United States District Court, W.D. New York
DECISION AND ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE
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
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.
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”).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.