United States District Court, W.D. New York
REPORT AND RECOMMENDATION
HUGH B. SCOTT, UNITED STATES MAGISTRATE JUDGE.
case has been referred to the undersigned by Hon. Richard J.
Arcara for all pre-trial matters, including preparation of a
Report and Recommendation on dispositive motions. (Dkt. No.
37.) Currently pending before the Court is Defendant
Lepkowski's (“Deft. Lepkowski”) motion to
dismiss. (Dkt. No. 61.)
Factual Background and Procedural History
Jean Bernier, a/k/a Charles Watson (“Plaintiff”),
inmate in the care and custody of Federal Bureau of Prisons,
filed this action pursuant to 42 U.S.C. § 1983, alleging
violations of his constitutional rights while he was
incarcerated at Elmira Correctional Facility
(“Elmira”) under the New York State Department of
Corrections and Community Supervision (“DOCCS”)
(Dkt. No. 60.) Because Plaintiffs original complaint (Dkt.
No. 1) alleged multiple violations against various DOCCS
employees not assigned to Elmira and outside of the Western
District, the Court previously granted Defendants' motion
to sever claims arising at Auburn and Cayuga Correctional
Facilities. (Dkt. No. 50.) Plaintiff then amended his
complaint (Dkt. No. 60) to allege that defendants captioned
as “ORC Sweet” and “Hearing Officer
Lepkowski” retaliated against him and denied him due
following facts are derived from the amended complaint and
are assumed to be true for the purposes of this motion.
of 2012, Plaintiff was served a disciplinary report authored
by ORC Sweet accusing him of a rule violation. (Dkt. No. 60,
¶ 11.) The disciplinary report “had just stated a
charge without describing any particular acts of conduct . .
. Plaintiff had no notice of exactly what actions he was
defending against.” (Id., ¶ 14.)
Lepkowski conducted the disciplinary hearing sometime in
early August, 2012. (Id., ¶ 11.) Two officers
testified on Plaintiffs behalf. (Id.) Plaintiff also
requested someone named Ms. Rasheena to testify at the
hearing, but his request was denied by Deft. Lepkowski
because the witness did not work for DOCCS. (Id.,
¶¶ 12, 13.)
Lepkowski found Plaintiff guilty and sanctioned him to 90
days in the Special Housing Unit (“SHU”).
(Id., ¶ 15.) Plaintiff subsequently served the
SHU sentence at Cayuga Correctional Facility
(“Cayuga”), in S-Block, a double-celled unit.
(Id., ¶ 16.) With regard to the SHU
confinement, Plaintiff alleges:
You are kept in the cell 24 hours a day. For recreation there
is a space in the back of the cell which is opened an hour a
day. This means that you never go outside and are effectively
deprived of sunshine. All personal property is prohibited
except for legal work. There are no hygiene supplies
available but for a small bar of soap on shower days. There
is no access to commissary to buy lotion and shampoo, baby
oil or hair grease. There is a limit on underwear and
clothing and when they are washed. There is a limit on paper
and envelopes and on materials you can obtain and research
from the law library.
You are shackled and handcuffed whenever you are escorted out
of the cell and the restraints are kept on even in a visit to
see medical staff or on a personal visit which is non-contact
and behind the glass.
(Id., ¶¶ 16, 17.) Plaintiff also alleges
that he was “exposed to being with another individual
twenty-four hours a day and all the baggage that comes with
that, conflicts and fights.” (Id., ¶ 17.)
appealed the disciplinary determination, which was
administratively reversed on October 16, 2012, nine days
prior to the completion of his 90-day sentence.
(Id., ¶¶ 18-19.) But, Plaintiff claims, he
was not released from SHU until June, 2013, after serving
“an aggregate of eleven months in SHU.”
(Id.) This claim of an aggregate eleven months of
confinement is derived from the facts set forth in the
original complaint in this action. (Dkt. No. 1.) Because
Plaintiff is proceeding pro se, the Court considers
both his original and his amended complaints together for
purposes of asserting his due process claim against Deft.
Lepkowski. See Little v. City of New York,
13-CV-3813, 2014 WL 4783006, at *1 (S.D.N.Y. Sept. 25, 2014).
was transferred to Cayuga in August, 2012, to serve his
90-day SHU sanction. While housed at Cayuga, Plaintiff
received multiple misbehavior reports for failing to obey an
order and refusing to agree to double-bunk housing. (Dkt. No.
1, ¶¶ 29, 32-36.) Plaintiff participated in three
disciplinary proceedings at Cayuga, dated October 17, October
26, and November 15, 2012, after which he was sentenced to
30, 60, and 180 days of additional SHU time, respectively.
(Id., ¶¶ 32-35.)
then filed this action, challenging, inter alia, the
disciplinary proceedings at Elmira ...