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Murray v. Gillani

United States District Court, N.D. New York

August 22, 2014

ROBERT L. MURRAY, Plaintiff,
v.
DR. GILLANI, et al., Defendants.

ROBERT L. MURRAY, Five Points Correctional Facility, Romulus, NY, for Plaintiff.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, JOSHUA E. McMAHON, ESQ., Assistant Attorney General, Albany, NY, for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Robert L. Murray, a New York State prison inmate, has filed this action against several individuals employed by either the New York State Office of Mental Health ("OMH") or New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights. Although plaintiff's complaint, as amended, asserted several claims against the defendants, those that have survived initial review by the court are limited to an excessive force cause of action against four DOCCS corrections officers and two OMH nurses, all of whom remain unidentified, and a retaliation claim against an OMH psychiatrist and licensed psychiatric nurse practitioner.

Currently pending before the court is a summary judgment motion filed by the defendants seeking dismissal of plaintiff's remaining claims based either on plaintiff's failure to identify the individuals that allegedly assaulted him or the contention that the record evidence contains no genuine dispute of material fact with respect to whether the defendants unlawfully retaliated against him for engaging in protected activity.[1] For the reasons set forth below, I recommend that defendants' motion be granted.

I. BACKGROUND[2]

Plaintiff is a prison inmate currently in the custody of the DOCCS. See generally Dkt. No. 7. Although he is now confined elsewhere, at the times relevant to the claims in this action, plaintiff was incarcerated in the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Id. While at Clinton, plaintiff received mental health treatment for his diagnosed anti-social personality disorder and mild mental retardation in a satellite unit of the Central New York Psychiatric Center ("CYNPC"), operated by the OMH and located within the facility. Dkt. No. 49-12 at 2. A Residential Crisis Treatment Program ("RCTP") operates within the CNYPC satellite unit and exists for purposes of admitting individuals with suicidal ideation or severe psychiatric decompensation. Id. at 4. Individuals are admitted to cells in the RCTP with appropriate safety precautions for observation and daily evaluation. Id .; Dkt. No. 49-26 at 2. At the times relevant to plaintiff's claims, he was treated by, inter alia, Dr. Sohail Gillani, an OMH licensed psychiatrist, and Travis Sawyer, an OMH psychiatrist nurse practitioner ("PNP"), both of whom were stationed at the CNYPC satellite unit. Dkt. No. 49-12 at 1, 5; Dkt. No. 49-26 at 1, 4.

According to plaintiff's amended complaint, on December 7, 2012, he was told by unidentified DOCCS corrections officers that staff in the OMH wanted to see him, and was escorted by the officers to the CNYPC satellite unit at Clinton. Dkt. No. 7 at 5-6. Plaintiff alleges that "one morning, " on an unspecified date but presumably December 7, 2012, he was attacked by one unidentified DOCCS sergeant and four unidentified corrections officers. Id. at 6. The DOCCS officers allegedly handcuffed plaintiff, laid him on a bed inside his cell, elbowed him in the back, punched him in the face, and told him to shut up. Id. One of the officers allegedly placed pressure on plaintiff's Adam's apple and did not release until another officer intervened. Id. According to plaintiff, he was forcibly medicated by two unidentified nurses during the attack. Id. at 6-7.

According to the evidence submitted by defendants in support of their motion, plaintiff was admitted to the RCTP for observation and stabilization on December 7, 2012. Dkt. No. 49-12 at 4-5; Dkt. No. 49-13; Dkt. No. 49-26 at 3; Dkt. No. 49-27. His admittance was prompted by plaintiff's report to an unidentified OMH staff member that his mind was racing and he believed defendant Gillani was tampering with his medications. Dkt. No. 49-13; Dkt. No. 49-27. The unidentified staff member reported in a written therapist progress note that, during a meeting with the plaintiff he could not make eye contact, his speech was rapid, and he was unable to report what he had eaten that day. Id. Upon admittance to the RCTP, a nurse noted plaintiff was "disheveled, rambling, [experiencing] paranoid ideation, incoherent, restless, [and] non-compliant [with] psych[iatric] medications." Dkt. No. 49-15 at 1; Dkt. No. 49-29 at 1.

Also on December 7, 2012, while plaintiff was admitted in the RCTP, defendant Gillani prescribed him an antipsychotic medication that can also be used to counteract agitation and aggression during an emergency situation. Dkt. No. 49-12 at 5; Dkt. No. 49-16 at 1. Plaintiff was administered the medication twice on that date without incident. Dkt. No. 49-12 at 5-6; Dkt. No. 49-17 at 1-2.

Plaintiff remained in the RCTP from December 7, 2012 through December 14, 2012, at which time he was discharged and returned to his regular cell at Clinton. Dkt. No. 49-23 at 2-3. Upon his discharge, plaintiff was prescribed three medications and scheduled for reassessment two weeks later. Id. at 3. During the period of his RCTP confinement, plaintiff was observed to be in various mental states, at times exhibiting agitation, accompanied by yelling and banging, and on occasion refusing meals and medications. See generally Dkt. Nos. 49-19-49-23.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on December 28, 2012, with the filing of a complaint and accompanying application to proceed in this action in forma pauperis ("IFP"). Dkt. Nos. 1, 2. He thereafter filed an amended complaint and IFP application on January 7, 2014. Dkt. Nos. 5, 7. In the currently operative amended complaint, plaintiff names Dr. Sohail Gillani and PNP Travis Sawyer as defendants, and also asserts claims against seven defendants as yet unidentified, including a DOCCS corrections sergeant, four DOCCS corrections officers, and two OMH nurses, all of whom are sued as "Doe" defendants. See generally Dkt. No. 7. Plaintiff's amended complaint asserts three causes of action against the defendants, including excessive force, interference with access to the courts, and cruel and unusual punishment. Id.

Following an initial review of plaintiff's amended complaint and IFP application, Senior District Judge Lawrence E. Kahn issued a decision on March 21, 2014, granting plaintiff IFP status, dismissing plaintiff's conditions of confinement and court access claims without prejudice, and denying plaintiff's motion for a preliminary injunction.[3] Dkt. No. 15.

On February 10, 2014, following the close of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 49. In their motion, defendants contend that (1) plaintiff's excessive force cause of action is subject to dismissal based upon his failure to identify the Doe defendants against whom the claim is asserted; (2) no reasonable factfinder could conclude, based on the record evidence, that a sufficient nexus exists between plaintiff's alleged protected conduct and defendants' alleged adverse action; (3) plaintiff's damage claims against the defendants in their official capacities are subject to dismissal based on Eleventh Amendment immunity; and (4) the named defendants are entitled to qualified immunity from suit. See generally Dkt. No. 49-2. In response, plaintiff has submitted nearly 200 pages of documents, including a single-page declaration stating that he was assaulted "by OBS staff on the orders of MHU staff" on May 16, 2013. Dkt. Nos. 51, 52. With limited exception, the documents submitted by plaintiff in opposition to the motion do not relate to the claims in this case.[4] See generally id.

Defendants' motion, which is now fully briefed, 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 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, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. 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; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). 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.

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, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 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 dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Failure to Identify the Doe Defendants

Following an initial review of plaintiff's complaint, Senior District Judge Kahn issued the following admonition to plaintiff in his order on March 21, 2013:

Plaintiff is advised that the United States Marshals Service cannot effect service on a Doe' defendant. In the event that Plaintiff wishes to pursue his claims against the John Doe and Jane Doe Defendants, he must take reasonable steps through discovery to ascertain the identities of these individuals. Upon learning the identity of a Doe Defendant, Plaintiff must further amend his Amended Complaint to name her properly as a defendant. If Plaintiff fails to ascertain the identity of any Doe Defendant so as to permit the timely service of process, this action will be dismissed against that individual.

Dkt. No. 15 at 8. Judge Kahn further directed "that Plaintiff take reasonable steps to ascertain the identities of the John and Jane Doe' Defendants, and when identified, seek to amend the Amended Complaint (Dkt. No. 7) to add the individuals as defendants in this action pursuant to Rule 15(a) of the Federal Rules of Civil Procedure[.]" Id. at 13. Defendants now argue that plaintiff's failure to fulfill these requirements and to amend his complaint and arrange for service of process upon the unidentified defendants warrants dismissal of his claims against them. Dkt. No. 49-2 at 5-7.

Rule 4(m) of the Federal Rules of Civil Procedure requires that service of a summons be effectuated within 120 days of its issuance, absent a court order extending that period.[5] Fed.R.Civ.P. 4(m). Upon a showing of good cause, this time for service must be extended. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed.R.Civ.P. 4(m)); see also Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ("We hold that district courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. Zapata, 502 F.3d at 197.

In this case, despite being explicitly informed of his obligation to identify the Doe defendants, amend his complaint accordingly, and arrange for the issuance and service of summonses upon those defendants, plaintiff failed to do so. It is true that plaintiff appears to have made one attempt, by letter dated January 27, 2012, to obtain the necessary information from defendants' counsel. Dkt. No. 49-5. In response, defendants' counsel advised plaintiff that the information needed to discern the identities of those involved could be ascertained from the mandatory disclosures served upon plaintiff on December 31, 2013.[6] Dkt. No. 49-6. Throughout the course of discovery, which was originally scheduled to close on September 12, 2013, but was extended to December 30, 2013, plaintiff failed to elicit the court's assistance in obtaining the information necessary to ascertain the identities of the Doe defendants. Under these circumstances, I recommend that plaintiff's claims against the Doe defendants, which include a DOCCS sergeant, four DOCCS corrections officers, and two OMH nurses, be dismissed, without prejudice, based upon his failure to timely identify and serve those defendants. See Mosley v. Woodly, No. 11-CV-1490, 2013 WL 5347272, at *3 (N.D.N.Y. Sept. 23, 2013) (Hurd, J., adopting report and recommendation by Treece, M.J.) (dismissing the "doe" defendant because the plaintiff failed to ascertain the identity of the defendant and serve him within the time periods allowed under either the local rules of practice for this court or the Federal Rules of Civil Procedure); Thaxton v. Simmons, No. 10-CV-1318, 2013 WL 4806457, at *6 (N.D.N.Y. Sept. 9, 2013) (D'Agostino, J., adopting report and recommendation by Treece, M.J.) (same).[7]

C. Sufficiency of Plaintiff's Retaliation Claim

Liberally construed, plaintiff's amended complaint alleges that his admission into the RCTP on December 7, 2012, was in retaliation for his having previously filed a lawsuit against defendant Gillani and another OMH staff member at the facility. Dkt. No. 7 at 8. In their motion, defendants contend that no reasonable factfinder could conclude, based on the record evidence, that a nexus exists between plaintiff's admission to the RCTP and his earlier lawsuit. Dkt. No. 49-2 at 7-13

A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). The Second Circuit has cautioned, however, that, because of "the ease with which claims of retaliation may be fabricated, " courts should "examine prisoners' claims of retaliation with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). To state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-C2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).

Defendants concede, and I conclude, for purposes of the pending motion, that plaintiff has established that he engaged in protected activity, satisfying the first prong of the retaliation analysis. It is well settled that the filing of a lawsuit constitutes protected activity for purposes of a First Amendment retaliation cause of action. See, e.g., Colon, 58 F.3d at 872 ("Prisoners, like non-prisoners, have a constitutional right of access to the courts and to petition the government for the redress of grievances."); accord, Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).

With respect to the second prong of the retaliation analysis, although defendants suggest that neither defendant Gillani nor defendant Sawyer were personally involved in admitting plaintiff to the RCTP, both defendants state in their declarations that "[a]dmittance to the RCTP is either approved by the psychiatrist, if present at the facility[, ] or by the Chief of the Medical Health Unit, if no psychiatrist is available." Dkt. No. 49-26 at 2; see also Dkt. No. 49-12 at 4. Moreover, defendant Gillani states that, "[a]s the physician or nurse practitioner, admitting or discharging someone to the RCTP is not a prerogative. It is a decision in combined discussion between DOCCS, OMH nursing staff or a therapist." Dkt. No. 49-12 at 4. Because defendants Gillani and Sawyer, through their declarations, suggest that the decision to admit an inmate to the RCTP is a collaborative one that involves a discussion among all of the inmate's care providers, and because defendants Gillani and Sawyer were, at the relevant times, two of plaintiff's providers, I find that there is a dispute of material fact as to whether those defendants were involved in the decision to admit plaintiff to the RCTP. For purposes of this motion, I therefore assume, without deciding, that admitting the plaintiff into the RCTP constituted adverse action. See Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 532 (2002), (finding the allegation that the plaintiff was transferred to a psychiatric facility in retaliation for filing a grievance against the defendant "must be construed as describing an adverse action"); Chavis v. Struebel, 317 F.Supp.2d 232, 238 (W.D.N.Y. 2004) ("[Transferring an inmate to another housing unit or to a psychiatric facility or assigning the inmate a less desirable work assignment satisfies the adverse action requirement.").

Turning now to the third element of a retaliation claim, causation, I find that no reasonable factfinder could conclude that the decision to admit plaintiff into the RCTP was motivated by his earlier lawsuit, filed against defendant Gillani. To establish the requisite connection between protected speech and adverse action, a plaintiff must prove that the protected conduct was a "substantial and motivating factor to the adverse action taken by prison officials." Bennett v. Goord, 343 F.3d at 133, 137 (2d Cir. 2003). In this case, there is no evidence, aside from plaintiff's vague and nearly indecipherable allegation in his amended complaint, that defendants Gillani and Sawyer admitted him to the RCTP because of the earlier lawsuit filed against defendant Gillani. Plaintiff's amended complaint alleges that (1) he "was told that Dr. Gillani and Sawyer and the Unit Chief put me up in the OBS, and (2) "MHU STAFF is playing a lot of games with me Dr. Gillani [sic] after I file a lawsuit against him[.]" Dkt. No. 7 at 7, 8. Upon initial review of plaintiff's amended complaint, mindful of the court's obligation to liberally construe a pro se plaintiff's complaint, Senior District Judge Kahn permitted plaintiff's retaliation claim to proceed based on those allegations. Dkt. No. 15 at 7-8. At this stage in the proceedings, however, plaintiff's unsupported allegation contained in his amended complaint is not sufficient to give rise to a dispute of material fact regarding defendants' motivation for admitting him into the RCTP. Aside from plaintiff's allegation, all of the record evidence suggests that plaintiff was admitted into the RCTP on December 7, 2012, for legitimate reasons, including his diagnosis of anti-social personality disorder, coupled with his abnormal behavior observed by an OMH staff member at Clinton and his refusal to take his medication. Dkt. No. 49-12 at 2; Dkt. No. 49-13 at 1-2. In addition, the evidence demonstrates that while in the RCTP, plaintiff continued to exhibit abnormal and disruptive behavior and refused to eat or take prescribed medications. Dkt. Nos. 49-15, 49-17-49-20. Plaintiff's unsupported and vague allegation of retaliation is not sufficient to overcome all of this evidence. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("[I]f the production of all relevant documents fails to add substance to the allegations and if the relevant officials submit affidavits explaining their reasons for the challenged actions, summary judgment dismissing the complaint may be granted[.]"); Demaio v. Coughlin, No. 89-CV-1237, 1994 WL 714537, at *3 (W.D.N.Y. Dec. 9, 1994) (granting summary judgment in favor of the defendants where the only evidence supporting the plaintiff's retaliation claim was the plaintiff's conclusory allegations in his amended complaint).

Accordingly, because I conclude that no reasonable factfinder could conclude, based on the record evidence, that defendants Gillani and Sawyer retaliated against plaintiff by admitting him into the RCTP in December 2012, I recommend that plaintiff's retaliation claim against those defendants be dismissed.[8]

IV. SUMMARY AND RECOMMENDATION

The two remaining claims in this action assert causes of action for excessive force against unidentified Doe defendants, and for unlawful retaliation against the two named defendants. Plaintiff's claims against the Doe defendants are subject to dismissal based upon his failure to identify the defendants involved, amend his complaint, and arrange for service of process upon those defendants. Turning to the remaining retaliation claim against the two named defendants, I find that no reasonable factfinder could conclude that plaintiff's admission into the RCTP at Clinton on December 7, 2012, was motivated by retaliation for having filed an earlier lawsuit against defendant Gillani.

Based upon the foregoing it is therefore hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 49) be GRANTED, and that all remaining claims of the plaintiff in this action be dismissed, with prejudice as against defendants Gillani and Sawyer, and without prejudice with respect to the Doe defendants.

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.

FN1. The correct spelling of this defendant's name is "Woodruff and he will be referred to as such. The Clerk is directed to amend the caption accordingly.
FN2. The correct spelling of this defendant's name is "Matott" and he will be referred to as such. The Clerk is directed to amend the caption accordingly.

Tyshaun Mosley, Albion, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Roger W. Kinsey, Esq., Ass't Attorney General, Albany, NY, for Defendants.

DECISION and ORDER

DAVID N. HURD, District Judge.

*1 Plaintiff brought this action pursuant to 42 U.S.C. § 1983. On August 29, 2014, the Honorable Randolph F. Treece, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part and denied in part. No objections to the Report-Recommendation were filed.

Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).

Therefore it is

ORDERED that

1. Defendants' motion for summary judgment is GRANTED as follows:

2. Plaintiff's deliberate medical indifference claim against defendants Matott, Fessette, Guynup, and LeClair are DISMISSED;

3. Plaintiff's due process claim against defendant Woodruff is DISMISSED;

4. Plaintiff's claims against all defendants in their official capacities are DISMISSED;

5. Defendants' motion for summary judgment is DENIED as to plaintiff's excessive force claim against defendant LeClair and DENIED as to plaintiff's failure to protect claim against defendants Matott, Fessette, and Guynup; and

6. Defendant John Doe is DISMISSED from this action as a result of plaintiff's failure to timely identify and serve him.

The Clerk is directed to serve a copy of this Decision and Order upon the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Correction Captain, Clinton Correction Correction Sergeant, Clinton Correctional Correction Sergeant, Clinton Correctional Facility, Correction Correction Officer, Clinton Correctional
FN1. The correct spelling of this Defendant's name is "Woodruff and the Court will reference him accordingly. Dkt. Nos. 14 & 23.
FN2. The correct spelling of this Defendant's name is "Matott" and the Court will reference him accordingly. Dkt. Nos. 14 & 23.

REPORT-RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

Pro se Plaintiff Tyshaun Mosely brings this action, pursuant to 42 U.S.C. § 1983, alleging that Defendants (1) used excessive force upon him, (2) failed to protect him from the use of excessive force, (3) were deliberately indifferent to his serious medical needs, and (4) deprived him of due process at a prison disc ary hearing. See generally Dkt. No. 1, Compl.FN3 Defendants now move for Summary Judgment. Dkt. No. 23. Plaintiff opposes the Motion. Dkt. No. 29. For the reasons that follow, we recommend that Defendants' Motion be GRANTED in part, and DENIED in part.

FN3. Plaintiff submitted a pro forma Complaint wherein he referred to an attached type written Complaint, both containing numbered paragraphs. See Dkt. No. 1. To avoid confusion we cite to the paragraphs enumerated in the Attached Complaint.

I. STANDARD OF REVIEW

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I. C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [FED. R. CIV. P. 56(e) ] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).

*2 To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmovant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).

II. DISCUSSION

A. Background

Except where noted, the following facts are undisputed. On August 19, 2011, a fight involving dozens of inmates erupted in the main yard at Clinton Correctional Facility ("CCF"). Dkt. No. 23-1, Defs.' Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Defs.' 7.1 Statement"), at ¶ 1. To regain control of the yard, correction officers fired multiple gunshots and ordered all inmates to lay down on the ground. Id. at ¶¶ 2 & 3. Officers then separated the inmates in the yard into three groups, those who were actively involved in or close to the fighting, those on the fringe of the fighting, and those who were not near the fighting but were in the yard. Id. at ¶¶ 3-6.FN4

Defendants claim that Plaintiff was amongst those inmates that were involved in or very near to the fighting. Id. at ¶¶ 16 & 22. Plaintiff disputes this claim. See Dkt. No. 23-4, Michael Guynup Decl., dated Aug. 23, 2012, Ex. D., Disciplinary Hr'g Tr., dated Aug. 26, 2011, at pp. 14-17.

FN4. Defendants have submitted surveillance footage depicting the melee in the yard, as well as the removal of inmates from the yard. See, e.g., Dkt. No 23-4, Michael Guynup Decl., dated Aug. 23, 2012, at Ex. A. However, the quality of the video is such that neither Plaintiff nor Defendants can be clearly identified, and thus is not helpful in resolving the parties' materially divergent factual accounts.

*3 After the melee ended, the inmates were removed from the yard and taken to the gymnasium where each inmate, including Plaintiff, was examined by the medical unit and photographed before being taken to their cells. Defs.' 7.1 Statement at ¶¶ 7-9. Plaintiff claims that while being transported from the main yard to the gymnasium, and while handcuffed behind his back, Defendants Le-Clair and Doe, "repeatedly punched and kicked [him] in the head, face and stomach." Compl. at ¶¶ 12-13. And that, once inside the gymnasium, in the presence of Defendants Matott, Fessette, and Guynup, "LeClair slapped [Plaintiff] across the face multiple times.... [and] several officers began punching and slapping [him] on the head and face. Others kicked [him] in the stomach and back." Id. at ¶¶ 14-16. Defendants deny that any such abuse occurred or that Defendants Matott, Fessette, or Guynup witnessed such abuse. See e.g. Defs.' 7.1 Statement at ¶¶ 12-13. Defendants also allege that Plaintiff neither reported any injuries, nor requested any medical attention after the incident. Id. at ¶¶ 10-11 & 14. Contrariwise, Plaintiff claims he suffered back pain as a result of the incident, but did not report it because he "was intimidated by the officials not to report any injuries... to the medical staff." Compl. at ¶¶ 17 & 19.

Misbehavior reports were issued to those inmates involved in the fight, and Defendant Woodruff was temporarily assigned to CCF to conduct disciplinary hearings. Defs.' 7.1 Statement at ¶¶ 15, 17, & 19. After hearing the testimony of Defendant Sgt. Guynup and viewing the video of the melee, Plaintiff was found guilty and sentenced to eighteen-months confinement in a Special Housing Unit ("SHU") and a recommendation that he lose twelve-monthsFN of good time credit. Id. at ¶¶ 24. Plaintiff was released from SHU sixty-seven days later after the disciplinary decision was reversed on appeal and expunged. Id. at ¶¶ 25 & 26.

FN5. There appears to be some confusion over he amount of good time credit Plaintiff lost as a result of the hearing. Compare Defs.' 7.1 Statement at ¶ 24, with Compl. at ¶ 27. However, it is clear from the transcript of Plaintiff's disciplinary hearing that the recommendation was for the loss of twelve-months of good time credit. Guynup Decl., Ex. D, Disciplinary Hr'g Tr. at p. 23.

B. John Doe

Plaintiff named a John Doe Defendant in his Complaint. See generally Compl. However, to date, and despite being reminded by this Court, FN6> Plaintiff has failed to ascertain the true identify of the Doe Defendant. Under FED. R. CIV. P. 4(c)(1) and 4(m), the plaintiff is responsible for service of the summons and complaint for each defendant within 120 days of the filing of the complaint.FN7 Failure to properly serve any defendant in accordance with the Federal Rules will result in the court, upon motion or on its own initiative, to dismiss the case without prejudice as to that defendant. Id. at 4(m). Here, Plaintiff had 120-days from December 10, 2011-the day he filed his Complaint-or, until April 9, 2012, to timely name and serve the Doe Defendant. Given Plaintiff's failure to do so, we recommend that the Doe Defendant be DISMISSED.

FN6. On January 27, 2012, this Court specifically reminded Plaintiff of his obligation to ascertain the true identity of, and serve the Doe Defendant Dkt. No. 6, Dec. and Order, dated Jan. 27, 2012, at p. 2.
FN7. Under the Local Rules for the Northern District of New York, a plaintiff must effectuate service within sixty (60) days. N.D.N.Y.L.R. 4.1(b)

C. Deliberate Medical Indifference

Plaintiff alleges that Defendants Matott, Fessette, Guynup, and LeClair denied him access to medical care in violation of the Eighth Amendment. Compl. at ¶ 34. Defendants argue that Plaintiff has failed to state an Eighth Amendment medical indifference claim because he has not alleged a sufficiently serious underlying medical condition. Defs.' Mem. of Law at pp. 9-10. We agree, and therefore, we recommend that Defendants' Motion be GRATED as to this claim.

*4 To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hathaway v. Coughlin ("Hathaway I"), 37 F.3d 63, 66 (2d Cir.1994). The first prong is an objective standard and considers whether the medical condition is sufficiently serious. The Second Circuit has stated that a medical need is serious if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (internal quotation marks and citation omitted). Among the relevant factors to consider are "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individuals' daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992)). The second prong is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite culpable mental state similar to that of criminal recklessness. Wilson v. Seiter, 501 U.S. 294, 301-03 (1991); Hathaway I, 37 F.3d at 66. A plaintiff must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm. Farmer v. Brennan, 511 U.S. at 836. This requires "something more than mere negligence... [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at 835; see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996) (citing Farmer v. Brennan ). "[T]he plaintiff must allege conduct that is repugnant to the conscience of mankind' or incompatible with the evolving standards of decency that mark the progress of a maturing society.'" Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.1992) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 105-06 (1976)).

Here, Petitioner claims that since the time of the alleged assault he has suffered "back pains." Compl. at ¶ 17. Courts have found chronic, debilitating back pain to be a serious injury for Eighth Amendment purposes. See Jordan v. Rabinowitz, 2010 WL 4810229, at *6 (N.D.N.Y. Aug. 24, 2010) (collecting cases for the proposition that severe long-lasting back pain constitutes a serious medical need); see also Rodriguez v. Smith, 2011 WL 4479689, at *5 (N.D.N.Y. Aug. 19, 2011) (collecting cases). However, unlike the plaintiffs in those cases, Mosely's complaints are unaccompanied by any medical diagnosis of a degenerative or chronic spinal condition, history of complaints of pain and suffering, or allegations that his condition has, in any meaningful way, interfered with his ability to go about his daily activities. See Chance v. Armstrong, 143 F.3d at 702. Thus, Plaintiff's "back pains" are not sufficiently serious for purposes of an hth Amendment medical indifference claim.FN>8 Therefore, we recommend that Defendants' Motion be GRANTED as to this claim.

FN8. Plaintiff maintains that there is no medical diagnosis or history of complaints regarding his back pain because he was "intimidated by the officials" not to report any pain or injury. Id. at ¶ 19. In addition to the fact that Plaintiff fails to name the "officials" that allegedly intimidated him, or describe the form or manner of the intimidation, here, even if Plaintiff had reported his "back pains, " the outcome would have been the same because such an injury is not sufficiently serious for purposes of the Eighth Amendment. Additionally, Plaintiff also claims that he was denied a sick call request on August 20, 2011. Dkt. No. 29, Pl.'s Decl. in Opp'n, dated Nov. 18, 2012, at ¶ 13. However, once again, Plaintiff does not allege who he filed the request with, or that one of the named Defendants was responsible for denying it. Genuine issues of material fact are not raised by such vague and conclusory allegations. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).

D. Excessive Force

*5 Plaintiff next claims that Defendant LeClair used excessive force against him. Compl. at ¶ 32. Defendants argue, inter alia, that Plaintiff has failed to state a cause of action because his injuries are not sufficiently serious. Dkt. No. 23-2, Defs.' Mem. of Law, at pp. 6-10. We disagree and therefore recommend Defendants' Motion be DENIED as to this claim.

The Eighth Amendment prohibits the infliction of cruel and unusual punishment and is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67 (1962) (cited in Tramell v. Keane, 338 F.3d 155, 161 (2d Cir.2003)). In Hudson v. McMillian, 503 U.S. 1 (1992), the Supreme Court clarified the standards for determining whether an Eighth Amendment violation occurred in the context of excessive force. Specifically, the Court stated that, "whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley [v. Albers, 475 U.S. 312 (1986) ]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." 503 U.S. at 6-7 (quoted in Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.1994)). To validly assert a violation of the Eighth Amendment through the use of excessive force, an inmate must prove two components: (1) objectively, that the defendant's actions violated "contemporary standards of decency, " and (2) subjectively, that the defendant acted wantonly and in bad faith. Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir.1999) (internal quotation marks and citations omitted).

Regarding the objective element, we note initially that "a de minim is use of force will rarely suffice to state a constitutional claim[.]" Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993). In that respect, "[n]ot 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." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (quoted in Hudson v. McMillian, 503 U.S. at 10). However, the malicious use offorce to cause harm constitutes an Eighth Amendment violation per se because in such instances "contemporary standards of decency always are violated." Blyden v. Mancusi, 186 F.3d at 263 (citing Hudson v. McMillian, 503 U.S. at 9). For example, "when a prison guard applies force against a prisoner that poses no reasonable threat simply because the guard loses his or her temper and wishes to wantonly inflict pain on the prisoner, a per se violation of the Eighth Amendment occurs." Beckford v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y.2001) (citation omitted).

With regard to the subjective component, a court should consider whether the defendant had a wanton state of mind when engaging in the alleged misconduct. To determine whether a defendant acted wantonly or maliciously, several factors should be examined, including

*6 the extent of the injury and the mental state of the defendant, as well as 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 defendants to temper the severity of a forceful response.

Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (internal quotation marks and citations omitted); see also Hudson v. McMillian, 503 U.S. at 7).

Although we agree with Defendants that Plaintiff's alleged injury, "back pains, " appears to be de minimis, our inquiry does not end there. Although the court should consider the seriousness of the injury in assessing the objective element, "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury;" thus, "the seriousness of the injury is relevant to the Eight Amendment inquiry, but does not end it." Davidson v. Flynn, 32 F.3d at 29-30 n. 1 (alterations in original) (quoting Hudson v. McMillian, 503 U.S. at 4). Moreover, if Plaintiff's claims that he was kicked, punched, and slapped in the face, stomach, head, and back while handcuffed behind his back and not presenting any particular threat to Defendant LeClair are found credible, a reasonable juror could conclude that the application of force in this case was not made in a good faith effort to maintain control or restore order, but rather with the sole purpose of causing harm. See Hudson v. McMillian, 503 U.S. at 6-7. Accordingly, because issues of material fact remain as to whether or not such acts did indeed occur, we recommend that Defendants' Motion be DENIED.

E. Failure to Protect

Plaintiff further claims that Defendants Matott, Fessette, and Guynup, were present when such force was used, yet none of these Defendants intervened on Plaintiff's behalf. Compl. at ¶¶ 14-16 & 33. Defendants argue that these officers were neither present in the gymnasium nor witnessed any such abuse. Defs.' Mem. of Law at p. 11. For the reasons that follow we recommend that Defendants' Motion be DENIED.

"The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996) (citing Farmer v. Brennan, 511 U.S. at 832-33); Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y.1997) ("Prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner."); see also Avincola v. New York State Dep't of Corr. Servs., 1998 WL 146280, at *3 (N.D.N.Y. Mar. 27, 1998).

In order to state such a claim based upon the failure to protect, a prisoner must demonstrate that prison officials "acted with deliberate indifference with respect to his safety or with an intent to cause harm to him." Hendricks v. Coughlin, 942 F.2d at 113. A showing of mere negligence on behalf of the defendants is not enough to state a constitutional claim. Whitley v. Albers, 475 U.S. at 319 (cited in Hendricks v. Coughlin, 942 F.2d at 113). The key element of a failure to protect claim is the existence orpotential existence of a substantial risk of serious harm, not the actual harm which may or may not ensue. Farmer v. Brennan, 511 U.S. at 836. To prove deliberate indifference, the plaintiff must show that the "official [knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837 (cited in Ramirez v. Mantello, 1998 WL 146246, at *2 (N.D.N.Y. Mar. 24, 1998)). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (emphasis added).

*7 Further, a supervisor can be held liable when he or she has actual or constructive notice of unconstitutional practices, but similarly acted with gross negligence or deliberate indifference in failing to act. See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989). "Such a supervisor may not escape the consequences of his or her failure to act by pleading the doctrine of qualified immunity." Fossett v. Morris, 1991 WL 67093, at *3 (S.D.N.Y. Apr. 22, 1991).

If Plaintiff's allegations that he was repeatedly struck by corrections officers in the presence of Defendants Matott, Fessette, and Guynup are accepted as true, a reasonable juror could conclude that these Defendants had both the opportunity and the obligation to intervene on Plaintiff's behalf, and, that they failed to do so. See Farmer v. Brennan, 511 U.S. at 836-37. Defendants' claims that they were not present for and did not witness any alleged abuse are insufficient to warrant summary judgment; here Defendants offer only their own hearsay statements and the incident reports the pared themselves to support their claims.FN9 See, e.g., Guynup Decl. at ¶¶ 20-23, 26, & Exs. A & B; Dkt. No 23-8, Paul Fessette Decl., dated Aug. 23, 2012, at ¶¶ 17-20 & 23. Thus, genuine issues of material fact exist regarding whether these Defendants were present in the gymnasium while Plaintiff was allegedly repeatedly struck by other corrections officers. Therefore, we recommend that Defendants' Motion be DENIED as to this claim.

FN9. Moreover, at least with regards to Defendants' claim that Defendant Matott was never in the gym, the record evidence suggests otherwise. In a signed incident report prepared by Defendant Matott, he states "after most Inmates on the flats area were taken to the gym I went to the gym." Dkt. No. 23-4, Ex. B, at pp. 68-69, Lt-Mem., dated Aug. 19, 2011.

F. Due Process

Plaintiff alleges that he was deprived of due process at his disciplinary hearing and, as a result, wasunfairly convicted and given eighteen-months confinement in SHU and a recommended loss of twelve-months of good time credit. Compl. at ¶ 35. Defendants argue that Plaintiff had no discernable liberty interest and thus has failed to state a due process claim. Defs.' Mem. of Law at pp. 12-15. We agree, and therefore, we recommend that Defendants' Motion be GRANTED as to this claim.

The Due Process Clause of the Fourteenth Amendment protects against restraints or conditions of confinement that "exceed[ ] the sentence in... an unexpected manner[.]" Sandin v. Conner, 515 U.S. 472, 484 (1995). To state a due process claim under § 1983, an inmate must first establish that he enjoys a protected liberty interest. Arce v. Walker, 139 F.3d 329, 333 (2d Cir.1998) (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Inmates' liberty interests are derived from two sources: (1) the Due Process Clause of the Fourteenth Amendment; and (2) state statute or regulations. Id. With regard to liberty interests arising directly under the Due Process Clause, the Supreme Court has "narrowly circumscribed its scope to protect no more than the most basic liberty interests in prisoners [, ]'" Arce v. Walker, 139 F.3d at 333 (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)), and limited to freedom from restraint that "exceed[ ] the sentence in... an unexpected manner[.]" Sandin v. Conner, 515 U.S. at 478.

*8 Turning to liberty interests created by the state, the Supreme Court states that such liberty interests shall be limited solely to those deprivations which subject a prisoner to "atypical and significant hardship... in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. at 484; see also Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001) (citing Sandin v. Connor ); Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir.1999).

Factors relevant to an analysis of what constitutes an atypical and significant hardship include "(1) the effect of the confinement on the length of prison incarceration, (2) the extent to which the conditions of segregation differ from other routine prison conditions, and (3) the duration of the disciplinary segregation compared to discretionary confinement." Spaight v. Cinchon, 1998 WL 167297, at *5 (N.D.N.Y. Apr. 3, 1998) (citing Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998)); see also Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (stating that in assessing what constitutes an atypical and significant hardship, "[b]oth the conditions [of confinement] and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical" (citation omitted)). Though the length of the confinement is one guiding factor in a Sandin analysis, the Second Circuit has cautioned that "there is no bright-line rule regarding the length or type of sanction" that meets the Sandin standard. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999) (citations omitted).

Here, Plaintiff was sentenced to serve eighteen-months in SHU and it was recommended that he lose twelve-months of good time credit. Disciplinary Hr'g Tr. at p. 23. However, Plaintiff's conviction was later overturned on appeal and Plaintiff was released from SHU after serving only sixty-seven days. Dkt. No. 29, Tyshaun Mosely Decl., dated Nov. 18, 2012, at ¶¶ 18 & 19. The Second Circuit has held that it is the length of the actual punishment that is relevant in determining whether a period of SHU confinement implicates a cognizable liberty interest, and, not the length of the sentence imposed. Scott v. Albury, 156 F.3d 283, 287-88 (2d Cir.1998) ("No right to due process is implicated in the prison context unless a liberty interest has been deprived, and we read Sandin [v. Conner ] to require that we look to actual punishment in making this determination."). Therefore, the relevant period of confinement for the purposes of our analysis is the sixty-seven days Plaintiff spent in SHU, and not the eighteen-months he was sentenced to by Defendant Woodruff.

Despite the fact that no bright-line rule exists, courts within the Second Circuit have repeatedly found that periods of SHU confinement under normal conditions "lasting fewer than 101 days have been found not to amount to [an] atypical and significant hardship." See Dawkins v. Gonyea, 646 F.Supp.2d 594, 606 (S.D.N.Y.2009) (citing Sealy v. Giltner, 197 F.3d 578, 588-90 (2d Cir.1999)); see also Edmonson v. Coughlin, 1996 WL 622626, at *4-5 (W.D.N.Y. Oct. 4, 1996) (citing cases for the proposition that courts within the Second Circuit tend to rule, as a matter of law, that "disciplinary keeplock or SHU confinement to 60 days or less in New York prisons is not an atypical or significant hardship in relation to the ordinary incidents of prison life"); Alvarado v. Kerrigan, 152 F.Supp.2d 350, 355 (S.D.N.Y.2001) (93 days) (citing Williams v. Goord, 111 F.Supp.2d 280, 289 (S.D.N.Y. July 28, 2000) (75 days confinement); Jackson v. Johnson, 15 F.Supp.2d 341, 361-62 (S.D.N.Y.1998) (99 days); Trice v. Clark, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (150 days)). That is not to say that any period of confinement that does not last longer than 101 days cannot be atypical. See Palmer v. Richards, 364 F.3d at 65 (noting that SHU confinements of less than 101 days could constitute atypical and significant hardships if the conditions were more severe than the "normal SHU conditions"). Here, the record is completely devoid of any evidence that the SHU conditions Plaintiff experienced during his sixty-seven day confinement differed from the ordinary incidents of prison life as experienced by other SHU or general population inmates. Thus, the sixty-seven days Plaintiff served in SHU did not implicate a cognizable liberty interest.

*9 Therefore, we recommend that Defendants' Motion be GRANTED as to this claim.

G. Eleventh Amendment Immunity

The Eleventh Amendment states, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. Although by its terms, the amendment bars suit by citizens of one state against another state, the Supreme Court has held that such amendment similarly bars suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). "The Eleventh Amendment thus affirm[s] that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.'" Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 447-48 (2d Cir.1999) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98 (1984)). Thus, sovereign immunity provided for in the Eleventh Amendment prohibits suits against the state, including a state agency in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. at 98-101; Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir.1993); Daisernia v. State of New York, 582 F.Supp. 792, 796 (N.D.N.Y.1984). To the extent a state official is sued for damages in his or her official capacity, "such a suit is deemed to be a suit against the state, and the official is entitled to invoke the eleventh amendment immunity belonging to the state." Rourke v. New York State Dep't. of Corr. Servs. 915 F.Supp. 525, 539 (N.D.N.Y.1995) (citing Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir.), cert. denied, 510 U.S. 1073 (1994); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993)); see also Mathie v. Fries, 121 F.3d 808, 818 (2d Cir.1997) ("A claim against a government officer in his official capacity is, and should be treated as, a claim against the entity that employs the officer....").

However, whether state officials sued in their official capacities are entitled to Eleventh Amendment immunity depends also upon the relief sought in the complaint. The Second Circuit has held that in accordance with Ex parte Young, 209 U.S. 123 (1908), "acts of state officials that violate federal constitutional rights are deemed not to be acts of the state and may be subject of injunctive or declaratory relief in federal court." Berman Enters., Inc. v. Jorling, 3 F.3d at 606 (citations omitted); see also Rourke v. New York State Dep't of Corr. Servs., 915 F.Supp. at 540.

Here, Plaintiff has not requested any injunctive relief against the individual Defendants in their personal or official capacities. Therefore, because Plaintiff has requested only monetary relief, we recommend that Defendants' Motion for Summary Judgment be GRANTED as to Plaintiff's claims against Defendants in their official capacities.

H. Qualified Immunity

*10 Defendants claim that Defendant Woodruff is entitled to qualified immunity for his role as hearing officer at Plaintiff's disciplinary hearing. However, as we have found no due process violation, we need not, ...


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