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Waters v. Prack

United States District Court, N.D. New York

March 5, 2015

KEITH WATERS, Plaintiff,
v.
ALBERT PRACK, et al., Defendants.

KEITH WATERS, Pro se, Fishkill Correctional Facility, Beacon, NY., for Plaintiff.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Albany, NY, COLLEEN D. GALLIGAN, ESQ., Assistant Attorney General, for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

This is an action was commenced pursuant to 42 U.S.C. § 1983 by pro se plaintiff Keith Waters, a New York State prison inmate, complaining that the three corrections employees named as defendants violated his civil rights. In his complaint, plaintiff alleges that during the course of disciplinary proceedings against him, the results of which were later annulled, the defendants deprived him of procedural due process and retaliated against him for submitting complaints about the hearing officer and others at the prison facility in which he was confined.

Prior to the close of discovery in the action, plaintiff has moved for the entry of summary judgment in his favor. Defendants oppose plaintiff's motion, arguing that it is both premature and moot in light of the plaintiff's filing of an intervening second amended complaint and that plaintiff cannot establish the lack of any triable issue of material fact regarding his due process and retaliation claims. For the reasons set forth below, I recommend that plaintiff's motion be denied.

I. BACKGROUND[1]

Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 42. While he is currently confined elsewhere, at the times relevant to his claims in this action, Waters was designated to the Greene Correctional Facility ("Greene"), located in Coxsackie, New York. Id. at 4.

On January 18, 2013, Waters was issued a misbehavior report by a corrections sergeant who is not a named defendant, accusing him of accepting compensation in return for providing legal services to other inmates and violating a direct order from a law library officer prohibiting him from accepting remuneration for his services. Dkt. No. 42 at 4; Dkt. No. 47-2 at 6. A Tier III disciplinary hearing to address the charges was convened by defendant Eric Gutwein on January 22, 2013, and concluded on March 21, 2013.[2] Dkt. No. 47-2 at 2, 21-33. At the outset of the hearing, plaintiff lodged an objection claiming that the misbehavior report did not provide him with sufficient information regarding the specific date, time, and place of the charged offense. Dkt. No. 47-2 at 2, 22-23. Defendant Gutwein proceeded with the hearing over plaintiff's objection after determining that the misbehavior report, together with the accompanying letter from another inmate discussing his arrangement with Waters, satisfied the governing DOCCS regulation regarding notice and provided plaintiff with the information needed to mount a defense. Dkt. No. 47-2 at 2. At the conclusion of the hearing, defendant Gutwein found plaintiff guilty on both counts and imposed a sanction that included three months of disciplinary special housing unit ("SHU") confinement, with a corresponding loss of packages, commissary, and telephone privileges, and a recommendation that plaintiff forfeit three months of good time credits. Dkt. No. 47-2 at 2-3, 35-36.

Plaintiff appealed the hearing officer's determination to defendant Albert Prack who, prior to his retirement on December 4, 2014, served as the DOCCS's Director of the Special Housing/Inmate Disciplinary Program. Dkt. No. 47-4 at 1-2. Based upon his review, defendant Prack affirmed the hearing determination on May 8, 2013, concluding that the record did not reflect any due process violation and that substantial evidence supported defendant Gutwein's findings. Dkt. No. 47-4 at 2, 4, 14.

By petition dated May 21, 2013, and a subsequent order to show cause dated July 11, 2013, plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR") challenging the Tier III determination. Dkt. No. 48-3. Plaintiff's CPLR Article 78 petition was granted by Supreme Court Justice Joseph C. Teresi on October 2, 2013. Id. at 1-3. In his decision, Judge Teresi concluded that the misbehavior report issued to the plaintiff failed to comply with the notice requirements of 7 N.Y.C.R.R. § 251-3.1(a) and ordered that the hearing officer's determination be annulled and all references to it expunged from plaintiff's records.[3] Id. By the time the Article 78 determination was issued and implemented, plaintiff had already served seventy of the ninety days of SHU confinement ordered by defendant Gutwein. Dkt. No. 42 at 13.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on November 20, 2013. Dkt. No. 1. Following an initial review of plaintiff's complaint and accompanying in forma pauperis ("IFP") application pursuant to 28 U.S.C. §§ 1915(e) and 1915A, Senior District Judge Lawrence E. Kahn issued a decision on June 19, 2014, granting plaintiff leave to proceed IFP and approving the filing of his complaint subject to dismissal of certain claims including, significantly, his procedural due process cause of action. See generally Dkt. No. 8.

Following service of the summons and complaint and the filing of an answer on behalf of the three defendants, a mandatory pretrial discovery and scheduling order was issued by the court on August 8, 2014. Dkt. No. 22. The pretrial scheduling order, inter alia, established deadlines for the completion of discovery and the filing of dispositive motions. Id. Less than a week later, on August 14, 2014, plaintiff filed a motion for the entry of summary judgment in his favor on the remaining claims in his complaint.[4] Dkt. No. 24. The motion was stayed on August 28, 2014, however, in light of an intervening application by plaintiff for leave to file an amended complaint. Dkt. No. 27. Plaintiff's motion to amend was ultimately granted on November 25, 2014, and a first amended complaint was filed on that same date. Dkt. Nos. 33, 34. A second amended complaint ("SAC"), the currently operative pleading, was subsequently filed by plaintiff on December 15, 2014, with leave of court. Dkt. Nos. 39, 41, 42. In his SAC, plaintiff asserts procedural due process and retaliation claims against Eric Gutwein, Albert Prack, and A.W. Dirie, the Deputy Superintendent of Security at Greene.[5] Dkt. No. 42 at 1-2.

Defendants responded to plaintiff's summary judgment motion on January 7, 2015. Dkt. No. 47. Plaintiff has since filed a reply in response to defendants' opposition and in further support of his motion.[6] Dkt. No. 48. Discovery in the case is ongoing, as evidenced by subsequent filings by the parties. See, e.g., Dkt. Nos. 53, 54, 56, 58, 61. Plaintiff's summary judgment 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 Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Rule 56(d) of the Federal Rules of Civil Procedure

As a threshold matter, defendants argue that plaintiff's motion is premature because they have not had an adequate opportunity to conduct discovery and, prior to the deadline for responding, had yet to conduct plaintiff's deposition. Dkt. No. 47 at 4-5.

Neither Rule 56, which governs summary judgment motions, nor the court's pretrial scheduling order, contains a per se prohibition against the filing a summary judgment motion prior to the close of discovery. The Second Circuit has explained that, ordinarily, "summary judgment should be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof." Hellstrom v. U.S. Dep't of Veterans Affairs, 20 F.3d 94, 97 (2d Cir. 2000) (quotation marks and alterations omitted) (emphasis added). Before granting summary judgment, a court should insure that the non-moving party has "had the opportunity to discovery information that is essential to his opposition to the motion for summary judgment." Hellstrom, 20 F.3d at 97 (quotation marks omitted). "Only in the rarest of cases may summary judgment be granted against a [party] who has not been afforded the opportunity to conduct discovery." Id. (citing Sutera v. Sobering Corp., 73 F.3d 13, 18 (2d Cir. 1995)).

Rule 56(d) of the Federal Rules of Civil Procedure "addresses cases where a litigant opposing summary judgment requests additional discovery." Crystalline H2O, Inc. v. Orminski, 105 F.Supp.2d 3, 6-9 (N.D.N.Y. 2000) (McAvoy, J.). The rule provides that,

[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavit declarations or to take discovery; or
(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). It was designed to afford a non-moving party with a fair opportunity to engage in discovery before having to oppose a summary judgment motion.

The mere fact that discovery remains open does not alone compel denial of plaintiff's summary judgment motion. To successfully assert a Rule 56(d) defense to a summary judgment motion, a non-movant "must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine [dispute] of material fact, (3) what effort the affiant has made to obtain those facts, and (4) why [those efforts were] unsuccessful[.]" Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 925-27 (2d Cir. 1985)); accord, Crystalline H20, Inc., 105 F.Supp.2d at 6; Young v. Corbin, 889 F.Supp. 582, 584-85 (N.D.N.Y. 1995) (McAvoy, J.).

In their opposition, defendants have failed to satisfy the requirements of Rule 56(d). Significantly, their submission does not include an affidavit from any of them or their attorney providing specifics regarding what information is uniquely within plaintiff's knowledge or control and is necessary to afford them an adequate opportunity to respond to plaintiff's motion. See generally Dkt. No. 47. In addition, defendants have otherwise failed to satisfy the stringent requirements for invoking Rule 56(d) in opposition to plaintiff's motion. Id. I therefore recommend a finding that Rule 56(d) does not serve as an impediment to addressing plaintiff's motion at this procedural juncture.

B. Mootness

As a second procedural matter, defendants argue that plaintiff's motion is moot in light of the fact that it was filed prior the court's acceptance of plaintiff's SAC and therefore addresses the claims set forth in plaintiff's original complaint, which was superseded by his first amended complaint and again by the SAC. Dkt. No. 47 at 5.

Unlike a motion to dismiss or for judgment of the pleadings under Rule 12 of the Federal Rules of Civil Procedure, a motion for summary judgment does not test the sufficiency of the allegations of a plaintiff's complaint. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 309 (1996) ("On summary judgment..., the plaintiff can no longer rest on the pleadings[.]"). Rather, such a motion calls upon the court to survey the evidentiary record presented in support of and in opposition to the motion to assess whether there exist genuine disputes of material fact precluding the entry of summary judgment. See, e.g., Behrens, 516 U.S. at 309 ("On summary judgment..., the court looks to the evidence before it[.]"). In this case, plaintiff's two remaining causes of action, which allege a deprivation of procedural due process and First Amendment retaliation, are not materially different from those claims asserted in his original complaint and first amended complaint. Compare Dkt. No. 42 with Dkt. Nos. 1, 34. Accordingly, I recommend the court find that the fact the SAC was filed since plaintiff's motion was interposed does not stand as a procedural impediment to the court addressing plaintiff's summary judgment motion.

C. Summary Judgment Standard

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

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Weight 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").

D. Procedural Due Process

The first of the two causes of action set forth in plaintiff's SAC reasserts a claim previously dismissed by the court, alleging that defendants deprived him of procedural due process during the course of the disciplinary hearing conducted by defendant Gutwein and the administrative appeal that followed. See generally Dkt. No. 42. Liberally construed, plaintiff argues that no reasonable factfinder could conclude he was not deprived of procedural due process. Dkt. No. 24 at 44-48.

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 their opposition to plaintiff's motion, defendants focus upon the first of these two elements, contending that plaintiff cannot demonstrate that he was deprived of a cognizable liberty interest.[7] Dkt. No. 47 at 6-7.

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. The prevailing view in this circuit is that, 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. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.).[8] Accordingly, to determine whether plaintiff may succeed on the pending motion, I must inquire whether the allegations related to the conditions of plaintiff's SHU confinement rise to the level of an atypical and significant hardship under Sandin.

A typicality in a Sandin inquiry is normally a question of law. 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 Brookes 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.

As to the duration of the disciplinary segregation, restrictive confinement of less than 101 days, on its own, does not generally rise to the level of an atypical and significant hardship. Davis, 576 F.3d at 133 (citing Colon v. Howard, 215 F.3d 227 (2d Cir. 2000)). Accordingly, when the duration of restrictive confinement is less than 101 days, proof of "conditions more onerous than usual" is required. Davis, 576 F.3d at 133 (citing Colon, 215 F.3d at 232-33 n.5). The court must examine "the [actual] conditions of [the plaintiff's] confinement in comparison to the hardships endured by prisoners in general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.'" Davis, 576 F.3d at 134 (quoting Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir.1999)). On the other hand, the Second Circuit has suggested that disciplinary segregation under ordinary conditions of more than 305 days rises to the level of atypicality. See Colon, 215 F.3d at 231 ("Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.").

Plaintiff's bare allegation that he served seventy days of SHU confinement, standing alone, fails to satisfy Sandin 's requirement that the disciplinary sanction imposed an atypical and significant hardship in relation to the ordinary incidents of prison life. Davis, 576 F.3d at 133. Liberally construed, plaintiff now supplements his allegations regarding the SHU confinement by contending that, as a collateral consequence of defendant Gutwein's guilty determination and sanction, he was removed from a program he refers to as "area of preference/transfer closer to home." Dkt. No. 42 at 4, 6, 10. According to plaintiff, between June 2006 and January 2013, he was eligible to participate in the area of preference program. Id. at 4. Although the charges lodged in the misbehavior report issued to plaintiff in January 2013 did not, on their own, render plaintiff ineligible for a transfer as part of the program, plaintiff suggests that the portions of his sanction requiring him to serve ninety days in the SHU and a corresponding loss of good time credits disqualified him for participation. Id. at 6, 17. The record is not clear, however, regarding when or if plaintiff was actually removed from the area of preference program.

In 2012, plaintiff selected Sullivan and/or Woodbourne Correctional Facilities for his placement, but the record now before the court contains no evidence that he was ever transferred to either of those facilities. Id. at 4. Plaintiff states that in January 2013, he "remained in the Coxsackie HUB but was transferred to Greene and continued to be eligible for his area of prefeerence/closer to home [sic] transfer placement as long as he met the eligibility criteria." Id. On February 12, 2014, after plaintiff was sanctioned by defendant Gutwein at the disciplinary hearing, and after the disciplinary hearing conviction was annulled in state court, Jeff McKoy, the DOCCS Deputy Commissioner of Program Services, wrote plaintiff informing him that he had "been recommended for a transfer to another facility[.]" Dkt. No. 24 at 15. Although plaintiff characterizes this letter as his reinstatement into the area of preference program that had earlier been "rescindedd [sic] as a result of the [T]ier III guilty determination, " it is not at all clear, particularly when viewing the evidence in a light most favorable to the defendants, that it proves plaintiff was ever removed from the program. Id. at 6. McKoy's letter does not make reference to the area of preference program or indicate plaintiff was being reinstated into the program. Dkt. No. 24 at 15. In addition, as a basis for his retaliation claim asserted against defendant Dirie, plaintiff has contended that Dirie issued a transfer order for plaintiff in retaliation for plaintiff filing grievances in or about this same time period. Dkt. No. 42 at 10. Accordingly, it appears possible, based on the record, that McKoy's letter could be a reflection of defendant Dirie's order for transfer of the plaintiff. Dkt. No. 42 at 10.

In general, aside from plaintiff's vague suggestion, the record is devoid of any definitive proof to support plaintiff's claim that he was removed from the area of preference program as a result of the sanction imposed by defendant Gutwein following the disciplinary hearing. Plaintiff has not submitted any evidence reflecting that he was removed or when that occurred, and McKoy's letter only reflects that plaintiff was recommended for a transfer in or about February 2014. Although defendants have not addressed this allegation by plaintiff, the record established by plaintiff is sufficient to give rise to a genuine dispute of material fact with respect to whether plaintiff was removed from the area of preference program. Because the evidence before the court contains conflicting evidence regarding the alleged deprivation of plaintiff's liberty interests, I recommend his motion for summary judgment be denied with respect to his due process claim asserted against the three defendants.[9] See Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000) (holding that in cases where there is factual dispute concerning the conditions or duration of confinement, it may be appropriate to submit those disputes to a jury for resolution); see also Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).

E. Retaliation

In his motion, plaintiff contends, in essence, that no reasonable fact finder could conclude that defendants did not retaliate against him in connection with the disciplinary hearing and determination based upon his filing of complaints regarding certain conditions of confinement. Dkt. No. 42 at 6, 8, 10. In their opposition, defendants contend that plaintiff cannot establish a claim of retaliation as a matter of law. Dkt. No. 47 at 7-9.

It is well-established that prison officials may not lawfully take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provision 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."). To establish unlawful retaliation under section 1983, a plaintiff must prove that (1) he engaged in protected conduct; (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.).

Because of the relative ease with which claims of retaliation can be incanted, the Second Circuit has advised courts to scrutinize the claim with particular care. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). The Second Circuit explained that

[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, 239 F.3d at 491.

In this instance, the basis of plaintiff's retaliation claims against each of the defendants is the same. He alleges, and defendants do not dispute, that he engaged in protected activity by complaining of prison conditions, including the practice of imposing disciplinary sanctions upon entire dormitory units at Greene without a disciplinary hearing, and by submitting written complaints concerning the lack of impartiality of defendant Gutwein as a hearing officer.[10] See, e.g., Dkt. No. 42 at 6, 8, 10. With respect to the adverse action and causation elements of the retaliation claim, plaintiff contends that defendant Gutwein imposed the disciplinary sanction, and defendants Dirie and Prack reviewed and affirmed the disciplinary determination and sanction, in retaliation for his complaints. Id. The record evidence, however, does not support a finding in plaintiff's favor at this juncture regarding causation.

In opposition to plaintiff's motion, defendant Gutwein submitted a declaration in which he stated that he imposed the disciplinary sanction "to impress upon plaintiff that the providing of unauthorized legal assistance poses a risk to the safety and security of the correctional facility." Dkt. No. 47-2 at 3. He denies imposing the sanctions "for the purpose of disqualifying plaintiff from an area of preference transfer or for any other retaliatory reason." Id. Additionally, defendant Gutwein denies having any knowledge of plaintiff's complaints to defendant Prack regarding the Tier III hearing. Id. In light of this evidence, which squarely contradicts plaintiff's allegations of retaliation by defendant Gutwein, I find a genuine dispute of material fact exists regarding whether defendant Gutwein retaliated against plaintiff for submitting complaints.

Turning to defendant Dirie, although plaintiff contends that he did not take appropriate steps to remedy the alleged deficiencies of the Tier III hearing while it was pending, the record discloses evidence suggesting otherwise. In his declaration submitted in opposition to plaintiff's motion, defendant Dirie states that he responded to plaintiff's letters complaining of the timeliness of the hearing by advising plaintiff that his hearing had been adjourned with the permission of the Central Office. Dkt. No. 47-3 at 3. Defendant Dirie also stated that he personally reviewed the pertinent information regarding plaintiff's letter so he could respond accordingly. Id. Finally, defendant Dirie contends that, in his capacity as Deputy Superintendent for Security at Greene, he had no authority to review and reverse the disciplinary conviction. Id. If credited, these statements lead me to find that a reasonable factfinder could conclude, based on the record now before the court, that defendant Dirie responded to plaintiff's letters with no retaliatory animus.

Finally, plaintiff accuses defendant Prack of retaliating against him for filing complaints regarding defendant Gutwein's alleged impartiality by affirming his appeal of the disciplinary conviction and failing to adequately respond to his complaints regarding the timeliness of his Tier III hearing. Like defendants Gutwein and Dirie, defendant Prack has submitted a declaration in opposition to the pending motion denying plaintiff's allegations. Dkt.No. 47-4 at 1-5. According to defendant Prack, after reviewing the materials relevant to plaintiff's appeal, he affirmed defendant Gutwein's disciplinary determination. Id. at 2, 4, 14. Defendant Prack also stated that he responded to plaintiff's letters regarding the alleged deficiencies with the hearing, submitted while the hearing was pending, by advising him that he would have the opportunity to present evidence during the disciplinary hearing and, in the event he was found guilty, he could appeal the unfavorable determination. Id. at 2-3, 18. This evidence, if credited, could lead a reasonable factfinder to conclude that defendant Prack properly responded to plaintiff's correspondence based on the information available to him at the time and not in retaliation for the mere filing of the correspondence.

At a minimum, the allegations set forth in defendants' affidavits raise genuine disputes of material fact regarding whether the conduct of defendants Gutwein, Dirie, and Prack was causally related to plaintiff's First Amendment protected activity. Accordingly, I also recommend plaintiff's motion for summary judgment be denied with respect to his retaliation claims.

IV. SUMMARY AND RECOMMENDATION

Plaintiff has moved, prior to the close of discovery, for summary judgment on each of his two remaining causes of action. Based upon my finding that, at a minimum, genuine disputes of material fact exist precluding the entry of summary judgment on both counts, it is therefore hereby respectfully

RECOMMENDED that plaintiff's motion for summary judgment (Dkt. No. 24) be DENIED in all respects.

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.

Dec. 26, 2001.

Mark LaBounty, Pro Se, Marcy Correctional Facility, Marcy, for Plaintiff.

Michael J. Keane, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, for Defendants.

OPINION AND ORDER

COTE, District J.

On April 17, 1995, Mark LaBounty ("LaBounty"), who is presently incarcerated at Marcy Correctional Facility, brought this action pro se pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that the defendants violated his constitutional rights while he was an inmate at Fishkill Correctional Facility ("Fishkill"). On November 25, 1996, the Court granted in part the defendants' motion to dismiss. On February 5, 2001, the Court of Appeals for the Second Circuit vacated in part the November 25, 1996 decision, and remanded LaBounty's procedural due process claim for further development.FN1 This claim stems from LaBounty's wrongful confinement in "SHU" for 30 days, a claim that this Court had dismissed for failure to identify a violation of a liberty interest. After discovery, defendants now move for summary judgment. For the reasons set forth below, the motion is denied.

FN1. The claims brought by the plaintiff that survived summ ary judgm ent were tried before a jury on October 4, 1998. On October 6, 1998, the jury returned a verdict for LaBounty on his claim that Nurse Millie Rivera had been deliberately indifferent to his serious medical needs and awarded him $1 in nominal damages. The Second Circuit denied the appeals from the trial and the summary judgment opinion, but reversed the dismissal of the due process claim at issue here. LaBounty v. Kinkhabwala, No. 99-0329, 2001 WL 99819 (2d Cir. Feb. 5, 2001).

BACKGROUND

LaBounty's allegations against the defendants are fully described in the Court's November 25, 1996 Opinion, familiarity with which is presumed. LaBounty v. Coombe, et al., No. 95 Civ. 2616, 1996 WL 684168 (S.D.N.Y. Nov. 25, 1996). Here, the Court only describes those facts necessary for the purposes of this motion.FN2

FN2. To the extent that the plaintiff reiterates in his opposition claims that have been previously dismissed or makes new claims unrelated to the issues which have been remanded, those claims are not properly before this Court and the Court does not consider them here.

By Order dated February 13, 2001, the Court described the issues remanded by the Court of Appeals for further development as follows:

1. The plaintiff's procedural due process claim that the disciplinary hearing held on January 23 and 27, 1995 was delayed, that witnesses at that hearing were examined outside his presence, and that Vuturo prejudged the merits of the hearing.
2. Whether plaintiff's due process rights were violated while he was in SHU during the period beginning on January 27, 1995, by
(a) a denial of medication for his ear infection;
(b) the prescription of Flexeril for a back condition;
(c) Nurse Rivera substituting his back pain medication with an unknown drug which caused him dizziness and head and stomach aches;
(d) a denial of paper and pencils;
(e) a denial of out-of-cell exercise;
(f) a denial of access to library books;
(g) not being permitted to mail letters in the evening; and
(h) the censorship or destruction of his mail, legal documents, and personal papers.
3. Whether, under Sandin v. Conner, 515 U.S. 472 (1995) and its progeny, the plaintiff has a liberty interest sufficient to bring the due process claims described in items 1 and 2.

The parties were ordered to inform the Court if they had any other understanding of the Court of Appeals' Order of remand.

By letter dated February 27, 2001, the defendants agreed that the February 13, 2001 Order correctly described the remanded issues. By letter dated February 17, 2001, the plaintiff also agreed with the description of the issues, but indicated a wish to add three additional issues. By Order dated February 28, 2001, the Court found that the issues remanded for further development were those described in the February 13, 2001 Order.

The following facts are undisputed or as shown by the plaintiff unless otherwise noted. On January 12, 1995, LaBounty went to the clinic at Fishkill to renew his prescriptions for hypertension medication, and to complain of an ear infection. On that day, Nurse Ronald Waller issued an "Inmate Misbehavior Report" against him, which included the charge of refusing a direct order. Also on that day, Robert L. Macomber issued a "Inmate Misbehavior Report" against LaBounty, which included the charge of possessing outdated medications in his cell.

Tier III Hearing

On January 23 and 27, 1995, hearing officer Joseph Vuturo ("Vuturo") conducted a "Tier III" disciplinary hearing to address the charges against plaintiff. FN3 On January 27, Vuturo found LaBounty guilty of violating a direct order and possessing outdated medications. Vuturo sentenced LaBounty to 90 days of segregated confinement in the Special Housing Unit ("SHU"), of which 60 days were suspended. LaBounty served 30 days in SHU, beginning on January 27, 1995.

FN3. Tier III hearings are held for "the most serious violations of institutional rules.'" Colon v. Howard, 215 F.2d 227, 230 n. 1 (2d Cir.2000) (citation omitted).

On January 27, 1995, LaBounty appealed his conviction to the Commissioner of the Department of Correctional Services ("DOCS"). On March 22, 1995, the DOCS Director of the Special Housing/Inmate Disciplinary Program, defendant Donald Selsky ("Selsky"), reversed LaBounty's conviction on the charge of possessing outdated medication because the "[m]isbehavior report fail[ed] to support [the] charge." On February 6, 1996, Selsky "administratively reversed" plaintiff's conviction on the only remaining charge-disobeying a direct order - "due to off-the-record communication used as evidence in hearing." Selsky directed that any records containing references to the January 27, 1995 hearing be expunged.

SHU Conditions

The SHU regulations provide that, while in SHU, inmates are confined to their cells for 23 hours a day, and are permitted to leave their cells for recreation, visits to the medical department, legal visits, guidance or counselor interviews, and for showers two times per week. SHU may be imposed for disciplinary and non-disciplinary, or administrative, reasons. Between January 1, 1991 and December 31, 1996, 162, 601 of the 215, 701 inmates in the New York correction system received "confinement sanctions." 106, 265 inmates were penalized by "keeplock" confinement. In 1993, 4.2% of the inmates in DOCS' confinement were sentenced to SHU, and in 1994, 4.8% were sentenced to SHU.

Plaintiff's Experience in SHU

While in SHU, LaBounty was deprived of all of the pain medication which had been prescribed for "constant severe pain related to his spinal condition, " FN4 as well as medication for an ear infection. LaBounty complained to defendant Nurse Rivera and to other medical staff that he was not receiving his pain medication and that he was suffering from an ear infection, but he received no response from them. On February 13, 1995, LaBounty was prescribed "Flexeril" by a physician's assistant, but LaBounty claims the medicine was merely prescribed as a "pretext" and that it did not help his severe pain or his ear infection. LaBounty was in "constant severe pain for the duration of his 30-days in SHU." LaBounty was not treated for his ear infection until he was ...


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