Opinion
9:17-CV-0366 (DNH/TWD)
03-08-2021
JAMEL CLARK, Plaintiff, v. GERALD GARDNER, et al., Defendants.
APPEARANCES: JAMEL CLARK Plaintiff, pro se 99-A-0475 Sullivan Correctional Facility Box 116 Fallsburg, NY 12733 LETICIA JAMES Attorney General of the State of New York Attorney for Defendants The Capitol Albany, NY 12224 LAUREN ROSE EVERSLEY, ESQ. Ass't Attorney General
| APPEARANCES: | OF COUNSEL: |
| JAMEL CLARKPlaintiff, pro se99-A-0475Sullivan Correctional FacilityBox 116Fallsburg, NY 12733 | |
|---|---|
| LETICIA JAMESAttorney General of the State of New YorkAttorney for DefendantsThe CapitolAlbany, NY 12224 | LAUREN ROSE EVERSLEY, ESQ.Ass't Attorney General |
I. INTRODUCTION
This matter was referred for a Report and Recommendation by the Honorable David. N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Pro se Plaintiff Jamel Clark ("Plaintiff" or "Clark"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights at Shawangunk Correctional Facility ("Shawangunk") in 2014. (Dkt. No. 1.)
Defendants and claims remaining following initial review and motion practice are: (1) First Amendment retaliation claims against Corrections Officer ("C.O.") David DeGraff ("DeGraff") and C.O. George Karamanos ("Karamanos"); (2) Eighth Amendment excessive force claims against DeGraff, Karamanos, C.O. Richard McElroy ("McElroy"), and Sergeant ("Sgt.") Robert Harrison ("Harrison"); and (3) Fourteenth Amendment due process claims against Lieutenant ("Lt.") Gerald Gardner ("Gardner"), Deputy Superintendent of Security Louis Pingotti ("Pingotti"), Lt. Gregory Palen ("Palen"), Plant Superintendent Ronald Farah ("Farah"), Superintendent Joseph Smith ("Smith"), DOCCS Director Donald Venettozzi ("Venettozzi"), and DOCCS Acting Commissioner Anthony Annucci ("Annucci"). (Dkt. Nos. 9, 47.)
The Court refers to Defendants' DOCCS' ranks as indicated in 2014. Their present ranks and employment status may differ.
Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of the complaint in its entirety. (Dkt. No. 80.) In support of their motion, each Defendant has submitted declarations: Annucci (Dkt. No. 80-3); DeGraff (Dkt. No. 80-5); Farah (Dkt. No. 80-6); Gardner (Dkt. No. 80-8); Harrison (Dkt. No. 80-9); Karamanos (Dkt. No. 80-10); McElroy (Dkt. No. 80-11); Palen (Dkt. No. 80-12); Pingotti (Dkt. No. 80-13); Smith (Dkt. No. 80-16); and Venettozzi (Dkt. No. 80-17). Defendants also submit declarations from the following DOCCS employees: Michael Cunningham, Shawangunk Inmate Grievance Program ("IGP") Supervisor (Dkt. No. 80-4); Debra Fuller, Attica Correctional Facility ("Attica") IGP Supervisor (Dkt. No. 80-7); Corey Proscia, Sullivan Correctional Facility ("Sullivan") IGP Supervisor (Dkt. No. 80-14); Rachel Seguin, Assistant Director of the IGP for DOCCS (Dkt. No. 80-15); John Werlau, Shawangunk Correction Captain (Dkt. No. 80-18); and Sean White, Attica Correction Captain (Dkt. No. 80-19). Plaintiff filed a response. (Dkt. No. 87.) Defendants filed a reply and Plaintiff filed a sur-reply permitted by the Court. (Dkt. Nos. 88, 90, 92.)
For reasons explained below, the Court recommends that Defendants' motion for summary judgment be granted in part and denied in part.
II. BACKGROUND
A. Plaintiff's Housing Assignments
Plaintiff has been in DOCCS' custody since 1999. As relevant to this action, Plaintiff was incarcerated at Shawangunk from October 1, 2013, through December 23, 2014. (Dkt. No. 80-1 at ¶ 2.) He was temporarily housed at Attica from July 20, 2014, through August 25, 2014, for a court trip. (Dkt. No. 1 at 11.) Between September 8 and 11, 2014, and October 30 and November 17, 2014, Plaintiff was temporarily housed at Downstate Correctional Facility ("Downstate") and Sullivan, respectively, for mental health observation. (Dkt. No. 1 at 20-21; Dkt. No. 80-18 at ¶ 7; 80-1 at ¶¶ 13, 14.) On December 23, 2014, Plaintiff was moved to Sullivan and on January 30, 2015, Plaintiff was transferred to Attica, where he remained through February 8, 2016. (Dkt. No. 80-1 at ¶¶ 16, 17.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected unless indicated.
Generally, Plaintiff claims he spent more than 300 days in disciplinary confinement as a result of the six disciplinary hearings at issue. (Dkt. No. 1 at 41-42.) During his deposition, Plaintiff testified that he was "continuously" housed in disciplinary confinement from August 2014 until July 2015. (Dkt. No. 80-2 at 140-42.)
Defendants' submissions indicate that from August 5, 2014, through August 25, 2014, Plaintiff was housed in the general population "B block" in cell 0B-1130 at Shawangunk. (Dkt. No. 80-18 at ¶ 7.) On August 25, 2014, Plaintiff was placed in the Special Housing Unit ("SHU") result of a disciplinary infraction following a hearing conducted by Gardner. (Dkt. No. 80-1 at ¶ 3; see Part II.B., infra.) Plaintiff was assigned to cell SH-00-006. (Dkt. No. 80-18 at ¶ 8.) Plaintiff remained in the SHU at Shawangunk from August 25, 2014 through September 4, 2014. (Dkt. No. 80-1 at ¶ 5.) On September 3, 2014, Plaintiff's August 25, 2014, disciplinary hearing disposition was administratively reversed and, on September 4, 2014, Plaintiff was released back to general population. Id. at ¶¶ 4, 5.
Inmates in Shawangunk's SHU are subject to, inter alia, limitations on personal property, packages, commissary, programs, visits, and telephone calls, and out-of-cell recreation is limited to one hour daily. (Dkt. No. 80-18 at ¶ 11.)
On September 4, 2014, Plaintiff was involved in an incident whereby he was violently assaulted. Id. at ¶ 6. Plaintiff was transported to an outside hospital for medical evaluation and treatment of his injuries. (Dkt. No. 1 at 19.) Thereafter, Plaintiff was confined in the facility hospital. Id. at 19-20. As a result of this incident and on the recommendation of Lt. Connors, who is not a party, Plaintiff was placed under Involuntary Protective Custody ("IPC") status for his personal safety and for the safety and security of the facility. Id. at ¶¶ 7, 8. Plaintiff was housed in IPC cell SD-00-005 from September 11, 2014, through October 30, 2014. Id. at ¶¶ 11, 12.
Plaintiff's Eighth Amendment claims related to the September 4, 2014, incident were dismissed on initial review without prejudice. (Dkt. No. 9.)
At Shawangunk, inmates in IPC are housed in the same block as the SHU, but on a different side of the block. (Dkt. No. 80-1 at ¶ 9.) Inmates in IPC are not subject to the same degrees of restriction as are inmates in SHU. Id. at ¶ 10.
As noted, from October 30 through November 17, 2014, Plaintiff was temporarily housed at Sullivan for mental health observation. Id. at ¶¶ 13, 14. When he returned to Shawangunk, he was housed in the SHU from November 17 through December 23, 2014. Id. at ¶¶ 14, 15. On December 23, 2014, Plaintiff was moved to Sullivan. Id. at ¶ 16.
On January 30, 2015, Plaintiff was transferred from Sullivan to Attica. Id. at ¶ 17. Plaintiff was housed in the general population at Attica from January 30 through March 11, 2015. Id. at ¶¶ 18, 19. Between March 11 and March 16, 2015, Plaintiff was relocated to Attica's mental health observation unit. Id. at ¶ 20. From March 16, 2015, through February 8, 2016, Plaintiff was housed in general population at Attica. Id. at ¶ 21. Plaintiff was not housed in the SHU at Attica at any time in 2015. Id. at ¶ 22.
B. The August 25, 2014, Disciplinary Hearing
Defendants refer to the six disciplinary hearings at issue by the date the decision was rendered. For consistency and ease of reference, the Court does the same.
On July 24, 2014, while temporarily housed at Attica, Plaintiff's cell at Shawangunk was searched. (Dkt. No. 1 at 11.) Various items of contraband were allegedly recovered during the search, along with several other unauthorized items. Id. Upon his return to Shawangunk on August 5, 2014, Plaintiff was served with an inmate misbehavior report ("IMR") regarding the cell search. Id. at 12.
Plaintiff alleges that on August 6, 2014, Gardner conducted a disciplinary hearing. Id. at 13. Plaintiff claims that his requests for an employee assistant and for production of relevant documents and reports were denied, including, among other things, a copy of DOCCS Directive 4934. Id. at 14-15. Plaintiff's request to call inmate Benjamin as a witness on his behalf was also denied. Id. at 15. Inmate Benjamin had told Plaintiff that he observed officers placing a television set and lamp in his cell prior to the July 24, 2014, cell search. Id. at 16.
Gardner has no recollection of serving as the hearing officer for the August 25, 2014, disciplining hearing. (Dkt. No. 80-8 at ¶ 4 n.1.) Venettozzi states DOCCS' records reflect that Plaintiff had a Tier III disciplinary hearing at Shawangunk on August 25, 2015, which was administratively reversed on September 3, 2014. (Dkt. No. 80-17 at ¶ 13.)
At the conclusion of the hearing, Gardner found Clark guilty of four of the five rule violations with which he had been charged. Id. Plaintiff was sanctioned with 60 days confinement in the SHU and loss of privileges, loss of honor visiting privileges for four months, loss of television in his cell for one year, and six months' loss of good time credits. Id.
According to Plaintiff, the disciplinary determination was affirmed on administrative appeal by Smith. Id. at 17. After speaking with a member of the mental health staff regarding his hearing, Clark was informed by Smith that the disciplinary determination was being reviewed by DOCCS' Central Office. Id.
On September 3, 2014, Plaintiff's August 25, 2014, disciplinary hearing disposition was administratively reversed. (Dkt. No. 80-2 at ¶ 4.) On September 4, 2014, Plaintiff was released from SHU. Id. at ¶ 5.
C. The September 23, 2014, Disciplinary Hearing Conducted by Gardner
On September 7, 2014, C.O. Algarin search Plaintiff's cell and issued an IMR charging Plaintiff with possession of marijuana. (Dkt. No. 80-1 at ¶ 23.) Plaintiff was served a copy of the IMR the following day. Id. at ¶ 24.
Shortly after receiving the IMR and being informed that a Tier III disciplinary hearing would be held upon his release from the facility hospital, Plaintiff attempted suicide. (Dkt. No. 1 at 20.) Upon his release from the hospital, Plaintiff was sent to Downstate Correctional Facility and admitted to the "Office of Mental Health Suicide Prevention Crisis Observation and Treatment Unit." Id. at 21. DOCCS' Office of Special Housing/Inmate Disciplinary Programs granted an extension to commence the Tier III disciplinary hearing until Plaintiff returned to Shawangunk. (Dkt. No. 80-1at ¶ 30.) On September 11, 2014, Clark was returned to Shawangunk and confined in the SHU. (Dkt. No. 1 at 21.)
Plaintiff's Tier III disciplinary hearing commenced on September 15, 2014. Id. at ¶ 31. Garner served as the hearing officer. Id. at ¶ 32. Plaintiff claims Gardner denied his request for an employee assistant and deprived him of his right to call witnesses and present a defense. (Dkt. No. 1 at 22-23.)
The hearing transcript reflects Gardner read Plaintiff his rights and obligations, which included his right to call witnesses and present evidence. (Dkt. No. 80-1 at ¶ 33.) Gardner adjourned the Tier III hearing on September 15, 2014, to address Plaintiff's concerns regarding his pre-hearing assistance. Id. at ¶ 34. Plaintiff selected Mr. Chumas, a civilian employee at Shawangunk, to be his assistant. Id. at ¶ 25. During his meeting with Mr. Chumas, Clark requested two inmates to appear as witnesses at his hearing, and he also requested a copy of DOCCS Directive 4933, which was provided. Id. at ¶¶ 26, 27, 28. On September 16, 2014, Mr. Chumas provided Plaintiff with additional requested documents, including certain log book pages, Unusual Incident Report, memoranda, cell inspection form, and contraband chain-of-custody documentation. Id. at ¶ 35.
The hearing resumed on September 18, 2014. Id. at ¶ 36. Two inmate witnesses requested by Plaintiff testified at the hearing by speakerphone, and Plaintiff was permitted to ask the inmates questions. Id. at ¶ 37. A third inmate requested by Plaintiff refused to testify, which was documented for the hearing record. Id. at ¶ 38. C.O. Comito, C.O. Keys, and C.O. Miller also testified at Plaintiff's request. Id. at ¶¶ 39, 43. Mr. Chumas testified regarding the assistance he provided to Plaintiff and C.O. Algarin testified regarding the circumstances of the IMR he wrote. Id. at ¶¶ 40, 41.
On September 23, 2014, Gardner found Plaintiff guilty of violating prison rule 113.25, as charged by C.O. Algarin. Id. at ¶¶ at 42-44. Gardner imposed penalties of 3 months SHU confinement, 6 months loss of certain privileges, and 6 months recommended loss of good time. Id. at ¶ 45. He advised Plaintiff of his right to appeal the Tier III hearing determination within 30 days. Id. at ¶ 46.
Gardner provided Plaintiff with a written hearing disposition sheet on September 23, 2014, which included a statement of the evidence used for the determination. Id. at ¶ 47. In his declaration, Gardner states he did not predetermine his decision prior to the conclusion of the hearing. Id. at ¶ 48.
Plaintiff claims both Smith and Annucci affirmed the disciplinary determination. (Dkt. No. 1 at 23.) On October 3, 2014, the DOCCS Commissioner's office received an appeal from Plaintiff. (Dkt. No. 80-1 at ¶ 49.) The DOCCS Commissioner's office received further correspondence from Plaintiff regarding his appeal of the September 23, 2014, Tier III hearing disposition on October 9 and October 17, 2014. Id. at ¶ 50. The DOCCS Commissioner's office does not handle appeals of Tier III hearing dispositions, which are delegated to the Office of Special Housing/Inmate Disciplinary Programs. Id. at ¶ 51. Annucci had no knowledge of the of the substance of Plaintiff's appeals and no involvement in the determination of the appeal. Id. at ¶ 52.
On December 3, 2014, Plaintiff's hearing determination was review by the Office of Special Housing/Inmate Disciplinary Programs and affirmed by Venettozzi. Id. at ¶¶ 53-55. Subsequently, on January 20, 2016, Plaintiff's September 23, 2014 Tier III hearing disposition was administratively reversed. Id. at ¶ 56.
Plaintiff commenced a state court proceeding pursuant to New York CPLR Article 78 to challenge several of the disciplinary hearings at issue in this case. (Dkt. No. 1 at 24.) In April 2016, the Article 78 proceeding was dismissed as moot, upon the advice of the Attorney General that all of the challenged disciplinary determinations had been administratively reversed and expunged from Plaintiff's record. Id.; see Clark v. State Dep't of Corrections and Community Supervision, 138 A.D.3d 1331 (N.Y. App. Div. 3d Dep't 2016). Venettozzi states this hearing was administratively reversed when his office learned that confidential testimony relevant to Plaintiff's mental health status may not have been taken prior to this hearing. (Dkt. 80-17 at ¶ 19.)
D. The October 14, 2014, Disciplinary Hearing Conducted by Pingotti
Plaintiff alleges that on September 24, 2014, DeGraff and Harrison searched his cell. (Dkt. No. 1 at 24.) No contraband was discovered during the search. Id. at 24-25. However, DeGraff threatened Plaintiff and told him that he would "make sure you come up dirty for 'K-2'." Id. at 25. Later that day, Plaintiff was ordered to undergo a urinalysis. Id. On September 30, 2014, on the basis of that test, C.O. Strang issued an IMR charging Plaintiff with being under the influence of K2, a synthetic form of marijuana. (Dkt. No. 80-1 at ¶ 57.) On October 1, 2013, Plaintiff was served a copy of the IMR. Id. at ¶ 58. Plaintiff selected Mr. Chumas to be his assistant. Id. at ¶ 59.
On October 1, 2014, Plaintiff met with Mr. Chumas. Id. at ¶ 60. Plaintiff claims that in preparation for this hearing, he requested numerous documents and reports regarding the testing apparatus and protocols, but these requests were denied. (Dkt. No. 1 at 26.) Plaintiff also requested audio and video of the threats made by DeGraff on September 24, 2014, which were also denied. Id. at 27. Plaintiff was removed from the hearing prior to its conclusion and claims he never received a written statement of the disposition. Id.
The hearing transcript reflects that Plaintiff's Tier III disciplinary hearing commenced on October 7, 2014, with Pingotti serving as the hearing officer. (Dkt. No. 80-1 at ¶ 63-64.) Pingotti read Plaintiff his rights and obligations, which included his right to call witnesses and present evidence. Id. at ¶ 65. Pingotti informed Plaintiff that the company that manufactured the chemical reagent used in the drug test does not testify at prison disciplinary proceedings. Id. at ¶ 66.
Plaintiff requested two documents for the hearing on October 7, 2014: a K2 test reliability assessment and a memorandum regarding disciplinary procedures for K2 written by DOCCS Deputy Commissioner Joseph Bellnier. Id. at ¶ 67. Plaintiff reviewed the requested documents during an adjournment of the hearing and he had an opportunity to take any notes that he needed. Id. at ¶ 68.
On October 14, 2014, C.O. Strang testified regarding the circumstances of the IMR and the drug test that he conducted. Id. at ¶ 69. At Plaintiff's request, Nurse Scofield also testified. Id. at ¶ 70. However, Pingotti denied Plaintiff's request to call Deputy Commissioner Bellnier because he had no firsthand knowledge of the drug test conducted by C.O. Strang. Id. at ¶ 71. Pingotti also denied Plaintiff's request for a video recording of his housing block from September 24, 2014, because it had no relevance to the drug test conducted on September 30, 2014. Id. at ¶ 72.
The hearing transcript reflects that Pingotti warned Plaintiff on three occasions not to speak over him when he spoke. Id. at ¶ 73. On October 14, 2014, Plaintiff was removed from the hearing for being disruptive and noncompliant with Pingotti's directions. Id. at ¶ 74. The hearing concluded in Plaintiff's absence. Id. at ¶ 75.
Pingotti found Plaintiff guilty of violating prison rule 113.13, as charged by C.O. Strang. Id. at ¶ 76. Pingotti imposed penalties of 2 months of SHU confinement, in addition to 2 months loss of packages, commissary, and telephone privileges. Id. at ¶ 77. He prepared a written hearing disposition sheet on October 14, 2014, which included a statement of the evidence relied upon which he relied. Id. at ¶ 78.
Pingotti directed C.O. North to deliver the written hearing disposition to Plaintiff at his cell, together with a form advising Plaintiff of his right to appeal to the Commissioner within 30 days. Id. at ¶ 79. C.O. North documented that he delivered Pingotti's written hearing disposition and appeal form to Plaintiff on October 15, 2014 at 9:45 AM., and that Plaintiff refused to sign a form acknowledging receipt. Id. at ¶ 80. In his declaration, Pingotti avers he did not predetermine his decision prior to the conclusion of the Tier III hearing on October 14, 2014. Id. at ¶ 81.
Plaintiff claims he appealed the determination, which was affirmed by Smith and Annucci. (Dkt. No. 1 at 28.) On October 17, 2014, the DOCCS' Commissioner's office received Plaintiff's appeal. (Dkt. No. 80-1 at ¶ 82.) On December 12, 2014, the Acting Director of Special Housing, Corey Bedard, signed the appeal affirmance. Id. at ¶¶ 84-86. Annucci had no knowledge of the substance of Plaintiff's appeal and had no involvement in the determination of the appeal. Id. at ¶ 83. On January 20, 2016, Plaintiff's October 14, 2014, Tier III hearing disposition was administratively reversed. Id. at ¶ 87.
Venettozzi explains this hearing, like the September 23, 2014, hearing, was administratively reversed when his office learned that confidential testimony relevant to Plaintiff's mental health status may not have been taken prior to this hearing. (Dkt. 80-17 at ¶ 19.)
E. The November 17, 2017, Disciplinary Hearing Conducted by Palen
On October 15, 2014, DeGraff conducted a search of Plaintiff's IPC cell at Shawangunk and observed small hole, approximately one (1) inch in length, in Plaintiff's mattress. (Dkt. No. 80-1 at ¶ 88.) On October 17, 2014, during a subsequent cell search, DeGraff observed that the hole in Plaintiff's mattress had expanded from approximately one (1) inch to six (6) inches in length since October 15, 2014. Id. at ¶ 89. DeGraff reached his hand inside the mattress and found pieces of lead wrapped in paper. Id. at ¶ 90. He then removed Plaintiff's mattress from the cell to further search it in the sally port area of the cell block. Id. at ¶ 91. DeGraff cut open Plaintiff's mattress, removed all of the stuffing, and found copper wire wrapped in paper and pieces of bedsheet. Id. at ¶ 92. DeGraff secured all evidence and disposed of the mattress. Id. at ¶ 93.
Thereafter, on October 17, 2014, DeGraff issued an IMR charging Plaintiff with possession of contraband and destruction of property. Id. at ¶ 94. Plaintiff was served with the IMR on October 18, 2014. Id. at ¶ 95.
Plaintiff claims he had previously filed a grievance complaining about the condition of his mattress and also about the fact that the cell equipment report had not been completed when Plaintiff was first assigned to the cell. (Dkt. No. 1 at 30.) He also verbally complained about his mattress to Smith during rounds. Id. DOCCS records indicate Plaintiff filed a grievance numbered SHG-29231-14, entitled "Mattress Needs Replacing," which was received for filing on October 21, 2014, after Plaintiff received the October 10, 17, 2014, IMR. (See Dkt. No. 80-4 at ¶ 14; see also id. at 6-13.)
On October 21, 2014, Plaintiff's Tier II hearing commenced on the October 17, 2014, IMR. Id. at ¶ 96. Palen served as the hearing officer. Id. at ¶ 97. Plaintiff claims that Palen denied his requests for an assistant and also denied his requests for relevant videos and witnesses. (Dkt. No. 1 at 31.) Plaintiff alleges DeGraff destroyed the mattress (prior to the hearing so its condition could not be examined during the hearing) in retaliation for Plaintiff's grievance activity. Id. at 32.
The hearing transcript reflects Palen read Plaintiff his rights and obligations. Id. at ¶ 98. Inmates are not provided with employee assistants for Tier II hearings. Id. at ¶ 99. Palen informed Plaintiff that he would not have an assigned assistant, but he gave Plaintiff an opportunity to advise him what evidence and witnesses Plaintiff needed for his defense. Id. at ¶ 100.
DeGraff testified at the hearing regarding the circumstances of the IMR that he wrote and Plaintiff asked DeGraff questions. Id. at ¶ 101. At Plaintiff's request, Sgt. Lutz testified regarding prior complaints made by Plaintiff about his mattress. Id. at ¶ 102. Plaintiff requested to view the video recording of his cell block from October 17, 2014, at the time DeGraff removed Plaintiff's mattress from his cell, and Plaintiff reviewed this video in Palen's presence during an adjournment of the haring on October 22, 2014. Id. at ¶ 103. Karamanos also testified at the hearing regarding a prior inspection of Plaintiff's cell and Plaintiff asked him questions. Id. at ¶ 104.
Plaintiff's Tier II hearing was adjourned from October 30, 2014, through November 17, 2014, while he was housed at Sullivan for mental health observation. Id. at ¶ 105. The Office of Special Housing/Inmate Disciplinary Programs granted an extension to continue the Tier II hearing until Plaintiff returned from Sullivan to Shawangunk, and subsequently granted a further extension due to the temporary unavailability of Palen. Id. at ¶ 106.
Plaintiff's Tier II hearing recommenced on November 26, 2014. Id. at ¶ 107. Plaintiff submitted documentary evidence in his defense, including prior complaints he made to Shawangunk and DOCCS officials. Id. at ¶ 108. Plaintiff requested copies of complaints he claimed to have made to DOCCS' Office of the Inspector General ("OIG") in September and October 2014, and he requested that an OIG investigator, Investigator Russo, testify regarding those complaints. Id. at ¶ 109. At Plaintiff's request, Palen contacted the OIG, and he was advised by the OIG that no such complaints existed and, accordingly, Plaintiff's request was denied. Id. at ¶ 110. Plaintiff also requested to present his mattress as evidence during the hearing. Id. at ¶ 111. However, it was unavailable as DeGraff had disposed of it after cutting it open on October 17, 2014. Id.
Plaintiff requested video showing rounds made by the Smith and Sgt. Lutz, but the video did not exist as it was beyond the normal retention period. Id. at ¶ 112. Plaintiff requested video showing a previous interaction with DeGraff on September 24, 2014, but the video was unavailable due to an equipment malfunction. Id. at ¶ 113. Plaintiff also requested a video of the October 15, 2014, search conducted by DeGraff, which Palen denied as not relevant because it would not have depicted the condition of the mattress inside of the cell. Id. at ¶ 114. Plaintiff requested video showing the sally port area of his housing block where DeGraff brought Plaintiff's mattress on October 17, 2014. Id. at ¶ 115. Palen denied this request as redundant of the October 17, 2014, video that Plaintiff had already reviewed. Id. Lastly, Plaintiff requested video showing the linen exchange on his housing block on three dates prior to October 17, 2014. Id. at ¶ 116. Palen denied this request as not relevant because the condition of his linens upon receipt was not at issue in the hearing. Id.
Clark requested copies of contraband receipts resulting from cell searches on three dates prior to October 17, 2014. Id. at ¶ 117. Palen denied this request as not relevant because any evidence of contraband confiscated on prior occasions would not be relevant to the October 17, 2014, cell search at issue in the hearing. Id.
Plaintiff requested to call as a witness the prior inmate assigned to his cell before him. Id. at ¶ 118. Specifically, Plaintiff requested inmate Bey, believing that inmate Bey was the prior inmate assigned to his cell. Id. It was determined that inmate Bey was not the prior occupant of Plaintiff's cell, and that two other inmates were assigned to the cell after Bey and prior to Plaintiff. Id. at ¶ 119. The inmate identified as the last to occupy the cell prior to Plaintiff refused to testify, and his refusal was documented in the hearing record. Id. at ¶ 120.
Plaintiff also requested to call Smith to testify regarding a prior complaint voiced by Plaintiff concerning his mattress. Id. at ¶ 121. Palen denied this request, however, as redundant of the testimony given by Sg. Lutz, who was with Smith and already testified about the same conversation. Id. at ¶ 121.
Plaintiff's hearing concluded on November 27, 2017. Id. at ¶ 122. Palen found Plaintiff guilty of violating prison rules 113.23 and 116.10, as charged by DeGraff. Id. at ¶ 123. Palen imposed penalties of 30 days of keeplock confinement, 30 days loss of privileges, and restitution of $65.25 for the cost of the mattress. Id. at ¶ 124. Plaintiff was advised of his right to appeal his Tier II hearing disposition to the Superintendent. Id. at ¶ 125. He was provided with a written hearing disposition sheet on November 27, 2014, which included a statement of the evidence supporting the determination. Id. at ¶ 126. In his declaration, Palen avers he did not predetermine his decision prior to the conclusion of the Tier II hearing on November 27, 2014. Id. at ¶ 127.
Keeplock is a form of disciplinary confinement whereby an inmate is confined to his own cell for a period of time. Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989).
On December 3, 2014, Pingotti, as Smith's designee, affirmed the disposition. Id. at ¶ 128. On December 22, 2014, Plaintiff wrote to Smith to request a limited "re-review" of the timeliness of his Tier II hearing and to complain that DeGraff had disposed of his mattress prior to the hearing. Id. at ¶ 129. Smith responded to Plaintiff that the chain of extensions granted by the Office of Special Housing/Inmate Disciplinary Programs was in Order and that all contraband secreted in the mattress had been secured. Id. at ¶ 130.
F. The December 10, 2014, Disciplinary Hearing Conducted by Gardner
As noted, Plaintiff was temporarily housed at Sullivan from October 30 to November 17, 2014. On November 13, 2014, a social worker at Sullivan issued an IMR charging Plaintiff with threatening to kill a corrections officer on November 12, 2014, and stating that he "know[s] his face." (Dkt. No. 80-1 at ¶¶ 131, 132.) The Office of Special Housing/Inmate Disciplinary Programs granted an extension to commence the hearing until after Plaintiff returned from Sullivan to Shawangunk. Id. at ¶ 133.
On November 18, 2014, Plaintiff was served a copy of the IMR at Shawangunk. Id. at ¶ 134. The Tier II hearing commenced on November 20, 2014, with Gardner serving as the hearing officer. Id. at ¶ 135, 136. Plaintiff claims his request for an employee assistant was denied, as were his requests for relevant documents and witnesses. (Dkt. No. 1 at 38-39.)
The hearing transcript reflects that Gardner read Plaintiff his rights and obligations. (Dkt. No. 80-1 at ¶ 137.) Gardner informed Plaintiff that he would not have an assigned assistant as it was a Tier II hearing, but he told Plaintiff to advise him of what evidence and witnesses he needed to present his defense. Id. at ¶ 138.
Plaintiff requested a video recording from November 12, 2014, at Sullivan at the time that a mental health nurse made rounds to his cell. Id. at ¶ 139. This request was denied as no such video existed. Id. at ¶ 140. Plaintiff requested to call as witnesses inmates who were in neighboring cells to his at Sullivan on November 12, 2014. Id. At Plaintiff request, inmates Aviles and Perez testified at the hearing by speakerphone, and Plaintiff had an opportunity to ask questions. Id. at ¶ 141. A third inmate, who was located at Great Meadow Correctional Facility at the time of the Tier II hearing, refused to testify and signed a refusal form for the hearing record. Id. at ¶ 142.
Plaintiff requested to call the Assistant Commissioner of the New York State Office of Mental Health ("OMH") as a witness. Id. at ¶ 143. Gardner denied this request because the Commissioner of OMH was not present during the incidents alleged in the November 13, 2014, IMR. Id. Plaintiff requested to call Investigator Russo from DOCCS OIG as a witness. Id. at ¶ 145. Gardner denied this request because Investigator Russo was not present during the alleged incidents. Id.
Plaintiff also requested copies of his OMH mental health records, stating that he wanted these records to establish the reason why he was at Sullivan for mental health observation. Id. at ¶ 146. This request was denied as not relevant because the reason for Plaintiff's mental health observation was not relevant to the incidents alleged in the November 13, 2014, IMR. Id. The clinical social worker who authored the November 13, 2014, IMR testified by speakerphone on December 10, 2014, and Plaintiff had an opportunity to ask her questions. Id. at ¶ 147.
On December 10, 2014, Lt. Gardner found Plaintiff guilty of violating prison rule 102.10, as charged in the November 13, 2014, IMR. Id. at ¶¶ 148, 149. Gardner imposed penalties of 30 days of keeplock confinement and 30 days loss of privileges. Id. at ¶ 151. Plaintiff was advised of his right to appeal his Tier II hearing disposition to the Superintendent. Id. at ¶ 151.
Gardner provided Plaintiff with a written hearing disposition sheet on December 10, 2014, which included a statement of the evidence relied upon. Id. at ¶ 152. In his declaration, Gardner states he did not predetermine his decision prior to the conclusion of the hearing. Id. at ¶ 153. Plaintiff alleges Smith affirmed the disciplinary determination. (Dkt. No. 1 at 37.) Defendants assert Pingotti, as Smith's designee, affirmed Plaintiff's Tier II hearing disposition on December 12, 2014. (Dkt. No. 90-1 at ¶ 154.)
G. The December 18, 2014, Disciplinary Hearing Conduced by Farah
On October 24, 2014, DeGraff and Karamanos escorted Plaintiff from his IPC cell to a scheduled shower. (Dkt. No. 80-1 at ¶ 155.) The parties disagree as to what happened next. Plaintiff alleges he was assaulted by DeGraff and Karamanos in retaliation for having filed grievances and complaints against these officers. (Dkt. No. 1 at 34.) Specifically, Plaintiff claims DeGraff "aggressively squeezed" Plaintiff's penis "causing him pain" during an "improper" pat frisk, and Karamanos slammed Plaintiff's head into the wall. Id.
According to Defendants, DeGraff observed items stuffed in Plaintiff's pocket and initiated a pat frisk. (Dkt. No. 80-1 at ¶ 156.) During the pat frisk, Plaintiff made a sudden movement toward DeGraff. Id. at ¶ 158. As a result, Karamanos pushed Plaintiff to the wall to secure him. Id. at ¶ 159. After "gaining control" of Plaintiff, DeGraff and Karamanos escorted Plaintiff back to his cell. Id. at ¶ 160.
Thereafter, on October 24, 2014, DeGraff issued an IMR charging Plaintiff with refusal to obey a direct order and a movement violation. Id. at ¶ 161. Plaintiff was served a copy of the IMR on October 25, 2014. Id. at ¶ 162.
A Tier III hearing commenced on October 30, 2014, with Farah serving as the hearing officer. Id. at ¶¶ 163, 164. During this hearing, Plaintiff claims he was denied an employee assistant and was also denied relevant documents and video of the incident. (Dkt. No. 1 at 35.) Plaintiff also claims he was improperly removed from the hearing and was not provided with a written statement of Farah's disposition. Id.
The hearing transcript demonstrates Farah commenced the Tier III hearing on October 30, 2014, and read Plaintiff his rights and obligations. (Dkt. No. 80-1 at ¶ 165.) Plaintiff informed Farah that he had not met with an assistant prior to the hearing. Id. at ¶ 166. Farah adjourned the hearing to provide Plaintiff with an opportunity to select and meet with an assistant. Id. at ¶ 167.
On November 18, 2014, Plaintiff met with his selected assistant, Mr. Austin, a Recreation Supervisor. Id. at ¶ 168. The hearing recommenced on December 1, 2014. Id. at ¶ 169.
Plaintiff was provided with several documents including a Use of Force report, Watch Commander and SHU log book pages, and copies of certain DOCCS Directives. Id. at ¶ 170.
On December 4, 2014, Plaintiff viewed a video recording from the time of the October 24, 2014, incident. Id. at ¶ 171. Plaintiff requested a second video recording from October 17, 2014; however, that request was denied as not relevant to the October 24, 2014 incident. Id. at ¶ 172. Plaintiff requested to call three inmates as witnesses. Id. at ¶ 173. Two of the three inmates requested by Plaintiff refused to testify from the outset. Id. at ¶ 174. One inmate requested by Plaintiff initially agreed to testify but later refused. Id. at ¶ 175.
Plaintiff requested to call Investigator Russo from DOCCS OSI as a witness and to provide records. Id. at ¶ 176. However, Farah was advised Investigator Russo could not testify or provide documents due to an ongoing investigation at that time. Id. at ¶ 176.
DeGraff and Karamanos both testified at the hearing. Id. at ¶ 175. Plaintiff was warned multiple times during the course of the hearing not to speak over Farah and other witnesses when they spoke. Id. at ¶ 178. In his declaration, Farah explains Plaintiff was removed from the hearing partway through DeGraff's testimony because he became extremely disruptive and noncompliant with his directions. (Dkt. No. 80-2 at ¶ 179.) Farah continued questioning DeGraff and adjourned the hearing. (See Dkt. No. 80-6 at 52-54.)
The hearing resumed on December 15, 2014. (Dkt. No. 80-1 at ¶ 180.) But Plaintiff refused to leave his cell to attend the continuation of the hearing. Id. Farah, together with C.O. North and C.O. Vitarius, went to Plaintiff's cell on December 15, 2014, to encourage Plaintiff to attend the hearing and advised Plaintiff that a penalty may be imposed if he were found guilty. Id. at ¶ 181. Plaintiff refused to leave his cell. Id. at ¶ 182.
At Farah's direction, C.O. North went to speak to Plaintiff a second time about returning to the hearing. Id. at ¶ 183. C.O. North reported to Farah that he asked Plaintiff multiple times if he wanted to leave his cell to attend the hearing and Plaintiff refused each time. Id. at 184. Plaintiff signed a form waiving his right to attend the Tier III hearing on December 15, 2014, but added a handwritten note that he was afraid of retaliation and felt that Farah was unfair. Id. at ¶ 185.
On December 18, 2014, Farah found Plaintiff guilty of violating prison rules 106.10 and 109.12, as charged by DeGraff and imposed penalties of 120 days of SHU confinement, and 120 days loss of packages, commissary, telephone, recreation, and television privileges. Id. at ¶¶ 186, 187. Farah prepared a written hearing disposition sheet on December 18, 2014, which included a statement of the evidence. Id. at ¶ 188. He directed C.O. North to deliver the written hearing disposition to Plaintiff at his cell, together with a form advising Plaintiff of his right to appeal to the Commissioner within thirty (30) days. Id. at ¶ 189. C.O. North documented that he delivered the written hearing disposition and appeal form to Plaintiff on December 18, 2014, at 11:35 AM, and that Plaintiff refused to sign a form acknowledging receipt. Id. at ¶ 190. In his declaration, Farah states he did not predetermine his decision prior to the conclusion of the Tier III disciplinary hearing on December 18, 2014. Id. at ¶ 191.
Plaintiff claims he appealed the disposition, which was affirmed by Smith and Venettozi. (Dkt. No. 1 at 37.) Defendants submit that on December 22, 2014, the Office of Special Housing/Inmate Disciplinary Programs received Plaintiff's appeal. (Dkt. No. 80-1 at ¶ 192.) Staff working in the Office of Special Housing/Inmate Disciplinary Programs reviewed Plaintiff's appeal and recommended that the December 18, 2014, disposition be affirmed. Id. at ¶ 193. Venettozzi compared the disciplinary charges to the penalties imposed and signed off the recommended affirmance of the hearing disposition. Id. at ¶ 194.
On April 21, 2016, Plaintiff's December 18, 2014, Tier III hearing disposition was administratively reversed pursuant to a court order. Id. at ¶ 195; see Clark v. State Dep't of Corrections and Community Supervision, 138 A.D.3d 1331 (N.Y. App. Div. 3d Dep't 2016); see also Dkt. No. 80-17 at ¶ 19.
H. Eighth Amendment Claims
As discussed above, Plaintiff claims he was assaulted by DeGraff and Karamanos on October 24, 2014, during an escort to a scheduled shower. (Dkt. No. 1 at 28.) Specifically, Plaintiff claims DeGraff "aggressively squeezed" Plaintiff's penis "causing him pain" during an "improper" pat frisk, and Karamanos slammed Plaintiff's head into the wall. Id.
According to Defendants, DeGraff observed objects stuffed in Plaintiff's pockets and DeGraff ordered Plaintiff to spread his legs and initiated a pat frisk. (Dkt. Nos. 80-5 at ¶ 9.) Plaintiff did not comply with DeGraff's instruction and made a "sudden and aggressive movement" to his left side towards DeGraff. Id. Karamanos then pushed Plaintiff against the wall once in order to "gain control" of him. Id. Defendants contend this "minimal amount of force was reasonable and necessary to secure control of plaintiff after his sudden and aggressive movement." (Dkt. No. 80-10 at ¶ 7.) DeGraff and Karamanos declare they did not strike Plaintiff or use any further force. (Dkt. Nos. 80-5 at ¶ 9; 80-10 at ¶ 7.) They further declare they did not touch Plaintiff in any sexual way. Id. Defendants state they escorted Plaintiff back to his cell with no further incident. Id.
Plaintiff also claims he was subjected to verbal and physical abuse by DeGraff, McElroy, and Harrison during an escorted trip to Shawangunk's facility hospital. Id. at 29. Specifically, Plaintiff claims DeGraff pushed Plaintiff up against the wall and "pressed his pelvis and genitals against the Plaintiff," McElroy "punched" Plaintiff in the back of his head, while Harrison stood by and made "intimidating statements." (Dkt. No. 1 at 29.) Plaintiff filed a complaint with the "Office of Special Investigations." Id.
Plaintiff's complaint does not specify the date of this alleged assault.
In their declarations, DeGraff, Karamanos, McElroy, and Harrison deny having ever struck, physically assaulted, used excessive force on, or improperly touched Plaintiff in any way at any time. (Dkt. Nos. 80-5 at ¶ 14, 80-9 at ¶ 5, 80-10 at ¶ 12, 80-11 at ¶ 6.) These Defendants further declare they have never threatened or harassed Plaintiff, verbally or otherwise at any time. Id. Harrison further states he has never allowed or encouraged any correctional staff to assault an inmate. (Dkt. No. 80-9 at ¶ 6.)
I. First Amendment Claims
As discussed above, Plaintiff claims DeGraff and Karamanos assaulted him on October 24, 2014, in retaliation for Plaintiff having filed inmate grievances regarding their mistreatment of him in violation of the First and Eighth Amendments. (Dkt. No. 1 at 34.) Plaintiff also claims DeGraff destroyed his mattress (and thereby prevented Plaintiff from presenting a meaningful defense to the October 17, 2014, IMR issued by DeGraff) in retaliation for Plaintiff's grievance activity. Id. at 42.
For his part, DeGraff declares that on October 17, 2014, he was unaware of any grievances that Plaintiff may have filed against him or against other correctional staff. (Dkt. No. 80-1 at ¶ 196.) He further states that he disposed of Plaintiff's mattress on that date because it was cut open and unusable, and all contraband had been removed and secured. Id. at ¶ 197.
As to the October 24, 2014, incident, DeGraff and Karamanos state that they were unaware of any grievances that Plaintiff may have filed against them or against other correctional staff. Id. at ¶¶ 198, 199. Further, as noted above, Defendants aver Plaintiff did not comply with DeGraff's instruction and argue that the "minimal amount of force was reasonable and necessary to secure control of plaintiff after his sudden and aggressive movement." (Dkt. No. 80-10 at ¶ 7.)
J. Grievances
Defendants' submissions demonstrate Plaintiff never filed a grievance concerning his claim that DeGraff and Karamanos used excessive force on him on October 24, 2017. (Dkt. No. 80-1 at ¶ 204.) Plaintiff never filed a grievance concerning his claim that DeGraff and Karamanos retaliated against him on October 24, 2017. Id. at ¶ 205. He never filed a grievance concerning his claim that DeGraff retaliated against him on October 17, 2014, by disposing of his mattress. Id. at ¶ 206. Lastly, Plaintiff never filed a grievance concerning his claim that DeGraff, McElroy, and Harrison used excessive force on him at any time. Id. at ¶ 207. In response, Plaintiff argues administrative remedies were unavailable. (Dkt. Nos. 87, 92.)
III. LEGAL STANDARD GOVENRING SUMMARY JUDGMENT
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit has reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Accordingly, statements "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (credibility issues which are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion for summary judgment).
IV. PLAINTIFF'S FAILURE TO COMPLY WITH LOCAL RULE 7.1
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' summary judgment motion, Plaintiff failed to respond to the statement of material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3). (Dkt. Nos, 87, 92.)
Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." N.Y.N.D. L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Local Rule 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants and the Clerk's office provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 80 at 2; Dkt. No. 81.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified complaint and verified opposition submissions will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) ("Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts Pursuant to Rule 7.1(a)(3) . . . supplemented by Plaintiff's verified complaint . . . as true."). As to any facts not contained in Defendants' Statement of Material Facts, in light of the procedural posture of this case, the Court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of Plaintiff. Terry, 336 F.3d at 137.
Moreover, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has reviewed the entire record.
V. LEGAL STANDARDS GOVERNING CLAIMS AND DEFENSES
A. Fourteenth Amendment Due Process Claims
The Due Process Clause of the Fourteenth Amendment states: "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV § 1. "A liberty interest may arise from the Constitution itself, . . . or it may arise from an expectation or interest created by state laws or polices." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (internal citations omitted). "Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted).
The constitutionally mandated due process requirements for prison disciplinary hearings include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. See Wolff v. McDonald, 418 U.S. 539, 564-70 (1974); Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). Additionally, the hearing officer's findings must be supported by "some" "reliable evidence." Sira, 380 F.3d at 69 (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985)) (other citation omitted).
The right to call witnesses is not unfettered. Alicea v. Howell, 387 F. Supp. 2d 227, 234 (W.D.N.Y. 2005) (citing Ponte v. Real, 471 U.S. 491, 495 (1985)). This right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence)); see also Eleby v. Selsky, 682 F. Supp. 2d 289, 291-92 (W.D.N.Y. 2010) (hearing officers have discretion to keep the hearing within reasonable limits, and "included within that discretion is the authority to refuse to call witnesses whose testimony the prison official reasonably regards as duplicative or non-probative").
The due process clause also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to . . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing, inter alia, Wolff, 418 U.S. at 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). "The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Id. (citing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1996); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). "A hearing officer may satisfy the standard of impartiality if there is 'some evidence in the record' to support the findings of the hearing." Barnes v. Annucci, No. 9:15-CV-0777 (GTS/DEP), 2019 WL 1387460, at *11 (N.D.N.Y. Mar. 12, 2019) (citations omitted).
"To state a claim for procedural due process, there must first be a liberty interest which requires protection." Lewis v. Murphy, No. 9:12-CV-00268 (NAM/CFH), 2014 WL 3729362, at *7 (N.D.N.Y. July 25, 2014) (citing Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994)). To establish a procedural due process claim under § 1983, a plaintiff must show that he (1) possessed a liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004). "Prison discipline implicates a liberty interest when it 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
As to the first factor, "[t]he prevailing view in this [C]ircuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement." Liao v. Malik, No. 9:13-CV-1497 (GTS/DEP), 2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting cases). As to the second factor, the plaintiff bears the "burden of proving that the conditions of his confinement constituted an atypical, significant hardship in relation to the ordinary incidents of prison life in order to recover damages" under § 1983. Vasquez v. Coughlin, 2 F. Supp. 2d 255, 260 (N.D.N.Y. 1998).
The Second Circuit has instructed that in determining whether an inmate's SHU confinement has imposed an atypical and significant hardship, a court must consider, among other things, both the duration and conditions of confinement. J.S. v. T'Kach, 714 F.3d 99, 106 (2d Cir. 2013). Thus, while not dispositive, the duration of a disciplinary confinement is a significant factor in determining atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citations omitted).
Although the Second Circuit has "explicitly avoided" creating "a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights," the Court has established guidelines. Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004).
Confinement for 101 days or fewer under typical punitive segregation conditions "generally do[es] not constitute 'atypical' conditions of confinement." Bunting v. Nagy, 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (quoting Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999)). By contrast, 305 days or more of segregated confinement has been deemed an atypical and significant hardship. See Colon, 215 F.3d at 231-32. "A period of confinement between 101 and 305 days is considered to be an 'intermediate duration' and could implicate a liberty interest should a detailed record of the conditions of confinement indicate that it was an atypical and significant hardship." Bunting, 452 F. Supp. 2d at 456 (citing Sealey, 197 F.3d at 589); see also Palmer, 364 F.3d at 64-65.
Additionally, "[o]verlapping disciplinary penalties may, under some circumstances, have to be aggregated for purposes of determining whether a liberty interest was violated." Reynoso v. Selsky, 292 F. App'x 120, 122 (2d Cir. 2008) (summary order). "Generally, it appears from Second Circuit decisions that separate SHU sentences constitute a 'sustained' period of confinement [that may be aggregated] when (1) they are contiguous and (2) they either (a) were imposed by the same disciplinary hearing officer or (b) were based on the same administrative rationale and are executed under the same conditions." Taylor v. Artus, No. 9:05-CV-271 (LEK/GHL), 2007 WL 4555932, at *8 & n.40 (N.D.N.Y. Dec. 19, 2007) (emphasis in original).
B. First Amendment Retaliation Claims
"Courts properly approach prisoner retaliation claims 'with skepticism and particular care,' because 'virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.'" Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quotation and other citation omitted). "To prove a First Amendment retaliation claim under Section 1983, a prisoner must show . . . '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)).
"Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis, 320 F.3d at 353 (internal quotation marks and citation omitted). In making this determination, courts are to "bear in mind" that "prisoners may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (internal quotation marks and citations omitted). The "test is objective, not subjective, and must be so, since the very commencement of a lawsuit would otherwise be dispositive on the issue of chilling." Davidson v. Bartholome, 460 F. Supp. 2d 436, 447 (S.D.N.Y. 2006) (citations omitted).
In determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, factors to be considered include: "(i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation." Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995)). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id.
Upon satisfying his initial burden, "the burden shifts to defendants to establish that the same adverse action would have been taken even in the absence of the plaintiff's protected conduct, i.e., 'even if they had not been improperly motivated.'" Davidson v. Desai, 817 F. Supp. 2d 166, 194 (W.D.N.Y. 2011) (quoting Graham, 89 F.3d at 80). "At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail." Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir. 1999); see also Murray v. Hulihan, 436 F. App'x 22, 23 (2d Cir. 2011) ("Defendants cannot be liable for First Amendment retaliation if they would have taken the adverse action even in the absence of the protected conduct.").
C. Eighth Amendment Excessive Force Claims
"The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain." Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and quotation marks omitted). An Eighth Amendment excessive force claim has two elements—"one subjective focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)).
"The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268) (internal quotation marks omitted). The test for wantonness on an excessive force claim "is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, "a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.") (citation and quotation marks omitted)). The objective component requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citation omitted).
In addition, a corrections officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate in the use of force. See Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. May 24, 2010); Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010). Indeed, an official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officers in his or her presence. Cicio, 2010 WL 980272, at *13. In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Tafari, 714 F. Supp. 2d at 342; Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008).
D. Personal Involvement
"It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, "a Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)). Supervisory officials may not be held liable for their subordinates' constitutional violations merely because they are in a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
Traditionally, to establish supervisory liability in the Second Circuit, a plaintiff must allege that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.Shaw v. Prindle, 661 F. App'x 16, 18 (2d Cir. 2016) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). However, the Second Circuit recently held that the Colon test was abrogated by the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The Court held that:
[A]fter Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove "that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676, 129 S. Ct. 1937. "The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue" because the elements of different constitutional violations vary. Id. The violation must be established against the supervisory official directly.Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (alteration in original).
Tangreti was decided in the context of an Eighth Amendment deliberate indifference claim against a prison official, and therefore did not specify the "factors necessary" to establish a claim against a supervisor for the types of claims Plaintiff alleges here. Tangreti, 983 F.3d 609 at 618.
E. Exhaustion
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined and do so properly. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Id. at 211. In New York state prisons, DOCCS has a well-established three-step IGP. N.Y. Comp. Codes R. & Regs. tit. 7 ("NYCRR"), § 701.5 (2013).
Generally, the IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. § 701.5(a). A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (id. § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Office Review Committee ("CORC") for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(I).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Complaints of harassment are handled by an expedited procedure which provides that such grievances, once it is given a number and recorded by the IGP clerk, are forwarded directly to the superintendent of the facility, after which the inmate may appeal any negative determination to CORC. Id. §§ 701.8(h),(i).
Generally, a plaintiff must properly appeal through all three levels of the IGP before seeking relief in a federal court under § 1983. See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006).
However, for complaints regarding sexual abuse or sexual harassment, DOCCS has established a different procedure. See DOCCS Directive 4040 § 701.3(i); 7 NYCRR § 701.3(i). "Revised in 2014 pursuant to the Prison Rape Elimination Act ("PREA"), see Henderson v. Annucci, No. 14-CV-445A, 2016 WL 3039687, at *3 (W.D.N.Y. Mar. 14, 2016), Directive 4040 § 701.3(i) creates a relaxed exhaustion requirement for allegations concerning incidents of sexual assault." Sheffer v. Fleury, No. 9:18-cv-1180 (LEK/DJS), 2019 WL 4463672, at *4 (N.D.N.Y. Sept. 18, 2019). Specifically, "an inmate is not required to file a grievance concerning an alleged incident of sexual abuse or sexual harassment to satisfy the [PLRA] exhaustion requirement." 7 NYCRR § 701.3(i). Instead:
[A]ny allegation concerning an incident of sexual abuse or sexual harassment shall be deemed exhausted if official documentation confirms that: an inmate who alleges being the victim of sexual abuse or sexual harassment reported the incident to facility staff; in writing to Central Office Staff; to any outside agency that the Department has identified as having agreed to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials under the PREA Standards; or to the Department's Office of the Inspector General.Id. (citations omitted). If an inmate does file a grievance regarding a complaint of sexual abuse or sexual harassment, "[t]he complaint shall be deemed exhausted upon filing." Id. Finally, "[a] sexual abuse or sexual harassment complaint may be submitted at any time." Id.
Finally, while the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). More specifically, § 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]") (quotations and citations omitted). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotations and internal citations omitted).
The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
As an affirmative defense, the defendant bear the burden of showing the plaintiff failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004).
F. Qualified Immunity
"Government actors are entitled to qualified immunity insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 432-33 (2d Cir. 2009) (internal quotation marks and citation omitted). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 433 (citation omitted). "The principle of qualified immunity ensures that before they are subjected to suit, officers are on notice their conduct is unlawful." Id. (internal quotation marks and citation omitted).
VI. ANALYSIS
Defendants argue summary judgment is appropriate because: (1) Plaintiff was not deprived of a protected liberty interest sufficient to support a Fourteenth Amendment due process claim; (2) Plaintiff received all of the process he was due in connection with the hearings; (3) Annucci and Venettozzi were not personally involved in the alleged deprivations under the Fourteenth Amendment; (4) Annucci, Venettozzi, and Smith are entitled to qualified immunity; (5) Plaintiff failed to exhaust his administrative remedies with respect to his First Amendment retaliation and Eighth Amendment excessive force claims; (6) Plaintiff's Eighth Amendment excessive force claim against DeGraff, McElory, and Harrison arising from the unspecified incident fails on the merits; and (7) Plaintiff's First amendment retaliation claims against DeGraff and Karamanos fail on the merits. (See generally Dkt. No. 80-20, 92.) Plaintiff opposes the motion. (Dkt. Nos. 87, 92.)
A. Fourteenth Amendment Due Process Claims
Plaintiff alleges he was denied due process at six disciplinary hearings conducted by Gardner, Pingotti, Palen, and Farah in violation of his rights under the Fourteenth Amendment. (Dkt. No. 1 at 41-42.) Generally, as detailed above, Plaintiff claims he was denied the opportunity to present a defense, documents, videos, witnesses, and employee assistance. He claims Defendants were biased and he was removed from two hearings and was not provided with a written statement of the disposition at one hearing. Plaintiff claims he appealed all of the disciplinary determinations, which were affirmed on administrative appeal by Smith, Venettozzi, and/or Annucci.
Defendants argue the sentences imposed by Gardner, Pingotti, Palen, and Farah at the disciplinary hearings did not implicate a protected liberty interest and that, even if they did, Plaintiff received due process. (Dkt. No. 80-20 at 32-38.) According to Defendants, Plaintiff's assertion that he served more than 305 days of consecutive disciplinary confinement is belied by the record. Id. at 34. Defendants point out that Plaintiff did not actually serve anywhere near the full amount of time in the SHU with which he was sanctioned from the six disciplinary hearings at issue. Id. Additionally, Defendants argue Plaintiff's claims against Annucci and Venettozzi should be dismissed for lack of personal involvement. Id. at 25-29. Lastly, Annucci, Venettozzi, and Smith argue they are entitled to qualified immunity. Id. at 29-32.
In his response and sur-reply, liberally construed, Plaintiff suggests that Defendants have "already conceded" that he was denied due process because the disciplinary hearings at issue were administratively revered. (Dkt. No. 87 at ¶¶ 10, 11.) As to the length of his disciplinary confinement, Plaintiff asserts that he was always housed in "continuous" "restrictive" confinement, from September 2014 through May/June 2015, including the SHU at Shawangunk and Sullivan and, the "long term confinement unit" at Attica, which is a "secure confinement unit," known as "18 company." (Dkt No. 87 ¶¶ 12-15; Dkt. No. 92 at ¶ 7.) Plaintiff further argues Annucci and Venettozzi were personally involved, are liable as supervisors ("someone must stop the buck") and are not entitled to qualified immunity. (Dkt No. 87 ¶¶ 12-15.)
1. Liberty Interest
As a preliminary matter, Plaintiff had "'no right to due process [at his hearing] unless a liberty interest' was infringed." Palmer, 364 F.3d at 64 (alternation and emphasis in original). Here, the record evidence demonstrates Plaintiff was housed in disciplinary confinement at Shawangunk during the relevant time period for a total of 46 days in 2014: from August 25, 2014, through September 4, 2014, and from November 18, 2014, through December 23, 2014. (Dkt. No. 80-18 at ¶ 17.)
As detailed above, during the intervening period, Plaintiff was housed in Shawangunk's facility hospital after the September 4, 2014, incident and was then placed under IPC status for his personal safety and for the safety and security of the facility from September 11, 2014, through October 30, 2014. (Dkt. Nos. 1 at 19-20, 80-1 at ¶¶ 7-14.) Thereafter, he was temporarily transferred to Sullivan for mental health observation from October 30, 2014, through November 17, 2014. (Dkt. Nos. 1 at 19-20, 80-1 at ¶¶ 7-14.) Subsequently, Plaintiff was transferred from Shawangunk to Sullivan on December 23, 2014, and then to Attica on January 30, 2015. (Dkt. No. 80-1 at ¶¶ 16, 17.) Plaintiff was housed in the general population at Attica for all of 2015, except for five days in March when he was temporarily relocated to the mental health observation unit. Id. at ¶¶ 18-21. He was not housed in the SHU at Attica at any time in 2015. Id. at ¶ 22.
Courts routinely find similar disciplinary confinement insufficient to constitute a liberty interest. See Holmes v. Grant, No. 03-CIV-3426, 2005 WL 2839123, *5 (S.D.N.Y. Oct. 25, 2005) (finding 60 days in the SHU at Shawangunk is "insufficient to constitute a deprivation of a liberty interest"); see also Holland v. Goord, No. 05-CV-6295, 2006 WL 1983382, *7 (W.D.N.Y. July 13, 2006) (finding 77 days in keeplock during which the plaintiff was deprived of TV, phone, packages, and commissary, and was unable to attend Muslim services and classes, did not constitute a liberty interest); Pilgrim v. Bruce, No. 9:05-CV-198, 2008 WL 2003792, *15 (N.D.N.Y. May 7, 2008) (finding 60 days in keeplock failed to establish that he was subject to more severe conditions than in normal restrictive confinement).
Moreover, because the record evidence demonstrates Plaintiff's disciplinary confinement was not "contiguous," the Court agrees with Defendants that aggregation is not appropriate in the case at bar and any disciplinary confinement Plaintiff actually served in connection with his hearings should be evaluated individually. (See Dkt. No. 80-2 at 35.)
Where, as in this case, the plaintiff's disciplinary confinement "was not long enough to constitute an atypical and significant deprivation by itself," courts "look to the conditions of confinement" as alleged by plaintiff. Smith v. Hamilton, 9:15-CV-0496 (BKS/ATB), 2016 WL 3823395, at *3 (N.D.N.Y. July 12, 2016) (quoting Palmer, 364 F.3d at 66). Here, given the absence of any allegations from Plaintiff about unusually harsh or abnormal conditions of his confinement at Shawangunk, the Court finds Plaintiff's liberty interests were not implicated by the disciplinary hearings challenged in this action. See McEachin v. Selsky, No. 9:04-CV-0083 (FJS/RFT), 2010 WL 3259975, at *9 (N.D.N.Y. Mar. 30, 2010) ("It is expected that confinement in SHU will be accompanied by a loss of privileges that prisoners in the general population enjoy and such conditions fall 'within the expected parameters of the sentence imposed by a court of law.'") (citations omitted); see also Dkt. No. 87 at ¶ 15 (alleging he was "locked into cell housing" for "23 hours[s]" a day).
Inmates in the SHU are subject to, inter alia, limitations on personal property, packages, commissary, programs, visits, and telephone calls, and out-of-cell recreation is limited to one hour daily. (Dkt. No. 80-18 at ¶ 11.)
Further, as noted, Plaintiff was not housed in Attica's SHU in 2015. (Dkt. No. 80-1 at ¶ 22.) While Plaintiff describes his confinement at Attica as "restrictive" while housed in "18 company," he only claims that his "personal property, i.e., television sets, hot pots, etc." was "confiscated," which fails to implicate an atypical and significant hardship. (Dkt. No. 87 at ¶ 12.) Moreover, Plaintiff has not alleged that this "restrictive" confinement differed from other inmates housed in 18 company. See id.
Based on the forgoing, the Court finds Plaintiff has failed to establish a protected liberty interest and, as a result, Plaintiff's Fourteenth Amendment due process claims fail as a matter of law. Accordingly, the Court recommends granting summary judgment to Gardner, Pingotti, Farah, Palen, Smith, Venettozzi, and Annucci.
2. Due Process
Even assuming Plaintiff demonstrated the existence of material questions of fact as to a protected liberty interest, which, for reasons set forth he did not, Defendants have established their entitlement to summary judgment because Plaintiff was afforded the process he was due. (See Dkt. No. 80-20 at 36-38.)
a. Gardner
Gardner conducted Plaintiff's disciplinary hearings that concluded on September 23, 2014, and December 10, 2014. (Dkt. No. 80-8 at ¶¶ 4, 6.) The record shows that at each hearing, Plaintiff received advance notice of the charges against him (the IMRs issued September 8, 2014, and November 13, 2014), an opportunity to call witnesses and present evidence, and a written statement of the evidence relied upon at the conclusion of each hearing. Id. at ¶¶ 9-17, 39-44. Plaintiff was assisted by Mr. Chumas in connection with the September 23, 2014, Tier III hearing and, although he was not assigned an employee assistant for the December 10, 2014, Tier II hearing, Plaintiff made his requests for evidence and witnesses directly to Gardner. Id. at ¶¶ 10, 38.
As noted, Plaintiff also claims Gardner conducted the August 25, 2014, hearing. Gardner has no recollection of any such hearing. (Dkt. No. 80-8 at ¶ 4 n.1.) Defendants have not submitted the transcript of that hearing. Thus, the Court makes no finding as the process afforded to Plaintiff during that hearing. Nevertheless, the record shows Plaintiff only was confined in the SHU for 10 days as a result of that hearing, which fails to create a liberty interest. See Ochoa v. DeSimone, No. 9:06-CV-119 (DNH/RFT), 2008 WL 4517806, at *4 (N.D.N.Y. Sept. 30, 2008) (holding 30 days SHU and keeplock confinement insufficient to create liberty interest); Escalera v. Charwand, No. 9:04-CV-0983 (FJS/DEP), 2008 WL 699273, at *8 (N.D.N.Y. Mar. 12, 2008) (same).
Upon review of the hearing transcripts, Gardner acted fairly and impartially. As to the September 23, 2014, hearing, Gardner relied upon the IMR issued by C.O. Algarin, as well as the verbal testimony given at the hearing. Id. at ¶¶ 23, 26. Similarly, as to the December 10, 2014, hearing, Gardner relied upon the IMR issued by social worked at Sullivan, and upon all of the verbal testimony. Id. at ¶ 49.
b. Pingotti
Pingotti conducted the October 14, 2014, Tier III disciplinary hearing. (Dkt. No. 80-13 at ¶ 4.) Plaintiff received a copy of the September 30, 2014, IMR, was assisted by Mr. Chumas, and had an opportunity to call relevant witnesses and present evidence. Id. at ¶¶ 9-17. Plaintiff attended the hearing until just prior to the conclusion, when he was removed due to his disruptive and unruly behavior. See id. at ¶ 18. Plaintiff was provided with a copy of the written disposition, which included a statement of evidence utilized by Pingotti including the IMR, the documentation regarding Plaintiff's urinalysis result, and all of the verbal testimony given during the course of the hearing. Id. at ¶ 24. Upon review of the hearing transcript and record, Pingotti acted fairly and impartially. Id. at ¶ 25.
c. Palen
Palen conducted Plaintiff's November 27, 2014, Tier II hearing regarding the October 17, 2014, IMR. (Dkt. No. 80-12 at ¶ 6.) Plaintiff received a copy of the IMR giving him advance notice of the charges against him, an opportunity to call witnesses and present evidence, and a written statement of the evidence Palen considered, which included the IMR and all of the verbal testimony given at the hearing. Id. at ¶ 29. As this was a Tier II hearing, Plaintiff was not assigned an assistant and was directed to make all requests for the evidence and witnesses he needed to Palen. Id. at ¶ 11. Upon review of the hearing transcript and record evidence, Palen acted fairly and impartially. Id. at ¶ 30.
d. Farah
Farah conducted the December 18, 2014, Tier III hearing regarding the October 24, 2014, IMR. (Dkt. No. 80-6 at ¶ 6.) Plaintiff received a copy of the IMR giving him advance notice of the charges against him, was assisted by Mr. Austin, was presented with an opportunity to call witnesses and present relevant evidence, and received a written explanation of the disposition. Id. at ¶¶ 9, 15, 36. In finding Plaintiff guilty, Farah considered the IMR written by DeGraff, the verbal testimony given at the hearing, the documentation regarding the October 24, 2014, incident, as well as the video recording depicting the incident. Id. at ¶ 32. The three inmate witnesses that Plaintiff requested refused to testify. Id. at ¶¶ 16, 30. After multiple warnings, Plaintiff was removed during the course of the hearing due to his disruptive behavior. See id. at ¶ 23. Plaintiff then refused to attend the remainder of the hearing. See id. at ¶¶ 26-29. Upon review of the hearing transcript and record evidence, Palen also acted fairly and impartially and did not predetermine Plaintiff's guilt. Id. at ¶¶ 30, 37.
For these reasons, summary judgment is also warranted.
3. Appeals
Plaintiff appealed all of the disciplinary determinations at issue, which he claims were affirmed on administrative appeal by Smith, Venettozzi, and/or Annucci. However, for reasons discussed above, Plaintiff has failed to establish a liberty interest and he was afforded due process. As such, Plaintiff cannot establish a Fourteenth Amendment due process claim against these Defendants based on their alleged affirmance of a constitutional disciplinary hearing. See Cole v. New York State DOCCS, No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *28 (N.D.N.Y. Aug. 25, 2016); see also Lopez v. Whitmore, No. 13-CV-0952 (BKS/ATB), 2015 WL 4394604, at *11 (July 16, 2015). Thus, summary judgment is also warranted on this basis.
As the Court recommends granting summary judgment for reasons discussed above, the Court declines to address Defendants whether Annucci, Venettozzi, and Smith are entitled to qualified immunity. (See Dkt. No. 80-20 at 25-32.)
Moreover, since Defendants filed this motion, the Second Circuit has clarified that under the Supreme Court's ruling in Iqbal, "a plaintiff must plead and prove 'that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'" Tangreti, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Merely being in the chain of command is not enough to satisfy this standard. See id. While "'[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary," id. (quoting Iqbal, 556 U.S. at 676) (second alteration in original), "[t]he violation must be established against the supervisory official directly." Id. (emphasis added). Failing to correct another officer's violation does not suffice. Id. at 617 n.4. "Indeed, even before Tangreti, affirming the outcome of a prison hearing was not sufficient to establish personal involvement." Smart v. Annucci, No. 19-CV-7908, 2021 WL 260105, at *5 (S.D.N.Y. Jan. 26, 2021) (citing Abdur-Raheem v. Selsky, 598 F. Supp. 2d 367, 370 (W.D.N.Y. 2009) (collecting cases)).
Here, Plaintiff has not alleged, and the record does not demonstrate, that Smith, Venettozzi, or Annucci had any personal involvement during the disciplinary hearings at issue. See Smart, 2021 WL 260105, at *5 ("That [defendants] failed to act on plaintiff's complaints, and that [they] denied plaintiff's administrative appeals, cannot support the inference that these [d]defendants, through "[their] own individual actions, [have] violated the Constitution.") (quoting Tangreti, 983 F.3dat 615). Thus, summary judgment is also warranted on this basis.
As the Court recommends granting Defendants' motion insofar as it seeks dismissal of Plaintiff's Fourteenth Amendment claims, the Court declines to address whether Annucci, Venettozzi, and Smith are entitled to qualified immunity. (See Dkt. No. 80-20 at 29-32.)
B. Exhaustion
Defendants argue Plaintiff failed to exhaust his administrative remedies with respect to his First Amendment retaliation and Eighth Amendment excessive force claims. (Dkt. No. 80-20 at 21-25.) To that end, Defendants submit evidence demonstrating Plaintiff did not file any grievances at Shawangunk, Sullivan, or Attica regarding his claims that: (1) DeGraff and Karamanos assaulted him on October 24, 2014, as he was exiting his cell to take a shower; (2) DeGraff and Karamanos retaliated against him on October 24, 2014, by subjecting him to excessive force; (3) DeGraff, McElroy, and Harrison assaulted Plaintiff on another unspecified date while escorting him to the facility hospital; or (4) DeGraff retaliated against him on October 17, 2014, by disposing of his mattress. (Dkt. No. 80-1 at ¶¶ 204-07.) CORC has no record of an appeal filed by Plaintiff related these claims. (Dkt. No. 80-15 at ¶¶ 15-16.) Defendants thus argue summary judgment is warranted.
Plaintiff counters administrative remedies were unavailable and, alternatively, requests an exhaustion hearing. (Dkt. No. 87 at ¶¶ 2-7.) Specifically, Plaintiff claims administrative remedies had become unavailable as to his Eighth Amendment excessive force claims because his "complaints, grievance, etc., were the subject of much tampering, and mishandling." Id. at ¶ 6. Plaintiff further argues the IGP is "opaque" and "confusing as it applies to what an inmate can do—when his grievance are not making it to the grievance staff, or what a plaintiff can do when his grievances are causing officers to retaliate." Id. at ¶ 7.
1. Excessive Force
As pointed out by Defendants, when questioned about his excessive force claims during his deposition, Plaintiff testified that he did not remember whether he filed a grievance against DeGraff, McElroy, and Harrison and could not recall the date of the alleged incident. (Dkt. No. 80-2 at 63, 70.) With respect to the October 24, 2014, incident, Plaintiff also testified that he could not remember whether he filed a grievance against DeGraff or Karamanos. Id. at 60-61.
In his sworn response to Defendants' motion, Plaintiff explains that his memory was "unclear" at the time of his deposition and further states that as to his excessive force claims "a grievance was filed" by "giving said grievance" to a SHU officer at Shawangunk. (Dkt. No. 87 at ¶ 2.) The parties agree a grievance was never filed at Shawangunk.
Plaintiff states that he sent a copy of the grievance to Lanny E. Walter, an attorney, whom he claims to have acted as the "custodian and record keeper of [his] grievances," because he was "having a hard time getting grievances against Shawangunk SHU officers filed or even delivered for filing at Shawangunk Inmate Grievance Office/Staff." Id. at ¶¶ 2, 3.
Attorney Walter does not represent Plaintiff in this action. (See Docket Report; see also Dkt. No. 87 at 18.)
Plaintiff has submitted a copy of a November 22, 2019, letter from Attorney Walter addressed to Judge Hurd, which in turn identifies "[a] December 14, 2014[,] grievance sent to J. Taylor-Stewart . . . to which are attached pink copies of Inmate Grievance Complaint dated November 26, 2014[,] and December 4, 2014." Id. at 1-2, 18. Plaintiff also submitted photocopies of grievances dated November 26, 2014, and December 4, 2014. Id. at 32-33. In the November 26, 2014, grievance, Plaintiff states:
Prior to being sent OMH/OBS I filed this complaint but it was never answered. While under escort from the dentist on Oct. 15, 2014, Officer DeGraff in an act of retaliation and intimidation put his groin up against my buttocks and grabbed my penis, after which Officer McElroy punched me in the back of the head, while their Supervisor Sgt. Harrison stood by and threatened my (sic) to stop writing complaints to the commissioner, and Superintendent about Captain Bertone. Then on Oct. 24, 2014, C.O. DeGraff and Karamanos violated facility SHU shower policy and pat frisked me at which time C.O. DeGraff grabbed my penis and Karamanos slammed my head into the wall with his forearm repeatedly.(Dkt. No. 87 at ¶ 2.)
According to Defendants, this "grievance," which lacks a grievance number, is insufficient to exhaust his Eighth Amendment excessive claims because there is no indication it was actually filed. (Dkt. No. 88 at 4-5.) The Court agrees. Defendants further assert that even if Plaintiff may have relayed this "grievance" to Deputy Superintendent Taylor-Stewart, along with a letter complaining of difficulties in the grievance process, it would not substitute for proper exhaustion because "a plaintiff's letters to prison officials or other officials outside the grievance chain of command are insufficient to properly exhaust administrative remedies." Id. at 5 (quoting, inter alia, Cucchiara v. Dumont, No. 9:18-CV-0182 (GLS/CFH), 2019 WL 2516605, at *5 (N.D.N.Y. Apr. 26, 2019), report and recommendation adopted, 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016)). The Court also agrees.
The Court reaches a different conclusion, however, as to Defendants' contention that Plaintiff's Eighth Amendment excessive force claims are not "salvaged" from the PLRA's exhaustion requirement by his "unsupported assertion that one or more unnamed Shawangunk officers destroyed, mishandled, or otherwise failed to file his grievance or grievances." Id. (citing, inter alia, Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) ("mere contention or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations"), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017)).
Contrary to Defendants' assertion, Plaintiff had not speculated that his grievance was misplaced. (Dkt. No. 88 at 5-6.) In his sworn opposition, Plaintiff states he gave the grievance to a SHU officer and mailed a copy of the grievance to Attorney Walter. (Dkt. No. 87 at ¶¶ 2, 5.) Plaintiff proffers a copy of the November 26, 2014, grievance, and a cover letter from Attorney Walter dated November 22, 2019, which, among other things, references a November 26, 2014, grievance. (Dkt. No. 88 at 18, 32.) "Since the Court is required to draw reasonable inferences in Plaintiff's favor, the Court must infer that the grievance was never filed because prison authorities did not file it, not because Plaintiff did not submit it." McLean v. LaClair, No. 9:19-CV-1227 (LEK/ATB), 2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021); Fann v. Graham, No. 15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6 (N.D.N.Y. Jan. 11, 2018) ("Viewing the facts in the light most favorable to plaintiff, the record suggests that plaintiff's grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to whether the grievance process was available and whether plaintiff attempted to exhaust his administrative remedies[.]"), report and recommendation adopted, 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018); Thaxton v. Simmons, No. 10-CV-1318, 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) ("[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact."); see also Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018 WL 4643036, at *4-5 (N.D.N.Y. Sept. 27, 2018) (finding an issue of fact as to the availability of the grievance process where plaintiff drafted and submitted a grievance that was never filed or answered) (collecting cases).
Additionally, Defendants' contention that Plaintiff was able to successfully navigate the IGP as to other matters at Shawangunk during the relevant time (see Dkt No. 88 at 6) does not necessarily weaken Plaintiff's unavailability argument—his history of filing grievances could also suggest that, absent interference, he was capable of complying with it. See Burrell v. Zurek, No. 9:17-CV-0906 (LEK/TWD), 2019 WL 4051596, at *3 (N.D.N.Y. Aug. 28, 2019).
Based on the foregoing, the Court finds Plaintiff has raised a genuine issue of fact as to the availability of the IGP with respect to his Eighth Amendment excessive force claims and therefore summary judgment is not warranted.
2. Sexual Assault
Rachel Seguin, the Assistant Director of DOCCS IGP, states that "with the exception of the sexual assault allegations," Plaintiff's excessive force and retaliation claims are the proper subject for a grievance. (Dkt. No. 80-15 at 10.) Defendants acknowledge that "DOCCS regulations exempt claims of sexual abuse or harassment from the requirement of filing a grievance for exhaustion purposes, so long as the incident is properly reported." (Dkt. No 80-20 at 25, citing 7 NYCRR § 701.3(i).)
Here, Plaintiff testified that he believed his October 29, 2014, letter to DOCCS' Inspector General obviated the need for a grievance because it implicated PREA. (Dkt. No. 80-2 at 60-62.) In that letter, Plaintiff states:
Plaintiff also states in the verified complaint that he filed a complaint with the Office of Special Investigations about the alleged excessive force incident involving DeGraff, McElroy and Harrison on the way to Shawangunk's facility hospital. (Dkt. No. 1 at 29.)
Dear Inspector General: Once again I am to make a request for your intervention on my behalf and investigate the ongoing retaliation, abuse, and again this inappropriate touching of my "penis" genitals by "C.O. D. DeGraff" who work the SHU/PC SD Unit here at Shawangunk. Officer DeGraff . . . on Oct. 24, 2014, . . . in an act of retaliation, "grabbed my penis" my buttock . . . under the guise of a pat frisk that is not a part of the policy at Shawangunk before a SHU shower. Please investigate!!Id. at 191. Moreover, in his declaration, DeGraff states, "I understand that plaintiff filed a complaint against me concerning the October 24, 2014[,] incident at some point thereafter. Attached as Exhibit D is a memorandum that I wrote to a different supervisor, Sgt. Lutz, on December 4, 2014 after plaintiff lodged his complaint. To the best of my knowledge, plaintiff's complaint was found unsubstantiated and dismissed." (Dkt. No. 80-5 at ¶ 12.) In that memorandum, DeGraff states:
At no time have I sexually assaulted inmate Clark, J. 99A0475 or any other inmate. I do not have it 'out for him.' I have not 'set up' inmate Clark or any other inmate. CO Karamanos and myself were involved in a minor use of force on October 24, 2014 with inmate Clark. Inmate Clark was being disruptive and failed to follow staff direction. A Tier 3 misbehavior report was issued for that incident and is still pending. Inmate Clark was out of the Facility for an extended period of time after that incident, and there have been no incidents since.(Dkt. No. 80-5 at 13.)
Nevertheless, Defendants argue DeGraff's alleged conduct does not fall under the purview of the exemption because '"Sexual Contact' does not include touching of the intimate parts of another person during the performance of a personal search in accordance with Department procedures . . ." (Dkt. No. 80-20 at 24-25, emphasis in Defendants' memorandum of law.) Defendants also note Plaintiff does not claim Karamanos participated in the alleged sexual touching and, therefore, his excessive force against Karamanos must be "properly grieved for exhaustion purposes." Id. at 25.
However, the parties dispute whether the sexual contact was in accordance with Department procedures. See Hayes v. Dahlke, 976 F.3d 259, 275 (2d Cir. 2020) ("Prison regulations state that, while '[c]ontact through the clothing with the genitalia, groin, . . . inner thigh, and buttocks is a necessary component of a thorough pat frisk[,] . . . staff must avoid any penetration of the anal or genital opening through the clothing" and "must not lift or otherwise manipulate the genitalia during a pat frisk.") (alterations in original). "Further, while it is true that not all grievances by inmates are covered by Directive 4040, conduct that is specifically related to the act of sexual abuse, such as a failure to intervene and protect that abuse, could be reasonably interpreted by the inmate as being covered by the Directive." Sheffer v. Fleury, 2019 WL 3891143, at *4 (N.D.N.Y. Aug. 19, 2019) (finding an "incident" of sexual abuse under § 701.3(i) could include "not only the acts of sexual abuse by an inmate or a corrections officer, but also other events which are necessarily intertwined with such a claim, such as a physical assault during the course of the abuse . . .").
Given the record and considering the evidence in the light most favorable to Plaintiff, the Court finds Defendants have not sustained their burden of demonstrating that Plaintiff's sexual assault claims, along with the alleged physical assaults, were not properly exhausted under the relaxed procedures found in § 701.3(i).
3. Retaliation
The Court reaches a different result as to Plaintiff's First Amendment retaliations claims. Here, there is no dispute that Plaintiff never filed a grievance concerning his claims that DeGraff or Karamanos retaliated against him for his grievance activity. Plaintiff does not suggest, and the record does not demonstrate, that Plaintiff's administrative remedies were unavailable under Ross.
Based upon the foregoing, the Court finds Plaintiff did not exhaust his administrative remedies with respect to his First Amendment retaliation claims as the PLRA requires and, therefore, recommends granting Defendants' motion and dismissing Plaintiff's First Amendment retaliation claims against DeGraff and Karamanos.
Generally, a dismissal for failure to exhaust administrative remedies is without prejudice, so that the inmate-plaintiff can cure the defect by exhausting his administrative remedies and then reinstituting his suit. See Snider v. Melindez, 199 F. 3d 108, 111-12 (2d Cir. 1999). However, dismissal with prejudice is appropriate where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is unable to cure his failure to exhaust. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, more than several years have passed since Plaintiff should have filed a grievance. As Plaintiff's failure to exhaust his administrative remedies is incurable at this point, the Court recommends dismissing Plaintiff's First Amendment retaliation claims with prejudice. See Castineiras v. Helms, No. 9:17-CV-1084 (BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6, 2019).
In light of this recommendation, the Court does not address the merits of Plaintiff's First Amendment retaliation claims.
C. Excessive Force Claims
As discussed, Plaintiff claims he was physically and sexually assaulted on two separate occasions while confined at Shawangunk. Defendants only seek summary judgment on the merits as to Plaintiff's Eighth Amendment excessive force claim premised on the incident involving DeGraff, McElroy, and Harrison. (Dkt. No. 80-20 at 15-17.)
Defendants argue summary judgment is warranted because Plaintiff has never provided a date or time of this alleged incident. (Dkt. No. 80-20 at 16; see Dkt. No. 1 at 29.) When questioned at his deposition about this alleged incident, Plaintiff testified that he did not remember when it occurred. (Dkt. No. 80-20 at 16.) Without such essential information as the date or time, Defendants argue Plaintiff's excessive force claim in connection with this alleged incident should be dismissed. Id., citing, inter alia, Lopez v. City of New York, No. 05 Civ. 10321, 2009 WL 229956, at *8 (S.D.N.Y. Jan. 30, 2009) (granting summary judgment dismissing an excessive force claim where the plaintiff failed to provide, among other things, a timeframe for the alleged incident).
To be sure, Plaintiff testified that he could not recall the exact date of this incident. (Dkt No. 80-2 at 63.) However, Plaintiff recalled the incident and described it taking place within the infirmary area, in the "short corridors leading" to the "emergency room areas and sick-call areas of Shawangunk." Id. Plaintiff further testified DeGraff "pushed me up against the wall" and "he pressed up against me and talking into my ear and pressing his pelvis, like up against my buttocks." Id. at 64-65. Although he could not recall what DeGraff said, "it was some perverted stuff[.]" Id. at 65. Plaintiff testified McElroy "punched" him a "couple times" in the "back area" of his head. Id. at 65-66. Plaintiff also testified Harrison came up to the side of him and threatened Plaintiff that "it will get rougher." Id. at 65. When questioned about any witnesses, he suggested the nurses or the "dentist office might have heard it." Id. at 67. More importantly, in his sworn opposition statement, Plaintiff has now proffered the date of the incident: October 15, 2014. (Dkt. No. 87 at ¶ 5; see also Dkt. No. 87 at 32 ("While under escort from dentist on Oct. 15, 2014, Officer DeGraff in an act of retaliation and intimidation put his groin up against my buttocks and grabbed my penis, after which Officer McElroy punched me in the back of my head, while their supervisor Sgt. Harrison stood by and threatened me . . . .").)
Without question, the evidentiary support for Plaintiff's excessive force claim against these Defendants is thin. Plaintiff testified that the incident happened quickly, approximately one to two minutes, and the injuries were not extensive in that he had "a little soreness in the back of my head." (Dkt. No. 80-2 at 67, 69.) Moreover, DeGraff, McElroy, and Harrison affirmatively deny having ever physically assaulted, used excessive force on, or improperly touched Plaintiff in any way. (Dkt. No. 80-5 at ¶¶ 5, 14; Dkt. No. 80-9 at ¶ 5; Dkt. No. 80-11 at ¶ 6.)
Nevertheless, on the record before the Court, Plaintiff has also testified and identified the date, location, and described the alleged force and sexual touching. Since Plaintiff's "allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically," summary judgment is inappropriate. See Wright v. Goord, 554 F.3d 255, 269 (2d Cir. 2009); see also Hayes, 976 F.3d at 275 ("Indeed, as we explained in Crawford, if an "officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact.") (quoting Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015)). The key inquiry into a claim of excessive force is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) ("[t]he Supreme Court has emphasized that the nature of the force applied is the core judicial inquiry in excessive force cases - not whether a certain quantum of injury was sustained.").
Based on the foregoing, the Court recommends denying Defendants' motion as to Plaintiff's excessive force claim against DeGraff, McElroy, and Harrison arising from this incident.
VII. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, the Court recommends that Defendants' motion for summary judgment be granted as to all claims, with the exception of the Eighth Amendment excessive force claims against DeGraff, Karamanos, McElroy, and Harrison.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No 80) be GRANTED in part and DENIED in part; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 8, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge