United States District Court, N.D. New York
Raheem Shabazz, Albion, New York, Plaintiff, pro se.
Eric T. Schneiderman, Attorney General for the State of New York Tiffinay M. Rutnik Esq., Assistant Attorney General, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Plaintiff Raheem Shabazz, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action under 42 U.S.C. § 1983 for compensatory and punitive damages. Defendants' motion (Dkt. No. 57) for summary judgment dismissing the action was referred to United States Magistrate Judge David E. Peebles pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Peebles issued a Report and Recommendation (Dkt. No. 72) recommending summary judgment dismissing all claims against all defendants on the basis that: no reasonable factfinder could conclude that plaintiff was denied adequate due process before being sentenced to keeplock confinement; and verbal harassment, without more, is not cognizable under § 1983.
Plaintiff has objected to Magistrate Judge Peebles's Report and Recommendation. Dkt. No. 73. He claims that: the Administrative Supervisor's reversal of both misbehavior reports, which led to keeplock confinement, demonstrates that both hearing officers were biased; and Magistrate Judge Peebles erred in finding there was no issue of material fact requiring trial with respect to his harassment claim.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). The Court resolves the issues as set forth below.
The Court adopts Magistrate Judge Peebles's summary of the facts, procedural history, and applicable law. The Court does not repeat them here.
In his objection (Dkt. No. 73), plaintiff asserts that the reversal of the misbehavior reports supports his claim that the hearing officers were biased and raises a question of fact requiring trial on his due process claim. Magistrate Judge Peebles addressed both disciplinary hearings (April 17, 2008 and May 2, 2008) and found that: (1) there was an issue of material fact concerning whether plaintiff was deprived of a cognizable liberty interest; (2) but that defendants were nevertheless entitled to summary judgment because plaintiff failed to raise a question of fact with respect to whether he was deprived of that interest without sufficient process.
As Magistrate Judge Peebles explained:
As a general matter, to prevail on a section 1983 due process claim arising out of a disciplinary hearing, a plaintiff must show that he both (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 ...