United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER Jr., Magistrate Judge.
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all further proceedings, including the entry of final judgment. Dkt. #32.
Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated during his incarceration at the Wende Correctional Facility ("Wende"). Dkt. #1. Specifically, plaintiff alleges that: (1) Education Supervisor Furlani denied plaintiff due process during the course of multiple disciplinary hearings; (2) Special Housing Unit ("SHU"), Director Prack failed to modify plaintiff's disciplinary sentence; (3) Captain Casaceli denied plaintiff due process during he course of a disciplinary hearing; (4) CO Rynkewicz issued six false misbehavior reports in retaliation for plaintiff exercising his right to file grievances and complain about staff misconduct; (5) CO Rynkewicz used excessive force upon plaintiff; (6) Sergeant Theriault subjected plaintiff to cruel and unusual punishment by allowing use of the retention strap without obtaining prior authorization and by imposing a cell shield and mechanical restraint order upon plaintiff; and (7) Sergeant Theriault and Captain Casaceli denied plaintiff the opportunity for meaningful exercise in violation of plaintiff's right to be free from cruel and unusual punishment. Dkt. #1.
Currently before the Court is defendants' motion for partial summary judgment (Dkt. #41), and plaintiff's cross motion for summary judgment. Dkt. #46. For the following reasons, defendants' motion is granted in part and plaintiff's motion is denied.
January 28, 2010 Misbehavior Report - Gangs
On January 28, 2010, following a company cell search, CO Littles issued a misbehavior report charging plaintiff with belonging to a gang; interference with an employee; contraband; altered item; creating a disturbance; and refusing a direct order. Dkt. #55-1, p.2.
At the disciplinary hearing conducted by Commissioner's Hearing Officer ("CHO"), Furlani on Feburary 3, 2010, plaintiff pled guilty to the charge of possession of an altered item, but denied the remaining charges. Dkt. #55-2, p.4. Plaintiff requested that his hearing assistant testify regarding her conversation with five inmate witnesses, but CHO Furlani informed plaintiff that although he could call the inmate witnesses, he would not allow the hearing assistant to testify as to her interviews of the inmate witnesses. Dkt. #55-2, pp.5 & 40. Plaintiff also requested testimony from the CO's searching cells near plaintiff; a Rastafarian staff person to testify that the gang sign was actually a religious symbol; and the author of the misbehavior report, CO Littles. Dkt. #55-2, pp.5-7. CHO Furlani denied the request for a Rastafarian staff person, explaining that the Rastafarian inmate coordinator was the Catholic Chaplain, who was unlikely to be able to testify as to the religious significance, if any, of the hand gesture displayed in the photograph. Dkt. #55-2, p.7.
Although plaintiff's hearing assistant allegedly identified one of the CO's searching an adjoining cell as CO Grosekowsky, CHO Furlani determined that no such officer was employed at Wende. Dkt. #55-2, pp.7 & 10-11. However, CHO Furlani determined that CO Kyle was working during the company cell frisk and called him to testify. Dkt. #55-2, p.7. CO Kyle testified that inmates are allowed to observe the cell frisk in the gun walk between the windows and cells so long as they are quiet and don't create a disturbance or distract the CO's performing the cell searches. Dkt. #55-2, p.8. CO Kyle testified that he was searching either the cell next to plaintiff's cell or the cell two cells from plaintiff's cell and heard plaintiff questioning what the officers were doing in a loud tone that caused him to come out of the cell he was searching and escort plaintiff off the company. Dkt. #55-2, pp.9-11. CHO Furlani advised plaintiff that CO Moran was also working the company cell frisk, but plaintiff declined to call him as a witness. Dkt. #55-2, pp.11 & 29.
CO Ferron testified that he is the On the Job Training Officer and was training CO Littles during the search of plaintiff's cell. Dkt. #55-2, pp.12-13. CO Ferron testified that the following items were discovered in plaintiff's cell: two hot pots which had been altered; a mess hall tin can and jumper wire which inmates are not permitted to possess in their cells; a beard trimmer for which plaintiff had not obtained a permit; a Polaroid of three inmates making an "O" with their hands, which CO Ferron testified stands for "outlaw gangsters, " a sign associated with the "Bloods;" and a Polaroid with "Is there a Heaven for a G?" written on it. Dkt. #55-2, pp.13-16 & 21-22. CO Ferron testified that "G" is an abbreviation for gangsters. Dkt. #55-2, p.22. CO Ferron also found letters including the abbreviation, "GKB, " which stands for "Gangster Killer Bloods, " and discussion of war between the Hummers and Bentleys. Dkt. #55-2, p.22. For example, one letter states:
... I am sending this epistle your way today to inform you that you have a new addition to the family along with many other komrades [sic]. Let me introduce my self [sic] and  you on some of my backround. [sic] I go by the handle of Reckless B. a.k.a. The Youngest in Charge. I'm 18 yrs. old and I reside in "The Jungle" (BUSHWICK). Im [sic] a Puerto Rican OLA who has been in the game since I was 12. My 1st Hood I ever pushed was G-Shyne (GKB) under a fool named SHA-RED from the Stuy. I later got plugged in by a  that goes by the name of INSANE B. I then through [sic] my hat on and pushed Hit Squad Brigade. I held the 1st floor to that hood at the age of 15 yrs old. My maturity was above avg. and the way I carried myself showed it all. I've been tested....
As for the "Hummer"! It wasn't moving well at all. Lack of leadership, communication and loyalty brung [sic] the hood down. I was left with no choice but to keep my hat on tight and remain a HATBOY! At the time I was under I-BRIM AKA OUTLAW. The Active Manager to the town. The unorganized hood drove me away. I got plugged in with the Big Fool Relly B. The Homie Superstar plugged me into the Bentley. At the time it seemed like a good move. It seemed organize. [sic] But what we didn't see was what was going on behind the wall. I was given the responsibility of holding down the 2nd floor to the hood. It was wavy. Until we started getting the news about this whole mess. To keep it official I'm tired of not having a stable, organized, and dedicated hood. We have an Army ready to ride. A [sic] army who is determined to progress.
* * *
My main purpose in this kite is to let you know that you have a [sic] Army willing to uplift this hood in many ways. As for... writing kites, and taking trips to see the homies, that is no problem. After all communication is a must. As for money being sent. [sic] We have kitties made specifically for the brothers who are incarcerated.
Dkt. #55-1, pp.6-7 Another letter states:
I currently sit in the Bentley under Relly. I've read a few of your vibes elaborating on [sic] current situation with the Bentley and I agree it's crazy but by reading your vibes I see your [sic] very intellectual and respect your movement because you don't hear no negativity about the Range Rover. [sic] respect the militancy of that. But more or less I was in lightened [sic] on the transaction to the Range Rover and was asked how I feel. I thought about it and told Relly I dig it. So I'm happy to say I'll love to be a part of your Army. I'm not a buster I'm more a silent thinker, express my opinion when needed. I bang when necessary, know how to be a Sergeant when my lieutenant is unable to be.  no rat know how to take responsibility for my actions, know how to present leadership and show loyalty. I [sic] only reason I will not remain loyal to the Bentley because its going to be one big war between Bentley's and I will not be a part of that. But for the most part I love my hood. I know you don't know me from a can of paint, but I admire the transaction for the up building of the Range....
Dkt. #55-1, p.9. CO Ferron testified that plaintiff became aggravated and aggressive as he and CO Littles began taking items out of his cell, questioning the authority for the search despite being told repeatedly that it was a company frisk and being warned that he would be removed if he didn't calm down. Dkt. #55-2, pp.23-25.
Plaintiff renewed his request for a witness to explain that the "O" hand gesture depicted in the Polaroid was a religious, rather than a gang symbol. Dkt. #55-2, p.21. CHO Furlani reiterated that the Rastafarian inmate coordinator at Wende is a Catholic Chaplain who was unlikely to be able to testify regarding Rastafarian hand gestures. Dkt. #55-2, p.21. Given the lack of a Rastafarian Chaplain, plaintiff requested a Rastafarian inmate to testify, but that request was denied. Dkt. #55-2, p.52. Plaintiff then asked for someone from Albany, but that request was also denied. Dkt. #55-2, p.53.
Plaintiff also objected that he had requested CO Littles, not CO Ferron. Dkt. #55-2, p.29. CHO Furlani explained that CO Littles was not currently working at Wende and that CO Ferron co-authored the misbehavior report wtih CO Littles, who was undergoing on the job training under CO Ferron's direct supervision at the time of the search. Dkt. #55-2, p.29.
Plaintiff complained that he had not received a copy of the May 8, 2008 updated rules replacing Rule 105.12 (unauthorized organizations) with Rule 105.13 (gangs). Dkt. #55-2, pp.31-32. CHO Furlani observed during a break in the hearing that the rule was posted in plaintiff's cell block and advised plaintiff that he was responsible for following all posted rules. Dkt. #55-2, pp.45-49 & 53. Plaintiff argued that he should have received a copy of the updated rules. Dkt. #55-1, p.49.
Plaintiff was removed from the hearing because he was disruptive. Dkt. #55-2, p.54. In his absence, CHO Furlani found plaintiff guilty of all charges and sentenced plaintiff to 12 months of SHU with loss of recreation, package, commissary, phone and personal television privileges. Dkt. #55-1. In support of the disposition, CHO Furlani relied upon the testimony of CO Kyle, who
clearly stated that during the frisk of your cell he had heard you speak in a very loud tone which disturbed the cell search in progress and testified your actions violated Rule 104.13 and 107.10 Creating a Disturbance and Interference with Officer frisking your cell. CO Ferron testified in detail how he found several hot pots in clear violation of Rule 113.11 Altered Item and thus they are considered contraband Rule 113.23. CO Ferron's testimony... that... written letters and two pictures that were found in your cell clearly had gang related symbols and hand signs and words that indicated membership in the "Bloods" gang. As this organization is unauthorized it is a clear violation of Rule 105.13 Gangs. CO Ferron... stated your aggressive and loud tone disturbed the area.
Dkt. #55-2, p.54. CHO Furlani noted numerous prior disciplinary violations, including 3 previous violations of Rule 105.12 (unauthorized organization), which had been replaced by Rule 105.13 (gangs) in May of 2008. Dkt. #55-2, p.54.
Plaintiff filed an administrative appeal, arguing that he had not been provided notice of Rule 105.13 and that he was denied witnesses, including testimony from his hearing assistant, a Rastafarian inmate, and CO Litttles. Dkt. #42-3. Director of Special Housing/Inmate Disciplinary Program Norman Bezio affirmed the results of the Superintendent's Hearing on April 7, 2010. Dkt. #42-4.
On July 7, 2010, plaintiff wrote the Acting Director of Special Housing/Inmate Disciplinary Program, Albert Prack, seeking reconsideration of his sentence in accordance with a memorandum from Deputy Commissioner LeClaire regarding Disposition Guidelines for Rule 105.13, which suggested that first offenders receive 0-3 months in SHU. Dkt. #50, p.6. While acknowledging that he had previously been found guilty of violating Rule 105.12, plaintiff argued that these dispositions should not be considered when sentencing inmates for a violation of Rule 105.13. Dkt. #50, p.6. In response, Acting Director Prack informed plaintiff that:
The charge of 105.12 was a viable charge at that time and is still part of your disciplinary history. The hearing officer may consider the charge in the reason for disposition. Therefore, the penalty imposed was appropriate.
Dkt. #50, p.8.
By letter dated October 29, 2013, plaintiff requested reconsideration of his sentence based upon his discovery of a memo dated February 26, 2001 from Deputy Commissioner LeClaire to Father James C. Hayes, Chief of Chaplains, advising that "[a]ny misbehavior report dealing solely with the displaying of hand signals" such as the sign of the Holy Trinity or Salutation of Peace commonly displayed by Rastafarian Haile Salassie would be dismissed and that it was inappropriate to discipline inmates for possession of photographs displaying such a symbol. Dkt. #50, pp.20 & 43-44. Plaintiff argued that the CHO and the CO testifying regarding gang symbols should have known of this memo and, alternatively, the chaplain supervising Rastafarian inmates, if he had been allowed to testify, would have explained the significance of the symbol. Dkt. #50, p.21. Director Prack denied reconsideration by letter date November 20, 2013. Dkt. #50, p.22.
July 10, 2010 Misbehavior Report - Interference with CO Alvarado
On July 10, 2010, CO Alvarado issued a misbehavior report charging plaintiff with attempted assault and physical interference with staff after plaintiff attempted to strike CO Alavarado through the feed up hatch. Dkt. #50, p.49. As a result of this incident, a cell shield was installed on plaintiff's cell. Dkt. #50, p.51. Plaintiff was also subjected to a pre-hearing restricted diet order, commonly known as "the loaf." Dkt. #50, p.53.
Plaintiff was found guilty of interference with an employee and sentenced to 90 days in SHU with loss of package, commissary, phone and personal television privileges (85 days suspended), following a disciplinary hearing conducted by Captain Kearney on July 16, 2010. Dkt. #42-1, p.11 & Dkt. #50, p.55. Plaintiff's appeal of this disposition was affirmed by Acting Director Prack. Dkt. #42-1, p.11.
The cell shield order was renewed until August 10, 2010, when plaintiff filed a grievance seeking removal of his cell shield because he had been found not guilty of attempting to assault CO Alvarado. Dkt. #50, pp.59 & 64 & Dkt. #50-2, pp.16-18.
August 15, 2010 Misbehavior Report - Assault on CO Ford
On August 15, 2010, Sgt. Gregoire issued a misbehavior report charging plaintiff with assault on staff; failure to follow a direct order; and violent conduct. Dkt. #55-3, p.2. Specifically, the misbehavior report alleges that plaintiff got up from the metal detector ("Boss") chair during a post visitation frisk and grabbed hold of CO Ford's upper body, causing them to fall to the ground and fracturing CO Ford's ankle. Dkt. #55-3, pp.2. Plaintiff was observed by Nurse Walsh to have sustained a small abrasion to his left shoulder and middle knuckle of his left hand. Dkt. #55-3, p.3. Plaintiff was noted to complain of pain on the left rib area, but no abrasions or bruising were seen. Dkt. #50, p.70.
On August 20, 2010, plaintiff complained to DSS Sticht by letter copied to, inter alia, the Inspector General's Office, that he had been assaulted by CO Ford and that medical providers failed to document his injuries, including a split lip, swelling to his face and lacerations on his wrists. Dkt. #50-1, pp.4-8.
As a result of this incident, beginning August 28, 2010, plaintiff was subject to mechanical restraints whenever he was off of the unit, except when he was in the recreation pen. Dkt. #50-2, p.2.
At the disciplinary hearing conducted by CHO Casaceli, plaintiff's defense was that CO Ford had issues with plaintiff's brother, Corey Johnson, who had been an inmate at Wende in 2001 and was visiting plaintiff. Dkt. #55-4, pp.9-10. Plaintiff testified that while Mr. Johnson was at the vending machine, CO Ford told Mr. Johnson that he was going to take his beef with him out on plaintiff and when plaintiff went to the bathroom, CO Ford threatened to jump plaintiff. Dkt. #55-4, pp.10-11 & 90-91. Plaintiff testified that although his visit ended at 2:04, he was kept waiting to be escorted back to SHU until shift change at 3:00, despite policy affording SHU inmates priority and even though nearly all of the general population inmates had already been returned to their cells. Dkt. #55-4, pp.12, 31 & 35. Plaintiff testified that he was inside the booth waiting to be searched when CO Workman approached to search plaintiff, but Sgt. Gregoire told CO Workman to "let him go." Dkt. #55-4, pp.12 & 117. Plaintiff testified that, shortly thereafter, CO Ford approached plaintiff and swung at him. Dkt. #55-4, pp.12 & 117.
Plaintiff asked to have his brother, Corey Johnson, testify as a witness. Dkt. #55-4, p.67. CHO Casaceli denied that request because the incident occurred an hour and a half after Mr. Johnson left the facility. Dkt. #55-4, p.67. Plaintiff reiterated that the incident occurred because CO Ford had an issue with his brother. Dkt. #55-4, p.68. In support of plaintiff's motion for summary judgment, Corey Johnson submitted an affidavit stating that CO Ford approached him while he was at the vending machine and told him, "don't think it's over because you went home mother fucker." Dkt. #61, p.18. When Mr. Johnson challenged CO Ford to fight it out in the parking lot, CO Ford responded, "Why would I do that... I got your brother here with me, I'm going to fuck him up after his visit is over." Dkt. #61, p.18.
CO Williams testified that while she and CO Ford were transporting plaintiff to the bathroom, there was a brief conversation between CO Ford and plaintiff which CO Williams "was not fully aware of." Dkt. #55-4, p.84. When asked if she recalled the substance of the exchange between CO Ford and inmate Davis, CO Williams testified:
Not really, the only thing I recall on that date between Officer Ford and... inmate Davis which was not a verbal confrontation was something that the [sic] stated briefly through [sic] passing that he wanted to stick [sic] him. In regards to what I do not know because I was not present at any incident between Officer Ford and Inmate Davis.
Dkt. #55-4, p.85. CO Williams continued:
The only thing I recall which... inmate Davis spoke to me personally was that he just wanted to enjoy his visit and he did not want any kind of confrontation. Which I informed him that there was no reason for him to believe that it was any confrontation through [sic] his visitation with whoever was visiting him on that date.
Dkt. #55-4, p.85. CO Williams was not present in the strip frisk room and had left the visiting area at approximately 3:05 p.m. Dkt. #55-4, pp.84 & 86.
Inmate Kelly testified that while he was waiting to be searched following a visit, he overheard officers inquire, "what about this guy in the SHU? What are we going to do with him?" Dkt. #55-4, p.46. In response, inmate Kelly heard an offer state, "We're going to hold him for last." Dkt. #55-4, p.46.
Inmate Benning testified that he was sitting in the visiting room with approximately 15-20 other inmates waiting to be frisked at approximately 3:30 when he observed a couple of the officers walk back toward the frisk area. Dkt. #55-4, pp.59-60. He did not observe an altercation. Dkt. #55-4, p.60.
CHO Casaceli informed plaintiff that although inmates Cruz and Hynes had informed plaintiff's hearing assistant that they would testify at the disciplinary hearing, they had changed their minds. Dkt. #55-4, pp.61-62. Another witness, inmate Drake, was on draft and unavailable. Dkt. #55-4, p.63.
Sgt. Gregoire testified that when he, CO Workman and CO Zima went to pick plaintiff up from his visit to return him to SHU at approximately 3:30 pm, plaintiff was directed to sit in the Boss chair. Dkt. #55-4, pp.17 & 19. Plaintiff complied, but then jumped up and grabbed CO Ford. Dkt. #55-4, p.20. As CO Ford ...