Opinion
Civil Action No. 9:15-CV-0777 (GLS/DEP)
03-12-2019
ARRELLO BARNES, Plaintiff, v. ANTHONY ANNUCCI, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ARRELLO BARNES, Pro Se 00-A-0597 Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 FOR DEFENDANTS: HON. LETITIA JAMES New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ARRELLO BARNES, Pro Se
00-A-0597
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902 FOR DEFENDANTS: HON. LETITIA JAMES
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
ORDER, REPORT, AND RECOMMENDATION
This is a civil rights action brought by plaintiff Arrello Barnes, who is proceeding pro se and in forma pauperis ("IFP"), pursuant to 42 U.S.C. § 1983, against several individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff alleges that his First and Fourteenth Amendments rights were violated in connection with a series of incidents that resulted in disciplinary proceedings being brought against him while he was incarcerated at four different correctional facilities operated by the DOCCS.
Currently pending before the court are cross motions brought by the parties, both seeking the entry of summary judgment in their favor. For the reasons set forth below, I recommend that plaintiff's cross motion be denied, defendants' motion be granted, and plaintiff's second amended complaint ("SAC") be dismissed in its entirety. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Because the parties have filed cross motions for summary judgment, the court draws "all factual inferences . . . 'against the party whose motion is under consideration.' " Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 283-84 (2d Cir. 2005) (quoting Boy Scouts of Am. v. Wyman, 335 F.3d 80, 88 (2d Cir. 2003)) (internal quotation marks omitted).
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 72; see also Dkt. No. 97-4 at 6. Although he is presently confined in the Elmira Correctional Facility ("Elmira"), the events giving rise to this suit transpired at various points between 2011 and 2015, while plaintiff was held in the Sullivan Correctional Facility ("Sullivan"), the Attica Correctional Facility ("Attica"), the Clinton Correctional Facility ("Clinton"), and the Great Meadow Correctional Facility ("Great Meadow"). See generally Dkt. No. 72. Each of the discrete incidents that give rise to this suit is more fully described below.
A. The 2011 Assault and the 2012 Tier III Disciplinary Hearing
On August 8, 2011, plaintiff's fellow inmate at Sullivan, George Mims, was assaulted with a razor while he was exercising in the West Yard of that facility. Dkt No. 97-3 at 65; Dkt. No. 97-4 at 15. As a result of the incident, plaintiff was issued an inmate misbehavior report ("MBR") on August 10, 2011 charging him with violating certain inmate behavior rules. Dkt. No. 97-3 at 52; Dkt. No. 102-5 at 3; see generally 7 N.Y.C.R.R. § 270.2. Plaintiff has denied any role in the assault, asserting that he was working in a different area of the facility at the time the assault occurred. Dkt. No. 97-3 at 234 ("[W]hen this took place[,] I was at work").
Plaintiff was initially found guilty following a disciplinary hearing held on October 25, 2011 at Sullivan. Dkt. No. 97-3 at 58. That determination was ultimately revisited as a result of a court challenge, and a new hearing was ordered to address the charges associated with the stabbing of inmate Mims. Dkt. No. 97-3 at 58-59.
Following the administrative expungement, a second hearing was conducted by defendant Raymond Coveny, a corrections captain, in August and September of 2012, while plaintiff was confined to Attica. Dkt. No. 97-3 at 231-92; Dkt. No. 97-9. In his SAC and his cross motion for summary judgment, plaintiff alleges that although he requested that Officer Connors, Officer Zarrias, and inmate Mims be called as witnesses at the second hearing, defendant Coveny denied each of those requests. Dkt. No. 72 at 9; Dkt No. 102-1 at 1; Dkt. No. 102-3 at 1. According to plaintiff,
[defendant] Coveny told me 'I will not call officers to
testify so they can contradict other officers' after [I] requested two [corrections officers] witnesses. He also refused George Mims to be a witness.Dkt. No. 102-1 at 1; but see Dkt. No. Dkt. No. 97-3 at 280, Dkt. No. 102-5 at 4.
Plaintiff appears to be referring to following statement made by defendant Coveny during the course of the second hearing:
[O]kay, I am not missing your point and the point was made and I understand[.] [H]owever[,] I reviewed the video with the assistance [of] Lieutenant Maxwell and I am of the opinion that the person I saw in the video is you[.] Lieutenant Maxwell has testified that the person in the video is you[.] . . . [S]o to have a staff member come and state that you[] weren't in the yard [when] I already have a staff member that [says] that you were[,] and I personally as the hearing officer have viewed the video and I am convinced that it is you that is in the video . . . . [they're] going to be denied [as] witnesses.Dkt. No. 97-3 at 280; Dkt. No. 102-5 at 4.
The documentary evidence adduced by the parties reflects that although inmate Mims provided testimony at plaintiff's original disciplinary hearing, see Dkt. No. 97-4 at 23, he refused to testify at the second hearing. Dkt. No. 97-3 at 69. When inmate Mims was asked to specify why he refused to testify, he stated, "[b]ecause I am not doing it." Id.; Dkt. No. 97-3 at 240-41; see also Dkt. No. 102-5 at 5. With respect to Officer Connors, when he was contacted, he indicated that he was not working on the date of the assault, and as a result, defendant Coveny denied plaintiff's request for his testimony as irrelevant. Dkt. No. 97-3 at 279; see also Dkt. No. 97-3 at 61. Despite plaintiff's allegation to the contrary, there is no indication in the record that plaintiff sought the testimony of Officer Zarrias at the second hearing. See generally Dkt. No. 97-3 at 231-92.
It appears that plaintiff may be conflating the witness requests made in connection with his initial disciplinary hearing with the witness requests made in connection with his second hearing. See Dkt. No. 97-4 at 17.
On September 6, 2012, defendant Coveny dismissed one charge, but found plaintiff guilty of all remaining charges. Dkt. No. 97-3 at 49-50, 290-91. As a result, plaintiff was sentenced to two years of disciplinary special housing unit ("SHU") confinement, coupled with the corresponding loss of certain privileges. Dkt. No. 97-3 at 49.
B. The 2013 "Return to Sender" Letter and the Tier III Disciplinary Hearing
On January 24, 2013, a letter written by plaintiff to a female friend was returned to the mailroom at Attica, with the envelope having been marked "return to sender." Dkt. No. 97-7 at 2; see also Dkt. No. 97-3 at 101. Because "return to sender" mail is frequently used by gang members as a method to communicate within the facility and circumvent scrutiny, the letter was confiscated by prison personnel, who then asked defendant Anthony Olles, a corrections officer and member of the Crisis Intervention Unit ("CIU") at Attica, to review the correspondence to determine whether it contained prohibited gang material. Dkt. No. 97-7 at 1-3. Based upon his training and experience, defendant Olles determined that the "return to sender" letter contained gang codes associated with the Hunta Bloods, a subset of the larger Bloods gang, and issued plaintiff an MBR charging him with violating Rule 105.13. Dkt. No. 97-3 at 100-08; Dkt. No. 97-7 at 3.
Rule 105.13 is part of Rule Series 105, which addresses an inmate's "Unauthorized Assembly or Activity." 7 N.Y.C.R.R. § 270.2(B)(6). Rule 105.13 provides that "[a]n inmate shall not engage in or encourage others to engage in gang activities or meetings, or display, wear, possess, distribute or use gang insignia or materials including, but not limited to, printed or handwritten gang or gang related material." 7 N.Y.C.R.R. § 270.2(B)(6).
On January 29 and 30, 2013, a Tier III disciplinary hearing was held before defendant John Whiteford, a senior corrections counselor at Attica. Dkt. No. 97-3 at 293-303; Dkt. No. 97-10 at 1-2. During the hearing, plaintiff requested the testimony of Officer Eric Kentzel, whom plaintiff indicated would testify that plaintiff "did[ not] write that letter" and that "another inmate . . . [was] throwing [plaintiff's] name" on correspondence. Dkt. No. 97-3 at 295-99, 301-02; Dkt No. 97-4 at 39, 44-45; Dkt. No. 97-10 at 2. Defendant Whiteford denied plaintiff's request, however, because there was no indication that Officer Kentzel had knowledge or information regarding the specific letter that led to the issuance of the MBR. Dkt. No. 97-4 at 46 ("Irrelevancy, I believe."); Dkt. No. 97-10 at 2-3; Dkt. No. 102-1 at 1; Dkt. No. 102-3 at 1; see also Dkt. No. 72 at 10.
Plaintiff continues to assert in his cross-motion that defendant Whiteford violated his procedural due process rights because he was biased during the hearing. However, that claim was previously dismissed by the court, and it was not re-asserted in plaintiff's SAC. Dkt. No. 70 at 33 ("[D]efendant [Whiteford's] statement did nothing more than advise plaintiff that, if evidence was presented on the record that plaintiff violated rule 105.13, he would be found guilty."); see also Dkt. Nos. 72, 75.
The precise spelling of this officer's name is not clear from the record before the court. See, e.g., Dkt. No. 97-1 at 4 ("Kenzel" and "Kinzel"); Dkt. No. 97-4 at 39 ("Kintzel); Dkt. No. 97-10 at 2("Kentzel").
At the conclusion of the hearing, defendant Whiteford found plaintiff guilty as charged, and plaintiff was sentenced to one year of disciplinary SHU confinement, coupled with the loss of certain privileges. Dkt. No. 97-3 at 86; see also Dkt. No. 97-3 at 299-304.
C. The 2015 Conspiracy, Gang Material, Grievance, and the Tier III Disciplinary Hearing
On January 29, 2015, members of the CIU at Clinton received confidential information that inmate gang members, including plaintiff, were conspiring to assault security staff at the facility. Dkt. No. 97-8 at 1-2. As a result of an investigation into the matter, Corrections Officer J. Hanson ("C.O. Hanson") issued plaintiff an MBR charging him with violating multiple inmate behavior rules including, inter alia, gang activity and threats on staff. Dkt. No. 97-3 at 116; see generally 7 N.Y.C.R.R. § 270.2.
After plaintiff was removed from his cell, defendant Richard J. Mahuta, a corrections officer assigned to the CIU, and another officer conducted a cell search. Dkt. No. 97-3 at 117; Dkt. No. 97-8 at 1-2. In his SAC, plaintiff accused defendant Mahuta of confiscating and discarding three of his religious head coverings. Dkt. No. 72 at 11-12. According to defendant Mahuta, during the course of that cell search, he did not remove or throw away any religious head coverings from plaintiff's cell. Dkt. No. 97-8 at 3. Plaintiff counters by alleging that two other inmates overheard defendant Mahuta state, "[i]sn't [plaintiff] a Blood? What is he doing with kufis?" prior to disposing of those head coverings. Dkt. No. 72 at 12; Dkt. No. 97-4 at 56-57; compare Dkt. No. 97-8 at 3 with Dkt. No. 102-1 at 2; Dkt. No. 102-5 at 24-25.
A "kufi" is headgear that is associated with the Muslim religion. Nicholas v. Tucker, 89 F. Supp. 2d 475, 477 (S.D.N.Y. 2000).
However, during the cell search, defendant Mahuta discovered three handwritten pages of material that he believed to be prohibited gang material. Dkt. No. 97-8 at 3. Those three pages, along with three Bibles and other materials, were confiscated by defendant Mahuta, who had the materials placed inside a contraband locker for further review at a later time. Dkt. No. 97-8 at 3; Dkt. No. 97-3 at 413-14. Defendant Mahuta ultimately determined that only the three handwritten pages constituted prohibited gang material and issued plaintiff am MBR charging him with possession of that material. Dkt. No. 97-3 at 117.
1. Plaintiff's Tier III Disciplinary Hearing and Appeals
Between February 5, 2015 and February 27, 2015, defendant Kenneth McKeighan, an industrial superintendent at Great Meadow, conducted a Tier III disciplinary hearing with respect to the two MBRs. Dkt. No. 97-5;Dkt. No. 97-6; see also Dkt. No. 97-3 at 116-117. At the hearing, plaintiff requested, inter alia, the testimony of his brother, Exondus Barnes who, plaintiff asserted, would testify that he was the author of the three handwritten pages of material confiscated during the cell search. Dkt. No. 97-5 at 5; Dkt. No. 97-6 at 8, 17-18; see also Dkt. No. 97-3 at 115. Defendant McKeighan denied the request as irrelevant, however, because plaintiff was charged with possession of the materials, and thus the question of authorship was not relevant. Dkt. No. 97-3 at 119; Dkt. No. 97-4 at 66-68; Dkt. No. 97-6 at 33-34; Dkt. No. 97-11 at 3.
Specifically, defendant Mahuta charged plaintiff with violating Rule 105.13 of the standards of inmate behavior. See footnote 5, supra; see also 7 N.Y.C.R.R. § 270.2(B)(6).
At the hearing, plaintiff also requested copies of the "call outs" or "yard go-arounds" for Clinton, contesting that those materials would demonstrate that he was not in the yard with his co-conspirators during the relevant times. Dkt. No. 97-5 at 5-6. Although defendant McKeighan initially reserved decision regarding plaintiff's request, he ultimately denied it after C.O. Hanson testified that no such document existed at Clinton. Dkt. No 97-6 at 4. Nonetheless, defendant McKeighan obtained "program sheets" for the relevant time, Dkt. No. 97-5 at 126-154, and compiled that information into a spreadsheet, which showed that plaintiff and his co-conspirators were in fact together on the evening of January 19, 2015. Dkt. No. 97-5 at 218; see also Dkt. No. 97-6 at 18-19.
January 19, 2015 is a significant date because it is the day after prison officials at Clinton used force against a suspected Bloods gang member. Dkt. No. 97-8 at 2; Dkt. No. 97-11 at 2. Defendants theorize that plaintiff and fellow inmates attempted to plan the assaults on prison staff in retaliation for the use of force. Dkt. No. 97-5 at 36; Dkt. No. 97-11 at 2, 4.
Plaintiff also requested that video footage from Clinton's North Yard be provided at the hearing, arguing that it would show that he was not in the area during the relevant time, thereby undercutting the claims made by the confidential informant. See, e.g., Dkt. No. 97-5 at 6, 11. Defendant McKeighan's denial of that request was two-fold. First, he noted that the video footage simply did not exist inasmuch as by the time the conspiracy had been uncovered, the video footage had been recorded over. Dkt. No. 97-3 at 397; Dkt. No. 97-5 at 6; Dkt. No. 97-6 at 3. Second, he noted that even if footage of the North Yard existed, that footage would have shown only a general view of the North Yard instead of focusing on any particular group of people, and he believed the footage likely would have been "inconclusive." Dkt. No. 97-3 at 397; Dkt. No. 97-6 at 3, 10, 12.
At the conclusion of the hearing, defendant McKeighan found plaintiff guilty as charged. Dkt. No. 97-3 at 110-115. Plaintiff was sentenced to 910 days of disciplinary SHU confinement, coupled with the loss of certain privileges. Dkt. No. 97-3 at 110; see also id. at 114 ("Due to the nature of the entire incident and the fact your actions would have resulted in the injury to the staff and would have likely disrupted the entire facility and DOCCS in general, I have exceeded the recommended confinement guidelines considerably.").
Following the conclusion of the hearing, plaintiff filed a series of appeals challenging defendant McKeighan's determination. Dkt. No. 97-3 at 340-99; see also Dkt. No. 97-12 at 3. On May 12, 2015, defendant Donald Venettozzi, the Director for the DOCCS Special Housing/Inmate Disciplinary Program, affirmed the finding of guilt, but reduced plaintiff's penalty from 910 days to twelve months of disciplinary SHU confinement. Dkt. No. 97-3 at 341-42; Dkt. No. 97-12 at 4.
In addition to addressing one of his appeals to defendant Anthony Annucci, the Acting Commissioner of the DOCCS, see Dkt. No. 97-3 at 344, plaintiff also sent defendant Annucci a letter on April 1, 2015, complaining that his due process rights were violated at the hearing. Dkt. No. 97-3 at 348-49; Dkt. No. 97-13 at 2; see also Dkt. No. 102-1 at 2. Defendant Annucci did not respond to plaintiff's appeal or letter or undertake any investigation as a result of plaintiff's correspondence. Dkt. No. 97-13 at 2.
2. Plaintiff's Grievance
On February 20, 2015, plaintiff filed a grievance in connection with defendant Mahuta's cell search, stating
On 1/29/15, my cell [was] searched by [defendant] Mahuta at [Clinton] . . . , and my letters, Bible, etc. were confiscated for review. After the paper [was] review[ed], I received a misbehavior report for only [three] papers. [T]he Bible, address book, etc., were [not deemed] gang material.Dkt. No. 97-3 at 403 (errors in original); see also Dkt. No. 97-4 at 75. It appears that prison personnel were initially confused with respect to the nature of the relief plaintiff sought, as well as the location of plaintiff's property, because in initially denying plaintiff's grievance, the superintendent stated that "[t]he items in question were deemed to be contraband and as such were properly disposed of." Dkt. No. 97-3 at 404, 442. In his appeal of the grievance determination to the DOCCS Central Office Review Committee ("CORC"), plaintiff explained that he was seeking the return of only those materials that were determined not to constitute gang-related contraband. Dkt. No. 97-3 at 404-05. While plaintiff's appeal was pending before the CORC, the materials that he sought were returned to him, see Dkt. No. 97-3 at 400, 413, 418, 442, although plaintiff has denied ever having received those materials back from prison officials. Dkt. No. 97-4 at 77.
I did not receive[] my documents [back] as of yet.
Action requested: for my papers, bible, etc. to be return[ed] to me.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about June 25, 2015, by the filing of a complaint accompanied by an application for leave to proceed IFP and a motion for a preliminary injunction. Dkt. Nos. 1, 2, 4. Although plaintiff's original IFP application was denied by the court as incomplete, his subsequent motion for leave to proceed without prepayment of fees was granted. Dkt. Nos. 5, 6, 10.
By decision and order dated September 17, 2015, Senior District Judge Gary L. Sharpe denied plaintiff's motion for preliminary injunctive relief. Dkt. No. 10. In addition, he reviewed plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A and dismissed a number of claims and defendants from the action. See generally id.
On October 26, 2015, and prior to service upon defendants, plaintiff filed an amended complaint ("FAC"), which was accepted by Judge Sharpe because it was deemed "a pleading which reflects the [c]ourt's rulings in the [initial] order." Dkt. No. 17. In response to plaintiff's FAC, defendants filed a motion on September 21, 2016, seeking its dismissal for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 30.
On July 14, 2017, I issued a report, which recommended the dismissal of various claims and several defendants from the action. See generally Dkt. No. 70. In addition, in light of my recommendation that multiple claims and defendants be dismissed from the action, I further recommended that plaintiff be afforded an opportunity to file a SAC. Id. at 41. Although neither party filed any objections to my report, before Judge Sharpe had an opportunity to review it, plaintiff availed himself of my recommendation and filed his SAC on July 24, 2017. Dkt. No. 72. On September 1, 2017, Judge Sharpe issued an order adopting my report and recommendation in its entirety. Dkt. No. 75.
Plaintiff's SAC was referred to me for review to determine whether the deficiencies that were discerned in my July 14, 2017 report and recommendation had been cured by the filing of plaintiff's SAC. Dkt. No. 76. Following my review, I issued a report and recommendation on September 22, 2017, recommending that plaintiff's SAC be accepted for filing, but that various of plaintiff's claims be dismissed. Dkt. No. 76. By decision and order dated October 19, 2017, Judge Sharpe adopted my report and recommendation in its entirety over plaintiff's objections. Dkt. Nos. 77, 78. As a result of these rulings, the following four claims survived and proceeded to discovery: (1) Fourteenth Amendment procedural due process claim against defendants Coveny, Whiteford, and McKeighan; (2) First Amendment free speech claim against defendants Olles and Mahuta; (3) First Amendment free exercise claim against Mahuta; and (4) Fourteenth Amendment procedural due process claim against defendants Annucci and Venettozzi in their supervisory capacities. See id. at 3.
On January 23, 2018, following the close of discovery, defendants filed a motion for summary judgment, seeking dismissal of plaintiff's claims on various grounds, both procedural and on the merits. Dkt. No. 97. Plaintiff has opposed defendants' motion and cross moved for summary judgment in his favor. Dkt. No. 102. Defendants have submitted papers in opposition to plaintiff's motion and in further support of their motion. Dkt. No. 103. The parties' motions, which are now fully briefed and ripe for determination, have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides that the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Failure to Exhaust Administrative Remedies
As will be seen, because I recommend that each of plaintiff's claims be dismissed, have elected not to address defendants' alternative argument that they are shielded by the doctrine of qualified immunity. Dkt. No. 97-4 at 31-33.
Defendants contend that plaintiff failed to fully exhaust his administrative remedies with respect to his First Amendment free speech claim against defendants Olles and Mahuta and his First Amendment free exercise claim against Mahuta. Dkt. No. 97-14 at 12-15. As a result of plaintiff's failure, defendants argue, those claims must be dismissed. Id.; see also Dkt. No. 103 at 4-5. In his cross motion, plaintiff does not acknowledge defendants' argument, instead focusing his opposition on the underlying merits of the First Amendment claims defendants Olles and Mahuta. See generally Dkt. No. 102.
1. Generally
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion " 'in a substantive sense,' " an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § 701.5(b)(2).
The IGRC is comprised of "two voting inmates, two voting staff members, and a non-voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the CORC, which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(f). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availab[ility] of administrative remedies." (alteration in original) (internal quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)) (internal quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the first, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
2. Analysis
During his deposition, plaintiff testified that he had filed "a lot" of grievances during his time in DOCCS custody. Dkt. No. 97-4 at 71-72; see Dkt. No. 97-3 at 28-44. Although he did not believe that the number of grievances that he had filed reached the "triple digits," he speculated that it was approaching fifty to sixty grievances. Dkt. No. 97-4 at 72. Plaintiff expressed a general understanding that the use of the inmate grievance process was necessary to effectively "exhaust [his] remedies." Dkt. No. 97-4 at 78.
During his deposition, plaintiff was asked whether he had filed a grievance regarding the allegation that defendant Olles violated plaintiff's First Amendment right to free speech by his unjustified confiscation of plaintiff's "return to sender" letter in January of 2013. See Dkt. No. 72 at 9. Dkt. No. 97-4 at 72-73. In response, plaintiff indicated that he was unable to specifically recall whether he had, but that he did not "see why [he] would" have filed one. Dkt. No. 97-4 at 72-74. Because plaintiff effectively concedes that he did not file a grievance with respect to this incident, I can easily conclude that he failed to exhaust his administrative remedies prior to commencement.
With respect to plaintiff's free exercise and free speech claims against defendant Mahuta, both of which arise out of the January 29, 2015 search of plaintiff's cell, plaintiff acknowledged that he filed only one grievance arising out of that incident on February 20, 2015 (GM 59,129-15). Dkt. No. 97-3 at 403; Dkt. No. 97-4 at 75-76. According to that grievance,
On 1/29/15, my cell [was] searched by [defendant] Mahuta at [Clinton] . . . , and my letters, Bible, etc. were confiscated for review. After the paper [was] review[ed], I received a misbehavior report for only [three] papers. [T]he Bible, address book, etc., were [not deemed] gang material.Dkt. No. 97-3 at 403 (errors in original). When prison officials appeared to initially misapprehend which materials he sought to have returned, in an appeal to the CORC on August 24, 2015, plaintiff stated:
I did not receive[] my documents [back] as of yet.
Action requested: for my papers, bible, etc. to be return[ed] to me.
If you review the 1/29/15 [inmate misbehavior report], only 3 pages were confiscated, which was the only material I was found guilty on. The contraband list which stated my Bible, letters, phone book, etc. were being review which Dep. Brendel could verify. The review[ed] material was never charged on the misbehavior report. . . . [T]he I.G.R.C. staffs are merely covering up the fact that grievant['s] property was stolen.Dkt. No. 97-3 at 404-05 (errors in original). Plaintiff's grievance and appeal to the CORC makes no mention of religious headwear. See generally id. Plaintiff's grievance also fails to indicate that he believed the seizure of the three pages of material was in violation of his First Amendment rights. See generally id. Instead, plaintiff's grievance solely seeks the return of those materials that prison personnel determined did not constitute gang-related material. See generally id.
Consistent with the objectives of the PLRA, "inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Johnson, 380 F.3d at 697. In determining whether exhaustion has been achieved, the standard for determining the sufficiency of an administrative grievance is analogous to that of notice pleading. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (citing Johnson, 380 F.3d at 697).
Although it is "appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally." Brownell, 446 F.3d at 310; see also Singh v. Lynch, 460 F. App'x. 45, 47 (2d Cir. 2012); Turner v. Goord, 376 F. Supp. 2d 321, 324 (W.D.N.Y. 2005) ("[T]he mere fact that [the] plaintiff filed some grievance, and fully appealed all the decisions on that grievance, does not automatically mean that he can now sue anyone who was in any way connected with the events giving rise to that grievance."). Even affording plaintiff the appropriate lenity as a pro se litigant, plaintiff's grievance failed to describe any First Amendment concern arising out of defendant Mahuta's cell search.
Although it is true that "a claim may be exhausted when it is closely related to, but not explicitly mentioned in an exhausted grievance," Simmons v. Robinson, No. 07-CV-7383, 2011 WL 31066, at *4 (S.D.N.Y. Jan. 4, 2011) (citing Espinal v. Goord, 55 8 F.3d 119, 128 (2d Cir. 2009)), I am unable to conclude that the sole grievance filed by plaintiff provided the facility with sufficient information to permit an investigation of his concerns regarding the disposal of religious headwear or the seizure of three pages of gang-related material. Instead, it is clear from plaintiff's grievance that his primary concern was with securing the return of his non-gang related material. Dkt. No. 97-3 at 403-05. Accordingly, because plaintiff's grievance failed to provide the facility enough information to investigate his free speech and free exercise concerns, plaintiff's February 20, 2015 grievance was not sufficient to exhaust his administrative remedies prior to commencement of this action. See, e.g., Dailey v. Fuller, 15-CV-1051, 2016 WL 7732236 *7-*8 (Dec. 5, 2016) (Dancks, M.J.), report and recommendation adopted by (N.D.N.Y. Jan 11, 2017) (Sannes, J.); Wright v. Potter, No. 14-CV-01041, 2016 WL 5219997, at *5 (Jun. 28, 2016) (Dancks, M.J.), report and recommendation adopted by 2016 WL 5173283 (Hurd, J.) (N.D.N.Y. Sept. 21, 2016).
Copies of all unreported decisions have been appended for the convenience of the pro se plaintiff.
This, of course, does not end the court's inquiry with respect to exhaustion. Plaintiff, however, has not claimed that the IGP process was unavailable to him during the relevant times periods. To the contrary, the record evidence indicates that plaintiff was able to successfully navigate the grievance procedure while housed in a SHU at a different facility.
Accordingly, the undisputed facts in this case reveal that with respect to his First Amendment claims, plaintiff failed to fully comply with the IGP prior to the commencement of this action, despite his remedies remaining available to him at all relevant times. I therefore recommend that defendants' motion for summary judgment on this basis be granted on this procedural basis.
In light of this recommendation, I have elected not to address defendants' alternative argument on the merits.
C. Due Process
Defendants contend that plaintiff was afforded adequate due process during the disciplinary proceedings conducted by defendants Coveny, Whiteford, and McKeighan. Dkt. No. 97-14 at 21-28. In his cross motion, plaintiff disagrees, and asserts that defendants' decisions deprived him of procedural due process in connection with each of his Tier III disciplinary hearings. See generally Dkt. No. 102.
1. Generally
To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). Much like their prior motions, defendants do not seek dismissal of any of plaintiff's due process claims on the basis that he was not denied a constitutionally significant liberty interest, see generally Dkt. No. 97-14 at 21-28, and as a result the court will not address that issue. Instead, defendants' argument is focused on whether plaintiff was deprived of a liberty interest without being afforded sufficient process. See generally id.
The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well established under Wolff v. McDonnell, 418 U.S. 539 (1974). In its decision in Wolff, the Court held that the constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564-69; see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must also garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88.
The due process clause of the Fourteenth Amendment also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to. . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing, inter alia, Wolff, 418 U.S. at 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). "The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Id. (citing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1996); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). "A hearing officer may satisfy the standard of impartiality if there is 'some evidence in the record' to support the findings of the hearing." Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at *5 (W.D.N.Y. Oct. 5, 2010) (emphasis in original) (quoting Hill, 472 U.S. at 455).
a. Defendant Coveny
According to plaintiff, defendant Coveny violated his due process rights during the second hearing by improperly denying his request to call Officer Connors, Officer Zarrias, and inmate Mims as witnesses. Dkt. No. 72 at 9 (first cause of action); see also Dkt. No. 102 at 11. Although due process includes the "right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board," that right is not unfettered. Ponte v. Real, 471 U.S. 491, 495 (1985). An inmate's right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991).
In this case, after an exhaustive review of the record evidence, I conclude that no reasonable factfinder could conclude that defendant Coveny violated plaintiff's due process rights at the second hearing. First, with respect to plaintiff's alleged request to call Officer Zarrias, although it appears plaintiff did call him as a witness for the initial hearing, there is no record evidence that plaintiff sought his testimony in connection with the second hearing. Dkt. No. 97-4 at 17-18; see Dkt. No. 97-9 at 3. Plaintiff cannot now turn his own lack of diligence into a constitutional deprivation. See, e.g., Hasan Jamal Abdul Majid v. Henderson, 533 F. Supp. 1257, 1273 (N.D.N.Y.) (Munson, C.J.) (concluding that due process was not violated where the inmate failed to request witnesses at or before the hearing), aff'd mem., 714 F.2d 115 (2d Cir. 1982).
In addition, although plaintiff requested testimony from inmate Mims, who had also testified at the initial hearing, that witness refused to provide testimony at the second hearing and declined to elaborate on the reasons for his refusal beyond "[b]ecause I am not doing it." Dkt. No. 97-3 at 69. Courts in this circuit have routinely held that a hearing officer's failure to call a fellow inmate who refuses to testify does not offend procedural due process. See, e.g., Caimite v. Venettozzi, No. 17-CV-0919, 2018 WL 6069458, at *5 (Oct. 29, 2018) (Hummel, M.J.), report and recommendation adopted by 2018 WL 6068414 (N.D.N.Y. Nov. 20, 2018) (Sharpe, J.); Abdur-Raheem v. Caffery, No. 13-CV-6315, 2015 WL 667528, at *6 (S.D.N.Y. Feb. 17, 2015); Hinton v. Prack, No. 12-CV-1844 , 2014 WL 4627120, at *7 (N.D.N.Y. Sept. 11, 2014) (Kahn, J.) ("The fact that these witnesses refused to testify on [the plaintiff's] behalf does not alter the fact that he was given the opportunity to call witnesses.").
Finally, with respect to the testimony of Officer Connors, the record reveals that plaintiff's request to call him as a witness was initially granted and defendant Coveny contacted him to "make arrangement for [his] testimony." Dkt. No. 97-3 at 234, 241. In response to being contacted to provide "confidential testimony" for the proceeding, however, Officer Connors indicated that "he was not working on the date of [the] alleged incident." Dkt. No. 97-3 at 279. As a result, defendant Coveny properly denied plaintiff's request based upon a finding that the officer could not provide relevant evidence. Dkt. No. 97-3 at 85; see Dkt. No. 97-9 at 2-3; see also Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999). ("[A] hearing officer does not violate due process by excluding irrelevant or unnecessary testimony.").
Accordingly, because no reasonable factfinder could conclude that defendant Coveny violated plaintiff's procedural due process rights, I recommend that the claim against defendant Coveny be dismissed.
b. Defendant Whiteford
Plaintiff alleges that defendant Whiteford violated his due process rights during the January 2013 disciplinary hearing when he denied his request to call Officer Kentzel as a witness. Dkt. No. 72 at 9-10 (third cause of action); see also Dkt. No. 102-1 at 1. According to plaintiff, Officer Kentzel would have testified that plaintiff did not write the "return to sender" letter and that there was another inmate that was "throwing [plaintiff's] name" on correspondence. Dkt. No. 97-3 at 295-99, 301-02; see also Dkt. No. 97-10 at 2.
During the disciplinary hearing, Sergeant O'Connell stated that he had compared the handwriting and signature on the "return to sender" letter with correspondence known to be written by plaintiff, and concluded that plaintiff was the author of the letter at issue. Dkt. No. 97-3 at 299-300. Sergeant O'Connell's testimony provided defendant Whiteford with a rational basis for concluding that Officer Kentzel's testimony would have been irrelevant or unnecessary. Dkt. No. 97-4 at 46 ("Irrelevancy, I believe."); see also Dkt. No. 97-10 at 2-3. Defendant Whiteford believed that Officer Kentzel did not have "any knowledge of the actual letter at issue in the hearing and whether or not it had been authored by plaintiff." Dkt. No. 97-10 at 3.
Based upon the record evidence, no reasonable juror could find that defendant Whiteford violated plaintiff's due process rights by denying his request to call Officer Kentzel. See Delee v. Hannigan, 729 F. App'x 25, 31 (2018) ("[D]efendants had the right to refuse to hear irrelevant testimony from witnesses with no personal knowledge.") (citing 7 N.Y.C.R.R. § 253.6(c); Kingsley, 937 F.2d at 30 (2d Cir. 1991)); see also Kalwasinski, 201 F.3d at 109. I note moreover, courts have been cautioned not to "second guess" a hearing officer's decision to deny an inmate's witness requests where the hearing officer articulates a basis for his decision. See Wolff, 418 U.S. at 566 (explaining that courts "should not be too ready to exercise oversight and put aside the judgment of prison administrators").
Because no reasonable factfinder could conclude that defendant Whiteford violated plaintiff's procedural due process rights by refusing to call Officer Kentzel, I recommend that the claim against him be dismissed.
c. Defendant McKeighan
Plaintiff alleges that defendant McKeighan violated his due process rights in connection with the February 2015 disciplinary proceeding by (1) denying plaintiff's request to call his brother as a witness; (2) permitting the admission of fabricated evidence; and (3) denying plaintiff's request for video footage. Dkt. No. 72 at 10-11 (sixth cause of action); Dkt. No. 102-4 at 12.
First, when the search of plaintiff's cell uncovered three pages of gang-related material, plaintiff was charged with violating Rule 105.13 of the standards of inmate behavior, see Dkt. No. 97-3 at 182, which prohibits possessing gang-related material. Although plaintiff wished to call his brother to testify that he was the author of the three pages in question, defendant McKeighan determined that the testimony would be irrelevant in light of the fact that plaintiff was charged with possession—not authorship—of the material in question. Defendant McKeighan's decision to deny plaintiff's request to call his brother as a witness was well within the discretion of the hearing officer, and comports with procedural due process. See Kalwasinksi, 201 F.3d at 108-09.
Next, there is no merit to plaintiff's allegation that defendant McKeighan permitted the admission of evidence that was purportedly fabricated, and this allegation evinces plaintiff's misapprehension of the evidence that was provided pursuant to his own request. Plaintiff requested copies of what he referred to as "call outs" or "yard go-arounds" for Clinton which, he asserted, would demonstrate that he was not in the yard with his co-conspirators during the relevant times. Dkt. No. 97-5 at 5- 6. After defendant McKeighan determined that no such documents existed, he instead obtained "program sheets" for the relevant period. Dkt. No. 97-5 at 126-154. Defendant McKeighan then compiled the information on the "program sheets" into a spreadsheet, so that he could readily ascertain whether plaintiff and his co-conspirators were together the evening of January 19, 2015. Dkt. No. 97-5 at 218; see also Dkt. No. 97-6 at 18-19. The undisputed evidence demonstrates that a meaningful effort was made to locate the information that plaintiff sought, although it was not in the precise form requested.
Finally, to the extent that defendant McKeighan denied plaintiff's request for certain video footage, the record is clear that the evidence did not exist inasmuch as it had been taped over in the normal course of business by the time the conspiracy had been uncovered. Accordingly, because no reasonable factfinder could conclude that defendant McKeighan violated plaintiff's procedural due process rights, I recommend that the claim against him be dismissed.
If the above-described recommendation regarding plaintiff's due process claims is adopted by Senior District Judge Sharpe, there is no remaining underlying cause of action upon which to hold defendants Annucci and Venettozzi liable in their capacities as supervisors. See Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999) ("Of course, for a supervisor to be liable under Section 1983, there must have been an underlying constitutional deprivation."); see also, e.g., Caimite v. Venettozzi, 17-CV-0919, 2018 WL 6069458, at *5 (Oct. 29, 2018) (Hummel, M.J.), report and recommendation adopted by 2018 WL 6068414 (Sharpe, J.). However, this ground has not necessarily been advanced by defendants in support of their motion for summary judgment. See generally Dkt. No. 97.
Defendants argue that plaintiff's supervisory liability claim against defendant Annucci must be dismissed because there is no evidence that he was personally involved in the review or determination of plaintiff's appeals. Dkt. No. 97-14 at 29. Defendants further argue that plaintiff's supervisory liability claims against defendant Venettozzi must be dismissed because there is no proof that he was aware of any alleged underlying constitutional violation. Dkt. No. 97-14 at 30-31. Plaintiff asserts in his cross motion that defendant Annucci "did not remedy the wrong acts" and defendant Venettozzi "affirmed or modified" the procedural due process violations. See generally Dkt. No. 102.
1. Supervisory Liability - Generally
It is well-established that a defendant cannot be liable under section 1983 solely by virtue of being a supervisor, " 'and [liability] cannot rest on respondeat superior.' " Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)); see also Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
Subsequent to issuance of the Second Circuit's decision in Colon, the Supreme Court addressed the question of supervisory liability in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Although the issue has been discussed, the Second Circuit has declined to squarely address the impact of Iqbal upon the categories of supervisory liability addressed in Colon. See, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) ("We express no view on the extent to which [Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations[.]" (citation and internal quotation marks omitted)); see also Reynolds v. Barrett, 685 F.3d 193, 206 n.14 (2d Cir. 2012) ("Iqbal has, of course, engendered conflict within our Circuit about the continuing vitality of the supervisory liability test set forth in [Colon,] . . . [b]ut the fate of Colon is not properly before us[.]").
2. Defendant Annucci
Plaintiff alleges that he wrote to defendant "Annucci, making him aware of the [c]onstitutional violations, conducted by his subordinates[,]" but that Annucci "failed to remedy the wrong." Dkt. No. 102-1 at 2; see also Dkt. No. 72 at 12-14. This allegation is based upon plaintiff having addressed one of his amended appeals to defendant Annucci, as well as one additional letter that he sent to defendant Annucci. Dkt. No. 97-3 at 344 (amended appeal dated March 9, 2015); Dkt No. 97-3 at 348-49 (letter dated April 1, 2015). There is no dispute that defendant Annucci did not respond to plaintiff's appeal or letter or undertake any investigation as a result of plaintiff's correspondence. Dkt. No. 97-13 at 2.
It is well settled that Annucci's failure to respond to plaintiff's amended appeal and letter, without more, is not sufficient to give rise to personal involvement under section 1983. Cole v. New York State Dep't of Corr. & Cmty. Supervision, No. 14-CV-0539, 2016 WL 5394752, at *22 (Aug. 25, 2016) (Peebles, M.J.J, report and recommendation adopted by 2016 WL 5374125 (N.D.N.Y. Sept. 26, 2016) (Sannes, J.); see also, e.g., Houston v. Schriro, No. 11-CV-7374, 2014 WL 6694468, at *14 (S.D.N.Y. Nov. 26, 2014) ("[I]gnoring a prisoner's letter or complaint is insufficient to render an official personally liable."); Parks v. Smith, No. 08-CV-0586, 2011 WL 4055415, at *14 (N.D.N.Y. March 29, 2011) ("A prisoner's allegation that a supervisory official failed to respond to a grievance is insufficient to establish that official's personal involvement.").
For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that defendant Annucci was personally involved in any of the allegations giving rise to this action.
3. Defendant Venettozzi
With respect to defendant Venettozzi, plaintiff alleges that after learning of the violation of his due process rights through his appeal, defendant Venettozzi failed to remedy the wrong. Dkt. No. 102-1 at 2; see also Dkt. No. 72 at 13. According to plaintiff, although he alerted defendant Venettozzi as to the constitutional violations by way of a series of appeals, defendant Venettozzi merely affirmed the disposition, while modifying the penalty. Dkt. No. 72 at 13; see also Dkt. No. 97-3 at 340-99.
Here, there is no genuine dispute of material fact that Venettozzi received and decided plaintiff's appeal in connection with the February 27, 2015 disciplinary determination that was issued by defendant McKeighan. See generally Dkt. No. 97-12 . According to defendant Venettozzi,
After reviewing the entire record of the hearing and considering all the grounds for overturning or modifying the determination asserted in plaintiff's appeal documents, I found that the hearing had been properly conducted, plaintiff had been provided constitutionally adequate due process of law and sufficient opportunity to put on a defense, and the findings of the hearing officer were supported by the evidence.
I affirmed the findings of guilt.Id. at 3-4. As a result, defendant Venettozzi affirmed the finding of guilt, but reduced plaintiff's penalty from 910 days to twelve months of disciplinary SHU confinement. Dkt. No. 97-3 at 12, 341-42; Dkt. No. 97-12 at 4.
As defendants observe, upon plaintiff's appeal defendant Venettozzi did not identify any constitutional violations, including the failure to provide plaintiff with due process of law. Dkt. No. 97-14 at 30-31. Likewise, I have concluded that no reasonable factfinder could conclude that plaintiff's due process rights were violated. See Point III.C, supra. As a result, because no constitutional violation occurred, and there was no wrong to remedy, no supervisory liability can exist as against defendant Venettozzi. See, e.g., Martin v. Oey, No. 16-CV-00717, 2017 WL 6614680, at *10 (Nov. 28, 2017) (Dancks, M.J.), report and recommendation adopted by 2017 WL 6611575 (N.D.N.Y. Dec. 27, 2017) (McAvoy, J.); Toole v. Connell, No. 04-CV-0724, 2008 WL 4186334, at *1, 7 (N.D.N.Y. Sep. 10, 2008) (Kahn, J.) (supervisory defendant cannot be liable for failing to investigate or correct conduct that has already been found to be not actionable under section 1983); Lighthall v. Vadlamudi, 04-CV-0721, 2006 WL 721568, at *13 (N.D.N.Y. Mar. 17, 2006) (Mordue, J.) ("Since no constitutional violation occurred and there was no wrong to remedy, no supervisory liability exists."); Rambaldi v. City of Mount Vernon, 2003 WL 23744272, at *10 (S.D.N.Y. Mar. 31, 2003) (concluding that because there was no wrongful conduct, there were "no 'wrongs' to remedy" by the supervisory defendants).
For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that defendant Venettozzi was personally involved in any of the constitutional deprivations giving rise to this action.
III. SUMMARY, ORDER, AND RECOMMENDATION
According to plaintiff, following a series of incidents that resulted in disciplinary proceedings being brought against him, defendants violated his First and Fourteenth Amendments rights. Discovery having closed, defendants seek dismissal of plaintiff's claims on a variety of grounds, while plaintiff has cross moved for the entry of summary judgment. Having carefully reviewed the record before the court, defendants are entitled to the entry of summary judgment dismissing all claims. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 97) be GRANTED, plaintiff's cross motion for summary judgment (Dkt. No. 102) be DENIED, and plaintiff's second amended complaint (Dkt. No. 72) is DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). It is further hereby
If you are proceeding pro se and are served with this order, report, and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order, report, and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendant Ollies to "Anthony Olles", defendant J. Whitford to "John Whiteford", and Donald Venetozzi to "Donald Venettozzi", as set forth in footnote number one; and it is further
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: March 12, 2019
Syracuse, New York