Opinion
9:19-cv-0193 (MAD/TWD)
05-12-2021
JONATHAN JACKSON, Plaintiff, v. J. RELF, et al., Defendants.
JONATHAN JACKSON Plaintiff, pro se LETITIA JAMES ERIK, BOULE PINSONNAULT, ESQ. Attorney for Defendants.
JONATHAN JACKSON Plaintiff, pro se
LETITIA JAMES ERIK, BOULE PINSONNAULT, ESQ. Attorney for Defendants.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate Judge.
I. INTRODUCTION
Jonathan Jackson (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se action pursuant to 42 U.S.C. § 1983, asserting his constitutional rights were violated at Great Meadow Correctional Facility (“Great Meadow”). (Dkt. No. 1, Plaintiff's complaint.) The Honorable Mae A. D'Agostino, United States District Judge, reviewed the complaint in accordance with 28 U.S.C. § 1915, and found only Plaintiff's Fourteenth Amendment procedural due process claims against Deputy Superintendent of Administration Relf, Correction Officer Brockley, and Lieutenant Scarlotta (collectively, “Defendants”) required a response. (Dkt. No. 7.) Plaintiff's claims survived Defendants' motion to dismiss. (Dkt. No. 37.)
Defendants now move for summary judgment on grounds that (1) Plaintiff was not deprived of a protected liberty interest sufficient to support his Fourteenth Amendment due process claims; and (2) Plaintiff's due process claims against Brockley and Scarlotta fail for lack of personal involvement. (Dkt. No. 48.) Plaintiff opposed the motion and Defendants filed a reply. (Dkt. Nos. 52, 53.) This motion was referred for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). For the reasons that follow, the Court recommends granting Defendants' motion.
Unless otherwise noted, the following relevant facts are undisputed for purposes of the pending motion for summary judgment.
A. July 13, 2018, Misbehavior Report and Resulting Disciplinary Hearing
On July 13, 2018, Plaintiff was confined in a single-bunk cell on 4 company in B block at Great Meadow. (Dkt. No. 48-7, Defendants' Statement Pursuant to Rule 7.1(a)(3), at ¶ 2.) On that date, cell frisks were performed throughout companies 4, 5, 6, and 8 on B block because a used saw blade had been found on 4 company. Id. at ¶ 3. At approximately 5:20 p.m., Brockley performed a frisk of Plaintiff's cell (B-4-28). Id. at ¶ 4. Brockley issued a misbehavior report or “ticket” charging Plaintiff with possession of a weapon and contraband-specifically, a “wooden shank-type weapon” (5-inch long, ¾ inch wide) in an electrical tape sheath. Id. at ¶ 5. As a result of the multi-company cell frisk operation, six shank-type weapons were found in different inmates' possession. Id. at ¶ 6.
The Local Rules were amended effective January 1, 2021. In the amendment, L.R. 7.1 was dissected and various subsections were renumbered and relocated to correspond with the appropriate Federal Rule. The relevant substance of the rules did not change. In the currently operative version of the Local Rules, L.R. 56.1 deals with summary judgement motions. However, because the instant motion was filed in 2020, the Court refers to the Local Rules as they existed at that time.
On July 20, 2018, Relf presided over Plaintiff's Tier III disciplinary hearing for violations related to the misbehavior report and Plaintiff pleaded not guilty. Id. at ¶¶ 10, 11. Plaintiff selected Sgt. Lyons as his hearing assistant. Id. at ¶ 9. Brockley and Scarlotta testified at the hearing. Id. at ¶ 12. Plaintiff had no familiarity with Brockley or Scarlotta before July 13, 2018. Id. at ¶¶ 6, 7.
On July 31, 2018, Relf found Plaintiff guilty and sentenced him to keeplock confinement, as well as loss of recreation time, full access to commissary, packages, and telephone privileges. Id. at ¶ 13. Plaintiff remained in keeplock until November 8, 2018. Id. at ¶ 14. In total, Plaintiff was subjected to 118 days of restrictive confinement (18 days in the special housing unit (“SHU”) and 100 days in keeplock). Id. at ¶ 13.
Specifically, Relf imposed a penalty of 270 days of keeplock, with a corresponding loss of privileges. (Dkt. No. 48-4, Declaration of Relf, at ¶ 28.) However, 90 days were suspended and deferred. Id. Plaintiff appealed the guilty determination and penalty. Id. at ¶ 30. Director Venettozzi reversed the determination, expunged the hearing, and ordered a rehearing. Id.
Pursuant to DOCCS procedures, upon issuance of the misbehaver report, Plaintiff was confined in the SHU pending the outcome of the disciplinary hearing. (Dkt. No. 48-4 at ¶¶ 13, 19.)
Generally, Plaintiff alleges his due process rights were violated when Relf acted with “outright bias” and credited the testimony of Brockley and Scarlotta, and the statements in the misbehavior report, even though there was no other physical or verbal evidence procured during the hearing. (Dkt. No. 1 at 5, 7.) Plaintiff claims that during the hearing, he made several objections, including: (1) there was no video footage of the cell search, strip frisk, or his interrogation by Scarlotta produced during the hearing even though Plaintiff had requested this material; (2) he was denied his right to call the three inmate witnesses whom he requested testify, and no refusal statement was introduced into the record showing that any of the witnesses refused to appear; (3) no photos of the alleged weapon were introduced and Relf “never testified or placed on the record[ ] that she would secur[e] any [testimony] to prove one . . . existed[;]” and (4) the hearing was extended twice in violation of DOCCS Directive #4932. Id. at 5. Plaintiff further alleges the misbehavior report issued by Brockley was false, Brockley and Scarlotta provided false testimony at the disciplinary hearing, and that prior to the search, Scarlotta “threatened” Plaintiff that if he did not “take the blame” for a weapon found in the company trash can, “this could happen.” Id. at 5.
Citations to page numbers in the filings refer to the pagination CM/ECF automatically generates.
For her part, Relf asserts her determination was supported by the testimony and documentary evidence presented at the hearing. (Dkt. No. 48-4, Relf's Declaration, at ¶ 27.) Specifically, she relied upon the misbehavior report authored by Brockley and Brockley's testimony, along with Scarlotta's testimony, which provided substantial evidence to support her determination. Id. She read the misbehavior report into evidence and Plaintiff declined to provide testimony, stating he had no testimony to give. Id. at ¶ 20. As to Plaintiff's allegations that he requested an inmate to testify at the hearing, which was allegedly disregarded, Relf states that although he may have requested an inmate witness from his hearing assistant, he did not request an inmate witness during the hearing. Id. at ¶ 21; see also id. at ¶¶ 22, 23. Similarly, she does not recall Plaintiff asking for any video footage at the hearing. Id. at ¶ 24. Relf explains “[t]he determination of guilt and the penalty that I set at the conclusion of the Tier III hearing were not based on any bias toward plaintiff, but instead were designed to promote DOCCS' legitimate noncriminal objectives of maintaining prison safety, discipline, and order by deterring future misbehavior of a similar serious nature.” Id. at ¶ 29.
For his part, Brockley states that under the direction of Scarlotta, he conducted a suspicion-based cell frisk of Plaintiff's cell and found the wood, shank-type weapon in a laundry bucket between folded clothes under Plaintiff's bunk. (Dkt. No. 49-6, Brockley's Declaration, at ¶ 6.) He testified by telephone at Plaintiff's disciplinary hearing and testified consistent with what he wrote in the misbehavior report. Id. at ¶ 10. He states that contrary to Plaintiff's suggestion, “he did not lie about finding a weapon hidden in his laundry bucket, and there was no conspiracy against him.” Id. at ¶ 12. Brockley further avers he “never interfered with or took any steps to prevent plaintiff from presenting documentary evidence or witnesses at the subject disciplinary hearing.” Id. at ¶ 14.
Lastly, Scarlotta explains that on July 13, 2018, interviews were conducted of every inmate housed on 4 company in B block in order to investigate the discarded saw blade hidden in a trash can. (Dkt. No. 48-5, Scarlotta's Declaration, at ¶¶ 6, 9.) Plaintiff's cell was first frisked at approximately 2:00 p.m. Id. at ¶ 8. Scarlotta interviewed Plaintiff and, thereafter, at approximately 5:20 p.m. sent Brockley to frisk Plaintiff's cell a second time. Id. at ¶ 11. Scarlotta explains “there are times when security staff frisks a cell but, for one reason or another, misses something[, ]” which is why Brockley was sent to frisk Plaintiff's cell a second time. Id. at ¶¶ 10, 11. He avers that contrary to Plaintiff's assertion, he did not threaten Plaintiff in any manner on July 13, 2018. Id. at ¶ 17. He states he did not write the misbehavior report or frisk
Plaintiff's cell on July 13, 2018. Id. at ¶ 18. To the best of his knowledge, upon information and belief, the misbehavior report was not a false or “sham” ticket, as alleged in the complaint. Id. at ¶ 19. Rather, it was issued because Brockley discovered a shank-type weapon in Plaintiff's cell. Id. Scarlotta states he never interfered with or took any steps to prevent Plaintiff from presenting documentary evidence or witnesses at the subject disciplinary hearing. Id. at ¶ 20.
B. Duration and Conditions of Plaintiff's Disciplinary Confinement
As noted, it is undisputed that Plaintiff was subjected to a total of 118 days of disciplinary confinement as result of the misbehavior report and disciplinary hearing that followed. (Dkt. No. 48-7 at ¶ 15.) Specifically, Plaintiff was confined in the SHU for 18 days and then confined to keeplock for approximately 100 days. Id. Plaintiff testified and described his keeplock confinement as “just like the SHU” in that he was “basically” confined to his cell 23 hours per day, and given one hour of recreation in an outdoor enclosure; he had limited access to commissary insofar and had to wait 30 days before having full access to commissary; he had non-contact visitation; he could not use the telephone or receive packages; and he had to wait approximately one week to receive his personal property. (Dkt. No. 48-3, Plaintiff's Deposition, at 51-53, 76.) Plaintiff further testified that although he had access to the showers, he could not shower for about a week because he did not have anything to “use” in the shower, like shampoo. Id. at 78. Additionally, Plaintiff's pending transfer request was “shut down” after the misbehavior report and disciplinary hearing. Id.
In his opposition submission, Plaintiff states that the night he was placed in the SHU, he was only given half of a bed sheet and his blankets “had a certain urine smell.” (Dkt. No. 52, Plaintiff's Declaration, at 7, ¶ 8.) He was placed in “dirty filthy cell that had stains on the wall, which [he] couldn't identify, along with the floors, toilet being dirty.” Id. The next day he requested permission to clean and disinfect his cell but was told he had to “wait until cell clean up, which was days away.” Id. He was also told he would have to wait until more bed sheets and blankets were available. Id. Additionally, the SHU was noisy due to prisoners yelling and screaming. Id.
When Plaintiff asked about his “property, ” he was told that “it was still in [his] previous cell waiting to be packed up.” Id. at ¶ 9. Without his property, Plaintiff was “unable to shower because [he] had no shower slippers, soap or [ ] washrag.” Id. He had no extra clothing and was “forced to wear the same jumpsuit and under garment for several days.” Id. He was also “pat frisk[ed] and shackled every time [he] existed (sic) [his] cell.” Id. Plaintiff states he could not contact his family, friends, or anyone else about the “situation” because he did not have stamps and could not use the telephone. Id. His visits were no contact and limited to once a week. Id. He wrote several grievances “to the situation” but “there was never a response from any staff because they were never received, indicating [his] facility mail was being tampered with.” Id.
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).
IV. DISCUSSION
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). These protections include providing the inmate with “advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken.” Smith v. Fischer, 803 F.3d 124, 127 (2d Cir. 2015) (citing 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).
To establish a Fourteenth Amendment procedural due process claim under Section 1983, a plaintiff must show he (1) possessed an actual 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); Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998).
In this case, Plaintiff alleges Defendants deprived him of a liberty interest without due process. (See generally Dkt. No. 1; Dkt. No. 7.) Defendants argue Plaintiff's claims fail to implicate a protectable liberty interest. (Dkt. No. 48, Defendants' Memorandum of Law, at 9-14.) Defendants further argue Brockley and Scarlotta are entitled to summary judgment for lack of personal involvement. Id. at 14-19.
A. Liberty Interest
An inmate retains a protected liberty interest in remaining free from segregated confinement if he can satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Therefore, a plaintiff must show that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. As to the first factor, “[t]he prevailing view in this Circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor.” Liao v. Malik, No. 9:13-CV-1497 (GTS/DEP), 2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting cases).
Regarding 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 Section 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) (citation omitted). 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.
As set forth above, the undisputed record evidence demonstrates Plaintiff was housed in disciplinary confinement for approximately 118 days. (Dkt. No. 49-7 at ¶ 15.) 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 the 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). In this regard, Plaintiff claims he was also penalized with loss of packages, commissary, telephone, and contact visitation. Plaintiff does not claim, and the record does not support, that he endured conditions that could be construed as atypical or unusual. 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); Frazier v. Coughlin, 81 F.3d 313, 315, 317 (2d Cir. 1996) (loss of commissary, recreation, package, and telephone privileges did not amount to an atypical and significant deprivation); Nogueras v. Coughlin, No. 94-CV-4094, 1996 WL 487951, at *5 (S.D.N.Y. Aug. 27, 1996) (“Restrictions on telephone use, recreational activities, access to law libraries, visitation, personal property, educational and employment opportunities” did not amount to atypical hardship.); Thomas v. Smith, 559 F.Supp. 223, 224 (W.D.N.Y. 1983) (denial of basic hygiene items such as deodorant, soap, shampoo while confined in disciplinary segregation dismissed as frivolous).
The Court notes that “[w]hile some courts have analyzed procedural due process claims stemming from keeplock confinement under principles ordinarily applicable to disciplinary or administrative SHU confinement, . . ., others have concluded that ordinary keeplock confinement conditions are not sufficiently atypical or significant hardships in relation to the ordinary incidents of prison life to trigger the protections of the Fourteenth Amendment.” Smith v. Wright, No. 9:06-CV-00401 (FJS/DEP), 2011 WL 4902860, at *9 n.17 (N.D.N.Y. Aug. 31, 2011) (“assum[ing] . . . plaintiff's medical keeplock confinement for a period of approximately seven months, with a corresponding loss of privileges, constituted the deprivation of a liberty interest sufficient to trigger the Fourteenth Amendment's due process protections”), report-recommendation adopted by 2011 WL 4458770 (N.D.N.Y. Sept. 23, 2011); see also Gillard v. Rovelli, No. 9:12-CV-0083 (LEK/CFH), 2013 WL 5503317, at *13 (N.D.N.Y. Sept. 30, 2013) (recognizing that “keeplock is less confining than SHU, ” but finding that “questions of fact exist with respect to whether Gillard's 90 days in keeplock amount to a liberty interest” and denying motion to dismiss). The Court assumes, for purposes of this Report and Recommendation only, that keeplock confinement conditions may be sufficiently atypical or significant in relation to the ordinary incidents of prison life to trigger the protections of the Fourteenth Amendment.
Moreover, as Defendants correctly observe in their reply to Plaintiff's opposition, while Plaintiff describes the conditions that he allegedly experienced in the SHU, he does specify the length of time that these conditions persisted, he provides no citation to the record, and he alleges several conditions-including allegations about the cleanliness of his SHU cell-for the first time in opposition to Defendants' motion. (See Dkt. No. 53 at 3-4; compare Dkt. No. 52 at 3, 7, with Dkt. No. 48-3 at 51-53, 76-79; see also Dkt. No. 48-7 at ¶ 16.) Such conclusory and self-serving statements, some of which were raised for the first time in opposition to Defendants' motion for summary judgment, fail to raise a genuine dispute of material fact.
Given the totality of the evidence, Plaintiff has not raised a triable dispute of fact as to whether the 118 days of disciplinary confinement was an atypical hardship under Sandin. See Jabot v. Correction Officer Minor, No. 9:13-CV-01407 (DNH/TWD), 2016 WL 5322113, at *8 (N.D.N.Y. July 15, 2016) (holding 200 days of disciplinary confinement in the SHU at county correctional facility, along with a loss of privileges such as telephone and visitation insufficient to warrant constitutional protections even though plaintiff also experienced conditions of lack of sleep, difficulty eating, and being shackled during facility transport), report-recommendation adopted, 2016 WL 5173279 (N.D.N.Y. Sept. 21, 2016); Spence v. Senkowski, No. 91-CV-955 (NPM), 1998 WL 214719, at *3 (N.D.N.Y. Apr. 17, 1998) (plaintiff's confinement in the SHU for 180 days, with a corresponding loss of packages, telephone privileges, commissary privileges and his prison job was not an atypical or significant hardship to establish the existence of a liberty interest); Young v. Polizzi, No. 9:16-cv-0660 (FJS/CFH), 2018 WL 3949967, at *6 (N.D.N.Y. July 18, 2019) (finding no protected liberty interest where deaf plaintiff was confined in the SHU for 120 days and claimed he was “penalized with loss of packages, commissary, and telephone privileges and . . . had limited access to the serves of a sign language interpreter while in SHU).
Based on the forgoing, the Court finds Plaintiff has failed to establish a protected liberty interest and, consequently, Plaintiff's Fourteenth Amendment due process claims fail as a matter of law. Without the denial of a cognizable liberty interest, there can be no due process violation. See Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998). Accordingly, the Court recommends granting summary judgment to Defendants.
B. Personal Involvement
Brockley and Scarlotta also contend they are entitled to summary judgment for lack of personal involvement. (Dkt. No. 48-2 at 14-19.) As a fundamental prerequisite “[t]o establish[ing] a § 1983 claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional violation.” Boley v. Durets, 687 Fed.Appx. 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Moreover, as recently emphasized by the Second Circuit, there is no “special rule for supervisory liability.” Tangreti v. Bachmann, 983 F.3d 609, 612 (2d Cir. 2020). Instead, a plaintiff must plead and prove that “each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. (internal quotation marks omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
Generally, Plaintiff argues that because Brockley, at the direction of Scarlotta, issued him a false misbehavior report and both Brockley and Scarlotta provided false testimony at the disciplinary hearing, they deprived him of his constitutional right to due process. “However, this ‘but for causation' argument is not the standard for Section 1983 liability.” Muhammad v. Pico, No. 02 Civ. 1052, 2003 WL 21792158, at *6 (S.D.N.Y. Aug. 5, 2003); see Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (“The filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing.”); see also Freeman v. Rideout, 808 F.2d 949, 950, 953 (2d Cir. 1986) (“[T]he filing of unfounded charges is not per se a constitutional violation under section 1983[.]”). Rather, “[t]he issuance of false misbehavior reports and provision of false testimony against an inmate . . . violates due process only where either procedural protections were denied that would have allowed the inmate to expose the falsity of the evidence against him, . . . or where the fabrication of evidence was motivated by a desire to retaliate for the inmate's exercise of his substantive constitutional rights[.]” Mitchell v. Senkowski, 158 Fed. App'x 346, 349 (2d Cir. 2005) (internal citations omitted).
Plaintiff also testified that Brockley and Scarlotta “conspired” to deny Plaintiff his procedural due process rights and were “part of a conspiracy to get [him] out of the facility.” (Dkt. No. 48-3 at 62-67). Even when construed with the utmost of special liberality, the Court agrees with Defendants that Plaintiff has failed to state a § 1983 conspiracy claim. (See Dkt. No. 48-1 at 16-17.) “To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Benitez v. Ham, No. 9:04-CV-1159 (NAM), 2009 WL 3486379, at *18 (N.D.N.Y. Oct. 21, 2009) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)). A violated constitutional right is a natural prerequisite to a claim of conspiracy to violate such right. See Malsh v. Austin, 901 F.Supp. 757, 763-64 (S.D.N.Y. 1995) (citation omitted). Thus, if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights. See id.; see also Friends of Falun Gong v. Pacific Cultural Enter., Inc., 288 F.Supp.2d 273, 279 (E.D.N.Y. 2003) (citations omitted); Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (citation omitted). Moreover, vague and conclusory allegations that defendants entered into an unlawful agreement will not suffice to state a conspiracy claim under § 1983. James v. Will, No. 9:17-CV-0843 (GTS/ML), 2020 WL 1030648, at *6 (N.D.N.Y. Mar. 3, 2020). Instead, “a plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.” Id. (citations omitted). Lastly, according to the intra-corporate conspiracy doctrine, which applies to § 1983 conspiracy claims, Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978), “officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other.” Fitzgerald, 2012 WL 5986547, at *23 (citations omitted). Here, Plaintiff's conspiracy claim, if any, is supported by only conclusory and vague allegations of a conspiracy, which is insufficient. Further, for reasons discussed herein, inasmuch as the Court recommends granting summary judgment to Defendants on Plaintiff's due process claims, it follows he cannot sustain a claim of conspiracy to violate those rights. Lastly, any conspiracy claim would also likely be barred by the intra-corporate conspiracy doctrine.
In this case, Plaintiff does not assert retaliation and the record does not support that Brockley's allegedly false ticket and/or Brockley's and Scarlotta's allegedly false testimony were provided in retaliation for Plaintiff exercising a constitutionally protected right.
Here, the Court finds Plaintiff was afforded a hearing that would have allowed him to expose the falsity of the lodged charges. The record demonstrates the misbehavior report was formally served on Plaintiff on July 14, 2018. (Dkt. No. 48-4 at ¶ 14.) Plaintiff met with his assigned assistant on July 18, 2018. Id. at ¶¶ 15, 16. The Tier III disciplinary hearing began on July 20, 2018, and Plaintiff was present at the hearing. Id. at ¶ 17. Relf read the misbehavior report into evidence at the hearing. Id. at ¶ 18. Plaintiff then pleaded not guilty to the charges and declined to provide testimony-he stated that he had no testimony to give. Id. at ¶ 20.
Both Brockley and Scarlotta testified at the hearing. (Dkt. No. 48-7 at ¶ 12.) Brockley avers that his testimony was consistent with what he wrote in the misbehavior report. (Dkt. No. 48-6 at ¶ 10.) He states that contrary to Plaintiff's suggestion, “he did not lie about finding a weapon hidden in his laundry bucket, and there was no conspiracy against him.” Id. at ¶ 12. Further, Brockley further avers he “never interfered with or took any steps to prevent plaintiff from presenting documentary evidence or witnesses at the subject disciplinary hearing.” Id. at ¶ 14. Scarlotta also declares he “never interfered with or took any steps to prevent Plaintiff from presenting documentary evidence or witnesses at the subject disciplinary hearing, on the charges related to hiding a weapon in his cell on July 13, 2018.” (Dkt. No. 48-5 at ¶ 20.) Scarlotta further states avers that he did not threaten Plaintiff in any manner on July 13, 2018. Id. at ¶ 17.
On July 31, 2018, relying upon the misbehavior report and Brockley's and Scarlotta's testimony, Relf found Plaintiff guilty. Id. at ¶ 13. As discussed above, Relf states that during the hearing, Plaintiff did not request the testimony from any inmate, nor does she recall Plaintiff asking for video footage during the hearing. (Dkt. No. 48-4 at ¶¶ 21, 22, 23.) In her declaration, Relf explains “[t]he determination of guilt and the penalty that I set at the conclusion of the Tier III hearing were not based on any bias toward plaintiff, but instead were designed to promote DOCCS' legitimate noncriminal objectives of maintaining prison safety, discipline, and order by deterring future misbehavior of a similar serious nature.” Id. at ¶ 29.
In light of the foregoing, the Court finds Plaintiff was adequately afforded a hearing on his claim that he was falsely accused and denied due process. Consequently, the Court recommends granting summary judgment to Brockley and Scarlotta for lack of personal involvement. See Amaker v. Boyd, No. 9:19-CV-1253 (LEKATB), 2020 WL 210317, at *10 (N.D.N.Y. Jan. 14, 2020) (dismissing due process claims against authors of the misbehavior report where plaintiff failed to allege facts to suggest he was not adequately afforded a hearing on his claim that he was falsely accused.).
Moreover, for reasons discussed in Part IV.A. above, the Court finds Plaintiff's disciplinary confinement at issue fails to implicate a protected liberty interest. As noted, without the denial of a cognizable liberty interest, there can be no due process violation. See Scott, 156 F.3d at 287 (“No right to due process is implicated in the prison context unless a liberty interest has been deprived[.]”); Gill v. Riddick, No. 03-CV-1456, 2005 WL 755745, at *14 (N.D.N.Y. Mar. 31, 2005) (“If, however, no liberty interest is implicated, then a fortiori, our analysis ceases and the claim should be dismissed.”). Consequently, Plaintiff's due process claims against Brockley and Scarlotta also fail as a matter of law.
V. 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 granting Defendants' motion and dismissing Plaintiff's complaint in its entirety with prejudice.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 48) be GRANTED; and it is further
RECOMMENDED that Plaintiffs complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; 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.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order 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).