Jean-Laurent v. Lane

Full title: PHILLIP JEAN-LAURENT, Plaintiff, v. C.O. LANE, et al. Defendants.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Aug 18, 2016

9:11-CV-00186 (NAM/TWD) (N.D.N.Y. Aug. 18, 2016)

Opinion

9:11-CV-00186 (NAM/TWD)

08-18-2016

PHILLIP JEAN-LAURENT, Plaintiff, v. C.O. LANE, et al. Defendants.

APPEARANCES: PHILLIP JEAN-LAURENT Plaintiff pro se P.O. Box 200016 South Ozone Park, New York 11420 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ. Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: PHILLIP JEAN-LAURENT
Plaintiff pro se
P.O. Box 200016
South Ozone Park, New York 11420 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION

I. INTRODUCTION

Pro se Plaintiff Philip Jean-Laurent, formerly a prisoner in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), commenced this civil rights action pursuant 42 U.S.C. § 1983 on February 17, 2011. (Dkt. No. 1.) Plaintiff originally brought suit against twelve DOCCS employee defendants.¹ Id. at ¶¶ 9-16. The Defendants remaining in the action, all of whom have now moved for summary judgment (Dkt. No. 88) on the surviving claims in Plaintiff's amended complaint (Dkt. No. 46) pursuant to Federal Rule of Civil Procedure 56, are Cape Vincent Correctional Facility ("Cape Vincent") Corrections Officer Patrick Lane; former Cape Vincent Sergeant Matthew Beard; Cape Vincent Sergeant David Pawlin; retired Deputy Superintendent for Security at Cape Vincent, Brian McAuliffe; former Medical Director at Cape Vincent, Dr. Charles Moehs; former Cape Vincent Superintendent, Warren Barkley; Mid-State Correctional Facility ("Mid-State") Superintendent, William Hulihan; retired DOCCS Assistant Director of the Inmate Grievance Program, Christopher Lindquist; and DOCCS Director of Special Housing/Inmate Disciplinary Program, Norman Bezio.² (Dkt. Nos. 54 at 3³; 88-3 at ¶ 1; 88-5 at 30; 88-7 at ¶ 1; 88-8 at ¶ 3; 88-12 at ¶ 3.)

1 Plaintiff has also sued four Doe defendants. The Docket maintained by the Clerk's Office does not reflect the identification of, or service on, any of the Doe defendants during the more than five years the action has been pending. The Court, therefore, recommends dismissal of the action against the Doe Defendants without prejudice. See Pravada v. City of Albany, 178 F.R.D. 25, 26 (N.D.N.Y. 1998) (dismissing the unidentified "John Doe" and "Jane Doe" defendants after plaintiff had been provided "over two years to identify and serve these individuals, including the full discovery period.").

2 Original Defendants Corrections Officers Allen Briggs and Seth Tyndall, and Corrections Lieutenant Norman Jones were dismissed from the action by the Hon. Norman A. Mordue, Senior District Judge, in a Memorandum-Decision and Order filed on October 20, 2014, on initial review of Plaintiff's amended complaint. (Dkt. No. 54 at 3.)

3 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.

The claims on which Defendants seek summary judgment are: (1) First Amendment claims for retaliation against Defendants Lane, Beard, Pawlin, and Moehs; (2) Eighth Amendment medical indifference claims against Defendants Moehs, McAuliffe, Barkley, Hulihan, and Lindquist; (3) Eighth Amendment cruel and unusual punishment claims against Defendants Pawlin and Barkley, in his supervisory capacity; and (4) a Fourteenth Amendment violation of due process claim against Defendants McAuliffe and Bezio. (Dkt. 88-1 at ¶ 11.) Plaintiff has opposed the motion, and Defendants have filed a reply. (Dkt. Nos. 99 and 103.)

For the reasons that follow, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 88) be granted in its entirety.

II. FACTUAL BACKGROUND

A. Defendants Lane and Beard

According to Plaintiff, shortly after he was transferred to Cape Vincent on January 23, 2008, Defendant Lane informed him that he was not allowed to store two draft bags of his belongings under his bunk bed and would have to purchase storage bins for his excess belongings from the commissary. (Dkt. No. 88-1 at 36.) Plaintiff claims Lane gave him permission to store the bags under his bunk until his funds arrived from his prior facility in about two weeks. Id. Three consecutive times in January and February 2008 when Plaintiff's funds arrived they were encumbered and unavailable for the purchase of storage bins. Id. at 36. While Plaintiff claims Lane continued to allow him to keep the draft bags under his bunk, Lane denies ever having granted Plaintiff permission to keep the bags under his bunk and claims he was without authority to do so. (Dkt. Nos. 88-1 at 37; 88-6 at ¶ 8.)

On February 19, 2008, Lane issued a Tier I inmate misbehavior report to Plaintiff stating that while doing the daily dormitory inspection he had noted that Plaintiff had two draft bags under his bunk. (Dkt. No. 99-3 at 6.) The misbehavior report charged Plaintiff with improperly keeping the draft bags under his bunk from January 24, 2008, through February 18, 2008. Id. at ¶ 2. Plaintiff testified at his deposition that Lane issued the Tier I misbehavior report the day he learned that Plaintiff was pursuing an excessive force lawsuit against New York City corrections officers in the Southern District of New York. (Dkt. No. 88-1 at 37, 43; see also Dkt. No. 99-1 at 4.) Lane's Declaration omits any reference to the February 19, 2008, misbehavior report (see Dkt. No. 88-6), but he does deny seeing any correspondence regarding Plaintiff's excessive force litigation prior to issuing a second misbehavior report, also involving the draft bags, on February 25, 2008. Id. at ¶ 11.

Plaintiff was found guilty at the Tier I hearing held before Defendant Pawlin the following Saturday. (Dkt. No. 46 at ¶ 24.) The evening of the hearing, Plaintiff determined that DOCCS Directive 4913 and Facility Operations Management ("FOM") § 786 authorized the storage of the draft bags under his bunk. Id. at ¶ 25. Plaintiff claims that he informed Lane about the draft bag policy in DOCCS Directive and FOM on the morning of February 25, 2008, and Lane expressed his disregard for the policy. (Dkt. No. 46 at ¶ 25.) Plaintiff then began writing Grievance No. CV8241-08, dated February 25, 2008, regarding the draft bag issue and the Tier I misbehavior report, in which he noted that he had no money to purchase storage bins and claimed that DOCCS Directive 4913 and FOM 786 allowed him to store excess property in draft bags under his bed. Id.; Dkt. Nos. 88-1 at 44; 99-3 at 30. In the Grievance, Plaintiff wrote that Lane had persisted in maintaining that Plaintiff had to get rid of the draft bags and purchase property bags from the commissary despite being informed of the Directive and FOM section, leaving Plaintiff at risk for further misbehavior reports. (Dkt. No. 99-3 at 31.) The grievance was filed by the Grievance Clerk on February 28, 2008. Id. at 30.

Plaintiff contends that the morning of February 25, 2008, after Lane became aware he was writing the grievance, Lane engaged in a series of telephone conversations with an individual whom he referred to on the phone as "Sarge" regarding the draft bag situation, including the Directive and FOM section referenced by Plaintiff. (Dkt. Nos. 46 at ¶ 26; 88-1 at 41.) Plaintiff surmised that "Sarge" was Defendant Beard. (Dkt. No. 88-1 at 41.) Plaintiff claims that Lane told Beard during one of the phone conversations that he did not want Plaintiff in his "house" any longer. (Dkt. No. 88-1 at 43.) Later that day, Lane issued the February 25, 2008, misbehavior report. (Dkt. No. 88-6 at ¶¶ 5-7.)

Lane denies that he had any communications with Beard concerning the subject matter of the February 25, 2008, misbehavior report before issuing the report. Id. at ¶ 9. According to Lane, at approximately 11:00am on February 25, 2008, he found that Plaintiff had two draft bags under his bunk and gave him a direct order to place his property in his locker and bring the draft bags to the Correction Officers' desk. Id. at ¶ 5. When Plaintiff still had the draft bags under his bunk at 12:25 pm, Lane repeated the order. Id. Lane claims that Plaintiff became very upset and began yelling that he was allowed to have two draft bags under his bed per the Directive and FOM. Id. Lane gave Plaintiff a direct order to be quiet and go to his cube at which point Lane emptied all of the property out of the draft bags onto the floor of his cube and brought the draft bags to the Corrections Officers' desk. Id.

In Lane's February 25, 2008, misbehavior report, arising out of the draft bag incident of that date, Plaintiff was charged with violating 106.10 Direct Order, 104.13 Disturbance, 118.21 Fire Hazard, and 118.30 Untidy Person or Cell. (Dkt. 88-7 at 5.) Beard claims that he became aware of the February 25, 2008, misbehavior report on that date and escorted Plaintiff to the Special Housing Unit ("SHU") at 1:32pm that afternoon on the authorization of Lieutenant Alexander. Id. at ¶ 7; 46 at ¶ 26; 88-1 at 41, 88-7 at ¶ 6. At the hearing on the misbehavior report, Plaintiff was found not guilty of 104.13 Creating a Disturbance, 118.21 Flammable Materials, and 106.10 Refusing a Direct Order. (Dkt. No. 88-7 at 9.) Plaintiff was found guilty of 118.30 Untidy Cell or Person. Id.

Beard denies having any knowledge of Grievance No. CV-8241-08 before he was asked to investigate the grievance on February 28, 2008. (Dkt. No. 88-7 at ¶7.) Based upon his investigation, Beard determined that Plaintiff's personal items had to be stored in his locker and/or approved personal property storage bags available at the commissary. Id.

B. Defendants McAuliffe and Bezio - July 29, 2008, Misbehavior Report

On July 29, 2008, Plaintiff was issued a misbehavior report for fighting with another inmate in the facility law library. (Dkt. Nos. 88-1 at 45; 88-5 at 9-10.) According to the misbehavior report, Plaintiff complained to the inmate about the manner in which he had handed Plaintiff a book and punched the inmate in the face, then rushed around the counter swinging at the inmate. (Dkt. No. 88-5 at 9.) Plaintiff is stated to have then struggled with the inmate and shoved him backwards at which point a corrections officer intervened. Id. During the course of the altercation, a microfiche machine was knocked over and broken. Id. at 10. Plaintiff was charged with violating 110.13 Fighting, 106.10 Direct Order, 104.11 Violent Conduct, 116.10 Destruction of State Property, 109.10 Out of Place, and 104.13 Disturbance. Id.

Plaintiff was allowed to choose an assistant in defending against the charges and met with the assistant on July 30, 2008. Id. at 13-14, 33. The assistant met with four witnesses whom Plaintiff wanted to testify at his Tier III hearing. Id. at 14. Two agreed to testify and two refused. Id. at 14, 21-22. Plaintiff also requested that his assistant obtain, among other things, the misbehavior report issued to the other inmate involved in the altercation.⁴ Id. at 14. The request was denied. Id.

4 The July 29, 2008, Use of Force Memorandum prepared by Sergeant Sisler indicates that misbehavior reports were issued to both participants in the altercation. (Dkt. No. 88-5 at 18.)

Defendant McAuliffe was the hearing officer at Plaintiff's Tier III hearing which began on Friday, August 1, 2008, and ended the same day when Plaintiff plead guilty to all charges. Id. at 24; see also McAuliffe Declaration (Dkt. No. 88-5 at ¶¶ 1-23). Plaintiff initially plead guilty to 104.13 Creating a Disturbance, 100.13 Fighting, 106.10 Refusing a Direct Order, and 109.10 Out of Place, and not guilty to 104.11 Violent Conduct and 116.10 Property Damage or Loss. Id. at 24, 34-41. However, when McAuliffe indicated that he was going to adjourn the hearing until the following Monday, Plaintiff told McAuliffe to change his plea to guilty on everything because he did not want to come back. Id. at 42. McAuliffe told Plaintiff he did not want him to change his plea if he was not guilty, but that it was up to Plaintiff to decide. Id. Plaintiff then brought up the denial of his request for the misbehavior report issued to the other inmate involved in the altercation and was told by McAuliffe that he could not have the report that it was not his business but that he could call the inmate as a witness. Id.

While McAuliffe did inform Plaintiff that the other inmate also had a Tier III misbehavior report, he would not disclose information regarding the charges against the other inmate or whether the other inmate would have to share in restitution for the microfiche machine. Id. at 43-45. When McAuliffe asked Plaintiff if his concern was with not wanting to be held responsible for the entire cost of the microfiche machine when they were both fighting, Plaintiff responded "right." Id. at 45. Following the discussion regarding the other inmate, Plaintiff reaffirmed his desire to plead guilty to all charges. Id. at 46. McAuliffe advised Plaintiff of his right to an appeal. Id. at 49-50.

Following Plaintiff's guilty plea, McAuliffe found him guilty on all charges except 109.10 Out of Place, and McAuliffe imposed a penalty of six months in SHU, six months loss of recreation, packages, commissary, phone, and special events, and three months recommended loss of good time. Id. at 25. Plaintiff appealed McAuliffe's determination to Defendant Bezio. (Dkt. No. 88-5 at 27-29.) Plaintiff argued in his August 11, 2008, appeal that denial of documentary evidence, presumably the other inmate's the misbehavior report requested by him at the hearing, had rendered his guilty pleas involuntary. Id. at 27. In addition, Plaintiff argued that denial of the misbehavior report deprived him of the opportunity to present evidence in mitigation of the penalties imposed. Id. Plaintiff asked that the penalties be modified and the SHU time and recommended loss of good time be reduced. Id.

On August 13, 2008, Plaintiff wrote a supplement to his appeal after finding out that the other inmate involved in the altercation had been released from SHU fifteen days after the fight. Id. at 28-29. Plaintiff claimed bias and impartiality on McAuliffe's part in the sentence imposed on Plaintiff. Id. at 28. Plaintiff also claimed that McAuliffe had misinformed him at the hearing by explicitly telling him that when two people fight they are penalized the same. Id. According to Plaintiff he would not have plead guilty but for the blatant and deliberate misrepresentation by McAuliffe. Id. at 29.

Bezio issued a determination on October 1, 2008, affirming the Superintendent's Hearing held before McAuliffe. Id. at 30. In response to interrogatories from Plaintiff, Bezio indicated that a review of Plaintiff's Tier III hearing records regarding the hearing held on August 1, 2008, had been conducted and confirmed that Plaintiff's August 13, 2008, letter had been considered on the appeal. (Dkt. No. 88-1 at ¶ 21.) Bezio declined to respond to an interrogatory requesting information as to whether the other inmate involved in the altercation had been punished on the grounds that it would constitute an unwarranted invasion of personal privacy and could impair security of the facility and safety of the inmates and corrections staff. Id. at ¶ 23.

C. Plaintiff's Cape Vincent Medical and Dental History

1. Medical

From the time of Plaintiff's arrival at Cape Vincent in January 2008 until near the end of July 2008, Dr. Rosner was Plaintiff's doctor of record and treating physician, and in January referred him to physical therapy for chronic back pain. (Dkt. Nos. 88-4 at ¶ 6; 89 at 7.) On February 14, 2008, Plaintiff indicated that he no longer wanted to go to physical therapy because the trip was too long. (Dkt. No. 89 at 9.)

A February 4, 2008, note in Plaintiff's Ambulatory Health Record Progress Notes ("Progress Notes") shows that Plaintiff complained of long term chronic back pain. (Dkt. No. 89 at 8.) X-rays of Plaintiff's lumbar spine, thoracic spine, and a frontal view of chest and abdomen were ordered and taken on February 14, 2008. Id.; Dkt. No. 88-4 at ¶ 7. A report on the x-rays with respect to the lumbar and thoracic spine revealed that "the vertebra are well mineralized and properly aligned, moderate degenerative changes are seen." (Dkt. No. 89 at 11.) According to Defendant Dr. Moehs, based on the x-ray, there was no evidence of significant back pathology. (Dkt. No. 88-4 at ¶ 7.)

A March 3, 2008, note reveals that Plaintiff complained of having lower back pain since the age of twelve and noted "x-rays arthritis and scoliosis." (Dkt. No. 89 at 17.) The Progress Notes indicate that Plaintiff was found "OK to work." Id. Plaintiff was given a bottom bunk pass on March 3, 2008. Id. at 16. A March 28, 2008, Progress Note reports that Plaintiff wanted to get off the Utility Gang work detail to which he was assigned because his back was still killing him and it hurt to straighten up, and that he requested pain medication (he was already taking Naprosyn). Id. The Note indicates that Plaintiff ambulated with a steady gate and moved his arms well, that no distress was noted, and that he "bends easily." Id. The Note appears to state that the nurse could not change his work program, denied his request to take the day off, and referred him back to the doctor. Id.

A March 31, 2008, Progress Note reveals that Plaintiff again complained that he was not fit for Utility Gang work because of his scoliosis and back pain. Id. at 18. The Note indicates that Plaintiff was cleared for work per Dr. Rosner, and that based on Plaintiff's x-rays, there was no limitation on specific kinds of work. Id. Upon examination, it was noted that Plaintiff was almost able to touch his toes, reached his hands above his head easily, twisted his trunk, and could squat, stand, and sit without difficulty. Id. Plaintiff was scheduled to see Dr. Rosner on April 7, 2008, but did not keep the appointment. Id. at 19.

On April 11, 2008, Plaintiff complained of shoulder pain. Id. at 20. He was taken to SHU that evening, and his Progress Notes reveal that he made no relevant medical complaints during SHU rounds through April 23, 2008. Id. at 20-24. On April 25, 2008, Plaintiff requested a note from the nurse excusing him from carrying his bags on a move from SHU to his housing unit, and the request was denied. Id. at 26. Thereafter, on April 30, 2008, Plaintiff wrote to Dr. Lester Wright, DOCCS Chief Medical Officer, describing his long time chronic back problem that caused him excruciating pain, and complaining: (1) that his work assignment on the Utility Gang put considerable strain on his back, chest, and shoulder; (2) that he had been forced to carry his bags in moving from housing units without a push cart or the help of a fellow prisoner, and that the nurse he saw when he felt pain carrying the bags refused to excuse him from lifting his bags; and (3) he was receiving inadequate medical care at Cape Vincent. (Dkt. No. 88-1 at 16-17.)

On May 5, 2008, Plaintiff complained that he could lift but not bend. Id. at 27, 29-31. Plaintiff also complained of sternal pain. Id. Plaintiff refused physical therapy despite being advised it would be helpful and might alleviate his symptoms. Id. 27-28. Dr. Rosner, in his May 5, 2008, Progress Note opines that "[c]onsidering he has had pain for 22 years and he is irate about working for another 2 wk I think there may very well be some degree of manipulation here. . . . I think he may safely work pending further w/u." Id. at 27.

Dr. Rosner agreed to order an MRI, but his request was denied at DOCCS Central Office because Plaintiff did not meet the criteria. Id. at 27, 37-38. Dr. Rosner's request for a sternal CT scan was initially denied but later authorized, and while degenerative changes were observed on the June 6, 2008, CT scan, osteomyelitis was found unlikely. Id. at 35, 43. An x-ray of Plaintiff's clavicle was negative. Id. at 36. After the MRI was denied, on May 28, 2008, Plaintiff agreed to go back to physical therapy, and on June 12, 2008, was found by the physical therapist to have decreased lumbar extension but excellent flexion and rotation, and posture consistent with mild scoliosis. Id. at 38, 44. The physical therapist believed Plaintiff should benefit from a TENS unit and recommended the trial of a unit for three physical therapy visits. Id. at 44-45. On June 26, 2008, the physical therapist noted that Plaintiff had reported the TENS unit provided some relief. Id. at 48. The July 10, 2008, Physical Therapist Consultant Report revealed that Plaintiff had a bad day and had gained little relief from the TENS unit. Id. at 49. The Report from Plaintiff's final visit on July 15, 2008, indicated that the TENS unit had helped some so far, and the physical therapist suggested a TENS unit be purchased for Plaintiff's use. Id.

On July 25, 2008, Plaintiff saw Defendant Dr. Moehs for the first time. (Dkt. Nos. 88-4 at ¶ 22; 89 at 51.) Dr. Moehs was the Medical Director at Cape Vincent at the time. (Dkt. No. 88-4 at ¶ 1.) Plaintiff told Dr. Moehs that he had suffered from back pain since childhood and nothing he had taken at home had helped. (Dkt. Nos. 88-4 at ¶ 22; 89 at 51.) Dr. Moehs diagnosed Plaintiff with basic arthritis and told Plaintiff he would have to learn to live with it. Id. The Progress Note on the visit reports that after Dr. Moehs made that comment, Plaintiff got up and "quickly with normal stride walked out." (Dkt. No. 89 at 51.) Dr. Moehs declined to approve the TENS unit recommended by the physical therapist. (Dkt. No. 88-1 at 51.) According to Dr. Moehs, in his professional medical judgment, Plaintiff was not in need of any additional medical care at the time, including a TENS machine. (Dkt. No. 88-4 at ¶ 27.)

Plaintiff's Progress Notes show that he did not receive any relevant medical treatment at Cape Vincent between July 25, 2008, and his transfer to Mid-State on August 26, 2008. (Dkt. No. 89 at 52-57.)

2. Dental

Plaintiff's Dental Treatment Record indicates that he had his teeth cleaned by a dental hygienist on February 12, 2008, and a consult with the dentist was requested. (Dkt. No. 89-2 at 8.) Plaintiff saw Cape Vincent dentist Dr. James L. Marks on February 28, 2008. (Dkt. No. 88-9 at ¶ 4.) Dr. Mark's treatment plan identified the following treatment as indicated for Plaintiff: (1) "OS (4)," which according to Dr. Marks means oral surgery probably after x-rays and fillings; "X-Ray (2)", meaning x-rays would be performed first; and "OPER (3)," which indicates fillings would be needed. Id. X-rays were to be taken on the next appointment. Id.

An appointment was scheduled for April 11, 2008. Id. at ¶ 5. However, the Treatment Record for that date states "NO SHOW MANDATORY CALL OUT." (Dkt. No. 89 at 8.) The Treatment Record shows that Plaintiff was scheduled for an x-ray of tooth 32 on June 6, 2008. Id. However, the Treatment Record entry for that date again states "NO SHOW MANDATORY CALL OUT." Id. Plaintiff was seen in dental on July 2, 2008. Id. Additional x-rays were taken, penicillin was prescribed for an infection, and Plaintiff was advised he would be on the call-out list for a tooth extraction. Id.; Dkt. No. 88-9 at ¶ 7.

On July 7, 2008, Plaintiff underwent a surgical extraction of his lower right wisdom tooth. (Dkt. Nos. 88-9 at ¶ 8; 89-2 at 8.) Plaintiff had a post-surgical follow up on July 14, 2008, and was not seen by dental again prior to his transfer to Mid-State on August 26, 2008. (Dkt. No. 89 at 8.)

D. Defendant Pawlin

In his amended complaint, Plaintiff claims that Defendant Pawlin informed housing unit officers that Plaintiff was on his target list and encouraged them to harass him and issue him infractions because Plaintiff "adamantly complained that the work detail assigned required him to perform certain work that aggravated his existing medical conditions." (Dkt. No. 46 at ¶ 36.) At his deposition, Plaintiff testified that Pawlin began harassing him after finding out about Plaintiff's Southern District lawsuit against corrections officers. (Dkt. No. 88-1 at 87, 114-15.)

Plaintiff claims that Pawlin knew about his bad back because he sat on the Grievance and Program Committees where Plaintiff had complained of his medical condition. Id. at 90, 93. According to Plaintiff, Pawlin always gave him the most strenuous work like shoveling snow and lawn work. Id. at 92. Plaintiff's work assignment records at Cape Vincent reveal that on February 11, 2008, he was assigned to the Utility Gang, and on March 18, 2008, was moved to Dorm Porter before being reprogrammed back to Utility Gang on April 2, 2008. (Dkt. No. 88-3 at ¶ 13. On May 9, 2008, Plaintiff was moved from Utility Gang to lighter duty such as Painting, Dorm Porter, and Sanitation. Id.

Pawlin claims it is not part of his duties to assign work to inmates or make the determination as to what work program an inmate is assigned that work assignments are done by the Program Committee. (Dkt. No. 88-3 at ¶ 12.) Plaintiff, however, claims that Pawlin was on the Program Committee, and that when Plaintiff told Pawlin at Program Committee hearings that he could not do the job to which he was assigned because of his back, Pawlin told him there were no other jobs. (Dkt. No. 88-1 at 94.)

Plaintiff also claims that Pawlin caused him to be subjected to unusual patterns of movement from housing units and instructed housing unit officers not to allow Plaintiff to use available push-carts (also referred to as "draft carts") or to allow other prisoners to assist him in the moves. Id. at ¶ 35. DOCCS records reveal that Plaintiff's first move occurred on February 25, 2008, when he was moved from a top bunk in Dorm C-1, Cube 48 to a bottom bunk in Cube 42, a few cubes away in the same Dorm. (Dkt. No. 88-3 at ¶ 6.) The same day, Plaintiff was moved to SHU as a result of the misbehavior report filed by Lane. Id. at ¶ 7; Dkt. No. 88-7 at ¶ 7.

When Plaintiff was released from SHU on March 3, 2008, he was moved to Dorm D-1 and four days later was moved to a bottom bunk a few cubes away in Dorm-D. Id. On March 13, 2008, Plaintiff was moved from Dorm D-1 to Dorm F-2, a two or three minute walk away. Id. at ¶ 8. According to Pawlin, he does not know the reason for that move. Id. Plaintiff was moved from Dorm F-2 to Dorm G-1, a ten to twenty second walk, on April 3, 2008. Id.

Plaintiff was moved to SHU again on April 12, 2008, and on April 25, 2008, was moved to Dorm F-1. Id. at ¶ 9. Plaintiff remained there in Cube 45 bottom bunk until July 15, 2008, when he was moved a short distance Dorm F-1 Cube 23 bottom bunk. Id. Plaintiff was moved back to SHU on July 29, 2008, and remained in SHU until his transfer to Mid-State in late August. Id.

Plaintiff claims that each time he moved, he had to carry two bags of state issued property, a bag of food, and a number of bags of legal papers weighing at least eighty pounds each. (Dkt. No. 88-1 at 99-100.) Plaintiff moved one bag at a time. Id. at 101. Plaintiff contends that prisoners were generally allowed to use push-carts to transport their things from one housing unit to another, but that Pawlin had told corrections officers not to allow Plaintiff to use them and not to allow any inmates to assist him. Id. at 102-03, 105-06. Pawlin, however, claims that inmates are not permitted to use push-carts to move personal belongings, and that inmates are expected to carry their own property to new housing units. (Dkt. No. 88-3 at ¶ 10.) Pawlin also claims that other inmates are not allowed to assist in moving property unless the inmate being moved has a documented medical condition that prohibits him from carrying his own property, in which case a porter would be assigned to assist the inmate. Id. On May 16, 2008, Pawlin issued a memorandum which he describes as memorializing the policy that inmates were to carry their own property to their new housing unit and were not allowed assistance from other inmates absent a medical condition. Id.; see also Dkt. No. 88-3 at 11.

At his deposition, Plaintiff testified that on March 3, 2008, the first time he was released from SHU, Pawlin told the corrections officers to make him carry his own bags to the housing unit and told another individual, who was helping Plaintiff, to put the bag he was carrying down. (Dkt. No. 88-1 at 110.) Plaintiff was forced to walk from the SHU to his housing unit through snow and slush up to his ankles without taking shortcuts. Id. at 111, 117-18.

Plaintiff also testified concerning an instance on April 25, 2008, in which Pawlin required him to carry his property from SHU to his dorm. Plaintiff was coming out of SHU and his belongings were already in push-carts. (Dkt. No. 88-1 at 106.) When Pawlin came into the SHU, he told the corrections officer not to allow Plaintiff to use push-carts. Id. Plaintiff lifted a bag, and his back cracked. Id. at 107. He went to the infirmary and, according to Plaintiff, the nurse ridiculed him when he told her he was injured and needed to use a push-cart and denied his request. Id. Plaintiff's April 25, 2008, Progress Note reports that Plaintiff went to medical and requested a note stating that he had pain and did not want to carry his bags from SHU. The nurse noted no apparent distress and that when Plaintiff left, he threw his bag over his shoulder and walked out with no difficultly. (Dkt. No. 89-4 at 26.)

E. Grievance Nos. 8285-08, 8335-08, and 8406-08

In addition to Grievance No. 8241-08 (Dkt. No. 99-3 at 30) discussed above, while housed at Cape Vincent, Plaintiff filed: (1) Grievance No. 8285-08, dated April 10, 2008, complaining that he should not have been assigned to the Utility Gang given his chronic back problem (Dkt. No. 89-3 at 8); (2) Grievance No. 8335-08, dated June 12, 2008, complaining of inadequate dental care, id. at 19; and (3) Grievance No. 8406-08, dated July 31, 2008, complaining of inadequate medical treatment by Dr. Moehs in denying the physical therapist's recommendation that a TENS unit be purchased for Plaintiff. Id. at 32.

1. Grievance No. 8285-08

On Grievance No. 8285-08, regarding Plaintiff's work assignment, the Inmate Grievance Resolution Committee ("IGRC") found that per the Nurse Administrator in the Medical Department, Plaintiff could work without restrictions. Id. at 5. On appeal, Superintendent Barkley noted that the findings of an investigation conducted by the Nurse Administrator indicated that Plaintiff had been seen by a physician for an examination, evaluation, and x-ray, and the doctor had determined that Plaintiff could work without restrictions at that time. Id. at 5. The Central Office Review Committee ("CORC"), of which Defendant Lindquist was a member, found that it had not been provided with sufficient evidence to substantiate staff malfeasance, and asserted that "consistent with Health Services Policy Manual #1.21 Health Care Referrals, the Facility Health Services Directors (FHSD) have the sole responsibility for providing treatment to the inmates under their care." Id. CORC also noted that Plaintiff had been removed from the Utility Gang effective May 12, 2008, and assigned as a porter and painter. Id. Plaintiff was advised to address medical concerns via the sick call mechanism. Id.

2. Grievance No. 8335-08

In Grievance No. 8335-08, Plaintiff claimed that he had been waiting over three months to have a wisdom tooth extracted, and it still had not been removed. (Dkt. No. 89-3 at 19.) The IGRC responded that as of June 18, 2008, Plaintiff was currently on the list to be appointed for dental treatment per Dr. Marks. Id. at 20-21. The July 9, 2008, finding on appeal by the Assistant Superintendent at Cape Vincent noted that a follow-up with dental revealed Plaintiff had an appointment on July 7, 2008, and directed Plaintiff to address any further concerns on the matter to dental. Id. at 17. CORC upheld the determination of the Superintendent on appeal finding that it had not been presented with sufficient evidence to substantiate any malfeasance by staff. Id. at 13. CORC noted that Plaintiff had dental appointments on February 24, 2008, April 28, 2008, July 2, 2008, July 7, 2008 (wisdom tooth extraction), and follow up July 14, 2008. Id. CORC further noted that Plaintiff had been a no show for an April 11, 2008, appointment and had an outside medical trip on June 6, 2008, missing a scheduled dental appointment as a result. Id. at 13.

3. Grievance No. 8406-08

In Grievance No. 8406-08, Plaintiff complained regarding Dr. Moehs' denial of a TENS unit that had been recommended by Plaintiff's physical therapist and requested that either Dr. Rosner be reinstated as his health care provider and he be provided with a TENS unit, or he be granted compensatory damages for his suffering. Id. at 32. The IGRC responded to the grievance in the following manner: "Per Dr. Moehs[,] [d]ue to lack of symptoms, and overall movement, and development of inmate behavior, providing a tens unit is considered inappropriate." Id. at 34. On appeal, Superintendent Barkley noted that Dr. Moehs' had indicated a tens unit was not medically necessary "due to [Plaintiff's] fluid movement, normal gait and based on x-rays which revealed [Plaintiff's] condition [was] considered mild." Id. at 31. In addition, the Superintendent noted that when Plaintiff had previously used the TENS unit during physical therapy sessions, the effect was limited. Id. CORC unanimously denied Plaintiff's grievance for lack of substantial evidence of staff malfeasance; because the Facility Health Services Director, Dr. Moehs, has sole responsibility for providing medical care to inmates and did not find a TENS unit to be medically indicated; inmates are not entitled to see the physician of their choice; and monetary damages are not available through the grievance system. Id. at 24.

III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS

Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; 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. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (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).

A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit.⁵ Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).

5 Plaintiff's amended complaint this case was properly verified under 28 U.S.C. § 1746. (Dkt. No. 46 at 24.) See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with § 1746).

In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit 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." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "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 obliged 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). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999)⁶ (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

6 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

IV. PLAINTIFF'S MOTION PURSUANT TO RULE 56(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Plaintiff concedes that he cannot present material facts to oppose claims asserted against Defendants Pawlin, Hulihan, Barkley, and Lindquist without additional discovery and has moved pursuant to Rule 56(d) for an order allowing that discovery.⁷ (Dkt. No. 99.) Rule 56(d) provides that, where a party opposing summary judgment "shows by affidavit or declaration that, for specific reason, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed.R.Civ.P. 56(d). To obtain relief under Rule 56(d), a party opposing summary judgment must establish: "(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir. 1989).

7 Plaintiff makes the same claim with regard to Defendant Dr. John Doe. However, as noted above, Dr. John Doe has not been identified or served during the more than five years this action has been pending, and the Court has recommended dismissal against him.

A number of courts have held that relief under Rule 56(d) is generally unavailable when summary judgment motions are made after the close of discovery. See, Jean-Laurent v. Bowman, No. 12 CV 2954 (KAM)(LB), 2014 WL 4662221, at * 13 (E.D.N.Y. July 7, 2014) ("The parties had ample time and opportunity to conduct discovery in this matter and relief under 56(d) is not available when summary judgment motions are made after the close of discovery.") (internal punctuation, quotation marks, and citations omitted); Capitol Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931 (WHP), 2013 WL 1987225, at * 8 (S.D.N.Y. May 14, 2013) (quoting Espada v. Schneuder, 522 F. Supp. 2d 544, 549 (S.D.N.Y. 2007) (relief "under Rule 56(d) is not available when summary judgment motions are made after the close of discovery")).

This action was commenced more than five years ago on February 17, 2011. (Dkt. No. 1.) June 29, 2013, was set as the original discovery cut-off date by the Court on March 4, 2013. (Dkt. No. 34.) Following initial review of Plaintiff's amended complaint on October 10, 2014 (Dkt. No. 54), the cut-off date for discovery was reset by the Court to January 9, 2015, with dispositive motions due on March 16, 2015. (Dkt. No. 57.) On January 8, 2015, the cut-off date was reset by the Court to February 13, 2015. (Dkt. No. 59.) On January 12, 2015, Plaintiff moved for a further extension of the cut-off date for discovery to March 2, 2015 (Dkt. No. 60), and the Court granted the motion on January 13, 2015. (Dkt. No. 61.) The Court further extended the discovery cut-off date to June 1, 2015, in a Text Order dated March 19, 2015. On October 15, 2015, the Court granted in part a motion to compel discovery filed by Plaintiff and ordered that, with the exception of the Court ordered service of interrogatory responses by Defendants Lindquist and Hulihan, discovery was closed. (Dkt. No. 79.)

Defendants did not move for summary judgment until after the close of discovery (Dkt. No. 88), and the Court finds that Plaintiff had ample time and opportunity to conduct discovery in this case prior to the close of discovery some two and a half years after the Court set the initial discovery cut-off for June 29, 2013. Even if Plaintiff were found to have been denied adequate time or opportunity to conduct discovery, or discovery had not closed before the summary judgment motion was filed, the Court would recommend denial of the motion on the grounds that Plaintiff's Declaration fails to satisfy all of the requirements set forth in Hudson River, 891 F.2d at 422. More specifically, Plaintiff's Declaration does not describe the efforts made by him to obtain the documents or categories of documents he claims to need to oppose the motion or why he was unsuccessful in those efforts. In light of the foregoing, the Court recommends that Plaintiff's Rule 56(d) application be denied.

V. ANALYSIS

A. First Amendment Retaliation Claims Against Lane and Beard

To prevail on a First Amendment retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381. Otherwise, the retaliatory act is simply de minimis and outside the scope of constitutional protection. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citing Dawes, 239 F.3d at 292-93).

An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, including: (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, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has generally been found insufficient to survive summary judgment. See Roseboro,791 F. Supp. 2d at 370 (citations omitted). There are, however, decisions by the Second Circuit in which courts have concluded that temporal proximity between protected activity and allegedly false disciplinary charges may be enough to withstand summary judgment where combined with evidence that the author of the charges knew of the protected conduct, as well as evidence of a prior record of good behavior, or that the charges were dismissed or successfully appealed. See Washington v. Donahue, 146 F. Supp. 3d 503, 506-07 (2015) (collecting Second Circuit cases).

Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. 506. As the Second Circuit has noted,

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so 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.

Dawes, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statement are not sufficient. Flaherty, 713 F.2d at 13; see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at * 11 (N.D.N.Y. March 31, 2009) ("Analysis of retaliation claims . . . requires thoughtful consideration of the evidence presented concerning the protected activity in which the inmate has engaged and the adverse action taken against him or her, as well as the evidence tending to link the two. When such claims, which ordinarily are exceedingly case specific, are alleged in conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, the entry of summary judgment dismissing plaintiff's retaliation claims is warranted.").

Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action even in the absence of the protected conduct. See Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) ("Regardless of the presence of retaliatory motive, . . . a defendant may be entitled to summary judgment if he can show . . . that even without the improper motivation the alleged retaliatory action would have occurred.") (citation omitted); Roseboro, 791 F. Supp. 2d at 371.

1. Lane

Plaintiff's amended complaint, construed liberally, alleges retaliation claims against Defendant Lane with regard to both the February 19 and 25, 2008, misbehavior reports. (Dkt. No. 46 at ¶¶ 23-26.) Plaintiff claims that Lane, who previously had been allowing him to keep two draft bags under his bunk, wrote the February 19, 2008, Tier I misbehavior report charging him with improperly keeping the bags under his bunk from January 24 to February 18, 2008, in violation of 118.30 Untidy Cell or Person, the same day Plaintiff had shown him a paper regarding an action for excessive force Plaintiff had pending against New York City corrections officers. (Dkt. Nos. 46 at ¶ 23; 88-1 at 37, 43; 99-3 at 6.) Plaintiff claims that Lane wrote the February 25, 2008, misbehavior report after observing Plaintiff writing Grievance No. 8241-08 regarding the draft bag storage issue and the Tier I misbehavior report that morning. (Dkt. Nos. 46 at ¶ 26; 88-1 at 42-44.)

a. February 19, 2008, Misbehavior Report

The filing of lawsuits is protected First Amendment conduct for purposes of a retaliation claim. See Colon, 58 F.3d at 872 ("Prisoners, like non-prisoners have a constitutional right of access to the courts and to petition the government for redress of grievances."). Although the filing of a false misbehavior report can qualify as an adverse action for purposes of establishing the second element of a retaliation claim, Pidlypchak, 389 F.3d at 384, the Court finds, based upon the evidence in the record, that the February 19, 2008, misbehavior report was not false. See Woodward v. Ali, No. 9:13-cv-1304 (LEK/RFT), 2015 WL 5711899, at * 11 (N.D.N.Y. Sept. 29, 2015) (denying Plaintiff summary judgment where the court, while recognizing that the filing of a false misbehavior report may constitute an adverse action, found that the record was devoid of evidence that the misbehavior report was false); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) ("When it is undisputed that an inmate has in fact committed prohibited conduct, no retaliatory discipline claim can be sustained").

The misbehavior report charged Plaintiff with keeping two draft bags under his bunk from January 24 through February 18, 2008, in violation of prison rules. (Dkt. No. 99-3 at 6.) Plaintiff does not deny that the bags were under his bed; he claims only that he was allowed to have them there. Id. at 5. In affirming the finding of guilt at Plaintiff's disciplinary hearing, Superintendent Barkley determined that Plaintiff was mistaken; that the only allowable storage containers were those sold at the commissary and Plaintiff's property must be stored only in those containers or in his locker. Id.; see also Dkt. Nos. 88-7 at ¶ 7; 88-10 at 2, 5.

In addition, even were the Court to assume that the misbehavior report did constitute adverse action, the evidence supports summary judgment in Lane's favor on the issue of causation. The Court finds that there is a question of fact as to whether Lane saw a document regarding Plaintiff's excessive force lawsuit against the New York City corrections officers prior to issuing the February 19, 2008, misbehavior report. Plaintiff claims that he showed Lane a document that disclosed the lawsuit, and Lane issued the misbehavior report the same day. (Dkt. No. 46 at ¶ 23.) Lane denies seeing correspondence concerning any litigation involving Plaintiff prior to the time he issued the second misbehavior report on February 25, 2008. (Dkt. No. 88-6 at ¶ 11.)

Even if Lane did learn of the lawsuit prior to issuing the misbehavior report, Plaintiff's conclusory assertion that Lane did so in retaliation for the lawsuit suit is insufficient to withstand summary judgment. See Flaherty, 713 F.2d at 13 (conclusory statements are insufficient to support causation on retaliation claims).

As a general matter, it is difficult to establish that a defendant had cause to retaliate against a plaintiff for protected conduct against another party. See Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a corrections officer when the only alleged basis for retaliation was a complaint about an incident involving another corrections officer); Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2014 WL 4365274, at 18 at * 49 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to establish one defendant's retaliation for complaints against another defendant"). Plaintiff's speculation that Lane retaliated against him because of his lawsuit against New York City corrections, without any supporting evidence, is insufficient to defeat summary judgment. See McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (speculation alone is insufficient to defeat a summary judgment motion).

In addition, in his appeal from the guilty finding on the February 19, 2008, misbehavior report, Plaintiff stated that "[t]his ticket was given to me because I had no money to purchase property bags from commissary because I owe encumbrance money I've recently received was taken so I could not afford to buy storage bags. This ticket was written and the disposition rendered because of my inability to purchase property bags, not because my cube did not conform with the cleanliness and orderliness policy." (Dkt. No. 99-3 at 5.) There is no mention in Plaintiff's appeal of the misbehavior report having been filed for retaliatory reasons. Id.

Based upon the foregoing, the Court recommends that Lane be granted summary judgment on Plaintiff's retaliation claim regarding the February 19, 2008, misbehavior report.

b. February 25, 2008, Misbehavior Report

Inasmuch as the filing of grievances is protected First Amendment conduct for purposes of a retaliation claim, see Colon, 58 F.3d at 872, the Court finds that Plaintiff has satisfied the first element of a retaliation claim. In addition, because the filing of a false misbehavior report can qualify as an adverse action, Pidlypchak, 389 F.3d at 384, the Court will assume for purposes of this motion that Plaintiff has also satisfied the second element.

Lane argues that there is no causal connection between Plaintiff's Grievance No. 8241-08 regarding the draft bag storage issue and the Tier I misbehavior report and the February 25, 2008, misbehavior report and taking Plaintiff to SHU. (Dkt. No. 88-14 at 6-9.) Lane claims that he did not know about the grievance at the time he issued the misbehavior report. (Dkt. No. 88-6 at ¶ 10.) Lane also argues that the grievance cannot serve as the causal connection for his retaliation claim because Plaintiff acknowledged at his deposition that he wrote the grievance after receiving the misbehavior report on the draft bags. (Dkt. No. 88-14 at 8.)

Plaintiff contends that he wrote the grievance before Lane issued the misbehavior report, and that Lane was aware of the grievance before the report was issued and Plaintiff was taken to SHU and issued the report in retaliation for the grievance. (Dkt. Nos. 46 at ¶¶ 25-26; 88-1 at 41-43.) The Court finds some confusion in Plaintiff's deposition testimony regarding the timing of the grievance.⁸ However, considered in its entirety, Plaintiff's testimony supports his claim that he wrote the grievance, which dealt with the February 19, 2008, misbehavior report, the morning of February 25, 2008, after Lane had disregarded his claim that Directive 4913 and FOM § 786 authorized him to keep two draft bags under his bunk. (Dkt. Nos. 88-1 at 44; 99-3 at 30.) After testifying that he wrote and filed the grievance on February 25, 2008, Plaintiff testified:

8 At his deposition, Plaintiff responded in the affirmative when asked if it was fair to say that the grievance was written after he got his misbehavior report from Lane concerning his draft bags. (Dkt. No. 88-1 at 45.) Inasmuch as the questioner did not identify which misbehavior report he was referencing, and the grievance in issue dealt with the February 19, 2008, misbehavior report, Plaintiff may well have responded to the question believing that the questioner was referring to that grievance.

Oh, matter of fact I am not mistaken, this was the day I was punitively confined. I wrote the grievance up and this was another basis of the claim. The man came around and saw me writing, Lane came around, and . . . matter of fact, this is what happened: Lane came around and he saw me writing the grievance, okay, and when he saw me writing this grievance, which is when he spoke to Sergeant Beard and said, I don't want him in this house no more, I want him out of here.

(Dkt. No. 81-1 at 43.) Lane is alleged to have issued the misbehavior report later that day. (Dkt. No. 46 at ¶¶ 5-7.)

While the temporal proximity weighs in favor of finding a causal connection, the statement in Plaintiff's appeal as to why the misbehavior report was issued weighs against it. Plaintiff stated in his appeal that "[t]his misbehavior report was written because I could not afford to purchase storage containers from commissary because my funds were take (sic) to pay for encumbrances." (Dkt. No. 88-6 at 11.) The appeal makes no mention of a retaliatory motive on Lane's part. Id.

Even if the Court were to find that a material issue of fact exists on the issue of causation, it would recommend summary judgment in Lane's favor because the record shows that Lane would have taken the adverse action in the absence of protected conduct. See Scott, 344 F.3d at 287-88. The two draft bags that had been the subject of Lane's February 19, 2008, misbehavior report were still in Plaintiff's cube on February 25, 2008, despite the hearing officer's finding of guilt. (Dkt. Nos. 46 at ¶ 24; 88-6 at ¶ 5.) By Plaintiff's own admission, he informed Lane that morning that he was allowed to keep the bags there under DOCCS Directive 4913 and FOM § 786. (Dkt. No. 46 at ¶ 25.)

The evidence establishes that Plaintiff's interpretation of DOCCS Directive 4913 was erroneous and that FOM § 786 had been rescinded in 2003. (Dkt. Nos. 88-7 at 11; 88-10 at 2, 5, 7.) Plaintiff has relied upon Directive 4913 Sections II(A)(1)(c) and III(A) & (B) in support of his claim that he was authorized to store property in two draft bags in his cell. (Dkt. Nos. 88-7 at 11; 99-3 at 5.) Prior to its revision on September 21, 2006, Part II(A)(1)(c) provided that newspapers, magazines, books, and audio tapes "shall be stored in the locker provided and/or in cardboard boxes which can be neatly stored under the bed to reduce their potential as a fire hazard." (Dkt. No. 88-10 at 5.) The section, as revised and in effect as of February 2008, provides that "[t]hese items shall be stored in the locker provided and/or in authorized storage containers which can be neatly stored under the bed to reduce their potential as a fire hazard." Id. at 2. The revision is disclosed in the Superintendent's Reply to Plaintiff's appeal from the disciplinary determination on the February 25, 2008, misbehavior report. (Dkt. No. 88-7 at 11.)

Directive 4913 Part III(A) & (B) set forth the rules with regard to personal property limits in double cell housing. (Dkt. No. 88-10 at 7.) Section (A) allows an inmate in double cell housing to possess in his cell two draft bags for storage of property beyond that which can be stored in the individual lockers. Id. It also allows both inmates to store property under the bottom bunk. Id. The Supervisor's Reply to Plaintiff's appeal explains that Part III refers to inmates in double cell housing, that Plaintiff was in a cube, and the provision for cells does not apply to cubes. (Dkt. No. 88-7 at 11.)

Although Plaintiff was found not guilty on the charges of 104.12 Creating a Disturbance, 118.21 Flammable Materials, and 106.10 Refusing a Direct Order, he was, for the second time in less than two weeks, found guilty of 118.30 Untidy Cell or Person as a result of his continued storage of two draft bags under his bed, the underlying reason for the issuance of the February 25, 2008, misbehavior report. Id. at 9. Even if Lane arguably had a retaliatory motive for the charges, it is undisputed that Plaintiff committed the prohibited conduct that led to the guilty finding for untidy cell or person.

Therefore, the Court finds that a retaliation claim based upon the February 25, 2008, misbehavior report cannot be sustained and recommends that summary judgment be granted in Lane's favor. See Lowrance, 20 F.3d at 535; Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (defendant's burden of establishing that plaintiff would have received the same punishment even absent the retaliatory motive can be met "by demonstrating that there is no dispute that plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.") (citation and internal quotation marks omitted).

2. Beard

Plaintiff has also asserted a retaliation claim against Beard with regard to the February 25, 2008, misbehavior report. Plaintiff's retaliation claim rests entirely on speculation that Lane was speaking on the phone with Beard on February 25, 2008, after discovering that Plaintiff was writing a grievance regarding the draft bags, and that the two somehow colluded in the report. (Dkt. Nos. 46 at ¶ 26; 88-1 at 41-42.) Lane denies having any communications with Beard regarding the subject matter of the February 25, 2008, misbehavior report. (Dkt. No. 88-6 at ¶ 9.) Beard denies any knowledge of Plaintiff's February 25, 2008, grievance until he was asked to investigate it on February 28, 2008. (Dkt. No. 88-7 at ¶ 9.)

Because unsubstantiated speculation is insufficient to avoid summary judgment, see Jeffreys, 426 F.3d at 554, the Court recommends that Beard be granted summary judgment on Plaintiff's retaliation claim.

B. Eighth Amendment Medical Indifference and Retaliation Claims Against Dr. Moehs

Plaintiff has asserted Eighth Amendment medical indifference and retaliation claims against Defendant Dr. Moehs, arising out of his denial of the TENS unit the physical therapist had recommended for Plaintiff's use. (Dkt. No. 46 at ¶¶ 45, 53-54, 58.)

1. Eighth Amendment Medical Indifference Claim

The Eighth Amendment protects prison inmates from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The constitutional prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer, 511 U.S. at 832. To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Id.

To establish an Eighth Amendment claim arising out of inadequate medical care, an inmate must make a threshold showing that prison officials were deliberately indifferent to his serious medical needs. Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003). A serious medical condition is one which presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation and internal quotation marks omitted); see also Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) ("A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." (internal citation and quotation marks omitted)). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: "(1) the existence of an injury that a reasonable doctor or patient would find important and worthy of treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain." Chance, 143 F.3d at 702-03.

Analysis of a § 1983 claim for deliberate indifference to a serious medical need involves a two-pronged inquiry consisting of objective and subjective components. The objective component requires a plaintiff to show that the alleged deprivation of medical care was "sufficiently serious." Id. at 702. A prison official need only provide "reasonable care," and an official who acts reasonably in response to an inmate's health risk "cannot be found liable under the Cruel and Unusual Punishments clause." Id. (quoting Farmer, 511 U.S. at 847).

Because the second requirement for an Eighth Amendment violation is subjective, the defendant prison official must act with a sufficiently culpable state of mind. Salahuddin, 467 F.3d at 280. The subjective showing is "deliberate indifference," which is akin to criminal recklessness: that the defendant acted or failed to act "while actually aware of a substantial risk that serious harm will result." Id. It is well-established that "a difference of opinion between a prisoner and prison officials regarding medical treatment does not, as a matter of law, constitute deliberate indifference. Sonds v. St. Barnabas Hosp. Corr. Health Serv., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001). Furthermore, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle, 429 U.S. at 105-06. "A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Id. at 106. Stated another way, "medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.").

Depending on the circumstances, back pain may qualify as a serious medical condition. See, e.g., Howard v. City of New York, No. 12 Civ. 4069 (PAE)(JCF), 2012 WL 7050623, at * 7 (S.D.N.Y. Dec. 20, 2012) (dismissing claim as insufficiently pled claim of deliberate indifference to serious medical need where plaintiff alleged mild scoliosis), adopted as modified on other grounds, 2013 WL 504164 (S.D.N.Y. Feb. 13, 2013); Cain v. Jackson, No. 05 Civ. 3914 (LAP)(MHD), 2007 WL 2193997 at * 1, 6 (S.D.N.Y. July 27, 2007) (plaintiff's degenerative disc disease not sufficiently serious medical condition); Nelson v. Rodas, No. 01 Civ. 7887 (RCC)(AJP), 2002 WL 31075804, at * 1, 6 (S.D.N.Y. Sept. 17, 2002) ("severe back pain, especially if lasting an extended period of time, can amount to a 'serious medical need' under the Eighth Amendment.").

Even if the Court were to assume solely for purposes of this motion that Plaintiff's mild scoliosis, moderate degenerative changes in his lumbar and thoracic spine, and what he has described as "excruciating pain" (Dkt. Nos. 88-1 at 16; 89 at 11, 17, 89), together constituted a serious medical condition, the evidence establishes that Plaintiff was given adequate medical treatment, and Dr. Moehs did not act with deliberate indifference in denying the physical therapist's recommendation that Plaintiff be provided with a TENS unit. When Dr. Moehs examined Plaintiff on July 25, 2008, he observed that Plaintiff had a normal range of motion and moved well. (Dkt. No. 88-4 at ¶ 22.) Dr. Moehs' observation was in accord with Plaintiff's medical records which reported that on March 31, 2008, Plaintiff was "almost able to touch his toes, reached his hands above his head easily, twisted his trunk, and could squat, stand, and sit without difficulty." (Dkt. No. 89 at 19.) Dr. Moehs was also aware that Plaintiff was doing exercises such as weight lifting, as treatment for his back. (Dkt. No. 88-1 at ¶ 27.)

Dr. Moehs diagnosed Plaintiff with "basic arthritis in his back which is considered a normal back with degenerative changes, a condition most people live with," and told Plaintiff he would have to learn to live with it. (Dkt. No. 88-4 at ¶ 22.) When Dr. Moehs denied the physical therapist's recommendation for a TENS unit based upon his professional medical judgment, review of Plaintiff's medical records, and objective data from Plaintiff's July 25, 2008, examination, he was aware that Plaintiff was taking Naprosyn, the ongoing treatment for his pain, and Dr. Moehs agreed that the treatment plan was appropriate as of July 25, 2008, and continued the Naprosyn. Id. at ¶¶ 23, 30.

In a memorandum he prepared in response to Plaintiff's grievance over denial of the TENS unit, Dr. Moehs explained that the physical therapist's notes reported that the TENS unit "helped only somewhat, on one occasion, and little help on the other," and that in physical therapy, Plaintiff "move[d] fluidly with a normal gait," and while "his range of motion was slightly limited in extension [it was] excellent in flexion and lateral movement." (Dkt. No. 89 at 89.) Dr. Moehs concluded in the memorandum that "[g]iven the limited effectiveness in the formal physical therapy sessions, and the lack of symptoms overall, demonstrated by [Plaintiff's] movement and behavior, not providing the tens unit is justified . . . ." Id.

The Court finds that Plaintiff's and Dr. Moehs' disagreement regarding the TENS unit does not create a constitutional claim for medical indifference. See Sonds, 151 F. Supp. 2d at 311. The evidence clearly shows that Dr. Moehs made a reasoned medical decision based upon Plaintiff's medical records, his own observations, and Plaintiff's ongoing treatment with Naprosyn and had no reason to conclude that serious harm would befall Plaintiff were he not given a TENS unit. Salahuddin, 467 F.3d at 280. Therefore, the Court recommends that Dr. Moehs be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claim.

2. Retaliation Claim

Plaintiff has also asserted a retaliation claim against Dr. Moehs, claiming that Dr. Moehs took over his medical care and denied him a TENS unit because of Plaintiff's April 30, 2008, letter to Dr. Wright complaining he was receiving inadequate medical care at Cape Vincent. (Dkt. Nos. 46 at ¶ 63; 88-1 at 50.) The letter of complaint to Dr. Wright was protected First Amendment activity for purposes of his retaliation claim. See Decayette v. Goord, No. 9:06-CV-783 (TJM/GHL), 2009 WL 1606753, at * 9 (N.D.N.Y. June 8, 2009) ("[p]laintiff's right to send a letter of complaint to [a prison official] was a constitutionally protected activity").

The Court finds it questionable, however, whether denying the TENS unit is sufficiently adverse to deter "a similarly situated individual of ordinary firmness" from exercising his constitutional rights. Pidlypchak, 389 F.3d at 381. Assuming solely for purposes of this motion that the denial did constitute an adverse action, there is not one shred of evidence establishing a causative link between the letter to Dr. Wright and Dr. Moehs' actions, let alone proof that it played a "substantial part in" Dr. Moehs' action. See Baskerville, 224 F. Supp. 2d at 732.

Dr. Moehs was not copied on the letter to Dr. Wright. (Dkt. No. 88-1 at 16-17.) Moreover, Dr. Moehs denies seeing Dr. Wright's letter prior to July 25, 2008, when he saw Plaintiff. (Dkt. No. 88-4 at ¶ 30.) Dr. Moehs was copied on a July 29, 2008, letter from DOCCS Regional Health Services Administrator Holly A. Collett regarding the letter to Dr. Wright. (Dkt. No. 88-1 at 19.) However, as Dr. Moehs points out in his Declaration, that letter was not sent until after he saw Plaintiff. (Dkt. No. 88-4 at ¶ 30.)

The sole support for Plaintiff's retaliation claim is that while he did not recall what had happened when Dr. Moehs took over his care, "it could have been a complaint that I wrote to the chief medical doctor, Dr. Wright, when they were not giving me some type of medical care and, finally, it came down to him and he got a whiff of it and that is when that happened. It is another retaliation claim." (Dkt. No. 88-1 at 50.) Plaintiff revealed in his deposition testimony that he had no evidence that Dr. Moehs knew of the letter before he denied the TENS unit and merely speculated that was the case. Id. at 52.

Unsubstantiated speculation is insufficient to avoid summary judgment. See Jeffreys, 426 F.3d at 554. Therefore, the Court recommends that Dr. Moehs also be granted summary judgment on Plaintiff's retaliation claim.

C. Eighth Amendment Medical Indifference Claims Against McAuliffe, Barkley, Hulihan, and Lindquist

Plaintiff has also asserted Eighth Amendment medical indifference claims against Defendants McAuliffe, Barkley, Hulihan, and Lindquist.

1. McAuliffe

Plaintiff's claim that McAuliffe violated his Eighth Amendment right to adequate medical care because of his inability to go to scheduled medical and dental appointments while in SHU is based solely on Plaintiff's allegation that "[o]n one occasion when defendant McAuliffe was making rounds in the SHU and plaintiff inquired why he was not taken to the medical facility for his medical and dental appointments; Defendant McAuliffe simply answered 'because you're in SHU' and walked away." (Dkt. No. 46 at ¶ 38.) Plaintiff conceded at his deposition that he never made McAuliffe aware of any particulars regarding his medical and dental condition. (Dkt. No. 88-1 at 140.) Furthermore, in his Declaration, McAuliffe, who under HIPAA has no authority to look at Plaintiff's medical records, claims to have no recollection of ever telling Plaintiff he could not receive medical care in SHU.⁹ (Dkt. No. 88-5 at ¶¶ 25-26.)

9 In addition, evidence submitted by McAuliffe in support of Defendants' summary judgment reveals that inmates in SHU are given what is found to be necessary medical care. See DOCCS Directive 4933 (Dkt. No. 88-5 at 61.); N.Y. Comp. Codes R. & Regs. tit. 7, § 304.4 (2016).

Based upon the foregoing, it is clear that McAuliffe did not undertake responsibility for Plaintiff's medical and dental care while he was in SHU, and McAuliffe cannot be found to have known of and disregarded an excessive risk to Plaintiff's health or safety, a requirement for the imposition of liability for the violation of an inmate's right to adequate medical care under the Eighth Amendment. Chance, 143 F.3d at 702. Therefore, the Court recommends that McAuliffe be granted summary judgment on the claim.

2. Barkley, Hulihan, and Lindquist Regarding Affirmance of the Denial of Plaintiff's Grievances

a. Barkley

At his deposition, Plaintiff initially identified his Eighth Amendment medical indifference claims against Barkley as being solely for affirming the denial of, or denying, Plaintiff's grievances without properly reviewing his medical records. (Dkt. No. 88-1 at 141-42.) Later in his testimony, Plaintiff clarified that when he referred to grievances, he meant "all grievances, formal or informal, interfacility correspondence, complaints," id. at 146, thereby raising the possibility that he intended to include Barkley's alleged inaction with regard to Plaintiff's April 30, 2008, letter to Dr. Wright complaining about inadequate medical care at Cape Vincent, on which Barkley was copied, in his claim. (See Dkt. 46 at ¶ 43.) The Court has therefore considered Grievance Nos. 8285-08, dated April 10, 2008, and 8406-08, dated July 31, 2008, as well as the April 30, 2008, letter to Dr. Wright in its analysis of Plaintiff's Eighth Amendment medical indifference claim against Barkley.¹⁰

10 The evidence establishes that the appeal to the Superintendent on Grievance No. 8335-08, dated June 12, 2008, complaining of inadequate dental care as the result of the delay in the extraction of his wisdom tooth, was handled by the Assistant Superintendent at Cape Vincent, and that Barkley had no involvement. (Dkt. Nos. 88-8 at ¶ 10; 89-3 at 17, 19.)

In Grievance No. 8285-08, Plaintiff complained he was medically unfit for assignment to the Utility Gang because of his chronic back problem and requested a change of assignment. (Dkt. No. 89-3 at 8-10.) Barkley affirmed the IGRC decision denying Plaintiff's request for a change of work assignment based upon the Nurse Administrator's findings that Plaintiff had been x-rayed, examined, and evaluated by the doctor, who determined that Plaintiff could work. Id. at 89-3 at 5-6.)

In Grievance No. 8406-08, Plaintiff complained about Dr. Moehs' denial of the TENS unit recommended by the physical therapist. Id. at 32. Barkley affirmed the decision of the IGRC denying Plaintiff's request for a TENS unit, finding it medically inappropriate based upon the opinion of Dr. Moehs that the TENS unit was not needed due to, among other things, Plaintiff's "fluid movement, normal gait and based on x-rays which revealed [Plaintiff's] condition [was] considered mild." Id. at 31.

"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations and internal quotation marks omitted). Vicarious liability of prison officials is not allowed under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(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 to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.¹¹

11 The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

Merely affirming the denial of an inmate's grievance has been found insufficient to establish the personal involvement required for supervisory liability under § 1983. See Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) ("The fact that [the ] Superintendent . . . affirmed the denial of Plaintiff's grievance . . . is [alone] insufficient to establish personal involvement."); Watson v. Wright, No. 08-CV-00960 (A)(M), 2013 WL 1791079, at *8 (W.D.N.Y. March 26, 2013) (collecting cases). Furthermore, a prison official is permitted "to rely upon and be guided by the opinions of medical personnel concerning the proper course of treatment administered to prisoners and cannot be held to have been 'personally involved' if he does so." Joyner, 195 F. Supp. 2d at 506; Battle v. Recktenwald, No. 14 CV 2738 (VB), 2016 WL 698145 * 10 (S.D.N.Y. Feb. 19, 2016) ("A defendant's denial of an administrative grievance or refusal to override the medical advice of medical personnel are insufficient to establish liability for an Eighth Amendment violation) (citing Graham v. Wright, No. 01 Civ. 9613 NRB, 2003 WL 22126764, at * 1 (S.D.N.Y. Sept. 12, 2003) ("It is well established that supervisory officials are generally entitled to delegate medical responsibility to facility medical staffs and are entitled to reply on the opinion of medical staff concerning the proper course of treatment.")).

The Court therefore finds that Defendant Barkley's affirmance of the denial of Plaintiff's two grievances involving his medical condition did not violate Plaintiff's Eighth Amendment right to adequate medical care. Nor did Barkley violate Plaintiff's Eighth Amendment rights by taking no action with respect to Plaintiff's letter to Dr. Wright. See Daley v. VonHagen, No. 11-CV-1071Sr., 2012 WL 4464861, at * 5 (W.D.N.Y. Sept. 20, 2012) ("Superintendents . . . are not generally involved in the treatment of inmates . . ., and it is generally reasonable for non-medical personnel to rely on qualified medical staff to deal with an inmate's medical needs.; see also Graham, 2003 WL 22126764, at * 1; Inesti v. Hogan, No. 11 Civ. 2596 (PAC)(AJP), 2013 WL 791540, at * 26 (S.D.N.Y. March 5, 2013) (collecting cases). Because the letter complaining about the inadequacy of Plaintiff's medical treatment at Cape Vincent was sent to Dr. Wright, DOCCS Chief Medical Officer, it was reasonable for Barkley to leave it to Dr. Wright to address Plaintiff's complaint.¹²

12 Plaintiff's medical and dental records, in any event, reveal that Plaintiff received significant medical care for his lower back, shoulder, and sternum at Cape Vincent, and that any delays that occurred in the removal of Plaintiff's wisdom tooth were at least in part related to his missing two appointments because of mandatory call outs. (See Dkt. Nos. 88-4 at 2-91; 88-9; 89-2 at 2-12.)

In light of the foregoing, the Court recommends that Defendant Barkley be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claim.

b. Hulihan and Lindquist

Plaintiff alleges in his amended complaint that after he was transferred to Mid-State, where Defendant Hulihan is Superintendent, he continued to be denied adequate medical and dental treatment and filed grievances as to both.¹³ (Dkt. No. 46 at ¶¶ 52-61.) Plaintiff refers specifically to a grievance filed at Mid-State regarding inadequate medical care, including denial of a TENS unit, by Dr. John Doe, who, without actually examining Plaintiff, rejected Plaintiff's claim that he had a medical condition and refused to allow Plaintiff to go to physical therapy or obtain other medical treatment. Id. at ¶¶ 53-54. According to Plaintiff, he appealed from the denial of the grievance complaining of the lack of adequate medical care at Mid-State, and Hulihan relied exclusively on the memorandum that Dr. Moehs had filed in connection with Grievance No. 8406-08 that Plaintiff had filed at Cape Vincent in denying Plaintiff's appeal.¹⁴ Id. at ¶¶ 54-55.

13 The grievances complaining about inadequate medical care and dental care that Plaintiff allegedly filed at Mid-State do not appear to be included in the summary judgment record. The list of closed inmate grievances submitted by Plaintiff, which identifies grievances filed at Mid-State, reveals that he filed a grievance involving a cracked tooth on November 5, 2008. (Dkt. No. 99-3 at 35.)

14 At his deposition, Plaintiff testified that he had spoken to Hulihan about his dental condition at some point when Hulihan was making rounds in SHU, and that he had written to Hulihan about his medical and dental problems and believes Hulihan may have responded. (Dkt. No. 88-1 at 147-48.) Plaintiff testified that he did not have any of the letters. Id. at 148. Plaintiff's vague statements regarding communications to and from Hulihan fail to provide a factual basis for an Eighth Amendment medical indifference claim. See Jeffreys, 426 F.3d at 554 ("At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of events is not wholly fanciful.").

Plaintiff testified at his deposition that his Eighth Amendment medical indifference claim against Defendant Lindquist, who was Assistant Director of the Inmate Grievance Program, was based upon Lindquist's affirmance of Plaintiff's Grievance No. 8355-08 concerning Plaintiff's dental treatment, and Grievance No. 8406-08 concerning denial of a TENS unit by Dr. Moehs. (Dkt. No. 46 at ¶¶ 57, 59, 69-70.) Plaintiff complains that Lindquist failed to investigate his medical and dental conditions. (Dkt. No 88-1 at 151.)

Lindquist signed the CORC determinations on the appeals of the denial of both grievances, which relied upon the opinions and recommendations of dental and medical personnel. (Dkt. No. 88-1 at 21; 89-1 at 2.) According to Lindquist, any decision he made on an appeal would have been based on the CORC packet regarding the grievance. (Dkt. No. 88-12 at ¶ 8.) Lindquist also notes that in compliance with the Health Insurance Portability and Accountability Act of 1996, as Assistant Director of CORC, who was not employed as a DOCCS medical provider and had no medical training, he had no authority to view an inmate's medical or dental records. Id.

The Court finds that Plaintiff's Eighth Amendment medical indifference claims against Hulihan and Lindquist for affirming the denial of Plaintiff's grievances without investigating his medical and dental conditions fail for the same reason as the essentially identical claim against Barkley. Affirmance of the grievances did not constitute personal involvement, and Hulihan and Lindquist were entitled to rely upon the opinions of medical and dental personnel concerning the proper course of treatment administered to Plaintiff. See Graham, 2003 WL 22126764, at * 1. Therefore, the Court recommends that Defendants Hulihan and Lindquist be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claims.

D. Eighth Amendment Cruel and Unusual Punishment and Retaliation Claims Against Pawlin and Cruel and Unusual Punishment Claim Against Pawlin

Plaintiff has asserted an Eighth Amendment claim for cruel and unusual punishment against Defendants Pawlin and Barkley in his supervisory capacity. (Dkt. No. 46 at ¶¶ 34, 36, 62, 71-72.) Punishment is cruel and unusual if it involves the unnecessary and wanton infliction of pain, or it is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 97. "To establish an Eighth Amendment violation, an inmate must show: '(1) a deprivation that is objectively, sufficiently serious that he was denied the minimal civilized measure of life's necessities[;] and (2) a sufficiently culpable state of mind on the part of the defendant official, such as deliberate indifference to inmate health or safety.'" Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).

Under the objective component of this test, "a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (internal quotation marks omitted). Under the subjective component, "[a] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety[.]" Farmer, 511 U.S. at 837.

1. Pawlin

a. Eighth Amendment Cruel and Unusual Punishment Claim Against Pawlin

Plaintiff claims that despite knowing of Plaintiff's painful back condition, Pawlin: (1) assigned him to the Utility Gang and refused to change the assignment; and (2) caused Plaintiff to be subjected to unusual patterns of movement in housing without justification and required him to carry his own bags during the moves, without using a push-cart or being assisted by another inmate, although other inmates were allowed to use push-carts. (Dkt. Nos. 46 at ¶¶ 33-36, 41-42, 71; 88-1 at 87-107.)

Pawlin has stated in his Declaration that it was not part of his duties as Housing Sergeant to make determinations as to work assignments for inmates, and that he was not made aware of any documented medical issue that limited Plaintiff from any work assignment at Cape Vincent. (Dkt. No. 88-3 at ¶ 12.) Pawlin has further stated that inmates are expected to carry their own belongings on housing unit moves, without the use of push-carts or the assistance of other inmates, unless the inmate has a documented medical condition prohibiting him from carrying his property. Id. at ¶ 10. On May 23, 2008, following both incidents in which Plaintiff was required to carry his property from SHU to his housing unit, Pawlin issued a memorandum, which he claims memorialized existing policy, indicating that inmates were required to carry their own property without assistance from other inmates. Id. at 11.

Plaintiff claims that because of Pawlin's membership on the Grievance and Program Committees, he was aware of Plaintiff's painful back condition, and that the pain was exacerbated by work on the Utility Gang and carrying his bags.¹⁵ (Dkt. No. 88-1 at 89-91.) The Court finds that even if Pawlin was present at Program Committee meetings and refused Plaintiff's request that he be given a new work assignment because of his back pain (see Dkt. No. 88-1 at 94), Pawlin did not violate Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. The evidence in Plaintiff's medical records establishes that Plaintiff was cleared for work by Dr. Rosner with no limitations on specific kinds of work. (Dkt. No. 89 at 17-18, 27.) Plaintiff's medical records also show that Plaintiff's request to medical in late March 2008 that he be taken off the Utility Gang because of his back condition was rejected, id., as was his request for a note from medical to excuse him from carrying his bags on a move from SHU to his housing unit. Id. at 26. On May 5, 2008, Dr. Rosner again opined that Plaintiff could work safely without limitation. Id. at 27.

15 Plaintiff's grievance regarding his assignment to the Utility Gang was not filed until April 10, 2008, well after the assignment had been made. (Dkt. No. 89-3 at 8.)

Because Plaintiff was found by medical to be able to work without limitation, and medical declined his requests to be relieved of his Utility Gang assignment and to be excused from carrying his own bags for medical reasons, the Court finds that Pawlin cannot be found to have "know[n] of and disregard[ed] an excessive risk to [Plaintiff's] health or safety," as required to satisfy the subjective component of the test for cruel and unusual punishment. See Farmer, 511 U.S. at 837. Therefore, the Court recommends that Pawlin be granted summary judgment on Plaintiff's Eighth Amendment cruel and unusual punishment claim.

b. Retaliation Claim Against Pawlin

Plaintiff has also asserted a retaliation claim against Pawlin. (Dkt. No. 46 at ¶ 36.) Plaintiff claims that Pawlin retaliated against him by subjecting him to unusual patterns of movement from housing units without assistance despite his back pain; requiring him to carry his own bags without use of a push-cart or inmate assistance on two occasions when he moved from SHU to his housing unit; and informing other housing officers that Plaintiff was on his target list and encouraging them to harass him and issue infractions to him either because of Plaintiff's adamant complaining regarding his work detail assignment or his excessive force lawsuit in the Southern District of New York.¹⁶ (Dkt. Nos. 46 at ¶¶ 33-36, 40-42; 88-1 at 87-88.)

16 Plaintiff's assertion that Pawlin informing other housing officers that Plaintiff was on his target list and encouraging them to harass him and issue infractions to him is, with the exception of Plaintiff's claim that Pawlin told corrections officers not to allow Plaintiff to use push-carts to move his belongings, wholly conclusory and unsupported by any specific facts in the records.

As noted above, the filing of grievances and lawsuits is protected First Amendment conduct for purposes of a retaliation claim. See Colon, 58 F.3d at 872. Plaintiff has identified the complaints regarding his work assignment as having been made to medical and in a grievance. (Dkt. No. 88-1 at 89.) As noted above, sending letters of complaint to prison officials has been found to constitute protected conduct for purposes of retaliation claims. See Decayette, 2009 WL 1606753, at * 9.

However, even if Court were to conclude that Plaintiff's complaints to medical, his grievance regarding his assignment to the Utility Gang (Dkt. No. 89-3 at 8), and his Southern District lawsuit satisfy the protected conduct element of a retaliation claim, his retaliation claim against Pawlin would fail because the record establishes that Pawlin's actions were not adverse. The adverse action relied upon by Plaintiff is Pawlin forcing him into an unusual pattern of movements and forcing him to carry his own bags when he was moved, including two moves from SHU to his housing unit, despite knowledge of Plaintiff's painful back condition. (Dkt. No. 46 at ¶¶ 33-36, 40-42 ). Pawlin has stated in his Declaration that he was not made aware of any documented medical issue that prevented Plaintiff from moving his personal property. (Dkt. No. 88-3 at ¶¶ 11-12.)

The adverse action component of a retaliation claim requires an objective inquiry that must be tailored to circumstances in which the claim arises. Dawes, 239 F.3d at 493. "Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens before a [retaliatory] action taken against them is considered adverse." Id. (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999) (internal quotation marks omitted)). The medical evidence in the record establishes that there was no documented medical issue preventing him from carrying his belongings when he moved. Dr. Rosner found on more than one occasion that Plaintiff was not limited from working on the Utility Gang or any other work assignment. (Dkt. No. 89 at 16, 18, 27. ) In addition, when Plaintiff asked the nurse to excuse him from carrying his belongings from SHU because of back pain on April 25, 2008, she denied his request. Id. at 26.

The Court's objective assessment of Plaintiff's claim of adverse action in this case, given the determination by medical that Plaintiff was physically able to do work assignments without limitation and the denial by medical of his request to be excused from carrying his belongings due to his back pain, is that requiring Plaintiff to move with some frequency and to carry his personal belongings, including when he moved from SHU, did not, as a matter of law, constitute adverse action for purposes of his retaliation claim against Pawlin.

The Court further finds that Plaintiff has failed to raise an issue of fact on the issue of causation. Pawlin has denied taking action against Plaintiff for preparing grievances and has also denied seeing or being informed of any litigation involving Plaintiff during the time he was at Cape Vincent.¹⁷ (Dkt. No. 88-3 at ¶¶ 14-16.) Pawlin states in his Declaration that an inmate would never be moved to "mess with him" or retaliate against him. (Dkt. No. 88-3 at ¶ 8.) Pawlin further states that inmates are expected to carry their own belongings when they move to a new housing unit, and that the use of push-carts and the assistance of other inmates was not allowed unless the inmate had a documented medical condition that prohibited him from carrying his belonging. Id. at ¶ 10. Although Plaintiff claims that other inmates were allowed to use push-carts and inmate assistance to move their belongings, the record is devoid of even one specific instance when that occurred.

17 As a general matter, it is difficult to establish that a defendant had cause to retaliate against an inmate for filing or bringing a lawsuit against a third party. See Wright, 554 F.3d at 274. There is no evidence in the record that Pawlin would be inclined to retaliate against Plaintiff because of a lawsuit he had commenced against New York City corrections officers, and Plaintiff's conclusory assertion is not enough. See Flaherty, 239 F.3d at 491 (claims of retaliation must be supported by specific facts; conclusory statements are not sufficient).

Even if Pawlin had been aware of Plaintiff's letters to medical, grievance, and the Southern District litigation, Plaintiff's claim that Pawlin retaliated against him because of those things is wholly conclusory. See Flaherty, 239 F.3d at 491 (claims of retaliation must be supported by specific facts; conclusory statements are not sufficient). Temporal proximity is not enough to avoid summary judgment in this case. Roseboro, 791 F. Supp. 2d at 370.

Based on the foregoing, the Court recommends that Pawlin be granted summary judgment on Plaintiff's retaliation claim.

2. Eighth Amendment Supervisory Capacity Cruel and Unusual Punishment Claim Against Barkley

In his amended complaint, Plaintiff alleged that he had copied Barkley on Plaintiff's April 30, 2008, letter to Dr. Wright complaining, inter alia, about his work assignment on the Utility Gang, and Barkley had failed to act. (Dkt. No. 46 at ¶ 43.) On initial review of Plaintiff's amended complaint, this Court found that for purposes of the initial screening, Plaintiff had adequately alleged personal involvement by Defendant Barkley with regard to Plaintiff's claim against Pawlin for cruel and unusual punishment for purposes of stating a claim for supervisory liability. (Dkt. No. 50 at 15-16.)

The Court has recommended that Pawlin be granted summary judgment on Plaintiff's Eighth Amendment claim against him for cruel and unusual punishment. "For a supervisor to be liable under Section 1983, there must have been an underlying constitutional deprivation" by a subordinate. Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1990). Inasmuch as the Court has concluded that there was no underlying constitutional deprivation by Pawlin, the Court recommends that Barkley be granted summary judgment on the supervisory liability claim for cruel and unusual punishment.¹⁸

18 In addition, as discussed with regard to Plaintiff's Eighth Amendment medical indifference claim against Barkley, because the letter complaining about the inadequacy of Plaintiff's medical treatment at Cape Vincent was sent to Dr. Wright, DOCCS Chief Medical Officer, it was reasonable for Barkley to leave it to Dr. Wright to address Plaintiff's complaint.

E. Fourteenth Amendment Due Process Claim Against McAuliffe and Bezio

Plaintiff has asserted a Fourteenth Amendment due process claim against Defendants McAuliffe and Bezio with respect to the Tier III disciplinary hearing held before hearing officer McAuliffe and the affirmance of McAuliffe's determination by Bezio. (Dkt. No. 46 at ¶ 75.) To prevail on a claim under § 1983 for denial of due process, a plaintiff must establish both the existence of a protected liberty or property interest, and that he was deprived of that interest without being afforded sufficient process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004). In this case, Defendants McAuliffe and Bezio make no claim that Plaintiff lacked a liberty interest, instead arguing solely that he was not denied due process in the hearing.¹⁹ (Dkt. No. 88-14 at 24-30.)

19 Given Defendants' failure to dispute the existence of a liberty interest, the Court will assume for purposes of this motion, without deciding, that Plaintiff had a liberty interest in avoiding confinement in SHU for six months and recommended loss of three months good time. (Dkt. No. 88-5 at 25.) See Mohamed v. Powers, No. 9:14-CV-1389 (TJM/TWD), 2015 WL 8492472, at * 4 (N.D.N.Y. Dec. 10, 2015) (finding that plaintiff who was sentenced to SHU for six months had sufficiently plead a liberty interest subject to due process protection).

1. McAuliffe

Plaintiff claims that he was denied due process by McAuliffe as a result of: (1) McAuliffe's denial of Plaintiff's request for the misbehavior report issued to the other inmate participant in the altercation leading to the Tier III hearing for use in his defense (Dkt. Nos. 46 at ¶ 47; 88-1 at 45; 88-5 at 14.); (2) McAuliffe's false representation at the hearing that because both Plaintiff and the other inmate were involved in the fight, both would be equally punished, which influenced Plaintiff's decision to plead guilty and denied Plaintiff the right to present a defense, to confront McAuliffe concerning his bias, and to request that he recuse himself (Dkt. Nos. 88-1 at 46-48; 88-5 at 29); and (3) McAuliffe's bias and impartiality in "unfairly and unilaterally penaliz[ing] plaintiff for an altercation he had with another prisoner, sanctioning him to punitive segregation for a period of six (6) months while the other prisoner was not sanctioned at all." (Dkt. No. 46 at ¶ 49.)

The Supreme Court has found that "[p]rison disciplinary hearings are not part of a criminal prosecution and the panoply of rights [do] not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Under Wolff, the procedural due process protections to which a prison inmate is entitled in disciplinary hearings include: (1) written notice of the charges; (2) the opportunity to appear and be heard at a disciplinary hearing and to present witnesses and evidence subject to legitimate safety and penological concerns; (3) a limited right to assistance in preparing a defense; and (4) a written statement from the hearing officer explaining his or her decision, and the reasons for the actions taken. Id. at 563-67. A prison inmate is also entitled to a fair and impartial hearing officer, Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004), and a determination that is supported by "some evidence" in the record. Superintendent v. Hill, 472 U.S. 445 (1985).

The Court finds that Plaintiff was provided with written notice of the charges in the misbehavior report on July 30, 2008, and received 24 hours notice of the hearing. (Dkt. No. 88-5 at 9, 12.) He was allowed to select an assistant in preparing his defense and met with the assistant on July 30, 2008. (Dkt. No. 88-5 at 13-14, 33.) McAuliffe provided Plaintiff with a written statement explaining his decision and the reasons for the actions taken. Id. at 25-26. Moreover, McAuliffe's determination, based on Plaintiff's guilty plea and corrections officer Wanerka's misbehavior report, was supported by "some evidence" in the record. Id. at 26.

The Court also finds that, contrary to Plaintiff's claims, he was given the opportunity to appear and be heard at his disciplinary proceeding and to present evidence, subject to legitimate safety and penological concerns, and instead made the decision of his own volition, to plead guilty to all charges. At the outset of the hearing on August 1, 2008, McAuliffe told Plaintiff to feel free to call witnesses and during the course of the hearing specifically informed Plaintiff that he could call the other inmate involved in the altercation as a witness. (Dkt. No. 88-5 at 34, 42.) Although Plaintiff did not request that corrections officer Wanerka, who had filed the misbehavior report, be called as a witness, McAuliffe let Plaintiff know that he was going to see if she was available to testify when the hearing resumed on Monday to clear up those areas with respect to which Plaintiff had plead not guilty. Id. at 41. It was at that point that Plaintiff informed McAuliffe that he wanted to plead guilty to all of the charges and proceeded to do so, despite being told by McAuliffe that if Plaintiff was not guilty, he did not want him to plead guilty. Id. at 42, 45-46.

Although McAuliffe's refusal to provide Plaintiff with a copy of the other inmate's misbehavior report did deprive Plaintiff of the opportunity to present it as evidence at the hearing, the record evidence establishes that McAuliffe's refusal was based on legitimate safety and penological concerns. The Supreme Court has instructed that "prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S. 817, 827 (1974).

In his Declaration, McAuliffe has explained that "records of or information regarding other inmates, including disciplinary records, are confidential and disclosure of such information to other inmates could constitute and (sic) unwarranted invasion of personal privacy and could impair the security of the facility and the safety of correctional staff and inmates." (Dkt. No. 88-5 at ¶ 15. In objecting to Plaintiff's interrogatory asking for information regarding the disciplinary hearing of the other inmate involved in the altercation including when his disciplinary hearing commenced, the name of the hearing officer, and the outcome, Bezio gave the same explanation as McAuliffe for objecting to the request. (Dkt. No. 88-1 at ¶ 23.) According due deference to the articulated DOCCS practices regarding the confidentiality and non-disclosure of records and documents such as another inmate's misbehavior report, the Court finds that Plaintiff's due process rights were not violated by the denial of the misbehavior report.

In addition, "a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony." Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999). McAuliffe correctly informed Plaintiff that the misbehavior report issued to the other inmate in the altercation and the charges against him were not relevant to Plaintiff's guilt or innocence, which would be determined based upon testimony of witnesses and evidence as to what had occurred presented at Plaintiff's own hearing. (Dkt. No. 88-5 at 42-45.) Plaintiff himself admitted his major concern was with fairness that he wanted to make sure the other inmate did not have a Tier II misbehavior report when Plaintiff had been issued a Tier III and would be sent to SHU. Id. at 43; see also Dkt. No. 88-1 at 47 ("My concern was clear on the record. My [concern] was I wanted to make sure that if you if this was going to be a fair hearing, we were both going to be treated fair.")

Plaintiff claims McAuliffe made false representations regarding the other inmate involved in the altercation, and he was not a fair and impartial hearing officer. As noted above, inmates are entitled to a fair and impartial hearing officer. Sira, 380 F.3d at 69. "The degree of impartiality required of prison officials does not rise to the level of that required of judges generally. It is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996). "Administrators serving as adjudicators are presumed to be unbiased,." id., and a prisoner's "own subjective belief that [the hearing officer] was biased . . . is not enough to create a genuine issue of fact." Wright v. Conway, 584 F. Supp. 2d 604, 609 (W.D.N.Y. 2008).

Plaintiff claims that McAuliffe falsely represented that he and the other inmate both received Tier III misbehavior reports and because they were both involved in a fight, they would be equally punished, when in fact the other inmate received no punishment.²⁰ (Dkt. Nos. 46 at ¶ 50; 88-1 at 46.) While McAuliffe did tell Plaintiff that the other inmate received a Tier III misbehavior report, McAuliffe consistently refused to disclose the content of that Report or the charges made against the other inmate.²¹ (Dkt. No. 88-5 at 42-45.) Furthermore, the transcript from the hearing reveals that McAuliffe did not tell Plaintiff he and the other inmate would be equally punished as Plaintiff claims. Id. What McAuliffe did say during a discussion at the hearing regarding having to pay for the broken microfiche machine, was that "it takes two to fight . . . . [and] if state property gets broken we recognize that both inmates were fighting. . . . But I'm not gonna tell ya oh you're going to pay for all of this or you're not cause I haven't found you guilty or not guilty yet." Id. at 43. The sanctions imposed by McAuliffe required Plaintiff to pay for only half the cost of the microfiche machine. (Dkt. No. 88-5 at 25.)

20 There is no evidence in the record supporting Plaintiff's claim that the other inmate involved in the altercation received no punishment or, if he did, the punishment imposed.

21 At his deposition, Plaintiff claimed that the other inmate never received a misbehavior report because when Plaintiff made a FOIL request for the Report he was informed that there was no such document. (Dkt. No. 88-1 at 46.) However, there is no direct evidence disputing McAuliffe's statement that both received Tier III misbehavior reports and, as noted above, the Altercation/Fight Investigation Form completed by Sergeant Sisler on July 29, 2008, states that "both inmates were written misbehavior reports and Jean-Laurent was placed in SHU A-2 and [the other inmate] was placed in HOSP-ISO-1." (Dkt. No. 88-5 at 18.)

Plaintiff also claims that McAuliffe was biased and unfairly sentenced him to six months in SHU, six months loss of privileges, and three months recommended loss of good time when the other inmate, who had provoked the altercation, received no punishment. (Dkt. No. 46 at ¶¶ 49-50.) There is no evidence of McAuliffe's involvement, if any, in the disciplinary handling of the altercation with respect to the other inmate. The record does show, however, that Plaintiff admitted that he had hit the other inmate. (Dkt. No. 88-5 at 40.) Moreover, there is evidence in the record that Plaintiff of his own volition elected to plead guilty to all of the charges against him, despite being told by McAuliffe that he could present witnesses, including the other inmate, at the hearing, and that McAuliffe told Plaintiff he did not want him to plead guilty if he was not guilty. Id. at 42. In short, the only evidence of bias on the part of McAuliffe is Plaintiff's own subjective belief which is not enough to avoid summary judgment. Wright, 584 F. Supp. 2d at 609.

Based upon the foregoing, the Court recommends that Defendant McAuliffe be granted summary judgment on Plaintiff's Fourteenth Amendment due process claim.

2. Bezio

Plaintiff claims that Bezio showed bias and violated his right to due process by affirming McAuliffe's determination despite all of the evidence Plaintiff provided on appeal showing that the determination was unfair. Id. at 76. According to Plaintiff, Bezio "just rubber-stamped [McAuliffe's determination] and allowed [Plaintiff] to lose the privileges, good time credit, and all that other stuff, allowed [him] to be punitively confined when what he should have done was overturn, dismissed the disciplinary, vacate it, whatever." (Dkt. No. 89-1 at 78.)

Courts in the Second Circuit are split over whether an allegation that a defendant affirmed a disciplinary proceeding determination is sufficient to establish personal liability for supervisory officials. See Scott v. Frederick, No. 13-CV-605 (TJM), 2015 WL 127864, at * 17 (N.D.N.Y. Jan. 8, 2015). In Scott, the court subscribed to the "affirmance-plus standard, which holds that the mere rubber-stamping of a disciplinary determination is insufficient to plausibly allege personal involvement." Id. (citing Brown v. Brun, No. 10-CV-0397A (MAT), 2010 WL 5072125, at * 2 (W.D.N.Y. Dec. 7, 2010) (noting that courts within the Second Circuit are split with regard whether to the act of affirming a disciplinary hearing is sufficient to allege personal involvement of a supervisory official, and concluding that the distinction appears to hinge upon whether the supervisory official proactively participated in reviewing the appeal or merely rubber-stamped the results).

This Court also subscribes to the "affirmance-plus standard" and concludes that Bezio, in affirming McAuliffe's determination, did not violate Plaintiff's due process rights and recommends that Bezio be granted summary judgment on Plaintiff's Fourteenth Amendment due process claim.²²

22 There are a fair number of district court decisions holding that the affirmance of an unconstitutional disciplinary proceeding can be sufficient to find personal involvement. See Samuels v. Fischer, No. No. 13-CV-8287(KMK), 2016 WL 827781, at * 11-12 (S.D.N.Y. March 2, 2016) (collecting cases). Inasmuch as the Court has concluded that Plaintiff's due process rights were not violated in his disciplinary hearing, application of the standard applied in those decisions would not produce a contrary result in this case. --------

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 88) be GRANTED; and it is further

RECOMMENDED that the action be DISMISSED WITHOUT PREJUDICE against Defendants John Doe #1, John Doe #2, Dr. John Doe, and Nurse Jane Doe; and it is hereby

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, 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: August 18, 2016

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge