GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Edward Koehl, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that various defendants, including employees of the New York State Department of Correctional Services ("DOCS") and the New York State Division of Parole ("DOP"), violated his constitutional rights during his incarceration at DOCS' Green Haven Correctional Facility ("Green Haven"). Defendants have now moved to dismiss the complaint pursuant to Fed R. Civ. P. 12(b)(6). For the reasons stated below, the motion to dismiss should be granted in part and denied in part.

I. BACKGROUND

A. Facts Alleged by Koehl

For purposes of deciding the defendants' motion to dismiss, the Court assumes the allegations in plaintiff's complaint are true and draws all reasonable inferences from those facts in favor of the plaintiff. See, e.g., Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir. 2006). In light of Koehl's pro se status, the Court in some instances has considered factual allegations contained in his memorandum submitted in opposition to the defendants' motion where they amplify claims made in the complaint. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n.2 (S.D.N.Y. Apr. 23, 2002) (considering pro se prisoner's factual allegations in briefs as supplementing the complaint); Burgess v. Goord, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) ("In general, 'a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.'") (quoting Gadson v. Goord, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)) (additional citations omitted).

In October 2008, Koehl was transferred to Green Haven. See Amended Complaint, filed July 16, 2010 (Docket # 6) at 10 ¶ 1 ("Am. Compl."). At Green Haven, defendant Robert E. Ercole, who was a warden in the facility at the time, "callously and deliberately assigned [him] to a double bunk cell, top bunk, third floor." Id. at 10 ¶ 2. Koehl "was forced to carry [his] property to the third floor, [which] aggravated [his] previously complained of conditions." Id. As a result of this incident, Koehl spent three days in the hospital. Id. Upon release from the hospital, Koehl was again placed into a double bunk, and his "bunk mates (2 out of 3), were chain smokers, who smoked all day and night in the cell." Id. at 10 ¶ 3. Koehl filed grievances about the bunk problems, but Ercole falsified records, stating that Koehl had signed a waiver agreeing to double bunk in order to be transferred to Green Haven. Id. Koehl spent 60 days in a double bunk, during which time his counselor demanded that he sign a waiver agreeing to remain in the double bunk and, when Koehl refused, defendant Deputy Superintendent Richard Cunningham signed an order in retaliation requesting that Koehl be transferred to a facility seven hours away from his family. Id. at 1, 10 ¶ 3.

Defendant Dr. Weinstein conducted an electromyography ("EMG") of Koehl in October or November 2008 as a result of Koehl's complaints to his assigned facility doctor, Dr. J. Fein, regarding "extreme pain, numbness and weakness in [his] arms, hands, legs, neck and back." Id. at 10 ¶ 4. Dr. Weinstein informed Koehl that "nothing [wa]s wrong with [him]," at which point Koehl called Dr. Weinstein "a liar" and produced a previous EMG, conducted on March 18, 2008, which showed results different from the October or November EMG. Id. Dr. Weinstein agreed to conduct an MRI after Koehl stated that he was going to have his family file a complaint with the DOCS Central Office. Id. Between June 2007 and October 2008, Koehl repeatedly complained of extreme pain and weakness, but defendants DOCS Commissioner Brian Fischer and DOCS Chief Medical Officer Dr. Lester Wright, id. at 2 ¶¶ 14-15, denied him "proper testing," including an MRI of the spine, a CT scan, and neuro imaging, "[c]ontrary to numerous recommendations via the Clinton [Correctional Facility] medical staff and outside providers," id. at 10-11 ¶ 4.

Defendant Dr. Fredrick Bernstein, the facility Medical Director, deliberately scheduled Koehl's MRI for December 30, 2008, a date on which Bernstein knew Koehl's family would be visiting from Staten Island. Id. at 1, 11 ¶ 5. Dr. Bernstein "orchestrated this conflict so [that] he [could] later state that [Koehl had] refused treatment." Id. On February 9, 2009, Koehl was administered an MRI which indicated he suffered from "degenerative disk disease." Id. at 11 ¶ 6. Neurosurgeons at Albany Medical Center ("the neurosurgeons") informed him that if he had "seen them several years" before, when he had "first complained of the symptoms, [his] prognosis would be much better." Id. The neurosurgeons told Koehl that surgery could only stop the condition from worsening and would not cure the disease. Id. On July 6, 2009, Koehl had surgery, id., and several weeks later he met with Dr. Fein who scheduled Koehl for another appointment with the neurosurgeons, id. at 11 ¶ 7. In September 2009, the neurosurgeons "ordered steroids, xrays," "an EMG, and a new neck brace" for Koehl. Id. at 11 ¶ 7. The new brace "kept popping off" which "exacerbated Koehl's condition," and Dr. Bernstein "deliberately refused to order a new neck brace until" January 2010, after Koehl had filed a grievance, and "callously changed the type of xrays" that were ordered. Id. at 11 ¶ 7. In November 2009, Dr. Weinstein conducted an EMG and reported "that nothing was wrong." Id. However, Dr. Weinstein's "report and conclusions were knowingly false." Id. In a subsequent appointment with the neurosurgeons, Koehl was informed that his condition had "progressed for the worse," and the neurosurgeons ordered an MRI and CT scan to be conducted. Id. In order to save costs, Dr. Bernstein, Dr. Wright, and Fischer "callously and deliberately ignored the orders of the neurosurgeons and canceled the MRI." Id. at 11-12 ¶ 7. The CT scan, which was performed on December 10, 2009, "proved inconclusive" because it was conducted while Koehl was "still and facing front." Id. at 12 ¶ 7. On January 19, 2010, X-rays were taken at Putnam Hospital which indicated that some of Koehl's vertebrae had not fused and that the rods, clamps, and screws had come loose, pinching his spinal cord. Id. at 12 ¶ 8. On February 11, 2010, Koehl was again seen by the neurosurgeons. Id. Koehl informed these doctors that Dr. "Bernstein, [Dr.] Wright and Fischer [had] callously changed and/or ignored their orders." Id.

Since he arrived at Green Haven, Koehl's "chronic and life threatening lung diseases have grown progressively worse" because he is "constantly . . . exposed to unconstitutional levels of second hand tobacco smoke." Id. at 12 ¶ 10. Koehl complained to Dr. Fein, Dr. Bernstein, Cunningham, Ercole, and William Lee, Ercole's successor at Green Haven, id. at 1, who stated "that since prisoners are prohibited from smoking indoors, there are no [environmental tobacco smoke] problems in the housing blocks," id. at 12 ¶ 10. The low number of misbehavior reports issued at Green Haven for smoking in unauthorized areas demonstrates these defendants' callous and deliberate refusal to enforce the indoor smoking ban. Id. at 13 ¶ 10. Koehl has also repeatedly been denied access to his assigned pulmonary specialist and has been "denied proper testing and access to a qualified specialist." Id. at 13 ¶ 11. When he was allowed a pulmonary function analysis on February 27, 2009, it "showed a significant drop in [his] lung capacity." Id.

Koehl wears dentures. Id. at 13 ¶ 12. Because he has "no bottom ridge line, denture adhesive is a medical necessity." Id. Fischer and Dr. Wright will not provide Koehl with denture adhesive or with an implant and he is only able to obtain the adhesive by purchasing it in the facility commissary. Id.

Additionally, Fischer, Ercole, and Lee have denied Koehl appropriate clothing to wear during his daily period of outdoor recreation. Id. at 14 ¶ 13. In order for Koehl to obtain "life saving" clothing items he would have to pay for them. Id. Thus, he "cannot go outside for recreation without endangering [his] life." Id.

Cunningham, Ercole, and Lee have subjected Koehl to cruel and unusual punishment by ignoring medical orders and forcing him to "pack up all [of his] property and carry it from cell to cell." Id. at 10 ¶ 2; id. at 14 ¶ 14(a). On December 11, 2008, Koehl was moved from a double bunk cell to a single cell, id. at 14 ¶ 14(a); on December 24, 2008, he was moved from the first floor to the second floor, id. at 14 ¶ 14(a)(i); on April 16, 2009, he was moved to a cell on the third floor that contained "lead paint rust dust," id. at 14 ¶ 14(a)(ii); and between April 24, 2009 and February 2, 2010, he was moved to four different cells, id. at 14 ¶¶ 14(a)(iii)-(vi).

Cunningham and DOP employees Lester Edwards, Andrea Evans, Francis Herman, and Terrence X. Tracy "conspired to sabotage [Koehl's] application for Commutation of Sentence . . . in retaliation for . . . redress of grievances, reversals of false misbehavior reports, and civil awards alleging abuse." Id. at 1, 2 ¶¶ 6-8; id. at 15 ¶ 14(b). When Koehl asked Cunningham why the legal mail he sent was always returned, Cunningham told him that because of all of Koehl's "past complaints and winning law suits against DOCS employees," Cunningham would "do whatever he [could] to stop [Koehl's] mail from leaving the facility." Id. While more than ten letters were sent in with the application from both Koehl's family and his DOCS spiritual advisor, the DOP only received one of these letters. Id. Tracy told Koehl that the DOP had "no record of . . . receiving any letters." Id. In October 2009, Koehl submitted a FOIL request which confirmed that each letter had been received and sent to the DOP for processing. Id. Koehl's family subsequently submitted letters to the Governor and Evans, complaining about the non-receipt of the letters, but the Governor did not respond and Edwards, answering for Evans, "purposely refused to address the actual wording in the submitted complaints." Id. at 15-16 ¶ 14(b). On January 16, 2010, the DOP notified Koehl that his application for a commutation of sentence had been denied. Id. at 16 ¶ 14(b).

Defendants Fischer, I. Russo, Andrew Harvey, and Joseph Brennan "conspired to issue [Koehl] a tier III misbehavior report in retaliation for redressing [his] grievances and so [he] could be transferred out of the jail to preclude [him] from substantiating [his] claims in a pending matter." Id. at 2 ¶¶ 9-11; id. at 16 ¶ 14(c). Russo issued this report, which stated that on October 9, 2006, Koehl had harassed Brennan. Id. at 16 ¶ 14(c). Koehl was denied the ability to view, obtain, or comment on any of the evidence presented to the committee reviewing the report and was found guilty of the allegations on March 7, 2007. Id. Koehl was assessed a sentence of 90 days in "the Box (SHU)" and his appeal was denied in June 2007. Id. at 17 ¶ 14(c).

At about the same time, defendants R. Hilliar and D. Sawyer "callously and deliberately advance[d] knowingly false and unsubstantiated charges via a tier II misbehavior report in retaliation for redressing grievances." Id. at 2 ¶¶ 12-13; id. at 17 ¶ 14(c). The report, issued by Hilliar, alleged that Koehl had harassed her. Id. Koehl "was not allowed access to any of [his] property and exculpatory evidence." Id. at 17 ¶ 14(c). On March 8, 2007, Sawyer conducted a hearing and Koehl was found guilty of the allegations in the tier II report. He was assessed a "30 days keep-locked" penalty and "30 days loss of phones, package[s] and commissary to run consecutive in SHU with the" 90-day sentence, "totaling 120 days in SHU." Id. His appeal was denied on March 22, 2007, and on July 7, 2007, the "guilty verdict was reversed and ordered expunged from [his] records." Id.

B. Procedural History

The original complaint in this action was filed on May 10, 2010, see Complaint, filed May 10, 2010 (Docket # 2) ("Compl."), and an amended complaint was filed on July 16, 2010, see Am. Compl. On November 1, 2010, defendants filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Notice of Motion to Dismiss, filed Nov. 1, 2010 (Docket # 25); Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint, filed Nov. 1, 2010 (Docket # 26) ("Def. Mem."); Declaration of Counsel, filed Nov. 1, 2010 (Docket # 27); Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings, filed Nov. 1, 2010 (Docket # 28). Koehl filed a memorandum in opposition to this motion, see Plaintiff's Verified Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Complaint Pursuant to F.R.C.P. Rule 12(b)(6) or (c), filed Dec. 29, 2010 (Docket # 46) ("Pl. Mem."); and defendants filed a reply brief, see Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss the Complaint, filed Jan. 26, 2011 (Docket # 50) ("Def. Reply").

II. LAW GOVERNING MOTIONS TO DISMISS

A party may move for judgment pursuant to Federal Rule of Civil Procedure 12(b)(6) where the opposing party has "fail[ed] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Separately, Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under this rule, a complaint "must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002)).

Nonetheless, the Supreme Court has held that "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, internal quotation marks, and brackets omitted); see also id. at 557 (pleading must "possess enough heft to show that the pleader is entitled to relief") (internal quotation marks and brackets omitted). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and internal quotation marks omitted); accord Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) ("a complaint must allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion") (citations omitted).

In the case of pro se plaintiffs, "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); accord In re Sims, 534 F.3d 117, 133 (2d Cir. 2008); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be construed liberally and interpreted "to raise the strongest arguments that they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

III. DISCUSSION

Koehl's amended complaint does not clearly identify the claims it purports to assert. In moving to dismiss the amended complaint in its entirety, the defendants have categorized the claims in the amended complaint and have made arguments seeking dismissal with respect to each. In his opposition papers, Koehl has not argued that any claims exist beyond those identified in the defendant's moving papers. Nor does the Court discern any such claims. Accordingly, we address each of the claims as identified in the defendants' moving papers.

A. Eleventh Amendment

Defendants have moved to dismiss Koehl's claims against the State of New York and the individual defendants in their official capacities based on the Eleventh Amendment. The Eleventh Amendment bars lawsuits by a citizen of a state against that state or its agencies, absent the state's consent or a statutory waiver of immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). It is well settled that Congress did not intend to abrogate state sovereign immunity when it enacted 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 343-44 (1979). Koehl's complaint does not state whether he seeks damages against the individual defendants in their official or individual capacities. To the extent it seeks damages against any of the defendants in their official capacities, however, it would be barred by the Eleventh Amendment. See, e.g., Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) ("The Eleventh Amendment bars the award of money damages against state officials in their official capacities."); Eng v. Coughlin, 858 F.2d 889, 894 (2d Cir. 1988) ("Eleventh Amendment immunity protects state officials sued for damages in their official capacity."). Accordingly, all claims against the State of New York for damages must be dismissed as well as any claims for damages against other defendants brought in their official capacities.

We now consider Koehl's claims insofar as they are brought against defendants in their individual capacities.

B. Fourteenth Amendment Due Process Claims

Koehl alleges certain claims regarding discipline that was meted out to him. Koehl asserts that Harvey "callously and deliberately denied [him] all due process rights . . . by refusing to allow [him] . . . to view, obtain or comment on any of the" evidence used to find him "guilty" of the allegations outlined in the tier III misbehavior report. See Am. Compl. at 16 ¶ 14(c). Koehl further asserts that "instead of finding [him] guilty of the allegedly harassing passage stated in the misbehavior report, he [was] . . . found guilty of an uncharged passage that appeared in the provided letter." Id. at 17 ¶ 14(c). He was sentenced to 90 days in the SHU and denied leave to appeal. Id.

Separately, Koehl alleges that Hilliar filed a false tier II misbehavior report against him and that he was wrongly convicted of the charge listed in that report. Id. He states that he "was not allowed access to any of [his] property and exculpatory evidence" and that the hearing officer informed him that he would be found guilty "no matter what." Id. Koehl was found guilty and assessed a "30 days keep-locked" penalty and "30 days loss of phones, package[s] and commissary." Id. Koehl alleges that he commenced an Article 78 proceeding and that a judge of the New York State Supreme Court reversed the guilty verdict. Id. In his memorandum of law, Koehl asserts that after the tier II disposition, he was transferred to "Upstate CF," at which point he was informed that the 90 day SHU assessment and the 30 day keep-lock assessment were to "be added together" and that Koehl was to spend the entire 120 period in the SHU. Pl. Mem. at 24.

Koehl also contends that he endured a number of hardships in the SHU during this time, including the loss of three toenails and denial of his yarmulke and prayer book. Id. at 24-25. Defendants argue that Koehl fails to establish a deprivation of a Fourteenth Amendment right to due process in the context of these prison disciplinary hearings as "he must establish that the confinement imposed on him created an atypical and significant hardship relative to ordinary incidents of prison life." Def. Mem. at 9 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)).

1. Law Governing Disciplinary Proceedings

A party asserting a due process claim "'must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.'" Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (quoting Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001)). Prisoners subject to disciplinary proceedings can show a liberty interest only if "disciplinary punishment 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (per curiam) (quoting Sandin, 515 U.S. at 484); accord Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009). "Factors relevant to determining whether the plaintiff endured an 'atypical and significant hardship' include 'the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions' and 'the duration of the disciplinary segregation imposed compared to discretionary confinement.'" Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (citing Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998)); accord Davis, 576 F.3d at 133.

In Sealey v. Giltner, 197 F.3d 578 (2d Cir. 1999), the Second Circuit suggested that consecutive sentences resulting from separate hearings adjudicating different misbehavior reports should be aggregated for the purpose of determining whether the confinement constitutes atypicality. See id. at 587-88. Sealey aggregated the 18 and 83-day periods the plaintiff was kept in the SHU on the ground that "[w]herever the point is beyond which confinement in harsh conditions constitutes atypicality, a prison official must not be permitted to extend such confinement beyond that point without according procedural due process." Id. at 587. It noted that "if conditions were of sufficient harshness that confinement for 365 days constituted atypicality, an official who held a hearing for a prisoner already confined in such conditions for 364 days would normally have to accord procedural due process before continuing the confinement beyond an aggregate interval of 365 days." Id. at 587 n.7; see also Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000) (noting that it was "possible that some or all of [plaintiff's sentences] should be aggregated for purposes of the Sandin inquiry") (citation omitted). Other cases have similarly aggregated sentences based on separate violations. See, e.g., Bunting v. Nagy, 452 F. Supp. 2d 447, 457 (S.D.N.Y. 2006); Charles v. Maleh, 2006 WL 581206, at *12 (D. Conn. Mar. 8, 2006). Thus, for purposes of this motion we will aggregate Koehl's sentences and treat the time spent in the SHU as 120 days.

"The Second Circuit has not established a bright-line rule as to how lengthy a term of disciplinary confinement (i.e., either 'keeplock' or SHU confinement) will be considered atypical and significant." Bunting , 452 F. Supp. 2d at 455. Nevertheless, the Second Circuit has established "guidelines for use by district courts in determining whether a prisoner's liberty interest was infringed." Palmer, 364 F.3d at 64. Among these guidelines is that for confinements of "an intermediate duration - between 101 and 305 days - 'development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required." Id. at 65 (citations omitted)

As noted, Koehl has alleged that he spent 120 days in the SHU, thus placing him within the guideline governing intermediate durations of confinement. For such a duration of confinement, the fact-finding required by the Second Circuit to determine whether this intermediate sentence constitutes an atypical and significant hardship cannot occur on a motion to dismiss. Gonzalez-Cifuentes v. Torres, 2007 WL 499620, at *3 (N.D.N.Y. Feb. 13, 2007); accord Thomas v. Calero, 2011 WL 1532058, at *8 (S.D.N.Y. Mar. 17, 2011) (finding that while plaintiff had "not alleged that the conditions of his confinement differed from normal SHU circumstances," his "confinement in SHU for 291 days [wa]s sufficient, for pleading purposes, to implicate a liberty interest" ) (291-day confinement); Smart v. Goord, 441 F. Supp. 2d 631, 641 (S.D.N.Y. 2006) ("[Plaintiff] has not alleged that the conditions of her confinement were more severe than normal SHU conditions . . . . However, such detailed factual allegations are not necessary to withstand a motion to dismiss.") (70-day confinement); Harris v. McGinnis, 2004 WL 2187137, at *4 (S.D.N.Y. Sept. 30, 2004) (denying motion to dismiss even though "[t]he Complaint makes no representation as to the parameters of 'normal' conditions of confinement, and it is thus impossible to determine on the face of the Complaint that the keeplock conditions to which Plaintiff was subjected were not atypical within the meaning of Sandin") (151-days in keeplock). Even if it could be said that a prisoner has some obligation to describe his conditions of confinement in order to make out a due process claim, here Koehl alleges that his confinement was in fact "atypical" and constituted a "significant hardship" because he was not allowed to attend his grandmother's funeral and was not allowed to communicate with his family. Am. Compl. at 17 ¶ 14(c). Accordingly, his pleading cannot be dismissed for failure to describe in detail the conditions of his confinement.

2. Statute of Limitations

In New York, pursuant to New York Civil Practice Law and Rules § 214(5), a three year statute of limitations governs a section 1983 action. Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987), aff'd, 488 U.S. 235 (1989); see Harris v. City of New York, 186 F.3d 243 (2d Cir. 1999). Defendants argue that any claim against Fischer, Russo, Harvey and Brennan based on the tier III report should be dismissed because the allegedly retaliatory report was issued in October 2006, outside the three year statute of limitations for section 1983 actions. See Def. Mem. at 14. In fact, although the incident on which the report was based occurred on October 9, 2006, the complaint alleges that the misbehavior report was not issued until February 21, 2007, and that Koehl was found guilty of the charges in this report on March 7, 2007. See Am. Compl. at 16 ¶ 14(c). It would thus appear that the hearing took place on March 7, 2007, and the resulting sentence was issued on that date. Koehl's original complaint in this action is dated March 3 and March 5, 2010. See Compl. at 18, 20. Under the rule that the complaint in a pro se prisoner case is deemed filed on the date it is delivered to prison officials for mailing, see Dory v. Ryan, 999 F.2d 679, 682 (2d. Cir. 1993), any claim would had to have accrued by March 5, 2007, at the latest. Accordingly, the question arises whether the limitations period arose when the allegedly false report was issued - in which case the complaint would be untimely - or when Koehl was found guilty of the charges.

While the analysis will be different to the extent a claim of retaliation is made - an issue we discuss in section III.C below - we conclude that because the due process claim arises out of the punishment that was meted out on the hearing date, any due process claim began to accrue on that date, and not on the date the misbehavior report was issued. Accordingly, we reject defendants' argument that Koehl's due process claim is untimely.

3. Personal Involvement

Defendants do not argue that Koehl's due process claim should be dismissed because he received sufficient process at the administrative hearings, and thus we do not address this prong of the due process analysis. Instead, their remaining defense is that the claims against Fischer, Russo, Brennan, and Hilliar should be dismissed because the complaint does not allege that they were personally involved in the due process violation. See Def. Mem. at 10.

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotation marks and citation omitted). In addition, personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("supervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior") (citation omitted), cert. denied, 543 U.S. 1093 (2005); accord Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). According to the Second Circuit, personal involvement can be shown by

evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant

exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring

With regard to the tier III report, Koehl alleges that Russo, Brennan, and Fischer "conspired to issue [him this report] . . . in retaliation for redressing [his] grievances and so [he] could be transferred out of the jail." Am. Compl. at 16 ¶ 14(c). He states that Russo authored the report, which was contrary to the record, and that he refused to allow Koehl to view, obtain, or comment on any of the evidence that was used to find him guilty of the charges. Id. He states that this report stemmed from an alleged grievance letter he sent to Brennan, which was "deemed harassment," and that Brennan swore and signed a complaint demanding Koehl be charged for the alleged letter. Id. In his memorandum in opposition, Koehl states that he appealed the hearing officer's decision with regard to this report to Fischer, and that Fischer stated that the entire file was classified. See Pl. Mem. at 23. Fischer affirmed the sentence on April 27, 2007. See id.

The complaint's allegations against Russo are sufficient to show personal involvement as Koehl has alleged that Russo directly participated in the alleged violation. Specifically, Koehl asserts that Russo denied him his due process rights by refusing to allow him to view, obtain, or comment on the evidence used to find Koehl guilty of the charge in the tier III report. See Am. Compl. at 16 ¶ 14(c).

On the other hand, the allegations against Brennan are not sufficient to show personal involvement. Brennan, who is "Chairperson, Committee on Professional Standards, Third Judicial Department," apparently received a letter that was traced to Koehl through handwriting analysis and other means - a letter that Koehl denies he wrote. Id. The complaint alleges Brennan demanded that Koehl be charged for writing this letter and that he was so charged. But there is no claim that Brennan had any involvement in the adjudication of the report. Thus, there are no facts sufficient to support a finding that Brennan was personally involved in violating Koehl's due process rights. See Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) ("The filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing.") (citing Sommer v. Dixon, 709 F.2d 173, 174-75 (2d Cir.), cert. denied, 464 U.S. 857 (1983)); Anderson v. Banks, 2008 WL 3285917, at *2 (N.D.N.Y. Aug. 7, 2008) (writing of false misbehavior reports is "not sufficient to state a due process claim"); Muhammad v. Pico, 2003 WL 21792158, at *16 (S.D.N.Y. Aug. 5, 2003) (filing of an allegedly false report did not personally involve the sergeant who filed it in the due process violations alleged because "'but for causation' . . . is not the standard for Section 1983 liability") (citations omitted); see generally Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) ("prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report") (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)).

As to Fischer, once the hearing on the tier III report was over and the decision was issued, the due process violation was completed. The only opportunity that Fischer had to rectify this violation was through the appeal process itself. To be sure, one of the methods recognized by the Second Circuit to show personal involvement is that the defendant,"after being informed of the violation through [an appeal], failed to remedy the wrong." Colon, 58 F.3d at 873. But this category does not apply to Fischer because - as has been held in a related context - "affirming the administrative denial of a prison inmate's grievance by a high-level official is insufficient to establish personal involvement under section 1983." Manley v. Mazzuca, 2007 WL 162476, at *10 (S.D.N.Y. Jan. 19, 2007) (citing, inter alia, Foreman v. Goord, 2004 WL 1886928, at *7 (S.D.N.Y. Aug. 23, 2004) ("The fact that [the prison superintendent] affirmed the denial of plaintiff's grievances is insufficient to establish personal involvement.")). As was noted in Thompson v. New York, 2001 WL 636432 (S.D.N.Y. Mar. 15, 2001), "[w]ere it otherwise, virtually every prison inmate who sues for constitutional torts by prison guards could name the Superintendent as a defendant since the plaintiff must pursue his prison remedies and invariably the plaintiff's grievance will have been passed upon by the Superintendent." Id. at *7 (citations omitted). "The reference in case law to an official who fails to remedy a violation logically applies only to ongoing, and therefore correctable, constitutional violations - not to a specific event that is later subject to formal review by designated officials once the constitutional violation has already concluded." See Odom v. Calero, 2008 WL 2735868, at *7 (S.D.N.Y. July 10, 2008) (internal quotation marks omitted); Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) ("If the official is confronted with a violation that has already occurred and is not ongoing, then the official will not be found personally responsible for failing to 'remedy' a violation."). Accordingly, the mere allegation that Fischer failed to grant Koehl's appeal is insufficient to show that he was "personally involved" in committing the alleged due process violation.

Koehl alleges that defendant Hilliar issued him an allegedly false tier II report stating that he had harassed her. See Am. Compl. at 17 ¶ 14(c). However, for the same reasons already stated with respect to Koehl's allegations against Brennan, such allegations are not enough to show personal involvement by Hilliar. See Williams, 781 F.2d at 324; Anderson, 2008 WL 3285917, at *2.

C. Retaliation Claims

It is well established that the First Amendment protects prisoners from retaliation for engaging in protected speech, which includes submitting grievances regarding prison conditions. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). To establish a prima facie case of retaliation, an inmate must show: (1) that his speech or conduct was constitutionally protected; (2) that the defendant took adverse action against the plaintiff; and (3) that a causal connection exists between the protected speech and the adverse action. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (citing Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). However, "[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks and citations omitted); accord Rivera v. Goord, 253 F. Supp. 2d 735, 749 (S.D.N.Y. 2003). "In making this determination, the court's inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens before a retaliatory action taken against them is considered adverse." Davis, 320 F.3d at 353 (internal punctuation and citation omitted). Because of the ease with which claims of retaliation can be invoked, the Second Circuit has directed courts to examine such claims "with skepticism and particular care." Colon, 58 F.3d at 872 (citation omitted); see Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) ("[V]irtually 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.") (citations omitted).

1. Facility Transfer

Here, Koehl asserts that defendant Cunningham retaliated against him for filing grievances by transferring him to the "5 Points" facility. See Am. Compl. at 10 ¶ 3. Defendants argue that Koehl's claim should be dismissed because: (1) Koehl "has no liberty interest in a particular location," Def. Mem. at 11; Def. Reply at 6; (2) "the facility transfer claim is moot because plaintiff was not transferred out of Green Haven by the time he filed the complaint," Def. Mem. at 11; Def. Reply at 6; and (3) "the complaint does not explain why the transfers were retaliatory," Def. Mem. at 12; Def. Reply at 6.

Defendants' first argument must fail because, although prisoners have no liberty interest in remaining at a particular facility, prison officials may not transfer inmates in retaliation for exercising their constitutional rights. Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) ("[a] prisoner has no liberty interest in remaining at a particular correctional facility, but prison authorities may not transfer an inmate in retaliation for the exercise of constitutionally protected rights") (citations omitted). Because it is well established that the filing of grievances is constitutionally protected activity, prison officials may not transfer inmates in retaliation for such activity. See Morales, 278 F.3d at 131. The Court would normally accept defendants' second and third arguments, but inasmuch as Koehl alleges that he was transferred to the "5 Points" facility on June 10, 2010, see Pl. Mem. at 20, and that the allegedly retaliatory action taken by defendants was the result of Koehl's filing of "grievances and complaints," Pl. Mem. at 19, we will deem these allegations to amend his complaint. See Woods, 2002 WL 731691, at *1 n.2.

2. Executive Clemency Application

Defendants argue that Koehl has failed to state a claim for retaliation with regard to the sabotage of his executive clemency application by Cunningham, Edwards, Evans, Herman, and Tracy. See Def. Mem. at 12-13. Koehl alleges that these defendants sabotaged his application in retaliation for the "redress of grievances, reversals of false misbehavior reports, and civil awards alleging abuse." Am. Compl. at 15-16 ¶ 14(b). In addition to grievances, the filing of civil lawsuits comprises constitutionally protected activity. See Espinal v. Goord, 554 F.3d 216, 227 (2d Cir. 2009) (holding plaintiff's earlier federal lawsuit was a protected activity) (citation omitted). Thus, Koehl has sufficiently alleged that his speech or conduct was constitutionally protected.

In the prison context, the adverse action element of a retaliation claim is satisfied if the plaintiff alleges facts sufficient to demonstrate that the retaliatory conduct by defendants "would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (internal quotation marks and citations omitted). A reasonable jury could find that a deliberate effort by a prison official to sabotage an application for clemency fits within this category.

With respect to the personal involvement of the defendants in this activity, we agree with defendants that Koehl does not allege adverse action on the part of Evans, Edwards, Herman, and Tracy. See Def. Mem. at 13. The only allegations Koehl makes regarding Evans and Edwards are that these defendants responded to his questions about the DOP's receipt of letters sent as part of the executive clemency application. See Am. Compl. at 15 ¶ 14(b); Pl. Mem. at 25-28. Herman is only mentioned as part of Koehl's discussion of the Department's review of applications for executive clemency. See Pl. Mem. at 25-26. No specific allegations are made against him. With respect to Tracy, Koehl states in the complaint that, "[o]n appeal, Defendant Tracy, callously and deliberately falsified official records to continue the conspiracy." Am. Compl. at 15 ¶ 14(b). The problem with this allegation is that it is far too vague and conclusory to identify Tracy's involvement in the scheme.

As for Cunningham, defendants argue that Koehl "does not allege a single actual adverse measure by Cunningham." Def. Mem. at 13. Koehl, however, alleges that Cunningham informed him that "because of [his] past complaints and winning law suits against DOCS employees," he would "submit an unfavorable recommendation to the Division of Parole regarding [Koehl's] pending application for Commutation of Sentence," that he would "do whatever he [could] to stop [Koehl's] mail from leaving the facility," and that he would "call in every favor . . . to sabotage [the] application." Am. Compl. at 15 ¶ 14(b). This is sufficient to show Cunningham's personal involvement. It is also sufficient to show a causal connection between the protected speech and the adverse action since Koehl alleges that Cunningham specifically stated that he was taking the adverse action because of Koehl's protected activities.

3. Misbehavior Reports

As was true for the due process claims, defendants argue that the retaliation claims against Fischer, Russo, Harvey, and Brennan - based on the tier III misbehavior report - should be dismissed on statute of limitations grounds. Def. Mem. at 14. As noted in section III.B.2 above, this argument raises the question of whether the claim accrued when the allegedly false report was issued - in which case the complaint would be untimely - or when Koehl was found guilty of the charges alleged.

We believe the answer to this question lies in the specific claim made against a defendant. To the extent a defendant's retaliatory act is the issuance of a false misbehavior report itself, the claim is untimely. See, e.g., Davidson v. Pearson, 2007 WL 952047, at *2 (W.D.N.Y. Mar. 28, 2007) ("[p]laintiff's claims initially accrued on December 27, 1998, the date the alleged false misbehavior report was issued"). To the extent a claim against a defendant is that he took some retaliatory action at the hearing on March 7, 2007, the claim would be timely.

Thus, we examine each potential defendant separately. Fischer's role is not alleged at all in the description of this incident, Am. Compl. at 16-17 ¶ 14(c), and thus the claim must be dismissed as to him. With respect to Brennan, as noted in section III.B.3 above, there is no allegation regarding his involvement in the adjudication of the report and thus no claim can survive as to him. The allegations against Russo are somewhat unclear, but it appears that Koehl is alleging that Russo denied him documents both before and after the hearing date, Am. Compl. at 16-17 ¶ 14(c), and thus we will assume that some of his conduct may fall within the limitations period. Harvey is alleged to be the hearing officer, and thus any claim against him would be timely.

Turning to the merits, the allegations are sufficient to show Russo and Harvey's personal involvement in that both are alleged to have personally committed acts of retaliation. They are also sufficient to allege a causal connection between their actions and Koehl's protected activities. See Am. Compl. at 16 ¶ 14 (c) (defendants actions were done "in retaliation for redressing [Koehl's] grievances and so [Koehl] could be transferred out of the jail to preclude [him] from substantiating [his] claims in a pending matter"). Accordingly, the retaliation claim against Russo and Harvey survives.

With respect to the claim regarding the tier II report, this claim is not time-barred but must be dismissed as against defendant Sawyer because there are no facts alleged that he had any personal involvement in the issuance of this misbehavior report, let alone that his involvement in the matter arose because of his desire to retaliate. As discussed above, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell, 449 F.3d at 484 (internal quotation marks and citation omitted). Here, Koehl alleges that Sawyer was the hearing officer in the adjudication of the tier II report, see Am. Compl. at 17 ¶ 14(c); Pl. Mem. at 24. While Koehl alleges that he was wrongly denied access to certain evidence during the tier II hearing, he does not allege any facts reflecting that Sawyer was aware that the misbehavior report had been allegedly issued in retaliation for the filing of grievances. Thus, the allegations against Sawyer with regard to the tier II misbehavior report must be dismissed.

With respect to Hilliar, defendants make no argument that she should be dismissed from this claim. See Def. Mem. at 14. And the complaint contains sufficient allegations reflecting that her involvement in the issuance of the report arose from her desire to retaliate against Koehl's appeal of grievances. See Am. Compl. ¶ 14(c) at 17.

D. Eighth Amendment Claims

The Supreme Court has held that "the Constitution 'does not mandate comfortable prisons,' but neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). The Eighth Amendment imposes an obligation on prison officials to provide "humane conditions of confinement," including "adequate food, clothing, shelter, and medical care." Farmer, 511 U.S. at 832. To establish a violation of the Eighth Amendment on the basis of inhumane prison conditions, a plaintiff must show that the deprivation is sufficiently serious as to result in a denial of "'the minimal civilized measure of life's necessities,'" Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 347), and that the prison officials acted with "a sufficiently culpable state of mind," Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted). In the context of conditions of confinement, the requisite mental state is "deliberate indifference." Wilson, 501 U.S. at 302-03.

1. Exposure to Environmental Tobacco Smoke

Defendants have moved to dismiss Koehl's claim that his exposure to environmental tobacco smoke ("ETS"), including the 60 days he spent in a double bunk cell with inmates who smoked, constituted cruel and unusual punishment. Defendants argue "that DOCS' practice of double-cell housing does not violate the Eighth Amendment," see Def. Mem. at 15 (citing Jones v. Goord, 435 F. Supp. 2d 221, 257 (S.D.N.Y. 2006)), and that DOCS not only has an indoor smoking ban, but that DOCS personnel were actively enforcing this ban, see Def. Reply at 5.

In Rhodes v. Chapman, 452 U.S. 337 (1981), the Supreme Court held that "double celling" is generally permissible under the Eighth and Fourteenth Amendments. Id. at 347-48, 352. Nevertheless, when combined with other adverse conditions, double bunking may constitute cruel and unusual punishment. See Bolton v. Goord, 992 F. Supp. 604, 626 (S.D.N.Y. 1998). Thus,"[e]xposure to secondhand smoke can give rise to an Eighth Amendment violation." Jones v. Goord, 435 F. Supp. 2d at 249 (citation omitted). Of course, "[a]s with all claims relating to conditions of confinement, an Eighth Amendment claim based on exposure to secondhand smoke must show that the exposure created an 'unreasonable risk of serious damage' to inmates' future health, and that prison officials were deliberately indifferent to that risk." Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).

We will address the 60 days Koehl spent in a double cell in October through December 2008 separately from Koehl's general claim that his exposure to ETS at Green Haven constituted a violation of the Eighth Amendment. Koehl alleges that in October 2008, Ercole assigned him to a double bunk cell in which two out of three of his cell mates "were chain smokers, who smoked all day and night in the cell." See Am. Compl. at 10 ¶ 3. With regard to this 60 day assignment, Koehl has alleged facts from which it could be inferred that his exposure to secondhand smoke created an unreasonable risk of serious danger to his health and that defendant Ercole was deliberately indifferent to this risk. Koehl alleges that following his transfer to Green Haven he has had difficulty breathing, his lung disease has progressively worsened, his "heart valves [have] started leaking," and his "fingernails have turned yellow." Pl. Mem. at 8-9, 12, 15. Thus, Koehl has satisfied the objective prong of the Eighth Amendment analysis.

Liberally reading the complaint, Koehl also alleges that he complained about both the conditions in the cell and the impact of these conditions on his lung disease to Ercole and Cunningham in person and in writing and that they refused to enforce the smoking ban and ignored his complaints. See Am. Compl. at 10 ¶ 3; id. at 12-13 ¶ 10. Koehl alleges that it was defendant Ercole who assigned him to this cell and that Ercole "deliberately and repeatedly falsified records" and ordered Koehl's counselor to demand that Koehl sign a waiver so that he would remain in the double bunk cell. Id. at 10 ¶ 3. Thus, Koehl's allegations are sufficient to allow the conclusion that Ercole was aware of the risk Koehl faced and that he deliberately disregarded this risk. See Farmer, 511 U.S. at 847 (deliberate indifference exists where an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it"); Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995) (finding deliberate indifference alleged where the complaint portrayed the prison officials as "consistently unwilling to enforce the smoking ban in [plaintiff's] room and repeatedly unresponsive to any of [plaintiff's] requests and protests"). Accordingly, Koehl has stated a claim that his 60 day assignment by Ercole to double bunk in a cell with "chain smokers" constituted cruel and unusual punishment.

As to defendant Cunningham, Koehl has not alleged that he was personally involved in the alleged deprivation of his Eighth Amendment rights with regard to this 60 day cell assignment. Here, Koehl alleges that it was Ercole who assigned him to this cell, and that Cunningham merely disregarded his complaints, Am. Compl. at 10 ¶ 3, and refused to allow an investigative report into Koehl's medical concerns with regard to his cell assignments, see Pl. Mem. at 19. Because "it is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations," Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y. Apr. 19, 1995), Koehl has failed to allege that Cunningham had any personal involvement in his exposure to ETS.

In addition, Koehl does not state an Eighth Amendment claim with regard to his general allegation that defendants Fischer, Ercole, Lee, Cunningham, and Dr. Bernstein refused to enforce the New York ban on smoking in prisons. See Am. Compl. at 13 ¶ 10. Koehl has failed to allege facts from which it could be inferred that defendants Fischer, Lee, Cunningham, and Bernstein were at any time deliberately indifferent to the risk created by Koehl's alleged exposure to secondhand smoke, or that Ercole was deliberately indifferent other than with regard to the 60 days Koehl spent in a double bunk cell with "chain smokers" in October through December 2008. While Koehl makes the broad allegation that Fischer, Ercole, Lee, Cunningham, and Bernstein "callously and deliberately refused to enforce the state's indoor smoking ban," id., this statement is conclusory and unsupported by any allegations regarding either the objective harm to Koehl (outside of the 60 days he spent with the "chain smokers") or these defendants' subjective knowledge of the harm it was causing to Koehl. The complaint's reference to Bernstein's refusal to administer a "cotinine level test," and Ercole, Lee, and Cunningham's failure to install carbon monoxide detectors, Am. Compl. at 12 ¶ 10, does not show deliberate indifference to Koehl's health.

Notably, "[w]hether a prison has a non-smoking policy bears heavily on the question of deliberate indifference," Enigwe v. Zenk, 2007 WL 2713849, at *6 (E.D.N.Y. Sept. 14, 2007) (citing Helling, 509 U.S. at 36), and "imperfect enforcement of the policy alone may not support a finding of deliberate indifference," Enigwe, 2007 WL 2713849, at *6 (citing Scott v. District of Columbia, 139 F.3d 940, 942-43, 944 (D.C. Cir. 1998) (dismissing claims where inmates alleged smoking in housing units but failed to present any evidence in support of claims)). As noted in the exhibits provided by Koehl, attached to his memorandum in opposition, Green Haven policy prohibits smoking in all buildings, and permits it only in restricted outdoor areas. See Green Haven Correctional Facility Complaint Investigation, dated May 28, 2009 (annexed as Ex. 23 to Verified Exhibits (annexed to Pl. Mem.) ("Verified Exs.")) ("May 2009 Compl. Invest.") at 1-2. Additionally, these exhibits demonstrate that Green Haven personnel, including defendants Cunningham and Lee, personally investigated Koehl's complaints regarding indoor smoking. See id. at 1; Emails from Lee and Devine, dated Mar. 2010 (annexed as Ex. 24 to Verified Exs.) ("Lee Emails") at 2-3. For example, Cunningham was present at the investigation of Koehl's May 6, 2009 complaint and he issued a memo to all Green Haven staff on June 10, 2009, regarding the facility's smoking policy. See May 2009 Compl. Invest. at 1; Lee Emails at 2. When Lee became aware of Koehl's complaints and the subsequent report, he issued memos to both staff and inmates regarding the smoking ban and he "directed that security supervisors ensure that staff are enforcing the prohibition." Lee Emails at 2. Thus, while Koehl alleges that the non-smoking policy was not enforced and that defendants were deliberately indifferent to smoking by prisoners, the exhibits provided by Koehl show that at least some efforts were taken to enforce the ban.

2. Cell Transfers and Assignments

Koehl claims that the conditions he endured while he was being transferred between cells constituted cruel and unusual punishment because he was forced to carry his belongings from cell to cell which "aggravated [his] previously complained of [medical] conditions." Am. Compl. at 10 ¶ 2; id. at 14 ¶ 14. He alleges that his assignment to non-first floor cells, double bunk cells, and a cell which contained "air-borne, lead paint rust dust" constituted a violation of the Eighth Amendment. Id.

However, other than Koehl's allegations regarding the 60 days he spent in a double bunk cell with smokers, discussed above, Koehl fails to allege facts from which it could be inferred that his specific cell assignments or physical transfer between cells constituted a violation of the Eighth Amendment. Koehl alleges that when he first arrived at Green Haven - before Ercole assigned him to spend 60 days in a double bunk cell with "chain smokers" - Ercole assigned him to a double bunk cell on the third floor of the facility. See Am. Compl. at 10 ¶ 2. Beyond the conclusory allegation that Ercole "callously and deliberately assigned" him to this cell, id., Koehl alleges no facts from which it could be inferred that Ercole was deliberately indifferent to the risk this assignment allegedly caused Koehl. Koehl does not allege that he made Ercole aware of his medical conditions or that Ercole otherwise knew about them. See Farmer, 511 U.S. at 847 (deliberate indifference exists where an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it"). Thus, Koehl alleges no facts from which it could be inferred that Ercole knew that Koehl faced a substantial risk of serious harm with regard to this cell assignment.

Other than the cell assignments discussed in paragraphs 2 and 3 of the complaint, Koehl does not allege facts from which it could be inferred that defendant Ercole was personally involved in his cell assignments or transfers. Nor does Koehl allege that defendants Cunningham or Lee were personally involved in his assignments and transfers. He merely states that Cunningham, Ercole, and Lee "physically harmed [him] and deliberately ignored medical orders." Am. Compl. ¶ 14(a). This broad statement cannot, however, support a deliberate indifference claim and Koehl does not allege any facts supporting the inference that these defendants were involved in the cell assignments and transfers discussed in paragraph 14 of the amended complaint. See Iqbal, 129 S. Ct. at 1949 (federal pleading standard requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," and a pleading fails if it "offers labels and conclusions" or "tenders naked assertion[s] devoid of further factual enhancement") (internal quotation marks and citations omitted); Joseph v. Fischer, 2009 WL 3805590, at *2 (W.D.N.Y. Nov. 6, 2009) ("conclusory allegations that defendants ha[d] 'personal knowledge' of the events complained of" was insufficient to allege personal involvement). Thus, Koehl's Eighth Amendment claim regarding cell assignments and transfers cannot be sustained on this ground.

Koehl's claim that he was under threat of transfer if he did not agree to double bunking, see Am. Compl. at 10 ¶ 3, should be dismissed because threats alone do not deprive a plaintiff of any constitutional rights. See Lamar v. Steele, 698 F.2d 1286, 1286 (5th Cir.) (per curiam), cert. denied, 464 U.S. 821 (1983); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (threats to deter prisoner from "pursuing legal redress" insufficient to state a claim under § 1983 unless the prisoner was actually deprived access to the court) (internal quotation marks omitted); Grant v. Fernandez, 1997 WL 118257, at *2 (N.D. Cal. Mar. 5, 1997) ("[O]nly harassment and threats coupled with conduct implicating the Eighth Amendment's proscription against cruel and unusual punishment . . . may present a claim under § 1983.") (citation omitted).

3. Weather Appropriate Clothing

Koehl claims that Fischer, Ercole, and Lee denied him appropriate clothing for outside recreation in violation of the Eighth Amendment. See Am. Compl. at 14 ¶ 13. Koehl alleges that "most of the winter [he] cannot go outside for recreation without endangering [his] life." Id. Prison officials "may be held liable . . . for failure to provide adequate clothing, if (1) the inadequacy is 'sufficiently serious' and (2) the official's failure is the result of his 'sufficiently culpable state of mind' - i.e., his 'deliberate indifference' to the inmate's health." Shaffer v. Coombe, 1995 WL 495067, at *1 (W.D.N.Y. Aug. 10, 1995) (quoting Farmer, 511 U.S. at 833). "Deliberate indifference to an inmate's health equates to 'recklessly disregarding' a risk to such, and the recklessness vel non of the official is judged subjectively." Shaffer, 1995 WL 495067, at *1 (quoting Farmer, 511 U.S. at 835, 839). We note that this is not a case where Koehl alleges he was confined to a cold cell without the minimal clothing necessary to keep warm. See, e.g., Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (claim allowed where prisoner had been deliberately exposed to bitter cold in his cell block for three months).

First, this claim cannot survive in light of the fact that Koehl had a mechanism to stay warm in winter by staying indoors; any time he chose to spend outdoors in the cold was not prolonged, and no substantial harm has been alleged. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 358 (N.D.N.Y. 2010) (no Eighth Amendment violation where prisoner was "on many occasions" exposed to "below zero weather for an hour at a time during recreation period") (internal quotation marks and citation omitted); Davis v. Buffardi, 2005 WL 1174088, at *2 (N.D.N.Y. May 4, 2005) (denying claim under Fourteenth Amendment where pretrial detainees failed to submit any evidence that "the temperature in [the prison] was so cold that Plaintiffs experienced substantial harm"); Brown v. McElroy, 160 F. Supp. 2d 699, 706 (S.D.N.Y. 2001) (where prisoner alleged his cell was "extremely cold" and guard would not allow him to enter the hallway for warmth even when prisoner complained about being sick from the low temperatures, claim was dismissed because allegations were "not sufficiently serious" and prisoner could "get warm with some blankets").

In addition, the claim fails because Koehl makes only a conclusory allegation that Fischer, Ercole, and Lee "created and enforced unconstitutional customs and policies that . . . continually denied [him] adequate clothing for the weather." Pl. Mem. at 28. While personal involvement of a supervisor may be established by showing that he created a policy or custom under which the violation occurred, Back, 365 F.3d at 127 (citing Colon, 58 F.3d at 873), conclusory allegations that a defendant was involved in the creation and enforcement of unconstitutional policies cannot sustain a claim of personal involvement. See, e.g., Green v. Wright, 2010 WL 3474973, at *2 (W.D.N.Y. Sept. 1, 2010) ("Here, the Court is concerned about the conclusory nature of plaintiff's assertion that defendant was personally involved in his treatment. . . . Without at least some kind of factual assertion about an unconstitutional policy, not even the liberal standards for assessing pro se pleadings can save plaintiff's claim in its current form."); Joseph v. Fischer, 2009 WL 3805590, at *2 (W.D.N.Y. Nov. 6, 2009) ("conclusory allegations that defendants ha[d] 'personal knowledge' of the events complained of" was insufficient to allege personal involvement); Davis v. City of New York, 2000 WL 1877045, at *9 (S.D.N.Y. Dec. 27, 2000) (merely asserting that "[defendant] was actively involved in" an incident is conclusory and insufficient to establish defendant's personal involvement in the allegedly unconstitutional custom or policy) (internal quotation marks and citations omitted); Funches v. Reish, 1998 WL 695904, at *4-5 (S.D.N.Y. Oct. 5, 1998) (dismissing deliberate indifference to medical care claim against warden of prison facility based upon conclusory allegation that warden created "custom" of denying medical care); Reid v. Artuz, 984 F. Supp. 191, 195 (S.D.N.Y. 1997) (dismissing an asthmatic prisoner's section 1983 claim against a supervisory official when the plaintiff "fail[ed] to allege, let alone establish, any factual basis upon which a fact finder could reasonably conclude personal involvement by the supervisory official defendant . . . [-] that [defendant] created or continued a policy or custom which allowed the violation to occur"); Shaffer, 1995 WL 495067, at *1 (to satisfy the "deliberate indifference" prong of the Eighth Amendment analysis, "there must be allegations that at least suggest that the defendants were aware of the harm the plaintiff alleges") (citing Farmer, 511 U.S. 841). Here, Koehl has failed to allege with the requisite specificity that these supervisory defendants had any personal involvement in the alleged constitutional deprivations. Other than the conclusory statement of their involvement in the unconstitutional policy, Koehl makes no further allegations against them with regard to this claim. Thus, absent from the complaint are any facts suggesting that these defendants knew of, let alone approved, any alleged misconduct with regard to Koehl's clothing. See Iqbal, 129 S. Ct. at 1949 (federal pleading standard requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," and a pleading fails if it "offers labels and conclusions" or "tenders naked assertion[s] devoid of further factual enhancement") (internal quotation marks and citations omitted). Accordingly, this claim should be dismissed.

4. Medical Treatment

To establish a violation of the Eighth Amendment arising out of inadequate medical treatment, a prisoner is required to prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The deliberate indifference standard consists of both a subjective prong and an objective prong. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995). Under the subjective component, the prisoner must show that the defendant officials acted with a "sufficiently culpable state of mind" in depriving the prisoner of adequate medical treatment. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). The "subjective element of deliberate indifference 'entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Id. (quoting Farmer, 511 U.S. at 835) (alterations in original); see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (likening the necessary state of mind to "the equivalent of criminal recklessness") (internal quotation marks and citation omitted), cert. denied, 543 U.S. 1093 (2005); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam) (same). In order to be found "sufficiently culpable," the official must "know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 834, 837 (internal quotation marks and citation omitted); accord Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). As already noted, "negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

Under the objective prong, the alleged medical need must be "sufficiently serious." Hathaway, 37 F.3d at 66 (internal quotation marks and citations omitted). A "sufficiently serious" medical need is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. (internal quotation marks and citation omitted). "Factors that have been considered include '[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citations omitted) (alteration in original).

a. Dental Care

With respect to Koehl's claim that he has been denied denture adhesive or an implant, see Am. Compl. at 13-14 ¶ 12, defendants argue that the claim should be dismissed because the fact that a prisoner may prefer a different course of medical treatment does not give rise to an Eighth Amendment violation, see Def. Mem. at 18-19 (citing Chance, 143 F.3d at 703; Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)).

In order to state a claim for deliberate indifference under the Eighth Amendment, Koehl "must allege facts indicating that a substantial risk of serious harm would arise from the denial of the requested dental care . . . and that the defendants perceived this risk and chose not to provide the requested treatment." Partee v. Grood, 2007 WL 2164529, at *5 (S.D.N.Y. July 25, 2007), aff'd, 335 F. App'x 85 (2d Cir. 2009). "[I]nsufficient dental treatment may rise to the level of a Constitutional violation if it leads to extreme pain, deterioration of the teeth, and an inability to eat properly." Id. at *5 (citing Chance, 143 F.3d at 703). However, "[s]o long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703 (citing Dean, 804 F.2d at 215).

Assuming arguendo that Koehl has alleged facts indicating that a substantial risk of harm arose from his lack of dental care, he has failed to allege that either Fischer or Wright were personally involved in the deprivation of treatment. See Am. Compl. at 12-13 ¶ 12; Def. Reply at 2-3. Koehl merely alleges that he was denied dental care pursuant to "Fischer and Wright's policies and customs," Am. Compl. at 13 ¶ 12. Koehl does not, however, allege what these policies are. Nor are there allegations from which it could be inferred that either Fischer or Wright knew of, let alone were involved in, the failure to provide him with dental adhesives or implants. As already noted, conclusory allegations that a defendant was involved in the creation and enforcement of unconstitutional policies cannot sustain a claim of personal involvement. See Joseph, 2009 WL 3805590, at *2 ("Plaintiff's complaint contains many conclusory allegations and, therefore, it is not possible to determine if there is personal involvement for each defendant. . . . Plaintiff needs to describe the events in sufficient detail to allow for a determination of defendants' personal involvement in the alleged incidents.").

b. Cervical Spine and Back Injuries

With respect to Koehl's claim regarding the medical treatment he received for his back, defendants argue that Koehl has failed to allege the subjective component of a deliberate indifference claim. See Def. Mem. at 19.

Turning first to the conduct of Dr. Weinstein, Koehl has not alleged facts giving rise to the inference that Dr. Weinstein acted with a "sufficiently culpable state of mind." Koehl alleges that in late 2008, Weinstein conducted an EMG, which Koehl believed contradicted the results of a previous EMG. See Am. Compl. at 10 ¶ 4. After Koehl called Dr. Weinstein "a liar," Dr. Weinstein agreed to order an MRI. Id. Koehl also alleges that in late 2009, Dr. Weinstein conducted another EMG "and stated that nothing was wrong." See id. at 11 ¶ 7. Koehl states that "[l]ater testing revealed that [Dr.] Weinstein's report and conclusions were knowingly false." Id. Apart from the conclusory allegation that Dr. Weinstein's conclusions were "knowingly" false, these allegations do not support the claim that Dr. Weinstein was deliberately indifferent to Koehl's medical problems. Instead, they constitute allegations that Dr. Weinstein did not give Koehl's condition proper treatment - allegations that are insufficient to show a constitutional violation. See Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) ("a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation"); Troy v. Kuhlmann, 1999 WL 825622, at *6 (S.D.N.Y. Oct. 15, 1999)( "[A] prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim.") (citation omitted).

With regard to Fischer and Drs. Wright and Bernstein, however, Koehl has alleged facts creating the inference that these defendants acted with a "sufficiently culpable state of mind," thus satisfying the subjective prong of the deliberate indifference analysis. While defendants argue that Koehl's medical care was "attentive" and that Koehl's claims against Fischer and Drs. Wright and Bernstein regarding his denial of proper diagnostic testing "lack[] merit in light of the extensive testing plaintiff received," Def. Mem. at 20, Koehl specifically alleges that, "as a cost saving measure," Fischer and Drs. Wright and Bernstein "callously and deliberately ignored the orders of the neurosurgeons" by canceling Koehl's MRI, changing the type of x-rays ordered, and refusing to order Koehl a new neck brace, Am. Compl. at 11-12 ¶¶ 7, 8. He states that despite his complaints of "extreme pain and weakness in [his] arms, hands, legs, neck and back," Fischer and Dr. Wright repeatedly denied Koehl proper testing for his medical condition. Id. at 10-11 ¶ 4. Koehl also alleges that Dr. Bernstein deliberately scheduled Koehl's MRI on the date when Koehl's parents were visiting so that he could later claim that Koehl had refused treatment. See id. at 11 ¶ 5. The Second Circuit has held that the "allegation of ulterior motives, if proven true, would show that the defendants had a culpable state of mind and that their choice of treatment was intentionally wrong and did not derive from sound medical judgment." Chance, 143 F.3d at 704. Because Koehl has alleged ulterior motives, including monetary incentives, on the part of Fischer and Drs. Wright and Bernstein, he has alleged facts that create the inference that these defendants had a sufficiently culpable state of mind.

Defendants argue that because Fischer is not a doctor and was not involved in Koehl's medical treatment, that he was entitled to rely on the treatment of medical staff. See Def. Reply at 4-5 (citing Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000)). This argument fails, however, because Koehl does not merely allege that Fischer deferred to the treatment articulated by Koehl's doctors. Instead, he alleges that Fischer directly interfered with Koehl's treatment "as a cost saving measure." Am. Compl. at 11-12 ¶¶ 7, 8.

Defendants also argue that the claims against Dr. Bernstein should be dismissed because they are, "at most, negligence claims." Def. Mem. at 20. While it is true that "negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim," Chance, 143 F.3d at 703 (citing Estelle, 429 U.S. at 105-06), "[i]n certain instances, a physician may be deliberately indifferent if he or she consciously chooses 'an easier and less efficacious' treatment plan," Chance, 143 F.3d at 703 (citing Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) ("choice of an easier but less efficacious course of treatment can constitute deliberate indifference"); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Here, Koehl claims Dr. Bernstein ignored the orders of his doctors not on the basis of his own medical view, but because of monetary incentives, and that he deliberately interfered with Koehl's treatment in order to make it appear as though Koehl had refused treatment. Accordingly, Koehl has alleged that Dr. Bernstein was more than merely negligent.

c. Lung Disease

Koehl alleges that his "chronic and life threatening lung diseases have grown progressively worse" because of his exposure to ETS and that defendants have denied him proper medical treatment for his worsening condition. See Am. Compl. at 12-13 ¶¶ 10-11. Specifically, Koehl states that Dr. Bernstein refused to administer a "cotinine level test," that "Ercole, Lee and Cunningham denied the installation of detectors," id. at 12 ¶ 10, and that Fischer and Drs. Bernstein and Wright denied him access to a pulmonary specialist, id. at 13 ¶ 11. He states that he complained both verbally and in writing to Dr. Fein, Dr. Bernstein, Cunningham, Ercole, and Lee regarding his medical problems, but that his complaints were "ignored and/or brushed under the rug." Id. at 12 ¶ 10.

These allegations are insufficient because the complaint does not allege facts satisfying the subjective prong of the deliberate indifference analysis. Koehl has not alleged facts showing that these defendants consciously disregarded a risk of serious harm. Nor does Koehl state that defendants had an ulterior motive for their actions. See Am. Compl. at 12-13 ¶¶ 10-11. While Koehl alleges that he should have been allowed to see a pulmonary specialist, id. at 13 ¶ 11, he also alleges that he was given multiple CT scans and a pulmonary function analysis, id. And in the exhibits attached to Koehl's opposition memorandum, he includes a letter from Dr. Hosannah, a cardiothoracic surgeon at Albany Medical Center, stating that on January 29, 2008, Koehl "underwent a successful bronchoscopy and mediastinoscopy." Letter from Dr. Hosannah to Dr. Weissman, dated Apr. 9, 2008 (annexed as Ex. 15 to Verified Exs.). Thus, while Koehl alleges he was "denied proper testing," Am. Compl. at 13 ¶ 11, the complaint and attached papers cannot plausibly be read to suggest that Koehl was not examined, treated, or administered medically-indicated tests for his lung disease - situations that case law has found to constitute deliberate indifference. See, e.g., Abraham v. DiGugleilmo, 2010 WL 2136600, at *9 (E.D. Pa. May 25, 2010) (doctor's "decision to prescribe antibiotics without examining plaintiff or administering tests to confirm the diagnosis" was found to constitute deliberate indifference); see also Verley v. Goord, 2004 WL 526740, at *13 (S.D.N.Y. Jan. 23, 2004) ("Because, in his Complaint, [plaintiff] alleged no facts indicating that [the doctor] purposely failed to treat his medical condition or that the diagnosis was contrary to accepted medical standards, [plaintiff's] allegations of a failure to diagnose and treat his back ailment, as stated in the Complaint, are insufficient to state a claim."). The mere allegation that Koehl had a painful lung disease that was not alleviated by treatment does not by itself reflect that the defendants acted with deliberate indifference, inasmuch as "there exist many medical conditions that do not respond to treatment." Bryant v. Wright, 2010 WL 3629443, at *9 (S.D.N.Y. Aug. 31, 2010), adopted by 2010 WL 3629426 (S.D.N.Y. Sept. 15, 2010).

E. Qualified Immunity

The doctrine of qualified immunity precludes civil liability where prison officials performing discretionary functions "did not violate clearly established law," or where "it was objectively reasonable for the defendant[s] to believe that [their] action[s] did not violate such law." Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (internal quotation marks and citation omitted); accord Ford v. McGinnis, 352 F.3d 582, 596 (2d Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (qualified immunity ensures that defendants have "fair notice" that their conduct is unlawful before being exposed to liability and that "[f]or a constitutional right to be clearly established, its contours 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right'") (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (additional citations omitted). A qualified immunity defense may be asserted as part of a motion under Fed. R. Civ. P. 12(b)(6) if it is based on facts appearing on the face of the complaint, though defendants asserting the defense at this stage face a "formidable hurdle." McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004).

While defendants' memorandum of law contains a brief section asserting that the doctrine of qualified immunity shields defendants from liability, they argue the applicability of the qualified immunity defense only in the vaguest and most general terms. See Def. Mem. at 21-23. Significantly, they do not discuss any of the substantive constitutional rights raised, do not provide any explanation as to what specific right was not "clearly established," and do not discuss why defendants would have been reasonable in believing that their alleged conduct was constitutional for any of Koehl's specific claims. Accordingly, there is no basis on which to conclude that the defendants against which Koehl has sufficiently alleged constitutional claims are entitled to qualified immunity.

IV. CONCLUSION

For the foregoing reasons, defendants' motion to dismiss (Docket # 25) should be granted in part and denied in part. Specifically, the following claims should be dismissed: (1) all claims against the State of New York for damages and against the defendants brought in their official capacities; (2) Fourteenth Amendment Due Process claims against Brennan, Fischer, and Hilliar based on disciplinary proceedings; (3) First Amendment retaliation claims (a) against Evans, Edwards, Herman, and Tracy with regard to Koehl's executive clemency application, and (b) against Fischer and Brennan with regard to the tier III misbehavior report and against Sawyer with regard to the tier II misbehavior report; (4) Eighth Amendment claims (a) against Cunningham for his involvement in Koehl's 60 day assignment to a cell with "chain smokers," (b) against Fischer, Ercole, Lee, Cunningham, and Dr. Bernstein for their failure to enforce the New York ban on smoking in prisons, (c) against Ercole, Cunningham, and Lee with regard to Koehl's cell assignments and transfers generally, (d) against Fischer, Ercole, and Lee for their failure to provide Koehl with weather appropriate clothing, (e) against Fischer and Wright for their failure to provide Koehl with dental care, (f) against Dr. Weinstein for his failure to treat Koehl's cervical spine and back injuries, and (g) against Dr. Bernstein, Dr. Fein, Dr. Wright, Ercole, Lee, Cunningham, and Fischer for their failure to treat Koehl's lung disease.

Thus, the following claims remain: (1) Fourteenth Amendment Due Process claims against Harvey, Sawyer, and Russo based on disciplinary proceedings; (2) First Amendment retaliation claims (a) against Cunningham with regard to Koehl's facility transfer, (b) against Cunningham with regard to Koehl's executive clemency application, and (c) against Russo and Harvey with regard to Koehl's tier III misbehavior report and against Hilliar with regard to the tier II misbehavior report; (3) Eighth Amendment claims (a) against Ercole for his involvement in Koehl's 60 day assignment to a cell with "chain smokers," and (b) against Fischer, Dr. Wright, and Dr. Bernstein for their failure to treat Koehl's cervical spine and back injuries

PROCEDURE FOR FILING OBJECTIONS TO THIS

REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Sidney H. Stein, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Stein. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: June 17, 2011

New York, New York

/s/_________

GABRIEL W. GORENSTEIN

United States Magistrate Judge Copies to: Edward Koehl
94-A-2890
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582 Wesley E. Bauman
Assistant Attorney General
120 Broadway
New York, New York 10271-0332