); Dumpson v. Rourke, No. CIVA96CV621, 1997 WL 610652, at *5 (N.D.N.Y. Sept. 26, 1997) (Pooler, J. and DiBianco, M.J.) (a hearing officer's failure to investigate why an inmate refused to testify does not constitute a due process violation). Here, inmates Colon and Berrios flatly refused to testify at plaintiff's disciplinary hearing, signing the appropriate refusal forms on January 14, 2004. Selsky Decl., Exh. A (Dkt. No. 62-4) pp. 110-11. Colon explained his refusal by noting that he had not witnessed the incident, and Berrios likewise claimed to have no relevant information because he was sleeping in his cell at the relevant times. Id. Requesting further information from these inmates would have been futile and unnecessary since they claimed not to have actually witnessed the events that led to Rodriguez's charges. It was therefore not a violation of plaintiff's due process rights for the hearing officer to refuse to inquire further into their involvement.

4. Impartial Hearing Officer

*11 Among the due process dictates arising under the Fourteenth Amendment is the requirement that a hearing officer assigned to address a disciplinary charge against an inmate be unbiased. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996); see also Davidson v. Capuano, No. 78 Civ. 5724, 1988 WL 68189, at *8 (S.D.N.Y. June 16, 1988) (citing McCann v. Coughlin, 698 F.2d 112, 122 n. 10 (2d Cir.1983)). While the reality is that most hearing officers serving in that capacity are prison officials, and a prison hearing officer's impartiality generally does not have to mirror that of judicial officers, nonetheless the result of a disciplinary hearing should not be "arbitrary and adversely predetermined." Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989). Here again, the inquiry focuses on whether plaintiff was afforded basic due process. See Wright v. Conway, 584 F.Supp.2d 604, 609 (W.D.N.Y.2009). Within that context, an impartial hearing officer is one who "does not prejudge the evidence and who cannot say... how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir.1990).

It should be noted that a plaintiff's disagreement with a hearing officer's rulings alone does not give rise to a finding of bias. See Johnson, 2007 WL 3046701, at *10 (hostile exchanges between plaintiff and the hearing officer throughout the proceeding and adverse rulings did not constitute bias where plaintiff was otherwise provided the opportunity to testify, call witnesses, and raise objections). Similarly, the mere involvement of a hearing officer in related investigations or proceedings does not evidence bias. See Vega v. Artus, 610 F.Supp.2d 185, 200 (N.D.N.Y.2009) (failing to find bias where the hearing officer conducted both the disciplinary proceeding and the investigation into the inmate's grievance against the involved corrections officer). Because prison officials serving as adjudicators enjoy a rebuttable presumption that they are unbiased, Allen, 100 F.3d at 259, plaintiff's conclusory allegations of bias in this case are insufficient to overcome this presumption. Plaintiff claims that Hearing Officer Ewanciw was biased because he sought assistance from Lt. Wright, who authored one of the two MBRs in issue. Plaintiff's Memorandum (Dkt. No. 68-1) at pp. 18-20. However, Rodriguez fails to explain how this evidences bias against him, reflects a predetermination on the hearing officer's part, or impacted the outcome of the proceeding. The record reflects that the hearing officer disclosed to the plaintiff that he had consulted with Lt. Wright, the "disciplinary lieutenant, " for the purpose of ascertaining whether plaintiff was permitted to receive copies of redacted investigation documents. Selsky Decl., Exh. B (Dkt. No. 62-5) p. 130.

During the hearing plaintiff suggested that the hearing officer and Lt. Wright are friends outside of work. Selsky Decl., Exh. B (Dkt. No. 62-5) pp. 131-32. While the allegation denied by Hearing Officer Ewanciew, even if true this fact does not show that he was predisposed to rule against plaintiff.

*12 In sum, plaintiff has failed to adduce evidence from which a reasonable factfinder could conclude that the hearing officer assigned to preside over plaintiff's disciplinary hearing was biased, or had prejudged plaintiff's guilt prior to considering the evidence presented at the hearing.

5. Determination Supported by "Some Evidence"

In addition to repeated verbal explanations of his rulings throughout the hearing and of his ultimate findings, Hearing Officer Ewanciw provided plaintiff with a written explanation of the evidence relied upon in reaching his conclusion. Selksy Decl., Exh. A (Dkt. No. 62-4) pp. 3-4. In his written explanation, Hearing Ewanciw acknowledged that he relied in part on information from confidential witnesses. Selksy Decl., Exh. A (Dkt. No. 62-4) p. 4. The question next presented is whether these findings were supported by at least some credible evidence.

The "some evidence" standard is extremely tolerant and is satisfied if "there is any evidence in the record that supports" the disciplinary ruling. Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir.2000). Nonetheless to pass constitute muster, the supporting evidence must be reliable. Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir.2001). The Second Circuit has made clear that "the reliability of evidence is always properly assessed by reference to the totality of the circumstances and that an informant's record for reliability cannot, by itself, establish the reliability of bald conclusions or third-party hearsay. " Sira, 380 F.3d at 82; see also Dawkins v. Gonyea, 646 F.Supp.2d 594, 614 (S.D.N.Y.2009) (" Sira clearly established that an independent assessment is necessary to satisfy the some evidence' standard when a disciplinary decision is based solely on confidential information.").

The hearing transcript reflects that the hearing officer did not make an independent inquiry into the reliability of the confidential inmate witnesses himself, but instead relied on Lt. Wright's independent finding of reliability. Selsky Decl., Exh. B (Dkt. No. 62-5) p. 128. Had the disciplinary decision been based solely on such confidential information, an issue of material fact might have been presented as to whether the "some evidence" standard was met. With defendant Selsky's reversal of plaintiff's conviction on the demonstration charge contained within the January 2, 2004 MBR, the remaining charges for which he was found guilty included fighting, refusing a direct order, and violent conduct. To support his finding of guilt on those counts Hearing Officer Ewanciw relied on a correctional officer's assertion that he witnessed plaintiff raise his fists, throw punches, and fail to stop fighting when instructed to do so-an account that was corroborated by another officer's investigation-as well as the results of an investigation into the incident and evidence found in plaintiff's cell tying him to the relevant events. There was therefore sufficient reliable evidence on which to base a disciplinary decision related to the charges, independent of the confidential witness statements, and no reasonable factfinder could conclude otherwise.

IV. SUMMARY AND RECOMMENDATION

*13 Plaintiff has failed to establish the existence of a genuine issue of material fact regarding his procedural due process claim. Rodriguez received sufficient notice of the charges against him as well as adequate assistance in preparing a defense, and had ample opportunity to appear, call witnesses, and present evidence in his defense. In addition, the record fails to disclose any basis for concluding that Hearing Officer Ewanciw was biased, and the record before the court proves that he provided plaintiff with a written explanation of the reasons for his decision, which was supported by at least some reliable evidence. I therefore recommend dismissal of plaintiff's due process claim against defendant Selsky on the merits, and in light of this recommendation find it unnecessary to address defendant's claim of qualified immunity. It is therefore respectfully RECOMMENDED, that defendant's motion for summary judgment (Dkt. No. 62) be GRANTED, and that the complaint be DISMISSED in its entirety.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

United States District Court, N.D. New York. Marc LEWIS, Plaintiff, v. J. JOHNSON, et al., Defendants. No. 9:08-CV-482 (TJM/ATB). | Aug. 5, 2010.

Marc Lewis, pro se.

Christina L. Roberts-Ryba, Asst. Attorney General, for Defendants.

Opinion

REPORT-RECOMMENDATION

ANDREW T. BAXTER, United States Magistrate Judge.

*1 This matter was referred by Senior U.S. District Judge Thomas J. McAvoy, for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). The case was transferred to me on January 4, 2010, following the retirement of U.S. Magistrate Judge Gustave J. Di Bianco. (Dkt. No. 125).

While an inmate in the custody of the Department of Correctional Services ("DOCS"), plaintiff filed his complaint, pursuant to 42 U.S.C. § 1983, regarding incidents that occurred during his incarceration at Franklin Correctional Facility ("Franklin") and Upstate Correctional Facility ("Upstate"). Liberally construed, plaintiff's amended complaint[1] (Dkt. No. 40) makes several claims against 14 defendants[2] relating to events in 2006 and 2007. He alleges that, in retaliation for his filing of a letter complaining of an assault of another inmate by correction officers at Franklin on or about June 15, 2006, defendant Johnson filed a false misbehavior report against plaintiff, and defendant Gardner made inflammatory statements regarding plaintiff to other staff, prompting further acts of retaliation.[3] Plaintiff claims that defendants Secore and Favro violated his Eighth Amendment rights by assaulting him on June 19, 2006, and that defendant Norcross failed to intervene. He also alleges that he was a victim of another unconstitutional assault on June 24, 2006, by defendant Reardon and other unnamed officers. Plaintiff claims that, over the following days and weeks, nurses Davenport, Volpe, Walsh, and Chesbrough, and physician assistant ("PA") Tichenor all denied him constitutionally-adequate medical care, by failing to properly treat him for the various injuries he suffered as a result of the two "assaults." He states that defendant Demars violated his due process rights, while presiding at the disciplinary hearing on the charges brought by defendant Johnson, which resulted in plaintiff's confinement in a Special Housing Unit ("SHU") until the charges were reversed by DOCS in June 2007. Finally, plaintiff suggests that defendants McCasland and Hoffnagle violated plaintiff's First Amendment rights by improperly handling his legal mail in January 2007. Plaintiff seeks substantial monetary damages from the defendants.

Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 110). Plaintiff has responded in opposition to the motion. (Dkt. Nos. 123, 124). Defendants filed a reply (Dkt. No. 128), and plaintiff submitted a sur-reply (Dkt. Nos. 129, 130). For the following reasons, this court recommends that defendants' motion be granted in part and denied in part. I particular, this court recommends that summary judgment be denied with respect to the Eighth Amendment excessive force or failure-to-intervene claims against defendants Secore, Favro, Norcross, and Reardon. Dismissal is recommended with respect to the plaintiff's other causes of action.

DISCUSSION

I. Facts

*2 Plaintiff authored and signed a letter dated June 15, 2006, complaining to the Superintendent of Franklin and other DOCS officials about the alleged assault of another inmate by at least four correction officers that evening. (Pl.'s Decl., Ex. A, Dkt. No. 124-3). Plaintiff spoke to the Superintendent in the mess hall about the letter on Saturday, June 17th, and the Superintendent said he would look for the letter and get back to the plaintiff. (Pl.'s Deposition ("Dep.") at 18-19, Dkt. No. 110-3). The letter was stamped as received in the administrative office at Franklin, on June 20, 2006 at 12:42 p.m. (Pl.'s Decl., Ex. A).

A. The Misbehavior Report Filed by Defendant Johnson

On June 19, 2006, the administration at Franklin received a number of anonymous notes from inmates indicating that violence toward the facility staff was imminent because of prior staff actions involving inmates. Defendant Johnson, who was assigned to investigate these letters, was advised that the plaintiff had approached the Superintendent with "similar concerns" on June 17th. Lt. Johnson obtained samples of plaintiff's handwriting from his guidance folder and compared them to the anonymous, threatening notes. (Johnson Decl. ¶ 5, Dkt. No. 110-8).[4] He concluded that plaintiff's known handwriting was similar to the writing on four of the anonymous letters, including one of the most threatening ones. (Id. ¶¶ 5, 6). Based on that and other investigation conducted by several officers, Lt. Johnson filed a misbehavior report on June 19th, accusing plaintiff of authoring some of the threatening letters. ( Id. ¶ 6 & Ex. A, Dkt. No. 110-8 at 6). He directed that plaintiff be confined in the SHU pending the disciplinary hearing (Id., Ex. A), which is permitted by DOCS directives governing inmate discipline (DOCS Directive 4932, Parts 251-1.6 & 251-1.7, Id., Ex. C, Dkt. No. 110-8 at 21-22).

A disciplinary hearing regarding these charges, for which defendant Demars served as the hearing officer, was conducted over several days. Plaintiff and several other witnesses, including Lt. Johnson and the Franklin Superintendent testified. (Disc. Hearing Transcript at 1-67). Plaintiff was found guilty of the charges and was sentenced, on July 5, 2006, to serve nine months in SHU with corresponding loss of privileges. (Disc. Hearing Transcript at 66; Pl.'s Decl., Ex. B, Dkt. No. 124-4 at 4). After various levels of appeal and review, the guilty disposition was administratively reversed by DOCS on June 19, 2007 because the hearing officer (defendant Demars) did not conduct an independent review of the handwriting comparisons about which Lt. Johnson testified. (Pl.'s Decl., Ex. B, Dkt. No. 124-4 at 6, 13).[5] On or about July 2, 2007, plaintiff was ordered released from the SHU at Upstate. (Id., Dkt. No. 124-4 at 14).

B. The First "Assault" on June 19, 2005

Plaintiff alleges that defendant Gardner, then a sergeant at Franklin, was involved in plaintiff's transfer to the SHU on June 19, 2005, following the filing of the disciplinary charges relating to the threat letters. (Amended Complaint ("AC"), Statement of Facts, ¶¶ 3-4, Dkt. No. 40 at 9-10;[6] Gardner Decl. ¶¶ 2-7, Dkt. No. 110-10). Plaintiff alleges that, during the transfer, Sgt. Gardner told defendants Secore and Favro that the plaintiff "needed to be taught the policies and procedures of the Franklin Correctional Facility because the plaintiff liked to make threats at correctional staff and write them up."[7] (AC ¶ 4).

*3 Plaintiff claims that defendants Secore and Favro then escorted him into the main foyer of the SHU where they struck him on the back of the head and on the jaw. (AC ¶¶ 6-8). Plaintiff alleges these two plaintiffs then dragged him into the "strip frisk room" where these two correction officers tripped plaintiff and then repeatedly punched and kicked him while he was handcuffed on the floor. (AC ¶¶ 9-10). Plaintiff claims further that defendant Norcross was in the strip frisk room while this assault was going on, and failed to intervene. (AC ¶¶ 11). While there are some minor discrepancies in their accounts, defendants Secore, Favro, and Norcross all state that, during the strip frisk procedure at the SHU, plaintiff raised a fist and then struggled when the officers moved to restrain him. The officers assert that they used the minimum force necessary to bring plaintiff under control, and that he was not "assaulted." (Secore Decl., Dkt. No. 110-11; Favro Decl., Dkt. No. 110-12; Norcross Decl., Dkt. No. 110-18).[8]

Plaintiff claims that, as a result of the assault, he suffered injuries to his rib cage and a dislocated jaw. He alleges that, in the hours and days following the incident, Nurse Davenport and Nurse Volpe refused to examine him and treat his injuries. (AC ¶¶ 13-17). Both nurses state that they spoke with and examined plaintiff between June 19 and 22, and found no evidence that he was injured. (Davenport Decl., Dkt. No. 110-19; Volpe Decl., Dkt. No. 110-14). The nurses completed an Inmate Injury Report and/or medical records, which documented their examinations of plaintiff. (Id.; Secore Decl., Ex. B, Dkt. No. 110-11 at 8, 15, 18-19, 22-25; Medical Records[9] at 34-36). Plaintiff claims that these records were fabricated and false. (AC ¶ 15; Pl.'s Decl., Dkt. No. 124-2 at 4-6).

C. The Second "Assault" on June 24, 2005

Plaintiff alleges that, on June 24, 2005, defendant Reardon assaulted him in his cell in the presence of other unnamed correction officers. Plaintiff alleges that defendant Reardon "took the plaintiffs [sic] left arm and pulled all the way back into a 90 ° degree angle while having him in a body lock..." (AC ¶ 20). Plaintiff claims that, as a result of this assault, he suffered a torn tendon to his left armpit. (AC ¶ 23).

Officer Reardon acknowledged having contact with plaintiff in the Franklin SHU on June 20 and 24, 2006; he issued inmate misbehavior reports against the plaintiff on both dates. (Reardon Decl. ¶¶ 3-4, 10-12, Dkt. No. 110-13). Defendant Reardon denies assaulting plaintiff and notes that, on June 29th, at the disciplinary hearing regarding the June 20th misbehavior report, plaintiff said nothing about the alleged assault five days earlier. (Id. ¶¶ 5-8, 14). Plaintiff did, however, complain of the alleged assault in a grievance dated June 25th. (Pl.'s Decl., Ex. C, Dkt. No. 124-5 at 39-41). As a result of the grievance, plaintiff was eventually transferred to the SHU at Upstate. (Id.).

D. Further Issues Regarding Medical Treatment

*4 Plaintiff claims that, upon his admission to Upstate on July 12, 2006, Nurse Walsh refused to examine plaintiff for injuries relating to the two prior assaults, advising him to request sick call. He alleges further that Nurse Chesbrough refused to provide him with treatment the next day because this defendant thought the plaintiff was lying about not being treated earlier at Franklin. (AC ¶¶ 23-24). After reviewing the relevant medical records, defendants Walsh and Chesbrough both concluded that Nurse Chesbrough examined plaintiff both on July 12th and 13th, and concluded that he had no apparent medical problems. (Walsh Decl. ¶¶ 6-7, Dkt. No. 110-15; Chesbrough Decl. ¶¶ 6-9, Dkt. No. 110-16).

Plaintiff also complains that PA Tichenor examined him several months after the alleged assaults, mis-diagnosed his left arm injury, and refused to examine his rib cage and jaw despite claims of continuing pain in those areas. (AC ¶ 25). Based on her review of plaintiff's medical records, defendant Tichenor stated that she examined and treated plaintiff conservatively for various medical conditions, including back and shoulder pain, on September 6, 2006 and several times thereafter. (Tichenor Decl., ¶¶ 6-11, Dkt. No. 110-17).

E. Issues Regarding Legal Mail

Plaintiff alleges that, on January 22 and 23, 2007, defendants McCasland and Hoffnagle attempted to deliver two pieces of legal mail that had been opened outside of plaintiff's presence, contrary to DOCS procedures. Plaintiff refused to accept the opened mail on two occasions, and claims that defendant Hoffnagle then lost or destroyed the two parcels, which should have been returned to the sender. (Dep. 66-71, AC ¶¶ 31-33). Plaintiff does not document that he was prejudiced in any particular legal proceedings as a result of the alleged mishandling of his mail.

Defendant McCasland stated that he opened the two parcels of legal mail in plaintiff's presence on January 22nd, but that plaintiff refused the mail because he was upset that another parcel was returned to plaintiff for insufficient postage. (McCasland Decl. ¶¶ 6-9, Dkt. No. 110-20). Defendant Hoffnagle states that, when plaintiff refused the two open parcels the next day, he returned them to the mail room. (Hoffnagle Decl., ¶¶ 4-10, Dkt. No. 110-21). Based on a grievance filed by plaintiff, DOCS found no evidence that the defendants mishandled plaintiff's legal mail, although one report found that the mail officers did not properly document their handling of the parcels. (McCasland Decl., Ex. B, Dkt. No. 110-20 at 44).

II. Summary Judgment-Legal Standards

Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006)."Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).

*5 The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. Salahuddin v. Goord, 467 F.3d at 273. In that context, 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, 586 (1986).

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); Salahuddin v. Goord, 467 F.3d at 272. "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (citing, inter alia, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (a court is to read a pro se party's "supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest")). "However, a pro se party's "bald assertion, " completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)). 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 review 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. Excessive Force/Failure to Intervene

A. Legal Standards

1. Eighth Amendment-Excessive Force

Inmates enjoy Eighth Amendment protection against the use of excessive force, and may recover damages under 42 U.S.C. § 1983 for a violation of those rights. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000). To sustain a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).

In order to satisfy the objective element of the constitutional standard for excessive force, the defendants' conduct must be "inconsistent with the contemporary standards of decency.' " Whitely v. Alters, 475 U.S. 312, 327 (1986) (citation omitted); Hudson, 503 U.S. at 9. "[T]he malicious use of force to cause harm constitute[s][an] Eighth Amendment violation per se [, ]" regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).

*6 The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted). The wantonness inquiry "turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider: the extent of the injury and the mental state of the defendant; the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003).

2. Failure to Intervene

A correction officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate. See, e.g., Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. March 15, 2010); Tafari v. McCarthy, No. 9:07-CV654 (DNH/GHL), 2010 WL 2044705, at*8 (N.D.N.Y. May 24, 2010).[10] A law enforcement official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officers in his or her presence. Id. [11] In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Id. ; Jean-Laurentv. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y.2008) (citation omitted).

B. Application

Plaintiff has adequately alleged that the named correction officers either participated in, or were present for and failed to intervene in, the application of excessive force. While plaintiff's excessive force claims have weak evidentiary support, he has established that there are genuine issues of material fact that should be resolved by a jury.

1. The "Assault" on June 19, 2010

Defendants Secore and Favro admittedly used force to subdue plaintiff on June 19, 2010. In his amended complaint (Dkt. No. 40), deposition (Dep. at 31-38, and pleadings in opposition to the summary judgment motion, plaintiff consistently alleged details of an assault which, if believed, would amount to a "malicious use of force to cause harm" that constitutes a per se Eighth Amendment violation regardless of the seriousness of his injuries. Blyden, 186 F.3d at 263. Plaintiff claims he was struck in the head or face by each defendant, dragged to another room, tripped, and repeatedly punched and kicked while he was lying handcuffed on the floor. Although plaintiff admits that he kicked at the correction officers to try to defend himself from their blows once he was on the floor (Dep. at 33-34), this did not justify the alleged prior application of excessive force. As described by plaintiff, the incident involved more than an de minimis use of force and a malicious and wanton attempt to cause harm. Sims, 230 F.3d at 22; Hudson, 503 U.S. at 7.

*7 The correction officers and Sgt. Norcross all vehemently deny that more than the minimum amount of force required to restrain the plaintiff was used, and the medical evidence does not corroborate plaintiff's claims of significant injuries to his rib cage and jaw.[12] However, given that issues of credibility should not be resolved on a summary judgment motion, this court cannot conclude that no rational juror could find that defendants Secore and Favro violated plaintiff's Eighth Amendment rights on June 19, 2006. See, e.g., Griffin v. Crippen, 193 F.3d 89, 90-92 (2d Cir.1999) (although plaintiff could offer only his own testimony and evidence of a bruised shin and a swollen left knee in support of his excessive force claim, dismissal was inappropriate because there were genuine issues of material fact concerning whether correction officers, whom plaintiff admittedly assaulted, maliciously used force against him after he was subdued and handcuffed); Sims v. Artuz, 103 Fed.Appx. 434, 437 (2d Cir.2004) (plaintiff's allegations that he was kicked and punched while being removed from his cell after causing a disruption, corroborated in part by documented minor injuries, [13] were sufficient to withstand a summary judgement motion); Dallio v. Sanatamore , 9:06-CV-1154 (GTS/DRH), 2010 WL 125774, at *9 (N.D.N.Y. Jan. 7, 2010) (because the court should not weigh the evidence or make credibility determinations, summary judgment would be denied where plaintiff alleged that he was repeatedly kicked and punched after he was subdued and restrained by correction officers, notwithstanding the relatively minor injuries the plaintiff suffered and the substantial contrary evidence proffered by the defendants); Cicio v. Lamora, 9:08-CV-431 (GLS/DEP), 2010 WL 1063875, at *7-8 (N.D.N.Y. Feb. 24, 2010) (denying summary judgment on plaintiff's claim that defendant correction officer hit inmate several times after he was subdued and helpless, despite "seemingly overwhelming" contradictory evidence, including the fact that plaintiff suffered only a minor bruise).

Plaintiff alleges that he saw that Sgt. Norcross was present while he was being kicked and punched on the floor of the strip frisk room and told plaintiff to "calm down." (Dep. at 36-38). Defendant Norcross admits he was in the room with plaintiff and defendants Secore and Favro, although he denies that any excessive force was applied. (Norcross Decl. ¶¶ 4-9, Dkt. No. 110-18). Given plaintiff's allegations about the nature and duration of the beating he received while in Sgt. Norcross's presence, it would have been clear to this defendant that excessive force was being applied, and he would have had an opportunity to intervene to stop the assault by his subordinates. While there are obviously issues of credibility that may ultimately be resolved against the plaintiff, he has established that there are issues of fact regarding defendant Norcross's culpability that should be addressed at trial.

*8 To the extent that plaintiff is alleging that defendants Gardner and Davenport were personally involved in the application of excessive force by defendants Secore and Favro, this court recommends dismissal of those claims.[14] Neither defendant was present during the alleged assault and thus did not have a realistic opportunity to intervene. There is no allegation that Nurse Davenport had any reason to anticipate the alleged assault, or any knowledge of the incident until it was over. In any event, she lacked the authority to intervene while correction officers were using force on an inmate, even if she were present.[15]

Even if then Sgt. Gardner made the comment to defendants Secore and Favro that plaintiff "needed to be taught the policies and procedures" of the facility "because plaintiff likes to make threats at correctional staff, " that alone would not suggest the state of mind required to establish his responsibility, under the Eighth Amendment, for a subsequent assault by the other correction officers. Cf. Bouknight v. Shaw, 08 Civ. 5187, 2009 WL 969932, at *5 (S.D.N.Y. Apr. 6, 2009) (to establish officer's liability, under Section 1983, for the assault of plaintiff by other inmates, plaintiff needed to allege more than the fact that the officer spread rumors that plaintiff was a "snitch" and a homosexual; plaintiff needed to allege facts establishing that the officer intended to incite an assault or knowingly disregarded that he had created an environment that generated a significant risk of harm).[16] A comment that plaintiff needed to be taught the rules of the prison, as he was being transported to the SHU because of a disciplinary charge, is subject to a completely benign interpretation. Plaintiff's bare allegation that defendant Gardner made that statement does not establish a viable cause of action that Gardner induced the other defendants to commit assault.

2. The "Assault" on June 24, 2006

Plaintiff alleges that, during a cell search on June 24, 2006, defendant Reardon pulled plaintiff's arm back at almost a 90 degree angle while holding him up against a wall. Plaintiff asserts that defendant Reardon was talking "tough stuff" during the incident and was either trying to break plaintiff's arm or cause him pain. (Dep. at 64). Plaintiff claims that he suffered a tear to the tendon under his left arm, which caused lasting limitations in function. (Pl.'s Memo. of Law at 24-25, Dkt. No. 124-1; Dep. at 80). Some months later, PA Tichenor diagnosed plaintiff with a left shoulder sprain and then tendinitis of the left pectoralis major tendon. (Tichenor Decl. ¶ 10; Medical Records at 27, 31). When plaintiff was examined by a prison doctor in April 2008, he detected a slight defect in plaintiff's "left bicep [?] tendon" that was, by that time, "functionally insignificant." (Medical Records at 11; Dep. at 80).

Officer Reardon admittedly interacted with plaintiff on June 24th, when he issued a misbehavior report to him, but denies that he applied any physical force. (Reardon Decl. ¶¶ 10-14). Defense counsel argues that plaintiff failed to mention the alleged assault on June 24th during a subsequent disciplinary hearing on a prior charge defendant Reardon filed on June 20th, indicating that the incident never happened. However, as noted, plaintiff filed a grievance on June 25th describing the assault. His allegations, although largely unsupported, are sufficient to create an issue of fact regarding what force, if any, defendant Reardon applied during the incident on June 24th.

*9 Defendants also argue that any use of force on plaintiff on June 24th was de minimis and not sufficient to support an Eighth Amendment claim. The alleged use of force described by plaintiff exceeded what was reasonable and necessary under the circumstances-a cell inspection with no suggestion that plaintiff physically resisted or posed any threat to the safety of the officers.[17] While the alleged use of force on plaintiff's left arm was brief, plaintiff has alleged that it was intense and caused a significant and lasting injury, for which he has provided some, albeit marginal, supporting medical documentation.[18]

Plaintiff's allegations regarding defendant Reardon's state of mind are fairly conclusory; however, he does claim that the defendant was talking "tough" under circumstances which could provoke a malicious use of force.[19] While plaintiff's claim of excessive force against defendant Reardon is very thin, this court finds that there are genuine and material issues of fact that require credibility assessments, which should not be made in the context of a summary judgment motion. See, e.g., Mitchell v. Keane, 974 F.Supp. 332, 340-41 (S.D.N.Y.1997) (allegation that officers twisted baton in the chain of the inmate's shackles, causing considerable pain, when inmate was not resisting and had been subdued, were sufficient to meet objective and subjective elements of Hudson test, so as to preclude dismissal); Rivera v. Goord, 119 F.Supp.2d 327, 342 (S.D.N.Y.2000) (finding plaintiff's allegations that defendants "pinned him against a wall, face-first, twisted his arms behind his back, and banged his face against the wall" sufficient to state a claim for excessive force); Reyes v. McGinnis, 00-CV-6352, 2003 WL 23101781, at *1, 6 (W.D.N.Y. Apr. 10, 2003) (denying summary judgment motion on excessive force claim against correction officer who, inter alia, allegedly applied handcuffs too tightly, and lifted plaintiff from the floor by his handcuffs, causing nerve damage in his wrists and a possible ganglion cyst). Cf. Robison v. Via, 821 F.2d 913, 924-25 (2d Cir.1987) (sustaining excessive force claim where the arresting officer twisted the plaintiff's arm, "yanked" her, and threw her up against a car, causing only bruising).

IV. Due Process

Plaintiff claims that defendant Demars violated his due process rights in presiding over the disciplinary hearing on the charges initiated by defendant Johnson. For the reasons set forth below, this court finds that the due process claim is not viable and that, in any event, defendant Demars would be protected by qualified immunity for his conduct as a hearing officer.

A. Applicable Law

To prevail on a procedural due process claim under section 1983, a plaintiff must show that he possessed a protected property or liberty interest and that he was deprived of that interest without being afforded sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) (liberty interest); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.1998). Due process generally requires that a state afford individuals "some kind of hearing" prior to depriving them of a liberty or property interest. DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003). Defendants apparently concede that the disposition of the most serious disciplinary charge against plaintiff, which resulted in a sentence of nine months in the SHU, implicated a liberty interest, the deprivation of which required due process safeguards.[20]

*10 In Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974), the Supreme Court held that due process requires advance notice of the charges against the inmate, and a written statement of reasons for the disposition. The inmate should also have the ability to call witnesses and present documentary evidence, subject to legitimate safety and correctional goals of the institution. Id. at 566. Finally, the inmate is entitled to a fair and impartial hearing officer, and the hearing disposition must be supported by "some" or "a modicum" of evidence. Superintendent v. Hill, 472 U.S. 445, 455 (1985) (some evidence standard); McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir.1983) (fair and impartial hearing officer). Violations of state regulations with respect to disciplinary hearings do not, by themselves, necessarily rise to the level of constitutional violations. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998) (violation of state law is not the "benchmark" for determining whether a constitutional violation has occurred); Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (state law violation does not necessarily rise to the level of a constitutional violation).[21]

An inmate's right to assistance with his disciplinary hearing is limited. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993). An assistant has been held to be constitutionally necessary in cases in which a plaintiff is confined in SHU, illiterate, or unable to grasp the complexity of the issues, and therefore, unable to marshal evidence and present a defense. Id. (citation omitted). In those cases, the assistant must do what the plaintiff would have done if he were able, but need not go beyond the inmate's instructions. Id.

B. Application

In his amended complaint and Memorandum of Law, plaintiff sets forth several ways in which he alleges that defendant Demars, the hearing officer determining whether plaintiff wrote several anonymous threatening letters, denied him due process in conducting the hearing.[22] Plaintiff alleges first that there was no evidence to support the allegations on which defendant Demars found him guilty. (AC ¶ 19). Plaintiff argues further that the hearing officer failed to make an independent assessment of the handwriting comparison evidence, which was the basis on which his guilty disposition was eventually overturned by DOCS. (Pl.'s Memo. of Law at 32; Pl.'s Decl., Ex. B, Dkt. No. 124-4 at 13). Finally plaintiff claims that his right to assistance in handling his disciplinary hearing was violated in several ways, in part because the hearing officer, not another DOCS employee or inmate, provided the assistance. (Pl.'s Memo. of Law at 30).[23]

1. "Some" Evidence

In finding plaintiff guilty of two charges relating to the anonymous, threatening letters, defendant Demars stated that he relied primarily upon the inmate misbehavior report and Lt. Johnson's testimony regarding the similarities that he observed in the handwriting of several of the threat letters and known samples of plaintiff's writing. (Disc. Hearing Transcript at 66).[24] The anonymous letters, which were exhibits at the hearing, threatened physical retaliation against the corrections staff if there was another beating of an inmate, following an alleged assault of an inmate by officers in G-dorm at Franklin. (Johnson Decl., Ex. B, Dkt. No. 110-8 at 8-14). Defendant Johnson's misbehavior report noted that plaintiff had expressed "similar concerns" to the Superintendent two days before the threat letters were received. (Johnson Decl., Ex. B, Dkt. No. 110-8 at 6). During his testimony at the disciplinary hearing, Lt. Johnson set forth his prior experience in handwriting comparison and explained, in some detail, the similarities he observed between the threat letters and the samples of plaintiffs writing from his guidance folder, which were also exhibits. (Disc. Hearing Transcript at 21-22).

*11 While meager, the proof relied upon by defendant Demars constituted "some evidence" sufficient to satisfy the requirements of due process applicable to prison disciplinary hearings. See, e.g., Monier v. Holt, 4:CV-05-2062, 2005 WL 3531369, at *2 (M.D.Pa. Dec. 21, 2005), aff'd, 259 Fed.Appx. 518 (3d Cir.2007) (testimony of officer that the threatening note was comparable to a sample of petitioner's handwriting constituted "some evidence" sufficient for due process); Brown v. Dotson, 1:07CV114-03, 2007 WL 1033359, at *3 (W.D. N.C. Apr. 2, 2007), aff'd, 242 Fed.Appx. 19 (4th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2960 (2008) (testimony regarding handwriting comparison by investigating officer constituted "some evidence" for due process purposes even though a copy of the inappropriate letter he was accused of writing was not made available to him); Pettus v. McGinnis, 533 F.Supp.2d 337, 341 n. 3 (W.D.N.Y.2008) (fact that a harassing letter appeared to be in plaintiff's handwriting, and that he had handed a copy to a correction officer, constituted "some evidence" supporting the disciplinary charge); Bennett v. Jackson, 2:06CV019, 2006 WL 618124, at *2 (E.D.Ark. Mar. 9, 2006) (testimony by officer that handwriting on the threatening letter was comparable to a sample of plaintiff's writing satisfied due process standards). While DOCS ultimately determined, as a matter of equity or state law, that the hearing examiner should have made an independent handwriting comparison, his apparent failure to do so did not violate the federal due process rights of the plaintiff. See, e.g., Monier v. Holt, 2005 WL 3531369, at *2 (hearing officer did not violate due process by accepting the officer's testimony regarding his handwriting comparison); Bennett v. Jackson, 2006 WL 618124, at *2 (hearing officer who accepted officer's testimony regarding handwriting comparison without requiring expert analysis satisfied due process standards); Brown v. Dotson, 2007 WL 1033359, at *3 (testimony regarding handwriting comparison by investigating officer was not corroborated because the inappropriate letter plaintiff was accused of writing, which was tainted with bodily fluids, was destroyed).[25]

2. Adequacy of Assistance at the Hearing

Because he was transferred to the SHU after disciplinary charges relating to the threatening notes were filed against him, plaintiff was clearly entitled to assistance in preparing for his hearing. Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir.1998) (citing Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir.1988). On the first day of the hearing, defendant Demars noted that plaintiff had not signed the form served on him with the formal charges by which he could request assistance in connection with the hearing. (Disc. Hearing Transcript at 1).[26] Dep. Sup. Demars offered assistance to plaintiff in securing witnesses and documents for the hearing, and plaintiff accepted. Plaintiff explained what help he needed and, before the hearing was adjourned for several days, stated that he was satisfied with the assistance that the hearing officer provided. (Disc. Hearing Transcript at 1-7).

*12 Ultimately, defendant Demars arranged for the testimony of all of the witnesses that plaintiff deemed critical, including the Superintendent of Franklin, although Dep. Sup. Demars was dubious about why plaintiff needed the Superintendent. (Disc. Hearing Transcript at 10-19, 25-29, 39, 41-42, 44-45, 53, 61). The hearing officer procured copies of most of the documents that plaintiff requested, although the facility was unable to locate one "pass" which plaintiff requested. Defendant Demars turned down plaintiff's request for DNA testing of the anonymous, threatening letters that prompted the charges. (Disc. Hearing Transcript at 9-10, 29). While plaintiff raised numerous "objections" at the end of the hearing, he did not object to any deficiencies in the assistance he received from defendant Demars. (Disc. Hearing Transcript at 64-65).[27]

Plaintiff cites a 1995 opinion of then-District Judge Sotomayor for the proposition that a hearing examiner who purports to provide assistance to the charged inmate cannot be "impartial" and violates the due process rights of the accused per se. Lee v. Coughlin, 902 F.Supp. 424, 433-34 (S.D.N.Y.1995). However, the plaintiff in Lee specifically requested assistance from individuals other than the hearing officer. In this case, plaintiff waived any objection to having the hearing officer also provide him assistance in procuring documents and witnesses, by his failure to complete and submit the form requesting assistance from another source, and his statement expressing his satisfaction with the alternative arrangement offered by defendant Demars. Jackson v. Johnson, 30 F.Supp.2d 613, 619 (S.D.N.Y.1998) (the courts in this circuit have established that an inmate's silence can constitute waiver of his right to assistance at a disciplinary hearing) (citing, inter alia, Murray v. Dixon, 107 F.3d 3 (table), 1997 WL 73152, at *2 (2d Cir.1997) (affirming hearing officer's determination that inmate waived his right to assistance because the inmate "admits that he refused to sign the required request for employee assistance presented to him when he was served with the misbehavior report, and he does not allege that he requested assistance between his refusal and the hearing")).

Moreover, the Lee court found that the hearing officer, in fact, provided assistance that was deficient in several substantial respects. Id. In a 1998 decision, the Second Circuit held that, when an inmate agrees to accept assistance from a hearing officer who thereafter does nothing to assist, the inmate's due process rights are violated. Ayers v. Ryan, 152 F.3d at 81. While the Second Circuit characterized it as possibly "odd or irregular" for a hearing officer to offer to serve as an assistant and for the inmate to accept that offer, it did not characterize this arrangement as a per se due process violation. Id. At least one subsequent district court in this circuit has held that, where the hearing officer actually provided adequate assistance to an inmate, the fact that the hearing officer also served as the assistant does not violate due process. Clyde v. Bellnier, 9:08-CV-909, 2010 WL 1489897, at *6 (N.D.N.Y. April 13, 2010) (Singleton, J.).

*13 As discussed above, defendant Demars actually provided reasonable and adequate assistance to plaintiff in connection with his disciplinary hearing. See, e.g., Jackson v. Johnson, 30 F.Supp.2d at 619 (a hearing assistant's role is not to act as legal advisor or advocate, but to serve as a surrogate, performing functions, such as contacting witnesses, which the charged inmate could not do because he is not among the general population) (collecting cases); Clyde v. Bellnier, 2010 WL 1489897, at *6 (no due process violation arose when the hearing officer/assistant failed to provide documents that did not exist or that were not relevant to the defense);[28] Brown v. Dotson, 2007 WL 1033359, at *3 (inmate facing disciplinary charges for writing a threatening note was not constitutionally entitled to DNA tests in connection with the hearing). This court concludes that, based on the Second Circuit's holding in Ayers v. Ryan , defendant Demars did not violate plaintiff's due process rights in connection with his rendering of assistance in connection with the hearing. In any event, Dep. Sup. Demars would be entitled to qualified immunity because he could not have reasonably understood, based on the uncertain controlling law in 2006, that his role in providing reasonable and adequate assistance to plaintiff, while serving as the hearing officer, violated plaintiff's due process rights.

V. Alleged Mail Tampering

The First and Fourteenth Amendments to the U.S. Constitution are implicated when a prisoner's legal mail is obstructed, but a plaintiff must allege that the defendants' actions hindered the prisoner's "efforts to pursue a legal claim." See Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (citing Monsky v. Moraghan, 127 F.3d 243, 247 (2d. Cir.1997). In order to establish a claim that a prisoner's right of access to the courts has been abrogated, actual injury must be shown. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996).

Prior to the Supreme Court's decision in Lewis, the Second Circuit had held that "an isolated instance" of interference with an inmate's legal mail delivery was insufficient to state a First Amendment claim, either with respect to the mail itself or with respect to access to courts, where "the infraction was not in accordance with official policy or practice and where no showing had been made that the inmate's right to access to courts was chilled...." Washington v. James, 782 F.2d 1134, 1139 (2d. Cir.1986) (citation omitted).Lewis also suggests that the actual harm must be to direct or collateral attacks on the inmate's conviction, or to a challenge to the conditions of confinement. 518 U.S. at 355. "Mere delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation.'" Davis v. Goord, 320 F.3d at 352 (citing Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y.1995)).

*14 Although the amended complaint alleges generally that plaintiff's mail was obstructed while he was in Franklin and Upstate, [29] his only focused claim of tampering with legal mail relates to an incident at Upstate in January 2007 involving defendants McCasland and Hoffnagle. (AC ¶¶ 29-33). During his deposition, plaintiff acknowledged that only two pieces of legal mail were opened outside of his presence, and that they may well have been opened by mistake or accident. (Dep. at 67, 74). Although the incident left Plaintiff "a little upset, " he did not articulate how the opening and eventual loss[30] of the two items interfered with any pending legal matter. (Dep. at 71-75). Even accepting plaintiff's allegations as true, which the defendants dispute (McCasland Decl., Hoffnagle Decl.), the claim relating to the opening and possible destruction of two items of legal mail, without any showing of how plaintiff was prejudiced in a legal proceeding, does not support a viable First Amendment claim. See, e.g., Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir.1975) (inmate's showing of only a single instance where clearly marked legal mail was opened out of his presence, in absence of any indication that the incident affected the correspondence between the inmate and his attorney concerning prisoner's criminal appeal or any other legal matter, was insufficient to survive summary judgment).

VI. Retaliation Claims

Plaintiff alleges that, in retaliation for his filing of a letter complaining of an assault of another inmate by correction officers, defendant Johnson filed a false misbehavior report against plaintiff, and defendant Gardner made inflammatory statements regarding plaintiff to other staff, prompting further acts of retaliation. Plaintiff characterizes, as retaliation, the subsequent "assaults" involving defendants Secore, Favro, Norcross, and Reardon; the conduct of the disciplinary hearing by defendant Demars; and the alleged mail tampering by defendants McCasland and Hoffnagle. For the reasons set forth below, this court will recommend that plaintiff's retaliation claims be dismissed, either on the merits or on qualified-immunity grounds.

A. Applicable Law

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) (citing Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002); see also Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.1997)). Third, the plaintiff must establish a causal connection between the protected speech and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citing Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)).

*15 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 at 381 (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 the original). This objective test applies even if the plaintiff was not himself subjectively deterred from exercising his rights. Id.

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."Accordingly, plaintiff must set forth nonconclusory allegations. Bennett, 343 F.3d at 137 (citing Dawes, 239 F.3d at 491). 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.

A prison inmate has no constitutionally-guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest, as long as the prisoner is provided with procedural due process. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986). However, if a defendant initiated disciplinary proceedings against plaintiff in retaliation for his exercise of a constitutionally protected right, substantive due process rights are implicated even if the plaintiff did receive, full procedural due process. Franco v. Kelly, 854 F.2d 584, 588-89 (2d Cir.1988). Any adverse action taken by defendant in retaliation for the exercise of a constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Id.

B. Application

1. First Amendment Protection

The plaintiff alleges that various acts of retaliation resulted from a letter he wrote and signed, complaining about the assault of another inmate by correction officers. It is unclear, under Second Circuit authority, whether an inmate's complaints about the treatment of another inmate are protected by the First Amendment and, thus, whether they could be the basis of a retaliation claim. See, e.g., Smith v. Greene, 9:06-CV-0505, 2010 WL 985388, at *3 (N.D.N.Y. Mar. 16, 2010) (it is far from certain whether the First Amendment protected an inmate's letter to the New York State Inspector General complaining about the use of force against a fellow inmate) (citing Nevares v. Morrisey, 95-CV-1135, 1991 WL 760231, at *6 (S.D.N.Y. Sept. 27, 1999) (complaining aloud to correction officers about the treatment of another inmate is not constitutionally protected activity under the First Amendment)); Pettus v. McGinnis, 533 F.Supp.2d 337, 339 (W.D.N.Y.2008) (it is unclear whether the First Amendment protected inmate from retaliation for testifying, at a disciplinary hearing of another inmate, that a correction officer assaulted the other inmate); Rodriguez v. Phillips, 66 F.3d 470, 478-79 (2d Cir.1995) (an inmate has no clearly established First Amendment right to approach and complain to an officer about how he is disciplining another inmate). We will assume, for sake of argument, that plaintiff's complaint letter in this case was protected by the First Amendment. However, as discussed below, the defendants who allegedly took adverse actions against plaintiff based on this letter would be protected by qualified immunity because it was not clear under controlling law, in 2006 and 2007, that such conduct would violate plaintiff's First Amendment rights.

2. Connection Between "Speech" and Alleged Adverse Actions

*16 Plaintiff has alleged that the actions of nine different defendants between June 19, 2006 and January 2007 were carried out in retaliation for his letter of June 15, 2006. With two possible exceptions, plaintiff provides no support for the conclusory claim that these defendants were even aware of his letter when they allegedly took adverse action against the plaintiff. It is unlikely that defendants Gardner, Secore, Favro, and Norcross, who were merely involved in plaintiff's move to the Franklin SHU on June 19th, were aware of plaintiff's letter, which was not received in the administrative office at Franklin until the following day. (Pl.'s Decl., Ex. A; Disc. Hearing at 52-53). To the extent these defendants were motivated to take some adverse action[31] against plaintiff, which they deny, the fact that plaintiff was just charged with creating some of the anonymous letters threatening the Franklin staff, would be a much more likely trigger.

Plaintiff provides no support for the suggestion that defendant Reardon was aware of or motivated by plaintiff's June 15th letter when he allegedly used excessive force on June 24th. In fact, plaintiff provides a more plausible explanation for why defendant Reardon and the other SHU officers might be inclined to "assault" him on June 24th-plaintiff was refusing meals and generally acting like a "knucklehead" toward the staff. (Dep. at 63, 65). There is certainly no indication that defendants McCasland and Hoffnagle, correction officers at Upstate who allegedly tampered with plaintiff's mail in January 2007, knew of or were influenced by plaintiff's June 15, 2006 letter to officials at Franklin.

When he filed the disciplinary action against plaintiff on the afternoon of June 19th, defendant Johnson may not have seen plaintiff's letter, which was not received by the administrative office until the following day. However, Lt. Johnson's inmate misbehavior report confirms that he was advised about plaintiff's prior contact with the Superintendent on June 17th, so there is some corroboration he was aware of at least the general contents of plaintiff's letter. Defendant Demars, the hearing officer at plaintiff's disciplinary hearing, was clearly aware of the June 15th letter, because plaintiff asked that it be made an exhibit.

However, plaintiff provides no information other than the temporal proximity between his June 15th letter and the conduct of defendants Johnson and Demars to suggest that the letter substantially motivated the alleged adverse actions by the prison officials. There is no indication of any contact between plaintiff and Lt. Johnson before the disciplinary charges were filed, and no evidence of any statements or prior conduct suggesting a retaliatory animosity on the part of either defendant. (Dep. at 19; Johnson Decl. ¶ 4). It is clear that plaintiff was identified as a possible suspect in the investigation of the anonymous threat letters because he expressed "similar concerns" to the Superintendent and in his June 15th letter. However, the disciplinary hearing transcript indicates that defendants Johnson and Demars were motivated by the goal of determining if plaintiff generated some of the anonymous threat letters, not the desire to retaliate against plaintiff for drafting and signing the June 15th letter (which contained complaints, but no threats).

Given the record developed in connection with the pending summary judgment motion, plaintiff's conclusory allegations are not sufficient to establish that any of the nine defendants were substantially motivated by his June 15, 2006 letter in taking the actions they took. See, e.g., Ayers v. Stewart, 101 F.3d 687 (table), 1996 WL 346049, at *1 (2d Cir.1996) (given the weakness of his retaliation claim, plaintiff's reliance on circumstantial evidence of retaliation-namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him-does not suffice to defeat summary judgment); Crenshaw v. Herbert, 445 F.Supp.2d 301, 305 (W.D.N.Y.2006) (because plaintiff offers nothing more than speculation that the moving defendants did what they did because he had filed a grievance, the temporal proximity between the protected activity and the adverse action is not enough to give rise to a genuine issue of material fact); Williams v. Goord, 111 F.Supp.2d 280, 290 (S.D.N.Y.2000) (although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment).

VII. Deliberate Indifference to Medical Needs

A. Legal Standards

*17 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.

1. Objective Element

In order to meet the objective requirement, the alleged deprivation of adequate medical care must be "sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. The first question is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act "reasonably" in response to the inmates health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide "reasonable care." Id. (citing Farmer, 511 U.S. at 844-47).

The second part of the objective test asks whether the purported inadequacy in the medical care is "sufficiently serious." Id. at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. 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." Id. (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003)). However, in cases where the inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. If the plaintiff is receiving ongoing treatment, and the issue is an unreasonable delay or interruption of the treatment, then the "seriousness" inquiry focuses on the challenged delay itself, rather than on the underlying condition alone. Id. (citing Smith, 316 F.3d at 185). Thus, the court in Salahuddin made clear that although courts speak of a "serious medical condition" as the basis for an Eighth Amendment claim, the seriousness of the condition is only one factor in determining whether the deprivation of adequate medical care is sufficiently serious to establish constitutional liability. Id. at 280.

2. Subjective Element

The second element is subjective and asks whether the official acted with "a sufficiently culpable state of mind." Id. (citing Wilson v. Seiter, 501 U.S. 294, 300 (1991)). In order to meet the second element, plaintiff must demonstrate more than a "negligent" failure to provide adequate medical care Id. (citing Farmer, 511 U.S. at 835-37). Instead, plaintiff must show that the defendant was "deliberately indifferent" to that serious medical condition. Id. Deliberate indifference is equivalent to subjective recklessness. Id. (citing Farmer, 511 U.S. at 839-40).

*18 In order to rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to the inmate's health or safety. Id. The defendant must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he or she must draw that inference. (citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). 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, 511 U.S. at 844. Thus, the court stated in Salahuddin that the defendant's belief 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.

Additionally, a plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Sonds v. St. Barnatas 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). The fact that 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, 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 Section 1983). Thus, any claims of malpractice, or disagreement with treatment are not actionable under Section 1983.

B. Application

1. "Seriousness" of Plaintiff's Medical Condition and any Alleged Deprivation

Plaintiff claims that, as a result of the alleged assaults on June 19 and 24, 2006, he suffered a "possible" fractured rib cage, dislocated jaw, and a torn tendon in his left armpit. (AC ¶¶ 14, 23). At his deposition in June 2009, plaintiff complained of continuing physical limitations because of a "torn ligament" in his armpit, as well as discomfort from a lump on his rib cage and a prior injury to his jaw. (Dep. at 80-81).

The record of the medical examinations of plaintiff by several health care providers over the days and weeks following the alleged assaults did not document the injuries claimed by plaintiff. (Secore Decl., Ex. B, Dkt. No. 110-11 at 8, 15, 18-19, 22-25; Medical Records at 25-36). In September and October 2006, PA Tichenor evaluated plaintiff's claims of back, shoulder, and knee pain, and diagnosed plaintiff with a left shoulder sprain and then tendinitis of the left pectoralis major tendon. (Tichenor Decl. ¶¶ 8-10; Medical Records at 27, 31). When plaintiff was examined by a prison doctor in April 2008 regarding complaints of problems with his knees, feet, and arm, [32] the physician detected a slight defect in plaintiff's "left bicep [?] tendon" that was "functionally insignificant" and did not effect his range of motion or strength. (Medical Records at 11; Dep. at 80). Medical records from January 2007 indicate that plaintiff complained of new injuries to his left arm caused by an unrelated incident during which a correction officer allegedly pulled that arm through the slot in a cell door. (Medical Records at 24). Hence, it is unclear whether the doctor's observations relating to the left arm in 2008 are related to the alleged assaults in June 2006 or the later incident.

*19 A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; or (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03. Plaintiff's medical issues in June and July 2006 do not meet the objective standards of a "serious" medical condition. See, e.g., Ninortey v. Shova, 05 Civ. 542, 2008 WL 4067107, at *5, 16 (S.D.N.Y. Sept. 2, 2008) (inmates's complaints of bruises, cuts, a twisted ankle, shoulder pain, a bloody mouth and cracked teeth following an alleged assault, much of which was not confirmed by records of frequent medical examinations and treatment, did not constitute a "serious medical condition"); Evering v. Rielly, 98 CIV. 6718, 2001 WL 1150318, at *9 (S.D.N.Y. Sept. 28, 2001) (bruises, redness, soreness, a knot on the back, and a cut on the forearm are superficial injuries that require time to heal, but do not satisfy the objective component of the deliberate indifference standard); Rodriguez v. Mercado, 00 CIV. 8588, 2002 WL 1997885, at *8 (S.D.N.Y. Aug. 28, 2002) (plaintiff who claimed to sustain bruises to his head, back, and wrist following an excessive force incident did not have a "sufficiently serious" medical condition); Tafari v. McCarthy, 2010 WL 2044705, at *20 (bruises and superficial lacerations resulting from an alleged assault did not satisfy the "serious medical condition" test).

Plaintiff complained that prison medical officials refused to examine or treat him for the injuries relating to the alleged assaults, particularly in June and July 2006. He alleges that, in the days following the assaults, his face and jaw were swollen and he was having difficulty breathing as a result of his rib cage; but does not claim he had more serious injuries or substantial, persistent pain. (AC ¶¶ 14, 17). Plaintiff denied any injuries on June 19th. (Davenport Decl., Exs. A & B). The prison medical records document that he was examined on several occasions by different providers in two facilities who found little evidence of the medical problems about which plaintiff complained.[33] Based on the defendants' declarations and the corroborating medical records, plaintiff's conclusory allegations about his denials of medical care would not, in this court's view, create an issue of fact. See, e.g., Brown v. White, 9:08-CV-200, 2010 WL 985184, at *8 (N.D.N.Y. Mar. 15, 2010) (plaintiff's conclusory suggestion that defendant nurse completely refused to provide any medical attention on a particular date is insufficient to create a dispute of fact in the face of the sworn declaration and supporting documentary evidence in the record.); Benitez v. Pecenco, 92 Civ. 7670, 1995 WL 444352 at n. 5, (S.D.N.Y. July 27, 1995) (conclusory claim that plaintiff was never issued medication was directly contradicted by medical records and was insufficient to create a factual dispute on that issue) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) ("mere conclusory allegations or denials are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case")).[34]

*20 However, plaintiff challenges the prison medical records that contradict his claims of injury and denied treatment, making conclusory allegations that various medical records were falsified and/or that his medical problems were mis-diagnosed. (AC ¶ 15; Pl.'s Memo. of Law at 3-13). It should be noted that the defendants' declarations and supporting medical records indicate that the plaintiff tried to manipulate care providers to document alleged injuries that the nurses did not detect.[35] Plaintiff's conclusory allegation that multiple medical professionals in two different prisons fabricated plaintiff's medical records to suppress evidence of his alleged injuries is highly suspect and would, in this court's view, also be insufficient to sway any rational fact finder. See, e.g., Benitez v. Mailloux, No. 9:05-CV-1160, 2009 WL 1953847, at *8 (N.D.N.Y. Mar. 25, 2009) (Treece, MJ) (plaintiff's conclusory contention that defendant falsified his ambulatory health care record is not enough to withstand summary judgment on his deliberate indifference claim), report-recommendation rejected, in part, on other grounds, 2009 WL 1953752 (N.D.N.Y. July 2, 2009) (Mordue, DJ); Liner v. Goord, 115 F.Supp.2d 432, 435 (S.D.N.Y.2000) (dismissing conclusory claims that defendants conspired to tamper with and destroy plaintiff's medical records).[36]

Even if plaintiff's conclusory attacks on the reliability of his medical records are not rejected, this court concludes that he did not suffer from a sufficiently "serious" medical condition or suffer a "serious" deprivation of medical care under Eighth Amendment standards. Plaintiff does admit that he received medical attention on several occasions in the months following the alleged assaults in June 2006. (Dep. at 48-57). He does not take issue with the conservative treatment prescribed by PA Tichenor in the Fall of 2006. (Pl.'s Memo. of Law at 11; Tichenor Decl. ¶¶ 9-10). Even crediting only the medical evidence that plaintiff does not claim is fabricated, [37] there is no indication that alleged delays in his examination or treatment resulted in any substantial harm or required a dramatic change in the course of his treatment. See, e.g., Evans v. Manos, 336 F.Supp.2d 255, 261-62 (W.D.N.Y.2004) (delay in treatment of prisoner who claimed "extreme" back pain, which did not result in substantial harm to plaintiff or significantly change the course of his eventual treatment, was not a "serious" disruption of his medical care). See also Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir.2003) (although demonstrable adverse medical effects may not be required under to establish an Eighth Amendment medical-care claim, the absence of subsequent physical injury will often be probative in assessing the risk of delaying treatment in the past).

The record does not indicate that plaintiff was suffering from a serious medical condition which, even if completely ignored in June and July 2006, would have created a serious risk to his health. Nor does plaintiff's subsequent medical history reveal that the alleged delay or denial of medical treatment had any adverse impact on plaintiff. Accordingly, this court concludes that summary judgment should be granted with respect to the plaintiff's medical care claims because no rational juror would find that plaintiff suffered a sufficiently serious medical condition or deprivation.

2. "Deliberate Indifference"

*21 The declarations of defendants Davenport, Volpe, Walsh, Chesbrough, and Tichenor, and the supporting medical records, also undercut plaintiff's conclusory allegations that they were deliberately indifferent to his medical needs. Based on the above analysis of plaintiff's medical condition in June and July 2006, plaintiff can not establish that the defendants recognized a serious risk to his health and deliberately ignored it. Given the court's finding that plaintiff has not established the objective elements of an Eighth Amendment medical care claim, a detailed analysis of the subjective element is not necessary. However, a few specific observations about two defendants are appropriate.

The only allegation against nurse Walsh in the amended complaint is that she refused to examine plaintiff on the day he was transferred to Upstate-July 12, 2006. (AC ¶ 23). The medical records indicate that nurse Chesbrough conducted plaintiff's intake examination of plaintiff on July 12th and saw him in sick call on July 13th. (Chesbrough Decl. ¶¶ 7-9; Medical Records at 32-34).[38] Even if defendant Walsh "refused" to examine plaintiff on July 12th, she apparently did so with the knowledge that he would be seen that day by another nurse. Such a claim cannot support a viable cause of action for deliberate indifference.[39]

Finally, plaintiff's Eighth Amendment claim against PA Tichenor is that he failed to detect or that he mis-diagnosed plaintiff's alleged injuries. (AC ¶ 25; Dep. at 44-45, 56-57, 80-81).[40] Based on the authority cited above, even if defendant Tichenor negligently mis-diagnosed plaintiff, that would not constitute "deliberate indifference."

VIII. Qualified Immunity

Defendants argue that they are entitled to qualified immunity with respect to all of plaintiffs claims. Qualified immunity generally protects governmental officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, even if the constitutional privileges are clearly established, a government actor may still be shielded by qualified immunity "if it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991) (citing Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir.1990).

In determining whether qualified immunity applies, the court may first consider whether "the facts alleged show the [defendant's] conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 811 (2009) (holding that, "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory in all cases")."If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. This court need not address qualified immunity with respect to plaintiff's Eighth Amendment claims against defendants Gardner, Davenport, Volpe, Walsh, Chesbrough, and Tichenor because, as discussed above, he has not established those alleged violations of his constitutional rights.

*22 Defendant Demars is entitled to qualified immunity with respect to the due process claim relating to his conduct of plaintiff's disciplinary hearing. As discussed above, the Second Circuit's decisions in Taylor v. Rodriguez, 238 F.3d at 194 and Luna v. Pico, 356 F.3d at 489-90 did not clearly impose a due process requirement that a hearing officer at a prison disciplinary hearing perform independent analysis of lay handwriting comparisons made by a testifying witness. If the controlling authority were subsequently construed to require such independent analysis in the context of this case, this court finds it would not have been clear to defendant Demars in 2006 that his reliance on the witness' handwriting comparisons violated plaintiff's due process rights.[41] Similarly, the court concluded that the controlling authority in this circuit did not clearly prohibit a hearing officer at a prison disciplinary proceeding from also providing required assistance to the charged inmate. Ayers v. Ryan, 152 F.3d at 81. Because defendant Demars could not have reasonably understood that he could be violating plaintiff's due process rights by effectively providing assistance at the hearing over which he presided, he is entitled to qualified immunity with respect to that claim.

To the extent a higher court were to determine that any defendant who took adverse action against plaintiff was substantially motivated by plaintiff's June 15, 2006 letter complaining about the beating of another inmate, that defendant would be protected by qualified immunity with respect to a retaliation claim. As of 2006 and early 2007, the controlling authority in this circuit did not clearly provide First Amendment protection to complaints by one inmate about the alleged mistreatment of another inmate. See, e.g., Pettus v. McGinnis, 533 F.Supp.2d at 339 (defendant is entitled to qualified immunity because of the uncertainty as to whether the First Amendment protected inmate from retaliation for testifying, at a disciplinary hearing of another inmate, that a correction officer assaulted the other inmate); Rodriguez v. Phillips, 66 F.3d at 479.

As to plaintiff's excessive force and failure to intervene claims against defendants Secore, Favro, Norcross, and Reardon, it was clearly established, as of the time of the alleged incidents in June 2006, that inmates had an Eighth Amendment right to be free from excessive force and a failure to intervene. See, e.g., Hudson, 503 U.S. at 9-10. Thus, accepting all of plaintiff's allegations about the two incidents on that day as true, qualified immunity cannot be granted to those defendants, because a reasonable person in their position at the time would or should have known that the use of excessive force was a constitutional violation. See, e.g., Dallio v. Sanatamore, 2010 WL 125774, at *14.

WHEREFORE, based on the findings above, it is

RECOMMENDED, that defendants' summary judgment motion be DENIED IN PART, as to (1) plaintiff's Eighth Amendment claims based on excessive force and/or failure to intervene against defendants Secore, Favro, and Norcross and (2) the Eighth Amendment claims based on excessive force against defendant Reardon. And, it is further

*23 RECOMMENDED, that defendants' motion for summary judgment (Dkt. No. 110) be GRANTED IN PART, and that the complaint be dismissed in its entirety as to the remaining claims against all defendants.

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.

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