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Ayers v. J. Esgrow

United States District Court, W.D. New York

March 1, 2017

HOWARD AYERS, Plaintiff,
J. ESGROW, Hearing Officer CHO; L. FRIOT, SCC; D. VENETTOZZI, Acting Director SHU; and A. PRACK, Director Special Housing Unit, Defendants.




         Pro se plaintiff Howard Ayers commenced this action in July 2012, alleging violations of his constitutional rights under 42 U.S.C. § 1983 and Article 1, Section 3, of the New York State Constitution.[1]

         This case was referred to United States Magistrate Judge Leslie G. Foschio on May 23, 2013. Docket Item 16. On March 30, 3016, Judge Foschio issued a Report and Recommendation (“R&R”) and a Decision and Order (“D&O”) addressing several pending motions. Docket Item 72. For the reasons set forth below, the Court adopts the R&R in part.


         The plaintiff's original complaint included three claims: violations of procedural due process (first and third claims) and a violation of his free exercise of religion (second claim). See Docket Item 1. In December 2014, the plaintiff's second and third claims were dismissed with leave to file an amended complaint. Docket Item 32. So in February 2015, the plaintiff filed a new pleading supplementing his second and third claims. See Docket Item 34 (docketed as “Amended Claims”).

         On March 23, 2015, the plaintiff filed his “Motion for Partial Summary Judgment-First Claim Only.” See Docket Item 38-4. The defendants filed a cross-motion, entitled “Defendant's Motion for Summary Judgment, ” shortly thereafter. Docket Item 47. In that cross-motion, the defendants (1) requested partial summary judgment on the plaintiff's first claim, Docket Item 47-1 at 3-18, and (2) requested that the plaintiff's amended second and third claims be screened and dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) (screening procedures for pro se inmate complaints). See Id. at 20-21.

         The plaintiff-apparently interpreting the defendants' Motion for Summary Judgment as being a motion for summary judgment on all his claims rather than on simply the first claim-filed a flurry of motions in response. Judge Foschio denied two of these motions: Docket Items 52 (motion for stay) and 53 (motion for extension of time to file a response). Thereafter, the plaintiff filed two more motions that are addressed in the R&R/D&O: a motion for reconsideration, Docket Item 57, and what the plaintiff titled “Motion Under Fed.R.Civ.P. 56(d)(f), ” Docket Item 59. The latter was docketed as another motion for summary judgment (the third in this procedural Gordian Knot) and was fully briefed. But that motion apparently was intended only to oppose the defendants' cross-motion to screen the plaintiff's amended second and third claims; it did not itself request summary judgment.[2]

         In his R&R, Judge Foschio recommended that this Court: deny the plaintiff's Motion for Partial Summary Judgment (Docket Item 38); grant the defendants' Motion for Summary Judgment to the extent that it sought partial summary judgment on the plaintiff's first claim (Docket Item 47); deny as moot the plaintiff's “Motion Under Fed.R.Civ.P. 56(d)(f)” (Docket Item 59); and dismiss with prejudice, after screening, the plaintiff's amended second and third claims (Docket Item 34). Docket Item 72 at 28. Judge Foschio also denied the plaintiff's non-dispositive motion for reconsideration (Docket Item 57). See Docket Item 72 at 28.


         On a motion for summary judgment, the Court must construe the facts in the light most favorable to the non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). Here, each party has moved for partial summary judgment on the plaintiff's first claim. See Docket Items 38, 47. In presenting the facts, the Court therefore draws from the appropriate party's statement of undisputed facts (Docket Items 39, 42-2) whenever possible.

         On June 7, 2011, defendant Friot, a corrections officer at the Elmira Correctional Facility where the plaintiff was incarcerated, issued a misbehavior report that charged Ayers with a sex offense and threat in violation of the prison rules:

On 6/7/2011 at approximately 9:31 a.m. I received confidential information from a reliable source that informed me that inmate Ayers, Howard 93A2932, G-&-24-, forced inmate Dilone, Jonathan . . . to engage in a sexual act. The incident dates back to August 2010 during Ramadan. This source stated that the incident took place in the mess hall during the preparation of the Ramadan meals. Inmate Ayers approached inmate Dilone with his exposed erect penis and ordered him to preform [sic] oral sex upon him. . . . Dilone did masturbate inmate Ayers in fear that if he did not there would be physical relatiation [sic]. . . . Inmate Dilone is in fear of his safety as inmate Ayers is an influential member of the Nation of Islam Community and a key leader in the group (see attached callouts).

Docket Item 48-1 at 12.

         On June 9, 2011, in the first session of the Tier III hearing before defendant Esgrow, a hearing officer at the facility, Ayers pleaded not guilty to the charges against him and was given an opportunity to ask that certain witnesses testify. Id. at 21-24. He requested the following witnesses: Corrections Officer Friot, who filed the Misconduct Report; and inmates Collins, Hammock, and Mingo, who, like Ayers, worked as cooks in preparation of that year's Ramadan celebrations. Docket Item 48-1 at 21-23. During the next session, on June 21, Ayers provided the questions he wanted Esgrow to ask these witnesses. Docket Item 48-1 at 28-30.

         On June 23, Esgrow interviewed inmate Mingo. Mingo told Esgrow that Dilone, the alleged victim, had only recently stopped attending Nation of Islam services; that Mingo did not witness the alleged misconduct; and that the mess hall listed in the report had a layout such that someone would have seen the sexual acts alleged against Ayers had they occurred. Id. at 30-34. The interview was recorded. Id.

         Esgrow played this testimony for Ayers during proceedings on June 28, 2011. Id. at 34. Esgrow then advised Ayers that inmates Collins and Hammock had refused to testify for him, and he asked Ayers whether those two witnesses would provide testimony different than Mingo's. Docket Item 48-1 at 34. Ayers responded that he did not know what they would say. Id. Esgrow provided Ayers with documentation of Collins's refusal, but when he could not find evidence of Hammock's refusal, he stated that Ayers could review that documentation once it was located. Id. at 50-51. Esgrow also received into evidence an affidavit from inmate Carmichael, who stated that he had worked in the kitchen with Ayers during meal preparations for Ramadan and that he had not witnessed any alleged misbehavior. Id. at 51-52.

         Esgrow also questioned Friot-with Ayers present-at the June 28 proceeding. During the questioning, Ayers said that Friot had retaliated against him for his “affiliation in the [Nation of Islam].” Id. at 36. When asked by Esgrow whether he wrote the report in retaliation for the plaintiff's involvement with the Nation of Islam, Friot responded that he had not. Id. On the contrary, Friot said that he wrote the report “[b]ecause it was based on information that was give[n] to [him] by several different sources that indicated that this was going on . . . because it's a violation of the department['s] rules.” Id. On further questioning, Friot indicated that he had no personal knowledge of the incident or of any words constituting the alleged threat, that he considered the mess hall to include both the mess hall and the kitchen areas, and that Dilone remained a registered member of the Nation of Islam. Id. at 35-41. At the end of the session, Esgrow accepted a series of sign-in sheets proffered by Ayers and then closed the proof. Id. at 41-43, 51-53.

         On July 12, 2011, Esgrow found Ayers guilty with respect to the alleged sex offense and not guilty with respect to the alleged threat. Id. at 53. He based his findings on the misbehavior report, Friot's testimony, handwriting samples, and confidential testimony. Id. Esgrow explicitly found that “this misbehavior report [was] not a result of retaliation by staff” and that Ayers “had adequate opportunity for meaningful assistance” during his hearing. Id. As a result, Ayers was assessed a $5 surcharge; was assigned to the Special Housing Unit (“SHU”) for six months-June 9 to December 9, 2011; and lost special housing, package, and commissary privileges, as well as access to his phone and one month of good-time credit. Id. at 54. On October 21, 2011, he was transferred from Elmira to Attica Correctional Facility, where he was placed in the general prison population. Docket Item 48-1 at 60. He had spent 134 days in SHU confinement.

         APPLICABL ...

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