However, in the analogous context of prisoner liberty interests, "the loss of phones, packages, and commissary privileges does not give rise to a protected liberty interest under New York law." Smart v. Goord, 441 F. Supp. 2d 631, 640 (S.D.N.Y. 2006); Johnson v. Enu, No. 08-CV-158 (FJS/DRH), 2011 U.S. Dist. LEXIS 86831, at *34-35, 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (suspension of recreation, commissary, and phone privileges did not give rise to a protected liberty interest); Edelkind v. Killian, No. 09 Civ. 5835 (SHS)(MHD), 2011 U.S. Dist. LEXIS 157207, at *46, 2011 WL 10599973, at *16 (S.D.N.Y. Aug. 31, 2011) ("[L]oss of telephone privileges is plainly a common incident of prison life and hence does not itself reflect a circumstance that implicates the loss of a liberty interest."); Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998) (holding temporary loss of various privileges—telephone, package, commissary, and recreation—did "not represent the type of deprivation which could reasonably be viewed as imposing an atypical and significant hardship on an inmate"). Even if there were a protected liberty interest in this case, Defendant Townsend, as a primary therapist, is a medical professional, and her decisions concerning restrictions on Plaintiff's rights are presumed to be correct insofar as she has rendered her professional judgmen
There is no constitutional right to an inmate grievance program, and allegations that the procedures are in adequate do not give rise to a Section §1983 claim. Hayes v. Cty. of Sullivan, 853 F. Supp. 2d 400, 434 (S.D.N.Y. 2012) citing Johnson v. Enu, No. 08-CV-158, 2011 WL 3439179, at *13 (N.D.N.Y. July 13, 2011); see also Banks v. Annuci, 48 F. Supp. 3d 394, 412 (N.D.N.Y. 2014); Cancel v. Gord, No. 00 CIV 2042, 2001 WL 303713 at *3 (S.D.N.Y. March 29, 2001) (holding that where a prisoner alleged that a prison official did not process an inmate's grievance was not a constitutional violation because inmate procedures are not required under the Constitution). The Court further notes that Plaintiff does not provide any particularity concerning the alleged deficiency and whether he attempted to avail himself of the procedure.
The other penalties imposed by A.C. Rasmus (loss of package, commissary, and phone privileges) (see Dkt. 88-2 at 24) do not rise to the level of deprivation of a protected liberty interest. See, e.g., Johnson v. Enu, No. 08-CV-158 (FHS/DNH), 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (suspension of recreation, commissary, and phone privileges does not implicate a protected liberty interest); Smart v. Goord, 441 F. Supp. 2d 631, 640 (S.D.N.Y. 2006) ("the loss of phone, package, and commissary privileges does not give rise to a protected liberty interest"). Accordingly, the Court agrees with Defendants that Plaintiff cannot establish that he was deprived of a protected liberty interest and therefore cannot maintain a claim for deprivation of due process.
The Court does not construe the allegations against Corrections Officer Stoughton to assert a Fourteenth Amendment due process claim because "the loss of phones, packages, and commissary privileges does not give rise to a protected liberty interest under New York law." Smart v. Goord, 441 F. Supp. 2d 631, 640 (S.D.N.Y. 2006); see Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998) (holding temporary loss of various privileges—telephone, package, commissary and recreation—did "not represent the type of deprivation which could reasonably be viewed as imposing an atypical and significant hardship on an inmate"); Johnson v. Enu, No. 08-CV-158 (FJS/DRH), 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (suspension of recreation, commissary, and phone privileges did not give rise to a protected liberty interest); Edelkind v. Killian, No. 09-CV-5835, 2011 WL 10599973, at *16 (S.D.N.Y. Aug. 31, 2011) ("[L]oss of telephone privileges is plainly a common incident of prison life and hence does not itself reflect a circumstance that implicates the loss of a liberty interest."). A. RLUIPA Claims
"While there is a First Amendment right of meaningful access to the courts and a right to petition the government for redress," Cancel v. Goord, No. 00-CV-2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001), Plaintiffs claim fails, because "inmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim," Johnson v. Enu, No. 08-CV-158, 2011 WL 3439179, at *13 (N.D.N.Y. July 13, 2011), adopted by, 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011). "Therefore, the refusal to process an inmate's grievance or failure to see to it that grievances are properly processed does not create a claim under § 1983."
Moreover, Plaintiff does not have a cognizable liberty or property interest concerning the loss of his telephone and commissary privileges while in SHU confinement. See Johnson v. Enu, No. 08-CV-0158 (FJS/DRH), 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (citations omitted).
But, much like the "small number of incidents in which [a prisoner] allegedly was verbally harassed, touched, and pressed against without his consent" in Boddie, the "insolated incidents" described by McClendon do not give rise to a viable Eighth Amendment claim. See id.; cf. Holland v. City of New York, 197 F. Supp. 3d 529, 547 (S.D.N.Y. 2016) (Eighth Amendment claim of sexual harassment requires "at the very least, alleg[ations of] egregious sexual conduct"); Jones v. Harris, 665 F. Supp. 2d 384, 396 (S.D.N.Y. 2009) ("[V]erbal sexual harassment of a prisoner, without physical contact, does not violate the Eighth Amendment."); see also Johnson v. Enu, 2011 WL 3439179, at *14 (N.D.N.Y. July 13, 2011) (noting that Boddie "dismissed as inadequate a prisoner's claim[s] that a female corrections officer made a possible pass at him, squeezed his hand, touche[d] his penis[,] called him a 'sexy black devil,' pressed her breasts against his chest, and pushed her vagina against his penis" (citing Boddie, 105 F.3d at 859-61)). Therefore, I dismiss McClendon's Eighth Amendment claim for sexual harassment against Officer Smiley pursuant to 28 U.S.C. § 1915A(b)(1).
Therefore, it is recommended that the District Court sua sponte dismiss Plaintiff's §1983 claims against all Defendants in their official capacities with prejudice as barred by the Eleventh Amendment. See Woods, 466 F.3d at 238 (recognizing that courts may raise the issue of Eleventh Amendment immunity sua sponte); Johnson v. Enu, No. 08-CV-158 (FJS/DRH), 2011 WL 3439179, at *7 (N.D.N.Y. July 13, 2011) (recommending sua sponte dismissal of official capacity claims for money damages), adopted by 2011 WL 3439524 (Aug. 5, 2011). B. Fourth, Fifth, and Sixth Amendments Claims
Such privileges, however, do not constitute protected liberty or property interests. See Johnson v. Enu, No. 08-CV-0158, 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (Homer, M.J., report and recommendation adopted by 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.)) ("Moreover, the loss of phone, telepackage, and commissary privileges does not give rise to a protected liberty interest under New York law."
Conclusions of law in a Local Rule 7.1 Statement, even when unopposed, are not deemed admitted. See Johnson v. Enu, No. 08-CV-158, 2011 WL 3439179, at *1 (N.D.N.Y. July 13, 2011), adopted in its entirety by, 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011). Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises.