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Bernier v. Lepkowski

United States District Court, W.D. New York

February 26, 2018

JEAN BERNIER, #29463-054, Plaintiff,



         I. Introduction

         This 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.)

         II. Factual Background and Procedural History

         Plaintiff Jean Bernier, a/k/a Charles Watson (“Plaintiff”), [1] an 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 process.[2]

         The following facts are derived from the amended complaint and are assumed to be true for the purposes of this motion.

         In July 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.)

         Deft. 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.)

         Deft. 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.)

         Plaintiff 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).

         Plaintiff 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.)

         Plaintiff then filed this action, challenging, inter alia, the disciplinary proceedings at Elmira ...

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