United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
Alexander Williams ("Plaintiff), an inmate proceeding
pro se and in forma pauperis,
commenced this action pursuant to 42 U.S.C. § 1983 for
alleged violations of his constitutional rights, by filing a
complaint (the "Complaint") on August 31, 2016.
(See Compl. (ECF No. 1).) Plaintiff alleges that
Defendants Anthony Annucci ("Annucci"), Acting
Commissioner of the New York State Department of Corrections
and Community Supervision ("DOCCS"), Sergeant Maria
Velardo ("Velardo"), an employee of DOCCS, and
Administrative Hearing Officer Eric Gutwein
("Gutwein") (collectively, "Defendants"),
violated his Fourteenth Amendment rights to due process
during the course of his October 2015 disciplinary hearing
("Tier III Hearing"),  which resulted in his
continued confinement in the Special Housing Unit.
(See Compl. at 5-11.) Presently before the Court is
Defendants' motion to dismiss the Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1)
("Defendants' Motion"). (See
Defendants' Brief in Support of their Motion to Dismiss
(“Defs. Br.”) (ECF No. 27), at 1-4.) For the
following reasons, Defendants' Motion is
following facts are derived from the Complaint and the
documents appended thereto; their truth is assumed for
purposes of this motion only. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); see also Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 230 (2d Cir. 2016).
is a pro se inmate who was housed at Green Haven
Correctional Facility (“Green Haven”) at the time
of the alleged constitutional violations. (See
Compl. at 1.) Plaintiff originally resided in general
population until he was allegedly involved in a physical
altercation with another inmate on October 6, 2015.
(Id. at 6.) Immediately thereafter, Plaintiff was
committed to the Special Housing Unit (“SHU”).
(Id.) The claims asserted in this lawsuit stem from
the hearings following his SHU confinement.
October 8, 2015, while Plaintiff was confined in the SHU for
his alleged physical altercation with another inmate, he was
served with a misbehavior report charging various violations
of prison rules (the “Misbehavior Report”).
(See Id. at 6, 9.) The Misbehavior Report charges
Plaintiff with violations of correctional facility conduct
rules, specifically sections 104.11-Violent Conduct,
104.13-Creating a Disturbance, 100.10-Assault on an Inmate,
100.13-Fighting, and 113.10-Weapon. (Id. at
9.) Thereafter, Plaintiff was provided an
“Assigned Assistant”, Defendant Velardo,
(id. at 6), to help him develop a defense for his
upcoming Tier III Hearing. Plaintiff alleges that Velardo was
wholly ineffective in that she failed to perform
investigatory tasks, explain the charges to him, interview
witnesses, and obtain documentary evidence or written
statements as requested by him. (See id.)
Tier III Hearing was comprised of a series of sessions
conducted on three separate dates: October 9, 2015, October
22, 2015, and October 26, 2015. (See Compl. at 6,
7.) Defendant Gutwein presided over all three sessions.
(Id. at 6-8.) During the first session, on October
9, 2015, Plaintiff informed Defendant Gutwein that his
Assigned Assistant did not provide him “with all
documentation needed to prepare” his defense.
(Id. at 6.) Although Defendant Gutwein took note of
Plaintiff's concerns, he did not provide him with a new
Assigned Assistant and adjourned the hearing. (Id.
at 6, 7.)
the second session, Plaintiff's “requested
witness” Officer Ernst appeared to “present his
chain of events.” (Id. at 7.) Before Officer
Ernst testified, Defendant Gutwein “slid a piece of
paper” to Ernst “to read”, to which
Plaintiff “objected on [the] record.”
(Id.) Thereafter, Defendant Gutwein prohibited
Plaintiff from questioning Officer Ernst, deeming
Plaintiff's questions irrelevant; a finding that
Plaintiff now contests. (See id.) Plaintiff contends
that this conduct violated his right to due process. (See
id.) After “cross examination was completed”
the second session was then adjourned and Plaintiff was
returned to his cell. (Id.)
notifying Plaintiff, on October 26, 2015, Defendant Gutwein
commenced the third session. (See Compl. at 7.)
Plaintiff, therefore, was not present for this session,
during which time he alleges his witnesses gave testimony.
(Id.) Plaintiff contends that proceeding with the
final session in his absence constitutes a violation of his
due process rights. (See id.) Furthermore, the third
session occurred after the allotted time given to Defendant
Gutwein to complete the Tier III Hearing, which Plaintiff
alleges further violated his rights. (See id.) At
the conclusion of the Tier III Hearing sessions, Gutwein
found Plaintiff guilty on the charges in the Misbehavior
Report (the “Tier III Decision”). (See
Id. at 8.) As a consequence, Plaintiff remained in the
SHU for approximately 301 days and lost other privileges,
such as good time credit. (See id at 10.)
appealed the Tier III Decision to Defendant Annucci,
affirmed the decision on December 22, 2015. (See id.
at 8.) Subsequently, on July 1, 2016, Plaintiff filed an
Article 78 petition in New York State Supreme Court, Albany
County (the “Article 78 Court”) challenging the
Tier III Decision and its affirmance. (See id at 9.)
The Article 78 Court ordered that the Tier III Decision be
annulled without costs and directed respondents to conduct a
rehearing on the matter because portions of the transcript
from the Tier III Hearing were inaudible. (See id.)
Plaintiff further states, “I have exhausted all
remedies, ” but provides no further detail regarding
whether he had any additional hearings. (Id.)
he makes no mention of additional hearings in his Complaint,
Plaintiff was afforded a second hearing in August 2016 (the
“Rehearing”), which produced the same sentence as
the Tier III Hearing with credit for time served.
(See Declaration of Donald Venettozzi in Support of
Defendants' Motion dated April 18, 2017
(“Venettozzi Decl.”) (ECF No. 28), ¶11, Ex.
K.) After Plaintiff commenced this action,
he appealed the Rehearing determination, which was ultimately
affirmed. (See Id. ¶¶13, 14, Exs. M, N.)
Rule 12(b)(6) motion to dismiss, a court must assess whether
the complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations.” Id. at 679. The Court
must take all material factual allegations as true and draw
reasonable inferences in the non-moving party's favor,
but the Court is “‘not bound to accept as true a
legal conclusion couched as a factual allegation,
”' or to credit “mere conclusory
statements”, or “[t]hreadbare recitals of the
elements of a cause of action.” Id. at 678
(quoting Twombly, 550 U.S. at 555).
determining whether a complaint states a plausible claim for
relief, a district court must consider the context and
“draw on its judicial experience and common
sense.” Id. at 679. A claim is facially
plausible when the factual content pled allows a court
“to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
of pro se Plaintiffs are to be treated with great
solicitude and should be construed in a particularly liberal
fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). They must be read “to raise the strongest
arguments that they suggest.” Harris v. City of
N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal
quotations and citation omitted). Nevertheless, a pro
se plaintiff's pleading must contain factual
allegations that sufficiently “raise a right to relief
above the speculative level, ” Jackson v. N.Y.S.
Dep't of Labor, 709 F.Supp.2d 218, 224
(S.D.N.Y. 2010), and the Court's duty to construe the
complaint liberally is not “the equivalent of a duty to
re-write it, ” Geldzahler v. New York Medical
College, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).
resolving a motion to dismiss under Rule 12(b)(1), the
district court must take all uncontroverted facts in the
complaint (or petition) as true, and draw all reasonable
inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain's
Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d
Cir. 2014). “[T]he court may resolve the disputed
jurisdictional fact issues by referring to evidence outside
of the pleadings, such as affidavits, and if necessary, hold
an evidentiary hearing.” Zappia Middle E. Constr.
Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.
2000). Though a court “may consider affidavits and
other materials beyond the pleadings to resolve the
jurisdictional issue, [it] may not rely on conclusory or
hearsay statements contained in the affidavits.”
J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d
107, 110 (2d Cir. 2004).
Section 1983 Claims
1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citing City of Okla. City
v. Tuttle, 471 U.S. 808, 816 (1985)). “To state a
claim under Section 1983, a plaintiff must allege facts
indicating that some official action has caused the plaintiff
to be deprived of his or her constitutional rights.”
Zherka v. Amicone, 634 F.3d 642, 644 (2d Cir. 2011)
(citing Colombo v. O'Connell, 310 F.3d
115, 117 (2d Cir. 2002) (per curiam)); see also Ross v.
Westchester Cnty. Jail, No. 10-CV-3937(DLC), 2012 WL
86467, at *9 (S.D.N.Y. Jan. 11, 2012). A defendant's
conduct must therefore be a proximate cause of the claimed
violation in order to find that the individual defendant
deprived the plaintiff of his constitutional rights.
Ross, 2012 WL 86467, at *9 (citing Martinez v.
California, 444 U.S. 277, 285 (1980)). Additionally, a
plaintiff seeking monetary damages against the defendant must
show personal involvement on the part of the defendant in the
alleged constitutional deprivation as a prerequisite to
recovery under § 1983. Farid v. Ellen, 593 F.3d
233, 249 (2d Cir. 2010) (citing Farrell v. Burke,
449 F.3d 470, 484 (2d Cir. 2006)).
argue that Plaintiff's Complaint is ripe for dismissal
for failure to exhaust. (See Defs. Br. at 13-16.)
Specifically, Defendants contend that Plaintiff failed to
exhaust his administrative remedies because he was provided a
Rehearing after the Article 78 Court's determination, and
had an opportunity, but failed, to ...