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McAllister v. Call

United States District Court, N.D. New York

October 9, 2014

CHARLES McALLISTER, a/k/a/ Charles McCallister, Plaintiff,
v.
HAROLD CALL, Vocational Supervisor, Mohawk Correctional Facility, Defendant.

Charles McAllister, Westbury, New York, Plaintiff Pro Se.

ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, KEITH J. STARLIN, ESQ., Assistant Attorney General, Attorney for Defendant.

REPORT-RECOMMENDATION AND ORDER[1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Charles McAllister ("McAllister), a former inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), [2] brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Harold Call ("Call"), Vocational Supervisor, Mohawk Correctional Facility ("Mohawk"), violated his constitutional rights under the First, Eighth and Fourteenth Amendments. Am. Compl. (Dkt. No. 64) ¶¶33, 34; 4. McAllister initially commenced this civil rights action against defendants Brian Fischer, Lucien J. LeClaire, Patricia LeConey, Carol Woughter, and John and Jane Does. Defendants moved for summary judgment. Dkt. No. 49. By report and recommendation dated July 6, 2012, (1) all claims against identified defendants were dismissed; and (2) defendant was directed to join Call, who was identified in the motion papers as a John Doe defendant. Dkt. No. 55; Dkt. No. 58. The report and recommendation was accepted in its entirety, and McAllister was directed to file an amended complaint to "include only one cause of action - a procedural due process claim in connection with his disciplinary hearing - and one Defendant - hearing officer Call." Dkt. No. 58 at 4. McAllister thereafter filed his amended complaint wherein he requested punitive and compensatory damages. Am. Compl. at 4. Presently pending is Call's motion for summary judgment on the amended complaint pursuant to Fed.R.Civ.P. 56. Dkt. No. 74. McAllister did not respond. For the following reasons, it is recommended that Call's motion be granted in part and denied in part.

I. Failure to Respond

The Court notified McAllister of the response deadline and extended the deadline for his opposition papers on two occasions. Dkt. No. 75; Dkt. No. 77; Dkt. No. 80. Call also provided notice of the consequence of failing to respond to the motion for summary judgment in his motion papers. Dkt. No. 74-1. Despite these notices and extensions, McAllister did not respond.

Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Thus, "[t]he fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Id. at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id.; FED. R. Cm P. 56 (c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (internal citations omitted); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (same). The facts set forth in defendant's Rule 7.1 Statement of Material Facts (Dkt. No. 74-2) are accepted as true as to those facts that are not disputed in McAllister's amended complaint. N.D.N.Y.L.R. 7.1 (a) (3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.").

II. Background

The facts are reviewed in the light most favorable to McAllister as the non-moving party. See subsection III (A) infra. At all relevant times, McAllister was an inmate at Mohawk. Am. Compl. ¶ 3.

On or about July 15, 2009, nonparty Correction Officer Femia, pursuant to authorization from nonparty Captain Dauphin, searched McAllister's personal property while McAllister was confined in a secure housing unit ("SHU").[3] Dkt. No. 74-3, Exh. A, at 14; Am. Compl. ¶¶ 5-6. Femia confiscated approximately twenty documents from McAllister's locker, including five affidavits that were signed by other inmates. Dkt. No. 74-3, Exh. A, at 14. As a result of the search, Femia issued McAllister a Tier III misbehavior report, alleging violations of prison rules 113.15[4] (unauthorized exchange) and 180.17 (unauthorized assistance).[5] Id.; Am. Compl. ¶ 7.

McAllister was assigned as his inmate assistant nonparty Correction Officer A. Sullivan. Am. Compl. ¶ 7; Dkt. No. 74-3, Exh. A, at 11. McAllister requested five inmate witnesses, documents, prison directives 4933 and 4982, and a facility rule book. Am. Compl. ¶ 8; Dkt. No. 74-3, Exh. A, at 11. He also asked Sullivan for permission to retrieve documents from his personal property. Id. The requested witnesses were those inmates whose signatures were affixed to the five confiscated affidavits. Dkt. No. 74-3, Exh. A, at 14. Sullivan retrieved the requested materials, and all inmate witnesses agreed to testify. Id. at 11.

On or about July 21, 2009, a Tier III disciplinary hearing was held before Call, who served as the hearing officer. Am. Compl. ¶ 10. McAllister pleaded not guilty to both alleged violations. Dkt. No. 74-3, Exh. A, at 38. McAllister objected to the misbehavior report as violative of prison directive 4932 because the copy he was given (1) provided insufficient notice of the charges against him and (2) differed from the report that Call read into the record. Id. at 39-41. McAllister stated that his copy did not list the names of the inmates to whom the confiscated affidavits allegedly belonged. Id. Call acknowledged the difference between the reports but concluded that the misbehavior report informed McAllister of the charges against him and the bases for the charges. Id. at 39, 41-42. McAllister also argued that his copy of the misbehavior report referred to confiscation of twenty documents from his cell, but did not identify the papers that were taken. Id. at 42. He contended that the misbehavior report's general reference to "legal work" was insufficient to provide him with notice of the documents to which the report was referring because he had several volumes of legal work. Id. at 42, 59. In response to this objection, Call recited the body of the misbehavior report, which described the confiscated documents as "[a]rticles of paper which appear to be legal work including some signed affidavits" and asked McAllister, "[t]hat didn't ring a bell for you? How much paperwork did you have that fit that description?" Id. at 42. Call also expressed his belief that the affidavits qualified as legal work. Id. at 45, 57-58.

McAllister next argued that he did not provide unauthorized legal assistance to another inmate in violation of rule 180.17 because the inmate affidavits were used as evidence to prove that the Division of Parole had a "practice" of "fail[ing] to respond to appeals over the last four years...." Dkt. No. 74-3, Exh. A at 45-49, 56. These inmates were aware that their affidavits were created for, and to be used solely in support of, McAllister's case and that they were receiving no legal benefit. Id. at 48-49. McAllister further contended that he did not need permission from prison personnel to collect the affidavits. Id. at 64.

McAllister also argued that rule 113.15 is ambiguous because it does not list the specific items which, if found in an inmate's possession, would violate the rule. Dkt. No. 74-3, Exh. A, at 54. Finally, to the extent it can be determined from the hearing transcript, McAllister objected to the SHU procedures for handling his personal property. Id. at 70.

At the conclusion of the hearing, Call informed McAllister that he would be considering testimony from a confidential witness. Dkt. No. 73-3, Exh. A, at 13, 38, 73. McAllister objected to consideration of confidential testimony without being informed of the contents. Id. at 74. Finally, McAllister declined to call the inmates that he had requested as witnesses. Id. at 37, 71.

Call found McAllister guilty of violating prison rules 113.15 and 180.17. Dkt. No. 74-3, Exh. A, at 8-9, 76. He imposed a penalty of three months in SHU and three months loss of privileges. Id. at 8. Call relied upon the misbehavior report, the confidential testimony, the packet of legal work containing the other inmates' affidavits, and McAllister's testimony and statements. Id. at 9.

The disciplinary determination was reversed upon administrative appeal on the ground that the evidence failed to support a finding of guilt. Dkt. No. 74-3, Exh. B, at 79; Exh. C, at 81. In May 2010, McAllister commenced this action pursuant to 42 U.S.C. § 1983.

III. Discussion[6]

McAllister argues that Call violated his rights under (1) the First Amendment, by (a) retaliating against him by finding him guilty and (b) hindering his access to the courts; (2) the Eighth Amendment, by imposing a three-month SHU assignment, plus ten additional days following reversal of the disciplinary hearing; and (3) the Fourteenth Amendment, because (a) he was given insufficient notice of the charges against him, (b) he was denied advance notice of the use of a confidential witness, (c) he was forced to spend approximately fifty-two days in SHU as a result of the misbehavior report, (d) Call failed to follow certain DOCCS directives and prison regulations, (e) Call demonstrated bias against him during the Tier III hearing and prejudged his guilt, and (f) he was denied equal protection.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by affidavits or other suitable evidence, and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by providing the court with portions of pleadings, depositions, and affidavits which support the motion. FED. R. Cm P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Federal 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 Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

B. Eleventh Amendment

Call argues that he is entitled to Eleventh Amendment immunity relating to McAllister's claims for money damages against him in his official capacity. The Eleventh Amendment provides that "[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. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)). Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100. Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).

A suit against a state official in his or her official capacity is a suit against the entity that employs the official. Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). "Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself, " rendering the latter suit for money damages barred even though asserted against the individual officer. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Here, because McAllister seeks monetary damages against Call for acts occurring within the scope of his duties, the Eleventh Amendment bar applies.

Accordingly, it is recommended that Call's motion on this ground be granted.

C. Personal Involvement

"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). However, supervisory personnel may be considered personally involved if:

(1) [T]he defendant participated directly in the alleged constitutional violation;
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon, 58 F.3d at 873 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).[7] Assertions of personal involvement that are merely speculative are insufficient to establish a triable issue of fact. See e.g., Brown v. Artus, 647 F.Supp.2d 190, 200 (N.D.N.Y. 2009).

As to any constitutional claims beyond those surrounding the denial of due process at the Tier III hearing, the undersigned notes that evaluation of such is unnecessary as it is outside of the scope set forth in this Court's prior order. Dkt. No. 58 at 4. However, to the extent that Call acknowledges these claims and provides additional and alternative avenues for dismissal, McAllister fails to sufficiently allege Call's personal involvement in impeding his access to the courts, in violation of the First Amendment. McAllister argues that, as a result of Call's determination that he violated rules 113.15 and 180.17, his legal paperwork was confiscated, which impaired his ability to continue to represent himself in pending state and federal court claims. Am. Compl. ¶¶ 38-40. However, McAllister does not suggest that Call was personally involved in either the search and confiscation of paperwork that led to the filing of the misbehavior report nor the subsequent reduction in his paperwork pursuant to directive 4913. To the contrary, McAllister concedes that the paperwork was reduced pursuant to the directive.

McAllister also fails to sufficiently allege Call's personal involvement in the SHU procedures for storing property or in holding him in SHU for ten additional days following the reversal of the Tier III determination. Call stated that hr had no involvment with the storage of property in SHU. Dkt. No. 74-3, at 5. Call also contended that he "was not responsible for plaintiff's being held in SHU for additional days following the August 26, 2009 reversal of the disciplinary hearing decision of July 22, 2009." Id. McAllister does not allege Call's involvement in this delay. McAllister's sole reference to the ten-day delay is his claim that he "was not released from Special Housing until September 4, 2009, approximately 10 days after the reversal" Am. Compl. ¶ 43. This conclusory statement is insufficient to demonstrate Call's personal involvement in an extension of his time in SHU following the reversal of the Tier III determination. Brown, 647 F.Supp.2d at 200.

Accordingly, it is recommended that Call's motion be granted insofar as McAllister alleges that Call: denied him access to the courts in violation of the First Amendment, was at all involved with the storage of his property while he was in SHU, and caused him to be held an additional ten days in SHU following administrative reversal of the Tier III determination.

D. First Amendment

McAllister appears to argue that, in retaliation for his filing of grievances and lawsuits, Call found him guilty of the misconduct in the Tier III hearing and imposed SHU time. He suggests that his transfer to SHU, as a result of the Tier III determination, triggered enforcement of his compliance with directive 4913, which impeded his ability to proceed with active legal matters and resulted in dismissals. Am. Compl. ¶ 41. Thus, McAllister also argues that he was denied access to the courts. Am. Compl. 1138. As a preliminary matter, McAllister's First Amendment retaliation and access claims are beyond the scope of the prior order of this Court directing McAllister to limit his amended complaint "include only one cause of action - a procedural due process claim in connection with his disciplinary hearing." Dkt. No. 58, at 4. Regardless, McAllister fails to plausibly allege either retaliation or denial of access to the courts.

Courts are to "approach [First Amendment] retaliation claims by prisoners with skepticism and particular care." See e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds la Swierkiewicz v. Sorema, NA, 534 U.S. 506 (2002)). A retaliation claim under section 1983 may not be conclusory and must have some basis in specific facts that are not inherently implausible on their face. Ashcroft, 556 U.S. at 678; South Cherry St., LLC v. Hennessee Group LLC, 573 F.3d 98, 110 (2d Cir. 2009). To survive a motion to dismiss, a plaintiff must show "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Taylor v. Fischer, 841 F.Supp.2d 734, 737 (W.D.N.Y. 2012). If the plaintiff meets this burden, the defendants must show, by a preponderance of the evidence, that they would have taken the adverse action against the plaintiff "even in the absence of the protected conduct." Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "Types of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." See Barclay v. New York, 477 F.Supp.2d 546, 588 (N.D.N.Y. 2007).

Here, McAllister baldly states that Call's disciplinary determination was imposed in retaliation for his filing of grievances and lawsuits; however, McAllister does not identify these grievances and lawsuits nor does he claim that any of these were lodged against Call. See generally Ciaprazi v. Goord, No. 02-CV-915, 2005 WL 3531464, at *9 (N.D.N.Y. Dec. 22, 2005) (dismissing the plaintiff's claim of retaliation where the plaintiff could "point to no complaints lodged by him against or implicating the conduct of [the] defendant... who issued the disputed misbehavior report."). McAllister also provides no time frame for the apparent grievance and lawsuits. Thus, it cannot be discerned whether or how these unnamed grievances and lawsuits were a "motivating factor" in Call's Tier III determination. Doyle, 429 U.S. at 287 (internal quotation marks and citation omitted). McAllister's unsupported, conclusory claim fails to plausibly demonstrate that Call's determination was a product of retaliatory animus.

Undoubtedly, prisoners have a constitutional right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977); Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that Bounds acknowledged was the (already well-established) right of access to the courts."). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents[] or file them." Lewis, 518 U.S. at 350 (internal citations omitted). To establish a denial of access to the courts claim, a plaintiff must satisfy two prongs. First, a plaintiff must show that the defendant acted deliberately and maliciously. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). Second, the plaintiff must demonstrate that he suffered an actual injury. Id.; Monsky v. Moraghan, 123 F.3d 243, 247 (2d Cir. 1997) (internal citations, quotation marks, and alterations omitted) (quoting Lewis, 518 U.S. at 329) ("In order to establish a violation of access to courts, a plaintiff must demonstrate that a defendant caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff's effort to pursue a legal claim"). Thus, a plaintiff must allege that the defendant was "responsible for actions that hindered his efforts to pursue a legal claim." Davis, 320 F.3d at 351 (internal quotation marks omitted).

Here, there is insufficient evidence to give rise to a genuine dispute of fact regarding either element of a denial of court access claim. As noted, McAllister merely states that, as a result of the property reduction pursuant to directive 4913, his "ability to continue litigation in Federal and State court caused adverse decisions by the court and dismissals." Am. Compl. ¶ 41. This claim is insufficient to demonstrate that Call was responsible for actions that hindered his legal claims. Insofar as McAllister's claim could be read to suggest that Call denied him access to the courts by confiscating his legal documents, as noted supra, McAllister fails to present any plausible facts to support a finding that Call was involved in the initial search of his property or in the later reduction of his property or that it was maliciously imposed by Call. As noted, the initial cell search which led to the misbehavior report was ordered by Captain Dauphin and executed by Correction Officer Femia. Similarly, McAllister concedes that his property was reduced pursuant to directive 4913. Although McAllister suggests that his transfer to SHU as a result of the Tier III hearing triggered the application of directive 4913, he was transferred to SHU on July 9, six days before the initial cell search occurred. Id. ¶ 5. Thus, if McAllister were forced to comply with directive 4913 because of his transfer to SHU, he failed to demonstrate that the compliance arose from the SHU term ordered by Call rather than the unknown incident that resulted in his transfer to SHU on July 9. Further, McAllister failed to establish any actual injury because he did not specify which cases were allegedly dismissed as a result of the property reduction. See Monsky, 123 F.3d at 247.

Accordingly, it is recommended that Call's motion for summary judgment be granted on this ground.

E. Eighth Amendment

In his amended complaint, McAllister references the Eighth Amendment. Am. Compl. ¶ 31. However, McAllister's only reference to the Eighth Amendment is his assertion that Call's use of a confidential witness violated his Eighth Amendment right to be free from cruel and unusual punishment. However, in support of this argument, McAllister states only that this right was violated when Call stated, "[s]o, um there is a lot of stuff going on through my paperwork and I want to bring it to your attention before we move on..." Id. ¶ 33; Dkt. No. 74-3, at 73. When read in context, it becomes clear that Call made this statement immediately before informing McAllister of his consideration of confidential information. Dkt. No. 73-3, at 73. Although, in referencing this portion of the hearing transcript McAllister alleges that he was subject to cruel and unusual punishment, it appears that McAllister intended to assert that the use of a confidential witness was a due process violation. Even if McAllister had intended to argue that use of a confidential witness violates the prohibition of cruel and unusual punishment, such a claim would necessarily fail because the Eighth Amendment protects an inmate's right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 & 837 (1994). As McAllister makes no claim that he faced conditions of confinement imposing a risk to his health or safety and instead focuses his argument on notice of a confidential witness, giving McAllister due solicitude, his claim regarding the use of a confidential witness will be incorporated as part of the due process analysis below.

F. Fourteenth Amendment

1. Due Process

Well-settled law provides that inmates retain due process rights in prison disciplinary hearings." Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (per curiam) (citing cases). However, inmates do not enjoy "the full panoply of rights" accorded to a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). For a plaintiff to state a claim that he was denied due process at a disciplinary hearing, the plaintiff "must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (per curiam) (quoting Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001)). To satisfy the first prong, a plaintiff must demonstrate that the deprivation of which he complains is an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). "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).

a. Denial of Liberty Interest

In assessing whether an inmate plaintiff was denied procedural due process, the court must first decide whether the plaintiff has a protected liberty interest in freedom from SHU confinement. Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir.1996). If the plaintiff demonstrates the existence of a protected liberty interest, the court is then to determine whether the deprivation of this interest "occurred without due process of law." ki at 351, citing Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989). Due process generally requires that a state afford an individual "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). Although not dispositive, duration of disciplinary confinement is a significant factor in determining atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000); Blackshear v. Woodward, No. 13-CV-1165, 2014 WL 2967752 (N.D.N.Y. July 1, 2014).

McAllister suggests that his confinement in SHU for forty-two to fifty-two days is a sufficient deprivation that requires procedural protections. Freedom from SHU confinement may give rise to due process protections; however, the plaintiff must allege that the deprivation imposed "an atypical and significant hardship." Sandin, 515 U.S. at 484; Gaston v. Coughlin, 249 F.3d 156, 162 (2d Cir. 2001) (concluding that SHU confinement does not give rise to due process protections where inmate failed to demonstrate atypical hardship while confined). Although 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)), it has made clear that confinement in SHU for a period of one year constitutes atypical and significant restraint on inmates, deserving due process protections. See e.g. Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000) (holding confinement in SHU exceeding 305 days was atypical); Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir.1999) (concluding confinement for fewer than 101 days in SHU, plus unpleasant but not atypical conditions, insufficient to raise constitutional claim). Although the Second Circuit has generally held that confinement in SHU for 101 or fewer days without additional indicia of atypical conditions generally does not confer a liberty interest ( Smart v. Goord, 441 F.Supp.2d 631, 641 (2d Cir. 2006)), it has "explicitly noted that SHU confinements of fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions of Sealey or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical." Palmer v. Richards, 364 F.3d 60, 65 (2d. Cir. 2004) (citing, inter alia, Ortiz, 323 F.3d at 195, n. 1).

The undersigned notes that it is unclear what portion of McAllister's relatively brief time in SHU is attributable to the Tier III determination, because it appears that McAllister was already in SHU when the instant disciplinary report was filed. Am. Comp. ¶ 5; Dkt. No. 74-3, Exh. A, at 14. The undersigned also notes that there is no indication that McAllister endured unusual SHU conditions. The only reference McAllister makes to his time in SHU is that, upon his transfer to SHU, several bags of his paperwork were confiscated pursuant to directive 4913. Id. ¶ 37. However, review of directive 4913 reveals that the personal and legal property limit set forth in directive 4913 applies to the general prison population and inmates in other forms of segregated confinement. Dkt. No. 49-2, at 5-19. Thus, the fact that McAllister was forced to comply with directive 4913 does not indicate that he was subjected to conditions more severe than the normal SHU conditions or conditions imposed on the general prison population. Dkt. No. 74-3, Exh. A, at 14.

Although the record is largely absent of detail of the conditions McAllister faced in SHU, there is also nothing in the record comparing the time McAllister was assigned and spent in disciplinary confinement with the deprivations endured by other prisoners "in the ordinary course of prison administration, " which includes inmates in administrative segregation and the general prison population. Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999) (holding that, after Sandin, "the relevant comparison concerning duration is between the period of deprivation endured by the plaintiff and periods of comparable deprivation typically endured by other prisoners in the ordinary course of prison administration, including general population prisoners and those in various forms of administrative and protective custody"). Because "[t]he record does not reveal whether it is typical for inmates not being disciplined to spend similar periods of time in similar circumstances, " Call's motion for summary judgment should be denied. Id. at 394 (citing Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997)).

Accordingly, it is recommended that defendant's motion for summary judgment on this ground be denied.

b. Procedural Due Process

Assuming a liberty interest exists, it must be determined whether McAllister was denied due process at his Tier III hearing. Where disciplinary hearings could result in SHU confinement or loss of good time credit, "[i]nmates are entitled to advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken." Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citing Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir.1999)); see also Wolff, 418 U.S. at 556; Sira v. Morton, 380 F.3d 57, 59 (2d Cir. 2004).

i. Notice

McAllister first appears to argue that he was denied procedural due process because the misbehavior report (1) violated unnamed DOCCS rules, regulations, and procedures, and (2) failed to provide him with adequate notice of the charges against him because it did not list the five inmates whose affidavits were confiscated and, thus, impacted his ability to prepare a defense to the charges. Am. Compl. ¶¶ 11-13, 16-17. Although inmates are entitled to advance written notice of the charges, "[t]his is not to suggest that the Constitution demands notice that painstakingly details all facts relevant to the date, place, and manner of charged inmate misconduct...." Sira, 380 F.3d at 72 (2d Cir. 2004) (citing Wolff, 418 U.S. at 564). "[T]here must be sufficient factual specificity to permit a reasonable person to understand what conduct is at issue so that he may identify relevant evidence and present a defense." Id.

First, to the extent that McAllister's argues that the differing disciplinary reports violated unspecified DOCCS rules, regulations, and procedures (Am. Compl. ¶¶ 12-13), this claim must fail. A section 1983 claim is not the "appropriate forum" in which to seek review of a violation of a prison regulation. Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 (S.D.N.Y. 2002)("a § 1983 claim brought in federal court is not the appropriate forum to urge violations of prison regulation or state law... the allegations asserted must constitute violations of constitutional due process standards."). Next, McAllister fails to plausibly allege the existence of a question of fact whether the difference between the misbehavior reports deprived him of the ability to identify relevant evidence so that he could prepare a defense. Although McAllister's copy of the report was missing the names of the inmates whose affidavits were confiscated, it informed McAllister of the date, time, and location of the alleged violations; the rules alleged to have been violated; and a description of the documents that were confiscated. Johnson v. Goord, 305 Fed.Appx. 815, 817 (2d Cir. 2009) (concluding where the inmate's copy of misbehavior report included details of alleged violation and charges against him, a sentence missing from the inmate's copy of report did not violate the inmate's due process rights). It is clear that the discrepancy between the misbehavior reports did not affect McAllister's ability to prepare and present a defense. Prior to the hearing, McAllister requested as witnesses the five inmates whose affidavits were found during the property search. Indeed, the record demonstrates that McAllister was able to both identify the documents referenced in the misbehavior report and address them at the hearing. Dkt. No. 74-3, Exh. A at 45, 47-48.

Thus, because he received sufficient notice of the charges against him and was able to prepare and present a defense on his behalf, McAllister fails to raise a question of fact as to whether he was denied sufficient notice of the charges against him.

ii. Hearing Officer Bias/Pre-determination of Guilt

McAllister also contends that his procedural due process rights were violated because Call was biased against him and prejudged his guilt. The Fourteenth Amendment guarantees inmates the right to the appointment of an unbiased hearing officer to address a disciplinary charge. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996). An impartial hearing officer "does not prejudge the evidence" and is not to say "how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir.1990); see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard"). However, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1996). "A hearing officer may satisfy the standard of impartiality if there is some evidence in the record' to support the findings of the hearing." Nelson v. Plumley, No. 9:12-CV-422, 2014 WL 4659327, at *11 (N.D.N.Y. Sept. 17, 2014) (quoting Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at * 5 (W.D.N.Y. Oct. 5, 2010) (quoting Waldpole v. Hill, 472 U.S. 445, 455 (1985)). However, "the mere existence of some evidence' in the record to support a disciplinary determination does not resolve a prisoner's claim that he was denied due process by the presence of a biased hearing officer." See Smith v. United States, No. 09-CV-729, 2012 WL 4491538 at *8 (N.D.N.Y. July 5, 2012).

Prison officials serving as hearing officers "enjoy a rebuttable presumption that they are unbiased." Allen, 100 F.3d at 259. "Claims of a hearing officer bias are common in [inmate section] 1983 claims, and where they are based on purely conclusory allegations, they are routinely dismissed." Washington v. Afify, 968 F.Supp.2d 532, 541 (W.D.N.Y. 2003) (citing cases). "An inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact." Johnson v. Fernandez, No. 09-CV-626 (FJS/ATB), 2011 WL 7629513, at *11 (N.D.N.Y. Mar. 1, 2011) (citing Francis, 891 F.2d at 46).

McAllister first argues that Call prejudged his guilt. He supports this contention by pointing to moments during the Tier III hearing where Call expressed his belief that McAllister's possession of affidavits signed by other inmates was sufficient to support a violation of prison rules 113.15 and 180.17. Am. Compl., ¶¶ 13, 15, 23-25, 36. Here, however the challenged affidavits were not evidence that Call prejudged because he had the opportunity to review the affidavits and did so at the hearing. Although McAllister disagreed with Call's opinion that possession of such documents would be a per se violation of the rules, Call's assertion of belief in this matter was an opinion he reached following his personal review of this evidence. See Johnson v. Doling, No. 05-CV-376, 2007 WL 3046701, at * 10 (N.D.N.Y. Oct. 17, 2007) (holding that where the "[p]laintiff was provided the opportunity to testify, [and] call and question witnesses.... [d]isagreement with rulings made by a hearing officer does not constitute bias"). Thus, it does not appear that Call prejudged this evidence.

To support his claim that Call exhibited bias and partiality against him in the Tier III hearing, McAllister points out that, after he objected to the misbehavior report for failing to provide him sufficient notice of the documents confiscated, Call read the portion of the misbehavior report describing the documents as "[a]rticles of paper which appear to be legal work including some signed affidavits, " and stated "that didn't ring a bell for you?" Id. ¶¶ 19, 32). When read in context, this statement does not establish bias on Call's part, rather it appears to be a genuine question. Though it may be said that Call could have couched this question in a kinder manner, this statement does not demonstrate bias. Moreover, that the Tier III determination was reversed on appeal, without more, is not evidence of bias or other due process violation. Eng v. Therrien, No. 04-CV-1146, 2008 WL 141794, at *2 (N.D.N.Y. Jan. 11, 2008).

Thus, McAllister fails to plausibly allege the existence of question of fact whether Call prejudged his guilt or was otherwise biased in the Tier III hearing.

iii. Failure to Investigate

McAllister next suggests that he was denied procedural due process because Call declined to interview the law library officer. Am. Compl. ¶ 29. Call permitted McAllister to present testimony on his behalf and afforded him the opportunity call witnesses. Had McAllister wished to hear testimony from the law library officer, he could have requested the law library officer as a witness. Wolff, 418 U.S. at 566 (inmates have a right to call witnesses in their defense at disciplinary hearings). That Call found it unnecessary to independently interview the law library officer - especially where McAllister did not demonstrate that his testimony would be relevant - does not result in a denial of due process because "[t]here is no requirement... that a hearing officer assigned to preside over a disciplinary hearing conduct an independent investigation; that is simply not the role of a hearing officer." Robinson v. Brown, No. 9:11-CV-0758, 2012 WL 6799725, *5 (N.D.N.Y. Nov. 1, 2012).

Accordingly, McAllister fails plausibly raise a due process violation based on Call's alleged failure to investigate.

iv. Confidential Witness

To the extent it can be discerned, McAllister contends that he was denied due process because Call relied on confidential witness testimony, yet failed to provide him with advance notice of the confidential witness and refused to inform him of his or her identity or the nature of the testimony. Am. Compl. ¶¶ 30-34. The Second Circuit has held that a hearing officer must perform an independent assessment of a confidential informant's credibility for such testimony to be considered reliable evidence of an inmate's guilt. Sira, 380 F.3d at 78 (noting that, "when sound discretion forecloses confrontation and cross-examination, the need for the hearing officer to conduct an independent assessment of informant credibility to ensure fairness to the accused inmate is heightened.").

Here, the record provides no indication that Call independently assessed the credibility and reliability of the confidential witness. The confidential witness form merely states that Call "was provided confidential information relating to the misbehavior report." Dkt. No. 74-3, at 13. Similarly, Call does not provide whether or how he performed an assessment of the witness's credibility. Id. at 4. Therefore, there exist questions of fact whether Call deprived McAllister of due process by relying on this testimony without an independent assessment of the witness's credibility.

To the extent that McAllister argues that he was denied due process by Call's decision to refuse to disclose the content of the confidential witness's testimony, the law in this circuit provides that where a prison official decides to keep certain witness testimony confidential, he or she "must offer a reasonable justification for their actions, if not contemporaneously, then when challenged in a court action." Sira, 380 F.3d at 75 (citing Ponte v. Real, 471 U.S. 491, 498 (1985)). Although "[c]ourts will not readily second guess the judgment of prison officials with respect to such matters... the discretion to withhold evidence is not unreviewable...." Id. (citations omitted). Here, Call failed to provide his rationale for refraining to share the substance of this testimony, stating merely that McAllister could not be told the substance of the testimony because "it is by definition it is... confidential." Dkt. No. 74-3, at 74. As Call presented no reason to justify withholding the identity or substance of the confidential witness's testimony, McAllister presents a viable due process claim based on the nondisclosure of this evidence. Sira, 380 F.3d at 76.

Accordingly, Call's motion for summary judgment should be denied on this ground.

v. Some Evidence

"Once a court has decided that the procedural due process requirements have been met, its function is to determine whether there is some evidence which supports the decision of the [hearing officer]." Freeman v. Rideout, 808 F.2d 949, 954 (2d Cir. 1986) (citations omitted). In considering whether a disciplinary determination is supported by some evidence of guilt, "the relevant question is whether there is any evidence in the record [before the disciplinary board] that could support the conclusion reached by the disciplinary board." Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) (citations omitted); Sira, 380 F.3d at 69. The Second Circuit has interpreted the "some evidence" standard to require "reliable evidence" of guilt. Luna, 356 F.3d at 488.

In making his determination, Call relied upon McAllister's testimony and statements, testimony of a confidential witness, the misbehavior report, and the legal documents confiscated during the property search. Dkt. No. 74-3, at 4. As noted, based on the record provided, Call did not perform an independent assessment of the witness's credibility. Thus, Call's reliance on confidential testimony would be insufficient to support a finding of guilt. Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (determining that reliance on confidential informant's testimony insufficient to provide "some evidence" of guilt where there was no independent examination of indicia relevant to informant's credibility). The remaining evidence relied upon - McAllister's testimony, the misbehavior report, and the affidavits - does not constitute some evidence of guilt, as required by the Due Process clause.

The affidavits alone do not constitute some evidence of guilt because mere possession of affidavits signed by other inmates would not violate prison rules 113.15 and 180.17 were it true that these documents were McAllister's property and drafted solely for his benefit. Similarly, although a written misbehavior report may serve as some evidence of guilt, such is the case where the misbehavior report charges the plaintiff for behavior that the author of the misbehavior report personally witnessed. Creech v. Schoellkoph, 688 F.Supp.2d 205, 214 (W.D.N.Y. 2010) (citations omitted) (misbehavior report drafted by officer who personally observed plaintiff possess and transfer pieces of sharpened metal to another inmate constituted some evidence of guilt). In this case, where a determination of guilt would appear to turn on knowledge of the ownership of the documents and an understanding of the circumstances under which the papers were drafted, a misbehavior report which merely states that papers appearing to be legal work signed by other inmates were found in McAllister's property, it does not establish a per se violation of rules 113.15 and 180.17. See Hayes v. Coughlin, No. 87 CIV. 7401, 1996 WL 453071, at *3 (S.D.N.Y. Aug. 12, 1996) ("if a misbehavior report can serve as some evidence' for a hearing decision and thereby insulate a hearing from review, there would be little point in having a hearing"); see also Williams v. Dubray, No. 09-CV-1298, 2011 WL 3236681, at *4 (N.D.N.Y. July 13, 2011) (holding that there were questions of fact whether the determination was based upon some evidence of guilt where the hearing officer relied on misbehavior report that was based on a corrections officer's unsupported accounts, without additional evidence to support its charges). Thus, absent additional evidence that these papers belonged to other inmates or that McAllister drafted the documents for other inmates' use, the fact that the misbehavior report identified these documents as being found in McAllister's secured property does not constitute reliable evidence of guilt.

Finally, McAllister's testimony does not constitute reliable evidence of guilt. In response to the charge of violating rule 113.15, McAllister testified that the affidavits were his property because he drafted them solely as evidence in his personal litigation against the Department of Probation. Similarly, in defense of the charge for violating rule 180.17, McAllister repeatedly testified that he did not provide legal assistance to the inmates in question because the affidavits were written solely to serve as supporting evidence in his personal action, the inmates were aware that they would receive no legal benefit as a result, and he did not receive any compensation from the inmates. Regardless whether Call considered McAllister's testimony to be credible, without some other reliable evidence, such as, perhaps, a statement from one of the other inmates claiming that he signed the affidavit under the belief that McAllister would provide him with legal assistance, McAllister's testimony denying violations of the charged prison rules would not constitute some evidence of guilt.

Accordingly, it is recommended that Call's motion for summary judgment be denied as to McAllister's procedural due process claim.

c. Directive 4913

McAllister further argues that, as a result of the SHU placement, he suffered an unconstitutional deprivation of his legal and personal property because he was required to comply with the limits set forth in directive 4913. This Court has already ruled upon this claim when it was raised at earlier stages. In deciding Call's motion for summary judgment on the McAllister's first complaint, this Court held that the directive did not violate his Fourteenth Amendment rights:

Directive # 4913 was reasonably related to valid institutional goals given DOCCS' responsibility to provide for the health and safety of its staff and inmates and the alternatives provided to inmates in being able to seek exceptions and choose which four or five draft bags of material would remain with them. Moreover, the rules were neutral and reasonably related to the ultimate goals of the facility, security and safety.

McAllister v. Fischer, 2012 WL 7681635, at *12 (N.D.N.Y. July 6, 2012) (Dkt. No. 55, at 22-23), Report and Recommendation adopted by 2013 WL 954961 (N.D.N.Y. Mar. 12, 2013) (Dkt. No. 58), appeal dismissed 2d Cir. 13-111 (Jan. 13. 2014). Further, the Court concluded that directive 4913 "did not violate[] McAllister's Fourteen Amendment rights" and was "reasonably related to valid institutional goals." Dkt. No. 55, at 23-24; Dkt. No. 58. Thus, any such claim is barred by the law of the case. Arizona v. California, 460 U.S. 605, 618 (1983) (citations omitted); see also United States v. Thorn, 446 F.3d 378, 383 (2d Cir. 2006) (internal quotation marks and citations omitted)("The law of the case doctrine counsels against revisiting our prior rulings in subsequent stages of the same case absent cogent and compelling reasons....")); Arizona, 460 U.S. at 618 (citations omitted); Wright v. Cavan, 817 F.2d 999, 1002 n. 3 (2d Cir. 1987) (citations omitted) ("Even when cases are reassigned to a different judge, the law of the case dictates a general practice of refusing to reopen what has been decided.").

Accordingly, it is recommended that defendant's motion for summary judgment be granted on this ground.

2. Equal Protection

McAllister's only reference to an equal protection violation in the amended complaint is his conclusory claim that Call's reference to a confidential witness during the Tier III hearing was in violation of his right to equal protection. Am. Compl. ¶ 31. Further, in this Court's previous order, McAllister's equal protection claim was dismissed for failure to demonstrate, among other things, that he was part of a protected class or that he was treated differently from any similarly-situated inmates. Dkt. No. 58, at 4; Dkt. No. 55, at 24-25. Thus, any such claim would also be barred by the law of the case. Thorn, 446 F.3d at 383. Regardless, McAllister's equal protection claim must also fail for the reasons discussed infra.

To establish an equal protection violation, a plaintiff must show that "he was treated differently than others similarly situated as the result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). McAllister has not identified, nor does the record disclose, any basis for a reasonable fact-finder to conclude that he was treated differently from similarly-situated individuals. Rather, plaintiff's only support for his equal protection claim is the following:

Call, throughout the entire disciplinary hearing deprive [sic] plaintiff equal protection when he stated: "This is hearing officer Call, this is 2:21 as I was going through my paperwork I realized something that I wanted to point out to Mr. McAllister."
Defendant Call discriminated against plaintiff when he stated: "I reviewed it this morning the 22' when it was received again is confidential"

Am. Compl. ¶¶ 31-32. McAllister does not explain how these statements denied him equal protection. McAllister fails to plausibly suggest that he was treated differently from any similarly-situated individuals. Further, even if these statements demonstrate the existence of questions of fact regarding whether McAllister was treated differently from similarly-situated persons, he fails to identify disparity in the conditions "as a result of any purposeful discrimination directed at an identifiable suspect class." See Dolberry v. Jakob, No. 11-CV-1018, 2014 WL 1292225, at *12 (N.D.N.Y. Mar. 28, 2014).

Accordingly, it is recommended that defendant's motion on this ground should be granted.

G. Qualified Immunity

Call contends that, even if McAllister's claims are substantiated, he is entitled to qualified immunity. The doctrine of qualified immunity is an affirmative defense which "shield[s] an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S. 223, 244 (2009). Even if a disciplinary disposition is not supported by "some evidence, " prison officials are entitled to qualified immunity if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Luna, 356 F.3d at 490 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)) (internal quotation marks omitted). This assessment is made "in light of the legal rules that were clearly established at the time it was taken." Wilson, 526 U.S. at 614; Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991). To determine whether a state official is entitled to qualified immunity for acts taken during the course of his or her employment, a reviewing court is to determine: "(1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the [official] to believe the conduct at issue was lawful." Phillips v. Wright, 553 Fed.Appx. 16, 17 (2d Cir. 2014) (citing Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)).

First, as discussed, McAllister presented a viable due process claim that the determination was not based on some evidence of guilt because Call (1) relied on confidential witness testimony without making an independent assessment of the witness's credibility and (2) did not otherwise have sufficient reliable evidence to support his finding of guilt. McAllister has also raised issues of fact whether the remaining evidence relied upon - the misbehavior report, McAllister's testimony and statements, and the confiscated legal papers - provided reliable evidence of guilt.

Addressing the second prong of the analysis, there is a clearly-established right to procedural due process protections, including the right to have a disciplinary determination be based on some evidence of guilt. There is also a clearly-established right to an independent assessment of confidential witnesses performed where a hearing officer relies on the witness's testimony ( Vasquez v. Coughlin, 726 F.Supp. 466, 472 (S.D.N.Y.1989) (right clearly established by 1986); see also Sira, 380 F.3d at 80). Further, although there is no bright-line for what suffices as "some evidence" in every prison disciplinary proceeding (Woodard v. Shanley, 505 Fed. Appdx. 55, 57 (2d Cir. 2012)), there were questions of fact surrounding the allegedly reliable evidence demonstrating that McAllister was in possession of other inmates' legal documents or that he provided them with unauthorized legal assistance. Cf. Turner v. Silver, 104 F.3d 354, at *3 (2d Cir. 1996) (some evidence to support determination that the defendant violated rule against unauthorized legal assistance where documentary evidence indicated the plaintiff received payment from other inmates, author of misbehavior report testified regarding an interview with informant who implicated defendant, prison official testified that inmate told her he had been charged for law library services and inmate testified the same). Call both failed to perform an independent assessment of the confidential witness's credibility and provided no explanation for why both the identity of the witness and the substance of his or her testimony could not be disclosed to McAllister. Sira, 380 F.3d at 75 (citing Ponte, 471 U.S. at 498).

Thus, given the state of the law regarding the rights to which an inmate is entitled in his disciplinary hearing, it was not objectively reasonable for Call to have believed that (1) he need not perform an independent assessment of the witness credibility or (2) the misbehavior report, confiscated affidavits, and McAllister's consistent testimony and statements, without more, sufficiently supported a determination that McAllister violated rules 113.15 and 180.17.

Accordingly, defendant's motion for summary judgment should be denied on this ground.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendant's motion for summary judgment (Dkt. No. 74) be

1. GRANTED insofar as:

a. dismissing plaintiff's First Amendment claims;
b. dismissing plaintiff's Eighth Amendment claims;
c. dismissing plaintiff's challenge to the constitutionality of Directive 4913;
d. defendant's Eleventh Amendment immunity defense;

2. DENIED as to:

a. plaintiff's Fourteenth Amendment procedural due process claims;
b. defendant's qualified immunity defense.

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).

Jeffrey Allred, Queensvillage, NY, pro se.

Kim S. Murphy, N.Y.S. Attorney General's Office, Buffalo, NY, for Defendants.

DECISION AND ORDER

H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

*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 entry of final judgment. Dkt. # 14.

Plaintiff, Jeffrey Allred, filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. # 1. Plaintiff alleges that while an inmate at the Gowanda Correctional Facility ("Gowanda") his rights pursuant to the First, Eighth, and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is defendants' motion for summary judgment. Dkt. # 18. For the following reasons, defendants' motion for summary judgment is granted and the plaintiff's complaint is dismissed in all respects.

BACKGROUND

Plaintiff filed this action on July 11, 2006, against defendants, Michael Knowles and Louis Noto, pursuant to 42 U.S.C § 1983, seeking monetary damages. Id. The action arises from a misbehavior report issued on or about July 27, 2003 by defendant Noto against plaintiff and the resulting Tier III disciplinary hearing conducted by defendant Knowles. Id. Specifically, the complaint alleges the issuance of a false misbehavior report, retaliation and violation of plaintiff's due process rights. Id.

At the time of the events alleged in the complaint, plaintiff was an inmate in the care and custody of the New State Department of Correctional Services ("DOCS") housed at Gowanda. Dkt. # 1, p. 2; Dkt. # 20, p. 1. Defendant Knowles was a Captain at Gowanda and his duties included, from time to time, conducting inmate disciplinary hearings. Dkt. # 1, pp. 3-4; Dkt. # 21, pp. 1-2. Sergeant Noto was a DOCS Sergeant on plaintiff's housing unit at Gowanda. Dkt. # 1, p. 4; Dkt. # 22, pp. 1-2.

On July 22, 2003, at approximately 8:30 p.m., Correctional Officer Millich discovered several marijuana cigarettes during a search of inmate Meja's cell. Dkt. # 22, p. 3. Consequently, defendant Noto initiated an investigation into the matter. Dkt. # 1, p. 8; Dkt. # 22, p. 3. Defendant Noto maintained that Meja told him that he had purchased the marijuana cigarettes from plaintiff. Dkt. # 22, p. 3. Based on Meja's identification of plaintiff and information allegedly received from confidential informant(s)-who identified plaintiff as a drug dealer and indicated that the sale in question occurred between 7:00 and 8:00 p.m. on July 22, 2003 in the prison yard-defendant Noto issued a misbehavior report charging plaintiff with violating Inmate Rule 113.25. Dkt. # 1, pp. 22 and 25; Dkt. # 22, p. 3. Inmate Rule 113.25 provides that "an inmate shall not make, possess, sell or exchange any narcotic, narcotic paraphernalia, controlled substance or marijuana. An inmate shall not conspire with any person to introduce such items into the facility." Dkt. # 22, p. 2; see also 7 NYCRR § 270.2(14)(xv).

On July 28, 2003, a Tier III disciplinary hearing was conducted before defendant Knowles. Dkt. # 1, p. 23; Dkt. # 21, p. 2. At the hearing, plaintiff testified in his own defense that he was at a Nation of Islam ("NOI")/Black studies program during the period of the alleged drug sale in the prison yard. Dkt. # 1, p. 24; Dkt. # 21, p.6. Plaintiff called two other inmates, Ford and Williams, as alibi witnesses. Dkt. # 1, p. 29; Dkt. # 21, p. 7. Ford and Williams attended the NOI/Black studies program with plaintiff, but could not verify the time plaintiff left. Dkt. # 21, pp. 7 and 16. The sign-out sheet for the NOI/Black studies class did not indicate the time plaintiff left, although it indicated that both Ford and Williams left at 7:00 p.m. Id. Plaintiff did not sign back into his housing unit until 8:10 p.m. and no one was able to verify his whereabouts after 7:00 p.m. Dkt. # 21, p. 17. Defendant Knowles interviewed the confidential informant(s) outside the presence of plaintiff and found them to be credible witnesses. Dkt. # 21, pp. 7-8. The confidential informant(s) identified plaintiff as a drug dealer and indicated that the sale of the drugs to Meja occurred between 7:00-8:00 p.m. in the prison yard. Id. Meja also testified at the hearing, and recanted his initial identification of plaintiff as the person who sold him drugs. Dkt. # 1, p. 26; Dkt. # 21, p. 11. When asked by defendant Knowles why he initially told defendant Noto that plaintiff was the individual who sold him drugs, Meja answered that he did so because he wanted defendant Noto to "leave [him] alone." Dkt. # 24, Ex. D, p 5. In response, defendant Knowles asked Meja to confirm, by answering in either the affirmative or the negative, if he initially identified plaintiff as the individual who sold him drugs, to which Meja answered in the affirmative. Id.

*2 On August 3, 2003, at the close of the disciplinary hearing, defendant Knowles entered a guilty finding against plaintiff. Dkt. # 24, Ex. C. Based on the Hearing Disposition Report completed by defendant Knowles, he based his guilt determination on the following evidence: defendant Noto's misbehavior report and his testimony that Meja initially identified plaintiff as the individual who sold Meja drugs in the yard; and the testimony of the confidential informant(s). Id. Defendant Knowles imposed a penalty of 12 months of confinement in special housing unit ("SHU") and a loss of privileges between the period August 22, 2003 and August 22, 2004.

DISCUSSION AND 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.1991), 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 non-moving 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).

Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir.1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).

Due Process Claim

*3 Plaintiff alleges that defendants deprived him of his constitutional right to procedural due process. Dkt. # 1, p. 42. This allegation appears to be based on the following: (1) that he was not afforded all of the procedural safeguards set forth in Wolff v. McDonnell [1] during the Tier III disciplinary hearing; and (2) that defendant Knowles was not an impartial hearing officer.

To prevail on a procedural due process claim under § 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).

"A prisoner's liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline 'imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In assessing whether the discipline imposed rises to this level, the Court of Appeals for the Second Circuit has directed the district courts to consider both the conditions of confinement and their duration, "since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical." Id., quoting Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir.1999). In light of this standard, the Court of Appeals has "explicitly avoided a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights" and has "explicitly noted that SHU confinements of fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions... or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical." Palmer, 364 F.3d at 64-65.

Notwithstanding the foregoing, courts in this Circuit "generally require that the duration of confinement be at least 100 days" to be categorized as constituting an "atypical and significant hardship." Palmer v. Goss, No. 02 Civ 5804(HB), 2003 U.S. Dist. LEXIS 18103, 2003 WL 22327110 (S.D.N.Y. Oct. 10, 2003), aff'd, Palmer, 364 F.3d 60; Sims v. Artuz, 230 F.3d 14, 24 (2d Cir.2003) (vacating dismissal of, inter alia, procedural due process claims, stating, during little more than a 4¼ month period, Sims was sentenced to SHU for a total of nearly 3½ years); Durran v. Selsky, 251 F.Supp.2d 1208, 1214 (W.D.N.Y.2003) (quoting Tookes v. Artuz, No. 00CIV4969, 2002 U.S. Dist. LEXIS 12540, 2002 WL 1484391 (S.D.N.Y. July 11, 2002)) ("[c]ourts 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."); Colon v. Howard, 215 F.3d 227, 232 (2d Cir.2000) (instructing district courts to develop detailed factual records "in cases challenging SHU confinements of durations within the range bracketed by 101 days and 305 days"). Here, following the Tier III disciplinary hearing, defendant Knowles imposed a penalty of 12 months of confinement in SHU and a loss of privileges between the period August 22, 2003 and August 22, 2004. Thus, there can be no dispute that plaintiff has demonstrated a protected liberty interest. The issue that remains and that which will be addressed below, is whether plaintiff was deprived of that protected liberty interest without due process. Defendants maintain that plaintiff was not. Dkt. # 21, p. 2; Dkt. # 22, p. 7.

*4 In Wolff, the Supreme Court enumerated certain procedural safeguards that must be afforded to an inmate during the course of a prison disciplinary proceeding in order to ensure that the minimum requirements of procedural due process are satisfied. Wolff, 418 U.S. at 563-66. Specifically, the Supreme Court identified the following procedures: advance written notice of the claimed violation or charges; the opportunity for an inmate to call witnesses and present documentary evidence in his/her defense, provided that such a process would not jeopardize institutional safety; and a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action taken. Id. Additionally, the findings must be supported by some evidence in the record. Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).

Here, contrary to plaintiff's contention, he was afforded all of the procedural safeguards set forth in Wolff. Dkt. # 24, p 4-5. Plaintiff was provided with a copy of defendant Noto's misbehavior report before the hearing, giving him advance notice of the charge against him.[2] Dkt. # 1, p. 22; Dkt. # 21, p. 5. Plaintiff had the opportunity to call witnesses and present evidence. Dkt. # 1, pp. 26, 29; Dkt. # 21, pp. 6, 8. Plaintiff was also provided with a written statement of the guilty finding and the evidence relied on for the disposition. Dkt. # 21, p. 12. The guilty disposition was supported by evidence in the form of defendant Noto's notes; defendant Noto's misbehavior report and testimony; and the testimony of the confidential informant(s), particularly because plaintiff's alibi was uncorroborated. Id. at pp. 10-11. Thus, plaintiff's claim that he was deprived of procedural due process fails as a matter of law.

Impartial Hearing Officer

Plaintiff contends, in particular, that his due process rights were violated because defendant Knowles was not an impartial hearing officer. See Dkt. # 1, p. 6-8. Plaintiff points to the following to support his allegation: (1) that defendant Knowles was involved in both the Tier III hearing and in the investigation into plaintiff's drug sale; (2) that defendant Knowles instructed Meja to respond affirmatively at the hearing that plaintiff had sold Meja drugs although Meja testified at the hearing that he did not know plaintiff; and (3) that defendant Knowles rejected his alibi and confused the time of the drug sale at issue. Dkt. # 1, pp. 28, 39; Dkt. # 24, p. 6.

Indeed, as plaintiff correctly contends, "[a]n 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); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard").

*5 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. A hearing officer may satisfy the standard of impartiality if there is "some evidence in the record" to support the findings of the hearing. Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (emphasis added).

In this case, there is ample evidence to support defendant Knowles' guilty finding: defendant Noto's misbehavior report and his testimony that Meja originally identified plaintiff as the individual who sold him drugs; and the testimony of the confidential informant(s), which was considered outside the presence of plaintiff. Dkt. # 21, pp. 8-9.

Notably, plaintiff's only defense at the Tier III hearing was that he had been at an NOI/Black studies program at the time of the drug sale, which took place allegedly between 7:00-8:00 p.m. Dkt. # 21, p. 7. However, inmates Ford and Williams could not verify plaintiff's alibi defense. Id. Because plaintiff did not sign back into his cell area until 8:10 p.m., defendant Knowles determined that there was ample time for plaintiff to sell the drugs in the yard during the period of his unexplained absence. Dkt. # 21, pp. 7, 16-18.

Plaintiff further contends that defendant Knowles violated his constitutional right to due process by failing to adhere to the state guidelines for conducting prison disciplinary hearings (set forth in Title 7 of the NYCRR §§ 253.1(b), 254.1[3]) because, he alleges, that defendant Knowles conducted the Tier III hearing and was also involved in the investigation of plaintiff's drug sale. Dkt. # 24, p 6.

This argument fails because violations of state law that do not deprive the plaintiff of a right "secured by the Constitution and laws" are insufficient to support a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 139-40, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir.2004); Blouin v. Spitzer, 356 F.3d 348, 362 (2d Cir.2004). State procedural protections do not give rise to substantive federal rights. See Olim v. Wakinekona, 461 U.S. 238, 249-50, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.2003) ("[S]tate statutes do not create federally protected due process entitlements to specific state-mandated procedures."). Moreover, "[s]tate procedures designed to protect substantive liberty interests entitled to protection under the federal constitution do not themselves give rise to additional substantive liberty interests." Blouin, 356 F.3d at 363. It is "federal law, not state regulations, [that] determines the procedures necessary to protect that liberty interest." Id. (citing Watson v. City of New York, 92 F.3d 31, 38 (2d Cir.1996)). Therefore, "the only relevant inquiry was whether the constitutional [procedures] were met, not whether state procedures were followed." Shakur, 391 F.3d at 119 (citing Holcomb, 337 F.3d at 224). As set forth above, plaintiff's constitutional rights were not violated during the Tier III hearing. Plaintiff's exclusive reliance on defendants' alleged violations of 7 NYCRR §§ 253.1(b) and 254.1 is insufficient to support his claim under § 1983. See Shakur, 391 F.3d at 119; Holcomb, 337 F.3d at 224; Ramsey v. Goord, 661 F.Supp.2d 370, 391-92 (W.D.N.Y.2009).

*6 Accordingly, since plaintiff received all of the process he was due in the course of the Tier III disciplinary hearing, defendants' motion for summary judgment on plaintiff's due process claim is granted.

Retaliation Claim

Plaintiff alleges that, in retaliation for attending a Nation of Islam ("NOI")/Black Studies course and/or for his affiliation therewith, defendant Noto filed a false misbehavior report and gave false testimony and that defendant Knowles found him guilty. Dkt. # 1, p. 43.

"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, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

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, 2003 WL 360053 (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." Bennett, 343 F.3d at 137 (citing Dawes, 239 F.3d at 491). Accordingly, plaintiff must set forth non-conclusory allegations. Id. Finally, even if plaintiff makes the appropriate showing, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct. Id.

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.

*7 Here, even assuming plaintiff's affiliation with the NOI/Black studies program was constitutionally protected conduct, he cannot show that his affiliation therewith was a substantial motivating factor for the filing of the misbehavior report and the subsequent finding of guilt concerning the report. Defendant Knowles declares that he "did not even recall plaintiff prior to the hearing he conducted, " and had no involvement whatsoever in any NOI activities. Dkt. # 21, p. 22. Similarly, defendant Noto declares that he had no knowledge of plaintiff's participation in the NOI/Black Studies program, and, up until the time of the instant litigation, "did not know that plaintiff attended such a course or was a member of the NOI." Dkt. # 22, p. 6. To this extent, plaintiff cannot demonstrate that his affiliation with the NOI/Black studies program was a motivating factor in defendants' actions. Since plaintiff cannot establish any plausible connection between NOI/Black studies participation and the misbehavior report and the guilty finding, his retaliation claim fails as a matter of law.

Assuming, arguendo, that plaintiff could show that the disciplinary actions were motivated by retaliatory animus (an assumption that has no basis in the record before this Court), plaintiff's retaliation claims would fail because defendants can easily show that they would have taken the same disciplinary actions even in the absence of the protected conduct. See Davidson v. Chestnut, 193 F.3d at 149 ("At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail."). The record shows that there was sufficient evidence, based on defendant Noto's investigation, to have charged plaintiff with a drug sale. Further, there was ample evidence at the Tier III disciplinary hearing for defendant Knowles to find plaintiff guilty of the drug sale charge. This is so particularly in the context of prison administration where courts must be cautious to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage. Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994).

Accordingly, defendants' motion for summary judgment on plaintiff's claim of retaliation is granted.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is granted. Dkt. # 18. The Clerk of the Court is directed to enter judgment in favor of the defendants.

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.

*8 SO ORDERED.

Kevin Blackshear, Johnstown, NY, pro se.

Office of New York State Attorney General, Justin L. Engel, AAG, of Counsel, Albany, NY, for Defendants.

ORDER

SCULLIN, Senior District Judge.

*1 Currently before the Court is Magistrate Judge Hummel's June 17, 2014 ReportRecommendation and Order, in which he recommended that this Court grant Defendants' motion for summary judgment as to all claims against all Defendants. See Dkt. No. 26.Plaintiff filed an "Objection Notice to Magistrate Judge Hummel's Report-Recommendation and Order, " in which he merely stated that he sent his "notice of objection to the Clerk of the United States District Court for a decision rendered by U.S. Magistrate Judge, Christian F. Hunnel [sic] on June 17, 2014." See Dkt. No. 28.

After reviewing a magistrate judge's recommendations, the district court may accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991)." "If, however, the party makes only conclusory or general objections, ... the Court reviews the Report and Recommendation only for clear error.'"" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting [ Farid v. Bouey, 554 F.Supp.2d 301] at 306 [(N.D.N.Y.2008] (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007))). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003) (quotation omitted).

In light of Plaintiff's conclusory objection, the Court has reviewed Magistrate Judge Hummel's June 17, 2014 Report-Recommendation and Order for clear error; and, finding none, the Court hereby

ORDERS that Magistrate Judge Hummel's June 17, 2014 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendants' motion for summary judgment is GRANTED as to all claims against all Defendants; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case.

IT IS SO ORDERED.

[1]

REPORT-RECOMMENDATION AND ORDER[2]

CHRISTIAN F HUMMEL, United States 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

*2 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.

*3 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 nonparties 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

*4 Blackshear filed an action against defendants on January 7, 2012 in New York State Supreme Court, Albany County, under Civil Practice Law and Rules Article 78.[5] Dkt. No. 16-3 at 5-15; Compl. at 5. The matter was sent to the Appellate Division, Third Department for a ruling as it pertained to a question of substantial evidence. 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 nonmoving 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).

*5 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

*6 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).

*7 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.

*8 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.

*9 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-C0432(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 "a typical 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.

*10 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:

*11 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.

*12 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.Appx. 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.

*13 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).

Attorneys and Law Firms

Roberto Ciaprazi, Clinton Correctional Facility, Dannemora, New York, Plaintiff pro se.

Hon. Eliot Spitzer, Attorney General, State of New York, The Capitol, Albany, New York, for the Defendants.

Patrick F. MacRae, Assistant Attorney General, of counsel.

MEMORANDUM-DECISION AND ORDER

SHARPE, J.

I. Introduction

*1 Plaintiff pro se Roberto Ciaprazi brings this action pursuant to 42 U.S.C. § 1983. Ciaprazi alleges that the defendants violated his First, Eighth, and Fourteenth Amendment rights. Pending are Ciaprazi's objections to Magistrate Judge David E. Peebles' Report-Recommendation. Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in its entirety.[1]

II. Procedural History

Ciaprazi commenced this action on July 15, 2002. Dkt. No. 1. On February 27, 2003, the defendants moved for summary judgment. Dkt. No. 39. On March 14, 2004, Judge Peebles issued a Report-Recommendation which recommended that the defendants' motion for summary judgment be granted in part, and denied in part. Dkt. No. 47. Ciaprazi objected. Dkt. No. 48. His objections are now before this court.

III. Discussion [2]

A. Standard of Review

When objections to a magistrate judge's Report-Recommendation are lodged, the Court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made" See 28 U.S.C. § 636(b)(1). After such a review, the court may "accept, reject, or modify, in whole or in part, the findings or the recommendations made by the magistrate judge." Id. Having reviewed the unobjected to portions of the Report-Recommendation, the court adopts them in their entirety because they are not clearly erroneous.

B. Report-Recommendation

Although Judge Peebles examined the merits of the case and found that many of Ciaprazi's claims were meritless, this court only conducts de novo review of the objected to portions of the Report-Recommendation. Specifically, Judge Peebles found no evidence tending to establish that the adverse actions taken against Ciaprazi were motivated by disciplinary animus, and thereby recommended dismissing Ciaprazi's First Amendment retaliation claim. Report and Recommendation, pp. 13-23, 45, Dkt. No. 47. He further found that Ciaprazi lacked standing to bring a cause of action challenging the Tier III disciplinary system under the Eighth Amendment. Id. at 27. Lastly, Judge Peebles dismissed both of Ciaprazi's claims under international law and his personal involvement claim against defendant Goord. Id. at 41, 43-4. [3]

C. Objections

1. First Amendment Claim

First, Ciaprazi contends that his retaliation claim under the First Amendment should not have been dismissed because the defendants did not satisfy their initial evidentiary burden. Pl. Objs. pp. 1-7, Dkt. No. 48. Specifically, he argues that Judge Peebles did not properly consider the falsity of a misbehavior report as evidence of retaliation by the defendants.

The court rejects Ciaprazi's argument because as Judge Peebles noted, a prisoner does not have a right to be free from false misbehavior reports. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986). As Judge Peebles further noted, the defendants have shown sufficient evidence to establish that there is no specific link between Ciaprazi's grievances and the defendants' actions. Accordingly, Ciaprazi's retaliation claim is dismissed.

2. Eighth Amendment

*2 Next, Ciaprazi objects to Judge Peebles' finding that he did not have standing to challenge the disciplinary authority of the Tier III system. Pl. Objs. p. 7, Dkt. No. 48. This objection is without merit. As Judge Peebles noted, since the length of Ciaprazi's disciplinary confinement was within the bounds of constitutionally acceptable levels, he has no standing to sue. Second, as Judge Peebles further noted, any generalized complaints Ciaprazi has against the Tier III system are more appropriately addressed as part of his due process claims. Accordingly, Ciaprazi's claims against the Tier III system are dismissed.

3. Human Rights Claims

Ciaprazi also objects to Judge Peebles' finding that he did not have claims under the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Ciaprazi's contention is without merit. As Judge Peebles noted, Ciaprazi has failed to establish that these treaties provide private causes of action. See Report Recommendation p. 41, Dkt. No. 47. Accordingly, Ciaprazi's claims under international law are dismissed.

4. Personal Involvement

Ciaprazi also objects to Judge Peebles' dismissal of his personal involvement claim against defendant Goord. As Judge Peebles noted, Ciaprazi merely made allegations against Goord in his supervisory capacity. Accordingly, the personal involvement claim against Goord was properly dismissed.

IV. Conclusion

Having reviewed the objected-to portions of the Report and Recommendation de novo, the remainder under a clearly erroneous standard, and Ciaprazi's objections, this court accepts and adopts the recommendation of Judge Peebles for the reasons stated in the March 14, 2004 Report-Recommendation.

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that defendants' summary judgment motion (Dkt. No. 39) be GRANTED in part, and that all of plaintiff's claims against defendant Goord, and all of plaintiff's claims against the remaining defendants except his procedural due process and Eighth Amendment conditions of confinement causes of action, be DISMISSED, but that to the extent of those claims, with respect to which triable issues of fact exist, the defendants' motion be DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

PEEBLES, Magistrate J.

Plaintiff Roberto Ciaprazi, a New York State prison inmate who by his own account has frequently lodged complaints against prison officials and been openly critical of their practices, has commenced this proceeding against the Commissioner of the New York State Department of Correctional Services ("DOCS") and several of that agency's employees pursuant to 42 U.S.C. § 1983, complaining of constitutional violations occurring during the course of his confinement. In his complaint, Ciaprazi alleges that 1) a misbehavior report was filed against him in retaliation for his having previously engaged in protected activity; 2) he was deprived of procedural due process during the course of the hearing and resulting adverse finding associated with that misbehavior report; and 3) the conditions which he faced while in disciplinary confinement, following that hearing, were cruel and unusual. Plaintiff asserts claims pursuant to the First, Eighth and Fourteenth Amendments to the United States Constitution, as well as under certain international human rights accords.

*3 Currently pending before the court is a motion by the defendants seeking summary judgment dismissing plaintiff's complaint in its entirety. Having carefully reviewed the record in light of Ciaprazi's claims and defendants' arguments, I find that many of plaintiff's causes of action are devoid of merit, as a matter of law, and thus subject to dismissal. Because I find the existence of genuinely disputed issues of material fact surrounding certain of plaintiff's claims, however, including notably his due process claim against defendants Melino, Kohl, Graham, Fitzpatrick, and Rogers, I recommend denial of defendants' motion seeking dismissal of plaintiff's claims against them.

I. BACKGROUND

At the times relevant to his complaint, Ciaprazi was a prisoner entrusted to the custody of the DOCS. Plaintiff alleges that after having been confined within the Clinton Correctional Facility since February, 1997, he was transferred into the Coxsackie Correctional Facility in April of 1998. Complaint (Dkt. No. 1) ¶ 3. Ciaprazi asserts that while at Coxsackie he was administered more than a dozen allegedly false misbehavior reports, resulting in disciplinary cell confinement of over 200 days as well as other "deprivations" of an unspecified nature. Id. ¶ 3. Plaintiff contends that the issuance of those misbehavior reports was motivated by his having filed multiple complaints involving conduct of corrections workers and staff at Coxsackie.

At the heart of plaintiff's claims in this action is an incident which occurred at Coxsackie on July 31, 1999. On that date, Ciaprazi and various other prisoners were taken to an enclosed holding area to provide specimens for use in conducting drug screening urinalysis testing. As a result of an interaction occurring during the course of that testing between the plaintiff and defendant Fitzpatrick, a corrections lieutenant at the facility, plaintiff was placed in keeplock confinement and issued a misbehavior report on the following day, charging him with creating a disturbance (Rule 104.13), interference with a prison employee (Rule 107.10), harassment (Rule 107.11), refusal to obey a direct order (Rule 106.10), and making threats (Rule 102.10).[1] Defendants' Motion (Dkt. No. 39) Exh. A.

On July 31, 1999, following the underlying events and the imposition of keeplock confinement but prior to receiving the misbehavior report, plaintiff filed a grievance regarding the incident; plaintiff followed the filing of that grievance with a request on August 3, 1999 for prehearing release from confinement. Complaint (Dkt. No. 1) ¶ 19. Plaintiff received no response to that grievance. Id.

A Tier III disciplinary hearing in connection with the charges stemming from the July 31, 1999 incident was conducted by defendant Melino, a corrections counselor at Coxsackie, beginning on August 4, 1999, and concluding on August 10, 1999. Defendants' Motion (Dkt. No. 39) Exh. A at 2; id. Exh. B at 17, 15[2]. Defendant Cole, who according to the plaintiff is a civilian employee working at Coxsackie, was assigned as plaintiff's inmate assistant in connection with that hearing. The evidence adduced at that hearing included the misbehavior report, as well as testimony from the plaintiff, Corrections Lieutenant Fitzpatrick, Corrections Officer Marshal, Corrections Counselor Cole, Corrections Officer Rogers, Corrections Officer Simonik, Corrections Lieutenant McDermott, and Corrections Officer Phillips. Defendants' Motion (Dkt. No. 39) Exh. B.

*4 At the conclusion of the hearing, plaintiff was found guilty on all five counts, and a penalty of ten months of disciplinary confinement within the Coxsackie Special Housing Unit ("SHU"), with a corresponding loss of commissary, telephone and package privileges, was imposed.[3] Defendants' Motion (Dkt. No. 39) Exh. A at 00. Ciaprazi was not present when Hearing Officer Melino read her decision into the record, having previously been removed from the proceeding for engaging in what the hearing officer regarded as disruptive behavior. See Defendants' Motion (Dkt. No. 39) Exh. B at 152. Plaintiff appealed the hearing officer's decision to Donald Selsky, the DOCS Director of Special Housing/Inmate Disciplinary Program, who on September 27, 1999 affirmed the determination. Complaint (Dkt. No. 1) ¶ 51.

On August 20, 1999, plaintiff was transferred into the Upstate Correctional Facility, where he was apparently placed in SHU confinement to serve his disciplinary sentence. Complaint (Dkt. No. 1) ¶ 52. Plaintiff asserts that during that period, as well as while in keeplock confinement at Coxsackie, he was subjected to significant deprivations, which are described in summary fashion in his complaint, until September 16, 1999 when he was transferred into Clinton and exposed to similarly unpleasant conditions. Id. ¶¶ 53-55; Ciaprazi Aff. (Dkt. No. 46) ¶¶ 54-57. Plaintiff describes the keeplock confinement conditions at Coxsackie as even more unpleasant than those experienced in SHU, having included the deprivation of certain personal items such as food and snacks, toiletries, musical instruments, and other similar amenities. Ciaprazi Aff. (Dkt. No. 46) ¶ 54. The deprivations experienced by the plaintiff while in keeplock confinement at Coxsackie also entailed being subjected to "loud and non-stop noise from other frustrated prisoners yelling and banging on the doors, " as well as the denial of access to the law library, books and other reading materials, and various programs available to those in general population. Id. ¶ 55.While at Upstate, plaintiff contends that he was exposed to cell lighting between 6:00 am and 1:00 am; he was denied reading materials; his medical requests "were ignored"; and he experienced cold conditions and the inability to participate in available recreation due to the lack of warm clothing. Id. ¶ 57; Complaint (Dkt. No. 1) ¶ 53. Similar conditions were experienced by the plaintiff while at Clinton, including exposure to cold and lack of warm clothing and blankets, together with the deprivation of medical and mental health services. Ciaprazi Aff. (Dkt. No. 46) ¶ 57; Complaint (Dkt. No. 1) ¶ 54..

II. PROCEDURAL HISTORY

The plaintiff, who is proceeding pro se and in forma pauperis, commenced this action on July 15, 2002. Dkt No. 1. Named as defendants in plaintiff's complaint are New York DOCS Commissioner Glenn S. Goord; Ellen J. Croche, Chair of the New York State Commission of Correction; Fred Lamey, a member of the New York Commission of Correction; Donald Selsky, the DOCS Director of Special Housing/Inmate Disciplinary Program; Corrections Counselor Melino, whose first name is unknown; Cole, another DOCS employee whose complete name is unknown to the plaintiff; H.D. Graham, Deputy Superintendent for Security at Coxsackie; Corrections Lieutenant Fitzpatrick; and Corrections Officer Rogers. Id. In his complaint, plaintiff asserts nine separate causes of action, including claims 1) against defendants Rogers and Fitzpatrick, for infringement of his First Amendment right to free speech, and due process and equal protection violations under the United States Constitution, as well as under the Universal Declaration of Human Rights ("UDHR") and the International Covenant on Civil and Political Rights ("ICCPR"); 2) against defendant Graham, for failure to investigate plaintiff's grievance and to take actions to prevent infringement of his constitutional rights; 3) against defendant Cole, for failing to properly perform his duties as Ciaprazi's inmate assistant; 4) against defendant Melino, for deprivation of due process, based upon her conduct and bias during the disciplinary hearing; 5) of retaliation against defendant Melino, asserting that her actions were taken in response to the filing of complaints and grievances by the plaintiff; 6) against defendants Goord and Selsky, based upon their failure to overturn plaintiff's disciplinary conviction and remediate the constitutional deprivations suffered by him; 7) against defendants Goord and Selsky for retaliation, based on plaintiff's prior filing of complaints and grievances; 8) against defendants Croche, Lamey and Goord, in their supervisory capacities, for failure to properly oversee DOCS employees and enact policies to prevent such abuses; and 9) against defendants Goord, Croche and Lamey, for maintaining and fostering a policy of widespread and disportionate disciplinary punishments within the state's prison system. Complaint (Dkt. No. 1) at 14-16.Plaintiff's complaint seeks both injunctive and monetary relief. Id.

*5 Following the filing of an answer on behalf of the eight defendants who have been served in the action on December 3, 2002, generally denying plaintiff's allegations and setting forth various affirmative defenses, Dkt. No. 13, and pretrial discovery, on February 27, 2004 those defendants moved seeking entry of summary judgment on various bases.[4] Dkt. No. 39.Aided only by plaintiff's complaint, the record related to the relevant internal disciplinary proceedings against the plaintiffs, and answers by plaintiff to defendants' interrogatories, and without the benefit of either a transcript of plaintiff's deposition or any affidavits, other than from their counsel, defendants have moved for summary judgment seeking dismissal of plaintiff's claims on various grounds. Id. In their motion, defendants argue that 1) plaintiff has failed to offer proof from which a reasonable factfinder could conclude that cognizable constitutional violations have occurred; 2) defendants Goord and Selsky lack the requisite personal involvement in the constitutional violations alleged; and 3) plaintiff should be denied the injunctive relief which he seeks. Id. Plaintiff has since submitted papers in opposition to defendants' summary judgment motion.[5] Dkt. No. 46.Defendants' motion, which is now 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 is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits... show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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 Insurance Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). When summary judgment is sought, the moving party 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 Insurance, 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.[6] 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. When deciding a summary judgment motion, the court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). Summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [nonmovant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (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. Plaintiff's First Amendment Retaliation Claim

*6 Plaintiff's complaint asserts several claims of unlawful retaliation. In his first cause of action, plaintiff asserts that the actions of defendants Rogers and Fitzpatrick in confining him to a cell and issuing, or directing the issuance of, misbehavior reports were taken in retaliation for his having filed prior grievances and complaints regarding DOCS officials, including those working at Coxsackie. Complaint (Dkt. No. 1) First Cause of Action. Plaintiff's second claim alleges that defendant Rogers' failure to investigate plaintiff's complaint regarding the allegedly false misbehavior report, and to order his release from confinement pending a disciplinary hearing, were similarly retaliatory. Id. Second Cause of Action. Plaintiff further alleges in his fifth cause of action that the actions of Hearing Officer Melino, including in finding him guilty on all five counts, were motivated by Ciaprazi's filing of prior grievances and complaints. Id. Fifth Cause of Action. Plaintiff's seventh claim similarly attributes the failure of defendants Goord and Selsky to reverse the hearing officer's determination, on appeal, to retaliation for his having engaged in protected activity. Id. Seventh Cause of Action. Defendants maintain that these retaliation claims are legally deficient, and that the record contains no evidence upon which a factfinder could conclude that unlawful retaliation occurred.

Claims of retaliation like those asserted by the plaintiff find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that in a prison setting, corrections officials may not take actions which would have a chilling effect upon an inmate's exercise of First Amendment rights. See id. at 81-83.Because of the relative ease with which claims of retaliation can be incanted, however, as exemplified by plaintiff's claims in this action, the courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted,

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

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

In order to state a prima facie claim under section 1983 for unlawful retaliation in a case such as this, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct or speech 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, 97 S.Ct. 568, 576 (1977); Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). If the plaintiff carries this burden, the defendants must then show, by a preponderance of the evidence, that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).

*7 As can be seen, evaluation of claims of retaliation is a particularly fact-laden exercise, since such claims revolve around both the engaging in protected conduct and establishment of a nexus between that conduct and the adverse action ultimately taken. In making the required analysis in this case, however, the court is somewhat disadvantaged by virtue of the fact that defendants' summary judgment motion is not particularly enlightening as to the basis for their claim that the court is positioned to find, as a matter of law, that plaintiff's retaliation claims are lacking in merit.

In their motion the defendants, in the context of the now-familiar standard governing analysis of First Amendment retaliation claims, acknowledge that the plaintiff, who has lodged formal complaints of prison conditions and treatment of inmates, has engaged in protected activity. That plaintiff has filed an unusually large number of grievances and lawsuits, and taken other steps to complain publicly about matters associated with his confinement by the DOCS, is both apparent from the record before the court, and not controverted by the defendants. Indeed, in his response to defendants' summary judgment motion, plaintiff proudly states that he has "systematically exposed, vehemently criticized, and even ridiculed the inappropriate and arbitrary policies and actions of the staff at Coxsackie, including the actions of defendant Goord and of the Superintendent and Deputy Superintendents of Coxsackie."[7] Plaintiff's Affidavit (Dkt. No. 46) ¶ 32. Plaintiff has therefore established, at least for purposes of the instant motion, that he was engaged in protected activity sufficient to trigger First Amendment rights against acts taken in retribution for having voiced those types of complaints. Graham, 89 F.3d at 80; Morello v. James, 810 F.2d 344, 346-47 (2d Cir.1987).

Defendants argue, however, that the record is lacking in evidence to establish the requisite connection between that protected activity and the adverse actions taken against Ciaprazi by prison officials. Defendants' legal position is advanced, in part, in an affidavit from their counsel, Patrick F. MacRae, Esq., outlining the evidence relied upon by the defendants in making their motions.[8] Defendants also note, in further support of their motion, the requirement that retaliation claims rest upon more than mere conclusory allegations regarding the state of mind of prison officials. See Dkt. No. 39 at 8-9; e.g., Flaherty, 713 F.2d at 13.

As plaintiff correctly notes, the applicable pleading requirements, including Rule 8 of the Federal Rules of Civil Procedure, provide for mere "notice" pleading, and do not require that complaints contain every detail associated with a plaintiff's claims except in categories not applicable to this case. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-69, 113 S.Ct. 1160, 1162-63 (1993). Accordingly, the mere fact that the plaintiff's retaliation claims are pleaded in non-specific, conclusory terms does not alone entitle defendants to summary dismissal of those claims.

*8 In this case the defendants have satisfied their initial, modest threshold burden of establishing the lack of evidentiary support for plaintiff's retaliation claims. Though conventional wisdom might dictate the submission of affidavits from the primary actors, including notably defendants Rogers and Fitzpatrick, disavowing any retaliatory motives associated with their actions, defendants' decision to rely instead upon the lack of evidentiary support for plaintiff's retaliation claims, including through plaintiff's responses to defendants' interrogatories as well as the proceedings associated with the underlying disciplinary matter, is sufficient to cast the burden upon the plaintiff to come forward with evidence demonstrating the existence of genuinely disputed material issues of fact for trial with regard to those claims. Celotex, 477 U.S. at 323-34, 106 S.Ct. at 2553; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. There is no requirement under Rule 56 of the Federal Rules of Civil Procedure or otherwise that a party affidavit be submitted to support such a motion, which instead can be based upon any admissible evidence. Id.

To demonstrate that a reasonable factfinder could discern a nexus between plaintiff's filing of grievances and the disciplinary matters associated with the incident at issue, Ciaprazi essentially makes two arguments. First, he contends that the manifest falsity of the misbehavior report as well as testimony proffered during the disciplinary hearing give rise to an inference that the disciplinary matters were motivated toward retaliatory animus. Secondly, plaintiff argues that the sheer number of grievances and formal complaints lodged by him, including some close in temporal proximity to the underlying incident, similarly gives rise to a legitimate inference of retaliatory motivation. See Ciaprazi Memorandum (Dkt. No. 46) at 14.

Plaintiff's argument in this regard is significantly diluted by the sheer number of complaints lodged by him over time. By his own admission, plaintiff has regularly and openly complained of prison policies and practices and during the relevant time period prior to the July 31, 1999 incident, and indeed had filed many formal complaints regarding his treatment while at Coxsackie. Yet, plaintiff has submitted no evidence that any of those complaints related to defendants Rogers or Fitzpatrick, the two principal actors in this case, nor has he pointed to any collaboration between those named in his prior complaints and Fitzpatrick and Rogers. At best, plaintiff has argued that prior to July 31, 1999 he "filed complaints and/or grievances against Lieutenants Sweeney, Armstrong, Skrocky and McDermott, all colleagues of defendant Fitzpatrick of the same rang [sic] with defendant Fitzpatrick." Id. ¶ 32.

In an equally tenuous attempt to link his protected activity with the issuance of a misbehavior report, plaintiff notes that on May 26, 1999 he filed a grievance for harassment against an employee named Fitzpatrick, who was assigned to assist him in connection with another Tier III disciplinary hearing, stating his naked belief, lacking in evidentiary support, that the employee named in that complaint "may be and apparently is a relative of defendant Fitzpatrick ."Id. ¶ 33, Exh. 39. Plaintiff also notes that on July 21, 1999 he filed a grievance accusing defendant Goord of "gross abuse of power", requesting an investigation of defendant Goord by the New York State Police and federal authorities, and that five days later, on July 26, 1999, he filed a complaint with various agencies including the United States Department of Prisons complaining of mistreatment. Id. ¶¶ 34, 35.

*9 While there is some appeal to finding the requisite fact issue to avoid the entry of summary judgment on plaintiff's retaliation claims based upon the timing of these events, that factor is undermined by the steady stream of grievances filed by him on a regular and continuing basis. Were the plaintiff someone who had rarely if ever complained about prison conditions, but shortly before being issued a misbehavior report had lodged a formal complaint against or implicating the conduct of the officer who issued the disciplinary citation, a very different set of circumstances would be presented, and summary judgment would not be warranted. In this case, however, plaintiff can point to no complaints lodged by him against or implicating the conduct of defendant Fitzpatrick, who issued the disputed misbehavior report. Accordingly, I find that the defendants have established that they are entitled to summary dismissal of plaintiff's retaliation claims based upon plaintiff's failure to establish a basis on which a reasonable factfinder could find the requisite connection between plaintiff's grievance activities and the issuance of the misbehavior report and subsequent disciplinary hearing.[9] E.g., Williams v. Goord, 111 F.Supp.2d 280, 290 (S.D.N.Y.2000); Mahotep v. DeLuca, 3 F.Supp.2d 385, 389 (W.D.N.Y.1998).

C. Plaintiff's Eighth Amendment Cruel And Unusual Punishment Claim

In his complaint Ciaprazi, in somewhat indiscriminate fashion, asserts that the actions taken against him by the various defendants resulted in his exposure to cruel and unusual punishment, in violation of the Eighth Amendment.[10] Plaintiff's cruel and unusual punishment claims appear to center upon the conditions which he faced as a result of the disciplinary proceedings against him and resulting in SHU confinement initially at Coxsackie, and later at Upstate and at Clinton. In their motion, defendants assert that these claims are similarly deficient as a matter of law.

The Eighth Amendment's prohibition of cruel and unusual punishment encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society ." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle ). The Eighth Amendment does not mandate comfortable prisons, but yet it does not tolerate inhumane ones either; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).

A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement-the conditions must be "sufficiently serious" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference". See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'' ' Farmer, 511 U.S. at 837, 114 S.Ct. at 1978; Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, 1998 WL 713809, at *2 (same).

*10 Plaintiff's cruel and unusual punishment claim challenges the fact that 1) he was placed in a double bunk cell at Upstate; 2) was placed in isolation and exposed to light except for five hours each night; 3) was deprived of such amenities such as writing paper and envelopes, proper access to the law library, medical care, access to newspapers, magazines and books, access to the courts, and legal papers; 4) was exposed to loud and boisterous behavior on the part of other inmates; 5) was denied essential clothing and bedding as well as personal hygiene materials, radios or headphones, books, newspapers and magazines; and 6) was exposed to cold conditions, leading him to suffer at least one case of the flu. Complaint (Dkt. No. 1) ¶¶ 52-56; see also Plaintiff's Affidavit (Dkt. No. 46) ¶¶ 53-57. To counter these allegations, defendants have submitted nothing to reflect the lack of a basis upon which a reasonable factfinder could conclude that plaintiff was exposed to cruel and unusual punishment while in disciplinary isolation as a result of the Tier III determination now at issue. Instead, defendants' motion focuses upon a narrow aspect of plaintiff's Eighth Amendment claim, in which they assert that the lack of policies guaranteed to result in uniformity throughout the DOCS system of punishments to result in a Eighth Amendment violation.

As skeptical as perhaps one may be regarding plaintiff's ability to ultimately persuade a factfinder that the admittedly unpleasant conditions to which he was apparently exposed and the deprivations suffered while in disciplinary confinement rise to a constitutionally significant level, I am unable to state, based upon the record as currently constituted, that no reasonable factfinder could so conclude. I therefore recommend denial of defendants' motion to dismiss plaintiff's Eighth Amendment cruel and unusual punishment claim relating to the conditions of his confinement.[11]

Included within his Eighth Amendment claim, though more appropriately grouped with his due process cause of action, is plaintiff's contention that because the Tier III hearing officer was provided the unfettered discretion, in the event of finding of guilt, to impose a penalty of whatever magnitude seen fit, the disciplinary scheme in place at the DOCS is constitutionally infirm. In plaintiff's case, however, the imposed penalty of ten months of disciplinary confinement, 180 days of which were deferred, fell comfortably within the bounds of acceptable levels under the Eighth Amendment. Consequently, whatever may be said about plaintiff's arguments regarding the discretion affording to hearing officers, he lacks standing to raise such a claim. See Trammell v. Mantello, No. 90-CV-382, 1996 WL 863518, at *8-*9 (W.D.N.Y. June 10, 1996) (Tier III regulations pass constitutional muster).

D. Plaintiffs Procedural Due Process Claim

In their motion, defendants also challenge plaintiff's contention that he was denied procedural due process during the course of the disciplinary hearing which resulted in his disciplinary confinement for a period of five months. In support of their motion, defendants argue both that plaintiff was not deprived of a constitutionally cognizable liberty interest, and that even assuming he was, he was afforded the requisite process due under the Fourteenth Amendment in connection with that deprivation.

*11 To successfully state a claim under 42 U.S.C. § 1983 for denial of due process arising out of a disciplinary hearing, a plaintiff must show that he or she both (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 260 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).

1. Liberty Interest

Addressing the first of these required showings, in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), the United States Supreme Court determined that to establish a liberty interest, a plaintiff must sufficiently demonstrate that (1) the State actually created a protected liberty interest in being free from segregation; and that (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-84, 115 S.Ct. at 2300; Tellier, 280 F.3d at 80; Hynes, 143 F.3d at 658.

Defendants challenge the applicability of both of these factors. Initially, defendants question whether New York has, by statute or otherwise, created a protected liberty interest in prisoners remaining free from segregation, including for disciplinary reasons, arguing that it has not. Defendants' Memorandum (Dkt. No. 39) at 14. The cases cited in support of that proposition, however, which relate to whether there is a constitutional or liberty interest in being assigned to a particular program, job assignment, or facility, are inapposite. See, e.g., Klos v. Haskell, 48 F.3d 81, 87-88 (2d Cir.1995) (involving revocation of assignment to "shock incarceration" program); Hall v. Unknown Named Agents of N.Y. State Dept. for Corr. Servs. for APPU Unit at Clinton Prison, 825 F.2d 642, 645-46 (2d Cir.1987) (involving assignment to Assessment Program and Preparation Unit); see also Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547 (1976) (no constitutional right of inmate to be placed in any particular facility); Frazer v. Coughlin, 81 F.3d 313, 318 (2d Cir.1996) ("no protected liberty interest in a particular job assignment"). Despite defendants' assertion to the contrary, it is now firmly established that through its regulatory scheme, New York State has created a liberty interest in prisoners remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d Cir.2004) (citing Welch v. Bartlett, 196 F.3d 389, 394 n. 4 (2d Cir.1999); see also LaBounty v. Coombe, No. 95 CIV 2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.).

Having rejected defendants' contention that the State has not created such an interest, I next turn to examination of whether the conditions of plaintiff's disciplinary confinement, as alleged by him, rise to the level of an atypical and significant hardship under Sandin. Atypicality in a Sandin inquiry normally presents a question of law.[12] Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir.2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.1999). When determining whether a plaintiff possesses a cognizable liberty interest, district courts must examine the specific circumstances of confinement, including analysis of both the length and conditions of confinement. See Sealey, 197 F.3d at 586; Arce v. Walker, 139 F.3d 329, 335-36 (2d Cir.1998); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir.1997). In cases involving shorter periods of segregated confinement where the plaintiff has not alleged any unusual conditions, however, a detailed explanation of this analysis is not necessary.[13] Hynes, 143 F.3d at 658; Arce, 139 F.3d at 336.

*12 Given that plaintiff has shown that he was subjected to disciplinary confinement for a period of five months, and has alleged his exposure to conditions beyond those normally associated with such SHU confinement, as described in the applicable regulations, at this juncture I am unable to conclude, as a matter of law, that he was not deprived of a constitutionally significant liberty interest as a result of the disciplinary proceeding at issue. I therefore recommend against summary dismissal of plaintiff's due process claims on this basis.

2. Due Process

The procedural protections to which a prison inmate is entitled before being deprived of a recognized 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). 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).

Plaintiff's procedural due process claim is multi-faceted. In that claim, Ciaprazi maintains that 1) he was denied meaningful assistance by defendant Cole, who refused his request to interview potential witnesses identified by the plaintiff; 2) Hearing Officer Melino effectively denied the plaintiff access to witnesses since witness waiver forms, not to plaintiff's liking in form, were allegedly presented by an unknowledgeable corrections officer to those inmates whose testimony was requested by Ciaprazi, following which those inmates apparently refused to sign the waiver forms and appear to testify on his behalf; 3) the hearing officer was biased and partial, and demonstrated open hostility toward the plaintiff; 4) the hearing officer's disciplinary determination was not supported by the evidence; and 5) the hearing officer refused plaintiff's suggestion to administer polygraph tests to defendants Rogers and Fitzpatrick, as well as to Ciaprazi. Also implicit in plaintiff's due process claim is his contention that his constitutional rights were violated through the issuance of a false misbehavior report.[14]

Plaintiff's arguments relating to the sufficiency of evidence supporting the hearing officer's finding of guilt can be swiftly discounted. The Constitution, including its Due Process Clause, requires only that there be some evidence of guilt supporting a prison disciplinary determination. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774 (1985). Having reviewed the record of plaintiff's disciplinary proceeding in light of his submissions, I find that this standard has been met.

*13 Plaintiff's claims regarding the allegedly false misbehavior report also lack merit. It is well established that in the absence of other aggravating factors, an inmate enjoys no constitutional right against the issuance of a false misbehavior report.[15] Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273 (1988). The rationale supporting this general rule is that an inmate's procedural due process rights are adequately safeguarded by the opportunity to challenge and present evidence to rebut the false accusations at a disciplinary hearing. Freeman, 808 F.2d at 953.

As for plaintiff's contention that his due process rights were violated when polygraph tests were not administered to key corrections officials, as requested by him, plaintiff has cited no cases-nor is the court aware of any-which require the administering of polygraph tests in connection with parties and witnesses in the context of an inmate disciplinary determination. See Hinebaugh v. Wiley, 137 F.Supp.2d 69, 79 (N.D.N.Y.2001) ("some evidence" does not require independent examination of credibility and therefore "certainly does not require" court to order personnel to submit to polygraph to ascertain if hearing testimony was truthful). This issue, then, provides no basis for finding the existence of a procedural due process violation.

Plaintiff's allegations regarding the ineffectiveness of his assigned assistant provide a greater basis for pause. While the requirements associated with the provision of such assistance are modest, they are not non-existent. Under Wolff, an inmate facing a Tier III disciplinary hearing is entitled to meaningful assistance in preparing his or her defense. Eng, 858 F.2d at 897-98. In this case, plaintiff asserts that while he was assigned an assistant, he was denied meaningful assistance from that individual. In support of this contention, plaintiff alleges that he identified certain witnesses critical to his defense, but that his assistant refused to interview those witnesses with an eye toward requesting their testimony during the hearing. Complaint (Dkt. No. 1) ¶¶ 20-21; Ciaprazi Aff. (Dkt. No. 46) ¶ 40. This, if true, could establish a due process violation based on the inadequacy of the inmate assistance provided to the plaintiff. See Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir.1998).

In light of my inability to find, as a matter of law, that plaintiff did not suffer the deprivation of a liberty interest as a result of his five month period of disciplinary confinement, and additionally to conclude that no reasonable factfinder could find the existence of a due process violation associated with that disciplinary confinement, I recommend denial of the portion of defendants' summary judgment motion which seeks dismissal of plaintiff's due process claims.

F. Equal Protection

In his complaint plaintiff also complains of the alleged deprivation of equal protection. Defendants contend that this claim is also subject to dismissal as a matter of law.

*14 "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tx. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985) (citation omitted). The general rule is that a policy is presumed to be valid and will be sustained if the classification drawn by that policy is rationally related to a legitimate state interest. Id. at 440, 105 S.Ct. at 3254. One exception to that rule, however, is when a policy classifies by race, alienage, or national origin-"[t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy-a view that those in the burdened class are not as worthy or deserving as others."Id. For this reason, these policies are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Id. The essence of a cognizable equal protection claim includes a showing of "clear and intentional discrimination." Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401 (1944) (internal quotation and citations omitted).

The apparent basis for plaintiff's equal protection claim is his contention that in light of his national origin, he was treated differently than United States citizen counterparts.[16] In the face of defendants' summary judgment motion, it was incumbent upon the plaintiff to come forward with evidence which could support a claim that he was treated differently than other inmates, and that the difference in treatment could properly be attributed to his status as a Romanian. As such evidence, plaintiff offers only a statement made to him by defendant Fitzpatrick at one point, in substance, that plaintiff had "now... learned to speak English." See Plaintiff's Memorandum (Dkt. No. 46) at 29.Beyond this slender reed, plaintiff offers no evidence to support his claim that he was treated differently than inmates not of his national origin, and indeed acknowledges mere speculation on his part as to this premise, arguing that "discrimination based on national origin may... have placed [sic] a role in defendants' unlawful actions[.]" Plaintiff's Memorandum (Dkt. No. 46) at 29 (emphasis added). Instead, plaintiff's equal protection claims consist of mere surmise and speculation, and are subject to dismissal on this basis. See, e.g., Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987) ("complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning").

Despite being obligated to do so at this juncture, plaintiff has failed to adduce any evidence to show either that he was treated differently than his non-Romanian counterparts, and that the difference in treatment was based upon his national origin. I therefore recommend dismissal of plaintiff's equal protection claims as a matter of law.

G. United Nations Resolutions

*15 Each of plaintiff's eight causes of action is based, in part, upon two international agreements, including the Universal Declaration of Human Rights ("UDHR") and the International Covenant on Civil and Political Rights ("ICCPR"). Defendants maintain that as a matter of law, those provisions do not support claims under section 1983.

Section 1983 provides, in pertinent part, for a right of action on behalf of any person deprived of "any rights, privileges, or immunities secured by the Constitution and laws[.]"42 U.S.C. § 1983. Plaintiff argues that because the United States is a signatory to these two treaty-like provisions, they have the force of law and can be implemented, and individual treaty violations can give rise to recourse, under section 1983.

It is true that violation of a treaty entered into by the United States can serve as a basis for a claim for damages under section 1983, provided that the treaty allows for a private right of action to redress any alleged violations of its provisions. Standt v. City of New York, 153 F.Supp.2d 417, 422-30 (S.D.N.Y.2001) (finding private right of action under section 1983 for violation of the Vienna Convention on Consular Relations, 21 U.S.T. 77, 101 T.I.A.S. No. 6820, 596 U.N.T.S. 261 (April 24, 1963)). To the extent that the defendants argue otherwise, and contend that treaties-as distinct from constitutional and other types of federal statutory provisions-cannot support a claim for section 1983 liability, see Defendants' Memorandum (Dkt. No. 39) at 17-18, that position therefore lacks support.

As can be seen, analysis of the sufficiency of plaintiff's claims under the cited treaty provisions turns upon whether those international agreements confer individual rights of action. In order to be found deserving of enforcement under section 1983 as a "law", a treaty ratified by the Senate must either be found to be self-executing or, alternatively, must have been the subject of implementing legislation by Congress. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.1979).

Since plaintiff has pointed to no applicable implementing legislation, nor is the court aware of any, the availability of the ICCPR to support plaintiff's section 1983 claim depends upon whether it is self-executing. The majority of the courts addressing this issue, however, including within the Second Circuit, have concluded that it is not.[17] See, e.g., Poindexter v. Nash, 333 F.3d 372, 379 (2d Cir.2003); Murray v. Warden, FCI Raybrook, No. 9:01-CV-255, 2002 WL 31741247, at *11 n. 10 (N.D.N.Y. Dec. 5, 2002) (Sharpe, M.J.) (citing U.S. ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1063 (8th Cir.2002) and Reaves v. Warden, No. Civ. A3:01-CV-1149, 2002 WL 535398, at *9 (M.D.Pa. Mar. 22, 2002). Similarly, the UDHR has been characterized by the Second Circuit as "non-binding." Flores v. Southern Peru Copper Corp., 343 F.3d 140, 167-68 (2d Cir.2003).

*16 Based upon the foregoing, and without deciding whether the evidence in the record demonstrates a genuine issue of material fact as to whether those provisions were violated by defendants' alleged actions toward the plaintiff, I find that Ciaprazi's claims under the ICCPR and UDHR are legally deficient as a matter of law. I therefore recommend dismissal of plaintiff's claims which are dependent on those two international agreements.

H. Personal Involvement

Defendants claim that plaintiff's claims against defendants Goord and Selsky are legally deficient, in that the record fails to establish their requisite personal involvement in the constitutional violations alleged.

Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. 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)). 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).

A supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor-there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. A supervisory official can, however, be liable in one of several ways: 1) the supervisor may have directly participated in the challenged conduct; 2) the supervisor, after learning of the violation through a report or appeal, may have failed to remedy the wrong; 3) the supervisor may have created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) the supervisor may have been grossly negligent in managing the subordinates who caused the unlawful event; or 5) the supervisor may have failed to act on information indicating that unconstitutional acts were occurring. Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).

The basis for asserting liability against defendant Selsky arises exclusively from plaintiff's appeal from his disciplinary determination. That appeal was addressed by defendant Selsky, whose review of that 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. See, e.g., Gilbert v. Selsky, 867 F.Supp. 159, 166 (S.D.N.Y.1994).

Plaintiff's claim against defendant Goord is far more tenuous. Plaintiff asserts that because his appeal was mailed directly to defendant Goord who, consistent with his established practice, then referred it to defendant Selsky for review, the Commissioner "presumably read [its] contents." See Plaintiff's Memorandum (Dkt. No. 46) at 32.This, coupled with his contention that as the ultimate supervisor of the DOCS defendant Goord was positioned to remedy the violations which he suffered, forms the sole basis for his claims against defendant Goord. These are merely claims against defendant Goord in his supervisory capacity; to sanction them would be to allow for respondeat superior liability. Since it is well established that such liability does not lie under section 1983, and there is no other discernible basis to conclude defendant Goord's awareness of or involvement in the matters alleged in plaintiff's complaint, I recommend that defendants' motion be granted and plaintiff's claims against defendant Goord be dismissed based upon lack of personal involvement. Richardson, 347 F.3d at 435 (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985); "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim"); Scott v. Coughlin, 78 F.Supp.2d 299, 312 (S.D.N.Y.2000) (Commissioner's act of forwarding appeals addressed to him to Selsky insufficient to establish personal involvement; citing, inter alia, Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1991)).

IV. SUMMARY AND RECOMMENDATION

*17 The plaintiff, an experienced and well-versed pro se litigant, has commenced this action asserting various claims arising out of the issuance of a disciplinary misbehavior report and the process which followed, including the punishment received. Upon examination of the record, I find no evidence tending to demonstrate that the adverse actions taken against the plaintiff were motivated by disciplinary animus, and thereby recommend the entry of summary judgment dismissing his retaliation claim. I do, however, find the existence of triable issues of fact regarding whether or not Ciaprazi was deprived of a constitutionally significant liberty interest, and whether the assistance provided to the plaintiff in anticipation of his hearing was constitutionally adequate, and therefore recommend against summary dismissal of plaintiff's procedural due process claims.

Addressing plaintiff's Eighth Amendment claims I find, particularly in view of the lack of any evidence to the contrary, that the conditions described by the plaintiff could lead a reasonable factfinder to conclude that they amounted to cruel and unusual punishment, and therefore recommend against the entry of summary judgment dismissing plaintiff's Eighth Amendment claim. I further find, however, no basis to conclude that a reasonable factfinder could find an Eighth amendment violation based on the Tier III regulatory scheme, a violation of the Equal Protection Clause of the Fourteenth Amendment, or that the international treaty provisions cited give rise to a private right of action. Accordingly, I recommend dismissal of those claims.

Finally, I recommend dismissal of plaintiff's claims against defendant Goord based upon the lack of his personal involvement, but against dismissal of plaintiff's claims against defendant Selsky on this basis. It is therefore hereby RECOMMENDED that defendants' summary judgment motion (Dkt. No. 39) be GRANTED in part, and that all of plaintiff's claims against defendant Goord, and all of plaintiff's claims against the remaining defendants except his procedural due process and Eighth Amendment conditions of confinement causes of action, be DISMISSED, but that to the extent of those claims, with respect to which triable issues of fact exist, I recommend that defendants' motion be DENIED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN 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 TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Fed.R.Civ.P. 6(a), 6(e), 72; 28 U.S.C. § 636(b)(1); Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citations omitted); and it is further hereby

ORDERED that the Clerk of the Court serve a copy of this Report and Recommendation upon the parties by regular mail.

Attorneys and Law Firms

Andre Dolberry, Fishkill, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Adele Taylor-Scott, Esq., Ass't Attorney General, of Counsel, Albany, NY, for Defendants.

DECISION and ORDER

DAVID N. HURD, District Judge.

*1 Pro se plaintiff Andre Dolberry, who is also sometimes known as Andre Duberry, brought this action pursuant to 42 U.S.C. § 1983. On February 28, 2014, the Honorable David E. Peebles, United States Magistrate Judge, advised by Report-Recommendation that plaintiff's motion for summary judgment be denied, and that plaintiff's complaint in this action be dismissed based upon his material misrepresentation to the court, under oath, that he has not brought any prior actions relating to his imprisonment. Plaintiff timely filed objections to the Report-Recommendation.

Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff objected, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1).

Therefore, it is

ORDERED that

1. Plaintiff's motion for summary judgment is DENIED;

2. Plaintiffs complaint is DISMISSED in its entirety based upon his material misrepresentations to the court and abuse of the litigation process; and

3. Defendants' motion for summary judgment is DENIED as moot.

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

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

Pro se plaintiff Andre Dolberry, who is also sometimes known as Andre Duberry and has an extensive litigation history, has commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights while he was incarcerated in a state prison facility. In his complaint, plaintiff alleges that he was issued false misbehavior reports in retaliation for exercising his First Amendment rights, he was threatened and harassed by corrections officials, his rights to procedural due process and equal protection were violated, and the superintendent of the facility, though not directly involved, was complicit in all of those violations.

Currently pending before the court in connection with the action are cross-motions for summary judgment. For the reasons set forth below, I recommend that plaintiff's motion for summary judgment be denied, and that plaintiff's complaint in this action be dismissed based upon his material misrepresentation to the court, under oath, that he has not brought any prior actions relating to his imprisonment.

I. BACKGROUND [1]

Although plaintiff is currently confined elsewhere, his claims in this action arise from his previous incarceration in the Coxsackie Correctional Facility ("Coxsackie"), a prison operated by the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1.

Plaintiff's complaint asserts claims against defendant Glenn Saltsman, a corrections officer at Coxsackie, based upon two separate incidents. The first involved a complaint by an unnamed inmate who reported to defendant Saltsman, on July 5, 2005, that he was being threatened by the plaintiff. Dkt. No. 45-16 at 1; Dkt. No. 45-21. Following an investigation by the area supervisor, Sargeant Melendez, who is not a named defendant in this action, defendant Saltsman issued a misbehavior report to plaintiff charging him with violating a prison rule prohibiting inmates from making threats. Dkt. No. 45-16 at 2; Dkt. No. 45-17; Dkt. No. 45-21 at 22 . Defendant Christopher McDermott, a corrections lieutenant employed by the DOCCS, presided over a Tier II disciplinary hearing, held on July 14, 2009, stemming from that misbehavior report.[2] Dkt. No. 45-19 at 4; Dkt. No. 45-21 at 2. Following the hearing, at which plaintiff was given the opportunity to call witnesses and testify on his behalf, plaintiff was found guilty of threatening another inmate.[3] Dkt. No. 45-19 at 4; Dkt. No. 45-21 at 14, 19. As a result of that finding, defendant McDermott sentenced plaintiff to serve thirty days of keeplock confinement, with a corresponding loss of certain privileges.[4] Dkt. No. 45-19 at 4; Dkt. No. 45-21 at 14, 19.

*2 The second incident involving defendant Saltsman occurred on August 20, 2009, while the corrections officer was making routine rounds at the facility. Dkt. No. 45-16 at 2. According to defendant Saltsman, after observing that plaintiff had placed a towel over his lamp, creating a potential fire hazard, he ordered Dolberry to remove the towel. Id. at 3. Plaintiff responded by stating, "This is my cell, I'll keep it the way I want.'" Id. Defendants maintain plaintiff complied with defendant Saltsman's request only after he was given two additional direct orders. Id. Based upon that incident, defendant Saltsman issued plaintiff a misbehavior report accusing Dolberry of violating three prison rules, including creating a fire hazard, disobeying a direct order, and failing to maintain orderliness of his living quarters. Id.; Dkt. No. 45-18; Dkt. No. 1 at 14. There is no record regarding the results of any disciplinary hearing that may have occurred following the issuance of that misbehavior report.

According to defendant Saltsman, at the time both of those misbehavior reports were written, he was not aware of the fact that plaintiff had filed grievances or complaints against him. Dkt. No. 45-16 at 3.

Plaintiff's claims against defendant John Jakob, another corrections officer at Coxsackie, center around several misbehavior reports issued to Dolberry by that defendant between June and October of 2009. See generally Dkt. No. 1; Dkt. No. 45-11 at 2. The first of those was issued on July 3, 2009, charging plaintiff with violating several facility rules, by disobeying a direct order, being out of place, making a false statement, making threats, and committing a movement violation. Dkt. No. 45-11 at 3; Dkt. No. 45-20 at 2, 3, 13. According to defendant Jakob, that misbehavior report was issued based upon Dolberry's refusal to line up properly following an evening meal on July 3, 2009, and lying about not being in the proper order. Dkt. No. 45-11 at 3; Dkt. No. 45-20 at 13. Plaintiff alleges that the misbehavior report was issued in retaliation for having filed "grievance complaints on staff on 6/3/09." Dkt. No. 1 at 12. Defendant Jakob maintains that, at the time he issued the misbehavior report dated July 3, 2009, he had no knowledge of plaintiff having submitted any written complaints against him. Dkt. No. 45-11 at 3. On July 10, 2009, defendant McDermott conducted a Tier II disciplinary hearing to address the charges contained in the July 3, 2009 misbehavior report. Dkt. No. 45-19 at 2; Dkt. No. 45-20 at 2-7 . Defendant McDermott dismissed the charge of making threats immediately upon commencing the hearing. Dkt. No. 45-20 at 3. Plaintiff was permitted to, and did, testify on his behalf, and he was given an opportunity to call witnesses. Id. at 3-6.At the conclusion of the hearing, defendant McDermott found plaintiff not guilty of disobeying a direct order and providing a false statement. Id. at 6, 10. Plaintiff was found guilty, however, of being out of place and a movement violation. Id. Defendant McDermott sentenced plaintiff to twenty days loss of privileges, although the sanction was suspended for sixty days. Id. at 6-7, 10.

*3 A second misbehavior report was issued to plaintiff by defendant Jakob on August 23, 2009, accusing Dolberry of additional prison rule infractions, including disobeying a direct order, failing to maintain orderliness of his living quarters, and harassment. Dkt. No. 45-11 at 3; Dkt. No. 46-2 at 18. That misbehavior report was issued after defendant Jakob ordered plaintiff to remove his locker from the top of plaintiff's desk, and, in response, plaintiff said, "I'll do what I want. I'm suing your white ass.'" Dkt. No. 45-11 at 3; DKt. No. 46-2 at 18; see also Dkt. No. 1 at 17. A Tier II disciplinary hearing was conducted regarding that misbehavior report on September 3, 2009, by Lieutenant Meigs, a DOCCS employee. Dkt. No. 46-2 at 2-12 . At the hearing, plaintiff was permitted to testify in his defense, but refused an opportunity to call any witnesses on his behalf. Id. at 5-6.At the conclusion of the hearing, Lieutenant Meigs found plaintiff guilty of disobeying a direct order, but not guilty on the other charges. Id. at 6, 15.As a sanction, plaintiff was sentenced to fifteen days loss of privileges. Id. A third misbehavior report was issued by defendant Jakob to the plaintiff, on September 1, 2009, charging him with being out of place and failing to comply with the disciplinary sanction, in violation of prison rules.[5] Dkt. No. 45-11 at 4; Dkt. No. 45-15; Dkt. No. 45-22 at 11. That misbehavior report, which plaintiff characterizes as "bogus, " Dkt. No. 1 at 17, was issued based upon defendant Jakob's belief that plaintiff had attended outside recreation despite having been previously issued a disciplinary sanction that included loss of recreation during that period. Dkt. No. 45-11 at 3-4; Dkt. No. 45-15; Dkt. No. 45-22 at 11. On September 11, 2009, defendant McDermott conducted a Tier II disciplinary hearing related to that misbehavior report. Dkt. No. 45-19 at 4; Dkt. No. 45-22 at 2-5. Plaintiff testified in his defense but declined an opportunity to call any witnesses. Dkt. No. 45-22 at 4. Defendant McDermott found plaintiff guilty on both charges, and sentenced him to fourteen days keeplock confinement and a loss of certain privileges. Id. at 4, 8.

A fourth misbehavior report was authored by defendant Jakob on or about October 9, 2009, accusing plaintiff of threatening Jakob and his family. Dkt. No. 45-11 at 4; Dkt. No. 45-25 at 4. Plaintiff alleges that this misbehavior report was fabricated and retaliatory. Dkt. No. 1 at 18. That misbehavior report resulted in a Tier III disciplinary hearing, conducted by defendant Eric Gutwein, a DOCCS hearing officer, on October 15, 2009. Dkt. No. 45-24 at 2; Dkt. No. 45-25 at 1-3. Following the hearing, defendant Gutwein found the plaintiff guilty of making threats and engaging in violent conduct, and sentenced him to serve a period three months of disciplinary confinement in the facility's special housing unit ("SHU"), to commence on October 23, 2009.[6] Dkt. No. 45-24 at 3; Dkt. No. 45-25 at 1. That determination was subsequently reversed, however, by the DOCCS central office based upon a procedural error, and plaintiff was released from SHU confinement on November 12, 2009, after serving only twenty-one days of disciplinary confinement. Dkt. No. 45-24 at 3; Dkt. No. 45-26 at 2; Dkt. No. 45-27.

II. PROCEDURAL HISTORY

*4 Plaintiff commenced this action on August 25, 2011, in the Western District of New York. Dkt. No. 1. The action was subsequently transferred to this district, and plaintiff was thereafter granted leave to proceed in forma pauperis. [7] Dkt. Nos. 3, 4, and 5. Plaintiff's complaint, as modified by the court's initial order, Dkt. No. 5, names, as defendants, Corrections Officers Jakob, Saltsman, and Silverman; Coxsackie Superintendent Martuscello; Acting Superintendent Gutwein; and Corrections Lieutenant McDermott. See generally Dkt. No. 1. In it, plaintiff asserts causes of action for the deprivation of procedural due process and equal protection, in violation of the Fourteenth Amendment; unlawful retaliation, in violation of First Amendment; denial of court access, in violation of the First, Fifth, and Fourteenth Amendments; and cruel and unusual punishment, in violation of the Eighth Amendment. Id.

On March 25, 2013, following the close of discovery, plaintiff moved for the entry of summary judgment in his favor. Dkt. No. 37 . On May 20, 2013, defendants submitted their opposition to that motion, and simultaneously filed a cross-motion for summary judgment seeking dismissal of plaintiff's complaint on a variety of grounds. Dkt. Nos. 44-47. Plaintiff has since responded in opposition to defendants' cross-motion. Dkt. No. 49. The parties' cross-motions for summary judgment are now ripe for determination, and have 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).SeeFed.R.Civ.P. 72(b).

III. DISCUSSION

A. Plaintiffs Material Misrepresentation to the Court

In his complaint, which was filed utilizing a pre-printed form from the Western District of New York intended for use in civil rights actions brought under 42 U.S.C. § 1983, plaintiff was asked the following question: "Have you begun any other lawsuits in federal court which relate to your imprisonment?"Dkt. No. 1 at 3. In response, defendant answered, "No." Id. That answer is demonstrably false. By the time plaintiff had commenced this action, he had already developed a robust inmate litigation history, having filed at least seven cases in this circuit, six of which were dismissed, upon initial review, as frivolous or for failure to state a cause of action, pursuant to 28 U.S.C. § 1915(e)(2).[8]

In failing to disclose his prior litigation history, plaintiff provided misinformation to the court regarding a material issue. As one of my former colleagues has noted regarding the materiality of an inmate-plaintiffs prior litigation history,

[g]enerally, information about a plaintiff's litigation history is material in prisoner civil rights actions since it enables the Court to determine one or more of the following issues: (1) whether any of the issues in the action have been previously litigated and decided (for purpose of the doctrines of res judicata and collateral estoppel); (2) whether the plaintiff had, prior to being granted in forma pauperis status in this action, earned three strikes' for purposes of 28 U.S.C. § 1915(g); (3) whether the plaintiff had a record of frivolous litigation sufficient to warrant either (a) what is known as a bar order' (i.e., an order barring him from litigating further in that court without meeting certain preconditions) pursuant to 28 U.S.C. § 1651(a), or (b) an order declaring plaintiff to be a vexatious' litigator pursuant to 28 U.S.C. § 1927; and (4) whether the plaintiff's litigation experience was so extraordinary that it effectively dispenses with the need to afford him special solicitude.

*5 Chavis v. Curlee, No. 06-CV-0049, 2008 WL 508694, at *10 (N.D.N.Y. Feb. 21, 2008) (Kahn, J., adopting report and recommendation by Lowe, M.J.).[9] While the second of those four articulated rationales does not apply in the case because plaintiff was not a prison inmate when this suit was commenced, the remaining three are valid considerations in this action given plaintiff's history. Plaintiff's failure to truthfully answer the inquiry concerning his prior litigation history represents a fraud upon the court, and a violation of his obligations under Rule 11 of the Federal Rules of Civil Procedure.[10]

Pro se litigants, like any others, are subject to the strictures of Rule 11, and may properly be sanctioned for making material misrepresentations to the court. See, e.g., Manwani v. Brunelle, No. 95-6080, 1995 WL 732686, at *2 (2d Cir. Dec. 8, 1995) (unpublished) (affirming district court's Rule 11 sanctions issued against a pro se litigant). In view of plaintiffs gross and cavalier misrepresentation concerning his litigation history in this and other actions he has filed in this circuit, the imposition of sanctions is clearly warranted.[11]

In their motion, defendants request that the court sanction plaintiff, due to his misrepresentations, by dismissing the complaint in this action. Dkt. No. 46-8 at 23-25. I note, however, that defendants have failed to provide plaintiff with the twenty-one day safe harbor period called for in Rule 11(c)(2), a failure that would, on its own, warrant denial of the motion. See Fierro v. Gallucci, 423 F.Appx. 17, 18-19 (2d Cir.2011) (finding that the district court "was required to deny plaintiff's motion for sanctions for failure to comply with the 21-day safe harbor, ' which requires Rule 11 motions be served on the opposing party 21 days prior to their filing, in order to afford that party an opportunity to withdraw their allegedly sanctionable claims"). The court, however, is permitted under Rule 11 to impose sanctions sua sponte"after notice and a reasonable opportunity to respond."Fed.R.Civ.P. 11(c)(1); see alsoFed.R.Civ.P. 11(c) (3) ("On its own, the court may order a[ ]... party to show cause why conduct specifically described in the order has not violated Rule 11(b)."). The Second Circuit has held that, to impose sanctions sua sponte, courts must first find subjective bad-faith on the party to be sanctioned. In re Pennie & Edmonds LLP, 323 F.3d 86, 90 (2d Cir.2003).[12]

In this case, in light of plaintiff's chronicled history of unabashed misstatements to this and other courts, I find that those misstatements were made in bad faith, and that dismissal of his complaint is warranted.[13] See Elijah Bell v. Lasaceli, No. 08-CV-0278, 2009 WL 1032857, at *4 (W.D.N.Y. Apr. 15, 2009) ("Because Plaintiff has repeatedly misrepresented his litigation history to the Court the Court finds that he has violated Fed.R.Civ.P. 11 and therefore, this action will dismissed, in the alternative, on that basis."); Chavis, 2008 WL 508694, at *11 (adopting recommendation to dismiss the case premised on alternative ground that the plaintiff should be sanctioned for making a material misrepresentation to the court in his complaint); see also Muniz v. Goord, No. 04-CV-0479, 2007 WL 2027912, at *6 n. 32 (N.D.N.Y. July 11, 2007) (McAvoy, J., adopting report and recommendation by Lowe, M.J.) (adopting recommendation to dismiss the case premised on alternative ground that the plaintiff should be sanctioned for making a material misrepresentation to the court in his complaint (collecting cases)); see also Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir.2011) (affirming district court's dismissal of the appellant's case as a sanction for failing to accurately disclose his litigation history); Greer v. Schriro, No. 06-15537, 2007 WL 4163413 (9th Cir.2007) ("The district court did not abuse its discretion in dismissing Greer's action, because she failed to adequately explain misrepresentations, made under penalty of perjury, about her previous litigation history."); Mathis v. Smith, 181 F.Appx. 808, 810 (11th Cir.2006) (finding no abuse of discretion by the district court where it dismissed the plaintiff's case in light of his dishonesty); Joiner v. Delo, 905 F.2d 206, 208 (8th Cir.1990) (affirming district court's rule 11 dismissal of plaintiff's claims in light of the plaintiff's "blatant misrepresentation of the circumstances of his medical treatment").

B. The Parties' Cross-Motions for Summary Judgment

*6 Notwithstanding my recommendation that plaintiff's complaint be dismissed due to his repeated dishonesty with the court, I have analyzed the parties' cross-motions for summary judgment below in the event that recommendation is not adopted.

1. Legal Standard Governing Motions for Summary Judgment

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); see 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) (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.

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. 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").

2. Plaintiffs Motion for Summary Judgment

Plaintiff has moved for summary judgment in his favor. Dkt. No. 37. Plaintiffs motion, however, reflects a fundamental misunderstanding of the law of summary judgment. In his memorandum, Dolberry makes the following statements:

[T]here exists a genuine issue of material facts [sic] to whether C.O. Jakob's false disciplinary tickets for threats against Dolberry was in retaliation, C.O. Saltsman[s] tickets were in retaliation, and Supt. Martuscello ignored Dolberry's complaints for months....
*7 It cannot be argued here the facts are well established and settled[.]

Dkt. No. 37-1 at 2. Because plaintiff does not argue, nor has he established, that no genuine disputes of material fact exists for a factfinder at trial, he has failed to sustain his burden under Rule 56. Accordingly, I recommend that plaintiff's motion for summary judgment be denied.

3. Defendants' Motion for Summary Judgment

i. Plaintiff's Procedural Due Process Claim

Among the claims asserted by the plaintiff is a procedural due process cause of action against defendants McDermott and Gutwein. Dkt. No. 1 at 21-24. That claim appears to stem from five Tier II or Tier III disciplinary hearings conducted by those defendants, the details of which are listed below.[14]

To establish a procedural due process claim under section 1983, a plaintiff must show that he (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 F.3d 653, 658 (2d Cir.1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996).

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. By its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d Cir.2004) (citing Welch v. Bartlett, 196 F.3d 389, 394 n. 4 (2d Cir.1999)). The issue, then, is whether the allegations related to the conditions of plaintiff's keeplock and SHU confinement rise to the level of an atypical and significant hardship.

*8 Atypicality in a Sandin inquiry is normally a question of law.[16] Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir.2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.1999)."[W]hether the conditions of a segregation amount to an atypical and significant hardship' turns on the duration of the segregation and a comparison with the conditions in the general population and in other categories of segregation." Arce v. Walker, 139 F.3d 329, 336 (2d Cir.1998) (citing Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir.1997)). In cases involving shorter periods of segregated confinement where the plaintiff has not alleged any unusual conditions, however, a court may not need to undergo a detailed analysis of these considerations. Arce, 139 F.3d at 336; Hynes, 143 F.3d at 658.

In this case, to the extent that plaintiff's due process claim centers around his confinement in keeplock or the SHU, the lengths of time he spent in either one as a result of a sanction imposed by defendants McDermott and Gutwein are insufficient to give rise to a liberty interest implicating a prisoner's due process rights.[17] The Second Circuit has made clear that disciplinary confinements of fewer than 101 days and not involving extraordinary circumstances do not constitute atypical and significant hardships. Palmer v. Richards, 364 F.3d 60, 65 (2d Cir.2004) (citing Sealey, 197 F.3d at 589). Here, plaintiff's disciplinary confinements, none of which involved anything but "normal" circumstances, endured for no more than thirty days in keeplock and twentyone days in the SHU confinement beginning on October 23, 2009, and ending on November 12, 2009. Dkt. No. 45-24 at 3; Dkt. No. 45-27 . Accordingly, I find that no genuine dispute of material fact exists regarding whether plaintiff's liberty interests were violated, thus implicating his procedural due process rights. See Palmer, 364 F.3d at 65-66 ("In the absence of a detailed factual record, we have affirmed dismissal of due process claims only in cases where the period of time spent in SHU was exceedingly short-less than the 30 days that the Sandin plaintiff spent in SHU- and there was no indication that the plaintiff endured unusual SHU conditions."(citing Arce, 139 F.3d at 335-36; Hynes, 143 F.3d at 658-59; Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996)). Accordingly, I recommend that plaintiff's due process claim asserted against defendants McDermott and Gutwiein be dismissed without examining the sufficiency of the procedural safeguards afforded to him.

ii. Plaintiff's Cruel and Unusual Punishment Claims

Throughout plaintiff's complaint are allegations that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment. Although this is anything but clear, it appears that the claim is centered around (1) the actions of defendant Jakob, who allegedly subjected plaintiff to threats, abuse, and harassment; (2) the twentyone day period of SHU confinement imposed by defendant Gutwein; and (3) the denial by defendant Silverman, another corrections officer stationed at Coxsackie, of a food tray on one occasion.

a. Eighth Amendment Principles Generally

*9 The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society [, ]' or involve[s] the unnecessary and wanton infliction of pain [.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, ' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).

A claim alleging that prison conditions have violated the Eighth Amendment must satisfy both objective and subjective requirements. Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996). As to the objective prong, "the plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs.'" Jolly, 76 F.3d at 480 (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.2985)); see also Walker v. Schult, 717 F.3d. 119, 125 (2d Cir.2013) ("To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health."). To meet the subjective requirement, "the plaintiff must demonstrate that the defendants imposed those conditions with deliberate indifference.'" Jolly, 76 F.3d at 480 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)); see also Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; [he] 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." Farmer, 511 U.S. at 837; see also Waldo, 1998 WL 713809, at *2; Davidson, 920 F.Supp. at 308.

b. Threats and Harassment

Central to the cruel and unusual claims asserted by the plaintiff in this action is his contention that he was subjected to threats and abuse by defendant Jakob. See generally Dkt. No. 1. Defendants seek dismissal of those claims. Dkt. No. 46-8 at 15 . Because it is well settled in this circuit that mere verbal threats and harassment not resulting in physical injury do not give rise to an Eighth Amendment violation, I recommend that this claim be dismissed. See Felder v. Fillion, 368 F.Appx. 253, 256 (2d Cir.2010) ("The allegation that [the defendant] threatened [the plaintiff] verbally was not a sufficient basis for a claim of Eighth Amendment violation because [the plaintiff] did not present evidence of any injury resulting from those threats."(citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)).

c. SHU Confinement

*10 Plaintiff's Eighth Amendment claim asserted against defendant Gutwein stems from Gutwein's imposition of a thirty-day disciplinary SHU confinement. As was noted above in connection with plaintiff's due process claim, he has not alleged, nor has he presented evidence suggesting, that the conditions of confinement in the SHU were constitutionally inadequate. In other words, there is nothing in the record to give rise to a dispute of material fact regarding whether the disciplinary confinement was, objectively, sufficiently serious, or that, subjectively, defendant Gutwein exhibited deliberate indifference to plaintiff's health or safety. Farmer, 511 U.S. at 834. Accordingly, I recommend that plaintiff's Eighth Amendment claim against defendant Gutwein be dismissed.

d. Denial of Food

Another component of plaintiff's Eighth Amendment claim is his contention that he was denied a meal on one isolated occasion by defendant Silverman. Dkt. No. 1 at 27 . Courts in this circuit have routinely held, however, that the denial of a single meal is constitutionally de mininis, and insufficient to support an Eighth Amendment claim. Rush v. Fischer, 923 F.Supp.2d 545, 555-56 (S.D.N.Y.2013) (citing Hankerson v. Nassau Cnty. Corr. Facility, No. 12-CV-5282, 2012 WL 6055019, at *3 (E.D.N.Y. Dec. 4, 2012); Scarbrough v. Evans, No. 11-CV-0131, 2012 WL 4364511, at *5 (N.D.N.Y. May 17, 2012) (Homer, M.J.), report and recommendation adopted by 2012 WL 4350792 (Mordue, J.)). I therefore recommend dismissal of this claim against defendant Silverman.

iii. Plaintiffs Denial of Access to the Courts Claim

In his complaint, plaintiff alleges that defendant Jakob's issuance of misbehavior reports to him effectively denied him access to the courts. Dkt. No. 1 at 9, 11, 12, 13, 26. Defendants seek dismissal of this claim based on the fact that there is nothing in the record from which a reasonable factfinder could conclude that plaintiff suffered any prejudice in his lawsuits due to defendant Jakob's issuance of misbehavior reports. Dkt. No. 46-8 at 17-18.

Undoubtedly, prisoners have a constitutional right to meaningfully access the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977); accord, Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that Bounds acknowledged was the (already well-established) right of access to the courts."(emphasis in original)). This right is implicated when prison officials "actively interfer [e] with inmates' attempts to prepare legal documents, or file them [.]" Lewis, 518 U.S. at 350 (citations omitted). A plaintiff asserting a denial of access to the courts claim must allege that the defendant was "responsible for actions that hindered his efforts to pursue a legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (quotation marks omitted). To establish a denial of access to courts claim, a plaintiff must satisfy two prongs. First, a plaintiff must show that the defendant acted deliberately and maliciously. Davis, 320 F.3d at 351. Second, plaintiff must demonstrate that he suffered an actual injury. Id.

*11 In this case, there is insufficient record evidence to give rise to a genuine dispute of fact regarding either element of a court-access claim. One of the two lawsuits referenced in plaintiff's complaint is No. M-75662, which was pending in the New York State courts at the time defendant Jakob issued a misbehavior report to plaintiff on October 9, 2009. Dkt. No. 1 at 13. Publically available records regarding that case reveal that the only defendant named in that case was the State of New York. Dolberry v. State, 71 A.D.3d 948 (2d Dep't 2010). Accordingly, without more, I conclude that there is nothing in the record to support the implicit suggestion by the plaintiff that, at the time defendant Jakob issued that misbehavior ticket to plaintiff, he knew plaintiff had a lawsuit pending. Similarly, plaintiff references a case "02CV6418, " which corresponds to one of plaintiff's civil rights lawsuits filed in the United States District Court for the Western District of New York. Dolberry v. Levine, No. 02-CV-6418 (W.D.N.Y. filed Aug. 6, 2002). Plaintiff has not explained how he suffered any prejudice in connection with that lawsuit, and it is unclear to the court based on publically available records how he suffered prejudice. Indeed, plaintiff settled with the defendants in that case for $3, 300.00. Levine, No. 02-CV-6418, Dkt. No. 368 (W.D.N.Y.). It is also worth noting that there is nothing in the record to suggest that defendant Jakob, who is not a named-defendant in that case, knew about the lawsuit at any time.

In summary, because no reasonable factfinder could conclude, based on the record evidence, that defendant Jakob issued misbehavior reports to plaintiff deliberately and maliciously to interfere with his lawsuits or that plaintiff suffered prejudice as a result of the misbehavior reports, I recommend that his First Amendment court access claim be dismissed.

iv. Plaintiff's Equal Protection Claim

In his complaint plaintiff alleges, without elaboration, that the defendants deprived him of equal protection. Dkt. No. 1 at 26, 27. Defendants now argue that plaintiff's equal protection claim is insufficiently stated and not supported by the record. Dkt. No. 46-8 at 25-26.

The equal protection clause of the Fourteenth Amendment directs state actors to treat similarly situated people alike. City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To establish an equal protection cause of action, a plaintiff must prove that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995). The plaintiff must also show "that the disparity in treatment cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to any legitimate penological interests.'" Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005) (alteration omitted) (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).

*12 In this instance, plaintiff has not identified, nor does the record disclose, any basis to conclude that he was treated differently than similarly situated individuals. Rather, plaintiff's two allegations giving rise to his equal protection claim, and the only record evidence surrounding that claim, are as follows:

On several other occasions C.O. Jakob... demonstrated racial, bias, prejudice, animosity while conspiring to deprive him of his Equal Protection of the laws under color of law.
[Defendants Jakob and Silverman] acted with racial or other class-based animus in conspiring to deprive the plaintiff of his equal protection of the laws secured by the law.

Dkt. No. 1 at 26, 27. Even assuming, however, that the record gives rise to a dispute of fact regarding whether plaintiff was treated differently than other, similarly situated persons for purposes of an equal protection analysis, there is nothing in the record suggesting any disparity in the conditions experienced by the two (unidentified) groups as a result of purposeful discrimination directed at an identifiable suspect class. Accordingly, I recommend that plaintiff's equal protection claim be dismissed.

v. Personal Involvement of Defendant Martuscello

Among the defendants named in plaintiff's complaint is Daniel Martuscello, the Superintendent at Coxsackie. See, e.g., Dkt. No. 1 at 8. Plaintiff does not allege that defendant Martuscello was personally involved in the events giving rise to his claims. Id. Instead, he contends that Martuscello knew or should have known of the constitutional deprivations alleged based upon complaints and grievances lodged by the plaintiff, but failed to act to remedy the violations. Id.

It is well-established that, as a supervisor, defendant Martuscello cannot be liable for damages under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir.2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501.

In this case, plaintiff supports his claims against defendant Martuscello with mere allegations that he sent Martuscello letters and complaints regarding the other defendants' unlawful conduct. Plaintiff has failed to provide any details with respect to those letters. In contrast to plaintiff's threadbare allegations, defendant Martuscello has submitted an affidavit, in support of defendants' pending motion, averring that plaintiff's letters and complaints were investigated by him or his staff, and has included copies of the pertinent investigatory reports. Dkt. No. 45-3 at 2; Dkt. Nos. 45-4-45-10.Those reports reflect that defendant Martuscello responded to plaintiff's concerns, and, in certain instances, accepted plaintiff's grievances. Id. Moreover, it is clear from plaintiff's reply that he has included defendant Martuscello as a defendant in this case based solely upon the acts of Martuscello's subordinates. Dkt. No. 49 at 6. In that reply, plaintiff notes the following:

*13 [W]hatever staff was in charge of the investigation an [sic] withheld data of cons [sic], violations were being violated to Supt. Martuscello should be responsible for not doing his job properly putting Supt. Martuscello in the hot seat making it look like he wasn't doing his job when it was his subordinates, who I would make pay all lawyers fees and possible settlements or payments.

Id.

In light of the record now before the court, I conclude that there is an absence of a genuine dispute of fact regarding the personal involvement of defendant Martuscello in any of the allegations giving rise to the claims in this case. Accordingly, I recommend that all of plaintiff's claims against defendant Martuscello be dismissed.

vi. Plaintiffs Retaliation Claims

Plaintiff's complaint contains several allegations regarding retaliatory conduct by defendants Jakob, Saltsman, and Sliverman. See generally Dkt. No. 1. Many of the allegations are vague and conclusory, and others are more specific. Id. Defendants request that plaintiff's retaliation claims be dismissed due to the absence of any record evidence to support the allegations. Dkt. No. 46-8 at 20-23.

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 New York, 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, 58 F.3d at 872 ;accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003).

To establish a claim under section 1983 for unlawful retaliation, a plaintiff must prove that (1) the conduct prompting the retaliatory acts 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-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.)."[P]rison officials' conduct constitutes an adverse action' when it would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.'" Alicea v. Howell, 387 F.Supp.2d 227, 237 (W.D.N.Y.2005) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001)).

*14 Liberally construed, plaintiff's retaliation claims are based on allegations that, in retaliation for exercising his First Amendment rights by writing and filing grievances and civil lawsuits, defendants Jakob, Saltsman, and Silverman issued misbehavior reports to him. See generally Dkt. No. 1. According to plaintiff, some of the misbehavior reports issued were false, while others were simply intended to harass plaintiff. Id. at 12-18.

As an initial matter, I recommend that the retaliation claim asserted against defendant Silverman be dismissed because there is no record evidence to support that claim aside from the following allegation contained in plaintiff's complaint:

Here Duberry asserts [First Amendment] violations of retaliation claims advancing non conclusory allegations where he was protected by certain rights and C.O. Jakob, Saltsman, Silverman and some un[n]amed other C.O.s took adverse action against Duberry where a causal connection between the protected conduct and the adverse action.

Dkt. No. 1 at 16 . Although there are other allegations giving rise to the retaliation claims against defendants Jakob and Saltsman, the foregoing is the only one involving defendant Silverman. Because that allegation does nothing more than advance conclusory and vague factual assertions, and there is no other evidence in the record supporting it, I recommend that the retaliation cause of action asserted against defendant Silverman be dismissed.

With respect to the record evidence that supports plaintiff's retaliation claim against defendants Jakob and Saltsman, defendants have produced evidence that Jakob issued four misbehavior reports against plaintiff during the times relevant to this action, and defendant Saltsman issued two. Dkt. Nos. 45-12-45-13, 45-15, 45-17-45-18, 45-25 at 4. Specifically, misbehavior reports were issued to Dolberry by defendant Jakob on July 3, August 23, September 1, and October 9, 2009, Dkt. Nos. 45-13, 45-15, 45-21 at 22, 45-25 at 4, and by Defendant Saltsman on July 5, and August 20, 2009. Dkt. No. 45-17, 45-18. There is conflicting evidence in the record, however, regarding the motivation behind the defendants' issuance of each of the tickets. Plaintiff alleges that they were issued in retaliation for his filing of grievances or lawsuits against defendants Jakob and Saltsman. Dkt. No. 1 at 12-18 . Indeed, the record reflects that plaintiff filed at least six grievances or letters with prison officials regarding harassment by defendants Jakob and Saltsman. Dkt. Nos. 45-4 at 3, 45-5 at 5, 45-6 at 4-5, 45-7 at 8, 45-9 at 8, 45-10 at 6. Those defendants, on the other hand, purport that they issued each of the misbehavior reports to plaintiff based on plaintiff's failure to obey prison facility rules and regulations. See generally Dkt. Nos. 45-11, 45-16.

It is well settled that the filing of grievances and lawsuits constitutes protected activity for purposes of a First Amendment retaliation analysis. See Johnson v. Eggersdorf, 8 F.Appx. 140, 144 (2d Cir.2001) ("It is undisputed that retaliation by prison officials against an inmate for the filing of a grievance can act as a deprivation of a constitutionally protected right."); 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."). Moreover, the Second Circuit has determined that a prison official's filing of a false misbehavior report against an inmate out of retaliatory animus constitutes adverse action. Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) ("[The plaintiff] has sufficiently alleged... adverse action on the part of the defendants-the filing of false misbehavior reports against [him] and his sentence of three weeks in keeplock-that would deter a prisoner of ordinary firmness from vindicating his... constitutional rights through the grievance process and the courts[.]").

*15 The unanswered question in this case, then, is whether the grievances and lawsuits filed by plaintiff against defendants Jakob and Saltsman were the "motivating factor" behind their issuance of the misbehavior reports. In light of the conflicting evidence between the parties regarding the motivation behind the misbehavior reports, I cannot recommend dismissal of the retaliation claims against defendants Jakob and Saltsman at this juncture. To do otherwise would require the court to make credibility determinations between the conflicting evidence, which is the task of a factfinder at trial. The temporal proximity between the grievances and letters authored by plaintiff, which are in the record before the court, and the misbehavior reports issued by defendants Jakob and Saltsman, raise an inference that the misbehavior reports were motivated by plaintiff's filing of grievances. Plaintiff's letters and grievances are dated between June 27, 2009 and October 9, 2009. Dkt. Nos. 45-4 at 3, 45-5 at 5, 45-6 at 4-5, 45-7 at 8, 45-8 at 3, 45-9 at 8, 45-10 at 6. Defendants Jakob and Saltsman, on the other hand, issued misbehavior reports to plaintiff on July 3, 5, August 20, 23, September 1, and October 9, 2009. Dkt. Nos. 45-17, 45-20, 45-18, 46-2 at 18, 45-15, 45-25 at 4. Those circumstances, when considered in the light most favorable to the plaintiff, demonstrate triable issues of material fact that must be resolved before plaintiff's retaliation claims can be adjudicated. Accordingly, I recommend that defendants' motion for summary judgment be denied with respect to the retaliation claims asserted against defendants Jakob and Saltsman.

vii. Plaintiff's Conspiracy Claims

Sprinkled throughout plaintiff's complaint are allegations that defendant Jakob and others, including defendant Saltsman, conspired to violate his constitutional rights. See, e.g., Dkt. No. 1 at 9, 10, 26, 27. In their motion, defendants seek dismissal of this claim. Dkt. No. 46-8 at 19-20.

"To prove a [section] 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages. " Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999). Conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights are not sufficient to support a cognizable claim under section 1983. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983).

Plaintiff's conspiracy claims are ripe for dismissal in light of the vague and conclusory allegations supporting them, and the fact that some of them relate to claims that are not cognizable under the United States Constitution. Two examples are illustrative. First, plaintiff alleges that, after plaintiff was released from one of his keeplock confinements, a fellow inmate, who had previously complained to defendant Jakob alleging that plaintiff threatened him, "laughed and joked in Duberry's face... [, ] which exhibited conspiracy by C.O. Jakob to keeplock Duberry [.]"Dkt. No. 1 at 9. This conclusory allegation, which is not supported by any record evidence, is insufficient to give rise to a genuine dispute of material fact regarding whether defendant Jakob conspired with anyone to violate plaintiff's constitutional rights. See, e.g., Hilson v. Maltese, No. 09-CV-1373, 2012 WL 6965105, at *6 n. 10 (N.D.N.Y. Dec. 14, 2012) (Baxter, M.J.), report and recommendation adopted by 2013 WL 375489 (N.D.N.Y. Jan. 30, 2013) (Mordue, J.) ("Plaintiff's conclusory assertion... is not sufficient to establish a material issue of fact[.]" (listing cases)).[18] Second, plaintiff alleges that, on or about July 5, 2009, defendants Jakob and Saltsman conspired "to commence the on-going harassment." Dkt. No. 1 at 13 . Because prisoners do not have a constitutional right to be free from general harassment, plaintiff's conspiracy claim in that regard must fail. See OBradovich v. Vill. of Tuckahoe, 325 F.Supp.2d 413, 426 (S.D.N.Y.2004) ("In the absence of any claim establishing a violation of civil rights, the court must also dismiss claims of conspiracy [.]"); Singer v. Fulton Cnty. Sheriffs Dep't, No. 92-CV-1561, 1994 WL 549741, at *5 (N.D.N.Y. Oct. 4, 1994) (Hurd, M.J.), qfd63 F.3d 110 (2d Cir.1995) ("Without a [constitutional] violation, there can be no actionable conspiracy.").[19]

*16 Finally, because plaintiff's remaining conspiracy claims stem from constitutional claims that I recommended be dismissed earlier in this report, I recommend the accompanying conspiracy causes of action be dismissed, as well. See, e.g., Dkt. No. 1 at 9, 26 (alleging conspiracy to deny plaintiff access to the courts and equal protection).

For all of these reasons, I recommend that all of plaintiff's conspiracy claims be dismissed.

viii. Qualified Immunity

In their motion, defendants claim entitlement to qualified immunity from suit even in the event that plaintiff's claims are not dismissed on their merits at this procedural juncture. Dkt. No. 46-8 at 26-27.

"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir.2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. " Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds byPearson, 555 U.S. 223)).

Because qualified immunity is "an immunity from suit rather than a mere defense to liability, " Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly... stressed the importance of resolving immunity questions at the earliest possible stage in the litigation, " Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir.2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a constitutional right, and if so, "whether that right was clearly established' at the time of the events at issue." Nagle v. Marron, 663 F.3d 100, 114 (2d Cir.2011) (citing Saucier, 533 U.S. at 194, 201, 202 );accord, Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.2004). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.' Mshcrof v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). However, [e]ven where the law is clearly established' and the scope of an official's permissible conduct is clearly defined, ' the qualified immunity defense also protects an official if it was objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir.2007) (citations omitted). This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).

*17 The legal principles applicable to First Amendment retaliation claims were well-developed at the relevant times, including when defendants Jakob and Saltsman issued the misbehavior reports that form the basis for plaintiff's retaliation claims. I am unable to conclude that reasonable persons in their positions would not have understood that the issuance of misbehavior reports, prompted by the filing of complaints and grievances against them, would not violate plaintiff's clearly established, First Amendment rights. Accordingly, I recommend that defendants Jakob and Saltsman not be granted qualified immunity from suit at this juncture with regard to plaintiff's retaliation claims.[20]

IV. SUMMARY AND RECOMMENDATION

Now that discovery in this case is complete, both the plaintiff and defendants have moved for summary judgment in their favor. Plaintiff's motion is clearly deficient in that, by his own account, there are genuine issues of material fact that must be determined at trial before a finding in his favor can be made on any of his claims. Turning to defendants' motion, I first note that, based upon plaintiff's misuse of the litigation process, including his material misrepresentations in a sworn document filed with the court and his submission of an improper response to defendants' statement of undisputed material facts, pursuant to local rule 7.1(a)(3), dismissal of his complaint is warranted on that basis. Turning to the merits, I conclude that, with the exception of his retaliation claim against defendants Jakob and Saltsman, no reasonable factfinder could find in plaintiff's favor on his various causes of action. Accordingly, it is hereby respectfully

RECOMMENDED that the plaintiff's motion for summary judgment (Dkt. No. 37 ) be DENIED; and it is further

RECOMMENDED that plaintiff's complaint be DISMISSED in its entirety based upon his material misrepresentations to the court and abuse of the litigation process; and it is further hereby respectfully

RECOMMENDED that, if the portion of the court's report recommending dismissal based on plaintiff's misrepresentation to the court is not adopted, then defendants' motion for summary judgment (Dkt. No. 45 ) be GRANTED in part and DENIED in part, and that all of plaintiffs claims, with the exception of his cause of action for retaliation against defendants Jakob and Saltsman, be DISMISSED on the merits.

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.

George BaBa Eng, Auburn, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General of the State of New York, David L. Cochran, Esq., Assistant Attorney General, of counsel, Albany, NY, for Defendants.

MEMORANDUM-DECISION AND ORDER

Hon. NORMAN A. MORDUE, Chief Judge.

*1 Presently before the Court is defendants' motion (Dkt. No. 94) for partial summary judgment. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services, brought this action under 42 U.S.C. § 1983. In a previous Memorandum-Decision and Order (Dkt. No. 66), this Court adopted the Report and Recommendation of United States Magistrate Judge George H. Lowe (Dkt. No. 60) and granted partial summary judgment to defendants, dismissing plaintiff's complaint and amended complaint.

The claims in plaintiff's supplemental complaint (Dkt. No. 47) still remain. The supplemental complaint sets forth the following three claims:

1. Defendants Therrien and Blood caused plaintiff to be pat frisked on September 8, 2004, September 18, 2004, October 1, 2004, and October 11, 2004, in an abusive manner.
2. Defendant Blood filed a false misbehavior report against plaintiff on October 20, 2004, in retaliation for plaintiff's having filed grievances and complaints against him.
3. Defendant Greene conspired to violate plaintiff's civil rights by assigning a hearing officer to conduct a disciplinary hearing on the allegedly false misbehavior report issued by defendant Blood on October 20, 2004; plaintiff claims that "Greene either instructed, knew or should have known [the hearing officer] would predetermine a wrongful finding of guilt against the Plaintiff, deny Plaintiff's Due Process rights and illegally punish Plaintiff for having filed grievances and complaints against the Defendants."

Defendants now move (Dkt. No. 94) for partial summary judgment dismissing the first and third claims in the supplemental complaint. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), Magistrate Judge Lowe issued an excellent Report and Recommendation (Dkt. No. 99) recommending that defendants' motion for partial summary judgment be granted and the first and third claims be dismissed on the merits. Plaintiff has submitted an objection (Dkt. No. 100). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court applies the de novo standard of review in considering the matters to which plaintiff objects.

With respect to the first claim, alleging improper pat frisks, the Court agrees with Magistrate Judge Lowe's conclusion that the allegations against defendants Therrien and Blood in this respect, even if true, do not state a Fourth or Eighth Amendment violation.

Defendants further seek dismissal of the third claim, which alleges that defendant Gary Greene, then Superintendent of Great Meadow Correctional Facility, conspired to deprive plaintiff of due process in connection with a Tier 3 Superintendent's Hearing regarding charges against plaintiff. Plaintiff avers that Greene "either instructed, knew or should have known [that J. Jackowski, the hearing officer] would predetermine a wrongful finding of guilt against the Plaintiff, deny Plaintiff's Due Process rights and illegally punish Plaintiff for having filed grievances and complaints against the Defendants."Defendants argue that plaintiff adduces no evidence that Greene was personally involved in the alleged due process violations occurring in connection with the hearing. Defendants point to an affidavit from Greene stating that Jackowski was appointed not by Greene but rather by First Deputy Superintendent James Plescia, with Greene's approval. Plaintiff replies that defendants did not make this allegation prior to the instant motion, thus depriving him of the opportunity for discovery on the issue.

*2 It is not, however, necessary to determine whether or not Greene appointed Jackowski, because even if he did, there is no evidence that Jackowski was biased; the fact that his determination was reversed on appeal, without more, is not evidence of bias or other due process violation. And further, even if Jackowski did somehow deprive plaintiff of his due process rights, there is no evidence that Greene knew or should have known that Jackowski would do so, or instructed him to do so. Nor is there any other basis in the record to impute to Greene any alleged due process violation occurring in connection with the hearing. Moreover, even if plaintiff could demonstrate that the manner of Jackowski's appointment somehow violated state regulations, this would not amount to a denial of a federal statutory or constitutional right.

Upon de novo review, viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in plaintiff's favor, the Court determines that defendants have established their entitlement to partial summary judgment dismissing the first and third claims in the supplemental complaint. Plaintiff has not adduced evidence establishing the existence of a disputed issue of material fact requiring a trial. This is so regardless of whether plaintiff's submissions are read with the special solicitude generally accorded to pro se litigants.

It is therefore

ORDERED that the Report and Recommendation (Dkt. No. 99) of United States Magistrate Judge George H. Lowe is accepted and adopted; and it is further

ORDERED that defendants' motion (Dkt. No. 94) for partial summary judgment dismissing the first and third claims in the supplemental complaint (Dkt. No. 47) is granted and these claims are dismissed on the merits; and it is further

ORDERED the case is trial ready; and it is further

ORDERED that the Clerk of Court shall appoint trial counsel in this matter; and it is further

ORDERED that the Jury Trial is set for March 17, 2008, at 9:00 a.m., in Syracuse, New York; and it is further

ORDERED as follows:

1. On or before March 3, 2008, all parties SHALL file and serve the following documents:
a. Court Ordered Voir Dire Questionnaire (copy enclosed for plaintiff and counsel);
b. Proposed witness list with a brief description of the anticipated testimony of each witness; and
c. Proposed exhibit list (form enclosed for plaintiff and counsel); and
2. On or before March 3, 2008, a party MAY file and serve the following documents:
a. Proposed Voir Dire questions;
b. Trial memoranda;
c. Proposed jury instructions; and
3. The Clerk shall serve a copy of this order upon plaintiff by regular mail and upon counsel by electronic mail.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

This prisoner civil rights action has been referred to me for Report and Recommendation by the Honorable Norman A. Mordue, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Defendants' second motion for partial summary judgment. (Dkt. No. 94.)[1] For the reasons discussed below, I recommend that Defendants' motion be granted.

I. BACKGROUND

A. Relevant Procedural History

*3 On October 1, 2004, George Baba Eng ("Plaintiff') commenced this prisoner civil rights action, alleging that certain employees of the New York State Department of Correctional Services ("DOCS") violated his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution when they improperly pat-frisked him, or caused him to be improperly pat-frisked, at Great Meadow Correctional Facility in 2004. (Dkt. No. 1.)

On December 17, 2004, Defendants filed a motion for summary judgment with respect to Plaintiff's claims. (Dkt. No. 15.) While that motion was pending, Plaintiff sought, and was granted, leave to file both an amended and supplemental pleading. Specifically, on January 25, 2005, Plaintiff was granted leave to file an Amended Complaint; and on February 4, 2005, he filed that Amended Complaint. (Dkt. Nos. 21, 23.) Similarly, on July 27, 2005, Plaintiff was granted leave to file a Supplemental Complaint; and on December 1, 2005, he filed that Supplemental Complaint. (Dkt. Nos. 37, 47.)

On March 7, 2006, I issued a Report-Recommendation with regard to Defendants' motion for summary judgment. (Dkt. No. 60.) Although Defendants' motion expressly addressed only the claims asserted in Plaintiff's original Complaint, the motion also effectively addressed the claims asserted in Plaintiff's Amended Complaint, since those claims were very similar to the claims asserted in his original Complaint. ( Compare Dkt. No. 1 with Dkt. No. 23.) However, Defendants' motion did not address the claims asserted in Plaintiff's Supplemental Complaint. ( Compare Dkt. No. 15 with Dkt. No. 47.) As a result, I construed Defendants' motion as one for partial summary judgment, i.e., a motion that requested dismissal only of the claims asserted in Plaintiff's Amended Complaint. (Dkt. No. 60, note 1.) For the reasons stated in my Report-Recommendation of March 7, 2006, I recommended that the Court grant Defendants' motion for partial summary judgment. (Dkt. No. 60.) On March 30, 2006, Chief Judge Mordue adopted my recommendation, dismissing the claims asserted in Plaintiff's Amended Complaint. (Dkt. No. 66.)

Remaining in the case, therefore, were Plaintiff's claims asserted in his Supplemental Complaint. (Dkt. No. 47.) Those claims are now the subject of Defendants' second motion for partial summary judgment.

B. Plaintiff's Claims in his Supplemental Complaint

Generally, in his Supplemental Complaint, Plaintiff alleges that, between September of 2004, and November of 2004, while he was incarcerated at Great Meadow Correctional Facility ("Great Meadow C.F."), three employees of Great Meadow C.F.-Correction Officer M. Therrien, Correction Officer C. Blood, and Superintendent Gary Green ("Defendants")-violated Plaintiff's rights under the First, Fourth, Eighth and Fourteenth Amendments by (1) improperly pat frisking him, or causing him to be improperly pat frisked, on approximately four occasions, and/or (2) filing false disciplinary charges against him in retaliation for complaining about the allegedly improper pat frisks, and/or (3) conspiring to wrongfully find Plaintiff guilty of the referenced disciplinary charges. ( See generally Dkt. No. 47 [Plf.'s Supp. Compl.].)

*4 Specifically, liberally construed, Plaintiff's Supplemental Complaint alleges as follows:

(1) On September 8, 2004, Defendant Blood pat frisked Plaintiff improperly by touching or handling his penis, testicles and rectal cavity opening;[2]

(2) On September 18, 2004, October 1, 2004, and October 11, 2004, Defendants Therrien and/or Blood pat frisked Plaintiff improperly by touching or handling his penis, testicles and rectal cavity opening;[3]

(3) On October 20, 2004, Defendant Blood filed a false misbehavior report against Plaintiff in retaliation for his having (a) filed grievances against Defendant Blood (on June 29, 2004, July 19, 2004, September 16, 2004, and October 7, 2004), and/or (b) written a grievance against Defendant Blood (dated October 19, 2004, but apparently not filed), and/or (c) submitted letters of complaint against Defendant Blood (on July 14, 2004, and July 15-16, 2004);[4] and

(4) At some point between October 20, 2004, and October 26, 2004, Defendant Green knowingly appointed a biased hearing officer (named J. Jackowski) to conduct the hearing on the October 20, 2004, misbehavior report filed by Defendant Blood (and, in that way, "conspired" with the hearing officer to wrongfully convict Plaintiff of the disciplinary charges brought by Defendant Blood).[5]

C. Defendants' Motion for Partial Summary Judgment

Generally, Defendants' motion for partial summary judgment raises the following three issues with respect to Plaintiff's Supplemental Complaint: (1) whether Plaintiff has adduced any evidence establishing a violation of the Fourth Amendment; (2) whether Plaintiff has adduced any evidence establishing a violation of the Eighth Amendment; and (3) whether Plaintiff has adduced any evidence establishing that Defendant Green was personally involved in the Fourteenth Amendment due process violation alleged. ( See generally Dkt. No. 94, Part 9 [Defs.' Mem. of Law].)

Defendants' motion does not request dismissal of Plaintiff's First Amendment retaliation claim against Defendant Blood. ( Id. at 3 [Defs.' Mem. of Law, explaining that the only claims attacked by Defendants' motion are the first and third of the three claims described by Defendants, not the second claim, which is Plaintiff's retaliation claim against Def. Blood].) For this reason, Defendants' motion is one for partial summary judgment and not one for summary judgment.

II. SUMMARY JUDGMENT STANDARD

The well-known legal standard that governs motions for summary judgment is recited in my Report-Recommendation regarding Defendants' first motion for partial summary judgment. (Dkt. No. 60, at 6-11.)On March 30, 2006, Chief Judge Mordue found that Report-Recommendation to be "correct in all respects, " after conducting a de novo review of it. (Dkt. No. 66, at 2.) Therefore, in the interest of brevity, I respectfully refer the reader to that Report-Recommendation for a recitation of the legal standard that governs Defendants' motion. (Dkt. No. 66, at 2.)

*5 I would add only two points. First, when I recited the legal standard in my Report-Recommendation of March 7, 2006, I referred to "the generous perspective with which the Court must view a pro se plaintiff's pleadings."(Dkt. No. 60, at 7.) Understandably, there is an exception to this general rule for exceptionally experienced pro se litigants. (Dkt. No. 85, at 4-6 [Order of Lowe, M.J., describing exception].) I did not, when reciting the summary judgment standard in my prior Report-Recommendation, explain the exception to that general rule, because I did not think the exception applied to Plaintiff. However, after issuing that Report-Recommendation, the full extent of Plaintiff's litigation experience became known to me. Specifically, on December 26, 2006 (after conducting a routine search of Plaintiff's litigation experience in order to determine the effect of any previous cases on the PLRA's "three strikes" rule, and the doctrines of collateral estoppel and res judicata), I learned that, as of that date, Plaintiff had filed at least 15 other actions or appeals in federal and state courts. (Dkt. No. 85, at 4-6.)[6] Since that time, Plaintiff's litigation experience has only grown, as has the legal authority supporting the revocation of his special solicitude. ( See Dkt. No. 89, at 3 [Order of Mordue, C.J., affirming Order of Lowe, M.J., and specifically finding that "[t]here is ample support for Magistrate Judge Lowe's conclusion" that Plaintiff's special solicitude as a pro se litigant should be revoked].)[7] Consequently, I continue to find that the special solicitude normally afforded pro se civil rights litigants should not be afforded Plaintiff, in light of his considerable litigation experience. Turning a blind eye to his extraordinary litigation experience would only work a grave injustice to Defendants, who come to this Court expecting a level playing field, not one tilted in favor of a pro se litigant who clearly does not need it.

Second, the result of this Report-Recommendation would be the same whether the merits of Plaintiff's claims were judged by the ordinary standard applied to litigants or the more lenient standard applied to pro se litigants. This is because it is well established that proceeding pro se does not otherwise relieve a party from the usual requirements to survive a motion for summary judgment.[8] Thus, pro se litigants who are properly notified of the consequences of failing to respond to a motion for summary judgment may not avoid the strictures of Rule 56 if they fail to respond properly.[9] Stated more simply, even the most generous leniency or solicitude has its limits.[10]

Here, I note that Plaintiff was unquestionably so advised. On April 13, 2007, Defendants specifically advised him of the potential consequences of failing to properly oppose their motion. (Dkt. No. 94, Part 1, at 2.) They provided a more detailed warning on April 23, 2007. (Dkt. No. 96, Part 1.) As a result, on May 29, 2007, Plaintiff filed opposition papers that are copious and detailed. (Dkt. No. 97 [containing a nine-page Rule 7.1 Response and Rule 7.1 Statement, a seven-page affidavit, 17-page memorandum of law, and 42 pages of exhibits].)

*6 Moreover, Defendants provided the same warning to Plaintiff during their prior motion for partial summary judgment, on December 17, 2004. (Dkt. No. 15, Part 1, at 2.) Indeed, in my Report-Recommendation with regard to Defendants' prior motion for partial summary judgment, I specifically based several findings of undisputed fact in whole or in part on Plaintiffs failure, in his Rule 7.1 Response, to cite record evidence in support of his attempted denials of Defendants' factual assertions. (Dkt. No. 60, at 12-16, notes 30, 33-37, 39-43, 45, 46.) Finally, at least four of Plaintiff's numerous previous prisoner civil rights actions required him to oppose motions for summary judgment.[11] In short, it is hard for me to imagine how a pro se plaintiff could be more familiar with the consequences of failing to properly oppose a motion for summary judgment than is Plaintiff.

Despite being so advised, Plaintiff largely fails, in his Rule 7.1 Response, to set forth "specific citation[s] to the record where the factual issue[s] arise[ ], " as required by Local Rule 7.1(a)(3). ( See, e.g., Dkt. No. 97, Part 1, KK 1, 4, 14, 15, 18, 19, 21, 22, 24 [Plf.'s Rule 7.1 Response, disputing certain facts asserted by Defendants, but not setting forth specific citations to the record where the alleged factual issue arises].)

III. ANALYSIS

A. Whether Plaintiff Has Adduced Evidence in Support of the Fourth Amendment Claim Alleged in His Supplemental Complaint

In his Supplemental Complaint, Plaintiff alleges that, between September of 2004, and November of 2004, Defendants Therrien and Blood violated Plaintiff's rights under the Fourth Amendment by improperly pat frisking him, or causing him to be pat frisked, in an "abusive" and "sexually assaultive" manner, on approximately four occasions-on September 8, 2004, September 18, 2004, October 1, 2004, and October 11, 2004. (Dkt. No. 47, ¶¶ 35-38 [Plf.'s Supp. Compl.].) More specifically, Plaintiff alleges that, during each of the patfrisks, either Defendants Therrien or Blood touched Plaintiff's penis, testicles and rectal cavity. ( Id. )

The Fourth Amendment legal standard that Defendants recite in their memorandum of law in support of their current motion for partial summary judgment is the exact same legal standard recited in their memorandum of law in support of their prior motion for partial summary judgment. ( Cowpare Dkt. No. 94, Part 9, at 4-6 with Dkt. No. 15, Part 14, at 4-6.) In my Report-Recommendation on Defendants' prior motion for partial summary judgment, I found this recitation of the applicable legal standard to be correct. (Dkt. No. 60, at 26-27.) Furthermore, Chief Judge Mordue approved and adopted my Report-Recommendation after finding it to be "correct in all respects." (Dkt. No. 66, at 1.) As a result, I see no reason to disturb my previous finding that Defendants have recited the correct legal standard governing Plaintiff's Fourth Amendment claim.

*7 Plaintiff somewhat misconstrues the legal standard governing his Fourth Amendment claim. Specifically, in his opposition memorandum, he cites Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), for the proposition that, in order to successfully oppose his Fourth Amendment claim, Defendants have the burden of showing that four questions, mirroring the factors set forth in Turner, have been answered in the affirmative. (Dkt. No. 97, Part 3, at 6.) I believe that this strict reliance on Turner is misplaced under the circumstances. Setting aside the issue of whether Turner places the burden on the Government or the prisoner under the circumstances, the fact remains that (1) Turner involved a claim arising under the First and Fourteenth Amendments (not the Fourth Amendment), and (2) Turner addressed a prisoner's challenge to a prison regulation. Here, Plaintiff does not challenge a prison regulation under the First or Fourteenth Amendments (or any constitutional provision). Indeed, he finds DOCS Directive 4910 to be acceptable. ( Id. at 6-13.)[12] Rather, he is asserting that Defendants have failed to comply with that regulation, in violation of the Fourth Amendment. ( Id. ) For these reasons, Plaintiff must twist, almost beyond recognition, the factors set forth in Turner, in order to apply them to his claim.[13]

To give Plaintiff a better understanding of the correct legal standard governing his claim, it is necessary to step back and explain the nature of his claim for unreasonable searches under the Fourth Amendment. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons... against unreasonable searches... shall not be violated."U.S. Const. amend IV. "What is reasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Sfcinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) [internal quotation marks and citation omitted]."Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619 [internal quotation marks and citations omitted].[14]

The central flaw in Plaintiff's Fourth Amendment claim is that he hinges it on an (alleged) violation of DOCS Directive 4910. As an initial matter, I find that there has been no such violation for the reasons stated in my prior Report-Recommendation, which was adopted by Chief Judge Mordue after a de novo review. ( See Dkt. No. 60, at 26-30, adopted, Dkt. No. 66, at 1.) More specifically, DOCS Directive No. 4910 expressly authorizes corrections officers to conduct random searches of "an inmate's person" for contraband by, among other methods, "pat frisks."[15] While Plaintiff is correct that Directive No. 4910 provides that "[t]he employee conducting a personal search must... not offend the dignity of the inmate being searched, " the Directive also provides that "[t]he employee conducting a personal search must assure its thoroughness."[16] Accordingly, Directive No. 4910 defines a "pat frisk" as "a search by hand of an inmate's person and his or her clothes while the inmate is clothed, " which "shall include searching into the inmate's clothing."[17] Furthermore, Directive No. 4910 emphasizes the importance of the rationale for searching "an inmate's person, " which is the fact that (1) "[t]he presence of contraband within a facility and its subsequent possession and/or use by inmates threatens the security of the facility, endangers the safety of inmates, employees, visitors, and the community, and impairs rehabilitation programs, " and (2) "[t]he experience of correctional authorities in the operation of facilities has demonstrated that... searches of... the inmate's person are essential to the discovery and elimination of contraband."[18] For all these reasons, I find that Defendant Green's interpretation of the term "pat frisk" as involving "the touching of the inside of the inmate's legs, his groin area and his buttocks" complies with Directive No. 4910.[19]

*8 Furthermore, even if there had been such a violation of DOCS Directive 4910, it would not, in and of itself, constitute a violation of the Fourth Amendment.[20] This is because, as discussed above, a balancing test is used to decide whether there has been a violation of the Fourth Amendment. Here, that balancing test weighs decidedly against finding a violation of the Fourth Amendment.

Specifically, with respect to the first interest to be balanced (i.e., the intrusion of the individual's Fourth Amendment interest of privacy), I find that the expectation of privacy that Plaintiff reasonably possessed, under the circumstances, was of a limited nature. In particular, I note that Plaintiff was a convicted felon incarcerated in a maximum-security correctional facility. As the Supreme Court has observed, generally, "given the realities of institutional confinement, any reasonable expectation of privacy that a detainee retain[s] necessarily [is] of a diminished scope." Bell, 441 U.S. at 556-57.[21] I note also that the particular privacy interest claimed by Plaintiff in this case did not consist of being free from a "strip search."[22] Rather, the particular privacy interest claimed by Plaintiff consists of not having his penis, testicles and "anal cavity" touched (almost always through clothing), [23] under circumstances in which he acknowledges it was perfectly permissible for correctional officers, while conducting the authorized pat frisks, to touch his "groin area and buttocks" (through clothing).[24] I emphasize that the zone of privacy in question focuses on the region between a male's "groin area" and his "penis and testicles, " and the region between a person's "buttocks" and his "anal cavity.[25] Finally, the number of pat frisks at issue (for purpose of a reasonable-expectation-of-privacy analysis) is between four and eleven.[26]

Moreover, with respect to the second interest to be balanced (i.e., the Government's interest promoted by the practice in question), I find that the Government has shown that the practice at issue (i.e., of conducting random pat frisks that may involve some manipulation of an inmate's genitalia) is reasonably related to the legitimate penological interests of "institutional security, order, and discipline."[27] ( See, supra, note 18 of this Report-Recommendation; see also Dkt. No. 94, Part 3, ¶ 6.)[28] As the Supreme Court has noted, "[a] detention facility is a unique place fraught with serious security dangers." Bell, 441 U.S. at 559. Furthermore, I repeat that I reject Plaintiff's argument that a proper "pat frisk" may not involve some amount of manipulation of an inmate's genitalia. In addition to the authorities cited above in notes 15 through 19 of this Report-Recommendation, I rely on a 2005 decision by U.S. District Court for the Western District of New York, which found that,

[a]ny manual search of an individual's body will require some amount of manipulation of the genitals in order to accomplish the purpose of the search. Although grabbing' and tugging' could cause some discomfort and embarrassment, it does not rise to the level of unnecessary and wanton infliction of pain' so long as it occurs as part of an otherwise justified search.
*9 Davis v. Castleberry, 364 F.Supp.2d 319, 321 (W.D.N.Y.2005) (granting defendants' motion for summary judgment in case alleging improper pat frisk) [internal quotations omitted].

Finally, I find that, under the circumstances, the Fourth Amendment balancing test weighs decidedly in favor of Defendants.[29] Indeed, I conclude that, based on the current record before the Court, no rational fact-finder could find for Plaintiff on his Fourth Amendment claim.

As a result, I recommend that the Court dismiss the Fourth Amendment claim asserted in Plaintiff's Supplemental Complaint.

B. Whether Plaintiff Has Adduced Evidence in Support of the Eighth Amendment Claim Alleged in His Supplemental Complaint

The Eighth Amendment legal standard that Defendants recite in their memorandum of law in support of their current motion for partial summary judgment is the exact same legal standard recited in their memorandum of law in support of their prior motion for partial summary judgment. ( Compare Dkt. No. 94, Part 9, at 7-8 with Dkt. No. 15, Part 14, at 7-9.) In my Report-Recommendation on Defendants' prior motion for partial summary judgment, I found this recitation of the applicable legal standard to be correct. (Dkt. No. 60, at 31.)Furthermore, Chief Judge Mordue approved and adopted my Report-Recommendation after finding it to be "correct in all respects." (Dkt. No. 66, at 1.) As a result, I see no reason to disturb my previous finding that Defendants have recited the correct legal standard governing Plaintiff's Eighth Amendment claim.

In his opposition memorandum of law, Plaintiff essentially advances two arguments: (1) when deciding whether or not Plaintiff has adduced evidence in support of the Eighth Amendment claim asserted in his Supplemental Complaint, the Court should consider not merely the four improper pat frisks alleged in that Supplement Complaint but also the seven (or six)[30] improper pat frisks alleged in Plaintiff's Amended Complaint; and (2) at trial, he would be prepared to adduce testimony by his treating psychologist that the improper pat frisks he experienced caused him severe psychological harm. (Dkt. No. 97, Part 3, at 9-13 [Plf.'s Mem. of Law].)

With regard to Plaintiff's latter argument (regarding testimony by his treating psychologist), Plaintiff makes two mistakes. First, the test in deciding whether or not to grant a motion for summary judgment is not whether or not the non-movant would, at trial, be able to adduce evidence sufficient to defeat the motion, but whether or not the nonmovant has, in opposing the motion, adduced such evidence. SeeFed.R.Civ.P. 56(c), (e), (f). Here, I find no evidence of the nature Plaintiff describes (e.g., an affidavit of Plaintiff's treating psychologist, or Plaintiff's relevant medical records) in the record. ( See Dkt. No. 97, Parts 2, 4; Dkt. No. 94, Parts 3-8, 10.) Thus, his argument fails.

Second, in any event, such evidence would be of minimal materiality to Plaintiff's Eighth Amendment claim. That is because such a claim turns on (1) whether the alleged punishment was objectively sufficiently serious, and (2) whether the prison officials involved acted with a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1984). Plaintiff does not even allege that Defendants Therrien, Blood, or Green knew that Plaintiff was (allegedly) receiving psychological treatment as a result of the pat frisks in question. Rather, the thrust of Plaintiff's argument is that the fact that he was receiving such psychological treatment shows that the pat frisks were subjectively sufficiently serious. The problem is that, as described above, the issue is not whether the pat frisks were subjectively sufficiently serious but whether they were objectively sufficiently serious.

*10 With regard to Plaintiff's former argument (that the Court should consider all the improper pat frisks alleged by Plaintiff in his pleadings), even if I were to do so, I would still conclude that Plaintiff's Eighth Amendment claim should be dismissed for lack of sufficient evidence to create a genuine issue of material fact. I note that the excessive punishment at issue in this case consisted of having a pat frisk, on four to eleven occasions, escalate from a manual search of Plaintiff's "groin area" and "buttocks" (which Plaintiff acknowledges was authorized under DOCS Directive 4910) to a manual search of Plaintiff's "penis and testicles" and his "anal cavity." ( See, supra, notes 23 and 24 of this Report-Recommendation.) Far from being gratuitous or wanton, such an escalation [31] bears a rational relationship to the legitimate penological interests of institutional security, order, and discipline. ( See, supra, notes 18 and 27 of this Report-Recommendation.) Simply stated, I find that no fact-finder could, based on the current record, find any such escalation to be of an Eighth Amendment magnitude.[32]

Because I find that the alleged punishment was not "objectively sufficiently serious" for Eighth Amendment purposes, I need not reach the issue of whether the prison officials involved acted with a "sufficiently culpable state of mind." However, I note that, were I to reach that issue, I would conclude that none of the three Defendants acted with a sufficiently culpable state of mind but with good faith. I would reach this conclusion based on (1) the lack of any evidence that any of the pat frisks involved an intentional and/or sexual handling of Plaintiff's genitals and/or rectal area, and (2) the evidence of good faith submitted by Defendants. ( See, e.g., Dkt. No. 94, Part 3 at ¶¶ 20-21, 27-28 [Affidavit of Defendant Green, denying any improper intent on his part]; Dkt. No. 94, Part 4, at 2-3 [attaching Investigation Sheet dated 9/16/04, and Inter-Departmental Communication dated 9/14/04]; Dkt. No. 94, Part 5, at 4-7 [attaching Inter-Departmental Communications dated 10/6/04, 10/5/04, 10/7/04, and 10/5/04, respectively]; Dkt. No. 94, Part 6, at 4, 7 [attaching Inter-Departmental Communications dated 10/9/04 and 10/6/04]; Dkt. No. 94, Part 7, at 3 [attaching Inter-Departmental Communication dated 10/22/04].)

For both of these alternative reasons, I recommend that the Court dismiss the Eighth Amendment claim asserted in Plaintiff's Supplemental Complaint.

C. Whether Plaintiff Has Adduced Evidence Establishing the Personal Involvement of Defendant Green in the Fourteenth Amendment Due Process Violations Alleged in His Supplemental Complaint

As explained above in Part I.B. of this Report-Recommendation, Plaintiff's Supplemental Complaint alleges, in pertinent part, that, at some point between October 20, 2004, and October 26, 2004, Defendant Green knowingly appointed a biased hearing officer (named J. Jackowski) to conduct the hearing on the October 20, 2004, misbehavior report filed by Defendant Blood (and, in that way, "conspired" with the hearing officer to wrongfully convict Plaintiff of the disciplinary charges brought by Defendant Blood).[33]

*11 Defendants argue that this claim (which asserts a due process violation) should be dismissed because Plaintiff has adduced no evidence in support of it. (Dkt. No. 94, Part 9, at 8-10.) Indeed, they argue, the record evidence establishes that the hearing officer who conducted the hearing in question was (1) appointed in a routine manner by the facility's disciplinary office and (2) approved not by Defendant Green but by First Deputy Superintendent James Plescia. ( Id. ; see also Dkt. No. 94, Part 3, ¶ 29 [Green Decl.]; Dkt. No. 94, Part 8 [Ex. E to Green Decl.].)

In response, Plaintiff asserts two arguments: (1) by acknowledging that Defendant Green did not personally "designate" the employee who conducted the proceed, Defendants have acknowledged that Defendant Green violated 7 N.Y.C.R.R. § 254.1 by not personally appointing the hearing officer, and thus he violated Plaintiff's due process rights;[34] and (2) in any event, because Defendants never adduced this evidence before now, discovery should be reopened and Plaintiff should be permitted to amend his Supplemental Complaint. (Dkt. No. 97, Part 3, at 14-17.)

With respect to Plaintiff's first argument (regarding the alleged violation of 7 N.Y.C.R.R. § 254. 1), I will assume, for the sake of argument, that Plaintiff need not have raised this objection at his disciplinary hearing in order to properly preserve it for review before this Court.[35] I will also assume that the part of Section 254.1 that reads, "[T]he superintendent may, in his or her discretion, designate some other employee to conduct the proceeding" does not mean that the superintendent may rely on the first deputy superintendent to approve hearing officers appointed in a routine manner by the facility's disciplinary office.

Even setting these issues aside, I would reject Plaintiff's argument because it disregards an important point of law. Specifically, a violation of a state regulation does not automatically mean there was a violation of the Due Process Clause of the Fourteenth Amendment. See Russell v. Selsky, 35 F.3d 55, 59-61 (2d Cir.1994) (even though Section 254.1 was violated by having same person act as review and hearing officer, due process rights of inmate were not violated because "[f]ederal constitutional standards rather than state statutes define the requirements of procedural due process, " and prisoner failed to adduce proof of actual bias) [citations omitted].[36] Rather, a due process violation requires something more.[37] Here, Plaintiff does not even adduce evidence that he would have been appointed a different hearing officer had Defendant Green not (allegedly) violated Section 254.1

Moreover, the nature of the Fourteenth Amendment claim that Plaintiff asserts against Defendant Green in the Supplemental Complaint is not that Defendant Green violated Section 254.1 by not being involved enough in the designation of the hearing officer in question (e.g., by permitting his first deputy to approve the disciplinary hearing officer who had been appointed by the disciplinary office) but that Defendant Green was, in effect, too involved in the designation of the hearing officer (i.e., by appointing someone whom he knew would render "a false finding of guilt against Plaintiff [and] deny Plaintiff's due process rights, " see Dkt. No. 47, ¶ 40). With regard to this claim, assuming that Hearing Officer J. Jackowski was indeed biased at Plaintiff's disciplinary hearing (a fact of which I find little if any evidence in the record), [38] Plaintiff has failed to adduce any evidence that Defendant Green knew that Hearing Officer Jackowski would be so biased. ( See generally Dkt. No. 97.)A prison superintendent cannot be held liable under 42 U.S.C. § 1983 simply because of the (allegedly) unlawful conduct of a subordinate.[39]

*12 With respect to Plaintiff's second argument (regarding Defendants' alleged failure before now to adduce any evidence or information of Defendant Green's lack of involvement in the appointment of Hearing Officer Jackowski), Plaintiff has adduced no evidence that he ever requested such evidence or information during discovery. Thus, I fail to see why Defendants were under any obligation to give such evidence or information. Furthermore, as to Plaintiff's implication that he lacked notice of this factual assertion by Defendants, I note that, in their Answer to Plaintiff's Supplemental Complaint, Defendants denied all of the first sentence of Paragraph 40 of Plaintiffs Supplemental Complaint, wherein Plaintiff asserted,

Defendant Green conspired to further violate the Civil Rights of Plaintiff by assigning a Hearing Officer to conduct a Superintendent's hearing against Plaintiff on the false misbehavior report filed against Plaintiff by Defendant Blood, such [H]earing Officer who [sic] Defendant Green either instructed, knew or should have known would [sic] predetermine a wrongful finding of guilt against the Plaintiff, deny Plaintiff's Due Process rights and illegally punish Plaintiff for having filed grievances and c[o]mplaints against the Defendants.

( Compare Dkt. No. 47, ¶ 40 [Plf.'s Supp. Compl.] with Dkt. No. 57, Part 1, ¶ 40 [Answer to Supp. Compl.].)

For all these reasons, I accept Defendants' argument and reject Plaintiff's argument. As a result, I recommend that the Court dismiss the Fourteenth Amendment claim against Defendant Green asserted in Plaintiff's Supplemental Complaint.

ACCORDINGLY, it is

RECOMMENDED that Defendants' second motion for partial summary judgment (Dkt. No. 94) be GRANTED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten 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 TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secy of Health and Human Svcs., 892 F.2d 15 [2d Cir.1989]); 28 U.S.C. § 636(b); Fed.R.Civ.P. 6(a), 6(e), 72.

Michael P. Bowen, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for plaintiffs.

Dennis Vacco, Attorney General of the State of New York, New York City by June Duffy, for defendants.

OPINION

COTE, District Judge:

*1 Lawrence G. Hayes ("Hayes") James Jackson ("Jackson") bring this action pursuant to 42 U.S.C. § 1983 alleging that the defendants retaliated against them in various ways for Hayes' participation in Meriwether v. Coughlin (" Meriwether ").[1] In the Court's June 6, 1996 Opinion ("Opinion"), the Court granted the defendants summary judgment as to all claims by Jackson and as to the second, third and fourth claims of Hayes in Hayes v. Coughlin, 87 Civ. 7401 (" Hayes I "). The Opinion denied summary judgment as to Hayes' first claim, against Edgardo Artuz ("Artuz"), in Hayes I. The defendants' motion for summary judgment was granted as to all claims in Hayes v. Scully, 89 Civ. 5498 (" Hayes II "). Artuz now moves for reconsideration of the Opinion and asks the Court to grant summary judgment on the remaining claim. For the reasons set forth below, the motion is denied.

BACKGROUND

The Court presumes familiarity with the Opinion and repeats here only those facts necessary to address the issues in the current motion. In the remaining claim Hayes alleges that Artuz violated his substantive and procedural due process rights at a disciplinary hearing on a charge that Hayes failed to comply with a direct order on August 2, 1987. Hayes alleges that compliance with that order was impossible. A disciplinary hearing was held on August 6, 12, and 14, 1987. Artuz was the hearing officer and found Hayes guilty, sentencing him to thirty days in keeplock. This sentence triggered the reinstatement of a July 1, 1987 suspended sentence. Hayes contends that, acting without evidence to support the finding, Artuz found him guilty in retaliation for Hayes' participation in Meriwether.

In Artuz's hearing report, he summarized the evidence on which he relied and explained his decision. The report indicates that two corrections officers confirmed that an order to back up was given and was directed at Hayes, Jackson and a third inmate. In addition, a third officer, Hodley, testified at Artuz's request. According to the hearing report, Hodley not only confirmed that the order was directed at the three inmates, but also testified that Hayes had room to comply with the order but made no effort to do so.

Hayes, however, states in his affidavit with the motion for summary judgment, that:

Officer Hodley testified that the order to move back was directed at me personally. However, his testimony did not contradict any of the other aspects of my witnesses' testimony.

According to Hayes, his witnesses testified that there was no room for him to back up. Hayes alleges that at the conclusion of this hearing, Artuz refused to take Hayes' letter requesting a transcript of the hearing tape and said "I've got your ass now; take me to court." It is this statement which Hayes argues is direct evidence of Artuz's desire to retaliate against Hayes. Artuz does not directly address the statement Hayes alleges he made, but he does state in his affidavit in support of the motion for summary judgment that he explained to Hayes the proper procedure for obtaining a transcript.[2] Artuz also states that he has never taken any action against an inmate in retaliation for seeking redress for grievances against the penal system, and did not do so in this case.

STANDARD FOR MOTION FOR RECONSIDERATION

*2 Local Rule 3(j) requires a party moving for reconsideration to demonstrate that the Court committed manifest errors of law or fact that might materially have influenced the earlier decision. See Farkas v. Ellis, 783 F.Supp. 830, 833, n. 1 (S.D.N.Y.1992), aff'd, 979 F.2d 845 (2d Cir.1992). In Farkas, the Court held:

Id. at 832-33. See Kennedo v. United States, 1995 WL 428660, at *1 (E.D.N.Y.1995) (citing cases). The decision whether to grant or deny the motion rests with the trial court. Cf. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983).

DISCUSSION

As preliminary matter, the Court finds that Artuz has not demonstrated any manifest factual or legal error which merits reconsideration. Nonetheless, the Court addresses the merits of Artuz's arguments. Artuz makes two arguments in support of his motion: 1) that the Court misapplied the law and overlooked facts in assessing Hayes' claim of retaliation; and 2) that the Court overlooked law mandating a finding that Artuz is entitled to qualified immunity.

Retaliation

Where an inmate alleges retaliation for exercise of his First Amendment rights, he or she must prove that the retaliatory motive was a substantial or motivating part of the action at issue. See Graham v. Henderson, 1996 WL 384588 at *3 (2d Cir. July 11, 1996); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994). The burden then shifts to the defendant to show that the defendant would have taken the action even in the absence of the alleged improper motive. Id. See Mt. Health City School District of Ed. v. Doyle, 429 U.S. 274, 287 (1977). State action that is taken for both valid and invalid reasons will not be deemed unconstitutional if the action would have been taken in any event for the constitutionally valid reason. Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir.1984). See also raham, 1996 WL 384588 at *3; Hayes v. Coughlin, 1996 WL 312382 at *2-3 (S.D.N.Y. June 10, 1996).

In the Opinion, the Court stated:

If this claim alleged only a violation of Hayes' procedural due process rights, Sandin would control and summary judgment would be appropriate. Hayes, however, alleges that Artuz acted with retaliatory animus, as evidenced by Artuz's alleged comment at the close of the hearing. Further, there are material issues of fact regarding Artuz's alleged statement and Hodley's testimony that cannot be resolved on a motion for summary judgment. Artuz points to the testimony of Hodley as the basis for his finding that Hayes had enough room to permit him to comply with the order to move back, and therefore, was guilty of failure to obey an order. Hayes, however, alleges that Artuz falsely described Hodley's testimony in the hearing report.

Hayes, 1996 WL 312382 at *5 (notes omitted).

*3 Relying on Eighth Circuit caselaw, Artuz argues that the existence of "some evidence" to support the hearing decision defeats a claim of retaliation. Artuz, however, is confusing the law of procedural and substantive due process. Graham, 1996 WL 384588 at *5; Hayes, 1996 WL 312382 at *2-3. In any event, there is no undisputed evidence to support Artuz's finding that Hayes had room to step back. In arguing that "some evidence" exists to support the hearing decision, Artuz points to the following: the fact that Jackson and the third inmate involved in the incident were found guilty at their hearings; the misbehavior report; and the testimony of Hayes admitting that he did not comply with the order. First, Artuz did not say in his decision that he relied on the evidence from the other inmates' hearings and it would not have been proper for him to do so.[3] Second, if a misbehavior report can serve as "some evidence" for a hearing decision and thereby insulate a hearing from review, there would be little point in having a hearing. Finally, Hayes does not dispute that he did not comply, but rather that compliance was impossible, a fact which, if true, would mandate a finding of not guilty. The Court considered all of this evidence in rendering its Opinion and finds it no more persuasive now. There remains a material issue of fact as to whether there was "some evidence" on which Artuz could have relied in finding that Hayes had the ability to comply with the guard's order, and therefore, was guilty of failing to comply.

Qualified Immunity

Artuz makes two arguments in urging the Court to reconsider its denial of qualified immunity: 1) the right to be free from retaliation was not established with the requisite specificity at the time of the hearing, and 2) the Court did not properly analyze the issue of qualified immunity pursuant to Blue v. Koren, 72 F.3d 1075 (2d Cir.1995).

First, the right to be free from retaliation was clearly established in 1987. See, e.g., Flaherty v. Coughlin, 713 F.2d 10, 13 (1983). Artuz relies on the fact that the Second Circuit in 1986 stated that the filing of unfounded charges is not a per se violation of an inmate's Fourteenth Amendment due process rights and could be rectified by a properly conducted hearing, Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), and only in 1988 stated that the filing of unfounded charges in retaliation for an inmate's exercise of his First Amendment rights was a constitutional violation that could not be cured by holding a proper hearing. Franco v. Kelly, 854 F.2d 584 (2d Cir.1988). Neither Freeman nor Franco, however, made any changes to the clearly established right of an inmate to be free from retaliation for his exercise of his First Amendment rights. Indeed, the right of a prisoner to be free from retaliatory treatment was so clearly established in 1983 that the Flaherty Court simply addressed the level of specificity required to defeat a summary judgment motion in a retaliation case without any elaboration on the right to be free from retaliation. After all, "[t]he right to petition government for redress of grievances-in both judicial and administrative forums-is among the most precious of the liberties safeguarded by the Bill of Rights." Graham, 1996 WL 384588 at *5 (internal quotation omitted).

*4 Artuz also argues that Hayes has failed to meet the standard for stating a claim of retaliation set forth in Blue, 72 F.3d 1075, and pursuant to that case is entitled to qualified immunity. Blue requires that a plaintiff offer "direct or circumstantial facts" supporting the claim of an improper motive and precludes him from relying on conclusory assertions to defeat a motion for summary judgment. Id. at 1084. Here, Hayes has specifically pled his allegations of retaliation. Among other things, Hayes alleges that Artuz said at the conclusion of the hearing "I've got your ass now; take me to court." Hayes argues that this is a reference to Hayes' participation in Meriwether. Artuz in this motion states that this is not enough "at this stage of the litigation, " and points to the fact that Hayes' own statement is the only evidence. That statement, however, stands unrebutted. There is no hearing transcript. In addition, in his affidavit in support of the motion for summary judgment, Artuz does not deny making the statement. As the Court in Blue observed, "particularized evidence of improper motive may include expressions by the officials involved regarding their state of mind." Id. Whether there was a retaliatory motive and whether that motive was a substantial or motivating factor in Artuz's decision is a question of fact for trial.

CONCLUSION

The motion for reconsideration is denied.

SO ORDERED.

Attorneys and Law Firms

Andre Johnson, Pine City, NY, pro se.

Hon. Andrew Cuomo, Attorney General for the State of New York, Jeffrey P. Mans, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants Doling and Murphy.

DECISION & ORDER

THOMAS J. McAVOY, Senior United States District Judge.

*1 This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Randolph F. Treece, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to the Report-Recommendation and Order dated September 17, 2007 have been filed. Furthermore, after examining the record, this Court has determined that the Report-Recommendation and Order is not subject to attack for plain error or manifest injustice. Accordingly, the Court adopts the Report-Recommendation and Order for the reasons stated therein.

It is therefore,

ORDERED that Defendants' motion for summary judgment (Docket No. 34) is GRANTED and the complaint is DISMISSED as to all defendants.

IT IS SO ORDERED.

REPORT-RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

Pro se Plaintiff Andre Johnson brings this civil action, pursuant to 42 U.S.C. § 1983, alleging Defendants Doling and Murphy denied him due process rights in a Disciplinary Hearing in violation of the Fourteenth Amendment.Dkt. No. 1, Compl., Facts at ¶¶ 1-35 & Cause of Action at ¶¶ 36-47. Specifically, Plaintiff alleges Defendants violated his due process rights by denying him the right to present a defense, call witnesses, be present, receive a written disposition and statement of the evidence relied upon, and receive a fair and impartial hearing. Compl. at ¶ 39. Defendants now bring a Motion for Summary Judgment. Dkt. No. 34.Plaintiff opposes the Motion. Dkt. No. 35.For the following reasons, it is recommended that the Motion for Summary Judgment be granted.

I. FACTS

During all relevant times pertaining to this action, Plaintiff was incarcerated at Great Meadow Correctional Facility. Dkt.

No. 34, Defs' 7.1 Statement at ¶ 2.[1] Plaintiff was served with an Inmate Misbehavior Report, dated March 17, 2002, in which he was charged with possession of a weapon, assault, fighting, and threat of violence. Id. at ¶ 3. Prior to the Disciplinary Hearing, Plaintiff was provided an assistant of his choice with whom he met, received all requested documents, and requested one inmate witness, Angulo. Id. at ¶ 4.

Defendant Officer Doling commenced the Hearing on March 21, 2002, advising Plaintiff of the procedure and his rights. Id. at ¶ 7. Doling then read the Inmate Misbehavior Report into the record and asked Plaintiff to enter a plea, to which Plaintiff entered a plea of not guilty. Id. at ¶¶ 7-8.During the Hearing, Plaintiff objected to the evidence tag number identified in the Misbehavior Report (# 8621), which was not the same evidence tag number on the physical weapon (# 8629). Id. at ¶ 9. Doling dismissed the objection, indicating that because the weapon marked # 8629 had the same physical description as the weapon in the Misbehavior Report, he believed the mixup in numbers was the result of a typographical error. Dkt. No. 34, Jeffrey P. Mans, Asst. Att'y Gen., Affirm., dated Jan. 10, 2007, Ex. A-10, Hr'g Tr. at p. 2.

*2 Correction Officer Young authored the Misbehavior Report which formed the basis for the charges against Plaintiff. Mans Affirm., No. 34, Ex. A-3, Inmate Misbehavior Report, dated Mar. 17, 2002. In the Report, Young stated he saw Plaintiff swing at and stab another inmate, Angulo, with a weapon about eight inches long and sharpened to a point with a piece of bed sheet wrapped around it as a handle. Id. Young also stated he recovered the weapon after Plaintiff threw it away as he was falling to the floor. Id. The Misbehavior Report does not mention any other inmate besides Plaintiff and the victim, Angulo. Plaintiff objected that the Misbehavior Report should include other inmates involved in the incident pursuant to Departmental Regulation, codified at N.Y. COMP.CODES R. & REGS. (N.Y.CRR) tit. 7, § 251-3.1(c)(4), which states that "when more than one inmate was involved in an incident, the report should, to the extent practicable under the given circumstances, indicate the specific role played by each inmate."Hr'g Tr. at pp. 3-6.Because Young had not mentioned other inmates in the Report, Doling dismissed Plaintiff's objections to the Report as irrelevant. Id. at pp. 3-4.

An Unusual Incident Report (UIR), dated March 17, 2002, indicates that four inmates were involved in the altercation Young observed. Mans Affirm., Ex. A-6 at pp. 1-3, Unusual Incident Rep., dated Mar. 17, 2002 (stating "[Officer [Y]oung observed three inmates fighting with inmate Angulo"). Plaintiff attempted to introduce the UIR into evidence in order to call into question the accuracy of the Misbehavior Report, however, Doling denied said introduction for lack of relevancy because the Misbehavior Report alone constituted the formal charge against Plaintiffs under 7 NYCRR § 254.3, and because the UIR was not written by Young. Hr'g Tr. at pp. 3-5 & 10.

At Plaintiff's request, Officer Young and Inmate Ingram testified at the Hearing. Defs.' 7.1 Statement at ¶ 11. Young testified he observed Plaintiff and two other inmates attacking Inmate Angulo, that Plaintiff attempted to stab Angulo with the shank he subsequently threw away as he slipped and fell to the floor, and that after he recovered the weapon he "screwed up" the tag number, creating the aforementioned tag number discrepancy. Hr'g Tr. at pp. 6-10.

Plaintiff then called as witnesses Inmate Angulo and the other inmates named in the UIR, Temple and Ingram. Hr'g Tr. at p. 5. Angulo refused to testify in the case, stating in his refusal form that he didn't know Plaintiff. Mans Affirm., Ex. A-9 at p. 4, Requested Inmate Refusal to Testify Form, dated Mar. 21, 2002. Defendant Doling was satisfied that Angulo's refusal was fair, reasonable and not occasioned by any wrongdoing. Hr'g Tr. at p. 13.Doling called Officer Stemp in order to request Inmate Temple to testify, but Officer Stemp indicated Temple did not want to testify. Id. at p. 18.Officer Stemp did not know why Temple refused, nor did he know if Temple had been threatened or promised anything if he didn't testify. Id. Based upon that conversation, Doling found that Temple had voluntarily refused to testify. Id. at p. 19.

*3 Plaintiff also called as a witness Sergeant (Sgt.) Brown, who investigated the incident, and Lieutenant (Lt.) Armstrong, who received an interdepartmental communication from Officer Young indicating that Young recovered a different weapon from the scene of the altercation, a four-and-a-half inch long piece of sharpened metal wrapped with plastic food covering. Hr'g Tr. at pp. 13-17; Mans Affirm., Ex. A-6 at p. 4, Ex. 5, Interdepartmental Commc'n, dated Mar. 17, 2002. Doling refused to call these officers for lack of relevancy. Hr'g Tr. at pp. 13-17.In Sgt. Brown's case, Doling deemed his testimony irrelevant because he did not witness the incident nor write the Misbehavior Report. Id. Lt. Armstrong's testimony was deemed irrelevant because Doling saw no inconsistencies between the Interdepartmental Communication and the Misbehavior Report. Id.

Doling excluded Plaintiff from the Hearing after Plaintiff allegedly exhibited threatening behavior and, in Doling's opinion, attempted to prolong the Hearing by calling irrelevant witnesses. Hr'g Tr. at pp. 19-20.Officer Doling stated:

Upon asking Mr. Johnson to step out so I could arrange for further witnesses, Mr. Johnson became threatening and I had him removed from the hearing room because of his clear refusal to um, move this hearing along and his threatening manner. Mr. Johnson has been excluded from this hearing. I have decided to complete this hearing without him. It is clear that Mr. Johnson is making requests for witnesses who are not relevant or material to the issue has become very angry with hearing officer for refusing to uh, subject himself, the hearing officer refusal to subject himself to the of the inmate and have become argumentative, threatening and otherwise uh, dangerous to the safety and security of the facility. The inmate has requested a number [of] witnesses most of whom have been dealt with by either hearing the testimony of or obtaining the refusal of the witnesses.

Hr'g Tr. at pp. 19-20.

Plaintiff denies exhibiting any threatening or obstructive behavior, and further asserts that Doling stopped the audio recorder while rudely dismissing him.[2] Pl.'s 7.1 Statement at ¶ 7. Doling continued the Hearing without Plaintiff and questioned Inmate Ingram, the final witness Plaintiff had requested prior to his removal. Hr'g Tr. at pp. 20-22.Doling found Plaintiff guilty of the charges and imposed a penalty of 730 days disciplinary confinement in the Special Housing Unit (SHU). Id. at p. 22.Doling made a statement of the evidence relied upon, and requested that Officer Catalfamo give copies of the Hearing Disposition along with an appeal form to Plaintiff within twenty-four hours. Id. at pp. 22-23.Plaintiff denies ever receiving these documents. Pl.'s 7.1 Statement at ¶ 7; Compl. at p. 2. However, Plaintiff did receive a copy of the audio tape of the Hearing and successfully requested an extension of time to appeal the disposition. Mans. Affirm., Ex. A-11, Letter from Andre Johnson to Glenn S. Goord, dated Apr. 18, 2002 (stating "I received the hearing tape in SHU"); Mans. Aff., Ex A-13, Letter from Deputy Comm'r Lucien J. Leclaire, Jr. to Andre Johnson, dated Apr. 29, 2002 (granting Johnson's request for an extension to supplement his appeal).

*4 Plaintiff appealed Doling's Tier III determination. Defs.' 7.1 Statement at ¶ 21. Defendant Robert Murphy, Acting Director of Special Housing and Inmate Discipline, modified the Tier III disciplinary determination by reducing the penalty imposed from 730 days to 540 days in SHU. Id. at ¶ 22.Subsequently, by determination dated June 23, 2002, Donald Selsky, Director of Special Housing and Inmate Discipline, administratively reversed the Tier III disciplinary determination, although Plaintiff had already served the entirety of the modified sanction. Defs.' 7.1 Statement at ¶ 26; Pl.'s 7.1 Statement at ¶ 12.

II. DISCUSSION

A. Summary Judgment Standard

Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and... the moving party 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) (citing 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 [Federal Rule of Civil Procedure 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).

To defeat a motion for summary judgment, the non-movant must "set forth specific facts showing that there is a genuine issue for trial, " and cannot rest on "mere allegations or denials" of the facts submitted by the movant.FED. R. CIV. P. 56(e); 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 Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. 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).

B. Due Process Claims Against Defendant Doling

*5 In order to state a procedural due process claim pursuant to the Fourteenth Amendment, 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)). Such interests are derived from the Fourteenth Amendment Due Process Clause itself or from state statute or regulations. Id.

The Supreme Court has narrowly circumscribed the scope of liberty interests emanating from the Due Process Clause to protect "no more than the most basic liberty interests in prisoners.'" Id. (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)). Furthermore, "changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause [a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.'" Vitek v. Jones, 445 U.S. 480, 493 (1980) (quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976)).

However, when a prisoner is subjected to conditions that are "unexpected, " Sandin v. Conner, 515 U.S. 472, 484 (1995), and "qualitatively different from the punishment characteristically suffered by a person convicted of crime, " the Due Process Clause itself confers a liberty interest. Vitek v. Jones, 445 U.S. at 493 (holding an involuntary transfer to a state mental hospital implicated a liberty interest protected by the Due Process Clause); see also, Washington v. Harper, 494 U.S. 210 (1990) (finding the Due Process Clause provides a liberty interest in being protected from the involuntary administration of psychotropic drugs).

In the case at bar, Plaintiff's disciplinary confinement in SHU does not constitute an "unexpected" change in condition, nor did those conditions exceed the sentence imposed upon him. See Dawes v. Dibiase, 1997 WL 376043, at *4 (N.D.N.Y. July 3, 1997) (citing Washington v. Harper & Vitek v. Jones for the proposition that the Due Process Clause will apply by its own force only for deprivations much more severe than solitary confinement for a year). Therefore, Plaintiff does not have a liberty interest in remaining free from SHU confinement emanating from the Due Process Clause itself.

State statutes and regulations may also confer liberty interests to prisoners. Arce v. Walker, 139 F.3d at 334 (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. at 460). The Supreme Court held in Sandin v. Conner that state created liberty interests shall be limited to those deprivations which subject a prisoner to "atypical and significant hardship... in relation to the ordinary incidents of prison life."Sandin v. Conner, 515 U.S. at 484. Thus, a prisoner asserting a denial of due process as a result of segregated confinement or loss of privileges must (1) make a threshold showing that an atypical and significant hardship was imposed upon him, and (2) establish that the "state has granted 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).

*6 While 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), it has made clear that confinement in SHU for a period of one year constitutes atypical and significant restraint on inmates, deserving due process protections, Sims v. Artuz, 230 F.3d 14, 23 (2d Cir.2000) (stating that confinement in SHU exceeding 305 days was atypical); Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000) (finding 305 days of SHU confinement atypical).

Thus, while Plaintiff cannot claim a liberty interest emanating from the Due Process Clause itself, he has by virtue of being confined in SHU for over a year passed the Sandin threshold for constitutional protection of a state-created liberty interest. Because New York State has created by statute or regulation a liberty interest in remaining free from segregated confinement, Plaintiff has stated a valid due process claim based on a constitutionally protected, state-created liberty interest. Sher v. Coughlin, 739 F.2d 77, 81 (2d. Cir.1984); Alvarez v. Coughlin, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (holding Sandin does not affect the validity of prior decisions holding New York State Regulations create a protected liberty interest in remaining free from disciplinary segregation).

Having made a threshold showing of atypical and significant confinement, we must consider whether Plaintiff, prior to his confinement, was afforded the minimum requirements of due process. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). A prisoner placed in administrative segregation must be provided (1) advanced written notice of the charges against him at least twenty-four hours prior to the hearing; (2) the opportunity to appear at the hearing, call witnesses, and present rebuttal evidence; and (3) a written statement as to the evidence relied upon and the reasons for the disciplinary action taken. Id. at 564-66 ;see also Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir.1986); Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.2001) (quoting Hewitt v. Helms, 459 U.S. 460, 476 (1983).

1. Notice

"Notice" should be something more than a mere formality. Benitez v. Wolff 985 F.2d 662, 665 (2d Cir.1993)."The effect of the notice should be to compel the charging officer to be [sufficiently] specific as to the misconduct with which the inmate is charged' to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report."Taylor v. Rodriguez, 238 F.3d at 192-93 (quoting McKinnon v. Patterson, 568 F.2d 930, 940 n.11 (2d Cir.1977)) (alteration in original).

In this case, Plaintiff was served with an Inmate Misbehavior Report, dated March 17, 2002, in which he was charged by Officer Young with possession of a weapon, assault, fighting, and threat of violence. Mans Affirm., Ex. A-3, Inmate Misbehavior Rep. Johnson acknowledged receipt of the Misbehavior Report by signing the Hearing Record Sheet and does not contest receipt of such Report. Mas Affirm. Ex. A-9 at p. 2, Hr'g Record Sheet.

*7 We find that Plaintiff was provided sufficient notice to fulfill the requirements of due process.

2. Hearing

A prisoner must be afforded the opportunity to appear at the Disciplinary Hearing, to call witnesses, and to present rebuttal evidence. Wolff v. McDonnell, 418 U.S. at 556. "Although the hearing requirement for placement in administrative segregation may be met by an informal, nonadversary' proceeding, Hewitt [v. Helms , ] 459 U.S. at 476, it is a bedrock requirement of due process that such hearing be held at a meaningful time and in a meaningful manner, ' Matthews v. Eldridge, 424 U.S. 319, 333 (1976)." Taylor v. Rodriguez, 238 F.3d at 193.

Plaintiff was provided an assistant of his choice, received all requested documents, and requested Inmates Angulo and Temple to testify as his only inmate witnesses. At the Hearing presided by Defendant Officer Doling on March 21, 2002, Plaintiff was advised of the procedure and of his rights and was read the charges against him as reflected in the Misbehavior Report. Hr'g Tr. at pp. 1-2.Plaintiff claims Doling violated his due process rights at various times during the course of the Hearing. Compl. at U 39.

a. Witnesses

First, Plaintiff asserts he was denied the opportunity to call witnesses as part of his defense. Id. An inmate's right to call witnesses is not the same as a defendant in a criminal trial, but rather, is qualified by the circumstances of prison life. Wolff v. McDonnell, 418 U.S. at 566-67. The Supreme Court has stated that disciplinary hearing officers must have the discretion to deny witnesses, noting that valid bases for the denial of witnesses would include irrelevance, lack of necessity, and other hazards particular to each case. Id. (noting that the right to call witnesses must be balanced against legitimate penological interests).

Plaintiff attempted to call as witnesses Inmates Angulo (the victim) and Temple (mentioned in the Unusual Incident Report). Angulo refused to testify, stating in his signed refusal form he didn't know Plaintiff. Mans Affirm., Ex A-9 at p. 4, Requested Inmate Witness Refusal to Testify Form, dated Mar. 21, 2002. Inmate Temple, without offering any reasons, also refused to testify as recounted by Officer Stemp. Hr'g Tr. at p. 18.

A failure to summon the testimony of a witness who has refused to testify, in the absence of evidence that the refusal was linked to intimidation on the part of prison officials, does not violate due process because calling a witness who refuses to speak upon questioning would be futile. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993); see also Rossi v. Goord, 2006 WL 2811505, at *14 (N.D.N.Y. Sept. 28, 2006). The hearing officer does not have to conduct an independent investigation before accepting an inmates-witness's refusal to testify. Dumpson v. Rourke, 1997 WL 610652, at *1 (N.D.N.Y. Sept. 28, 2006) (citing Greene v. Coughlin, 1995 WL 60020, at *14 (S.D.N.Y. Feb. 10, 1995). In this case, the record provides no evidence nor intimation that either refusal was made because of intimidation. The fact Temple did not sign a refusal form did not even amount to a violation of any New York State Regulation, let alone a constitutional due process violation. See, 7 N.Y. COMP.CODES R. & REGS.tit. 7, § 253.5. Therefore, Officer Doling's refusal to compel these witnesses' appearance does not constitute a due process violation.

*8 Plaintiff also attempted to call as witnesses Sgt. Brown, who investigated the incident, and Lt. Armstrong, who received an interdepartmental communication about the incident from Officer Young. Defendant Officer Doling denied calling them for lack of relevancy. Hr'g Tr. at pp. 13-17.Doling ruled that neither Lt. Armstrong nor Sgt. Brown personally witnessed the incident, and thus could not offer any relevant information. Irrelevancy is a valid grounds for the denial of a witness. Wolff v. McDonnell, 418 U.S. at 566-67. Although Plaintiff correctly points out that the Misbehavior Report did not include information pertaining to other inmates who were allegedly involved in the incident, possibly in contravention of the protocol laid out in Departmental Regulation § 251-3.1, such an omission does not change the charges against him nor the evidence relevant to that charge. Violation of state law alone is generally insufficient to establish a constitutional violation. See Soto v. Walker, 33 F.3d 169, 173 (2d Cir.1993). Additionally, the UIR, which identified other inmate participants, is congruent with Young's Misbehavior Report in that both state that Young observed Johnson stabbing and slashing Angulo with an eight inch sharpened metal shank with a cloth handle. In determining that their testimony was irrelevant, Doling's refusal to call Brown and Armstrong did not violate due process.

Plaintiff was allowed to call and question Officer Young as a witness. Hr'g Tr. at pp. 6-10.Young affirmed the charges described in his Misbehavior Report. Id. Doling also called Inmate Ingram and examined him after Plaintiff was removed from the Hearing.[3] Id. at pp. 20-22.For the reasons stated above, it is therefore recommended that summary judgment be granted as to this claim.

b. Ejection from Hearing

Second, Plaintiff asserts Doling deprived him of due process when he evicted him from the Hearing and continued it in his absence. Compl. at ¶ 39. Defendants argue due process does not entail the right to be physically present at a disciplinary hearing. Dkt. No. 34-24, Defs' Mem. of Law, at p. 17 (citing Bogle v. Murphy, 2003 WL 22384792 (W.D.N.Y. Sept. 9, 2003) for the proposition that violations of New York State Regulations do not necessarily constitute constitutional due process violations, and Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir.1989) for the Second Circuit's determination that "[p]rison inmates do not possess a constitutional right to be present during the testimony of witnesses during a disciplinary proceeding"). We recently recognized in Holloway v. Selsky the existence of conflicting Second Circuit opinions regarding whether prisoners have a right to be present at disciplinary hearings under the Due Process Clause. 2007 WL 433375, at *7 (N.D.N.Y. Feb. 6, 2007). In that case, we noted that in Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir.1989), the Second Circuit declared nonexistent the right of an inmate to be present at a disciplinary hearing, while in two subsequent cases, the Second Circuit affirmed a limited right to be present during disciplinary hearings: in Young v. Hofman, 970 F.2d 1154 (2d Cir.1992), the Second Circuit stated that "[t]he Due Process Clause provides inmates with several protective procedures that they may expect at disciplinary hearings, including the opportunity to appear at the hearing and to call witnesses" (emphasis added) and in Chavis v. Zodlow, 2005 WL 834646, at *3-4 (2d Cir.2005), it stated that prisoners have a "limited right to be present" during disciplinary hearings. In Holloway, we declined to address this constitutional issue because the Plaintiff failed to make the threshold showing of a constitutionally protected liberty interest under the atypical and significant standard. Holloway v. Selsky, 2007 WL 433375, at *7. In the case at bar, no such roadblock prevents our consideration of this constitutional issue.

*9 The Second Circuit has held that the limited right to call witnesses, present evidence, and comment on the charges brought are facially valid constitutional claims. Sims v. Artuz, 230 F.3d 14, 24 (2d Cir.2000) (citing Wolff v. McDonnell, 418 U.S. at 555-72). We find implicit in the Supreme Court's decision in Wolff the limited right to be physically present at disciplinary hearings in order to exercise the aforementioned basic due process rights. Chavis v. Zodlow, 2005 WL 834646 at *3-4 (stating that the Supreme Court in Wolff v. McDonnell "acknowledg[ed] an inmate's limited right to be present during his disciplinary hearing"). While this right must necessarily be limited by penological interests, the per se denial of such right would undermine the requirement that disciplinary hearings be held "at a meaningful time and in a meaningful manner." Matthews v. Eldridge, 424 U.S. 319, 333 (1976); see also Wolff v. McDonnell, 418 U.S. at 566 (stating "we must balance the inmate's interest... against the needs of the prison, and some amount of flexibility and accommodation is required").

However, because we recognize that neither the Supreme Court nor the Second Circuit has clearly articulated the right of prisoners to be present at disciplinary hearings, Defendants are entitled to qualified immunity. African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir.2002). Qualified immunity will shield "government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. at 359 (2d Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000). Violation of a duty under state law does not defeat qualified immunity because there must be a clearly established federal right on which the claim for relief is based. Elder v. Holloway, 510 U.S. 510, 515-16 (1994) (citing Davis v. Scherer, 468 U.S. 183, 197 (1984)). In order for the constitutional right to be clearly established, three elements must be met: "1)... [that] the right in question [be] defined with reasonable specificity; 2) [that] the decisional law of the Supreme Court and applicable circuit court support the existence of the right in question; and 3) [that] under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Mollica v. Volker, 229 F.3d at 371 (internal quotation marks and citations omitted) (alterations in original).

Because neither the Supreme Court nor the Second Circuit has clearly established the right of prisoners to be present at a disciplinary hearing, qualified immunity applies and it is recommended that summary judgment on this claim be granted.

c. Right to Present a Defense

Plaintiff asserts Doling denied him the opportunity to present a defense. Compl. at ¶ 39. Specifically, Plaintiff objects to Doling's determination that the discrepancy of the numbered label on the evidence bag was due to a typographical error, to his refusal to call certain witnesses, and to the Misbehavior Report, which failed to include a description of the participation of three other inmates who were named in the UIR. Pl.'s Mem. of Law at pp. 15-20.These objections are without merit. As discussed above, Doling acted within his authority when he declined to call witnesses for lack of relevancy. See supra Part II.B.2.a at pp. 12-14.Further, the charges brought against Plaintiff in the Misbehavior Report are not contradicted by the UIR, and are in fact affirmed by it. Compare Inmate Misbehavior Report (stating Plaintiff was "swinging and stabbing inmate Angulo") with Unusual Incident Report (stating Plaintiff was "using a metal shank stabbing and slashing at Angulo"). Finally, Doling's determination that a typographical error was the cause of the mislabeled evidence bag, affirmed by Officer Young's testimony, was not unreasonable. Hr'g Tr. at pp. 6-9.And, as previously discussed with respect to Plaintiff's dismissal from the hearing, qualified immunity applies, and it is therefore recommended that summary judgment on this claim be granted.

d. Fair and Impartial Hearing

*10 Plaintiff claims he received an unfair and partial hearing before Hearing Officer Doling. Compl. at ¶ 39. An inmate subject to a disciplinary hearing is entitled to an impartial hearing officer who does not prejudge the evidence. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996). But, it has been held that "prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Id. at 259 (citing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1994) and Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989).

The Hearing Transcript reveals a contentious proceeding characterized by frequent interruptions and heated exchanges between Plaintiff and Doling. See generally Hr'g Tr. Notwithstanding, until his dismissal from the proceeding, Plaintiff was provided the opportunity to testify, call and question witnesses, and raise objections on which Doling ruled and explained his reasoning to Plaintiff. Id. Disagreement with rulings made by a hearing officer does not constitute bias. Cf. Dumpson v. Rourke, 1997 WL 610652, at *6 (N.D.N.Y. Sept. 26, 1997) (stating "[t]he fact that the hearing officer did not decide in the plaintiff's favor does not make him biased in the constitutional sense"). We find no genuine issues of material fact concerning Doling's impartiality and therefore it is recommended that summary judgment be granted on this claim.

3. Written Statement of the Evidence Relied Upon

Plaintiff claims he did not receive a written disposition of the Disciplinary Hearing or statement of the evidence relied upon. Compl. at ¶ 39. Prisoners are entitled to a "written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken." Wolf v. McDonnell, 418 U.S. at 563. Provision of a written disposition is a mechanism that ensures the inmate protection against "collateral consequences based on a misunderstanding of the nature of the original proceeding.... Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others." Id. at 565.

After declaring Plaintiff guilty of the charges brought, Doling imposed a penalty of 730 days in SHU with attendant loss of privileges, annunciated a statement of the evidence which was relied upon, and directed Officer Catalfamo to deliver the Hearing Disposition together with an appeal form to Plaintiff within 24 hours. Hr'g Tr. at p. 22.Defendants provide an Interdepartmental Communication from Officer Catalfamo, dated March 29, 2002, wherein he asserts he delivered a copy of the disposition form to Plaintiff and also informed Plaintiff of his right to appeal the disposition within thirty days. Mans Affirm., Ex. A-9 at p. 6, Interdepartmental Commc'n, dated Mar. 29, 2002. Plaintiff asserts those documents were never delivered to him as Doling directed. Pl.'s Mem. of Law at pp. 20-21.However, Plaintiff did receive a copy of the disposition within a month after the Hearing, and was able to file an appeal on which he eventually prevailed. Mans Affirm., Ex. A, Dep. of Andre Johnson, dated Sept. 12, 2006, at pp. 47-51 (stating he received them sometime in April 2002); see also Mans Affirm. Exs. a-11 & A-12 (letters from Plaintiff requesting extensions of time to file an appeal and noting he received an audio tape of the Hearing along with a cassette player). Any potential constitutional violation was therefore cured because the delay in no way prejudiced Plaintiff, as evidenced by the fact that he filed an appeal and was ultimately successful, and therefore it is recommended that summary judgement be granted on this claim.

C. Due Process Claims Against Defendant Murphy

*11 Plaintiff claims Murphy violated his due process rights by failing to remedy the alleged constitutional violations he suffered. Compl. at ¶¶ 40-41. Plaintiff does not allege that Defendant Murphy was personally involved in any wrongdoing, and thus his theory of liability rests solely on Murphy's supervisory status. Because we find that Defendant Doling did not violate any clearly established constitutional rights, Defendant Murphy cannot be held liable on any grounds. See supra Part B, Due Process Claims Against Defendant Doling. It is therefore recommended that summary judgment be granted as to the claims against Murphy.

III. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED, that Defendants' Motion for Summary

Judgment (Dkt. No. 34) be GRANTED and the Complaint (Dkt. No. 1) be DISMISSED against all Defendants, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) 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 TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW .Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).

Todd Johnson, pro se.

Michael G McCartin, Ass't Attorney General, for Defendants.

REPORT RECOMMENDATION

ANDREW T. BAXTER, United States Magistrate Judge.

*1 This matter was referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge. On November 4, 2010, this case was reassigned to me from Magistrate Judge David R. Homer. (Dkt. No. 48).

In this civil rights complaint (Dkt. No. 1), Plaintiff alleges that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments. Plaintiff seeks $1 million in damages, as well as injunctive relief. Presently before this court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56(b). (Dkt. No. 39). Plaintiff responded in opposition to the motion. (Dkt. No. 43). For the following reasons, the court recommends granting Defendants' motion, and dismissing the complaint in its entirety.

DISCUSSION

I. Facts

A. Excessive Force Claims Against Christopher Fernandez and Jason Yung

Plaintiff alleges[1] that he was assaulted by Defendant Christopher Fernandez, a correctional officer, on February 9, 2008, while incarcerated at Coxsackie Correctional Facility ("Coxsackie"). (Dkt. No. 1, Compl. at 8[2]; Dkt. No. 39-3, Pl.'s Dep. at 13). At approximately 3:00 P.M., Defendant Fernandez approached Plaintiff's cell and started screaming about people who were "loud at the gate" earlier in the week. (Compl. at 8; Pl.'s Dep. at 12). Defendant Fernandez told another correctional officer, known only as Officer Ryan, to open Plaintiffs cell. (Compl. at 8; Pl.'s Dep. at 12-13). After Officer Ryan opened the cell, Defendant Fernandez told Plaintiff to "step out" and "place [his] hands on the wall."(Compl. at 8; Pl.'s Dep. at 13) Defendant Fernandez allegedly began punching Plaintiff in the ribs once he exited his cell. (Compl. at 8; Pl.'s Dep. at 16). Although Defendant Fernandez supposedly told Plaintiff to "fight back, " Plaintiff refused to do so. (Compl. at 8; Pl.'s Dep. at 16). Defendant Fernandez then began "trashing" Plaintiff's cell, as if he were searching for contraband. (Compl. at 8; Pl.'s Dep. at 13). Finding none, Defendant Fernandez ordered Plaintiff to get on his knees. (Compl. at 8; Pl.'s Dep. at 13). Defendant Fernandez then kicked Plaintiff's lower back, causing Plaintiffs neck to snap. Id. (Compl. at 8; Pl.'s Dep. at 13).

After Defendant Fernandez locked Plaintiff in his cell, Defendant Fernandez walked over to Inmate Green's cell and ordered Officer Ryan to open that cell. (Compl. at 8; Pl.'s Dep. at 25). Although Plaintiff did not see what transpired immediately after Defendant Fernandez entered Inmate Green's cell, Plaintiff claims that he later witnessed Defendant Fernandez slapping Inmate Green. (Compl. at 8; Pl.'s Dep. at 26). Defendant Fernandez then proceeded to Inmate Palmer's cell and ordered Officer Ryan to open that cell. (Compl. at 8; Pl.'s Dep. at 30). Plaintiff does not claim that he witnessed any assault on Inmate Palmer, but claims that he heard repeated sounds of a stick hitting a body and cries for help. (Compl. at 8; Pl.'s Dep. at 35). Plaintiff also claims to have witnessed Inmate Palmer being dragged to the day room in bloody clothing. (Compl. at 8; Pl.'s Dep. at 35).

*2 On February 15, 2008, Plaintiff states that a correctional officer told Plaintiff that he was being called as a witness in Inmate Palmer's disciplinary hearing that arose from the February 9 incident. (Compl. at 8; Pl.'s Dep. at 59). The officer asked Plaintiff: "Do you want to get involved with that?"(Compl. at 8). After Plaintiff responded affirmatively, the officer allegedly told Plaintiff that getting involved was not a "good idea." Id. After that officer left, another officer approached Plaintiff and asked him the same question. Id. Once again, Plaintiff replied affirmatively. Id. The officer then told Plaintiff that he would be called after lunch. Id.

Plaintiff states that he wanted to bring a written statement and other documents into Inmate Palmer's hearing. (Compl. at 8; Pl.'s Dep. at 64-65). On his way to the hearing room, after retrieving those items and placing them in an envelope, Plaintiff claims that he was stopped by Defendant Sergeant Jason Yung and an unidentified correctional officer. (Compl. at 8; Pl.'s Dep. at 65). Defendant Yung then allegedly threatened Plaintiff with being "locked up" if he testified at the hearing. (Compl. at 8; Pl.'s Dep. at 64).

As Plaintiff sat in the waiting pen, Correctional Officer (C.O.) Nieves told Plaintiff that his envelope would need to be searched before he could bring it into the hearing room. (Dkt. No. 39-11, Disciplinary Hr'g at 11; Dkt. No. 39-12, Hr'g Papers at 4). Plaintiff then shouted that he would not permit the officers to search his envelope, claiming that C.O. Nieves was interfering with his ability to testify for Inmate Palmer. (Pl.'s Dep. at 65; Disciplinary Hr'g at 11-12; Hr'g Papers at 4). C.O. Nieves then issued Plaintiff a disciplinary ticket. (Hr'g Papers at 4).

Based upon this misbehavior, Defendant Yung and another officer escorted Plaintiff back to his cell to pack for confinement in the special housing unit ("SHU"). (Compl. at 8; Disciplinary Hr'g at 17). During the escort to SHU, Defendant Yung allegedly called for more officers. (Compl. at 8). Plaintiff claims that Defendant Yung and the other officers began punching and kicking Plaintiff in the face and ribs. (Compl. at 8; Pl.'s Dep. at 70-73).

Once Plaintiff arrived at SHU, Plaintiff told his mental health counselor, Mr. Tatum, that he was crying because he had been assaulted. (Compl. at 8; Pl's Dep. at 78). Mr. Tatum transferred Plaintiff to the Office of Mental Health ("OMH") infirmary. (Compl. at 8; Pl.'s Dep. at 78). Plaintiff claims that was not seen by a doctor until February 27, 2008. (Compl. at 15). He believes that the delay in treatment occurred because he told Investigator Begmann of the Inspector General's Office about the February 9 and 15 assaults. Id.

B. Mail Interference Claim Against M. Bathrick

As an initial matter, the court notes that Plaintiff fails to allege which Defendant (or any other individual) deprived him of his First Amendment right to the free flow of mail. Although Defendant Bathrick is named as a defendant in the caption of the Complaint and is later identified as a clerk in the Inmate Account Unit (Compl. at 3), the Complaint fails to contain any allegations indicating how Defendant Bathrick violated the law or injured Plaintiff. Under these circumstances, the claim would ordinarily have been subject to dismissal.[3] Defendants, however, have interpreted the allegation of mail interference to refer to Defendant Bathrick. (Dkt. No. 39-14, Defs.' Mem. of Law at 15). Moreover, Plaintiff states, in his opposition to summary judgment, that Defendant Bathrick is the defendant responsible for this alleged violation of Plaintiff's First Amendment rights. (Dkt. No. 43 at 24, Pl.'s 7.1 Statement ¶ 14). Accordingly, the Court will construe the Complaint as asserting a First Amendment mail interference claim against Defendant Bathrick. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (holding that 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").

*3 Plaintiff alleges that his First Amendment rights were violated at Coxsackie because he was denied his right to "communicate with the outside world." (Compl. at 13). Following the alleged assaults discussed above, Plaintiff claims that he was depressed and wanted to communicate with this family. Id. Plaintiff states, however, that he was prevented from writing to his family because he was not permitted to buy stamps when he arrived at the SHU on February 15, 2008. (Pl.'s Dep. at 102). He states that he was unable to obtain stamps until March 2008. Id. at 106.

C. Due Process Claims Against Defendant Kim Gerwer

Defendant Kim Gerwer, a Coxsackie Education Supervisor, presided over Plaintiff's Tier III hearing. (Compl. at 15; Disciplinary Hr'g at 1). Plaintiff alleges that his due process rights were violated at this hearing in a number of ways. (Compl. at 15). First, he claims he was not provided with notice of the charges against him twenty-four hours before the hearing. Id. Second, he claims that Defendant Gerwer refused, without a legitimate reason, to call a witness that would have supported Plaintiff. Id. Third, Defendant Gerwer failed to collect documents that Plaintiff had requested. Id. Fourth, Defendant Gerwer relied upon Officer Germaine's testimony, even though the officer did not endorse the disciplinary ticket as someone with "personal knowledge" of the incident. (Pl.'s Dep. at 85-87). Finally, Plaintiff was not provided with an impartial hearing because Defendant Gerwer had stated that the officer who wrote the ticket was a "good person." Id. at 82.[4]

II. Legal Standard for Summary Judgment

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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).

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

*4 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, 82 S.Ct. 993, 8 L.Ed.2d 176 (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 at 790 (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)).

III. Eighth Amendment Excessive Force Claims

Defendants Fernandez and Yung argue that Plaintiff has failed to properly exhaust the excessive force claims. (Defs.' Mem. of Law at 5). The Prison Litigation Reform Act's ("PLRA") exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes regardless of the subject matter of the claim. See, e.g., Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.2004). In Woordford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368, 765 L.Ed. 368 (2006), the Supreme Court held that the PLRA required "proper" exhaustion as a prerequisite to filing a section 1983 action in federal court. Id. at 92-93. "Proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. See id. at 89-94. Aninmate must appeal any denial of his grievance to the highest available administrative level. Martinez v. Williams, 349 F.Supp.2d 677, 682 (S.D.N.Y.2004).

However, the Second Circuit has held that certain exceptions to exhaustion apply. The proper inquiry is to determine "whether: (1) administrative remedies were in fact available to the prisoner; (2) the defendants may have forfeited the affirmative defense of non-exhaustion by failing to preserve it... or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense; and (3) special circumstances may have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements." Chavis v. Goord, 333 Fed.App'x 641, 643 (2d Cir.2009) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004) (internal quotation marks omitted).

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

*5 There is also an expedited process for the review of complaints of inmate harassment or other misconduct by corrections officers or prison employees. 7 NYCRR § 701.8. Under this procedure, the inmate may (but is not required to) report the misconduct to the employee's supervisor. Id. § 701.8. The inmate then files a grievance under the normal procedures outlined above; but all grievances alleging employee misconduct are given a grievance number, and sent immediately to the Superintendent for review. Id. § 701.8(b). Under the regulations, the Superintendent or his designee shall determine immediately whether the allegations, if true, would state a "bona fide" case of harassment. If so, the Superintendent shall initiate an investigation of the complaint, either "in-house, " by the Inspector General's Office, or by the New York State Police Bureau of Criminal Investigations. Id. §§ 701.8(c); 701.8(d)(1)-(d)(3). An appeal of the adverse decision of the Superintendent may be taken to the Central Office Review Committee as in the regular grievance procedure. Id. § 701.8(h).

Here, Defendants argue that Plaintiff did not properly exhaust his administrative remedies because he failed to grieve the excessive force claims through the state's three-tiered process in a timely and appropriate manner. (Defs.' Mem. of Law at 5). Plaintiff claims that a grievance officer told him that the grievance office did not handle staff assaults, and that he should, instead, complain to the Inspector General. (Compl. at 1; Pl's Dep. at 52-53; Pl.'s 7.1 Statement ¶ 1). Plaintiff then wrote to the Inspector General's Office. (Pl.'s Dep. at 36-37).

An inmate's attempt to exhaust by simply writing a letter directly to the Inspector General will not suffice to exhaust administrative remedies. See Grey v. Spearhawk, No. 99 CIV. 9871, 2000 U.S. Dist. LEXIS, at *5, 2000 WL 815916 (S.D.N.Y. June 23, 2000) (holding that a complaint filed directly with the Inspector General did not excuse plaintiff from "adhering to the available administrative procedures"). It has been held that "a grievance through informal channels will satisfy the exhaustion requirement if the prisoner thereby obtained a favorable resolution of his grievance." Thomas v. Cassleberry, 315 F.Supp.2d 301, 304 (W.D.N.Y.2004) (citations omitted) (emphasis added). The exhaustion requirement will be satisfied in that situation because the inmate would not have any reason to appeal a favorable resolution. Andrews v. Cruz, No. 04 Civ. 566, 2010 U.S. Dist. LEXIS 28124, at *16, 2010 WL 1141182, at *6 (S.D.N.Y. Mar. 24, 2010) (citations omitted). Thus, Plaintiff did not exhaust administrative remedies by writing to the Inspector General's Office, even though the Inspector General investigated plaintiff's allegations and found them to be unsubstantiated.

Defendants may "forfeit the affirmative defense of non-exhaustion... [if] defendants' own actions inhibit[ed] the inmate's exhaustion of remedies...." Chavis v. Goord, 333 Fed.App'x at 641 (citations omitted); see, e.g., Jacoby v. Phelix, No. 9:07-CV-872 (DNH/ATB), 2010 U.S. Dist. LEXIS 44222, at *26-28, 2010 WL 1839299, at *8-9 (N.D.N.Y. Mar.31, 2010) (Baxter, Mag. J.) (summary judgment denied where issues of fact remained on whether plaintiff was threatened by defendants into withdrawing his grievance), report-recommendation adopted, 2010 U.S. Dist. LEXIS 44201, 2010 WL 1839264 (N.D.N.Y. May 6, 2010) (Hurd, J.). Although plaintiff claims that an unidentified grievance officer told him that the grievance office did not handle staff assaults, nothing in the record indicates that Defendants Fernandez and Yung or any other DOCS employee actually inhibited Plaintiff's ability to exhaust administrative remedies. First, the IGP Supervisor at Coxsackie denied telling plaintiff that allegations of assault are not grievable. (Dkt. No. 39-7, Bellamy's 7/30/2008 Letter at 1). Further, plaintiff has acknowledged that he wrote one grievance regarding the assaults on February 25, 2008, and then wrote another grievance after March 8, 2008, when the grievance office supposedly told him that "they do not deal with assaults on inmates by staff."[5] (Dkt. No. 39-8, Pl. 6/20/2008 Letter at 4). Whatever the Grievance Supervisor said, plaintiff's own statements indicate that he was not deterred from pursuing grievance regarding the alleged assaults.

*6 Plaintiff states that the he did mention the February 9 and February 15 incidents in a grievance that he filed on June 25, 2008. (Pl.'s Dep. at 55-56). The regulations provide, however, that an inmate must file a grievance within twenty-one days of the alleged occurrence. 7 NYCRR § 701.5(a) (1). An exception to this time limit may be granted based on "mitigating circumstances" if the extension is requested within forty-five days of the alleged occurrence. 7 NYCRR § 701.6(g)(1)(i)(a). Thus, to the extent that the June 25 grievance complained about the February 9 and 15 assaults, it would have been time-barred.[6]

Plaintiff appealed the denial of his June 25, 2008 grievance. In the CORC's decision, dated July 30, 2008, the Committee stated that "CORC notes that there is no record of the grievant filing prior grievances addressing the allegations of assaults by staff on 2/9/08 and 2/15/08. However, it is noted that both allegations were investigated by the Office of the Inspector General and determined to be unsubstantiated."(Dkt. No. 39-6 at 1). Thus, it is clear from the CORC's response to plaintiff that there was no record of a prior grievance, complaining about these alleged assaults.

Even though the forty-five day window to file a grievance regarding the alleged assaults had already expired, IGP Director Karen Bellamy advised Plaintiff on June 30, 2008, that he could contact the IGP supervisor with his mitigating circumstances. (Dkt. No. 39-7, Bellamy's 7/30/2008 Letter at 1). There is nothing in the record, however, to indicate that Plaintiff did so. No rational fact finder could determine that Plaintiff exhausted his administrative remedies, or was deterred from doing so by the actions of the Defendants or any DOCS employee.[7] Accordingly, it is recommended that summary judgment be granted as to the Eighth Amendment claims.

IV. First Amendment Mail Interference Claim

Plaintiff alleges that his First Amendment rights were violated because he was not permitted to buy stamps when he arrived at the SHU on February 15, 2008, and was unable to buy stamps until "some time in March" 2008. (Pl.'s Dep. at 102, 106). Because he was unable to buy stamps, Plaintiff claims that he was unable to communicate with this family about the February 15 assault. (Compl. at 13). At his deposition, however, he admitted that he was able to send out at least one letter between February 15 and March 2008, in which he notified his family about the February 9 assault. (Pl.'s Dep. at 106).

Under the First Amendment, prisoners have a right to "the free flow of incoming and outgoing mail." Johnson v. Goord, 445 F.3d 532, 534 (2d Cir.2006) (citations omitted). A plaintiff may bring a claim under the First Amendment for interference with non-legal mail, based upon his free speech right to send or receive mail. See Cancel v. Goord , No. 00 CIV 2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001)."[A] prison official's interference with an inmate's mail may violate his First Amendment right to free speech, which includes the right to be free from unjustified governmental interference with communication.'" Id. (quotation omitted).

*7 Although "[t]he boundary between an inmate's First Amendment right to free speech and the ability of prison officials to open or otherwise interfere with an inmate's mail is not precise[, ]... when analyzing such claims courts have consistently made distinctions between outgoing mail and incoming mail... based on the various rights and interests at stake." Id."[T]he Supreme Court has recognized that the implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials.'" Id. (quotation omitted). Thus, "the penological interests for interference with outgoing mail must be more than just the general security interest which justifies most interference with incoming mail." Id. (citation omitted). However, when reviewing an interference with mail claim, "district courts have generally required specific allegations of invidious intent or of actual harm where the incidents of tampering are few and thus the implication of an actionable violation is not obvious on its face." Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir.2003); see also John v. N.Y.C. Dep't of Corr., 183 F.Supp.2d 619, 629 (S.D.N.Y.2002) (requiring plaintiff to allege facts that show defendants acted with invidious intent and plaintiff was harmed by the interference); Cancel v. Goord, 2001 WL 303713 at *6 (dismissing claim where only two incidents of tampering alleged and no other indications of a continuing practice).

In this case, Plaintiff admits that he was able to send out at least one letter between February 15, 2008, and March 2008. (Pl.'s Dep. at 106). Moreover, any inability to send mail to his family was limited to, at most, a one month period because Plaintiff was able to buy stamps in March 2008.[8] Thus, any alleged occurrences of mail interference were few, any delay was minimal, and there is no indication that it was an ongoing practice. Plaintiff has also failed to show any harm, physical or otherwise, caused by his failure to communicate with his family, and he has failed to show that Defendant Bathrick (or anyone else) acted with invidious intent. Accordingly, the Court recommends granting Defendants' motion for summary judgment as to Plaintiff's First Amendment claims.

V. Due Process Violations

Defendant Kim Gerwer is an Education Supervisor at Coxsackie. (Dkt. No. 39-10, Gerwer Decl. ¶ 1; Dkt. No. 39-13, Defs.' 7.1 Statement ¶ 2). She served as the hearing officer for Plaintiff's Tier III disciplinary hearing, which arose from the misbehavior report that was issued on February 15. (Gerwer Decl. ¶ 2; Defs.' 7.1 Statement ¶ 2). Plaintiff asserts that Defendant Gerwer's conduct at the disciplinary violated due process. (Compl. at 15-17).

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); 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).

*8 In Wolff v. McDonnell, 418 U.S. 539, 563-64, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (some evidence standard); McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir.1983) (fair and impartial hearing officer).

A. Liberty Interest

An inmate's protected liberty interest is implicated where the punishment at issue imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Second Circuit, however, has refused to set a bright line rule on when confinement becomes atypical. Instead, "in order to determine whether a liberty interest has been affected, district courts are required to examine the circumstances of a confinement and to identify with specificity the facts upon which [their] conclusions [are] based." Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998) (citations omitted).

Here, Plaintiff was sentenced to 180 days of SHU confinement. (Disciplinary Hr'g at 49). He also lost commissary, phone, and package privileges for 180 days. Id. The Second Circuit has found that SHU confinement for 180 days may impose an "atypical and significant hardship." See Kalwasinski v. Morse, 201 F.3d 103, 106-08 (2d Cir.1999) (per curiam). Defendants do not address this issue, and the court will assume that plaintiff had a protected liberty interest without further analysis because the court finds that plaintiff received due process in any event.

B. Notice

Generally a prisoner must be provided with advanced written notice of the charges against him at least twenty-four hours prior to the hearing. Wolff v. McDonnell, 418 U.S. at 564-66; see also Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.2001); Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir.1986).

In this case, Plaintiff argues that his due process rights were violated because he did not receive notice of the charges against him at least twenty-four hours before the hearing. (Compl. at 15; Pl.'s Dep. at 84-85). Plaintiff admitted at his disciplinary hearing that he was served with formal notice of the charges on February 20, 2008, at 9:20, but it is unclear from the hearing transcript and other documents in the record whether Plaintiff was served at 9:20 A.M. or 9:20 P.M. (Disciplinary Hr'g at 1). The disciplinary hearing commenced on February 21, 2008, at 11:30 A.M. Id. If Plaintiff were served at 9:20 P.M., then he would not have received exactly twenty-four hour notice. Even assuming that plaintiff's allegation about the time that the misbehavior report was served is true, his due process rights were not violated by what was ultimately a technicality that had absolutely no impact upon plaintiff's right to proper notice of the disciplinary charges.

*9 The purpose of the twenty-four hour rule is to provide inmates with sufficient time to prepare to defend charges filed against them. See Wolff v. McDonnell, 418 U.S. at 564; Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir.1993). A review of the hearing transcript shows that Plaintiff received sufficient notice to prepare for the hearing. Although the hearing began at 11:30 A.M. on February 20, 2008, Defendant Gerwer adjourned the hearing at 11:35 A.M., five minutes after the hearing started. (Disciplinary Hr'g at 3). Plaintiff did not have to defend himself against anything on February 20th. The hearing did not commence again until one week later, on February 27, 2008, at 1:29 P.M. Id. This six-day adjournment, which guaranteed that Plaintiff would have sufficient time to prepare for his defense, cured any deficiencies that may have occurred. The February 27th hearing was also adjourned at 2:05 P.M. and began again on March 6 at 3:25 P.M. Id. at 22. The second adjournment was necessary because Defendant Gerwer wanted secure the witnesses that Plaintiff requested. Id. The March 6 hearing adjourned at 3:45 P.M. so that Defendant Gerwer could secure another witness that Plaintiff requested. Id. at 32. The hearing reconvened on March 10 at 12:45 P.M. when that witness became available to testify. Id. The hearing was adjourned on at least three different occasions, ensuring that Plaintiff had sufficient time to prepare to defend the charges against him. Plaintiff has not alleged, and cannot claim, any prejudice to him that resulted from the fact that the initial hearing may have started less than twenty-four hours after he was served with the misbehavior report, because there was no "hearing" on that day. Plaintiff had plenty of time to defend against the charges and to produce evidence and witnesses in his defense.

C. Evidence and Witnesses

An inmate has a right to call witnesses and present evidence in his or her defense "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. at 566; see also Ponte v. Real, 471 U.S. 491, 496, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985) ("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....") (citations omitted). Moreover, a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991) (citing Wolff v. McDonnell, 418 U.S. at 566). A hearing officer may refuse to call a witness "on the basis of relevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d at 30; see also Scott v. Kelly, 962 F.2d 145, 145-47 (2d Cir.1992) ("It is well settled that an official may refuse to call a witness as long as the refusal is justifiable.").

*10 Plaintiff alleges that his due process rights were violated because Defendant Gerwer excluded a log book from evidence. (Pl.'s Dep. at 88-89; Disciplinary Hr'g at 29-30). C.O. Nieves's signature appears on a misbehavior report dated February 15, 2008. (Dkt. No. 39-12, Disciplinary Hr'g Papers at 4). Plaintiff requested the log book because he did not believe that C.O. Nieves was assigned to the site of the incident at the time it occurred. (Pl.'s Dep. at 88; Disciplinary Hr'g at 29). C.O. Nieves testified at the disciplinary hearing that she wrote the February 15 report because Plaintiff had disobeyed her orders. (Disciplinary Hr'g at 11-12). Plaintiff questioned C.O. Nieves at the disciplinary hearing. Id. at 12-18. C.O. Donovan also testified that C.O. Nieves was present at the site of the incident. (Disciplinary Hr'g at 32). Plaintiff also had an opportunity to question C.O. Donovan. Id. at 33-34.

Thus, Defendant Gerwer had a rational basis to conclude that excluding the log book was proper because its inclusion was unnecessary as C.O. Nieves's presence at the site of the incident was substantiated by C.O. Donovan. Plaintiff questioned both officers at the disciplinary hearing. Since C.O. Nieves was the officer claiming that plaintiff violated her orders, the log book, showing whether she was assigned to the location in question at the time of the incident, was totally irrelevant.

Defendant Gerwer also allegedly refused, without a legitimate reason, to let Plaintiff call Mr. Tatum to testify on Plaintiffs behalf. (Compl. at 15; Pl.'s Dep. at 90). Plaintiff wanted Mr. Tatum, a mental health counselor, to testify about Plaintiff's mental state after the alleged February 15th assault. (Pl.'s Dep. at 90; Disciplinary Hr'g at 25). Plaintiff admits, however, that Mr. Tatum was not present at the time of the incident that gave rise to the disciplinary hearing, and plaintiff's mental state when he was taken to SHU had nothing to do with the incident that gave rise to the disciplinary hearing. (Disciplinary Hr'g at 25). The alleged assault, even if it did occur, happened after the conduct giving rise to the misbehavior report occurred. As such, Defendant Gerwer had a proper basis to deny Mr. Tatum's testimony as his testimony would not be relevant to any issues or incidents that gave rise to the disciplinary hearing. See, e.g., Kalwasinski v. Morse, 201 F.3d 103, 108-109 (2d Cir.1999) (indicating that testimony on the record that no one else was present at incident gave rational basis for excluding plaintiff's witnesses as irrelevant and unnecessary). Moreover, at Plaintiff's request, Defendant Gerwer attempted to call another inmate who was present at the scene of the incident. Id. at 22. That inmate, however, refused to testify. Id. Finally, at Plaintiff's request, Defendant Gerwer called Officers Donovan and Germaine to testify. Id. at 32, 41, 43. Thus, Defendant Gerwer's refusal to call Mr. Tatum did not violate Plaintiff's due process rights because Mr. Tatum's testimony was irrelevant, and Defendant Gerwer called other witnesses that Plaintiff requested.

*11 Defendant Gerwer allegedly committed another due process violation when C.O. Germaine was permitted to testify even though he had failed to sign the misbehavior report as DOCS regulations require. (Pl.'s Dep. at 85-87). However, 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).[9] Plaintiff's claim that this error violated his due process rights is further undermined because Defendant Germaine testified at Plaintiff's request. (Disciplinary Hr'g at 43).

D. Impartiality

Finally, Plaintiff alleges that he was deprived of due process because Defendant Gerwer was not fair or impartial. (Compl. at 15; Pl.'s Dep. at 82, 85-87)."An inmate subject to a disciplinary proceeding is entitled to an impartial hearing officer.'" Allen v. Cuomo, 100 F.3d at 253, 259 (2d Cir.1996). An impartial hearing officer is "one who, inter alia, does not prejudge the evidence and who cannot say... how he would assess the evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard").

It is well settled, however, "that prison disciplinary officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d at 259. "The degree of impartiality required of prison officials does not rise to the level of that required of judges generally." Id. An inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact. Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir.1989); Clyde v. Schoellkopf, 714 F.Supp.2d 432, 437-38 (W.D.N.Y.2010).

Plaintiff first accuses Defendant Gerwer of saying on the record that C.O. Nieves was a "good person." (Disciplinary Hr'g at 48). Later, Plaintiff claims that Defendant Gerwer made this statement off the record. (Disciplinary Hr'g at 52). A review of the disciplinary hearing transcript shows Defendant Gerwer never made such a statement on the record.[10] But even if Defendant Gerwer made such a statement, either on the record or off the record, it is not evidence of bias. As the hearing officer, Defendant Gerwer could make credibility determinations. See Lewis v. Johnson, No. 9:08-CV-482 (TJM/ATB), 2010 U.S. Dist. LEXIS 98116, at *39-40 n. 25, 2010 WL 3785771, at *11 n. 25 (N.D.N.Y. Aug.5, 2010) (Baxter, Mag. J.) ("the Second Circuit has required that a hearing examiner make an independent assessment of the credibility of certain sources of evidence at a prison disciplinary hearing"), report-recommendation adopted, 2010 U.S. Dist. LEXIS 98084, at *1, 2010 WL 3762016, at *1 (N.D.N.Y. Sept.20, 2010) (McAvoy, J.). Moreover, a review of the record belies Plaintiff's accusation that Defendant Gerwer had predetermined Plaintiff's guilt. The disciplinary hearing spanned several weeks to locate witnesses and schedule a time for them to testify. Plaintiff was permitted to call witnesses to testify on his behalf, and was permitted to cross-examine the witnesses against him. (Disciplinary Hr'g at 12, 32, 41, 43). The constitutional standard for sufficiency of evidence in a prison disciplinary hearing is whether there is "some" or "a modicum" of evidence to support the hearing officer's determination. Sira v. Morton, 380 F.3d 57, 76 (2d Cir.2004) (citing Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). In this case, there was clearly sufficient evidence supporting the hearing officer's determination. Thus, the record establishes that Defendant Gerwer was not biased and did not prejudge the evidence. Accordingly, Defendant Gerwer's summary judgment motion with respect to plaintiff's due process claim should be granted.[11]

VI. Qualified Immunity

*12 Defendants argue that they are entitled to qualified immunity with respect to all of Plaintiff's claims. 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified, Person v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 811, 172 L.Ed.2d 565 (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 v. Katz, 533 U.S. at 201. Accordingly, this Court need not address qualified immunity with respect to Plaintiff's claims because, as discussed above, he has not established those alleged violations of constitutional rights.

WHEREFORE, based on the findings above, it is

RECOMMENDED, Defendants' motion for summary judgment (Dkt. No. 39) be GRANTED and the complaint be DISMISSED IN ITS ENTIRETY.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

Charles McAllister, Westbury, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Adele M. Taylor-Scott, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff pro se Charles McAllister ("McAllister"), formerly an inmate in the custody of the New York State Department of Correctional and Community Services ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, a Commissioner, Deputy Commissioner, two Superintendents, and others unidentified, violated his constitutional rights under the First and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment, pursuant to Fed.R.Civ.P. 56. Dkt No. 49. McAllister opposes the motion. Dkt. No. 53. For the following reasons it is recommended that defendants' motion be granted in part and denied in part.

I. Background

The facts are related herein in the light most favorable to McAllister as the non-moving party on defendants' motion for summary judgment. See subsection II(A) infra.

A. DOCCS Directive # 4913

On October 23, 2008, defendant Commissioner Fischer issued a memorandum regarding inmate property entitled "Directive # 4913." Dkt. No. 49-2 at 5-11. The directive explained that

The accumulation of excessive inmate personal property has a significant and wide ranging impact on the operation of the entire agency... includ[ing], but... not limited to:
# The time consuming and labor intensive process of packing, searching and storing.
# Fire and safety hazards within inmate living quarters related to the accumulation of excessive "fire load" items.
# Sanitation and hygiene issues associated with the long-term storage of unused food items, clothing and paper.
# Increased risk of loss, theft and pilferage, and the resulting lost property claims and potential violence.
# Escalating cost of statewide storage areas.

Dkt. No. 49-2 at 5. Property restrictions were "not new to th[e] agency, " and already "exist[ed] in [varous other] programs...." Dkt. No. 49-2 at 5.

DOCCS determined "that a reasonable threshold for the amount of inmate personal property that could be efficiently processed and moved from one facility to another would be that amount that could fit into four (4) standard fabric draft bags'...." Id. The policy included an incremental, phase-in portion, specifically affecting general population inmates who had been incarcerated in or before 2008. Id. at 5, 11 (quick reference chart). Special Housing Unit (SHU)[2] inmates who were serving a disciplinary disposition exceeding sixty days were immediately required to be in compliance with the directive, allowing for "four (4) draft bags of property... [and] documented active legal cases... in a fifth (5th) draft bag if necessary."Dkt. No. 49-2 at 8. Inmates could choose to dispose of any excess property by either (1) shipping it to a family member or friend at their own expense; (2) sending the property home with a visitor; (3) donating the property to a charitable organization; or (4) allowing DOCCS to destroy the property. Dkt. No. 49-2 at 15, 18. On August 1, 2009, in compliance with the above directive, McAllister made arrangements to send, at his own expense, multiple items of personal property and legal documents to various individuals. Dkt. No. 49-2 at 21-35.

B. Disciplinary Hearing

*2 On July 15, 2009, McAllister was issued a misbehavior report by third party Femia for providing unauthorized legal assistance and having materials in his possession which were exchanged without permission. Dkt. No. 49-2 at 37. During a search of McAllister's personal property, Femia "confiscated (20) articles of paper which appeared to be legal work that included some signed affidavits from [five named] inmates...." Id. at 43; see also Id. at 44-64 (confiscated paperwork including affidavits from five other inmates).

McAllister received notice of the hearing via delivery of a copy of the misbehavior report, on July 16, 2009. Dkt. No. 49-2 at 37, 39. McAllister also was provided with one of his requested legal assistants, A. Sullivan. Id. at 39, 41. Sullivan met with McAllister on July 16, 2009. Id. at 39. During the interview, Sullivan recorded the names of five inmates who agreed to testify at the hearing and requested various directives and rule books on McAllister's behalf from prison authorities. Id. at 40.

McAllister's disciplinary hearing commenced on July 21, 2009. Dkt. No. 49-2 at 65. McAllister first objected to the misbehavior report, alleging that it provided ineffective notice. Id. at 68. McAllister's copy of the misbehavior report alleged the date, time, and place of the incident, but it omitted the names of the inmates whose affidavits were found in the confiscated materials, while the report that relied upon by the hearing officer listed all five names. Id. McAllister also contended that, as there were five inmates indicated on the misbehavior report, their identities should have been disclosed pursuant to the directive commanding a detailed account of the factual situation surrounding each inmate when multiple inmates were involved in a disciplinary infraction. Id. at 69-71. Despite the narration on the misbehavior report, McAllister stated that the context was unhelpful given the fact that he has "volumes of things... [as he has] been locked up for a very long time [and]... in court with four different courts...." Id. at 88.

Moreover, McAllister disputed the merits of the misbehavior report, first expressed in a letter to defendant Woughter (Dkt. No. 49-2 at 115-18, 130-32), [3] that the property which was confiscated was all McAllister's legal work, that he was not providing legal assistance to any other inmate, and that the other inmate affidavits were in his property because he was using them to prove his assertions in a law suit he had filed against the Division of Parole[4]. Id. at 73-80, 85. Accordingly, the legal documents were part of McAllister's own legal work, which he authored solely for his own personal use in his own personal litigation with the state. Id. at 90, 92, 95-96. McAllister further stated that "[t]here is no rule that says that [he] can [not] have another affidavit from another inmate in [his possession to] support... [his pending] civil action in court." Id. at 81. As McAllister was tasked with proving his position with more than conclusory allegations, he contended that the statements were necessary to advance his case and no different than DOCCS allowing inmates to produce statements in support of their defense during their disciplinary hearings. Id. at 82-84. McAllister also contended that his supervisor at the Law Library was aware of his pending litigation and the affidavits and that McAllister was not required to receive permission for these actions because the affidavits were acquired in pursuit of litigating McAllister's claims. Id. at 93. The hearing officer adjourned the hearing to do more research before rendering his final decision and McAllister stated that he "really d[id not] need the [witnesses identified by Sullivan] unless [Call] want[ed] to [call them]." Id. at 96.

*3 McAllister was ultimately found guilty and sentenced to confinement in SHU for ninety days and loss of package, commissary, and phone privileges. Dkt. No. 49-2 at 37. In making this decision, the hearing officer relied on the misbehavior report, information from a confidential source, the documents seized from McAllister's cell, and McAllister's disciplinary history[5]. Dkt. No. 49-2 at 38, 104-05. The confidential information was produced and examined by the hearing officer, outside of McAllister's presence. Dkt. No. 49-2 at 42, 102-03. McAllister was not informed of the informant's name or allowed to know what the content of the information was to which the informant testified. Dkt. No. 49-2 at 42.

McAllister timely appealed the disciplinary determination, citing to deficiencies in the notice, the hearing officer's bias, ambiguity of the rules, failure to call witnesses, and evidence relied upon by the hearing officer, particularly the confidential witness. Dkt. No. 49-2 at 109-12. On August 26, 2009, McAllister's disciplinary conviction and sentence were reversed and McAllister's record was ordered expunged because the "evidence d[id] not support a guilty finding." Id. at 107; see also Id. at 108. On August 1, 2009, McAllister also received the confiscated legal material and affidavits back from DOCCS. Id. at 121. Despite the reversal, McAllister spent between forty-two and sixty days in SHU. Compare Dkt. No. 49-2 at 133 (indicating confinement in SHU from July 9 to July 22, 2009) with Dkt. No. 53, ¶ 4 (noting extended date of September 9, 2009) and Defs. Statement of Material Facts (Dkt. No. 49-1) at ¶ 11 (stating that McAllister "spent less than 60 days in SHU); Defs. Mem. of Law (Dkt. No. 49-3) at 13 (indicating McAllister spent approximately 42 days in SHU).

C. Grievances

On July 28, 2009, McAllister was interviewed in connection with a misbehavior report issued to another inmate who was in possession and admittedly storing McAllister's legal documents for him. Dkt. No. 49-2 at 141. Also at that time, McAllister was advised of the property limitations contained in Directive # 4913 and that he was required to comply with the directive. Id. The following day McAllister filed a grievance complaining of the constitutionality of the directive and stating that the policy discriminated against inmates sentenced to SHU. Id. at 143. McAllister also contended that the directive impeded his access to the courts because he has "[six] pending cases in Federal, State Supreme, Appellate Court, [and the] Court of Claims [thus] he NEED[S] his legal materials to prove his case, to present his pleadings with evidence, documentations [sic], case law and exhibits." Id. at 144 (emphasis in original).

On August 1, 2009, McAllister wrote to Woughter seeking an exception to Directive # 4913 to keep an additional two and a half bags of legal material. Dkt. No. 49-2 at 135-36. McAllister stated that he required the paperwork for the pending "[five] other litigations in NDNY, Albany Supreme and Court of Claims." Id. at 135. In the interim, to comply with the directive, McAllister sent the paperwork to an attorney at Prisoner's Legal Services. Id. at 135-36.

*4 On August 3, 2009, McAllister filed a grievance regarding Directive # 4913. Dkt. No. 49-2 at 142-45. The grievance was investigated and multiple memoranda were filed. McAllister was interviewed and

stated that he had to send out 2½ bags of legal work to an attorney and he was challenging the new policy and wanted an exception... [Sgt. Perry] asked [McAllister] if it was explained to him about the 4 bag plus 1 legal bag and he could have kept more of his legal work in the 4 bag limit and [McAllister] stated that it was. [McAllister] stated that he felt that it was unfair to have to get rid of other personal property to keep his legal work and that is why he is challenging the policy.

Dkt. No. 49-2 at 137. McAllister was also interviewed prior to his transfer to SHU at which the property limits were again explained. Id. at 139. McAllister

was allowed to go through all of his personal property to determine which legal materials/personal property he wanted to accompany him to [the] next facility. He chose to bring 1 bag of legal materials with him as well as 2 bags of person property, a typewriter and bag # 1 state issue. He sent 1 bag of legal materials at his expense to Gouverneur C[orrectional] F[acility] and sent an additional 7 bags of legal materials/personal property to various addresses at his expense. McAllister personally disposed of several bags of personal property on [August 1st] while deciding which items he wanted to accompany him to Gouverneur.

Dkt. No. 49-2 at 139. McAllister's grievance was reviewed, investigated, and ultimately denied based on the validity of the Directive, McAllister's understanding of such, and McAllister's ability to select the property that he would keep and that he would send elsewhere. Dkt. No. 49-2 at 124-26.

On January 12, 2010, McAllister was transferred to Watertown Correctional Facility from Cape Vincent Correctional Facility, with property, for a court trip. Dkt. No. 49-2 at 146. On January 19, 2010, McAllister was transferred from Watertown to Marcy Correctional Facility, whereupon half a bag of his property was found to be missing. Id. On January 22, 2010, McAllister filed a claim form seeking damages for his lost legal and personal property. Id. at 146, 151 McAllister also compiled documentation indicating the cost of replacing the missing legal work. Id. at 167-94. McAllister contends that the lost bag contained documents which took ten years to amass, could not be re-created, and were required for his "pending civil court of claims action." Compl. at 7. Specifically, McAllister lost a set of taped recordings

by seven police officers involved in the arrest and conviction of [McAllister which]... w[ere] evidence in criminal proceedings which [McAllister] had to use in his actual innocence' application to the United States Court of Appeals. The loss of these tapes... have caused irreparable harm by the loss of reasonable evidence that if reviewed would have a probably different review of the criminal trial evidence against [McAllister].

*5 Id.

An investigation determined that a clerical error resulted in the misplacement of McAllister's property and he was offered a settlement of $300. Dkt. No. 49-2 at 147-50, 152-65, 202-04. It appears that McAllister declined the settlement. Id. at 205. This was the final settlement offer of DOCCS and the claim was to proceed in the New York State Court of Claims. Id. at 206.

II. Discussion

McAllister asserts nine separate causes of action as follows:

Compl. at 5-7. Defendants move for judgment contending that (1) McAllister's request for injunctive relief has been rendered moot; (2) McAllister has failed to establish the personal involvement of defendants; (3) McAllister's causes of action are meritless; (4) defendants are protected in their official capacities by the Eleventh Amendment; and (5) defendants are entitled to qualified immunity.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. 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. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Injunctive Relief

*6 To the extent that McAllister requests injunctive relief, such requests are moot as he has been released from prison. See Hallett v. New York State Dep't of Corr., 109 F.Supp.2d 190, 196 (S.D.N.Y.2000) (holding that when an inmate is released from prison and no longer "under the supervision of any of the named defendants, his requests for injunctive relief are dismissed as moot."). Accordingly, to the extent McAllister seeks injunctive relief, that claim for relief should be denied as moot.

C. Personal Involvement

Defendants contend that DeLeon has failed to establish that the named defendants were personally involved in any of the alleged constitutional deprivations. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id. ; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). However, supervisory personnel may be considered "personally involved" if:

(1) [T]he defendant participated directly in the alleged constitutional violation;
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).

Defendants argue that McAllister has failed to demonstrate the personal involvement of any of the named defendants in the initiation or conduct which occurred in conjunction with the Tier III disciplinary hearing. With respect to Commissioner Fischer, Deputy Commissioner LeClaire, and Superintendent LeConey, even construing the facts in the light most favorable to McAllister, it appears that any asserted involvement in the disciplinary hearing process finds its genesis in their positions as superiors in DOCCS. However, a position in a hierarchical chain of command, absent something more, is insufficient to support a showing of personal involvement. Wright, 21 F.3d at 501.

The only individual who was involved with the disciplinary hearing was Woughtner, who received McAllister's letter prior to his disciplinary hearing and forwarded it to a subordinate for review and decision. Merely writing letters to defendants is insufficient to establish notice and personal involvement. Smart v. Goord, 441 F.Supp.2d 631, 643 (S.D.N.Y.2006) ("Commissioner... cannot be held liable on the sole basis that he did not act in response to letters of protest sent by [plaintiff]...."). Similarly, receipt of a letter, without personally investigating or acting on the letter or grievance, is insufficient to establish personal involvement. See, e.g., Rivera v. Fischer, 655 F.Supp.2d 235, 238 (W.D.N.Y.2009) (citing cases); Boddie v. Morgenthau, 342 F.Supp.2d 193, 203 (S.D.N.Y.2004) ("While mere receipt of a letter from a prisoner is insufficient to establish individual liability... [p]ersonal involvement will be found... where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint."). Furthermore, it is within the purview of a superior officer to delegate responsibility to others. See Vega v. Artus, 610 F.Supp.2d 185, 198 (N.D.N.Y.2009) (finding no personal involvement where "the only involvement of the supervisory official was to refer the inmate's complaint to the appropriate staff for investigation.") (citing Ortiz-Rodriquez v. N.Y. State Dep't of Corr. Servs., 491 F.Supp.2d 342, 347 (W.D.N.Y.2007)).

*7 Accordingly, defendants' motion on this ground, with respect to the disciplinary hearing claim, should be granted.

D. First Amendment

1. Retaliation

McAllister claims that defendants retaliated against him by transferring him to SHU, making him pare down his property in conformance with Directive # 4913, only to have the underlying disciplinary dispositions reversed after transferring to SHU. Compl. at 7. To state an actionable claim for retaliation, a plaintiff must first allege that the plaintiff's conduct was constitutionally protected and that this protected conduct was a substantial factor that caused the adverse action against plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)."Types of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Barclay v. New York, 477 F.Supp.2d 546, 588 (N.D.N.Y.2007) (citations omitted).

There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship, so courts judge the permissible inferences that can be drawn from temporal proximity in the context of particular cases. However, courts have found that six and eight month gaps between the protected conduct and adverse action were sufficient, while in other circumstances three months was considered too long.

Burton v. Lynch, 664 F.Supp.2d 349, 367 (S.D.N.Y.2009) (internal quotation marks and citations omitted).

However, courts must view retaliation claims with care and skepticism to avoid judicial intrusion into matters of prison administration. Jackson v. Onondaga County, 549 F.Supp.2d 204, 214-15 (N.D.N.Y.2008). Therefore, conclusory allegations alone are insufficient. Id. at 214 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) (explaining that "claim [s] supported by specific and detailed factual allegations... ought usually be pursued with full discovery.")).

In this case, McAllister has failed to proffer facts sufficient to support a retaliation claim. First, it is unclear in which constitutionally protected activity McAllister alleges he was engaged. Second, McAllister only proffers conclusory allegations to demonstrate retaliation. McAllister has offered no facts which would identify what the protected activity was that he was engaging in, how the activity served as a substantial factor in defendants' alleged violations of his First and Fourteenth Amendment rights, which defendants participated in the retaliation, or what each defendant did to advance the retaliation. Such conclusory allegations, without more, are insufficient to demonstrate retaliation. Id.

Accordingly, defendants' motion should be granted as to the ninth cause of action.

2. Access to Courts

*8 "Prisoners... have a constitutional right of access to the courts...." Bourden v. Loughren, 386 F.3d 88, 92 (2d Cir.2004) (internal quotation marks omitted) (citing Boundsi v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (citations omitted) (holding that all prisoners have a well-established Constitutional right to "adequate, effective, and meaningful" access to courts). This "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers...." Bounds, 430 U.S. at 828. To establish a claim for denial of access to the courts, a plaintiff must prove "that a defendant caused actual injury, ' i.e., took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim.'" Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (citing Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997) (quoting Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). The injury must have been the result of the deliberate and malicious behavior of a defendant. Tajeddini v. Gluch, 942 F.Supp. 772, 780 (D.Conn.1996).

In this case, McAllister contends that his rights were infringed when (1) he was forced, pursuant to Directive # 4913, to send his legal papers to various individuals; (2) his legal papers and tapes were lost; and (3) liberally construing his complaint, he did not have a competent law library assistant to rely upon after sending his own personal legal resources home or to his attorney.[6] McAllister contends that defendants' actions resulted in prejudice to his legal actions. However, McAllister fails to state which legal actions were prejudiced. Conclusory generalizations are insufficient to establish an actual injury. See Lewis, 518 U.S. at 351 (giving examples of actual injury including inability to assert or continue a claim); Arce v. Walker, 58 F.Supp.2d 39, 43 (W.D.N.Y.1999) ("[A] claim that prison practices kept a prisoner from raising an argument or asserting a claim in his pleadings, in response to a dispositive motion, or at trial would likely suffice to show harm, " but claims that the prison practice prevented the inmate from "ma[king] a more compelling or sophisticated argument would not.").

McAllister contends that the papers which he sent home were essential in proving his various state and federal cases, though he fails to identify these cases or their claims, or raise a question of material fact as to the merits of such allegations against the various defendants. Furthermore, McAllister claims the lost legal papers and tapes were essential for his "actual innocence" claim, but he fails to indicate whether that claim was already in existence or just a prospective claim that he hoped to bring in the future, or how those documents and tapes supported the viability of such claims so that McAllister's claims would support a meritorious complaint. Accordingly, without identification of the underlying action which was prejudiced, actual injury, and by extension a First Amendment violation, cannot be established. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) ("[T]he underlying cause of action... is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation.").

*9 Accordingly, defendants' motion should be granted on this ground as to the first, fourth, fifth, sixth, and seventh causes of action.

E. Fourteenth Amendment

1. Due Process

a. Atypical and Significant Deprivation

McAllister alleges that he was found guilty at the disciplinary hearing based on a lack of evidence. As a threshold matter, an inmate asserting a violation of his or her right to due process must establish the existence of a protected interest in life, liberty, or property. See Perry v. McDonald, 280 F.3d 159, 173 (2d Cir.2001). To establish a protected liberty interest, a prisoner must satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). This standard requires a prisoner to establish that the deprivation was atypical and significant in relation to ordinary prison life. Id. at 484; Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). The fact that an inmate has been disciplined with a segregated confinement alone is insufficient to establish an atypical and significant deprivation. The Second Circuit has articulated a twopart 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). The Second Circuit has noted that where the period of segregated confinement exceeds thirty days, "refined fact-finding" is required to resolve defendants' claims under Sandin. Colon v. Howard, 215 F.3d 227, 230 (2d Cir.2000). While there is some dispute over the length of time McAllister was in SHU, at a minimum, he was segregated for forty-two days. Accordingly, as that sentence exceeds thirty days, defendants' motion on this ground should be denied.

b. Fair and Impartial Hearing

While inmates are not given "the full panoply of [due process] rights, " they are still afforded procedural process. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). A prisoner is "entitled to advance written notice...; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition including the evidence relied upon and the reasons for the disciplinary actions taken." Sira v. Morton, 380 F.3d 57, 69 (2d Cir.2004) (citations omitted).

McAllister contends that he was found guilty with no evidentiary support. McAllister consistently presented his defense that the affidavits from other inmates in his property were drafted and intended to support his own state court action. McAllister did not write the affidavits for the other inmates' uses. McAllister's intention was to provide the state court with evidentiary support in furtherance of his own claims. McAllister's supervisor was aware of his actions and McAllister testified that he did not require permission to gather evidentiary support for his pending claims. It is undisputed that such support is required in any lawsuit to establish the merits of the parties' claims.

*10 "To comport with due process, the decision to confine [McAllister] in SHU must have been supported by some evidence.'" Espinal v. Goord, 180 F.Supp.2d 532, 539 (S.D.N.Y.2002) (citations omitted). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the [hearing officer]." Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (citations omitted).

McAllister's testimony, in combination with the discovery of the affidavits, does not support a finding of guilt. In addition to the testimony elicited at the hearing and the misbehavior report, the hearing officer also relied upon confidential information. The Second Circuit has determined "that the some evidence standard may be met even where the only evidence was supplied by a confidential informant, as long as there has been some examination of indicia relevant to the informant's credibility." Gaston v. Coughtlin, 249 F.3d 156, 163 (2d Cir.2001) (internal quotation marks and citations omitted). During the disciplinary hearing, McAllister was not informed of the content or source of the confidential information. This is not necessarily required, but there must be some additional assessment performed by the hearing officer. Id. at 163-64 (discussing appropriate credibility assessments based upon a discussion, outside the presence of the informant, of why the informant testified, the informant's motivations for testifying, and the informant's past proven reliability). In this case, there was none.

The hearing officer advised McAllister that confidential information had been proffered, he had heard it, and he found it sufficiently compelling to support McAllister's guilt. This is woefully insufficient to establish an independent credibility assessment. Accordingly, reliance upon this testimony is also inappropriate to constitute some evidence in support of the disciplinary determination.

Lastly, the hearing officer relied on McAllister's disciplinary history to serve as a basis for his determination. The only additional supporting evidence of McAllister's relevant disciplinary history involved an incident where another inmate held McAllister's legal work for him so that McAllister did not have to send it away from the facility to be in compliance with the directive. This is clearly distinguishable from the charge at issue here, where the other inmate property McAllister was in possession of were affidavits he generated and intended to use in furtherance of litigating his state court claims.

Thus, on this record neither McAllister's possession of the affidavits of five other inmates, his own testimony, the testimony of a confidential informant, nor McAllister's prior disciplinary record provided any evidence to support the charge that McAllister wrongfully possessed the other inmates' affidavits. Accordingly, defendant's motion on this ground should be denied.

2. Directive # 4913[7]

*11 McAllister contends that he suffered an unconstitutional deprivation of his legal and personal property pursuant to Directive # 4913. Inmates' rights are not absolute and can be limited due to the inmate's "incarceration and from valid penological objectives - including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citations omitted); see also Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.1990) ("The governing standard is one of reasonableness, taking into account whether the particular regulation... is reasonably related to legitimate penological interests.") (citations omitted). This deferential standard takes into consideration the difficulty and expertise required to make "the day-to-day judgments of [a] prison official[ ]...." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

The Turner Court determined that the four factors to be considered are: 1) whether there is a rational relationship between the regulation and the legitimate government interests asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact that accommodation of the right will have on the prison system; and 4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest.

Benjamin, 905 F.2d at 574 (citing Turner v. Safely, 483 U.S. 78, 89-91 (1987).

While it is clear that DOCCS may not deprive inmates of all their legal work product, restrictions on the quantity of legal materials inmates are allowed to retain have previously been deemed reasonable. See, e.g. Howard v. Snyder, 389 F.Supp.2d 589, 593 (D.Del.2005) (holding that a "two box per inmate' regulation which permits prison officials to confiscate excess property beyond the authorized amount... is reasonably related' to legitimate penological objectives.'") (citations omitted). In this case, DOCCS has proffered such justifications citing fire, safety, and sanitary hazards which justified the directive. Id. at 593-94 (finding that restriction was reasonably related because it "ensur[ed] adequate living space... reduc[ed] fire and safety hazards.... "and reduced the number of places to hide contraband increasing the levels of safety for both inmates and staff). Thus, the confiscation of excess property shares a rational connection with the safe and orderly administration of DOCCS. Therefore, the first Turner factor weighs in favor of defendants.

The second Turner factor also weighs in favor of the defendants. McAllister contends that he would rather have his own legal resources to depend upon than that of the law clerks in the library, but the law library and the clerks remained available and accessible to inmates to assist in their legal research and writing. Moreover, DOCCS provided McAllister with the opportunity to sort through his personal and legal belongings and choose which would stay with him and which would be sent off. DOCCS also provided multiple avenues with which to dispose of the excess property depending upon the means and preferences of the inmates.

*12 The third Turner factor also weighs in defendants' favor. As previously stated, allowing inmates to have excess legal and personal property results in sanitary issues, crowded spaces, fire hazards, and safety hazards given the additional spots where contraband could be hidden. This excess of inmate property jeopardizes the safety of both correctional officers and other inmates. A deferential standard is accorded to prison officials in light of these aforementioned concerns and, therefore, the third factor also tips towards the ultimate conclusion of reasonableness.

The fourth Turner factor also weighs in defendants' favor. As explained, there were a number of options for McAllister as he was given the opportunity to sort through his belongings and keep an additional bag of legal documents in lieu of personal property. McAllister chose to keep his personal property instead. DOCCS also afforded an additional program allowing for special accommodations, as referenced in McAllister's August 1st letter to defendant Woughter seeking an exception to the directive. Accordingly, DOCCS did provide ready alternatives, but none were not the alternative which McAllister sought as his proposed solution to keep all of his property was in contravention of the facility's wellness and safety.

Accordingly, Directive # 4913 was reasonably related to valid institutional goals given DOCCS' responsibility to provide for the health and safety of its staff and inmates and the alternatives provided to inmates in being able to seek exceptions and choose which four or five draft bags of material would remain with them. Moreover, the rules were neutral and reasonably related to the ultimate goals of the facility, security and safety. Thus, Directive # 4913 did not violated McAllister's Fourteenth Amendment rights and defendants' motion on this ground should be granted as to the constitutionality of the directive.

3. Equal Protection

The Fourteenth Amendment's Equal Protection Clause mandates equal treatment under the law. Essential to that protection is the guarantee that similarly situated persons be treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005) ("To prove a violation of the Equal Protection Clause... a plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination.").

[T]he Equal Protection Clause bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

Vegas v. Artus, 610 F.Supp.2d 185, 209 (N.D.N.Y.2009) (internal quotation marks and citations omitted). McAllister's Equal Protection claim fails for a multitude of reasons. First, McAllister claims his treatment was based upon his status as a litigious inmate with a protracted prison sentence. Prisoners are not a part of a protected class. Scott v. Denison, 739 F.Supp.2d 342, 362 (W.D.N.Y.2010) (citations omitted). Moreover, McAllister cannot show that he was treated differently than another class of similarly situated inmates since all inmates were subjected to the same directive. Instead, McAllister seems to be alleging the directive has a disparate impact on inmates with long prison sentences or who are overly litigious. However, a neutral law resulting in a disproportionate impact, without a discriminatory purpose, is insufficient to establish a constitutional violation. Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). McAllister has not articulated, and the record would not support the finding of, any discriminatory purpose behind Directive # 4913.

*13 If an individual cannot "allege membership in [a protected] class, he or she can still prevail in... a class of one equal protection claim." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir.2005) (internal quotation marks and citations omitted). To succeed, a plaintiff must show "that [he] were intentionally treated differently from other similarly-situated individuals without any rational basis." Clubside, Inc. v. Valentin, 468 F.3d 144, 158-59 (2d Cir.2006). Additionally, a plaintiff must establish an extremely high "level of similarity between plaintiffs and the persons with whom they compare themselves...." Neilson, 409 F.3d at 104. For the same reasons cited above, these claims must also fail as McAllister has not established intentional treatment different from those other inmates that were similarly situated. Furthermore, for the reasons stated above, Directive # 4913 is rationally related to a legitimate state interest, increased order, cleanliness, and safety in the prisons.

Accordingly, defendants' motion on this ground should be granted as to the third cause of action.

F. Eleventh Amendment

McAllister sues the defendants in both their individual and official capacities. Compl. Defendants seek summary judgment on McAllister's claims against them in their official capacities.

The Eleventh Amendment provides that "[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. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100. Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).

A suit against a state official in his or her official capacity is a suit against the entity that employs the official. Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988) ( citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974))."Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself, " rendering the latter suit for money damages barred even though asserted against the individual officer. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Here, McAllister seeks monetary damages against defendants in their official capacities for acts occurring within the scope of their duties with DOCCS. Thus, the Eleventh Amendment bar applies and serves to prohibit McAllister's claim for monetary damages against defendants in their official capacities.

*14 Accordingly, it is recommended that defendants' motion on this ground be granted.

III. Hearing Officer Call

If the recommendations herein are adopted, judgment will be granted to the presently named defendants, leaving only the "John/Jane Doe(s)" and the only claim remaining will be McAllister's Fourteenth Amendment due process claim alleging that there existed no evidence to support the hearing officer's finding of guilt at the disciplinary hearing. As discussed above, none of the presently named defendants were personally involved in that determination. McAllister has requested additional time to file an amended complaint adding the hearing officer as a defendant on that claim.

Rule 4(m) of the Federal Rules of Civil Procedure provides in part:

If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

In this case, McAllister contends that he did not know the identity of various John and Jane Does, including the hearing officer, because he did not receive adequate discovery from defendants. Dkt. No. 53, ¶¶ 3-5. After viewing the facts in the light most favorable to McAllister, the only claim which survived the present motion is his Fourteenth Amendment due process claim regarding the disposition of his disciplinary hearing by Hearing Officer Call. Accepting as true that McAllister was not aware of his identity until recently, good cause has been shown for his failure to specifically identify Call as a defendant. Accordingly, it is ordered that McAllister will have an additional sixty days to amend his complaint to add Hearing Officer Call as the defendant personally involved with the alleged due process claim.

IV. Conclusion

For the reasons stated above, it is hereby

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 49) be:

1. DENIED as to McAllister's procedural due process claim in connection with his disciplinary hearing; and

2. GRANTED as to all presently named defendants and claims other than the due process claim in connection with his disciplinary hearing; and

IT IS FURTHER RECOMMENDED that McAllister be granted sixty (60) days to file an amended complaint to add hearing officer Call as a defendant.

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

Attorneys and Law Firms

Charles McAllister, Westbury, NY, pro se.

Office of the New York, State Attorney General, Adele M. Taylor-Scott, AAG, of Counsel, Albany, NY, for Defendants.

ORDER

SCULLIN, Senior District Judge.

*1 Currently before the Court is Magistrate Judge Homer's July 16, 2012 Report Recommendation and Order, see Dkt. No. 55, and Plaintiff's objections thereto, see Dkt. No. 56.

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that they violated his constitutional rights under the First and Fourteenth Amendments. See Dkt. No. 1. On December 22, 2011, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 49. Plaintiff objected to that motion. See Dkt. No. 53. In his July 16, 2012 Report-Recommendation and Order, Magistrate Judge Homer granted Defendants' motion as to all named Defendants and as to all claims other than the due process claim in connection with his disciplinary hearing and denied Defendants' motion with respect to Plaintiff's procedural due process claim in connection with his disciplinary hearing. See Dkt. No. 55 at 28. Magistrate Judge Homer also recommended that the Court grant Plaintiff sixty days to file an amended complaint to add Hearing Officer Call as a Defendant. See id.

Magistrate Judge Homer explained that, if the Court adopted his recommendations, the only remaining claim would be Plaintiff's Fourteenth Amendment due process claim, in which he alleged that there existed no evidence to support the hearing officer's finding of guilt at the disciplinary hearing. See id. at 27. Magistrate Judge Homer also noted that, although none of the named Defendants were personally involved in that determination, Plaintiff had requested additional time to file an amended complaint to add the hearing officer, Call, as a Defendant. See id. Magistrate Judge Homer concluded that, accepting as true, Plaintiff's claim that he was not aware of the identity of the hearing officer until recently, he had shown cause for his failure to identify Call as a Defendant. See id. Therefore, he recommended that the Court provide Plaintiff with an additional sixty days to amend his complaint to add Hearing Officer Call as a Defendant, who was personally involved in the alleged due process claim. See id. Plaintiff objected to those portions of Magistrate Judge Homer's Report-Recommendation and Order which dismissed his claims against the named Defendants. See, generally, Dkt. No. 56.

In reviewing a magistrate judge's report and recommendation, the district court may decide to accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court conducts a de novo review of the portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). "If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quoting [ Farid v. Bouey, 554 F.Supp.2d 301] at 306 [ (N.D.N.Y.2008)] (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007))). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003) (quotation omitted).

*2 The Court has thoroughly reviewed Plaintiff's objections to Magistrate Judge Homer's recommendations. Although most, if not all, of Plaintiff's objections are general or conclusory or reiterate Plaintiff's original arguments, the Court conducted a de novo review of Magistrate Judge Homer's Report-Recommendation and Order in light of those objections. Having completed that review, the Court hereby

ORDERS that Magistrate Judge Homer's July 16, 2012 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Plaintiff is GRANTED sixty (60) days from the date of this Order to file an amended complaint to add hearing officer Call as a Defendant. Any such amended complaint that Plaintiff files shall include only one cause of action-a procedural due process claim in connection with his disciplinary hearing-and one Defendant-hearing officer Call; and the Court further

ORDERS that Defendants' motion for summary judgment with respect to Plaintiff's procedural due process claim in connection with his disciplinary hearing is DENIED; and the Court further

ORDERS that Defendants' motion for summary judgment is GRANTED with respect to all of Plaintiff's claims, other than his procedural due process claim in connection with his disciplinary hearing; and the Court further

ORDERS that Defendants' motion for summary judgment is GRANTED with respect to all of Plaintiff's claims, including his procedural due process claim in connection with his disciplinary hearing, against all of the currently named Defendants in this action, i.e., Brian Fischer, Lucien LeClaire, Patricia LeConey, and Carol Woughter; and the Court further

ORDERS that, if Plaintiff does not file an amended complaint within sixty (60) days of the date of this Order, the Court will dismiss this action without further Order of the Court; and the Court further

ORDERS that, if Plaintiff files an amended complaint within sixty (60) days of the date of this Order, which amended complaint shall include only one cause of action -a procedural due process claim in connection with his disciplinary hearing-and only one Defendant-hearing officer Call-this case shall be remanded to Magistrate Judge Hummel for all further pretrial matters; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Jeffrey A. Nelson, Attica, NY, for Plaintiff.

Hon. Eric T. Schneiderman, New York State Attorney General, Gregory Rodriguez, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

*1 This pro se 42 U.S.C. § 1983 action was referred to the Hon. David E. Peebles, Jr. United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b). Magistrate Judge Peebles recommends that the Defendants' motion for summary judgment, dkt. # 49, be granted in part and that the Court conduct an evidentiary hearing to determine whether Plaintiff's failure to exhaust his administrative remedies on his excessiveforce claim can be excused. See Dkt. # 59. Plaintiff has filed objections to the ReportRecommendation.

When objections to a magistrate judge's Report-Recommendation are lodged, the Court reviews the record de novo.See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Court may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id. Thus, the Court reviews the instant matter de novo.

Having reviewed the record de novo and having considered the issues raised in the Plaintiff's objections, this Court has determined to accept and adopt in part the recommendation of Magistrate Judge Peebles for the reasons stated in the ReportRecommendation. Therefore:

1. Plaintiff's objections, dkt. # 60, to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 59, are hereby OVERRULED;

2. The Report-Recommendation is hereby ADOPTED;

3. The Defendants' motion for summary judgment, dkt. # 49, is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Plaintiff's Eighth Amendment conditions-of-confinement claim and Fourteenth Amendment procedural due process claim. The motion is DENIED with leave to renew with respect to Defendants' claim that Plaintiff failed to exhaust his administrative remedies on all of his claims. An evidentiary hearing is necessary to determine whether Plaintiff exhausted his administrative remedies with respect to his remaining excessive-force claim against Defendants Plumley and Spear. Defendants may renew their motion following this hearing; and

4. The case is REFERRED to Magistrate Judge Peebles to conduct an evidentiary hearing on exhaustion of administrative remedies. The Magistrate Judge should also consider Plaintiff's request to have counsel appointed to represent him at that hearing.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

Pro se plaintiff Jeffrey A. Nelson, a New York State prison inmate, has brought this action pursuant to 42 U.S.C. § 1983 alleging that several individuals employed by or affiliated with the New York State Department of Corrections and Community Supervision ("DOCCS") have deprived him of his civil rights. Plaintiff contends that, while incarcerated, two of the defendants used excessive force against him, two other defendants subjected him to conditions of confinement tantamount to cruel and unusual punishment, and a fifth defendant denied him procedural due process during a disciplinary hearing.

*2 Now that discovery in the action has closed, defendants have moved for summary judgment dismissing plaintiff's claims. Defendants seek dismissal of two of plaintiff's claims based on his alleged failure to exhaust administrative remedies before filing suit, and contend that plaintiff's other claims lack merit. For the reasons set forth below, I recommend that plaintiff's conditions of confinement and due process claims be dismissed on the merits, and that an evidentiary hearing be conducted to determine whether plaintiff properly exhausted available administrative remedies in connection with his excessive force claim.

I. BACKGROUND [1]

Plaintiff is a prison inmate currently in the custody of the DOCCS. Dkt. No. 1 at 1. While he is now incarcerated elsewhere, at the time of the relevant events Nelson was confined in a satellite unit of the Central New York Psychiatric Center ("CNYPC") in the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Id. at 1, 4. Plaintiff suffers from mental illnesses, described by him as "depression, nervous panic attacks, ... and memory loss." Id. at 16.

On December 26, 2011, plaintiff was placed in the Residential Crisis Treatment Program ("RCTP") at Clinton for observation based upon a threat of self-harm. Dkt. No. 50-1 at 2. Upon entering an observation cell in the RCTP, plaintiff was provided with a specialized tear-and fire-resistant mattress, two tear-resistant mats, a specialized tear-resistant smock, soap, a toothbrush, and toothpaste.[2] Id.

Plaintiff alleges that, on January 3, 2012, while confined in his RCTP observation cell, he was involved in an altercation with defendants Bruce Plumley and Jeffrey Spear, both of whom are corrections officers at Clinton. Dkt. No. 1 at 4-5; Dkt. No. 57-1 at 11-12. Plaintiff alleges that he was assaulted by the two officers without provocation and, as a result, lost consciousness and suffered a concussion and laceration near his right eye requiring stitches. Dkt. No. 1 at 7; Dkt. No. 57-1 at 12-13. After being treated for his injuries by medical staff at Clinton, Nelson was returned to the RCTP observation cell without incident. Dkt. No. 49-6 at 2, 6.

As a result of the physical altercation, defendants Plumley and Spear each issued plaintiff separate misbehavior reports dated January 3, 2012. Dkt. No. 1 at 13; Dkt. No. 49-3 at 2, 9-10. Both misbehavior reports accused Nelson of failing to obey a direct order, assaulting a staff member, and engaging in violent conduct. Dkt. No. 49-3 at 2, 9-10. Beginning on or about January 9, 2012, Corrections Lieutenant John Miller, a defendant in this action, conducted a Tier III disciplinary hearing to address the charges contained in the misbehavior reports.[3] Id. at 3, 58-89. On or about January 20, 2012, following the close of the hearing, defendant Miller found Nelson guilty on all six counts, and imposed a penalty that included eighteen months of disciplinary confinement in a facility special housing unit ("SHU"), with a corresponding loss of telephone, package, and commissary privileges, and a recommendation that plaintiff lose twelve months of good time credits. Id. at 12, 88-89. Defendant Miller's determination was affirmed following review by D. Venettozzi, the DOCCS Acting Director of Special Housing/Inmate Disciplinary Program. Id. at 91.

*3 On January 3, 2012, the date of the alleged assault by defendants Plumley and Spear, the RCTP cells at Clinton were monitored by defendant Dr. Sohail Gillani, [4] a psychiatrist employed by the New York Office of Mental Health ("OMH") and assigned to the CNYPC satellite unit at Clinton. Dkt. No. 50-1 at 1, 3. On that date, according to defendant Gillani, he ordered that plaintiff be permitted only a smock in his cell after determining that plaintiff was at risk to himself, based upon his expression of suicidal ideation. Id. at 3. A "smock only" instruction meant that plaintiff would be provided only with a cloth smock comprised of heavy tear-resistant quilted material and designed to provide coverage and warmth to his body and reduce the risk of self-inflicted harm. Dkt. No. 50-1 at 3. In accordance with standard procedures applicable to observation cells in the RCTP, defendant Gillani's "smock only" order, and his corresponding instruction that plaintiff not be provided a blanket, were to be reviewed every twenty-four hours. Id. at 4. Accordingly, plaintiff was evaluated on January 4, 2012, by defendant Dr. Jean Berggren, another OMH psychiatrist assigned to the facility. Dkt. No. 50 at 1, 3. Based upon her observations, defendant Berggren discharged plaintiff from the RCTP on that date. Id. at 3-4.

Plaintiff, in some contrast, alleges that while confined in an RCTP observation cell after receiving medical treatment and meeting with defendant Gillani on January 3, 2012, he was left naked and "without a[ ] mattress, mats, smock, clothes, shoes, blanket, nor any shelter of warmth" for twentytwo hours in an "extremely cold cell." Dkt. No. 1 at 9-10, 13; Dkt. No. 57-1 at 16. In support of their motion, however, defendants have submitted evidence demonstrating that the temperatures in the CNYPC satellite unit, where the RCTP observation cells are located, are controlled by a Siemens computerized heating and cooling system designed to maintain a temperature of between 68 and 72 degrees Fahrenheit. Dkt. No. 49-7 at 2. The computers used in connection with the heating and cooling system are located in the main maintenance office at Clinton and a maintenance office located in the basement of Building 156, the building in which the CNYPC satellite unit is located. Id. Those computers are accessible only to maintenance workers at Clinton. Id. While there are thermometers in Building 156 that corrections officers and other staff members may use to verify and record temperatures, there are no manually adjustable thermostats located in the building to permit adjustment of the computer-controlled temperatures. Id. Accordingly, OMH employees have no ability to control ambient temperatures within the CNYPC satellite unit at Clinton. Dkt. No. 50 at 4; Dkt. No. 50-1 at 4.

Defendants have also submitted excerpts of logbook entries recording readings taken from thermometers located in the CNYPC satellite unit, and specifically the RCTP observation cell in which plaintiff was confined at the relevant times. Dkt. No. 49-6 at 2. According to those logbooks, the temperature recorded at the beginning of the 3:00 p.m. to 11:00 p.m. shift on January 3, 2012, was 70 degrees. Dkt. No. 49-6 at 7. At the beginning of the next shift, commencing at 11:00 p.m., the temperature was recorded at 72 degrees. Dkt. No. 49-6 at 8. At 6:55 a.m. on January 4, 2012, the temperature of the observation cells was recorded at 70 degrees. Id. at 9-10.

II. PROCEDURAL HISTORY

*4 Plaintiff commenced this action on March 8, 2012. Dkt. No. 1. Plaintiff's complaint was accompanied by an application for leave to proceed in forma pauperis ("IFP"), a motion for preliminary injunction, and a request for appointment of counsel. Dkt. Nos. 2, 4, 5. Named as defendants in plaintiff's complaint are Corrections Officers Bruce Plumley and Jeffrey Spears; Drs. Jean Berggren and S. Gillani; Joanne Waldron, a DOCCS mental health unit chief; Lester Wright, DOCCS Deputy Commissioner and Chief Medical Officer; and Corrections Lieutenant John E. Miller. Dkt. No. 1 at 2-3. Following an initial review of plaintiffs complaint and IFP application, Senior District Judge Thomas J. McAvoy entered an order on June 1, 2012, granting plaintiff IFP status, denying his motions for a preliminary injunction and appointment of counsel, and approving the filing of Nelson's complaint subject to dismissal of his claim asserted against defendants Plumley and Spear for the alleged issuance of false misbehavior reports. Dkt. No. 9.

As a result of a subsequent dismissal motion filed by the defendants, my issuance of a report and recommendation concerning that motion, and a decision and order from Senior District Judge McAvoy, issued on March 18, 2013, adopting the report, plaintiff's claims have been further narrowed. Dkt. Nos. 25, 32, 34. By virtue of those decisions and plaintiff's subsequent filing of an affidavit abandoning any claims associated with the duration of his confinement arising from the disciplinary proceeding conducted by defendant Miller, Dkt. No. 35, the claims that remain pending are (1) an excessive force cause of action asserted against defendants Plumley and Spear; (2) a conditions of confinement claim asserted against defendants Berggren and Gillani; and (3) a procedural due process cause of action asserted against defendant Miller.

On November 25, 2013, following the close of discovery, defendants moved for the entry of summary judgment. Dkt. No. 49. In their motion, defendants request (1) dismissal of plaintiff's excessive force and conditions of confinement claims based upon his alleged failure to exhaust available remedies before commencing suit, and (2) dismissal of plaintiff's conditions of confinement and procedural due process claims on the merits. See generally Dkt. No. 49-1. Plaintiff has since responded in opposition to defendants' motion. Dkt. Nos. 55, 57. 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.

*5 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. Exhaustion of Administrative Remedies

In support of their motion, defendants contend that plaintiff is procedurally barred from pursuing his excessive force and conditions of confinement causes of action based upon his alleged failure to exhaust all available administrative remedies before commencing this action. Dkt. No. 49-1 at 6-9.

The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires 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); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is... mandatory. Prisoners must now exhaust all available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983.").[5] "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete [] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir.2007).[6]

*6 In accordance with the PLRA, the DOCCS has instituted a grievance procedure, called the Inmate Grievance Program ("IGP"), and made it available to inmates. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 234898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a) (1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's inmate grievance resolution committee ("IGRC") has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b) (2).

A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal.[7] Id. at § 701.5(c)(i), (ii).

The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).

Accordingly, at each step of the IGP process, a decision must be entered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can -and must-be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).

Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir.2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).

In this case, plaintiff does not contend that he fully exhausted the available administrative remedies with respect to his excessive force and conditions of confinement claims. Rather, he maintains that his efforts to fully exhaust were thwarted by corrections officials at Clinton and at the Upstate Correctional Facility ("Upstate") following his transfer into that facility. Because there is no record evidence to suggest that plaintiff did fully exhaust the administrative remedies, I have examined only whether plaintiff's failure to exhaust may be excused.

*7 In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004); see also Macias, 495 F.3d at 41. Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through their own actions preventing the exhaustion of plaintiff's remedies, they should be estopped from asserting failure to exhaust as a defense. Id. If the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.

A review of the record in this case reveals a genuine dispute of material fact as to whether plaintiff's efforts to file grievances concerning the incidents at Clinton on January 3, 2012, were obstructed by DOCCS officials. According to plaintiff, he filed two grievances against defendants Plumley, Spear, Gillani, and Berggren while at Clinton on January 9, 2012, and January 10, 2012. Dkt. No. 57-1 at 2; Dkt. No. 55-3 at 2-3. Although the photocopies of the grievances submitted by plaintiff in opposition to the pending motion are difficult to decipher, it appears that they contain allegations that he was subjected to excessive force and cold temperatures on January 3, 2012. Dkt. No. 55-3 at 2-4. Plaintiff alleges that he provided the two grievances, which were inside a sealed envelope, to an unidentified corrections officer at Clinton responsible for collecting the mail. Dkt. No. 57-1 at 2. According to plaintiff, Christine Gregory, the Inmate Grievance Program Supervisor at Clinton, "decline[d] to respond and did not process" his grievances filed in January.[8] Id. at 3.

In contrast to plaintiff's contentions, defendants have submitted an affidavit from Gregory, in which she states that there is no record at Clinton of plaintiff filing any grievances dated January 9, 2012, or January 10, 2012. Dkt. No. 49-5 at 2. Instead, Gregory notes that, on February 15, 2012, following plaintiff's transfer into Upstate, she received a letter from plaintiff requesting the status of the two grievances allegedly filed in January 2012, while he was still confined at Clinton. Id. Gregory responded to him by memorandum, advising him that there was no record of plaintiff filing grievances dated January 9, 2012, or January 10, 2012. Dkt. No. 49-5 at 7. She further advised plaintiff that any complaints must be processed through the IGP at Upstate, the facility in which he was then confined. Id.

*8 In apparent compliance with Gregory's instruction, on or about February 16, 2012, plaintiff attempted to file his grievances concerning the incident at Clinton on January 3, 2012, to Brandi White, the Inmate Grievance Program Supervisor at Upstate. Dkt. No. 49-4 at 7-9. In a cover letter, plaintiff advised White that he had attempted to file the grievances at Clinton but "that prison made the remedy unavailable by obstructing access to the grievance process." Id. at 7. Without addressing plaintiff's allegation of obstruction to the IGP at Clinton, White wrote plaintiff a memorandum, dated February 17, 2012, advising that his grievances submitted to her at Upstate were untimely, and, in accordance with DOCCS policies, she returned the grievances to plaintiff. Id. at 13. Plaintiff again attempted to file his grievances at Upstate on February 22, 2012, and White again rejected them as untimely.[9] Id. at 3, 15. In his affidavit submitted in opposition to the pending motion, plaintiff insists that Gregory and White "intentionally inhibited and obstructed [him] from using and availing himself of the facilities ['] administrative grievance program by not processing [his] two timely filed grievance complaints." Dkt. No. 57-1 at 3.

In light of the foregoing record evidence, I find that a dispute of fact exists as to whether special circumstances exist justifying plaintiff's failure to fully exhaust the available administrative remedies prior to commencing this action.[10] The Second Circuit has said that "non-exhaustion is an affirmative defense subject to estoppel in cases where prison officials inhibit an inmate's ability to utilize administrative grievance procedures." Giano, 380 F.3d at 677 (citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004)). Although courts in this circuit have interpreted this holding to mean that only a named-defendant may be estopped from asserting the exhaustion defense, [11] other courts have extended the spirit of the holding by applying special circumstances where a non-defendant prison official interferes with an inmate-plaintiff's ability to file a grievance. See, e.g., Murray, 2010 WL 1235591, at *6 (finding an allegation "that an unspecified number of unidentified corrections officers (who are not [named-defendants]) somehow interfered with the delivery of [the plaintiff's] grievance and appeals... could constitute special circumstances justifying an inmate's failure to exhaust his available administrative remedies in certain situations"); Sandin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y.2008) (finding that the plaintiff's allegation that a prison official's "refusal to accept or forward plaintiff's appeals... effectively rendered the grievance process unavailable to [the plaintiff]" and would also constitute special circumstances). Because plaintiff has alleged that DOCCS officials (including the unidentified corrections officer at Clinton responsible for collecting mail, as well as Gregory and White) interfered with his ability to file the grievances concerning the incident at Clinton on January 3, 2012, and defendants have not provided the court with evidence to the contrary, I find that a dispute of material fact exists precluding the granting of defendants' motion with respect to their contention that plaintiff failed to exhaust the available administrative remedies prior to commencing this action. Accordingly, I recommend that the court conduct an evidentiary hearing to evaluate the issues of fact and assess plaintiff's credibility.[12] See Messa v. Goord, 652 F.3d 305, 310 (2d Cir.2011) ("[T]he Seventh Amendment does not guarantee a jury trial on factual disputes regarding administrative exhaustion under the PLRA.").

C. Conditions of Confinement

*9 Although defendants seek dismissal of plaintiffs conditions of confinement claim, asserted against defendants Berggren and Gillani, based on plaintiff's failure to exhaust administrative remedies, they also contend the claim is ripe for dismissal on the merits. Specifically, defendants maintain that, based on the record evidence, no reasonable factfinder could conclude that plaintiff was subjected to cruel and unusual punishment under the Eighth Amendment. Dkt. No. 49-1 at 7-13. Defendants also contend that defendant Berggren was not personally involved in the alleged constitutional violation, and defendant Gillani, who is allegedly responsible for plaintiff remaining naked in the RCTP observation cell for twenty-two hours, is entitled to qualified immunity from suit. Id. at 13-15.

The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society [, ]' or involve[s] the unnecessary and wanton infliction of pain [.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, ' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). A claim alleging that prison conditions have violated the Eighth Amendment must satisfy both an objective and subjective requirement. Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996). As to the objective requirement, "the plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs.'" Jolly, 76 F.3d at 480 (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.2985)); see also Walker v. Schult, 717 F.3d. 119, 125 (2d Cir.2013) ("To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health."). As to the subjective requirement, "the plaintiff must demonstrate that the defendants imposed those conditions with deliberate indifference, '" Jolly, 76 F.3d at 480 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)); see also Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; [he] 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." Farmer, 511 U.S. at 837; see also Waldo, 1998 WL 713809, at *2; Davidson, 920 F.Supp. at 308.

Without question, exposure to extreme temperatures in a prison setting can constitute cruel and unusual punishment as proscribed under the Eighth Amendment. See Benjamin v. Fraser, 343 F.3d 35, 52 (2d Cir.2003), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir2009), (affirming the district court's conclusion that "exposure to extremes of temperature violated the detainees' constitutional rights"); Gatson v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001) (finding that the plaintiff's allegation that he was exposed to freezing temperatures from November 1990 through March 1991 stated a claim under the Eighth Amendment); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir.1988) (reversing the district court's grant of summary judgment where there was evidence that the plaintiff had been deliberately exposed to bitter cold in his cell block for three months).

*10 In this instance, plaintiff maintains that, by virtue of defendant Gillani's orders to DOCCS corrections officers, he was left naked in his RCTP observation cell and subjected to "extreme[ ] cold" for a period of "twenty-two hours" between January 3, 2012, and January 4, 2012. Dkt. No. 1 at 9-10, 13; Dkt. No. 57-1 at 16. In support of their motion for summary judgment, however, defendants have submitted evidence demonstrating that (1) the temperature in Building 156, where the CNYPC satellite unit is located, is controlled by a computer system located separate from the unit, and set to between 68 and 72 degrees at all times; (2) during the twenty-two hours in question, DOCCS corrections officers independently confirmed that the temperature in the unit was within the specified range; (3) only maintenance staff is authorized and able to access the computer system controlling the temperature in Building 156, and, accordingly, neither defendant Berggren nor defendant Gillani could have altered the temperature in plaintiff's cell; and (4) after he received medical treatment following the alleged assault by defendants Plumley and Spear, plaintiff expressed suicidal ideation to defendant Gillani, who subsequently issued an order that plaintiff be denied a blanket and anything other than a smock in order to prevent any attempted self-harm. Dkt. No. 49-6 at 2, 7, 8, 9-10; Dkt. No. 49-7 at 2; Dkt. No. 50 at 4; Dkt. No. 50-1 at 4.

While the court acknowledges the parties' conflicting accounts regarding the temperature in plaintiff's cell on January 3, 2012, and whether he was provided any clothing at all on that date, even assuming plaintiff's version of the events are accurate, I find that no reasonable factfinder could conclude that plaintiff was subjected to cruel and unusual punishment by defendants Berggren and Gillani.[13] See Trammell v. Keane, 338 F.3d 155, 164-65 (2d Cir.2003) (concluding that the plaintiff "no doubt" experienced uncomfortable conditions of confinement, including, according to the plaintiff, being kept naked for a "prolonged period in bitter cold, '" but finding no constitutional violation where there was no evidence "that the cell in which he was housed was open to the elements, that it lacked adequate heat, or... that the cell was bitter cold'"); Flake v. Peck, No. 12-CV-0517, 2014 WL 1289582, at *21 (N.D.N.Y. Mar. 31, 2014) (D'Agostino, J., adopting report and recommendation by Baxter, M.J.) (finding that the plaintiff's allegations that he was subjected to bitter cold in various cells from July 2010 until January 2011 was not sufficient to defeat the defendants' motion for summary judgment where the defendants had submitted evidence that the plaintiff was given one blanket when he asked for it and maintenance checked the temperature of his cells when he complained of the temperature); Borge v. McGinnis, No. 03-CV-6375, 2007 WL 1232227, at *5-6 (W.D.N.Y. Apr. 26, 2007) (dismissing the plaintiff's conditions of confinement claim where he alleged that, for three days, he was provided only a paper gown, paper slippers, and a thin mattress in a cell maintained at approximately fifty degrees). Moreover, plaintiff's mere allegations that he was left naked in an "extremely cold cell, " without any supporting evidence, are insufficient to defeat defendants' motion, which includes evidentiary support demonstrating that plaintiff's RCTP observation cell was maintained at a reasonably warm temperature on January 3, 2012, and January 4, 2012. See BellSouth Telecomm., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir.1996) ("An adverse party may not rest upon mere conclusory allegations or denials. The party opposing the motion for summary judgment must set for concrete particulars. It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts." (quotation marks, alterations omitted); Wilson Jones v. Gilbert & Bennette Mfg. Co., 332 F.2d 216, 219 (2d Cir.1964) ("Mere conclusory affidavits that an issue exists no longer suffice to defeat well[-]grounded motions for summary judgment."). Accordingly, I recommend that the court grant defendants' motion for summary judgment with respect to plaintiff's conditions of confinement claim asserted against defendants Berggren and Gillani.

C. Procedural Due Process

*11 Defendants also seek dismissal of plaintiff's due process claim, based on their contention that plaintiff received the full panoply of rights guaranteed under the Fourteenth Amendment during the Tier III disciplinary hearing conducted by defendant Miller. Dkt. No. 49-1 at 16-21.

Under the Fourteenth Amendment, a prison inmate who is deprived of a protected liberty interest must be afforded due process of law.[14] Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well-established, and include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff v. McDonnell, 418 U.S. 539, 564-69 (1974); see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir.2004). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88.

The due process clause of the Fourteenth Amendment also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to... an impartial hearing officer. " Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996) (citing Wolff, 418 U.S. 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker 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, 570 (2d Cir.1990)."The degree of impartiality required of prison officials[, however, ] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts. " Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1996)."A hearing officer may satisfy the standard of impartiality if there is some evidence in the record' to support the findings of the hearing. "Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at *5 (W.D.N.Y. Oct. 5, 2010) (quoting Hill, 472 U.S. at 455).

Here, plaintiff alleges that he was denied due process when defendant Miller refused to call several witnesses requested by plaintiff, including defendants Berggren and Gillani, twenty-three other OMH staff, and the nurse that treated plaintiff following the alleged assault by defendants Plumley and Spear. Dkt. No. 1 at 13-16; Dkt. No. 57-1 at 19-24. According to plaintiff, those individuals may have witnessed the alleged assault. Id. Plaintiff also accuses defendant Miller of being impartial during the disciplinary hearing, and failing to afford him the opportunity to present a proper defense.[15] Id.

*12 To refute plaintiff's allegations, defendants have submitted several documents related to the disciplinary hearing, including a full transcript of the hearing that commenced on January 9, 2012. Dkt. No. 49-3 at 3. Although plaintiff initially refused assistance in preparing for the hearing, once it commenced, he reconsidered and requested assistance. Dkt. No. 49-3 at 15, 61-62. Defendant Miller adjourned the hearing at that time to permit plaintiff to meet with his assistant and prepare a defense. Dkt. No. 49-3 at 62. The assigned assistant, A. Bezzio, met with plaintiff on January 10, 2012, and submitted a request for any unusual incident report concerning the altercation between defendants Plumley and Spear and plaintiff, as well as the opportunity to review the videotape recording of plaintiff's escort to medical personnel for treatment. Dkt. No. 49-3 at 16. The assistance form filed by Bezzio did not list any potential witnesses to be interviewed. Id.

At the continuation of the hearing, on January 18, 2013, although plaintiff requested testimony from two inmates who were confined in adjoining RCTP observation cells at the time of the alleged assault, those inmates refused to testify. Dkt. No. 49-3 at 18-19, 69-71. Defendant Miller reviewed the videotape depicting plaintiff's escort to the prison hospital following the incident, and then plaintiff testified in his own defense. Id. at 63-72. After determining that live testimony should be elicited from defendants Plumley and Spear, defendant Miller again adjourned the hearing. Id. at 70.

Plaintiff's Tier III disciplinary hearing resumed on January 20, 2012. Dkt. No. 49-3 at 73. During that session, defendants Plumley and Spear testified that the incident occurred in the RCTP observation cell area and there were no staff members other than themselves in the vicinity. Dkt. No. 49-3 at 74-80. Plaintiff's disciplinary hearing was again adjourned and resumed on January 23, 2012, based on plaintiff's request that Sergeant W. Bissell, the area supervisor on the date of the incident, be called to testify. Dkt. No. 49-3 at 84-86.

During the hearing, defendant Miller addressed plaintiff's request for additional unidentified witnesses and determined that no one was present during the incident, as alleged by plaintiff. Defendant Miller based his determination, in part, on the testimony of Sergeant Bissell, who stated that when he arrived after the incident, "there was nobody on that company. "Dkt. No. 49-3 at 86. Defendant Miller also reviewed the logbook for the unit where plaintiff was housed on January 3, 2012, and concluded that no one had entered the area at or around the time of the incident, and up until after the incident.[16] Id. at 80-81. Although plaintiff requested the testimony of the nurse that treated him after the incident, defendant Miller denied that request because the nurse had not been present during the incident and therefore could not provide any relevant testimony. Id. at 87. At the conclusion of the hearing, defendant Miller provided plaintiff with a written disposition finding him guilty of all of the charges listed in the two misbehavior reports issued by defendants Plumley and Spear. Id. at 88-89. Defendant Miller based his findings based on several pieces of evidence, including the misbehavior reports authored by defendants Plumley and Spear, the unusual incident report, the use of force paperwork, employee injury reports and photos, the testimonies of defendants Plumley and Spear, and the testimony of OMH staff regarding plaintiff's mental health status at the time of the incident. Id.

*13 In light of the foregoing evidence, I conclude that plaintiff was not deprived any due process. With respect to plaintiff's request to call two inmates that may have seen or heard the altercation on January 3, 2012, "[a] hearing officer has no power to force an inmate to testify, and when the inmate refuses, the hearing officer need not call that witness. "Dumpson v. Rourke, No. 96-CV-0621, 1997 WL 610652 at *5 (N.D.N.Y. Sept. 26, 1997) (Pooler, J., adopting report and recommendation by DiBianco, M.J.) (citing Silva v. Casey, 992 F.2d 20, 21-22 (2d Cir.1993)); see also Wolff, 418 U.S. at 568-69 (recognizing prison officials' discretion to call inmates as witnesses). In addition, defendant Miller's decision not to call plaintiff's treating nurse, as requested by plaintiff, was also reasonable. It is clear from plaintiff's testimony that the nurse was not present during the alleged assault, and the record of plaintiff's injuries and treatment, coupled with the videotape reviewed by defendant Miller, adequately addressed their scope and extent. See Wolff, 418 U.S. at 566 (citing "lack of necessity" as a proper ground for refusing to call a potential witness at a disciplinary hearing). Defendant Miller's failure to call several other unidentified individuals to determine whether they had any additional information was also reasonable based on the testimonies of defendants Plumley and Spear and Sergeant Bissell, to the effect that no one else was present at the time of the altercation. See Silva, 992 F.3d at 21-22 ("[I]f a prison official, presiding over a prison disciplinary hearing, reasonably concludes that it would be futile to call a witness to testify, his refusal to do so will not constitute a violation of the prisoner's constitutional rights."). Finally, a careful review of the hearing record reveals that defendant Miller's determination was well supported by the evidence presented.

In sum, the record evidence in this case discloses that plaintiff was afforded the full extent of the procedural process due him under Wolff and its progeny, and no reasonable factfinder could conclude otherwise. Accordingly, I recommend dismissal of plaintiff's due process cause of action asserted against defendant Miller.

IV. SUMMARY AND RECOMMENDATION

Defendants' arguments concerning plaintiff's alleged failure to exhaust available administrative remedies before commencing suit present issues of fact that must be addressed during an evidentiary hearing before the question of exhaustion can be decided by the court as a matter of law. Turning to the merits of plaintiff's conditions of confinement and due process claims, I conclude that no reasonable factfinder could find that plaintiff was exposed to conditions tantamount to cruel and unusual punishment or was denied procedural due process in connection with his Tier III disciplinary hearing. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment ( Dkt. No. 49 ) be GRANTED, in part, and that plaintiff's Eighth Amendment conditions of confinement and Fourteenth Amendment procedural due process claims be DISMISSED; and it is further hereby

*14 RECOMMENDED that an evidentiary hearing be conducted pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir.2011), to address whether, with respect to his Eighth Amendment excessive force claim, plaintiff's failure to exhaust administrative remedies prior to commencing this action may be excused.

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.

Attorneys and Law Firms

Gary Franklin Robinson, Dannemora, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General of the State of New York, Cathy Y. Sheehan, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

*1 Pro se plaintiff Gary Franklin Robinson, a New York State prison inmate, has commenced this action against four employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. Though difficult to decipher, his complaint, as amended, appears to assert a procedural due process claim arising out of the issuance of a misbehavior report, an ensuing disciplinary hearing, and a resulting penalty that included six months of disciplinary special housing unit ("SHU") confinement.

In response to plaintiff's complaint, as amended, defendants have moved seeking its dismissal for failure to state a claim upon which relief may be granted. For the reasons set forth below, I recommend that defendants' motion be granted.

I. BACKGROUND [1]

Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally Amended Complaint (Dkt. No. 13). While he is now confined elsewhere, at the times relevant to his claims plaintiff was designated to the Eastern Correctional Facility ("Eastern"), located in Naponock, New York. Id. at ¶¶ 1-3.

On February 24, 2011, while plaintiff was incarcerated at Eastern, Corrections Officer J. Mundorff confiscated Uniform Commercial Code ("UCC") documents from him and thereafter issued a misbehavior report accusing him of violating prison rules, including failure to obey a direct order, lying or providing incomplete, misleading or false information, and possessing UCC materials. See Complaint (Dkt. No. 2), Attachment at p. 18 of 23.[2] A Tier III disciplinary hearing was conducted on March 2, 2011, by G. Turbush, the Assistant Deputy Superintendent for Programs at Eastern, to address those charges.[3] Id. at p. 17 of 23. At the conclusion of that proceeding, defendant Turbush found plaintiff guilty on all three counts and sentenced him to a six-month period of disciplinary SHU confinement, with a corresponding loss of recreation, packages, commissary, and telephone privileges, additionally recommending the loss of six months of good time credits. Id.

II. PROCEDURAL HISTORY

This action was commenced by the plaintiff in the United States District for the Southern District of New York on or about May 12, 2011, but was subsequently transferred to this district in light of the fact that the events giving rise to plaintiff's claims occurred here. Dkt. Nos. 2, 4. Plaintiff thereafter filed an amended complaint, as a matter of right, on October 14, 2011. Dkt. No. 13. Named as defendants in plaintiff's amended complaint are J. Mundorff, a Corrections Officer at Eastern; W. Brown, the Superintendent at Eastern; Assistant Deputy Superintendent G. Turbush; and A. Prack, DOCCS Director of Special Housing/Inmate Disciplinary Program. Id.

On December 16, 2011, Senior District Judge Thomas J. McAvoy granted plaintiff's request for leave to proceed in forma pauperis and, after reviewing his complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), (1) dismissed all claims against defendant Mundorff, without prejudice; (2) dismissed plaintiff's claims related to the alleged issuance of a false misbehavior report and of unlawful retaliation growing out of the issuance of that report; and (3) pursuant to Peralta v. Vasquez, 467 F.3d 98, 103 (2d Cir.2006), directed Robinson to advise the court as to whether he was relinquishing all claims related to the disciplinary hearing affecting the duration of his confinement, including based upon the recommended loss of good time credits. Dkt. No. 15. Following the receipt of a notice from the plaintiff concerning the latter issue, Dkt. No. 16, the court issued a second decision and order, dated February 6, 2012, dismissing any claim within plaintiff's amended complaint deemed to relate to disciplinary sanctions that could affect the duration of his confinement, but otherwise ordering the action to proceed. Dkt. No. 17.

*2 On May 10, 2012, the remaining three defendants moved for dismissal of plaintiff's amended complaint. Dkt. No. 32.In their motion, defendants argue that (1) plaintiff's conspiracy claim, to the extent such a cause of action may be contained in his amended complaint, is legally deficient on its face and also barred by the intra-corporate conspiracy doctrine; (2) plaintiff has failed to set forth facts reflecting the existence of a plausible due process cause of action; (3) plaintiff's claims against the defendants in their official capacities are precluded by the Eleventh Amendment; and (4) defendant Brown is entitled to dismissal of all claims against him based upon plaintiff's failure to allege his personal involvement in the offending conduct. Id. Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 35.

Defendants' dismissal 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. Dismissal Motion Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 127 S.Ct. 1955, 1964-65 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief."Fed.R.Civ.P. 8(a)(2); see also id. While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. 679, 129 S.Ct. at 1950.

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 R. Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.2003), cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949-50. To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (citing Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs"] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974).

*3 When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers'") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976) (internal quotations omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.2008) (citations omitted); Kaminski v. Comm'r of Oneida Cnty. Dep't of Social Servs., 804 F.Supp.2d 100, 104 (N.D.N.Y.2011)

B. Eleventh Amendment

Plaintiff's complaint in this action, as amended, names four DOCCS employees, three of whom remain as defendants in the action, both individually and in their official capacities. Defendants' motion requests dismissal of plaintiff's claims against them to the extent they are sued in their official capacities as DOCCS employees.

The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58 (1978). This absolute immunity, which states enjoy under the Eleventh Amendment, extends both to state agencies and state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest.[4] Richards v. State of New York Appellate Div., Second Dep't, 597 F.Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S.Ct. 2325, 2328-29 (1982)). To the extent that a state official is sued for damages in his official capacity, the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.[5] Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105 (1985); Hafer, 502 U.S. at 25, 112 S.Ct. at 361.

Plaintiff's damage claims against the three remaining defendants in their official capacities are, in reality, claims against the State of New York. Accordingly, they represent the type of claims against which the Eleventh Amendment protects, and are therefore subject to dismissal. Daisernia v. State of New York, 582 F.Supp. 792, 798-99 (N.D.N.Y.1984) (McCurn, J.). I therefore recommend that this portion of defendants' motion be granted, and that plaintiff's damage claims against the defendants in their roles as state employees be dismissed.

C. Procedural Due Process

At the heart of this action is plaintiff's claim that his procedural due process rights were violated during the course of proceedings leading to a finding that he violated prison rules and a corresponding period of disciplinary SHU confinement. Plaintiff maintains that his possession of the confiscated UCC documents was legitimate and that (1) Hearing Officer Turbush violated plaintiff's due process rights by failing to investigate the charges against him; (2) A. Prack contributed to the due process violation by not reviewing the record in its entirety when deciding Robinson's appeal of the hearing determination; and (3) Superintendent Brown "colluded" with defendants to deprive him of his rights. In their motion, defendants challenge the legal sufficiency of this cause of action.

*4 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); Hynes, 143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). In their motion, defendants appear to concede that plaintiff's six-month sentence of disciplinary SHU confinement could suffice to implicate a protected liberty interest under the Fourteenth Amendment, and focus instead upon the contention that plaintiff was afforded the required procedural due process in connection with that deprivation.

The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest were addressed by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 564-67, 94 S.Ct. 2963, 2978-80 (1974). Under Wolff, the constitutionally mandated protections include the right (1) to receive written notice of the charges; (2) to appear at a disciplinary hearing and present witnesses and evidence, subject to legitimate safety and penological concerns; (3) to receive a written statement by the hearing officer explaining his or her decision and the reasons for the disciplinary action being taken; and (4) in some circumstances, 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). Additionally, in order to pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must garner the support of at least "some evidence." Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454105 S.Ct. 2768, 2773 (1985).

Even when liberally construed, plaintiff's amended complaint does not allege the denial of any of the safeguards set out by the Supreme Court in Wolff as being guaranteed to inmates facing liberty interest deprivations in the context of disciplinary proceedings. Instead, Robinson appears to challenge the sufficiency of the evidence supporting the hearing officer's finding of guilt, although no specifics are offered. See generally Dkt. No. 13.

The misbehavior report issued by Corrections Officer J. Mundorff accuses Robinson of possessing UCC materials in violation of prison rules, and after having received a letter from a Deputy Superintendent of Security at the Greenhaven Correctional Facility ordering that he not use "redemption documents." Dkt. No. 2 at 19. Also referenced in that misbehavior report is a letter from the plaintiff to a senior corrections counselor alleged to contain misleading or false statements. Id.

Plaintiff does not refute these allegations. For example, he seemingly does not find fault with the hearing officer's determination that he possessed UCC documents in violation of prison rules. See Dkt. Nos. 13, 35. Instead, he appears to assert a right to possess such documents, despite the existence of a DOCCS policy prohibiting inmates from possessing them, and argues that they relate both to his efforts to collaterally challenge his underlying conviction and to a "contract between the Creditor/Plaintiff Gary Franklin and the Trade Name/Debtor GARY FRANKLIN ROBINSON, filed in the STATE OF WASHINGTON Commercial Registry as a Transmitting Utility File #XXXX-XXX-XXXX-X."[6] Dkt. No. 13 at ¶ 9. Plaintiff's contention in this regard is unsupported; the DOCCS' policies addressing inmate possession of UCC materials have withstood challenge under the First Amendment. See, e.g., Neree v. O'Hara, No. 9:09-CV-802, 2011 WL 3841551, at *7-9 (N.D.N.Y., July 20, 2011) (Baxter, J.), adopted, 2011 WL 3841553, at *2 n. 2 (N.D.N.Y. Aug. 29, 2011) (D'Agostino, J.) (concluding that such regulations are reasonably related to legitimate penological interests).[7]

*5 To be sure, plaintiff's suggestion that the UCC materials in issue could also relate to his efforts to collaterally challenge a criminal conviction give room for pause. The confiscation of an inmate's legal papers related to a legitimate, nonfrivolous legal proceeding can give rise to a claim under the First Amendment for interference with access to the courts, provided that the inmate can establish that he or she has suffered prejudice as a result of the actions of corrections officials in the pursuit of his or her legal claims. See Pacheco v. Pataki, 07-CV-850, 2010 WL 3635673, at *3 (N.D.N.Y. Sept. 9, 2010) (Scullin, J.) ("A prisoner has a constitutional right of access to the courts, which is infringed when prison officials actively interfere with a prisoner's preparation of legal documents.... [f]or the claim of denial of access to the courts to be successful, a plaintiff must allege an actual injury.").[8] In this instance, however, the documents at issue have no bearing upon any attempts by plaintiff to collaterally challenge his criminal conviction. See Osborne v. Hill, No. 05-CV-641, 2006 WL 1215084, at *5 (D.Ore. May 1, 2006) ("There is nothing in the Uniform Commercial Code which would help plaintiff[s] challenge the legality of [their] conviction[s] or the conditions of [their] confinement"); see also Rouse v. Caruso, No. 06-CV-10961, 2011 WL 918327 at *17 (E.D.Mich. Feb. 18, 2011).

Among the bases for plaintiff's due process cause of action is his contention that Hearing Officer G. Turbush failed to properly investigate the charges against him. The Fourteenth Amendment guarantees inmates the right to the appointment of an unbiased hearing officer to address a disciplinary charge. 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)). 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). The allegation that defendant Turbush failed to investigate the claims against Lewis does not suggest bias on his part. Indeed, had he conducted an investigation into the allegations against Robinson and then presided over the ensuing hearing, that dual role could have been viewed as running afoul of the Fourteenth Amendment's procedural due process guaranty. Cf. Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.1987). Simply stated, there is no requirement, as plaintiff apparently now argues, that a hearing officer assigned to preside over a disciplinary hearing conduct an independent investigation; that is simply not the role of a hearing officer.

In sum, plaintiff's amended complaint fails to set forth facts demonstrating the existence of a plausible procedural due process claim, and should therefore be dismissed on this basis.

D. Conspiracy

*6 The oblique reference to "collusion" in plaintiff's amended complaint could potentially be regarded as alleging the existence of a conspiracy among the named defendants. In their motion, defendants also seek dismissal of any such conspiracy claim deemed to be included within Robinson's complaint, as amended.

To sustain a conspiracy claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a defendant "acted in a wilful manner, culminating in an agreement, understanding or meeting of the minds, that violated the plaintiff's rights... secured by the Constitution or the federal courts."; Duff v. Coughlin, 794 F.Supp. 521, 525 (S.D.N.Y.1992); accord, Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995). Conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights do not state a claim for relief under section 1983. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983), cert. denied, 464 U.S. 857, 104 S.Ct. 177 (1983).

It should be noted that there is no independently cognizable claim of conspiracy under section 1983. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995) ("[A]lthough the pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right."); see also Graham v. City of Albany, 08-CV-0892, 2009 WL 4263510, at *12 (N.D.N.Y. Nov. 23, 2009) (Treece, M.J.) (dismissing the plaintiff's conspiracy claim because "she identifies no underlying constitutional violation or injury"). In this instance, since I have already concluded that plaintiff's procedural due process cause of action is deficient and no other constitutional claim is set forth in his complaint, there is no longer any civil rights deprivation in the case to support a conspiracy cause of action.[9], [10]

E. Whether to Permit Amendment

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant "without granting leave to amend at least once" if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991) (emphasis added); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (granting leave to replead where court could not say that under no circumstances would proposed claims provide a basis for relief). The court must next determine whether plaintiff is entitled to the benefit of this general rule, given the procedural history of the case.

While plaintiff's damage claim against defendants in their official capacities is hopelessly fatal, as is his conspiracy cause of action based upon the intra-corporate conspiracy doctrine, it is conceivable that he could state facts demonstrating the existence of a plausible due process claim against all or some of the defendants in their individual capacities. I therefore recommend that he be afforded an opportunity to file a second amended complaint, if desired, to include facts that could support such cause of action. He should be advised, however, that the law in this circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y.1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 23, 1995) (Pooler, D.J.). In his second amended complaint, plaintiff therefore must clearly set forth the facts that give rise to the claim, including the dates, times and places of the alleged underlying acts. In addition, the revised pleading should specifically allege facts demonstrating the specific involvement of each of the named defendants in the constitutional deprivations alleged in sufficient detail to establish the they were tangibly connected to those deprivations. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). Any such second amended complaint will replace the existing amended complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. Fed.R.Civ.P. 10(a); see Harris v. City of N.Y., 186 F.3d 243, 249 (2d Cir.1999) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)).

IV. SUMMARY AND RECOMMENDATION

*7 The primary thrust of plaintiff's complaint in this action, as amended and narrowed by an earlier court decision dismissing his false misbehavior report and retaliation claims, concerns the claim that his due process rights were violated when he was disciplined, following a hearing, for violating prison rules. Because plaintiff's amended complaint is lacking in facts demonstrating the existence of a plausible procedural due process claim, I recommend that it be dismissed, with leave to amend.

Based upon the foregoing it is hereby

RECOMMENDED that defendants' motion to dismiss (Dkt. No. 32) be GRANTED, and that plaintiff's amended complaint be DISMISSED, with leave to replead only with respect to plaintiff's procedural due process claim against the defendants in their individual capacities.

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.

Appendix

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff filed a complaint accusing defendants with kidnapping plaintiff and her daughter, torturing plaintiff in the Mayo Clinic, and causing plaintiff and her daughter to suffer physically, financially, and emotionally. Certain defendants sought vacation of the defaults entered against them without proper service, some sought dismissal of the complaint, and some sought both vacation of the defaults and dismissal.

*8 OVERVIEW: Plaintiff served defendants by certified mail. The court determined that such service was not authorized under federal law or under either New York or Minnesota law. Additionally, plaintiff's extraterritorial service of process was not effective under Fed.R.Civ.P. 4(k). Defendants were not subject to federal interpleader jurisdiction, and they were not joined pursuant to Fed.R.Civ.P. 14 or Fed.R.Civ.P. 19. No federal long-arm statute was argued as a basis for jurisdiction, and the alleged harm did not stem from acts in New York for jurisdiction under N.Y. C.P. L.R. § 302(a). The complaint showed no basis for subject matter jurisdiction against defendants that were insurance companies with no apparent relationship to claims of rape, torture, harassment, and kidnapping, and the court found that no basis for supplemental jurisdiction under 28 U.S.C.S. § 1367(a) existed. Venue was clearly improper under 28 U.S.C.S. § 1391(b) because no defendant resided in the district and none of the conduct complained of occurred there. Plaintiff's claims of civil rights violations were insufficient because her complaint was a litany of general conclusions, not specific allegations of fact.

OUTCOME: The court vacated all defaults. The court dismissed plaintiff's complaint against all moving and nonmoving defendants. The dismissal of the complaint against certain defendants premised on the court's lack of power either over the person of the defendant or the subject matter of the controversy was without prejudice, but dismissals against the remaining defendants were with prejudice. Requests for sanctions and attorney's fees were denied.

LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Service of Process > Methods > Residential Service

Civil Procedure > Pleading & Practice > Service of Process > Methods > Service Upon Agents

Governments > Federal Government > Employees & Officials

[HN1] Under the Federal Rules of Civil Procedure, service on an individual may be made by (1) delivery to the named defendant; or (2) delivery to a person of suitable age and discretion at the defendant's dwelling house or usual place of abode; or (3) delivery to an agent authorized by law or by the defendant to receive service of process. Fed.R.Civ.P. 4(e)(2). Service on an individual also can be accomplished through a method authorized by the state in which the district court sits or in which the individual is located. Fed.R.Civ.P. 4(e)(1).

Business & Corporate Law > Agency Relationships > Agents Distinguished > General Overview

Civil Procedure > Pleading & Practice > Service of Process > Methods > Mail

Civil Procedure > Pleading & Practice > Service of Process > Methods > Service Upon Corporations

[HN2] Service on a corporation may be accomplished in a judicial district of the United States (1) pursuant to a method authorized by the law of the state in which the court sits or in which the corporation is located; or (2) by delivering a copy of the summons and complaint to an officer, managing or general agent, or to any other agent authorized by statute to receive service and, if the statute so requires, by also mailing a copy to the defendant. Fed.R.Civ.P. 4(h)(1), i4(e)(1).

*9 Civil Procedure > Pleading & Practice > Service of Process > Methods > General Overview

[HN3] Neither New York nor Minnesota law authorizes personal service on an individual or corporation by certified mail. N.Y. C.P.L.R. §§ 308, 311 (Supp.1995); N.Y. Bus. Corp. Law § 306 (Supp.1995); Minn.Stat. § 543.08 (1995); Minn. R. 4.03 (1995).

Civil Procedure > Pleading & Practice > Service of Process > Methods > Mail

Civil Procedure > Pleading & Practice > Service of Process > Time Limitations > General Overview

Governments > Local Governments > Claims By & Against

[HN4] Service on states, municipal corporations, or other governmental organizations subject to suit can be effected by (1) delivering a copy of the summons and complaint to the state's chief executive officer; or (2) pursuant to the law of the state in which the defendant is located. Fed.R.Civ.P. 4(j)(2). Minnesota law does not authorize service on a governmental entity by certified mail. Minn. R. 4.03(d), (e) (1995).

Civil Procedure > Jurisdiction > Personal Jurisdiction & In Rem Actions > In Personam Actions > General Overview

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

Civil Procedure > Parties > Interpleaders > General Overview

[HN4] A plaintiff's extraterritorial service of process in New York can be effective only under any of the following circumstances: (1) if defendants could be subjected to the jurisdiction of a court of general jurisdiction in New York state; (2) if the defendant is subject to federal interpleader jurisdiction; (3) if the defendant is joined pursuant to Fed.R.Civ.P. 14 or Fed.R.Civ.P. 19 and is served within a judicial district of the United States and not more than 100 miles from the place from which the summons issues; (4) if a federal statute provides for long-arm jurisdiction; or (5) if plaintiff's claims arise under federal law and the defendants could not be subject to jurisdiction in the courts of general jurisdiction in any state of the United States. Fed.R.Civ.P. 4(k).

Civil Procedure > Jurisdiction > Personal Jurisdiction & In Rem Actions > In Personam Actions > General Overview

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

[HN6] N.Y. C.P.L.R. §302(a) provides that in order to obtain jurisdiction over a non-domiciliary, the plaintiff must show both certain minimal contacts between the defendant and the state such as transacting any business in the state and that the harm plaintiff suffered springs from the act or presence constituting the requisite contact.

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Supplemental Jurisdiction > Pendent Claims

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Supplemental Jurisdiction > Same Case & Controversy

*10 [HN7] 28 U.S.C.S. § 1367(a) requires a relationship between the state and federal claims for pendent jurisdiction so that they form part of the same case or controversy.

Civil Procedure > Jurisdiction > Diversity Jurisdiction > Citizenship > General Overview

Civil Procedure > Venue > Multiparty Litigation

[HN8] See 28 U.S.C.S. § 1391(a).

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Federal Questions > General Overview Civil Procedure > Venue > Multiparty Litigation

[HN9] See 28 U.S.C.S. § 1391(1).

Civil Procedure > Venue > Federal Venue Transfers > Improper Venue Transfers

Civil Procedure > Venue > Individual Defendants

Civil Procedure > Venue > Multiparty Litigation

[HN10] Where venue is laid in the wrong district, the court shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 28 U.S.C.S. § 1406(a).

Civil Procedure > Venue > Motions to Transfer > General Overview

Civil Procedure > Judicial Officers > Judges > Discretion

Governments > Legislation > Statutes of Limitations > General Overview

[HN11] The purpose of the court's discretionary authority to transfer rather than dismiss in cases of improperly laid venue is to eliminate impediments to the timely disposition of cases and controversies on their merits.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss

[HN12] Where a court has already dismissed against the moving parties on jurisdictional grounds, it has no power to address a Fed.R.Civ.P. 12(b)(6%) issue.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims

Civil Rights Law > General Overview

[HN13] Complaints that rely on civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights instead of a litany of general conclusions that shock but have no meaning.

Civil Procedure > Parties > Self-Representation > Pleading Standards

[HN14] A pro se plaintiff's complaint must be construed liberally and should be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims

Civil Procedure > Pleading & Practice > Pleadings > Amended Pleadings > General Overview

Civil Procedure > Parties > Self-Representation > Pleading Standards

[HN15] Even pro se complaints must show some minimum level of factual support for their claims.

Civil Procedure > Parties > Self-Representation > General Overview

Civil Procedure > Counsel > Appointments

Civil Rights Law > Prisoner Rights > Prison Litigation Reform Act > Claim Dismissals

*11 [HN16] The United States Supreme Court explicitly has acknowledged a district court's power under 28 U.S.C.S. § 1915(d) to dismiss as frivolous a complaint that lacks an arguable basis either in law or in fact. The Supreme Court has explicitly declined to rule, however, on whether a district court has the authority to dismiss sua sponte frivolous complaints filed by non-indigent plaintiffs. The law in the district of New York is that a district court may sua sponte dismiss a frivolous complaint even if the plaintiff has paid the filing fee.

COUNSEL: [*1] HUBERT H. HUMPHREY, III, Attorney General of the State of Minnesota, Attorney for Hubert H. Humphry, III, Judicial System of the State of Minnesota, St. Peter Regional Treatment Center, Gerald Gammell, MD, William Erickson, MD, Thomas Stapleton, MD, the Honorable James L. Mork, Chief Judge Anne Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge Dennis Challeen, and Judge Lawrence Collins, St. Paul, MN, OF COUNSEL: JEROME L. GETZ, Assistant Attorney General.

CONDON & FORSYTH, P.C., Attorneys for British Airways, P.L.C. and Kuwait Airways Corp., New York, NY, OF COUNSEL: STEPHEN J. FEARON, ESQ., MICHAEL J. HOLLAND, ESQ.

DUNLAP & SEEGER, P.C., Attorneys for Olmsted County, Raymond Schmitz, Susan Mundahl, Norwest Bank Minnesota, N.A. (the Northwest Bank & Trust), C.O. Brown Agency, Inc., Rochester, MN, OF COUNSEL: GREGORY J. GRIFFITHS, ESQ.

ARTHUR, CHAPMAN, McDONOUGH, KETTERING & SMETAK, P.A., Attorneys for J.C. Penney Insurance Co. and Metropolitan Insurance Co., Minneapolis, MN, OF COUNSEL: EUGENE C. SHERMOEN, JR., ESQ.

SHAPIRO & KREISMAN, Attorneys for Metmor Financial, Inc., Rochester, NY, OF COUNSEL: JOHN A. DiCARO, ESQ.

COSTELLO, COONEY & FEARON, Attorneys [*2] for Travelers Insurance Companies; Hirman Insurance; Commercial Union Insurance Companies, Syracuse, NY, OF COUNSEL: PAUL G. FERRARA, ESQ., ROBERT J. SMITH, ESQ.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., Attorneys for American States Insurance Co. and Prudential Insurance Co., Syracuse, NY, OF COUNSEL: THOMAS N. KAUFMANN, ESQ.

STEVEN C. YOUNGQUIST, ESQ., Pro Se, Rochester, MN.

THOMAS J. MARONEY, United States Attorney, Attorney for Michael Benson, Postmaster, Northern District of New York, Syracuse, NY, OF COUNSEL: WILLIAM F. LARKIN, Assistant United States Attorney.

GEORGE F. RESTOVICH & ASSOCIATES, Attorneys for George F. Restovich, Esq., Rochester, MN, OF COUNSEL: GEORGE F. RESTOVICH, ESQ.

CONBOY, McKAY, BACHMAN & KENDALL, L.L.P, Attorneys for Western Union, Watertown, NY, OF COUNSEL: GEORGE K. MYRUS, ESQ.

RICHARD MAKI, Pro Se, Rochester, MN.

JUDGES: ROSEMARY S. POOLER, UNITED STATES DISTRICT JUDGE

OPINION BY: ROSEMARY S. POOLER

OPINION

MEMORANDUM-DECISION AND ORDER INTRODUCTION

In the four and one-half months since she filed this action, plaintiff Mina Pourzandvakil has filed three amended complaints and ten motions. She also has sought and received [*3] entry of default against ten defendants, none of whom she properly served. She twice has sought and been denied temporary restraining orders. She has included in her action defendants with no apparent connection to this forum, that were vindicated in actions she brought in other forums.

*12 In response, several individual defendants and groups of defendants have filed a total of twelve motions, some seeking vacation of the defaults entered against them, some seeking dismissal and others seeking both. We grant defendants' motions insofar as they seek vacation of the clerk's entries of default and dismissal of the complaint. We vacate sua sponte the entries of default against the non-moving defendants. Finally, we dismiss the complaint in its entirety against all defendants.

BACKGROUND

Pourzandvakil commenced this action by filing a complaint in the Office of the Clerk on December 9, 1994 (Docket No. 1). The complaint named as defendants the Attorney General of the State of Minnesota, the State of Minnesota and Olmsted County, Minnesota judicial systems, various Minnesota judges and prosecutors, St. Peter State Hospital in Minnesota and various doctors who worked at St. Peter's. [*4] Without specifying the time or defendant involved, the complaint accused the defendants of kidnapping Pourzandvakil and her daughter, torturing Pourzandvakil in the Mayo Clinic since April 1985, and causing Pourzandvakil and her daughter to suffer physically, financially and emotionally. Pourzandvakil twice requested that we issue a temporary restraining order. We denied both requests. See Order entered December 14, 1994 (Docket No. 4) and Memorandum-Decision and Order entered December 22, 1994 (Docket No. 6).

On December 27, 1994, Pourzandvakil filed an amended complaint (the "first amended complaint") (Docket No. 7) that appears to differ from the original complaint by adding British Airways as a defendant without making any allegations against British Airways. The first amended complaint also differs by requesting additional damages for prior cases and adding descriptions of several previous cases. Annexed to the first amended complaint is another document labeled amended complaint (the "annexed amended complaint") (Docket No. 7) whose factual allegations differ substantially from both the original complaint and the first amended complaint. The annexed amended complaint also [*5] adds British Airways as a party but specifies only that Pourzandvakil has travelled on that airline and that British Airways, along with other airlines on which Pourzandvakil has travelled, is aware of all the crimes committed against her.

Pourzandvakil filed yet another amended complaint on January 13, 1995 (the "second amended complaint") (Docket No. 11). The second amended complaint adds as defendants several banks, other financial institutions, insurance companies, insurance agents or brokers, attorneys and airlines as well as the Postmaster of Olmsted County and Western Union. The allegations against these defendants defy easy summarization and will be addressed only insofar as they are relevant to the various motions.

The Clerk of the Court has entered default against the following defendants: J.C. Penny Insurnce ( sic )2 ("J.C.Penney"), British Airways, Kowate ( sic ) Airline ("Kuwait"), MSi Insurnce ( sic ) ("MSI"), Judge Mork, Steven Youngquist ("Youngquist"), Prudncial Insurnce ( sic ) ("Prudential"), Ford Motor Credit ("Ford"), First Bank Rochester, and TCF Bank ("TCF"). Based on the submissions Pourzandvakil made in support of her requests for entry of default, [*6] it appears that she served these defendants by certified mail.

*13 The court has received answers from the following defendants: Hubert H. Humphrey III, St. Peter Regional Treatment Center, and Drs. Gerald H. Gammell, William D. Erickson, and Thomas R. Stapleton (joint answer filed January 9, 1995); Olmsted County, Ray Schmitz ("Schmitz"), Susan Mundahl ("Mundahl"), C.O. Brown Agency, Inc. ("C.O.Brown") (answer to amended complaint filed January 23, 1995); George Restovich ("Restovich") (answer to complaint or amended complaint filed January 30, 1995); Norwest Corporation ("Norwest") (answer to amended complaint filed January 31, 1995, amended answer of Norwest Bank Minnesota, N.A. to amended complaint filed February 13, 1995); Travelers Insurance Company ("Travelers") (answer filed February 1, 1995); Michael Benson ("Benson") (answer filed February 6, 1995); Hirman Insurance ("Hirman") (answer filed February 6, 1995); Richard Maki ("Maki") (answer to complaint or amended complaint filed February 17, 1995); Western Union (answer filed February 21, 1995); Steven C. Youngquist ("Youngquist") (answer to complaint or amended complaint filed February 23, 1995); Kuwait (answer filed March [*7] 6, 1995); J.C. Penney (answer filed March 22, 1995); Susan E. Cooper (answer to amended complaint filed March 24, 1995); and Chief Judge Anne Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge Dennis Challeen and Judge Lawrence Collins (joint answer filed April 3, 1995).

2 Plaintiff's spelling is idiosyncratic, and we preserve the spelling in its original form only where absolutely necessary for accuracy of the record. Otherwise we substitute the word we believe plaintiff intended for the word she actually wrote, e.g., "tortured" for "tureared."

The court has also received a total of ten motions from Pourzandvakil since February 27, 1995. She moved for a default judgment against defendants J.C. Penney, First Bank Rochester, Prudential, Ford, MSI, British Airways, and TCF. She moved for immediate trial and "venue in a different place" against several defendants and also requested action according to law and criminal charges. Finally, she made motions opposing defendants' motions.

3 Susan E. Cooper is not named as a defendant in the original complaint or any amended complaint filed with this court. From correspondence with Cooper's attorney, it appears that plaintiff sent Cooper a copy of a different version of the complaint. Because the original of this version was not filed with the court, no action against Cooper is pending in this court.

[*8] The court also has received a total of thirteen motions ° from defendants. Several of the defendants moved for dismissal either under Rule 56 or Rule 12 of the Federal Rules of Civil Procedure. For instance, Commercial Union Insurance Companies ("Commercial") moved for dismissal of Pourzandvakil's complaint pursuant to Fed.R.Civ.P. 12(b) or, in the alternative, for a more definite statement. Commercial argued that Pourzandvakil's complaint against it is barred by res judicata and collateral estoppel and that this court does not have subject matter jurisdiction over the complaints against Commercial. American States Insurance Company ("ASI") moved for dismissal based on plaintiff's failure to state a claim upon which relief can be granted. ASI further moved for an order enjoining Pourzandvakil from further litigation against it. Maki moved for summary judgment based on lack of personal jurisdiction, improper venue, plaintiff's failure to state a claim upon which relief can be granted, and lack of subject matter jurisdiction. Hubert H. Humphrey, III, the Judicial System of the State of Minnesota, Judge James L. Mork, St. Peter Regional Treatment Center and Drs. Gammell, Erickson [*9] and Stapleton (collectively, the "state defendants") moved for summary judgment alleging lack of personal jurisdiction, improper venue, plaintiff's failure to state a claim on which relief can be granted, lack of subject matter jurisdiction, sovereign immunity, and, on behalf of Judge Mork and the judicial system, absolute judicial immunity. The state defendants also requested costs and attorney's fees. Travelers moved for summary judgment based on res judicata and/or collateral estoppel, frivolity, lack of subject matter jurisdiction, and improper venue. Travelers sought a transfer of venue to Minnesota in the alternative. Hirman moved for summary judgment based on frivolity, lack of subject matter jurisdiction, and improper venue. Hirman also sought transfer of venue in the alternative. Olmsted County, Schmitz, Mundahl, C.O. Brown and Norwest sought dismissal based on lack of personal jurisdiction, improper venue, and plaintiff's failure to state a claim upon which relief can be granted. With respect to Schmitz and Mundahl, defendants sought dismissal based on absolute prosecutorial immunity, and with respect to C.O. Brown, defendants sought dismissal on res judicata grounds. [*10] Metmor Financial, Inc. ("Metmor") sought dismissal based on lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and plaintiff's failure to state a claim upon which relief can be granted. Finally, Restovich moved for dismissal based on lack of personal jurisdiction.5

*14 4 The court has also received three additional motions returnable May 22, 1995. The first-from Judges Davies, Klaphake, Challeen, Collins and Chief Judge Simonett requests summary judgment dismissing the complaint based on lack of personal jurisdiction. The second by Western Union also requests summary judgment based, inter alia, on plaintiff's failure to state a claim on which relief can be granted. The third, by British Airways, also requests dismissal based, inter alia, on plaintiff's failure to state a claim on which relief can be granted. All three motions are mooted by this memorandum-decision and order which dismisses the complaint in its entirety against nonmoving defendants for failure to state a claim on which relief can be granted.
5 The court also received an affidavit and memorandum of law in support of summary judgment from J.C. Penney. However, the documents were not accompanied by a notice of motion.

[*11] Four defendants, British Airways, Kuwait, Prudential, and Youngquist, sought vacatur of the defaults entered against them. Prudential coupled its request with a request for an order enjoining plaintiff from filing or intervening in any litigation against it. Youngquist also requested dismissal of the complaint based on lack of personal jurisdiction and lack of subject matter jurisdiction.

ANALYSIS

The Defaults

We vacate the defaults entered in this matter because plaintiff improperly served defendants. Each application for entry of default shows service by certified mail, which is not permitted by relevant federal, New York or Minnesota rules. [HN1] Under the Federal Rules of Civil Procedure, service on an individual may be made by (1) delivery to the named defendant; or (2) delivery to a person of suitable age and discretion at the defendant's dwelling house or usual place of abode; or (3) delivery to an agent authorized by law or by the defendant to receive service of process. Fed.R.Civ.P. 4(e)(2). Service on an individual also can be accomplished through a method authorized by the state in which the district court sits or in which the individual is located. Fed. [*12] R. Civ. P. 4(e)(1). [HN2] Service on a corporation may be accomplished in a judicial district of the United States (1) pursuant to a method authorized by the law of the state in which the court sits or in which the corporation is located; or (2) by delivering a copy of the summons and complaint to an officer, managing or general agent, or to any other agent authorized by statute to receive service and, if the statute so requires, by also mailing a copy to the defendant. Fed.R.Civ.P. 4(h) (1) and 4(e)(1). [HN3] Neither New York nor Minnesota law authorizes personal service on an individual or corporation by certified mail. See N.Y. Civ. Prac. L. & R. §§ 308, i311 (McKinney Supp.1995); N.Y. Bus. Corp. Law § 306 (McKinney Supp.1995); Minn.Stat. § 543.08 (1995); Minn. R. 4.03 (1995). Finally, [HN4] service on states, municipal corporations or other governmental organizations subject to suit can be effected by (1) delivering a copy of the summons and complaint to the state's chief executive officer; or (2) pursuant to the law of the state in which the defendant is located. Fed.R.Civ.P. 4(j) (2). Minnesota law does not authorize service on a governmental entity by certified mail. See Minn. [*13] R. 4.03(d) and (e) (1995).

*15 We therefore grant the motions by British Airways, Prudential, Kuwait, and Youngquist to vacate the defaults entered against them based both on the defective service and also on the meritorious defenses discussed below. We vacate sua sponte the entries of default against MSI, Ford, First Bank Rochester and TCF, all of whom were served improperly and preserved the service issue by raising it or declining to waive it. Concomitantly, we deny Pourzandvakil's motion for a default judgment against J.C. Penney, First Bank Rochester, Prudential, Ford, MSI, British Airways and TCF. We vacate sua sponte the entry of default against J.C. Penney, which preserved the issue of service in its answer. By moving to dismiss or for summary judgment without raising the issue of service, Judge Mork may have waived the service issue. However Judge Mork objected to personal jurisdiction as inconsistent with due process and otherwise presented meritorious defenses. We therefore treat his motion for summary judgment as including a motion to vacate the entry of default and accordingly grant it.

II. The Jurisdictional Arguments

In addition to raising various [*14] other grounds for dismissal, such as plaintiff's failure to state a claim on which relief can be granted and res judicata, most of the moving defendants urge (1) that this court lacks jurisdiction over either their persons or the subject matter of the controversy or (2) that this action is improperly venued. As we must, we examine jurisdiction and venue first.

A. Personal Jurisdiction

Maki, the state defendants, Olmsted County, Schmitz, Mundahl, C.O. Brown, Norwest, Metmor, Restovich and Youngquist each allege that this court cannot exercise personal jurisdiction over them consistent with due process constraints. In support of their motions, these defendants present affidavits showing that they have had no significant contacts with the state of New York relevant to this lawsuit and that their contacts with Pourzandvakil all occurred in Minnesota. Nothing in plaintiff's voluminous submissions links any of these defendants with New York. [HN5] Plaintiff's extraterritorial service of process can be effective only under any of the following circumstances: (1) if defendants could be subjected to the jurisdiction of a court of general jurisdiction in New York State; (2) if the defendant [*15] is subject to federal interpleader jurisdiction; (3) if the defendant is joined pursuant to Rule 14 or Rule 19 of the Federal Rules of Civil Procedure and is served within a judicial district of the United States and not more than 100 miles from the place from which the summons issues; (4) if a federal statute provides for long-arm jurisdiction; or (5) if plaintiff's claims arise under federal law and the defendants could not be subject to jurisdiction in the courts of general jurisdiction in any state of the United States. Fed.R.Civ.P. 4(k). Defendants are not subject to federal interpleader jurisdiction and they were not joined pursuant to Rule 14 or Rule 19. In addition, no federal long-arm statute is argued as a basis for jurisdiction, and the moving defendants all would be subject to jurisdiction in Minnesota. Therefore, we must look to New York's long-arm statute to determine whether plaintiff's extraterritorial service of process could be effective under the one ground remaining pursuant to Rule 4(k). See N.Y. Civ. Prac. L. & R. § 302 (McKinney Supp.1995). [HN6] This rule provides that in order to obtain jurisdiction over a non-domiciliary, the plaintiff must show both certain [*16] minimal contacts between the defendant and the state (such as transacting any business in the state) and that the harm plaintiff suffered springs from the act or presence constituting the requisite contact. Id. § 302(a). The moving defendants have demonstrated that plaintiff does not claim harm stemming from acts or contacts within the purview of Section 302(a). Therefore, we grant these defendants' motions to dismiss the complaint for lack of personal jurisdiction.

B. Subject Matter Jurisdiction

*16 Pourzandvakil's complaint does not contain the jurisdictional allegations required by Fed.R.Civ.P. 8(a)(1). Several defendants move for dismissal based either on this pleading defect or on an affirmative claim that no subject matter jurisdiction exists. Commercial, Travelers and Hirman (collectively, the "moving insurance companies") moved for dismissal because plaintiff has not pled the complete diversity of citizenship required for subject matter jurisdiction. The state defendants, relying on District of Columbia Court of Appeals v. Feldman, argue that we lack subject matter jurisdiction over any issue that was determined in a state court proceeding to which plaintiff [*17] was a party. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 75 L.Ed.2d 206, 103 S.Ct. 1303 (1983) . These issues include plaintiff's hospitalization at St. Peter Regional Treatment Center. Finally, Metmor also moved for dismissal based on lack of subject matter jurisdiction because plaintiff has failed to plead a jurisdictional basis.

The moving insurance companies note correctly that insofar as the claims against them can be deciphered, plaintiff states that Traveler's and Commercial did not pay for damages to Pourzandvakil's property, harassed her and cancelled her policy. Pourzandvakil does not mention Hirman in her complaint, but Hirman's attorney states that Pourzandvakil informed him in a telephone conversation that her complaint against Hirman stemmed from actions it took as an agent of Travelers in denying Pourzandvakil's 1985 property damage claim.

The moving insurance companies argue that this court has no jurisdiction over the state insurance law claims absent complete diversity of citizenship between plaintiff and the defendants. 28 U.S.C. § 1332. They point out that plaintiff lists a Syracuse, New York address for herself and that Kuwait's [*18] address as listed in the complaint is also in New York. Therefore, they argue, there is no complete diversity and this court lacks subject matter jurisdiction absent a basis for pendent jurisdiction under 28 U.S.C. § 1367(a). Section 1367(a) [HN7] requires a relationship between the state and federal claims so that "they form part of the same case or controversy."Id. Because plaintiff's claims of denial of insurance coverage bear no apparent relationship to her other claims of rape, torture, harassment and kidnapping, we do not believe that an adequate basis for supplemental jurisdiction exists .Id. Plaintiff's complaint therefore shows no basis for subject matter jurisdiction against the moving insurance companies, and we dismiss as against them.6

6 We ordinarily would offer plaintiff an opportunity to amend her complaint because her submissions and Kuwait's answer indicate two bases on which plaintiff might be able to argue diversity of citizenship. First, although plaintiff lists her address in Syracuse, New York, she also has indicated on the civil cover sheet that she is an Iranian Citizen and we are not aware of her residence status. As a permanent resident, she would be deemed a citizen of the state in which she resides. 28 U.S.C. § 1332(a). However, if she lacks permanent resident status, her citizenship would be considered diverse from that of all the defendants. Id. § 1332(a) (2). Second, Kuwait has submitted an answer in which it claims to be a foreign state within the meaning of 28 U.S.C. § 1603. If Kuwait is correct, plaintiff may have an independent basis for jurisdiction over Kuwait. See 28 U.S.C. § 1330. If Pourzandvakil could show subject matter jurisdiction over Kuwait without resort to diversity of citizenship, then Kuwait's residence in New York may not be relevant to the issue of whether this court has diversity jurisdiction under Section 1332. Cf. Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508, 1511-1512 (11th Cir.1989), cert. denied, 131 L.Ed.2d 219, 115 S.Ct. 1362 (1995) (holding that the joinder of a non-diverse defendant sued under federal question jurisdiction did not destroy diversity as to the remaining defendant). Here, however, plaintiff's complaint is subject to so many other meritorious defenses-including complete failure to state a cause of action-that an amendment would be an exercise in futility. Additionally, plaintiff has not requested permission to amend, proffered an amended pleading, or indeed even supplied an affidavit stating her residency status or alleging a basis of jurisdiction over her claims against Kuwait other than diversity under 28 U.S.C. § 1332.

*17 [*19] We also agree with the state defendants that state court decisions may render certain of plaintiff's claims against them unreviewable either because of res judicata or lack of subject matter jurisdiction. However, because plaintiff's claims are so generally stated and so lacking in specifics, we are unable to discern at this juncture what parts of her complaint would be outside the jurisdiction of the court. In any case, we already have determined that the state defendants are clearly entitled to dismissal on personal jurisdiction grounds. As for Metmor, we believe that plaintiff may be attempting to state a civil rights claim by alleging a conspiracy to murder in connection with a judge although she fails to articulate an actionable claim. We note that we already have determined, in any case, that Metmor is entitled to dismissal on personal jurisdiction grounds.

C. Venue

Metmor, Travelers, Maki, Hirman, Norwest, Olmsted County, C.O. Brown, Schmitz and Mundahl also allege that Pourzandvakil's action is not properly venued in this court. Although these defendants are entitled to dismissal on independent grounds, improper venue also would support dismissal as to these defendants. [*20] The general venue statute provides that a diversity action, except as otherwise provided by law, may be brought only in

[HN8] (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(a).Section 1391(b) provides that federal question actions, except as otherwise provided by law, may be brought only in

[HN9] (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

[*21] Id. § 1391(b). The majority of the defendants in this action are residents of Minnesota and all of the events of which Pourzandvakil complains occurred in Minnesota. No defendant resides in the Northern District of New York, and none of the conduct plaintiff complains of occurred in this district. Therefore, venue in the Northern District of New York is clearly improper. [HN10] Where venue is laid in the wrong district, the court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Id. § 1406(a). Because, as we will explain below, Pourzandvakil's complaint not only fails to state a claim upon which relief can be granted but is also frivolous, we do not deem it to be in the interest of justice to transfer this case to another district. [HN11] The purpose of the court's discretionary authority to transfer rather than dismiss in cases of improperly laid venue is "to eliminate impediments to the timely disposition of cases and controversies on their merits ." Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993) (holding that it was an improper exercise of discretion to dismiss rather than transfer [*22] when the statute of limitations on a timely filed complaint ran between filing and dismissal). In this case, as discussed below, a review of the complaint and the plaintiff's submissions on these motions indicates that her claims are frivolous. We therefore dismiss as to the moving defendants both on venue grounds and on the other grounds already identified as applicable. We note also that plaintiff has made claims similar to those in this action against many of the same defendants in the United States District Court for the District of Minnesota. Pourzandvakil v. Price, Civ No. 4-93-207 (D.Minn.1993). This action was dismissed by Order to Show Cause entered April 12, 1993.

III. Failure to State a Claim on Which Relief Can be Granted and Frivolity

*18 Defendants ASI, Travelers, Hirman, Norwest, C.O. Brown, Olmsted County, Schmitz, Mundahl, Prudential, Metmor, and Youngquist as well as the state defendants have attacked the sufficiency of plaintiff's complaint. Travelers and Hirman urge that the complaint is frivolous while the remaining defendants argue only that the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). [HN12] We already [*23] have dismissed against all the moving parties except ASI on jurisdictional grounds and therefore have the power to address the Rule 12(b)(6) issue only on ASI's motion. See Bell v. Hood, 327 U.S. 678, 682-83, 90 L.Ed. 939, 66 S.Ct. 773 (1946) (subject matter jurisdiction); Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (personal jurisdiction). We grant ASI's motion and note in passing that were we empowered to reach the merits regarding the remaining moving defendants, we also would dismiss the complaint against them for failure to state a claim upon which relief can be granted. We also dismiss sua sponte as frivolous the complaint against all defendants who have not been granted dismissal previously on jurisdictional grounds.

7 J.C. Penney also submits an affidavit requesting dismissal on this basis and others, but has not filed or served a notice of motion.

Pourzandvakil has not specified a statutory or constitutional basis for her claims against ASI or any of the other [*24] defendants. She alleges that certain of the insurance company defendants denied her claims for damages without alleging that the denial was in any respect wrongful. She also alleges in general terms that the defendants harassed, tortured, kidnapped and raped her and perhaps were involved in a murder plot but does not supply (1) the dates on which these actions occurred, except to say that they began in 1984 and 1985; (2) the names of the specific defendants involved in any particular conduct; or (3) a description of any particular conduct constituting the harassment, torture or kidnapping. She suggests without further detail that ASI was involved in a plot to murder her by placing her in the Mayo Clinic. Although plaintiff does not allege specific constitutional provisions or statutes that defendants have violated, we assume-largely because many of the defendants involved are state officials or state employees and she appears to complain of certain aspects of various trials- that she wishes to complain of violations of her civil rights. [HN13] Complaints that rely on civil rights statutes are insufficient unless "they contain some specific allegations of fact indicating a deprivation [*25] of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987) . [HN14] A pro se plaintiff's complaint must be construed liberally and should be dismissed only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106, 50 L.Ed.2d 251, 97 S.Ct. 285 (1976) (quotation omitted). Pourzandvakil has not satisfied even this minimal test; her complaint and submissions on this motion demonstrate that she cannot prove any set of facts in support of her claim which would entitle her to relief. Her complaint consists of a "litany of general conclusions" rather than "specific allegations of fact". Barr, 810 F.2d at 363 .

*19 Ordinarily we would allow plaintiff an opportunity to replead to state specific allegations against ASI, but three factors militate against this course of action. First, our December 22, 1994, Memorandum-Decision and Order denying plaintiff's request for a temporary restraining order indicated that she had not shown a likelihood of success on the merits of her claim because she had not [*26] pled any specific actionable facts. Despite the fact that plaintiff since has filed three amended complaints, she still fails to set forth specific actionable conduct. Second, the defendants' motions themselves have alerted plaintiff to the need to show specific actionable facts, and yet her voluminous submissions in opposition to the motions contain no specific actionable facts. Finally, plaintiff has asserted similar allegations against many of the same defendants sued in this action -although not ASI-as well as others in several different jurisdictions. See Pourzandvakil v. Blackman, a Civ. No. 94-C944 (D.D.C.1994), Pourzandvakil v. Doty (E.D.N.Y.1993), Pourzandvakil v. Price, Civ. No. 7 (D.Minn.1993). Where the results are known to us these actions resulted in dismissals for failure to state a claim upon which relief can be granted. Pourzandvakil v. Price, Civ. No. 4-93-207, Order to Show Cause entered April 12, 1993; Pourzandvakil v. Blackman, Civ. No. 94-C-94, Order entered April 28, 1994, aff'd Civ. No. 94-5139 (D.C.Cir.1994) (per curiam). In the Minnesota case, dismissal took place after the district court offered plaintiff an opportunity to [*27] amend her pleading and plaintiff still was not able to offer specifics. [HN15] Even pro se complaints must show "some minimum level of factual support for their claims." Pourzandvakil v. Blackman, Civ. No. 94-C-94, (quoting White v. White, 886 F.2d 721, 724 (4th Cir.1989) ). We therefore dismiss plaintiff's complaint against ASI for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

8. Former Supreme Court Justice Harry A. Blackmun.
9 We note also that plaintiff has not requested leave to amend in this action.

We note that in Pourzandvakil v. Blackman, Judge John H. Pratt dismissed plaintiff's in forma pauperis complaint sua sponte under 28 U.S.C. § 1915(d), holding both that it failed to state a claim on which relief can be granted and that it was frivolous. We consider here whether we have the authority to dismiss sua sponte plaintiff's complaint, which was not filed in forma pauperis, as frivolous as against all non-moving defendants. [*28] [HN16] The Supreme Court explicitly has acknowledged a district court's power under Section 1915(d) to dismiss as frivolous a complaint which "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 104 L.Ed.2d 338, 109 S.Ct. 1827 (1989) . The Supreme Court explicitly declined to rule, however, on whether a district court has the authority to dismiss sua sponte frivolous complaints filed by non-indigent plaintiffs. Id. at 329 n. 8. The law in this circuit is that a district court may sua sponte dismiss a frivolous complaint even if the plaintiff has paid the filing fee. See Tyler v. Carter, 151 F.R.D. 537, 540 (S.D.N.Y.1993), aff'd 41 F.3d 1500 (2d Cir.1994) ; cf. Pillay v. I.N.S., 45 F.3d 14, 17 (2d Cir.1995) (per curiam) (dismissing sua sponte appeal for which appellant had paid normal filing fee). We believe that sua sponte dismissal is appropriate and necessary here because (1) plaintiff's claims lack an arguable basis in law and fact; (2) plaintiff has repeatedly attempted to replead her claims without being able to articulate actionable conduct; (3) some of plaintiff's claims have been tested in other courts [*29] and found to be without merit; and (4) the issue of frivolity has been presented by at least some of the moving defendants.

*20 We therefore dismiss with prejudice plaintiff's complaint as frivolous as to all defendants-regardless of whether they have moved for dismissal-that have not been granted dismissal on jurisdictional grounds. We direct the clerk to return plaintiff's filing fee to her. Tyler, 151 F.R.D. at 540 .

IV. Requests for Sanctions, Costs, Attorney's Fees and Injunction Against Filing Further Actions

Because plaintiff is pro se and appears to have a belief in the legitimacy of her complaint, we do not believe that the purpose of Rule 11 would be served by awarding sanctions. See Carlin v. Gold Hawk Joint Venture, 778 F.Supp. 686, 694-695 (S.D.N.Y.1991) . Moreover, her litigiousness has not yet reached the point at which courts in this circuit have justified injunctive relief. See id. at 694 (and collected cases). We therefore deny the requests of ASI and Prudential for injunctive relief. Our refusal to grant sanctions and injunctive relief however, is conditioned on this dismissal putting an end to plaintiff's attempts to sue these defendants [*30] on these claims in this forum. Any further attempts by plaintiff to revive these claims will result in our revisiting the issue of sanctions. Id. at 695.

CONCLUSION

All defaults entered by the clerk are vacated. Plaintiff's complaint is dismissed in its entirety against all moving and non-moving defendants. The dismissal of the complaint against Maki, the state defendants, Olmsted County, Schmitz, Mundahl, C.O. Brown, Norwest, Metmor, Restovich, Youngquist, Commercial, Travelers and Hirman is without prejudice as it is premised on this court's lack of power either over the person of the defendant or the subject matter of the controversy. See Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-9 (5th Cir.1986) (dismissal for lack of subject matter jurisdiction is not a dismissal on the merits); John Birch Soc'y. v. National Broadcasting Co., 377 F.2d 194, 199 n. 3 (2d Cir.1967) (dismissal for lack of subject matter jurisdiction implies no view of merits); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 875 (3d Cir.) cert. denied, 322 U.S. 740, 88 L.Ed. 1573, 64 S.Ct. 1057 (1944) (dismissal for lack of personal jurisdiction is not [*31] a dismissal on the merits). The dismissals against the remaining defendants are with prejudice. All requests for sanctions and attorney's fees are denied. The requests of defendants ASI and Prudential for an injunction with respect to future litigation is denied. However, plaintiff is cautioned that any litigation in this forum attempting to revive the claims addressed herein may subject her to sanctions. Plaintiff's motions are denied as moot.

IT IS SO ORDERED.

Attorneys and Law Firms

Benjamin Smith, Philadelphia, PA, pro se.

Hon. Richard S. Hartunian, United States Attorney for the Northern District of New York, Charles E. Roberts, Esq., Assistant United States Attorney, of Counsel, Syracuse, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff pro se Benjamin Smith ("Smith"), formerly an inmate in the custody of the United States Bureau of Prisons ("BOP") at the Ray Brook Federal Correctional Institution ("Ray Brook"), brings this action against defendants United States of America and Mr. Fellner, a Unit Manager at Ray Brook, alleging that (1) he was injured when a chair collapsed under him through the negligence of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2571-80 (FTCA); (2) Felner, assigned as the hearing officer at a disciplinary hearing, was biased and found Smith guilty of the charge in violation of Smith's right to due process of law under the Fifth Amendment and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); and (3) Smith was confined in a cell for twenty days in unsanitary conditions in violation of his Eighth Amendment right to be free from cruel and unusual punishment and Bivens. Compl. (Dkt. No. 1).[2] Presently pending are (1) Smith's motion to compel discovery pursuant to Fed.R.Civ.P. 37 (Dkt. No. 61), (2) defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. No. 62), (3) Smith's cross-motion for summary judgment pursuant to Rule 56 (Dkt. No. 69, and (4) Smith's motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15 (Dkt. No. 74). For the reasons which follow, (1) Smith's motion to compel is denied, it is recommended that (2) defendants' motion for summary judgment be granted in part and denied in part and that (3) Smith's cross-motion be denied, and (4) Smith's motion for leave to file an amended complaint is denied.

I. Background

Smith's remaining claims[3] concern three separate incidents which occurred while he was incarcerated at Ray Brook.

A. Chair

On June 12, 2007, Smith was sitting in an office chair while working in the "factory" at Ray Brook. Compl.[4] at 4. As Smith leaned back, the chair broke, and he fell backward onto a broken metal support bar. Id. This resulted in an injury to Smith's lower back. Id. Smith maintains that the chair, which was manufactured by UNICOR[5] at the Florence Federal Correctional Facility in Florence, Colorado, was "defective." Id. Smith asserts that prison officials knew that this particular chair was defective but failed to take steps to protect him from this unsafe condition. Id. Smith filed a claim with BOP seeking monetary damages for the injuries he received due to the allegedly defective chair, but his claim was rejected and Smith was advised to seek a remedy through the Inmate Accident Compensation System instead.[6] Smith sought compensation pursuant to the Inmate Accident Compensation Act (IACA), but he was denied because his injuries were deemed "non-work-related." Smith Decl. (Dkt. No. 27-1), Ex. E, at 41.

B. Biased Hearing Officer

On November 2, 2006, a disciplinary charge was issued charging Smith with threatening his Ray Brook case manager with bodily harm and being insolent towards a staff member. Compl. at 8. Smith was confined for twenty days in the Special Housing Unit ("SHU")[7] before the charge was resolved. Id. at ¶ 3. A disciplinary hearing was held at which Felner presided as the hearing officer. Id. at 3; Fellner Decl. (Dkt. No. 62-2) at ¶ 3 (stating that Smith was confined in the SHU November 2-22, 2006). Smith maintains that Felner was biased against him and that during the hearing Felner stated that the assault charge would be dismissed "because he knew that [the case manager] was lying, " but that he had to find Smith "guilty of something." Id. At the conclusion of the hearing, Felner found that the charged conduct did not amount to a "High Severity" offense but did constitute the "Moderate Severity" offense of "Insolence." Felner Decl. (Dkt. No. 23-4) ¶ 7. Felner then "informally resolved" the matter through verbal counseling and "extra duty, " and recommended that Smith be released from the SHU. Id.

C. Unsanitary Cell Conditions

*2 While Smith was in the SHU, he shared the small cell with three other inmates. Compl. at 3. This cell had one toilet that was flushed by corrections officers from outside the cell. Id. Smith alleges, however, the corrections officers, who are not specifically named in the complaint, refused to flush the toilet or provide the inmates with toilet paper for two weeks. Id. Smith and the other inmates were forced to use pieces of clothing and napkins as toilet paper. Id. The toilet eventually overflowed, causing human waste to pour onto the floor of the cell. Id. Smith, who slept on a plastic mattress on the floor near the overflowing toilet, became nauseous and lightheaded from the odor. Id. Smith claims that the prison staff, including Felner, knew of but ignored these conditions. Id.

II. Motion to Compel

During discovery, Smith requested that defendants produce (1) any investigative reports regarding his case manager, Susan Kieffer, and the disciplinary charge she issued to Smith on November 2, 2006, and (2) the parts from the broken chair in the June 12, 2007 accident. Dkt. No. 61 at 1. As to the reports, defendants object to production on the ground that while Kieffer was named as a defendant in the complaint claiming that her November 2, 2006 disciplinary charge was issued in retaliation against Smith for filing grievances, Kieffer is no longer a party to this action, no claims are pending against her, and the reports sought are, therefore, irrelevant. Dkt. No. 67 at 3; see also Dkt. Nos. 40, 41, 50. Smith contends that any such report may lead to evidence of Felner's bias as the hearing officer and, therefore, relevance is demonstrated under the broad standard of Fed.R.Civ.P. 26(b). An investigative report of Kieffer's conduct, however, is too attenuated to the issue of Felner's possible bias to satisfy even the broad standard of relevance under Rule 26(b). Accordingly, Smith's motion as to any Kieffer reports Is denied.

As to the broken chair parts, defendants now respond that "all parts of the broken chair in issue were discarded and are not available for inspection." Defs. Supplemental Response dated Nov. 28, 2011 (Dkt. No. 67-1 at 15).[8] Discarding the chair may or may not constitute spoliation. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 109 (2d Cir.2001) (stating elements necessary to demonstrate spoliation); see also Smith Mem. of Law in Support of Cross-Motion (Dkt. No. 69-3) at 2 (arguing spoliation). The question presented here, however, is an issue of discovery. Defendants assert that the materials demanded by Smith are no longer in their possession or control. A party cannot be compelled to produce what it does not possess or control. Therefore, Smith's motion to compel as to the broken chair parts is also denied.

III. Motions for Summary Judgment

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. 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. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

*3 The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The nonmoving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (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, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Defendants' Motion

Defendants seek summary judgment as to all claims on the ground that Smith has raised no triable issue of fact as to any claim and the undisputed facts mandate judgment in favor of defendants.

1. Chair

Smith asserts a claim under the FTCA concerning the allegedly defective chair. Defendants originally moved to dismiss this claim on the ground that because Smith asserted in his claim that his injury occurred while he was working in the Ray Brook factory, his exclusive remedy was under the IACA. As discussed infra, The IACA provides the exclusive remedy for a prisoner's work-related injuries. 28 C.F.R. § 301.319; Demko, 385 U.S. at 152-54. Smith sought recovery under the IACA, but his claim and subsequent appeals were denied by BOP on the ground that because Smith had not been at his assigned work station when the injury occurred, his injury was not work-related and the IACA was inapplicable. See Dkt. No. 40 at 25-26. The undersigned recommended that defendants' motion to dismiss the FTCA claim be granted. Id. at 26-28. The district court adopted that recommendation, but Smith objected and moved for reconsideration. Dkt. Nos. 41-43. Upon reconsideration, the district court denied defendants' motion to dismiss the FTCA claim and that claim remains pending. Dkt. No. 50.

It is unclear from defendants' motion papers on what basis they seek judgment on the FTCA claim. At best, it appears that they restate their contention that by making a claim under the IACA and asserting that his injury was work-related, Smith is now precluded from asserting a parallel claim under the FTCA. See Defs. Mem. of Law (Dkt. No. 62-6) at 12-14. Smith makes clear in his response that his claim in this action is solely under the FTCA. See Pl. Mem. of Law (Dkt. No. 69-1) at 20 ("For the sake of clarity, plaintiff has never raised an IACA claim in this case....").

*4 Although BOP denied Smith's IACA claim on the ground that his injury was not workrelated, defendants now appear to seek judgment on the ground that Smith's injury was in fact work-related, the IACA provides the exclusive remedy for his claim, and defendants must, therefore, be granted judgment on the FTCA claim. As defendants note, parties may assert inconsistent arguments in prosecuting and defending actions and both Smith and defendants have done so here. See Fed.R.Civ.P. 8(d)(3); Adler v. Pataki, 185 F.3d 35, 41 (2d Cir.1999). Smith asserted in his IACA claim that his injury was work-related and now in his FTCA claim that it was not. Defendants denied Smith's IACA claim on the ground that his injury was not work-related and now assert on this motion that it was. The question whether Smith's injury was work-related continues to present a triable issue of fact given the conflicting prior assertions of both parties on the issue. Therefore, defendants' motion on the ground that the IACA provides the exclusive remedy for Smith's claim should be denied.

As to the merits of Smith's FTCA claim, the undersigned has previously noted the elements which Smith must prove to establish that claim and apparent deficiencies in Smith's proof. See Dkt. No. 40 at 26-28. First, defendants make no argument challenging the sufficiency of Smith's proof on this claim. Second, since it now appears that defendants have discarded the broken parts of the chair in question, Smith may be entitled to the benefits of a spoliation instruction, including the possibility of an adverse inference against defendants on the elements of Smith's claim which would suffice to establish a prima facie case of negligence against defendants. See section II supra; see also Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 106 (2d Cir.2002) (noting that an adverse inference instruction Is "usually... employed in cases involving spoliation of evidence....").

Accordingly, defendants' motion as to Smith's FTCA claim should be denied.

2. Biased Hearing Officer

Defendants contend that they should be granted judgment on Smith's due process claim that Felner was biased because (a) Smith's claim is not constitutionally cognizable, (b) Felner's determination was supported by sufficient evidence, and (c) the evidence of bias is insufficient to raise a triable issue of fact. Defs. Mem. of Law at 6-11.

a. Cognizable Due Process Claim

An inmate asserting a violation of his or her right to due process must establish the existence of a protected interest in life, liberty, or property. See Perry v. McDonald, 280 F.3d 159, 173 (2d Cir.2001). To establish a protected liberty interest, a prisoner must satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). This standard requires a prisoner to establish that the deprivation was atypical and significant in relation to ordinary prison life. Id. at 484; Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). The fact that an inmate has been disciplined with a SHU confinement alone is insufficient to establish an atypical and significant deprivation.

*5 The Second Circuit has articulated a two-part test whereby the length of time a prisoner was held in SHU as well as "the conditions of the prisoner's confinement in SHU 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). Where the period of confinement exceeds thirty days, "refined fact-finding" is required to resolve defendants' claims under Sandin Colon v. Howard, 215 F.3d 227, 230 (2d Cir.2000); see also Davis v. Barrett, 576 F.3d 129, 133-34 (2d Cir.2009) (finding questions of fact under Sandin where plaintiff spent sixty days in SHU). On the other hand, absent extraordinary circumstances, SHU confinement for less than thirty days, as here, is insufficient to establish an atypical and significant hardship under Sandin. See Palmer v. Richards, 364 F.3d 60, 65-66 (2d Cir.2004) (noting that "we have affirmed dismissal of due process claims only in cases where the period of time spent in SHU was exceedingly short-less than... 30 days...."); Phillips v. Roy, No. 9:08-CV-878 (FJS/ATB), 2011 WL 3847265, at *16 (N.D.N.Y. Aug. 28, 2011) (dismissing prisoner's due process claim where punishment did not exceed thirty days in confinement); Rodriguez v. McGinnis, 1 F.Supp.2d 244, 248 (S.D.N.Y.1998) (holding that "[t]he decisions of the Second Circuit are unanimous that keeplock... confinement of 30 days or less in New York prisons is not "atypical or significant hardship" under Sandin'" (quotation and other citations omitted)).

Thus, absent extraordinary circumstances, Smith's confinement in SHU for twenty days was insufficient to raise an issue of fact as to his due process claim of a biased hearing officer and defendants are entitled to judgment on that claim. However, Smith asserts that the conditions in the SHU cell which he shared with two other inmates were so atypical and significant in comparison to the cells of inmates in the general population as to satisfy the requirement that he demonstrate the deprivation of a liberty interest. As noted, Smith asserts that an overflowing toilet in the cell rendered the condition of the cell unsanitary and uninhabitable. See subsection I(C) supra. Defendants deny this assertion. See Felner Decl. at UU 4-5. If Smith's assertion is sufficient to create a triable issue of fact, defendants' motion on this ground must be denied.[9] See, e.g., Palmer v. Richards, 364 F.3d 60, 65 (2d Cir.2004) (finding that the deprivation of personal belongings, use of mechanical restraints, and discontinuation of communication may give rise to a liberty interest); Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir.1999) (stating that allegations of "inadequate amounts of toilet paper, soap and cleaning materials, a filthy mattress, and infrequent changes of clothes" may constitute an atypical and significant hardship); Delaney v. Selsky, 899 F.Supp. 923, 927-28 (N.D.N.Y.1995) (McAvoy, C.J.) (holding that a question of fact was created under Sandin where inmate was over seven feet tall and the bed in SHU was too short).

*6 Here, however, Smith has failed to raise a triable issue of fact whether any unsanitary conditions existed in his SHU cell. The only evidence that such conditions existed comes from Smith's own self-serving statements. See Compl. at 3. On the other hand, defendants offer overwhelming evidence that no such conditions existed. Felner asserts that while Smith was held in SHU from November 2 to 22, 2006, he made five routine visits to the cell in his capacity as a Unit Manager and never observed any of the conditions alleged by Smith. Felner Decl. at ¶ 4. Dozens of other staff members visited the SHU in the same time period and none noted any threat to Smith's health or safety. Id. Smith himself filed approximately 121 administrative grievances on various issues while incarcerated in BOP custody but never filed any grievances regarding the allegedly unsanitary conditions. Id. at ¶ 5. Smith's two cell mates in SHU also never filed any grievances or complaints about any unsanitary conditions in the cell while Smith shared the cell. Id.

Thus, the question is whether Smith's statement about the conditions of his SHU cell alone suffices to create a triable issue of fact. In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir.2005), the plaintiff was arrested in the course of a robbery, pleaded guilty to criminal charges, and then brought an action against the arresting officers and their employer alleging that they had used excessive force in effecting his arrest in violation of the Eighth Amendment and 42 U.S.C. § 1983. The plaintiff asserted that the officers had beaten him after he surrendered and threw him from a third-story window. The officers denied this and all testified that the plaintiff had attempted to escape by jumping from the window. The defendants moved for summary judgment, the motion was granted by the district court, and the plaintiff appealed, arguing that a material question of fact existed in the conflicting versions of events between the plaintiff and defendants. Id. at 551-53.

On appeal, the Second Circuit Court of Appeals noted that generally, conflicting testimony concerning a material issue of fact as existed there presented issues of credibility which could only be resolved by a fact-finder at trial. Jeffreys, 426 F.3d at 554. On a motion for summary judgment, however, the party opposing the motion was required to do more than offer opposing conclusory or speculative statements. Id. (quoting D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998) (holding that a nonmoving party "must offer some hard evidence showing that its version of the events is not wholly fanciful."). The court then upheld the district court's determinations that (1) nothing in the record supported the plaintiff's allegations "other than plaintiff's own contradictory and incomplete testimony, " and (2) "no reasonable person could believe Jeffreys'[s] testimony, " Id. at 555 (internal quotation marks omitted). The grant of summary judgment to the defendants was affirmed. Id.

*7 Other courts in this circuit have followed the Jeffreys analysis in granting summary judgment to defendants where the only questions of fact arose from self-serving and otherwise unsupported testimony of the plaintiff. See, e.g., Caldwell v. Getmann, No. 9:09-CV-580 (DNH/DEP), 2012 WL 1119869, at *4-7 (N.D.N.Y. Mar. 2, 2012) (Peebles, M.J.) (applying Jeffreys in a prisoner excessive force case); McMahon v. Fura, No. 5:10-CV-1063 (GHL), 2011 WL 6739517, at *10 (N.D.N.Y. Dec. 23, 2011) (Lowe, M.J.) ("This evidence is insufficient to raise a triable issue of fact that Defendant Patti used any force against Plaintiff because it is entirely dependent on Plaintiff's own extremely incomplete testimony."); Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 468-71 (S.D.N.Y.1998) (Sotomayor, J.) (holding that "when the facts alleged are so contradictory that doubt is cast upon their plausibility, [the court may] pierce the veil of the complaint's factual allegations... and dismiss the claim.") (internal quotation marks omitted) (cited with approval in Jeffreys, 426 F.3d at 555)).

For the Jeffreys exception to apply, defendants must demonstrate that "1) the plaintiff must rely almost exclusively on his own testimony; 2) the plaintiff's testimony must be contradictory or incomplete; and 3) the plaintiff's testimony must be contradicted by evidence produced by the defense."Caldwell, 2012 WL 1119869, at *6 (internal quotation marks and citation omitted). Here, as to the first requirement, Smith relies exclusively on his own testimony to establish the conditions in his cell. As to the second requirement, Smith testified that the conditions in his SHU cell included human waste overflowing from the toilet to the floor where Smith was required to sleep on a mattress. See Compl. at 3. However, although Smith had filed approximately 121 grievances regarding various matters during his BOP incarceration, he never complained to anyone in authority about these alleged conditions until this action was commenced. See Felner Decl. at ¶ 5. His testimony regarding the conditions is, therefore, contradicted by his conduct. As to the third requirement, defendants have offered evidence that Felner visited Smith's SHU cell on at least five occasions during the November 2-22, 2006 time period and that he never observed the conditions alleged by Smith. Id. at ¶ 4. Furthermore, "dozens" of other BOP employees observed Smith's SHU cell in this period and none ever reported observing the conditions now alleged by Smith. Id. Finally, no complaints or grievances concerning the conditions alleged by Smith were ever made by the other two inmates confined to the same cell in this period. Id.

On this record, then, even when Smith's evidence is viewed in the light most favorable to him and drawing all reasonable inferences in his favor, no reasonable factfinder could conclude that Smith's allegations regarding the conditions of his SHU cell were credible. Accordingly, the Jeffreys exception applies, no triable issue of fact is presented regarding whether the conditions in Smith's SHU cell were atypical or significant, and defendants' motion on this ground should be granted.

b. Merits

*8 As to the merits of Smith's claim that Felner was biased, an inmate enjoys the right to an impartial hearing officer in a disciplinary proceeding. See Sira v. Morton, 380 F.3d 57, 69 (2d Cir.2004); Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990). threatening his Ray Brook case manager with bodily harm and being insolent towards a staff member. Compl. at 8. As evidence of Felner's bias, Smith proffers that Felner stated at the hearing that the assault charge would be dismissed "because he knew that [the case manager] was lying, " but that he had to find Smith "guilty of something." Compl. at 3. At the conclusion of the hearing, Felner found that the charged conduct did not amount to a "High Severity" offense but did constitute the "Moderate Severity" offense of "Insolence." Felner Decl. (Dkt. No. 23-4) ¶ 7. Felner then "informally resolved" the matter through verbal counseling and "extra duty, " and recommended that Smith be released from the SHU. Id. Defendants contend only that Smith's claim presents no triable issue of fact because Felner's findings were supported by "some evidence." Defs. Mem. of Law (Dkt.No. 62-6) at 10-11.[10]

The existence of some evidence to support a prison disciplinary hearing determination may suffice to support a prison official's motion for summary judgment on the ground of qualified immunity where the prisoner asserts that there existed no reliable evidence to support a finding, see Sira, 380 F.3d at 60; Luna v. Pico, 356 F.3d 481, 486-87 (2d Cir.2004), or where the prisoner claims that he or she was found guilty of a disciplinary charge on the basis of insufficient evidence. See Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir.2001) ("where the prisoner claims he was denied due process in a prison disciplinary hearing because he was found guilty on the basis of insufficient evidence, the claim must be rejected if there was at least some evidence' to support the decision.").

The existence of "some evidence" without more, however, does not serve to defeat a claim that a hearing officer was biased as defendants contend here. First, no cases have been found in this circuit, and defendants have cited none, in which a claim of a biased hearing officer was rejected because there existed "some evidence" to support the determination. Second, the existence of "some evidence" in the record does not serve to obviate the harm to a prisoner's due process rights that can result from a biased hearing officer presiding at a hearing. For example, while "some evidence" may exist in the record, an unbiased hearing officer might be inclined to give such evidence little weight or to reject in whole as incredible or to give countervailing evidence greater weight. Furthermore, an unbiased hearing officer might arrive at a different determination of the appropriate sanction than might a biased one. Thus, contrary to defendants' contention, the mere existence of "some evidence" in the record to support a disciplinary determination does not resolve a prisoner's claim that he was denied due process by the presence of a biased hearing officer.

*9 Accordingly, defendants' motion on this ground should be denied.

3. Unsanitary Cell Conditions

Defendants contend that Smith has failed to raise a triable issue of fact as to his claim that the conditions in his SHU cell November 2-22, 2006 were unsanitary in violation of his Eight Amendment right to be free from cruel and unusual punishment. As discussed supra in subsection III(B)(2)(a), the Jeffreys exception applies to this claim and applying that exception for the reasons discussed supra, it is recommended that defendants' motion as to this claim be granted.

C. Smith's Cross-Motion

Smith cross-moves for summary judgment on his claims. Dkt. No. 69.On this crossmotion, as opposed to defendants' motion for summary judgment, the evidence must be viewed in the light most favorable to defendants as the non-moving parties on this motion. See subsection III(A) supra. So viewed, the evidence in support of Smith's FTCA claim presents triable issues of fact as to whether a defective condition existed and whether defendants were on notice of that condition. Accordingly, Smith's cross-motion as to this claim should be denied. As to Smith's other two claims, for the reasons discussed supra, defendants should be granted judgment as to both such claims. For the same reasons, Smith's cross-motion as to both of those claims should be denied.

IV. Smith's Motion to Amend

Finally, Smith moves for leave to file an amended complaint. Dkt. No. 74.Smith seeks to add additional factual allegations concerning the FTCA claim regarding defendants' awareness of defects in the chair prior to the incident on June 12, 2007 and clarifying that Smith alleges an exacerbation of a preexisting back injury rather than an original injury. Proposed Am. Com pl. (Dkt. No. 77-1).[11] Defendants oppose Smith's motion on various grounds. Dkt. Nos. 75, 88.

Rule 15(a) provides that a court should grant leave to amend "freely... when justice so requires." When exercising its discretion, a court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City Sch. District, 704 F.2d 44, 46 (2d Cir.983) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The court must also examine whether there will be prejudice to the opposing party. See, e.g., Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (permitting proposed amendment would be especially prejudicial once discovery has been completed and a summary judgment motion filed). Finally, where it appears that granting leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted).

Here, defendants contend that Smith unduly delayed filing this motion and that the proposed amended complaint would necessitate additional discovery by defendants and is, therefore, prejudicial. As to delay, defendants correctly note that Smith has been on notice since February 3, 2011 when the report-recommendation on defendants' motion to dismiss was filed that his complaint failed to allege any facts demonstrating that defendants had prior notice of any defects in the chair. See Dkt. No. 40 at 27-28 ("Smith fails to allege or explain how defendants had actual or constructive notice of such a condition.") Smith did not file the present motion until eleven months later on January 9, 2012. Dkt. No. 74.In the meantime, discovery had been completed and the parties had filed motions for summary judgment. See Dkt. Nos. 45 (order establishing a discovery deadline of July 15, 2011), 62 (defendants' motion for summary judgment filed October 13, 2011), 69 (Smith's crossmotion for summary judgment filed December 5, 2011).

*10 First, on this record, Smith's motion is untimely. It comes almost one year after Smith was explicitly advised of the absence of allegations of notice of the defect to defendants, after discovery had been completed for over five months, and after motions for summary judgment had been filed. See Ansam Associates Inc., 760 F.2d at 446. The only plausible excuse offered by Smith for the delay is his pro se status. This is unavailing for two reasons. First, Smith was explicitly advised of the deficiency in the reportrecommendation almost one year ago and cannot, therefore, claim that he was unaware of the deficiency he seeks to cure. Second, notwithstanding the absence of allegations of notice, Smith's FTCA claim has already survived a challenge to its pleading sufficiency and, if the recommendation herein is adopted, to the sufficiency of his proof on that claim. See Dkt. No. 50 at 3 (granting Smith's motion for reconsideration and denying defendants' motion to dismiss the FTCA claim); subsection III(B)(1) supra (recommending that defendants' motion for summary judgment on the FTCA claim be denied where, viewing the evidence in the light most favorable to Smith, he may be entitled to adverse inferences against defendants, including on the issue of notice, by virtue of defendants' alleged spoliation of the chair in question). Thus, it appears that Smith's FTCA claim will proceed to trial at which he may offer whatever evidence he possesses concerning the two matters for which he seeks leave to amend his complaint- notice to defendants of alleged defects in the chair and the nature of the injury he suffered in the incident.

Defendants also contend that they would be prejudiced by the delay in Smith making this motion. Defendants appear to have demonstrated sufficient prejudice from the delay in bringing this motion in that three years after this action was commenced and almost one year after discovery was concluded, they would either be unable to conduct discovery on the new allegations or would need to extend the litigation of this action significantly to conduct discovery on those allegations and, possibly, to file additional motions on the allegations.

Accordingly, Smith's motion for leave to file an amended complaint is denied.

V. Conclusion

For the reasons stated above, it is hereby

ORDERED that Smith's motions for:

1. An order compelling defendants to produce certain items of discovery (Dkt. No. 61) is DENIED; and

2. Leave to file an amended complaint (Dkt. No. 74) is DENIED; and

RECOMMENDED that:

1. Defendants' motion for summary judgment (Dkt. No. 62) be

A. DENIED as to Smith's FTCA claim; and

B. GRANTED as to Smith's claims for violations of his rights to due process of law under the Fourteenth Amendment regarding a biased hearing officer and of his Eighth Amendment right to be free from cruel and unusual punishment regarding the unsanitary conditions in his SHU cell and that judgment be granted to defendant Felner on all remaining claims against him; and

*11 2. Smith's cross-motion for summary judgment (Dkt. No. 69) be DENIED in all respects.

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.D.N.Y.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).

IT IS SO ORDERED.

[1]

Attorneys and Law Firms

Ronald Edward Williams, Auburn, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Charles J. Quackenbush, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.

REPORT-RECOMMENDATION AND ORDER[2]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff pro se Ronald Williams ("Williams"), formerly an inmate 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 alleging that defendant Keith Dubray, a DOCCS employee, violated his constitutional rights under the Eighth and Fourteenth Amendments. Am. Compl. (Dkt. No. 9). Presently pending is defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6).Dkt. No. 18. Williams opposes the motion. Dkt. No. 20. For the following reasons, it is recommended that defendant's motion be denied.

I. Background

A. Procedural History

On or about November 19, 2009, Williams filed his initial complaint. Compl. (Dkt. No. 1). By a Memorandum-Decision and Order dated February 5, 2010, Williams was ordered to file a new complaint and advised Williams that allegations surrounding his disciplinary sanction would be barred pursuant to the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), unless Williams separated his allegations and pursued monetary remedies only for those sanctions which interfered with his conditions of confinement. Dkt. No. 6 at 9-10 (quoting Peralta v. Vasquez, 467 F.3d 98, 104 (2d. Cir.2006) ("[A] prisoner subject to such mixed sanctions can proceed separately, under § 1983, with a challenge to the sanctions affecting his conditions of confinement without satisfying the favorable termination rule, but... he can only do so if he is willing to forgo once and for all any challenge to any sanctions that affect the duration of his confinement. "). Id. at 10.

On or about March 29, 2010, Williams' amended complaint was filed. Am. Compl. In the amended complaint, Williams stated that he "waives for all times all claims in this action relating to disciplinary sanctions affecting the duration of his confinement." Am. Compl. ¶ 14, at 7. By a Memorandum-Decision and Order dated July 27, 2010, the District Court found "that the factual allegations in the amended complaint [we]re essentially unchanged from those in [the] original complaint." Dkt. No. 12 at 2. After discussing Williams' three claims, the Court determined that the only one "sufficient to warrant a response, " was that alleged against defendant Dupray. Id. at 8.

B. Factual History

The facts are related herein in the light most favorable to Williams as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

On April 22, 2007, Williams received a misbehavior report charging that he committed bribery, extortion, and solicitation. Am. Compl. ¶ 6 at 4; see also Dkt. No. 9 at 16 (misbehavior report). The misbehavior report alleged that Williams "attempted to defraud the United States treasury... by submitting federal tax forms... [and] receiv[ing] a tax refund check of $327, 456.04... [which] was then sent back to the IRS Fraud Detection Center and determined to be fraudulent." Dkt. No. 9 at 16. Williams had a disciplinary hearing where he was found guilty of soliciting goods or services. Am. Compl. ¶ 6 at 4. The record does not indicate what sentence Williams originally received. Williams appealed the decision. Am. Compl. ¶ see also Dkt. No. 9 at 18 (appealing decision because it was "[b]ased on insufficient tangible... evidence, [and because] there [wa]s nothing conclusive to determine any acts of wrong doing, " as Williams' tax forms represented "an acknowledgment of a legitimate transaction between parties."). Defendant Dubray was assigned to the appeal and issued a decision stating that "the nature of the offense, however serious, d [id] not warrant the penalties imposed, " and modified the punishment of Williams' disposition to six months in the Special Housing Unit ("SHU")[3], as well as six months loss of packages, commissary, telephone, and good time. Dkt. No. 9 at 20-21. This action followed.

II. Discussion

*2 Williams claims that his Eighth[4] and Fourteenth Amendment rights were violated by Dubray's deliberate indifference in failing to reverse or vacate Williams' disciplinary sanctions.[5] In Williams' affidavit, he further clarified the position he advanced in his appeal, stating unequivocally that his sanctions were not supported by sufficient evidence. Williams Aff. (Dkt. No. 20 at 1-11) ¶¶ 15-17. Defendant moves for dismissal because Williams has failed to allege Dubray's personal involvement, Williams due process claims are meritless, and Williams' claims are barred by the favorable termination rule.

A. Legal Standard

Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). However, this "tenet... is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action... [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).

Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility... that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement... it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible....") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and commonsense." Iqbal, 129 S.Ct. at 1950-51.

When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)).

B. Personal Involvement

"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id. ; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). However, supervisory personnel may be considered "personally involved" if:

*3 (1) [T]he defendant participated directly in the alleged constitutional violation;
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)). Williams' principle argument against Dubray is that, if Dubray had properly reviewed the disciplinary transcript and accompanying records[6], he would have determined that there was insufficient evidence to uphold Williams' disposition. The standard for personal involvement is satisfied if the defendant engages in review or investigation. See Bodie v. Morgenthau, 342 F.Supp.2d 193, 203 (S.D.N.Y.2004) (citations omitted) (finding personal involvement only where a supervisory official received, reviewed, and responded to a prisoner's complaint); Johnson v. Wright, 234 F.Supp.2d 352, 363 (S.D.N.Y.2002) ("[I]f mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability.") (citations omitted). Construing the facts in the light most favorable to Williams, he contends that Dubray had the opportunity to review his disciplinary disposition, but did so inadequately. The documents attached to the complaint support this contention as they indicate that, pursuant to Dubray's assessment of the circumstances, Williams deserved punishment but less than had been imposed. Thus, Williams has sufficiently alleged Dubray's personal involvement as he reviewed and evaluated Williams' disciplinary disposition prior to modifying it.

Accordingly, defendant's motion to dismiss should be denied on this ground.

C. Fourteenth Amendment

1. Liberty Interest

As a threshold matter, an inmate asserting a violation of his or her right to due process must establish the existence of a protected interest in life, liberty, or property. See Perry v. McDonald, 280 F.3d 159, 173 (2d Cir.2001). To establish a protected liberty interest, a prisoner must satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). This standard requires a prisoner to establish that the deprivation was atypical and significant in relation to ordinary prison life. Id. at 484; Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). The fact that an inmate has been disciplined with a segregated confinement alone is insufficient to establish an atypical and significant deprivation. 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). The Second Circuit has noted that where the period of segregated confinement exceeds thirty days, "refined fact-finding" is required to resolve defendants' claims under Sandin. Colon v. Howard, 215 F.3d 227, 230 (2d Cir.2000).

*4 As a result of his disciplinary hearing, Williams was confined to SHU for six months. Therefore, he has alleged facts sufficient to exceed the thirty day threshold so that fact-finding is required to resolve his claims. As Williams has alleged facts sufficient to demonstrate a liberty interest, the procedure by which his liberty was curtailed must also be examined. See generally Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) ("[Procedural due process questions [are analyzed] in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.") (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

Accordingly, defendant's motion on this ground should be denied.

2. Fair and Impartial Hearing

While inmates are not given "the full panoply of [due process] rights, " they are still afforded procedural process. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). A prisoner is "entitled to advance written notice...; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition including the evidence relied upon and the reasons for the disciplinary actions taken." Sira v. Morton, 380 F.3d 57, 69 (2d Cir.2004) (citations omitted). Additionally, there must be "some evidence" which would indicate "reliable evidence' of [an] inmate's guilt" upon which to base the disciplinary decision so that arbitrary decisions are avoided. Luna v. Pico, 356 F.3d 481, 487-89 (2d Cir.2004) (citations omitted).

Defendant states that "[s]ince no procedural deficiencies... are alleged to have occurred in the facility-level... [Williams] does not (and cannot) fault [defendant] Dubray for intentionally refusing to rectify them on appeal." Def. Memorandum of Law (Dkt. No. 18-1) at 7. However, reading the facts in the light most favorable to Williams', he does allege that there was a procedural deficiency in that he was found guilty based on insufficient evidence to establish his culpability. As this is a motion to dismiss, there is nothing in the record concerning the disciplinary hearing, or the supporting documents and testimony proffered during the hearing, which would serve as a basis for determining whether sufficient evidence was present. All that is offered is the misbehavior report, drawn from an officer's unsupported reports that Williams' received a fraudulent check based on his fraudulent tax return. Williams contends that there was no physical evidence or additional information elicited regarding the charges adequate to raise a question of material fact as to whether some evidence was present upon which to find Williams guilty.

Accordingly, defendant's motion to dismiss should be denied on this ground.

3. False Misbehavior Reports

*5 An inmate enjoys the right not to be deprived of his liberty without due process. However, 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." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986))." There must be more, such as retaliation against the prisoner for exercising a constitutional right." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (citing Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988)). Furthermore, a fair hearing would cure any due process violations resulting from false accusations. Grillo v. Coughlin, 31 F.3d 53, 56 (2d Cir.1994); Livingston v. Kelly, 561 F.Supp.2d 329, 331 (W.D.N.Y.2008) ("As the Second Circuit noted in its decision in this case, an inmate's allegation that he has been found guilty of false disciplinary charges may support a constitutional claim if he also alleges that he was denied the minimal procedural due process protections...."). As discussed supra, Williams' has alleged facts sufficient to state a plausible due process claim. Thus, defendant's motion should be denied on this ground.

4. Favorable Termination Rule

The "favorable termination" rule of Heck v. Humphrey provides that if a determination favorable to the plaintiff in a § 1983 action "would necessarily imply the invalidity of his conviction or sentence, " a plaintiff must prove that the conviction or sentence has been reversed on direct appeal or declared invalid in order to recover damages under § 1983. 512 U.S. at 487. This rule apples to challenges to procedures used in prison disciplinary proceedings. Edwards v. Balisok, 520 U.S. 641 (1997). However, in Peralta v. Vasquez , the Second Circuit stated that "the favorable termination requirement is not intended to compel a prisoner to demonstrate that a sanction he seeks to challenge, or the procedure that led to it, has been invalidated before he can proceed under § 1983 when that sanction does not affect the term of his confinement." 467 F.3d 98, 104 (2d Cir.2006).

In this case, Williams received both a loss of good time and a loss of commissary, package, and telephone privileges. Thus, he received a "mixed sanctions" disposition. The Second Circuit has held that "a prisoner subject to such mixed sanctions can proceed separately, under § 1983, with a challenge to the sanctions affecting his conditions of confinement without satisfying the favorable termination rule, but that he can only do so if he is willing to forgo once and for all any challenge to any sanctions that affect the duration of his confinement. " Peralta, 467 F.3d at 104. Williams has indicated in his amended complaint that he is willing to segregate his claims and "abandon, not just now, but also in any future proceeding, any claims he may have with respect to the duration of his confinement that arise out of the proceeding" Therefore, he is permitted to proceed separately with his challenge to the elements regarding his conditions of confinement which arose from his disciplinary disposition. Id. Williams' due process claim may proceed with respect to his challenges regarding the proceedings which resulted in his loss of commissary, packages, and the telephone.

*6 Accordingly, defendant's motion should be denied on this ground.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendant's motion to dismiss (Dkt. No. 18) be DENIED.

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


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