Calendar Date: February 17, 2017
Reginald McFadden, Attica, appellant pro se.
T. Schneiderman, Attorney General, Albany (Martin A. Hotvet
of counsel), for respondents.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Supreme Court (M. Walsh, J.), entered
September 21, 2015 in Albany County, which, among other
things, granted defendants' motion to dismiss the amended
was charged in two misbehavior reports with violating certain
prison disciplinary rules; the February 2010 misbehavior
report was authored by defendant David V. Amodio, and the
October 2011 misbehavior report was authored by defendant
Gregory Edgar - both of whom are employees of the Department
of Corrections and Community Supervision (hereinafter DOCCS).
Although plaintiff was found guilty of the various charges
contained within those misbehavior reports, this Court
reversed the determination of guilt that was based upon the
February 2010 misbehavior report and remitted the matter for
further proceedings (Matter of McFadden v Bezio, 92
A.D.3d 988 ). In response, the determination of guilt
was administratively reversed, and the matter was expunged
from plaintiff's institutional record. Thereafter, the
determination of guilt predicated upon the October 2011
misbehavior report also was administratively reversed.
commenced this action alleging, among other things, that the
subject misbehavior reports were false and had been filed by
Amodio and Edgar in retaliation for plaintiff's exercise
of certain constitutionally protected rights. Plaintiff
further alleged various claims against defendant Albert
Prack, DOCCS's Director of Special Housing and Inmate
Disciplinary Programs, and defendant Anthony J. Annucci,
DOCCS's Acting Commissioner - generally contending that
he had been denied due process relative to the administrative
reversal and/or expungement of the disciplinary
determinations at issue. Supreme Court granted
defendants' subsequent motion to dismiss plaintiff's
amended complaint, finding that plaintiff's claims were
either time-barred or failed to state a cause of action. This
appeal by plaintiff ensued.
affirm. "On a motion to dismiss pursuant to CPLR 3211
(a) (7) for failure to state a claim, we must afford the
complaint a liberal construction, accept the facts as alleged
in the pleading as true, confer on the nonmoving party the
benefit of every possible inference and determine whether the
facts as alleged fit within any cognizable legal theory"
(NYAHSA Servs., Inc., Self-Ins. Trust v People Care
Inc., 141 A.D.3d 785, 787-788  [internal quotation
marks, brackets and citations omitted]; see Maki v
Bassett Healthcare, 141 A.D.3d 979, 980 ,
appeal dismissed and lv denied 28 N.Y.3d 1130');">28 N.Y.3d 1130
). With respect to plaintiff's 42 USC § 1983
claims against Amodio, we agree with Supreme Court that, even
assuming - without deciding - that plaintiff's amended
complaint alleged causes of action upon which relief could be
granted, plaintiff's retaliation and access-to-court
claims are barred by the three-year statute of limitations
(see e.g. Higgins v City of New York, 144 A.D.3d
511, 512 ; Matter of Resnick v Town of Canaan,
38 A.D.3d 949, 953 ). The misbehavior report authored
by Amodio was delivered to plaintiff on or about February 17,
2010, at which time plaintiff knew or should have known that
he was aggrieved. Accordingly, plaintiff's claims against
Amodio - as set forth in the 2014 complaint and amended
complaint - are untimely. Additionally, the continuous
violation doctrine is of no aid to plaintiff here, as the
allegedly false misbehavior report and its use at the 2010
disciplinary hearing "constitute single and distinct
events" (Thomas v City of Oneonta, 90 A.D.3d
1135, 1136 ).
plaintiff's retaliation claim against Edgar,
plaintiff's amended complaint "fail[ed] to allege
facts establishing the requisite causal nexus between the
protected activity and the adverse action" (Diaz v
New York State Catholic Health Plan, Inc., 133 A.D.3d
473, 474  [internal quotation marks and citation
omitted]; see Whitfield-Ortiz v Department of Educ. of
City of N.Y., 116 A.D.3d 580, 581 ). In light of
plaintiff's conclusory allegations in this regard, his
claims against Edgar were properly dismissed for failure to
state a cause of action.
even assuming that plaintiff's due process claims against
Prack and Annucci are not moot (see generally Matter of
Simmons v Kirkpatrick, 142 A.D.3d 1245, 1245 ), we
agree with Supreme Court that such claims must be dismissed.
The disciplinary determinations at issue have been
administratively reversed and expunged from plaintiff's
institutional record. As such, we are unable to discern how
plaintiff's due process rights were violated in the
context of what proved to be the favorable administrative
and/or appellate review of those determinations.
Plaintiff's remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.
McCarthy, J.P., Lynch, Devine ...