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holding that a disciplinary determination based on a misbehavior report, letter to another inmate, and testimony from the officer who wrote the misbehavior report, was supported by "some evidence"
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9:13-CV-00616 (FJS/TWD)
08-04-2015
MICHAEL A. MOORE, Plaintiff, v. THOMAS GRIFFIN, Deputy of Security, Eastern NY Correctional Facility; and ANTHONY RUSSO, Captain, Eastern NY Correctional Facility, Defendants.
APPEARANCES: MICHAEL A. MOORE Plaintiff pro se 92-A-9240 Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: MICHAEL A. MOORE
Plaintiff pro se
92-A-9240
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Michael Moore claims that Defendant Thomas Griffin ("Griffin") violated Plaintiff's Fourteenth Amendment right to due process at a Tier III disciplinary hearing. Currently pending before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 33.) For the reasons discussed below, I recommend that Defendant's motion be granted. I. FACTUAL AND PROCEDURAL SUMMARY
Local Rule 7.1(a)(3) states:
Summary Judgment MotionsLocal Rule 7. 1(a)(3).
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits.
The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.
Defendant filed a Statement of Material Facts. Plaintiff has not properly responded or objected to Defendant's Statement of Material Facts. Defendant advised Plaintiff of the potential consequences of failing to respond to the motion for summary judgment. (Dkt. No. 33 at 3.) To the extent that the "facts" asserted by Defendant in the Statement of Material Facts are supported by the record, the Court will consider them in the context of the within motion. The facts recited are for the relevant time period as referenced in the complaint. In addition, on the motion, both parties annexed documents that have not been properly authenticated. To the extent that the parties do not object to the admissibility of any document(s), the Court will consider the document(s) in the context of the within motion. See Livingston v. Griffin, 2007 WL 1500382, at *2, n. 2 (N.D.N.Y. 2007) (citing H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991)).
On November 30, 2010, Plaintiff was an inmate in the custody of the Department of Corrections and Community Supervision ("DOCCS") at Eastern NY Correctional Facility ("Eastern C.F."). (Dkt. No. 34 at 2.) At that time, Plaintiff was a porter assigned to the basement of the Family Reunion Program ("FRP") area. Id. Plaintiff's duties included: bringing supplies such as towels, bedding and utensils to the FRP units in advance of family visits; snow blowing and shoveling; and grounds keeping. Id. at 3. On November 30, 2010, after a suspicious cell search, Plaintiff received a Misbehavior Report charging him with possessing contraband, destroying state property, and altering an electrical device. (Dkt. No. 33-4 at 3.) On December 3, 2010, at a Tier II hearing, Plaintiff pled guilty to having excessive property and altering a pair of gloves and was sentenced to thirty days in the Special Housing Unit ("SHU") and loss of privileges. (Dkt. No. 34 at 3.)
Page numbers in citations to the Docket refer to the page numbers assigned by the Court's electronic filing system.
On December 4, 2010, Plaintiff was served with a Tier III Misbehavior Report prepared by Sergeant Parkhurst, dated December 3, 2010. (Dkt. Nos. 33-4 at 16; 34 at 3.) The Misbehavior Report charged Plaintiff with the following violations: 113.13 Inmate shall not posses alcohol; 113.17 Inmate shall not possess unauthorized jewelry; 113.21 Inmate shall not possess non-approved media; and 113.22 Inmate shall not possess article where it is prohibited. Id. The Misbehavior Report described the incident as follows:
Subsequent to an area search of the FRP Basement Area and a corresponding investigation, the following items of contraband were discovered. 3 - 1 Gallon plastic containers half full with homemade alcoholic beverage, 1 bottle of Pina Colada Drink Mix, 1 bottle of Vanilla Extract which contains alcohol, 12 Pornographic DVD's, 4 Pornographic VHS Tapes, 25 Pornographic Magazines, 17 Male Condoms, 2 female condoms, 1 Polaroid Camera with package of film, 1 Computer Memory Card, 1 Electric Motor, 8 coins, 5 Earrings, 1 Necklace, [and] other assorted non-serious contraband items. All items were discovered in well hidden areas of the FRP Basement, secreted inside or amongst other non-contraband items. Inmate Moore is one of only two inmates to have regular access to the basement in the FRP area. He has been assigned as a porter in this area for approximately 8 years.Id. at 4.
On or about December 4, 2010, Plaintiff wrote a letter to an inmate in the facility law library with regard to the December 3, 2010, Misbehavior Report. During his deposition, Plaintiff testified that he wrote the letter to "Mustaph" stating:
The letter is part of the record herein but it has not been properly authenticated by Plaintiff and thus, is not in proper evidentiary form.
. . . basically, I just told them, you know, the magazines, I can explain. The clothes, the rings, that stuff was left in the lost and found. The other porter was not there at the time and that I had word that they were trying to change things.(Dkt. No. 33-5 at 42.)
Plaintiff did not receive a response to this correspondence. Id. at 43. On December 7, 2010, Plaintiff was released from the SHU and advised that the charges in the December 3, 2010, Misbehavior Report had been dropped because Plaintiff did not receive timely notice of the charges. (Dkt. No. 34 at 5.) Plaintiff remained confined to keeplock due to his disciplinary time for his Tier II violations. Id. at 6.
On December 14, 2010, Plaintiff returned to the SHU. (Dkt. No. 34 at 6.) On December 15, 2010, Plaintiff received a Tier III Misbehavior Report, written by Captain Russo ("Russo"), dated December 14, 2010. Id. The December 14, 2010, Misbehavior Report charged Plaintiff with the following violations: 107.20 Lying; 130.11 Failing to Follow Correspondence Procedures; 109.10 Out of Place; and 103.20 Solicitation. Id. Under "Description of Incident," the Misbehavior Report provided:
The record lacks information regarding why Plaintiff was returned to the SHU.
On November 30, 2010 as I entered the Family Reunion Compound, Inmate Moore 92A9240 was observed exiting the basement area. As a result of the inspection and subsequent frisk[,] numerous amounts of contraband were discovered[,] some of which included: 4 altered video cassettes which contained pornographic movies, 12 DVD's which contained pornographic movies, 3 ½ gallon jugs of homemade alcohol,Id. at 6-7.
1 necklace, 5 earrings, 1 brassiere, 19 condoms, 1 memory card.
During a subsequent interview on November 30, 2010 with Inmate Moore, he claimed to have no knowledge of the items found in the R.F.P. basement area.
However, on December 5, 2010 Officer DuBois received a letter in the law library written to an inmate 'Mustaph' who has been identified as Rodriguez 83B2044, one of the SHU clerks in the law library soliciting him to do law library work. Furthermore, in this letter he admits to knowing of the contraband items in the FRP basement, specifically, the pornographic movies, magazines, jewelry, memory card and condoms.
Additionally, further information obtained during this investigation indicates that on numerous occasions Inmate Moore was in the occupied units (while other inmates and their families were present) without authorization.
On December 15, 2010, Plaintiff requested legal assistance with his Tier III Misbehavior Report. (Dkt. No. 34 at 7.) Officer Ahearn ("Ahearn") was assigned to assist Plaintiff in preparing for his hearing. Id. On December 19, 2010, Plaintiff met with Ahearn and requested copies of the following documents: Request for Urinalysis; the November 30, 2010, Strip Frisk Form; and the FRP log book entry for November 30, 2010. Id.
In Dkt. No. 34, "Ahearn" is spelled "Ahern."
Ahearn is not a defendant herein.
Defendant Griffin, the Deputy of Security at Eastern C.F., was assigned as the hearing officer for Plaintiff's Superintendent's Hearing regarding the December 14, 2010, Misbehavior Report. Id. at 8. On December 20, 2010, the hearing commenced. (Dkt. No. 34 at 8.) Plaintiff confirmed that on December 15, 2010, at 9:45 a.m., he received a copy of the Misbehavior Report. (Dkt. No. 33-1 at 23.) Plaintiff pled "not guilty" to all four charges. (Dkt. No. 34 at 9.) On the first day of the hearing, Plaintiff objected to Griffin acting as the hearing officer claiming that Griffin was present on the day of the incident. Id. at 9; Dkt. No. 33-1 at 24. Plaintiff also cited to DOCCS Directive 254.1 and stated:
Dkt. No. 33-1 is a copy of the transcript from Plaintiff's Tier III disciplinary hearing. The transcript is a certified record and therefore, in proper admissible form. See Dkt. No. 33-1 at 22.
[t]he following person should not be appointed to conduct the proceeding, the person who actually witness [sic] the incident[,] the person who is directly involved in the incident, the review office[,] who reviewed the misbehavior report and the person who has investigated the incident. Again, you were there on 11/30[.]Dkt. No. 33-1 at 25.
Griffin responded, ". . . I didn't conduct an investigation regarding these charges and the Captain did and therefore I am going to continue to do the hearing [and] that objection is noted." Id. at 25. Griffin continued, "I'm here a lot of days when things happen and when evidence gets written up[,] again your objection is noted for the record." Id. Plaintiff requested an adjournment so that he could obtain additional documents including his "original tickets." Id. at 24. The hearing was adjourned so that Plaintiff could review the Misbehavior Report and his letter to "Mustaph." Id. at 27.
On January 12, 2011, the hearing resumed. (Dkt. No. 33-1 at 27.) Russo was called as a witness and provided testimony regarding Plaintiff's letter:
HO: Captain[,] I'm going to hand you a document that was handed to me with the [ ] misbehavior report, can you explain exactly what that is?Id. at 27.
* * *
CAPT: This letter that was forwarded by inmate Torres in SHU in unit 2, inmate in the law library that was intercepted by one of the staff members.
HO: Ok can you tell me what [ ] in that letter is of particular importance regarding inmate Moore's charges against him which includes lying in correspondence procedures, out of place and solicitation[?]
CAPT: [ ] in this letter he basically states that he was senior man in the FRP area. [H]e cleaned out the units, he [brought] stuff downstairs and disposed of it . . . more was found and put back where it was found. Because the Deputy ILC was out on the site [sic] had to put it back, all porn magazines where [sic] his they was holding [sic] them until they downsize his cell, condoms have always been collected, the condom return supply. The camera that was there was a back up he's claiming when the officer left there was one FRP visit.
Russo also testified that during his interview with Plaintiff, Moore claimed to have no knowledge of the contraband. Id. Plaintiff was given an opportunity to ask Russo questions. Id. at 28. Plaintiff asked Russo about the "out of place" charges. (Dkt. No. 33-1 at 28.) Specifically, Plaintiff asked, "[m]y question is on numerous occasions, I was observed going into an occupied unit why wasn't I written up before, nobody said nothing before, if that was true." Id. Russo responded, "I don't know why." Id.
At Plaintiff's request, Sergeant Barg ("Barg"), the sergeant in charge of the FRP area, and Correction Officer Segal ("Segal") were called to testify. See id. at 29-32. Upon questioning from Plaintiff, both witnesses testified that they never saw Plaintiff enter an FRP area when family was present. (Dkt. No. 33-1 at 29.) Plaintiff also asked Griffin to call two inmates, Livingston and McCrone, as witnesses. Id. at 31. Griffin denied Plaintiff's request due to relevancy. Id. At Griffin's request, Corrections Counselor DeJesus ("DeJesus") testified. (Dkt. No. 33-1 at 33.) DeJesus stated that, on more than one occasion, she witnessed Plaintiff go into the housing units without security present. Id. at 33-34. Plaintiff was given an opportunity to ask DeJesus questions. See id. Plaintiff asked DeJesus why she never reported this to the officer on duty. (Dkt. No. 33-1 at 33.) DeJesus responded, "I didn't think that I had to." Id. At Plaintiff's request, Officer Meineke ("Meineke") was called to testify. See id. at 34. Plaintiff asked Meineke if he ever saw Plaintiff enter the FRP units while the units were occupied by other inmates and their families. Id. at 35. Meineke responded, "Nope, I never known [sic] him to [do] that." (Dkt. No. 33-1 at 35.)
"McCrone" is also referred to as "McCullum" by the correctional officer. (Dkt. No. 33-1 at 31.)
On February 14, 2011, after an adjournment, Plaintiff asked Griffin to call Officer Wilson ("Wilson") as a witness. Id. at 36. Wilson testified that she escorted Plaintiff from the FRP area on November 30, 2010, with Officer Torres ("Torres"). Id. at 37. Wilson stated that Captain Ramirez and Russo may have been present. Id. Plaintiff asked if Wilson remembered seeing Griffin and she responded, "Well, when he showed up to pick you up wasn't it just Ramirez standing there with you, when me and Torres came to get you?" (Dkt. No. 33-1 at 37.) At that time, Griffin interjected and stated, "[i]ts not on the report you have to say if you don't recall." Id. Wilson stated, "I don't . . . remember Captain Ramirez." Id.
On February 25, 2011, after an adjournment, Plaintiff asked Griffin to call Torres to testify. See id. at 38. Torres testified that he escorted Plaintiff from the FRP site for a strip frisk on November 30, 2010. (Dkt. No. 33-1 at 38.) The strip frisk was authorized by Griffin. Id. at 39.
On March 2, 2010, after an adjournment, Plaintiff asked Griffin to call Sergeant Mikesh ("Mikesh"), the sergeant in charge of the law library, to testify. Id. at 40. Upon Plaintiff's questioning, Mikesh testified that it is normal procedure for an officer to forward any suspicious letters to his/her supervisor. Id. at 41.
At the conclusion of Mikesh's testimony, Griffin asked Plaintiff if there were any other witnesses he wished to call to testify. (Dkt. No. 33-1 at 42.) Plaintiff stated, "I don't believe there is nobody [sic] else . . . I'm done." Id.
Griffin prepared a written disposition finding Plaintiff guilty of the four charges and read it into the hearing record on March 3, 2011. Id. at 42-43. On March 3, 2011, Plaintiff signed the Hearing Disposition. (Dkt. No. 33-1 at 43; 34 at 15.) On the Hearing Disposition, in the section entitled "Statement of Evidence Relied Upon," Griffin handwrote the following:
The written report of Captain Russo detailing how his investigation revealed I/M Moore secreted several items of contraband in his work area including 12 DVDs, pornographic video cassettes, three ½ gallons of homemade alcohol, necklace, 5 earrings, 1 memory card and female clothing (bra). Capt. Russo testified at the hearing detailing his investigation of confiscated letter (kite) sent from I/M Moore detailing where and why he stored previously listed contraband items and showing his solicitation to do unapproved legal work. CO Menieke [sic] and CO Segal testimony that they never authorized Moore to enter occupied FRP trailer. Testimony of CC DeJesus that she saw I/M Moore enter occupied FRP units w/o security escort or authorization. Sgt. Barg testify as the area supervisor that I/M's are not permitted in the FRP units that are occupied. I/M Moore never offered testimony of CC that the confiscated letter that details Moore's involvement was not written by him. In closing, I/M Moore never provided credible testimony or evidence to contradict Capt. Russo misbehavior report.Id.
Griffin imposed a penalty of twelve months in the SHU and loss of phone, commissary and packages and loss of 12 months of good time. (Dkt. No. 34 at 15.) On or about March 21, 2011, Plaintiff appealed the decision. Id. at 16. On May 23, 2011, the Hearing Disposition was reviewed and reversed by Albert Prack, Director, Special Housing/Inmate Disciplinary Program. Id. at 17. As a result of the reversal, the December 14, 2010, Misbehavior Report, Hearing Determination and finding of guilt were expunged from Plaintiff's record. Id. On May 23, 2011, Plaintiff was released from the SHU into the general population. (Dkt. No. 34 at 17.)
On May 30, 2013, Plaintiff filed this action. (Dkt. No. 1.) On August 14, 2013, the Court issued a Memorandum-Decision and Order dismissing Plaintiff's claim that Griffin violated Plaintiff's Eighth Amendment rights and dismissing all claims against Russo. (Dkt. No. 9.) Griffin filed an Answer to Plaintiff's Complaint and an Amended Answer. (Dkt. Nos. 16, 18.) On May 2, 2014, Plaintiff was deposed. (Dkt. No. 33-5.) Presently before the Court is Defendant's motion for summary judgment. (Dkt. No. 33.) Plaintiff filed opposition to the motion. (Dkt. No. 36.)
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, 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). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations . . . of [the plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
A fact is "material" only if it would have some effect on the outcome of the suit. Anderson, 477 U.S. at 248.
Where a plaintiff has failed to properly respond to a defendant's Statement of Material Facts, the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the record, and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant's motion for summary judgment. See L.R. 7.1(a)(3); Vermont Teddy Bear Co. v. 1 800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). As noted supra, Defendant provided Plaintiff with notice of the potential consequences. (See Dkt. No. 33 at 3.)
III. ANALYSIS
Defendant moves for judgment as a matter of law and dismissal of all of Plaintiff's allegations. Defendant argues that Plaintiff was afforded the procedural protections guaranteed by the Fourteenth Amendment during his Tier III disciplinary hearing.
A. Fourteenth Amendment
The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted); see also J.S. v. T'Kach, 714 F.3d 99, 106 (2d Cir. 2013) ("We have held that a prisoner has a liberty interest that is implicated by SHU confinement if it 'imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)); Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004).
1. Liberty Interest
Defendant concedes, for the purposes of the motion, that the amount of time Plaintiff was confined in the SHU was sufficient to implicate a protected liberty interest. (Dkt. No. 33-8 at 4, n. 2.)
The parties offer conflicting accounts of the total number of days that Plaintiff was confined to the SHU. Defendant argues that Plaintiff served 80 days. (Dkt. No. 33-8 at 4.) Plaintiff claims that he remained confined to the SHU for a total of 177 days. (Dkt. No. 36 at 5.)
2. Procedural Due Process
The Fourteenth Amendment due process protections afforded a prison inmate do not equate to "the full panoply of rights due to a defendant in a criminal prosecution." Sira, 380 F.3d at 69. An inmate is entitled to "(a) written notice of the claimed violations . . .; (b) disclosure [to the prisoner] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body . . .; and (f) a written statement by the fact finders as to the evidence relied on . . ." Wolff v. McDonnell, 418 U.S. 539, 559, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The due process clause also requires that a hearing officer's determination be supported by "some evidence." Sup't v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). "This standard is extremely tolerant and is satisfied if there is any evidence in the record that supports the disciplinary ruling." Sira, 380 F.3d at 69 (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). In the Second Circuit, the "some evidence" standard requires some "reliable evidence." Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004).
a. Notice
An accused prisoner has the right to be provided with advanced written notice of the charges brought against him. Sira, 380 F.3d at 69. Here, it is undisputed that Plaintiff received a copy of the Misbehavior Report on December 15, 2010. (Dkt. No. 33-1 at 23.) Plaintiff does not contest that he received timely notice of the charges.
In Plaintiff's Memorandum of Law, he includes the heading "Timeliness of the Hearing". (Dkt. No. 36 at 10.) However, the arguments set forth in the section do not relate to timely notice of the disciplinary hearing and charges at issue. Rather, the arguments involve Plaintiff's res judicata claims and thus will be discussed infra.
b. Assistance
Plaintiff was confined to the SHU and thus was entitled to an inmate assistant. See Murray v. Arquitt, No. 9:10-CV-1440 (NAM/CFH), 2014 U.S. Dist. LEXIS 68665, at *48, 2014 WL 4676569, at *19 (N.D.N.Y. Sept. 18, 2014) (citation omitted). An inmate's right to assistance is limited, and an inmate has no right to full counsel. Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). The assistant need only perform what the plaintiff would have done but need not go beyond. See Lewis v. Johnson, No. 9:08-CV-482 (TJM/ATB), 2010 U.S. Dist. LEXIS 98116, at *33-35, 2010 WL 3785771, at *10 (N.D.N.Y. Aug. 5, 2010).
The Court will provide Plaintiff with a copy of all unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In his opposition to Defendant's motion, Plaintiff claims that he was denied legal assistance for "over a month" and that the responses to his F.O.I.L. requests "omit[ted] the defendant as being present at the time of the investigation, for the purpose [of] being confronted at the Hearing." (Dkt. No. 36 at 10.) During his deposition, Plaintiff testified that on December 16, 2010, he spoke with C.O. Ahearn, who "was assigned as my assistant in helping me obtain requested documents and to get in touch with possible witnesses." (Dkt. No. 33-5 at 52.) On December 19, 2010, Plaintiff had a second conversation with Ahearn. Id. at 53. Plaintiff requested, but did not receive, a copy of the urinalysis request, the strip search request, and the log book for the FRP area. (Dkt. No. 33-5 at 53.) Ahearn told Plaintiff that he could not obtain the paperwork that Plaintiff requested. Id. Plaintiff was then, "left on his own." Id.
On December 20, 2010, at approximately 2:27 p.m., the Tier III disciplinary hearing commenced. (Dkt. No. 33-1 at 24.) Before any testimony was offered or any evidence presented, Griffin gave Plaintiff a copy of the Misbehavior Report and his letter to "Mustaph." Id. At 2:37 p.m., Griffin adjourned the hearing so that Plaintiff could review the documentation. Id. at 27. Twenty-three days later, on January 12, 2011, the hearing resumed. Id. After Russo and Barg testified, Plaintiff asked Griffin to call Officer Segal. (Dkt. No. 33-1 at 31.) The hearing was adjourned so that Griffin could contact Segal. Id. at 32. On January 18, 2011, the hearing resumed. Id. After Segal testified, Griffin asked Plaintiff if he had any other witnesses or if he wished to make a statement. Id. at 33. Griffin noted that one of Plaintiff's witnesses, Meineke, was not present and would be called to testify upon his arrival, along with any other witnesses Plaintiff wished to call. Id. Plaintiff indicated that he needed to retrieve paperwork in his cell. Id. The hearing was adjourned and resumed on January 24, 2011. Id. After Meineke and DeJesus testified, Plaintiff asked Griffin to call Torres. (Dkt. No. 33-1 at 35.) Plaintiff also advised Griffin that he previously requested a copy of the strip frisk and urinalysis authorization but that his legal assistant did not provide the documents. Id. at 36. Griffin told Plaintiff that he would provide him with copies of those documents and adjourned the hearing. Id.
On February 14, 2011, the hearing resumed. Id. After Wilson testified, Griffin noted, "the record indicates that you were given copies of some of the documents you requested by your assistant and by a sergeant, is that correct?" Id. at 37. Plaintiff replied, "Yes sir." (Dkt. No. 33-1 at 38.) Griffin then asked, "[d]id you have any questions you want to make or any statements that you want to make in regards to those documents you received?" Id. Plaintiff responded, "No." Id. Plaintiff then asked Griffin to call Torres to testify and the hearing was adjourned. Id. On February 25, 2011, the hearing resumed and Torres testified. (Dkt. No. 33-1 at 38.) While questioning Torres, Plaintiff referred to the documents he was provided regarding the strip frisk. See id. at 39. Plaintiff asked Griffin to call one further witness, Mikesh, and the hearing was adjourned. Id. at 40. On March 2, 2011, the hearing resumed and Mikesh was questioned. Id. At the completion of Mikesh's testimony, Griffin asked Plaintiff if he received the "2176 form" explaining why Griffin was denying Plaintiff's request to call Livingston and McCrone. (Dkt. No. 33-1 at 42.) Plaintiff responded in the affirmative. Id.
After an exhaustive review of the hearing transcript, the Court finds that even assuming Ahearn's assistance was inadequate, no reasonable factfinder could conclude that the deprivation resulted in any prejudice to Plaintiff. There is no evidence that Plaintiff was unable to present a defense or that the result of Plaintiff's hearing would have been any different had Ahearn supplied Plaintiff with the requested documents in December 2010. See Lewis v. Murphy, No. 9:12-CV-0268 (NAM/CFH), 2014 U.S. Dist. LEXIS 102659, at *36, 2014 WL 3729362, at *13 (N.D.N.Y. July 25, 2014) (the plaintiff alleged that his counselor failed to interview witnesses but did not show how this shortcoming prejudiced the results). Plaintiff testified, at the beginning of the hearing, that he understood the charges in the Misbehavior Report. (Dkt. No. 33-1 at 23.) Plaintiff was given ample opportunity, with several adjournments, to prepare for the hearing. Moreover, Griffin provided Plaintiff with all requested documentation/evidence. See Murray, 2014 U.S. Dist. LEXIS 68665, at *48-49, 2014 WL 4676569, at *19 (the record established that the hearing officer took steps to provide the inmate with the requested evidence). Griffin permitted Plaintiff to call six witnesses and provided Plaintiff with sufficient time to question each witness. The questions posed by Plaintiff to Russo, Barg, Segal, DeJesus, and Meineke regarding the "out of place" charge clearly indicate that Plaintiff understood the charge. See Dkt. No. 33-1 at 29-34; see also Lewis, 2014 U.S. Dist. LEXIS 102659, at *37, 2014 WL 3729362, at *13 (the questions posed by the inmate demonstrated that he had an understanding of the bribery charge). Similarly, Plaintiff's questions to Mikesh reveal that he had an understanding of the "correspondence procedures." See Dkt. No. 33-1 at 40-41.
Accordingly, the Court finds that Plaintiff did not suffer from any constitutional violation as a result of the purported lack of assistance.
c. Opportunity to Be Heard and Present Witnesses
An accused prisoner has the right to a hearing where he is given a reasonable opportunity to call witnesses and present documentary evidence. Sira, 380 F.3d at 69. The record establishes that Plaintiff was present at the hearing, able to call witnesses, question witnesses and offer evidence. Plaintiff does not dispute that he was given an opportunity to be heard. With respect to the two witnesses that Griffin refused to call, Griffin stated, on the record,
I'm going to answer it on the form 2176 which is a witness interview notice. And basically, what it says is Livingston 10a2302 permission to call his witnesses [is] denied. The request[ed] witnesses no [sic] other [relevant] testimony as to Moore entering FRP trailer. Inmate Moore is being [alleged] to ha[ve] gone inside trailers on numerous occasions without authorization. The [hearing officer] will [concede that the witness will testify that Moore did not go into his trailer during Livingston's visit.] Also on inmate McCrone. . . the request[ed] witness [has] no relevant testimony as to inmate Moore entering numerous . . . FRP trailers. The hearing officer concedes . . . the fact that this witness will testify that Moore never entered this trailer during his visit.(Dkt. No. 33-1 at 31; 53.)
The Witness Interview Notice Form is part of the record herein (see Dkt. No. 33-1 at 53) but the document is not in proper evidentiary form.
The Court finds that no triable issue of fact exists as to whether Plaintiff had an opportunity to appear and call witnesses.
d. Impartial Hearing Officer and "Some Evidence"
An accused prisoner has the right to have a fair and impartial hearing officer preside over his disciplinary hearing. Sira, 380 F.3d at 69. "It is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citations omitted); see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("We recognize that the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally. Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process."). Prison officials "enjoy a rebuttable presumption that they are unbiased." See Rodriguez v. Selsky, No. 9:07-CV-0432 (LEK/DEP), 2011 U.S. Dist. LEXIS 21023, at *34, 2011 WL 1086001, at *11 (N.D.N.Y. Jan. 25, 2011) (citation omitted). However, "both DOCS regulations and the law of this Circuit prohibit a prison official who was involved in investigating the underlying charges from acting as a hearing officer." Silva v. Sanford, No. 91 Civ.1776 (KMW)(KAR), 1994 U.S. Dist. LEXIS 11568, at *38, 1994 WL 455170, at *12 (S.D.N.Y. Aug. 18, 1994) (internal citation omitted) (the hearing officer was the watch commander at time of the incident and received reports from other officers regarding the incident); see also Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976) ("[N]o person who has participated in the investigation of [the] acts complained of or who has been a witness to such acts could be a member of a . . . Superintendent's Proceeding relating to those acts."). However, "the mere involvement of a hearing officer in related investigations or proceedings does not evidence bias." Phelan v. Hersch, No. 9:10-CV-0011 (GLS/RFT), 2011 U.S. Dist. LEXIS 140025, at *32-33, 2011 WL 6031940, at *9 (N.D.N.Y. Sept. 13, 2011) (citations omitted). "A hearing officer may satisfy the standard of impartiality if there is some evidence in the record to support the findings of the hearing." Fernandez v. Callens, No. 06-CV-0506(Sr), 2010 U.S. Dist. LEXIS 115496, at *36, 2010 WL 4320362, at *12 (W.D.N.Y. Oct. 29, 2010) (internal quotation marks and citation omitted). To establish a constitutional violation, the hearing officer must "present a hazard of arbitrary decisionmaking." Black v. Selsky, 15 F. Supp. 2d 311, 317 (W.D.N.Y. 1998) (citing Wolff, 418 U.S. at 571).
Here, Plaintiff claims that Griffin should not have presided over his disciplinary hearing because Griffin was present on the day of the incident and investigated the incident. (Dkt. No. 36 at 6-7.) Defendant argues that he was not part of the investigation and further, that he did not issue the subject Misbehavior Report. (Dkt. No. 37 at 4-6.)
The record indicates that Griffin ordered the strip frisk of Plaintiff and was present in the FRP area when Plaintiff was escorted, by other officers, for the search. However, Griffin did not participate in the actual search and there is no evidence that Griffin was present during the search of Plaintiff or his cell. Based upon the record herein, the Court finds that Griffin's involvement in the incident does not, without more, equate to bias and impartiality. See Madera v. Goord, 103 F. Supp. 2d 536, 541 (N.D.N.Y. 2000) (the hearing officer ordered the search but was not involved in the search or its execution) but cf. Silva, 1994 U.S. Dist. LEXIS 11568, at *38, 1994 WL 455170, at *12 (the hearing officer was involved in the investigation and told someone before the hearing began the punishment he would impose); compare Vigliotti v. Selsky, No. 08-CV-00875-JJM, 2014 U.S. Dist. LEXIS 51442, at *16, 2014 WL 1451984, at *5 (W.D.N.Y. April 14, 2014) (question of fact with respect to the hearing officer's impartiality as he was the "reporting person" on the Unusual Incident Report and was responsible to "insure that the report [was] complete and factual"). Plaintiff has failed to cite to any portion of the hearing transcript that establishes Griffin's predisposition to finding Plaintiff guilty or any other mishandling of the testimony, evidence or procedure that would indicate bias. Plaintiff claims that Griffin, "intentionally [lied] about his part in the investigation, . . . to ensure that Plaintiff was transferred out of his jail; for reasons being that a large amount of contraband found in an area exposed to civilians and other inmates. Defendant charged Plaintiff to no avail, (the first ticket) then trumped up another ticket to fit the incident of the first failed attempt." (Dkt. No. 36 at 7-8.) These conclusory and speculative allegations are unsupported by competent, admissible evidence. See Rodriguez, 2011 U.S. Dist. LEXIS 21023, at *34, 2011 WL 1086001, at *11 (the plaintiff's conclusory allegations of bias, due to hearing officer seeking assistance from the author of the misbehavior report, were unsupported by evidence and failed to suggest a predetermination on the hearing officer's part or impact on the proceedings). The Court has reviewed the entire hearing transcript and finds no evidence that Griffin was biased or predisposed to any conclusion. Indeed, the transcript establishes that Plaintiff was permitted to call six witnesses in his defense, present documents in support of his defense, pose relevant questions to all witnesses, and make objections.
On Page 10 of Plaintiff's Memorandum of Law, Plaintiff recites a conversation that allegedly occurred during the disciplinary hearing. However, Plaintiff does not cite to any portion of the record supporting that recitation. Further, on it's own accord, the Court has reviewed the hearing transcript and finds no support in the record for Plaintiff's allegations. See Dkt. No. 36 at 10.
While not addressed in his opposition, during Plaintiff's deposition Plaintiff stated that on "several" occasions throughout the hearing Griffin turned the tape off during the proceeding. (Dkt. No. 33-5 at 55.) Due process does not require that proceedings be recorded. See Livingston v. Griffin, 9:04-CV-00607-JKS, 2007 U.S. Dist. LEXIS 36941, at *17, 2007 WL 1500382, at *5 (N.D.N.Y. May 21, 2007) (while it may be contrary to New York law, the failure to record a part of the proceeding or use a defective recorder that does not accurately record the entire proceeding does not violate constitutional due process); see also Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (New York State's regulation requiring that a disciplinary hearing be recorded does not impute a federal constitutional protection). The "failure to record the entire [h]earing [does] not deprive Plaintiff of any minimum requirements of due process." Scott v. Frederick, No. 9:13-CV-605, 2014 U.S. Dist. LEXIS 179705, at *40-41, 2015 WL 127864, at *15 (N.D.N.Y. Jan. 8, 2015) (citing Ramsey v. Goord, 661 F. Supp. 2d 370, 393 (W.D.N.Y. 2009) (failure to record a portion of Plaintiff's disciplinary hearing did not rise to a due process violation)).
Moreover, the record shows that Griffin's determination of guilt was supported by "some evidence" as required in Hill, 472 U.S. at 455, and "reliable evidence" pursuant to Luna, 356 F.3d at 488. The evidence considered in Plaintiff's disciplinary hearing included the Misbehavior Report; the letter to inmate Mustaph; and testimony from Russo. The Misbehavior Report was written by Russo, who participated in the investigation, frisk, and inspection and interviewed Plaintiff. Thus, Russo had first hand knowledge of the events. See Hinton v. Prack, No. 9:12-CV-1844 (LEK/RFT), 2014 U.S. Dist. LEXIS 126955, at *39, 2014 WL 4627120, at *15 (N.D.N.Y. Sept. 11, 2014) (citation omitted) ("some evidence" standard satisfied where the misbehavior report was made by the officer personally involved in the incident and was based upon his first hand observation and detailed account of the incident). Plaintiff has not come forward with evidence of any motive for Russo to falsely accuse Plaintiff or any reason to doubt the conclusions in the Misbehavior Report. See Reed v. Terbush, No. 9:10-CV-1449 (LEK/RFT), 2015 U.S. Dist. LEXIS 68963, at *11, 2015 WL 3447743, at *5 (N.D.N.Y. May 28, 2015). While the guilty determination was later reversed, there was "some evidence" to support Griffin's decision that Plaintiff was guilty of the charges set forth in the Misbehavior Report. See Shabazz v. Bezio, No. 9:10-CV-1212 (NAM/DEP), 2014 U.S. Dist. LEXIS 134904, at *5, 2014 WL 4794432, at *2 (N.D.N.Y. Sept. 25, 2014) (the guilty determination was later reversed but the plaintiff testified during the hearing that he refused to cut his hair, which supported the due process requirement that there be "some evidence" to support the decision to find the plaintiff guilty of refusing to obey a direct order). Further, Plaintiff's reliance upon DOCCS regulations governing hearing officers to create a constitutional violation is misplaced. "[A]bsent some proof of actual bias," a violation of state regulations regarding the assignment of hearing officers does not rise to the level of a constitutional violation. See Russell v. Coughlin, 774 F.Supp. 189, 197 (S.D.N.Y. 1991) (rev'd on other grounds) 15 F.3d 219 (2d Cir. 1993) aff'd 35 F.3d 61 (2d Cir. 1994). The Court finds that Griffin was impartial and that his guilty determination was supported by "some evidence" sufficient for due process.
It is undisputed that Plaintiff received a written decision with the evidence relied upon and the reasons for the determination.
Based upon the aforementioned, the Court finds that Plaintiff received due process during his Tier III disciplinary hearing with respect to his December 14, 2010, Misbehavior Report. Therefore, I recommend that Griffin's motion for summary judgment be granted on the grounds that he did not violate Plaintiff's due process rights.
B. Res Judicata
In further opposition to Defendant's motion, Plaintiff claims that the charges in the December 14, 2010, Misbehavior Report are barred by the doctrine of res judicata and the December 3, 2010, Misbehavior Report. (Dkt. No. 36 at 10-11.) Plaintiff relies upon In re Gustus, 883 N.Y.S.2d 624 (N.Y. App. Div. 2009). See Dkt. No. 36 at 11. Defendant argues that In re Gustus does not apply because the charges in the December 3, 2010, Misbehavior Report were dismissed before Plaintiff's Tier III disciplinary hearing was held. (Dkt. No. 33-8 at 10.)
In In re Gustus, the plaintiff received a misbehavior report for fighting and refusing a direct order in an incident on April 17, 2007. See In re Gustus, 883 N.Y.S.2d at 625. After a Tier III hearing, the plaintiff was found guilty of both charges. Id. Upon appeal, the charge of fighting was dismissed. Id. A few days after the incident, as a result of an investigation of the same incident, the plaintiff received a second misbehavior report charging him with assaulting an inmate and engaging in violent conduct. Id. Following a second Tier III hearing, the plaintiff was found guilty. Id. The plaintiff commenced an Article 78 proceeding claiming that the second determination was barred by res judicata. Id. The State Supreme Court dismissed the petition and the State Appellate Division reversed. Id.
The Court noted that "res judicata bars a cause of action that was raised and adjudicated, or which could have been raised or adjudicated, in a prior action of proceeding." Id. (citing In re Burgess, 729 N.Y.S.2d 203, (N.Y. App. Div. 2001)). The Court held that both misbehavior reports charged the plaintiff with violations related to his conduct on April 17, 2007. Id. Moreover, while the second report was generated with additional information, that information was available before the first hearing began. Id. Indeed, the hearing on the second report commenced one hour after the first hearing was completed. Id. "Because the two misbehavior reports charged violations concerning one incident and all of the information necessary to support the charges was available before the commencement of the first hearing, the hearing on the second misbehavior report was barred by the doctrine of res judicata." Id. at 626. (citation omitted).
An exception to the res judicata doctrine may exist where there is newly discovered, material evidence. In re Josey, 826 N.Y.S.2d 479 (N.Y. App. Div. 2006). Moreover, res judicata does not apply if the factual bases for the disciplinary determinations are based upon different conduct. In re Alicea, 968 N.Y.S.2d 736 (N.Y. App. Div. 2013) (finding that res judicata did not bar a hearing on a second misbehavior report that charged the plaintiff with possessing gang-related material when first misbehavior report charged the plaintiff with possessing contraband, an altered item, and forgery).
Here, Plaintiff was served with a Tier III Misbehavior Report prepared by Sgt. Parkhurst and dated December 3, 2010. (Dkt. No. 34 at 3.) The Misbehavior Report charged Plaintiff with the following violations: 113.13 Inmate shall not possess alcohol; 113.17 Inmate shall not possess unauthorized jewelry; 113.21 Inmate shall not possess non-approved media; and 113.22 Inmate shall not possess article where it is prohibited. Id. On or about December 4, 2010, Plaintiff wrote a letter to an inmate in the facility law library with regard to the December 3, 2010, Misbehavior Report. Id. at 4. On December 7, 2010, Plaintiff was released from the SHU and advised that the charges in the December 3, 2010, Misbehavior Report had been dropped because Plaintiff did not receive timely notice of the charges. Id. at 5. On December 15, 2010, Plaintiff received a copy of a Tier III Misbehavior Report, written by Captain Russo, dated December 14, 2010. Id. at 6. The December 14, 2010, Misbehavior Report charged Plaintiff with the following violations: 107.20 Lying; 130.11 Failing to Follow Correspondence Procedures; 109.10 Out of Place; and 103.20 Solicitation. Id.
The Court finds that the doctrine of res judicata does not bar the disciplinary hearing because the issues raised in the two misbehavior reports are not "identical." The second misbehavior report charged Plaintiff with different conduct arising out of the same incident as the first misbehavior report. The second misbehavior report was issued based upon events that occurred after the first misbehavior report was prepared; i.e., Plaintiff's letter to "Mustaph." The information upon which the second misbehavior report was based was not available at the time the first report was prepared. To the extent that Plaintiff is attempting to assert "collateral estoppel," the doctrine only bars relitigation of an issue if the identical issues were "necessarily decided" in a prior action and the party to be precluded from relitigating had a "full and fair opportunity" to litigate the issue in the prior action. See Sidney v. Fischer, No. 9:09-CV-1326 (GTS/ATB), 2012 U.S. Dist. LEXIS 137180, at *32-33, 2012 WL 4450015, at *8 (N.D.N.Y. Jan. 3, 2012). In this case, the first misbehavior report was dismissed prior to the commencement of the disciplinary hearing. Therefore, the parties did not have the opportunity to fully and fairly litigate the issues.
C. Qualified Immunity
"The doctrine of qualified immunity shields public officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Salahuddin, 467 F.3d at 273 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
For a constitutional right to be 'clearly established' for purposes of determining whether an officer is entitled to qualified immunity, the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.'Mollica v. Volker, 229 F.3d 366, 370 71 (2d Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (emphasis in original). Even if a state official violates a plaintiff's constitutional rights, the official is afforded protection under the qualified immunity doctrine if "he objectively and reasonably believed that he was acting lawfully." Creech v. Schoellkoph, 688 F. Supp. 2d 210, 215 (N.D.N.Y. 2010) (citing Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)) ("The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.") (citation and internal quotation marks omitted).
In light of the foregoing, I recommend that in the event Griffin is not found to be entitled to summary judgment on the grounds that he did not violate Plaintiff's due process rights, that he be granted summary judgment on qualified immunity grounds because his conduct did not violate clearly established statutory or constitutional rights.
ACCORDINGLY, it is
RECOMMENDED that Defendant's motion for summary judgment (Dkt. No. 33) be GRANTED ; and it is further
ORDERED, that the Clerk provide Plaintiff with copies of Murray v. Arquitt, No. 9:10-CV-1440 (NAM/CFH), 2014 U.S. Dist. LEXIS 68665, 2014 WL 467656 (N.D.N.Y. Sept. 18, 2014); Lewis v. Johnson, No. 9:08-CV-482 (TJM/ATB), 2010 U.S. Dist. LEXIS 98116, 2010 WL 3785771 (N.D.N.Y. Aug. 5, 2010); Lewis v. Murphy, No. 9:12-CV-0268 (NAM/CFH), 2014 U.S. Dist. LEXIS 102659, 2014 WL 3729362 (N.D.N.Y. July 25, 2014); Rodriguez v. Selsky, No. 9:07-CV-0432 (LEK/DEP), 2011 U.S. Dist. LEXIS 21023, 2011 WL 1086001 (N.D.N.Y. Jan. 25, 2011); Silva v. Sanford, No. 91 Civ. 1776 (KMW) (KAR), 1994 U.S. Dist. LEXIS 11568, 1994 WL 455170 (S.D.N.Y. Aug. 18, 1994); Phelan v. Hersch, No. 9:10-CV-0011 (GLS/RFT), 2011 U.S. Dist. LEXIS 140025, 2011 WL 6031940 (N.D.N.Y. Sept. 13, 2011); Fernandez v. Callens, No. 06-CV-0506(Sr), 2010 U.S. Dist. LEXIS 115496, 2010 WL 4320362 (W.D.N.Y. Oct. 29, 2010); Vigliotti v. Selsky, No. 08-CV-00875-JJM, 2014 U.S. Dist. LEXIS 51442, 2014 WL 1451984 (W.D.N.Y. April 14, 2014); Livingston v. Griffin, No. 9:04-CV-00607-JKS, 2007 U.S. Dist. LEXIS 36941, 2007 WL 1500382 (N.D.N.Y. May 21, 2007); Scott v. Frederick, No. 9:13-CV-605, 2014 U.S. Dist. LEXIS 179705, 2015 WL127864 (N.D.N.Y. Jan. 8, 2015); Hinton v. Prack, No. 9:12-CV-1844 (LEK/RFT), 2014 U.S. Dist. LEXIS 126955, 2014 WL 4627120 (N.D.N.Y. Sept. 11, 2014); Reed v. Terbush, No. 9:10-CV-1449 (LEK/RFT), 2015 U.S. Dist. LEXIS 68963, 2015 WL 3447743 (N.D.N.Y. May 28, 2015); Shabazz v. Bezio, No. 9:10-CV-1212 (NAM/DEP), 2014 U.S. Dist. LEXIS 134904, 2014 WL 4794432 (N.D.N.Y. Sept. 25, 2014); and Sidney v. Fischer, No. 9:09-CV-1326 (GTS/ATB), 2012 U.S. Dist. LEXIS 137180, 2012 WL 4450015 (N.D.N.Y. Jan. 3, 2012).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: August 4, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge