Muhammad v. Pico

Full title: ISMAA'IYL F. MUHAMMAD, Plaintiff, against JOSE PICO, LT. DANIEL CONNOLLY…

Court: United States District Court, S.D. New York

Date published: Aug 5, 2003

02 Civ. 1052 (AJP) (S.D.N.Y. Aug. 5, 2003)

Opinion

02 Civ. 1052 (AJP)

August 5, 2003

Valerie Singleton, Esq.

OPINION AND ORDER

ANDREW PECK, Magistrate Judge

Pro se plaintiff Ismaa'iyl F. Muhammad, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by various DOCS employees. Muhammad alleges that (1) Fahiym Mahmud, Lieutenant Daniel Connolly, and Sergeant John Dolan conspired to violate his First Amendment free exercise of religion rights; and that (2) defendants Jose Pico, Lt. Connolly, Sgt. Dolan, Donald Selsky, Betty Easter, and Norman Baltuch violated his Fourteenth Amendment procedural due process rights in connection with a Tier III disciplinary hearing. (See generally Dkt. No. 2: Compl.; Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") After the close of discovery, defendants Pico, Connolly, Easter, Mahmud, Selsky, and Dolan moved for summary judgment. (Dkt. Nos. 36-47: Defs.' S.J. Mot. Papers.) Defendants Easter, Dolan, and Baltuch also moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6), claiming (1) lack of personal involvement by Easter; (2) lack of personal jurisdiction over Dolan; and (3) expiration of the statute of limitations as to Baltuch. (Dkt. Nos. 50-51: Notice of Mot. to Dismiss Br.)

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 28.)

For the reasons set forth below: (1) Muhammad's free exercise and conspiracy claims are dismissed without prejudice for failure to exhaust administrative remedies; (2) defendants' summary judgment motion on Muhammad's due process claim is denied due to lack of evidence in the record and issues of material fact in dispute; (3) defendants Sgt. Dolan and Lt. Connolly are granted summary judgment dismissing Muhammad's due process claim for lack of personal involvement; (4) defendant Easter's motion to dismiss Muhammad's due process claim is denied; and (5) defendant Baltuch's motion to dismiss Muhammad's due process claim is denied because the amended complaint relates back to the timely-filed original complaint.

FACTS

Muhammad, who is currently incarcerated at Clinton Correctional Facility, was an inmate at Green Haven and Downstate Correctional Facilities when the events at issue took place in May 1997. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim"; Dkt. No. 5: Muhammad 2/21/02 Aff. ¶ 3; Dkt. No. 40: Defs. 56.1 Stmt. ¶¶ 18, 22, 25.) Muhammad is serving a 1984 sentence of twenty-five years to life imprisonment for second degree murder. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 12-13.) The Defendants

At the time of the events at issue, defendants Connolly, Mahmud, and Dolan were employed at Green Haven: Connolly as a Lieutenant (Dkt. No. 41: Connolly Aff. ¶ 1), Mahmud as a Muslim chaplain, or imam¹ (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 40), and Dolan as a Sergeant (Dkt. No. 42: Dolan Aff. ¶ 1).² Defendants Easter and Baltuch were employed at Downstate: Easter as a Corrections Officer³ (Dkt. No. 21: 2/14/03 Conf. Tr. at 11), and Baltuch as a Corrections Counselor (Dkt. No. 44: Pico Aff. ¶ 7). Defendant Pico was a DOCS Commissioner's Hearing Officer (Pico Aff. ¶ 2), and defendant Selsky was (and still is) DOCS' Director of Special Housing/Inmate Disciplinary Program (Dkt. No. 45: Selsky Aff. ¶ 1).

1 An imam is "the leader of prayer in a Muslim mosque" or "any of various Muslim leaders and rulers." Webster's New World Dictionary 673 (3d Coll. Ed. 1994) (hereafter "Webster's Dictionary").

2 The Court will refer herein to the positions held by the defendants at the time of the events in issue.

3 The parties disagree on defendant Easter's identity. Based on his personal recollection, Muhammad claims that Betty "Easton" was a civilian "key-punch spec[ialist]" employed at Downstate. (Am. Compl. Attach. at 1.) However, defendants claim that Muhammad is incorrect, and that Betty "Easter" was and still is a Corrections Officer at Downstate. (2/14/03 Conf. Transcript at 11.)

Inmate Hostile Reaction to the Cell Shop Program

Green Haven Correctional Facility has an Industry Program employing two hundred to two hundred fifty inmates. (Dkt. No. 43: Smith Aff. ¶ 5.) In May 1997, Green Haven's work shop introduced a new program, employing thirty to forty-five inmates trained in welding, plumbing, mechanical engineering, and electrical wiring, to install prefabricated modular prison cells.⁴ (Id. ¶¶ 4, 5, 8.) Shortly after the introduction of the cell shop program, many inmates refused to continue to participate in the Industry Program. (Id. ¶ 8.) George Smith, the Senior Industrial Superintendent responsible for supervising the inmates employed in the cell shop, learned from some of the inmate employees that they were being harassed by other inmates and threatened with violence if they continued to build cells. (Id. ¶¶ 1, 8; see also Dkt. No. 41: Connolly Aff. ¶¶ 5-8.) According to Supt. Smith, the reason given for the threatened violence was that "the pre-fabricated cells being constructed would eventually be used to house additional prisoners, including family members of current inmates at Green Haven." (Smith Aff. ¶ 9.)

4 The program was created in an effort to alleviate overcrowding in New York State prisons. (Id. ¶ 3.) After being built and assembled at off-site locations, the cells were transported to the prison for installation. (Id.; see also Dkt. No. 41: Connolly Aff. ¶ 4.)

Supt. Smith stated that the threats against these inmates created a very tense atmosphere and led to a sharp decline in the cell shop's recruitment of new inmates. (Id. ¶ 11.) What was once a sought-after, high-paid work detail with little turnover became a source of serious concern for DOCS, with the inmate and civilian employees fearful of being assaulted by inmates opposed to the cell shop program. (Id. ¶¶ 5, 11-13.) As a result of the threats, Green Haven officials were forced to take measures to protect the cell shop inmate-employees, including moving them from the general population to a self-contained unit, and partitioning off the assembly shop with a curtain to prevent any other inmates from looking into the shop and determining who was working in the cell shop. (Smith Aff. ¶ 10; Dkt. No. 41: Connolly Aff. ¶ 9.) Sergeant George Schwartzman and defendant Sgt. John Dolan were ordered to commence an investigation to identify the instigators of the inmate work stoppage and the" 'enforcers'" who carried out the threats. (Connolly Aff. ¶ 6.)

The Investigation

In the course of their investigation, Sgt. Schwartzman and Sgt. Dolan interviewed a number of confidential informants and obtained information regarding the threats. (Dkt. No. 42: Dolan Aff. ¶¶ 5-6.) According to Sgt. Dolan, these "informants came forward because they did not like the idea of being terrorized" and because "some inmates in the cell shop wanted the opportunity to earn the higher wages;" the "informants were not offered any favors by the administration" in exchange for the information. (Id. ¶ 8.) According to Sgt. Dolan, the informants claimed that Muhammad was one of about ten inmates who played a part in the "Terror Campaign." (Dolan Aff. ¶ 6.) Specifically, they stated that Muhammad was "one of those instigating a demonstration to stop inmates from building cells." (Id.) Lt. Connolly, who was responsible for supervising all uniformed officers (Dkt. No. 41: Connolly Aff. ¶ 1), reviewed the investigation and verified that the confidential informants were credible and reliable, and that independent sources corroborated the information they provided. (Connolly Aff. ¶ 6.) Lt. Connolly personally interviewed some of the cell shop inmate-employees to confirm the investigation's findings. (Id. ¶¶ 7-8.)

Following Lt. Connolly's review of the investigation, he concluded that Muhammad and nine other inmates were involved in the "Terror Campaign." (See Connolly Aff. ¶ 10 Ex. A: 5/8/97 Lt. Connolly Memo to Superintendent Artuz; see also Dkt. No. 42: Dolan Aff. ¶ 6.) As a result, Sgt. Dolan issued Muhammad an "Inmate Misbehavior Report" on May 9, 1997, charging him with a violation of Rule 104.12.⁵ (Dolan Aff. ¶ 7.) The Misbehavior Report stated that:

5 Rule 104.12 provides that "Inmates shall not lead, organize, participate, or urge other inmates to participate, in work-stoppages, sit-ins, lock-ins, or other actions which may be detrimental to the order of facility." 7 N.Y.C.R.R. § 270.2(B)(5)(iii). Such a violation subjects an inmate to a Tier II or Tier III disciplinary hearing.Id.

During an interview with an inmate as to why he would not work in the metal assembly shop (cell shop), he informed Sgt. Sch[w]artzmann and myself on a confidential basis, that various inmates and groups were making threats against those who would build cells. Remarks such as "anyone who would build cells should/would be cut." "You build cells, we will burn yours." Inmate MUHAMMAD 84 A. 3231 was identified as one of the inmates in this campaign of terror by this source. Due to the fact that this source was unproven, other sources who have proven reliable in the past were questioned in regards to this situation. These sources confirmed inmate MUHAMM[A]D's involvement in this campaign of terror.

This has been an ongoing investigation.

(Dolan Aff. Ex. A: 5/9/97 Inmate Misbehavior Report.) Because the administration perceived the threats and their effect on the cell building program to be a serious problem for the facility, Christopher Artuz, then Superintendent of Green Haven, directed that the instigators and enforcers be transferred to other correctional facilities. (Connolly Aff. ¶ 11 Ex. B; see also Dolan Aff. ¶ 9.)⁶ Muhammad's Disciplinary Hearing, Sentencing, and Administrative Appeals

6 The decision as to which facility to transfer Muhammad (and the others) was made by DOCS officials in Albany. (See Connolly Aff. ¶ 12.)

On May 10, 1997, all inmates believed to have been involved in the "Terror Campaign" were transferred out of Green Haven. (Dkt. No. 42: Dolan Aff. ¶ 9; see also Dkt. No. 41: Connolly Aff. ¶ 11.) Muhammad was transferred to Downstate Correctional Facility. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") Also on May 10, Muhammad was served with a copy of the May 9, 1997 Misbehavior Report (Dkt. No. 44: Pico Aff. ¶ 7 Ex. B at 2), which put him on notice that he would be receiving a Tier III disciplinary hearing⁷ during which a hearing officer would "hear and determine allegations of rule violations contained in the misbehavior reports. . . ." 7 N.Y.C.R.R. § 252.2. Pursuant to 7 N.Y.C.R.R. § 254.4,⁸ defendant Corrections Counselor Baltuch was assigned to provide Muhammad with employee assistance in preparing for the Tier III hearing. (Pico Aff. ¶ 7.) The misbehavior report was referred to the facility superintendent for designation of a hearing officer to conduct a Superintendent's Hearing (i.e., a Tier III hearing), and defendant Jose Pico was designated to preside over the hearing. (Pico Aff. ¶ 8.)

7 As summarized by the Second Circuit:

New York conducts three types of disciplinary hearings for its inmates. Tier I hearings address the least serious infractions and have as their maximum punishment loss of privileges such as recreation. Tier II hearings address more serious infractions and may result in 30 days of confinement in an SHU [Special Housing Unit]. Tier III hearings concern the most serious violations and may result in unlimited SHU confinement (up to the length of the sentence) and recommended loss of "good time" credits.

Scott v. Albury, 156 F.3d 283, 285 n. 1 (2d Cir. 1998); accord, e.g., Hynes v.Squillace, 143 F.3d 653, 655 n. 1 (2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246 (1998); 7 N.Y.C.R.R. §§ 252.5(a), 254.1-7, 270.3(a); see also, e.g.,Louis v. Ricks, 01 Civ. 9368, 2002 WL 31051633 at *2 n. 5 (S.D.N.Y. Sept. 13, 2002) (Peck, M.J.); Jackson v.Johnson, 15 F. Supp.2d 341, 355 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *6 n. 7 (S.D.N.Y. Apr. 24, 1998) (Peck, M.J.);Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *1 (S.D.N.Y. Mar. 24, 1997) (Peck, M.J.); Duncan v.Keane, 93 Civ. 6026, 1996 WL 511573 at *1 (S.D.N.Y. Aug. 22, 1996) (Baer, D.J. Peck, M.J.); Zamakshari v.Dvoskin, 899 F. Supp. 1097, 1101 n. 1 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.).

8 Section 254.4 provides that: "The inmate shall be provided with an assistant in accordance with the provisions of Subpart 251-4 of this Subchapter." Furthermore, § 251-4.2 provides that:

The assistant's role is to speak with the inmate charged, to explain the charges to the inmate, interview witnesses and to report the results of his efforts to the inmate. He may assist the inmate in obtaining documentary evidence or written statements which may be necessary. The assistant may be required by the hearing officer to be present at the disciplinary or superintendent's hearing.

Muhammad's Tier III disciplinary hearing began on May 13, 1997 at Downstate Correctional Facility. (Pico Aff. ¶ 9 Ex. C.) Muhammad pleaded not guilty to the charges (Pico Aff. Ex. C) and requested that the following Green Haven witnesses testify on his behalf: two correction officials, including defendant Lt. Connolly; the Industrial Superintendent in charge of the cell shop; defendant Easter; and six inmates. (Pico Aff. ¶ 10 Ex. C.) Hearing Officer Pico called defendants Sgt. Dolan and Counselor Baltuch to testify. (Id.) According to Pico, Muhammad was allowed to question all witnesses except inmate Kevin Coppege, who refused to testify, and Corrections Officer Tabacnick, whose testimony Pico believed would have been redundant. (Pico Aff. ¶ 11.) See also 7 N.Y.C.R.R. § 254.5 (2002).⁹ Hearing Officer Pico asserts that he independently verified the information obtained from the confidential informants and found that it was "very detailed and specific" and credible. (Pico Aff. ¶ 13.) Pico further found that Muhammad "was not able to contradict the information or the allegations" contained in the misbehavior report. (Id.) Pico found Muhammad guilty of demonstration and imposed a penalty of 730 days keeplock confinement, with an equivalent loss of package, commissary, and phone privileges. (Id. ¶ 14.)¹⁰ Muhammad's contradictory testimony about the conduct of the Tier III hearing is discussed on pages 14-16 below.

9 Section 254.5(a) sets the rules for inmate witnesses:

(a) The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.

10 "The Second Circuit has described keeplock as 'a form of administrative [or disciplinary] segregation in which the inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates.'" Silva v.Sanford, 1998 WL 205326 at *6 n. 7 (quoting Soto v.Walker, 44 F.3d 169, 171 (2d Cir. 1995) (quotingGittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989)));accord, e.g., Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *3 (S.D.N.Y. Mar. 9, 2000) (Peck, M.J.),report rec. adopted as modified on other grounds, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.),aff'd, 8 Fed. Appx. 35, 2001 WL 388057 (2d Cir. Apr. 16, 2001);see also, e.g., Jermosen v.Coughlin, No. 98-2318, 198 F.3d 233 (table), 1999 WL 822528 at *1 n. 1 (2d Cir. Sept. 27, 1999) (quoting Gittens v.LeFevre, 891 F.3d at 39); Jenkins v.Haubert, 179 F.3d 19, 21 (2d Cir. 1999); Wright v.Coughlin, 132 F.3d 133, 135 (2d Cir. 1998) ("Keeplock confinement, a form of administrative segregation in which an inmate is confined to his cell and denied participation in normal prison activities, as well as telephone and commissary privileges.");Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995) ("Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities; it is also used as an administrative confinement for prehearing housing of inmates facing disciplinary hearings.").

According to DOCS personnel: under typical conditions of keeplock, Muhammad was to be confined to his cell for twenty-three hours per day with one hour of exercise outside his cell. (Dkt. No. 45: Selsky Aff. ¶ 6.)¹¹ Muhammad also could participate in an in-cell study program, with access to books and periodicals from the law library and general library, but he could not participate in any out-of-cell programs.¹² (Id. ¶ 9.) Muhammad, in contrast, states that while he could read his own books while in keeplock, he could not participate in DOCS' G.E.D. program or other formal DOCS study programs. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 142-43.) He also testified that the keeplock cell was "hot" and "filthy," that inmates can cut their face on the keeplock cell's rim, and that there are more fights. (Id. at 140-45.) He also stated that he was placed in the "long-term keeplock block, which is considered a SHU section of [that] jail," and so conditions were different — worse — than keeplock in other jails. (Id. at 144-45.)

11 He could leave his "cell for purposes such as showers, visitation, legal visits, visits to the medical department, and guidance/counselor interviews." (Selsky Aff. ¶ 6.)

12 Inmates in the general population spend a significant amount of time outside their cells attending one or two out-of-cell programs per day. (Selsky Aff. ¶ 9.) Each program lasts two and one-half to three hours. (Id.) Furthermore, even inmates in maximum facility prisons in the general population are limited to one hour of daily exercise and three showers per week. (Id. ¶ 8.)

Following defendant Pico's Tier III decision, Muhammad appealed to the Commissioner. (Selsky Aff. ¶ 12.) See 7 N.Y.C.R.R. § 254.8. Defendant Selsky, as Director of the Inmate Disciplinary Program, received the appeal on June 9, 1997. (Selsky Aff. ¶ 12.) Selsky reviewed the "Inmate Misbehavior Report, Superintendent Hearing Disposition Rendered form, Assistance Forms, Hearing Records Sheet, and other documentary evidence," and affirmed the Hearing Officer's guilty determination on July 30, 1997. (Id. ¶¶ 13-14; see also Dkt. No. 38: Singleton Aff. Ex. J: Review of Superintendent's Hearing.) Finding that "the nature of [Muhammad's] misconduct did not warrant the penalty imposed" (Id.), Selsky reduced the punishment to 365 days keeplock and an equivalent loss of privileges. (Selsky Aff. ¶ 14; Singleton Aff. Ex. J.) Muhammad submitted a letter request for reconsideration, which Selsky received on August 6, 1997. (Selsky Aff. ¶ 15.) Selsky further reduced Muhammad's sentence to 180 days keeplock — 138 days for time-served from May 9 to September 26, and forty-two days suspended. (Id. ¶ 17-18.)¹³ Thus, Muhammad was in keeplock from May 9, 1997 to September 26, 1997. (See Selsky Aff. ¶ 19.) Muhammad's Complaint

13 Selsky's final reduction came after a discretionary review of Muhammad's keeplock confinement by Captain Aidala at Elmira Correctional Facility, where Muhammad then was incarcerated. (Selsky Aff. ¶ 17; Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 141.)

Muhammad commenced this § 1983 action by filing a pro se complaint dated February 25, 2000, received by this Court's Pro Se Office on December 13, 2000, and filed as of February 11, 2002.¹⁴ (Dkt. No. 2: Compl.) Muhammad obtained leave from the Court and filed an amended complaint on February 21, 2003 to add Norman Baltuch as a defendant after obtaining his name from discovery material. (Dkt. No. 23: Am. Compl.) Muhammad seeks a reversal of the Tier III disciplinary hearing, and expungement of the Tier III guilty determination from his prison record, as well as compensatory and punitive damages "in an amount fitting these gross-violations." (Am. Compl. ¶ 5 "Relief.")

14 Muhammad's complaint was signed on February 25, 2000, a date "well within the three-year limitations period" for a § 1983 action. (Dkt. No. 4: 2/11/02 "60 Day" Order at 2.) However, it was not post-marked until December 9, 2000. (Id.) The Court directed Muhammad to "show cause, by affirmation, why his claims should not be dismissed as time-barred." (Id.) Muhammad responded that he had submitted his complaint and all relevant submissions to prison officials who failed to mail them until December. (Dkt. No. 5: Muhammad 2/21/02 Aff. ¶ 8.) He further claimed that his limitations period did not start running until he received the response to his final request for reconsideration from defendant Selsky in early 1998. (Id. ¶ 10.) Therefore, according to Muhammad, he had until early 2001 to file his complaint under § 1983 and his complaint was filed before the expiration of the statute of limitations. The defense has not raised any objections to Muhammad's affirmation, i.e., does not claim that the statute of limitations has run as to the defendants named in the original complaint.

In his complaint, Muhammad denies all involvement with the "Terror Campaign," and alleges that the process by which he was transferred out of Green Haven and found guilty of a rule 104.12 violation "shocks ones very sense of fair-ness" and was laden with Constitutional violations. (Am. Compl. Attach. at 6.) Free Exercise of Religion and Conspiracy Claims

Muhammad alleges that he was the victim of a conspiracy by defendants Mahmud, Connolly, and Dolan to prevent him from freely exercising his chosen religion, Islam. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") Muhammad claims that "in the spring of 97 the Muslim community at Green Haven . . . was going-thru problems due to a state-agent 'def. Mahmud' pushing sectarian-ism[,] calling for the majority Sunnis to suppress the minority Shi'as and drive them physically out of the masjid, "¹⁵ infringing upon his right to practice the Shiite faith. (Am. Compl. ¶ 4 "Statement of Claim.") Muhammad, a purported Shiite elder in the DOCS Muslim community, states that he spoke out against Mahmud's "foul-plot," repeatedly criticizing Mahmud's oppression of the Shiites and insisting that the Muslim chaplains and DOCS start offering Shiite classes, library materials, and the opportunity to hear guest speakers. (Am. Compl. ¶ 4 "Statement of Claim"; Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 35-47, 58-60.) Muhammad further claims that because of his admonition of the Imam and his anti-Shiite sentiments, Mahmud lied to prison authorities to have Muhammad implicated in the cell shop terror campaign, placed in SHU away from the general population, and transferred from Green Haven to a prison in upstate New York. (Am. Compl. ¶ 4 "Statement of Claim.") Muhammad alleges that defendants Sgt. Dolan and Lt. Connolly conspired with defendant chaplain Mahmud to frame Muhammad through the use of confidential informants that Muhammad calls "snitches/liars." (Am. Compl. Attach. at 4.)¹⁶

15 A Sunni (or "Sunnite") is "a member of one of the two great sects of Muslims: Sunnites approve the historical order of the first four caliphs as the rightful line of succession to Mohammed and accept the Sunna as an authoritative supplement to the Koran." Webster's Dictionary at 1342. On the other hand, "Shiites consider Ali, Mohammed's son-in-law and the fourth of the caliphs, as the first Imam and the rightful successor of Mohammed, and do not accept the Sunna as authoritative." Id. at 1237. "Masjid" is the Arabic word for mosque, the Muslim temple or place of worship. Id. at 831.

16 Additionally, Muhammad claims that he was under a medical hold at the time of the incident, which should have prevented his transfer from Green Haven to Downstate. (Am. Compl. ¶ 4 "Statement of Claim.") The complaint alleges that Muhammad signed a release to this hold under duress from Dolan and Connolly, fearing that they would place him in Administrative Segregation for "who knows how long." (Id.)

Mohammad concedes that he did not file any formal grievances regarding the free exercise claims; he stated that he only mentioned the problems to prison officials in passing, and that he wrote some complaint letters to the DOCS Central Office. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 66-67; see also Dkt. No. 47: Eagen Aff. ¶ 3-4 Ex. A; Dkt. No. 46: Alexis Aff. ¶¶ 1-4.)

Due Process Claims

Muhammad also asserts that defendants Dolan, Connolly, Baltuch, Easter, Pico, and Selsky violated his procedural due process rights through their involvement with the May 9, 1997 misbehavior report and the Tier III disciplinary hearing at Downstate.¹⁷ First, Muhammad alleges that the misbehavior report endorsed by Sgt. Dolan and Lt. Connolly, was "defective as a matter of law fact because it[']s too vague." (Dkt. No. 23: Am. Compl. Attach. at 2.) Muhammad claims that the misbehavior report should have made more specific factual allegations regarding the alleged role of each of the accused in the "Terror Campaign" and the specific acts of which they were being accused, in order for each defendant to be on notice of the charges being brought against them. (Id.) Indeed, Muhammad claims that the misbehavior report that he received, and the misbehavior reports that others accused of being involved in the "Terror Campaign" received, were virtually carbon copies. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 95, 106, 110-11.)

17 While Muhammad's amended complaint does not expressly reference the Due Process Clause, his allegations, construed liberally, claim a denial of due process in the Tier III disciplinary hearings following the issuance of his May 9, 1997 misbehavior report. (Am. Compl. ¶ 4 "Statement of Claim.") see, e.g., Nelson v.Rodas, 01 Civ. 7887, 2002 WL 31075804 at *1 nn. 3-4 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.) (liberally construing pro se plaintiff's complaint where plaintiff's submissions were "not a model of clarity");see also, e.g., LaBounty v.Kinkhabwala, No. 99-0329, 2 Fed. Appx. 197, 200-01, 2001 WL 99819 at *2-3 (2d Cir. Feb. 5, 2001) (reversing dismissal of procedural due process claim arising out of petitioner's disciplinary hearing).

Second, Muhammad claims that he was denied "basic meaningful assistance" from defendant Baltuch because Baltuch failed to fulfill his statutory obligations to assist him in preparing for the Tier III hearing. (Dkt. No. 23: Am. Compl. ¶ 4 Attach. at 1-2;see Muhammad Dep. at 116-21.) According to Muhammad, Baltuch did not verify Muhammad's identity when he first met him, did not confirm that Muhammad understood and spoke English, and did not confirm that Muhammad understood the charges against him. (Id.) Muhammad also claims that Baltuch never properly addressed his requests for documents and failed to interview witnesses and report the results of those interviews to him. (Id.) see 7 N.Y.C.R.R. § 251-4.2 (quoted at page 7 fn.8 above). Finally, Muhammad asserts that Baltuch wrongfully allowed defendant Easter to decide that he could not have certain documents that he needed to mount a meaningful defense. (Am. Compl. Attach. at 1-2; Muhammad Dep. at 116, 118.) Baltuch allegedly violated Muhammad's rights when he let Easter "overstep her bounds" by denying Muhammad his "regulatory or statutory rights under DOCS Rules." (Muhammad Dep. at 115-16.) Defendant Easter thus allegedly "interfered with the assistant's job" (Id.), depriving Muhammad of due process protection.

Third, Muhammad claims that he did not receive due process during the hearing conducted by defendant Pico. He alleges that Pico, a "[DOCS] hired-gun," violated "so many [of his] basic rights (some blatantly others not so clearly)." (Am. Compl. Attach. at 1-2.) The complaint states that Pico "illegally" held simultaneous Tier III hearings for several inmates involved in the terror campaign, which Muhammad claims is not authorized. (Am. Compl. ¶ 4 "Statement of Claim"; Am. Compl. Attach. at 2; see Muhammad Dep. at 129, 139.) Muhammad asserts that this caused Pico to commit serious mistakes regarding his case — e.g., calling the wrong witnesses and placing evidence from another case in Muhammad's folder. (Am. Compl. Attach. at 2; Muhammad Dep. at 134-35.) Muhammad also claims that Pico did not allow him to fully question witnesses, in order to prevent him from exposing that state agents working for DOCS violated the rights of all those accused of organizing the "Terror Campaign." (Am. Compl. Attach. at 2;see Muhammad Dep. at 121-22, 130-32, 136.) Furthermore, the complaint maintains that a "gross vio[lation] took place" because the entire Tier III hearing was not on tape, and that Pico issued some off-the-record "thinly-veiled threats" to preclude Muhammad from questioning more witnesses if he continued to object to Pico's rulings. (Am. Compl. Attach. at 3.) Muhammad asserts that Pico relied too heavily on information provided by self-serving confidential informants and prevented Muhammad from obtaining evidence from these informants and from other sources. (Id. at 4-5.) The complaint also maintains that the hearing violated Muhammad's due process rights because it was not started and completed "in a timely-fashion as ordered by Chap[ter] V" and that Hearing Officer Pico obtained an extension of time to complete the hearing (Id. at 3) in an attempt to cover up the fact that Baltuch had provided Muhammad with inadequate assistance (Id. at 2-3). Muhammad concludes by asserting that the entire hearing was based upon "rumors, past-charges, and old reputations" and that Pico was biased, predetermined Muhammad's guilt, failed to consider evidence in Muhammad's favor, failed to marshal the evidence, and had "a plot to under-mine [Muhammad's] defense by doing a host of negative things," including sabotaging Muhammad's defense by refusing to hear the witnesses in Muhammad's preferred order. (Am. Compl. Attach. at 4, 8; Muhammad Dep. at 164-65, 168.)

Finally, Muhammad claims that he is suing Selsky both in his supervisory position and as an individual, because "he could have stopped this train a long time ago and he refused to." (Muhammad Dep. at 123.) Muhammad explained that he wrote three letters to Selsky to inform him of the "frame-up in Green Haven" and to request reconsideration of the Tier III hearing disposition, and that Selsky should have expunged plaintiff's record on the basis of the letters. (Id. at 123-24.) Muhammad claims that Selsky's failure to do so constituted a violation of his due process rights. (Id.)

Procedural Background

After the close of discovery, on March 28, 2003, defendants Pico, Connolly, Mahmud, and Selsky filed a summary judgment motion. (Dkt. No. 36: Defs.' Notice of S.J. Mot.) Defendants claim that: (1) Muhammad failed to allege a due process claim because his confinement in keeplock was not unconstitutional (Dkt. No. 37: State S.J. Br. at 4-16); (2) they are entitled to qualified immunity (Id. at 16-20); and (3) Muhammad did not exhaust his administrative remedies with regard to the freedom of religion and conspiracy claims (Id. at 20-23). On June 2, 2003, defendants Easter, Dolan, and Baltuch filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2) and (6). (Dkt. No. 50: State Notice of Mot. to Dismiss.) Defendant Easter claimed that she does not meet the personal involvement requirement of § 1983. (Dkt. No. 51: State Mot. to Dismiss Br. at 2-4.) Defendant Baltuch asserts that Muhammad's claims against him are time-barred, because the complaint was not amended to include him as a defendant until after the expiration of the § 1983 three-year limitations period. (Id. at 4-5.) Defendant Dolan alleges that the Court does not have personal jurisdiction over him, because Muhammad did not serve him with the summons and complaint. (Id. at 6-7.)

ANALYSIS

I. MUHAMMAD'S FREE EXERCISE OF RELIGION CLAIM AND RELATED CONSPIRACY CLAIM ARE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES a. Exhaustion of Administrative Remedies

Under 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 ("PLRA"), a prisoner must exhaust administrative remedies before bringing suit in federal court under federal law:

No 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). This provision requires complete exhaustion in accordance with the administrative procedures within the New York State Department of Correctional Services ("DOCS"). Exhaustion is required even when a prisoner seeks a remedy that cannot be awarded by such administrative procedures. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (2002); Booth v.Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825 (2001).¹⁸ The Supreme Court has made clear that there are no exceptions to the PLRA's exhaustion requirement:

18 see also, e.g., Beharry v.Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003); Rivera v.Pataki, 01 Civ.5179, 2003 WL 21511939 at *4, 8 (S.D.N.Y. July 1, 2003); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *2 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.).

[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.

Porter v. Nussle, 534 U.S. at 532, 122 S.Ct. at 992.¹⁹

19 Accord, e.g., Feaster v.United States Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15, 16, 2002 WL 970941 at *1 (2d Cir. May 10, 2002) (applyingPorter v. Nussle holding to require exhaustion of prisoner's due process and retaliation claims); Rodney v.Goord, 00 Civ. 3724, 2003 WL 21108353 at *1, 3 (S.D.N.Y. May 15, 2003) (requiring exhaustion of claims of harassment, excessive force, and the filing of a false misbehavior report and subsequent disciplinary action); Rivera v. Goord, 253 F. Supp.2d 735, 745-46 (S.D.N.Y. 2003); Nelson v. Rodas, 2002 WL 31075804 at *2.
Prior to the Supreme Court's decision in Porter v.Nussle, the Second Circuit had ruled that claims like Muhammad's which applied only to the plaintiff, such as "particular instances of assault or excessive force," did not relate to general "prison conditions" and thus were not subject to the PLRA's exhaustion requirement. Nussle v. Willette, 224 F.3d 95, 106 (2d Cir. 2000), rev'd, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002). In Porter v. Nussle, the Supreme Court reversed, declaring that claims of every sort relating to prison life — including claims for excessive force against an individual inmate — had to be exhausted before an action could be commenced in this Court pursuant to 42 U.S.C. § 1983.Porter v. Nussle, 122 S.Ct. at 988; see also Lawrence v. Goord, 238 F.3d 182, 185 (2d Cir. 2001) (retaliation claims need not be exhausted), vacated, 535 U.S. 901, 122 S.Ct. 1200 (2002).

Dismissal of an action for failure to comply with the PLRA is without prejudice. E.g., Morales v. Mackalm, 278 F.3d 126, 128, 131 (2d Cir. 2002) (per curiam) (Second Circuit "clarif[ies] that if a district court dismisses a prisoner's complaint for failure to exhaust administrative remedies, it should do so without prejudice.").²⁰

20 See also, e.g., Townsend v.Armstrong, No. 02-0175, 2003 WL 21309185 at *1 (2d Cir. June 5, 2003); De La Motte v. Menifee, No. 01-0313, 40 Fed. Appx. 639, 639, 2002 WL 1635422 at *1 (2d Cir. July 23, 2002);Stevens v. Goord, 99 Civ. 11669, 2003 WL 21396665 at *4 (S.D.N.Y. June 16, 2003); Nelson v. Rodas, 2002 WL 31075804 at *2.

DOCS has a well-established inmate grievance procedure ("IGP"):

It consists of three levels. The first is the filing of a complaint with the facility's Inmate Grievance Review Committee. The second is an appeal to the facility superintendent. The final level is an appeal to the DOCS Central Office Review Committee in Albany. . . . A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.

Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002).²¹

21 see also, e.g., Rivera v.Pataki, 2003 WL 21511939 at *3; Rodney v.Goord, 2003 WL 21108353 at *4 n. 2; Nelson v.Rodas, 2002 WL 31075804 at *2; Perez v.Blot, 195 F. Supp.2d 539, 542-43 (S.D.N.Y. 2002);Cruz v. Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999); Vasquez v. Artuz, 97 Civ. 8427, 1999 WL 440631 at *5 (S.D.N.Y. June 28, 1999) (Peck, M.J.); N.Y. Correct. Law §§ 138-39; 7 N.Y.C.R.R. § 701.1, et seq.

Muhammad did not exhaust DOCS' grievance procedures with respect to the free exercise of religion claim and the related conspiracy claim.²² Muhammad concedes that although Sullivan Prison (where he was confined at the time he filed the complaint) had a prisoner grievance procedure, he did not "present the facts relating to [his] complaint in the state prisoner grievance procedure." (Dkt. No. 23: Am. Compl. ¶ 2(A)-(B).) Muhammad's failure to grieve this claim was confirmed by Richard Alexis, the Inmate Grievance Program Supervisor at Green Haven, who stated that Muhammad did not file any grievances at Green Haven in 1997. (Dkt. No. 46: Alexis Aff. ¶¶ 1-4; see also Dkt. No. 47: Eagen Aff. ¶¶ 1-4 Ex. A (no record of any relevant grievance appeals to Central Office Review Committee).) Muhammad's testimony provides further evidence that he did not follow the formal grievance procedure with respect to these claims. When asked if he filed a formal grievance Muhammad answered that he "[didn't] know it if was a formal grievance." (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 67.) He explained that he wrote numerous letters of complaint regarding the persecution of the Shiites directly to the facility Superintendent (Id. at 41), DOCS Central Office (Id. at 67), the "Deputy Superintendent of Programs" (Id.), and outside masjids (Id.); he also had informal discussions with prison officials in hallways (Id.), and discussions with Deputy Supt. of Security George Snyder during a hearing on an unrelated disciplinary matter (Muhammad Dep. at 104).

22 Defendants do not contend that Muhammad failed to exhaust his due process claim. (see Dkt. No. 37: State S.J. Br. at 20-23;see also Dkt. No. 18: Answer ¶ 2 ("disciplinary hearing determinations are non grievable matters"); Dkt. No. 51: State Mot. to Dismiss Br. Ex. B: 2/14/02 Conf. Tr. at 15.) In fact, Muhammad effectively exhausted his due process claim. An inmate in Muhammad's situation exhausts his administrative remedies by raising his due process-based objections to a prison disciplinary process in an administrative appeals process, not by filing a separate grievance following the IGP. see, e.g., LaBounty v.Johnson, 253 F. Supp.2d 496, 501 (W.D.N.Y. 2003);Flanagan v. Maly, 99 Civ. 12336, 2002 WL 122921 at *2 (S.D.N.Y. Jan. 29, 2002) ("When an inmate challenges the procedure at a disciplinary hearing . . ., he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal. . . . Once the alleged deprivation of rights has been approved at the highest level of the state correctional department to which an appeal is authorized, resort to additional internal grievance mechanisms would be pointless."), accord Khalid v. Reda, 00 Civ. 7691, 2003 WL 42145 at *4-5 (S.D.N.Y. Jan. 23, 2003); Mack v. Artuz, 01 Civ. 11832, 2002 WL 31845087 at *6 (S.D.N.Y. Dec. 19, 2002); Samuels v. Selsky, 01 Civ. 8235, 2002 WL 31040370 at *8 (S.D.N.Y. Sept. 12, 2002). Muhammad appealed the Tier III hearing disposition to the Commissioner and further submitted a request for consideration. (see page 10 above.)

District court decisions in this circuit have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.²³ see,e.g., Rivera v. Pataki, 2003 WL 21511939 at *8 n. 12; Nelson v. Rodas, 2002 WL 31075804 at *3; Saunders v. Goord, 98 Civ. 8501, 2002 WL 1751341 at *3 (S.D.N.Y. July 29, 2002) ("It is well established that '[p]laintiffs may not bypass this procedure by sending letters directly to the superintendent.'"); Byas v. State, 99 Civ. 1673, 2002 WL 1586963 at *2 (S.D.N.Y. July 17, 2002) ("Prisoners may not bypass this procedure [in 7 N.Y.C.R.R. § 701.11(b)] by sending letters directly to the superintendent.") (citing cases); Nunez v. Goord, 99 Civ. 4640, 2002 WL 1162905 at *1 (S.D.N.Y. June 3, 2002) (inmate's letter to prison Superintendent in lieu of filing grievance failed to exhaust excessive force claim); Hemphill v. New York, 198 F. Supp.2d at 548-49 (same; letter to Superintendent does not satisfy 7 N.Y.C.R.R. § 701.11); Mills v. Garvin, 99 Civ. 6032, 2001 WL 286784 at *3 (S.D.N.Y. Mar. 2, 2001) (inmate's letters to prison officials were insufficient to exhaust his administrative remedies; "letter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA."); Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *12 n. 23 (S.D.N.Y. July 21, 2000) (Peck, M.J.) ("The Court notes that simple letter complaints to the Commissioner of the New York State Department of Correctional Services about excessive force and medical indifference appear quite common, and such complaints are not normally sufficient to serve as a proxy for following and exhausting proper administrative remedies.") (citing cases), report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.).²⁴

23 Grant v. Hollins, No. 02-0106, 65 Fed. Appx. 351, 353, 2003 WL 21105357 at *1 (2d Cir. May 14, 2003) ("This Court has not yet determined whether and in what circumstances a letter to a prison superintendent will be sufficient to satisfy the exhaustion requirement" of the PLRA.). In Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001), the Second Circuit noted that where the inmate used "informal channels" that resolved the issue in his favor, that satisfied the exhaustion requirement. Here, there is no evidence in the record that Muhammad's informal complaints resolved matters in his favor, and soMarvin is inapplicable.

24 see also, e.g., Beatty v.Goord, 210 F. Supp.2d 250, 255-56 (S.D.N.Y. 2000) (complaint dismissed without prejudice for failure to exhaust where inmate sent letters to prison medical director, Superintendent and Commissioner rather than following IGP); Adams v. Galletta, 96 Civ. 3750, 1999 WL 959368 at *3 (S.D.N.Y. Oct. 19, 1999) (letter to warden insufficient to exhaust administrative remedies);Salahuddin v. Mead, 95 Civ. 8581, 1997 WL 357980 at *4 (S.D.N.Y. June 26, 1997) (letter to Superintendent and Commissioner insufficient to exhaust), rev'd on other grounds, 174 F.3d 271 (2d Cir. 1999).

In short, Muhammad's free exercise of religion and related conspiracy claims have not been administratively exhausted, and therefore should be dismissed without prejudice.

b. Total Exhaustion Issue

Defendants also argue — in passing, in the last substantive sentence of their summary judgment brief — that pursuant to the PLRA's requirement that "no action" may be brought until administrative remedies are exhausted, 42 U.S.C. § 1997e(a), Muhammad's failure to exhaust his free exercise of religion and related claims requires the Court to dismiss the "complaint in its entirety." (Dkt. No. 37: State S.J. Br. at 23.)

The issue therefore is whether the PLRA compels a rule of "total exhaustion" — whether a district court must dismiss a prisoner's entire § 1983 action if some but not all claims are administratively unexhausted, or if the Court may dismiss only those claims that are unexhausted while ruling on the exhausted claims. The decisions are divided on the issue. Some require "total exhaustion." see,e.g., Julian-Bey v. Crowley, No. 00-2313, 24 Fed. Appx. 393, 395, 2001 WL 1555950 at *2 (6th Cir. Dec. 3, 2001) (dismissing "mixed" complaint; rejecting argument that "the exhaustion of at least one claim is sufficient to prevent dismissal"); Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) ("When multiple prison condition claims have been joined, as in this case, the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.").²⁵ Other decisions, however, do not require total exhaustion. see,e.g., Byers v. Strachan, No. 03-1028, 2003 WL 21456241 at *2 (6th Cir. June 20, 2003) ("The court may address the merits of exhausted claims and dismiss only those that are unexhausted. . . . However, [plaintiff] has not cited any authority which requires the district court to do so."); McElhaney v.Elo, No. 98-2173, 230 F.3d 1358 (table), 2000 WL 1477498 at *3 (6th Cir. Sept. 25, 2000) ("If a [§ 1983] complaint contains exhausted and unexhausted claims, the district court may address the merits of the exhausted claims and dismiss only those that are unexhausted."); Riley v. Richards, No. 99-1327, 210 F.3d 372 (table), 2000 WL 332013 at *2 (6th Cir. Mar. 23, 2000) (same); Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (same); Johnson v. True, 125 F. Supp.2d 186, 188 (W.D. Va. 2000) ("total exhaustion" rule contradicts congressional intent and policy), appeal dismissed, 32 Fed. Appx. 692 (4th Cir. 2002); Cooper v. Garcia, 55 F. Supp.2d 1090, 1094-95 (S.D. Cal. 1999) (same); Jenkins v.Toombs, 32 F. Supp.2d 955, 958-59 (W.D. Mich. 1999) (same).

25 see also, e.g., Smeltzer v.Hook, 235 F. Supp.2d 736, 743-46 (W.D. Mich. 2002);Rivera v. Whitman, 161 F. Supp.2d 337, 339-43 (D.N.J. 2001) (plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a "total exhaustion" rule); Lira v. Director of Corr. of State of Calif., No. C 00-905, 2002 WL 1034043 at *3 (N.D. Cal. May 17, 2002); Thorp v. Kepoo, 100 F. Supp.2d 1258, 1263 (D. Haw. 2000); Keenan v. Twommey, No. 1:97-cv-549, 1999 U.S. Dist. LEXIS 11829 at *2-17 (W.D. Mich. July 29, 1999),aff'd, No. 99-2030, 229 F.3d 1152 (table), 2000 WL 1175621 (6th Cir. 2000); Abenth v. Palmer, No. C 96-3938, 1997 WL 255332 at *1 (N.D. Cal. Apr. 28, 1997).

The Second Circuit has not addressed the issue, and the district court decisions in this circuit also are split. see Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) ("District courts in this circuit are currently split on the question of whether the PLRA requires such 'total exhaustion.'") (citing cases). Compare, e.g., Rivera v. Pataki, 01 Civ. 5179, 2003 WL 21511939 at *8 (S.D.N.Y. July 1, 2003) (dismissing the entire complaint without prejudice, giving the plaintiff "an opportunity to plead [all claims] again if he chooses to do so"); Vidal v.Gorr, 02 Civ. 5554, 2003 WL 43354 (S.D.N.Y. Jan. 6, 2003); Saunders v. Goord, 98 Civ. 8501, 2002 WL 1751341 at *3 (S.D.N.Y. July 29, 2002) (dismissing inmate complaint containing some unexhausted claims, citing "the plain language of 42 U.S.C. § 1997e(a)"), with Rivera v. Goord, 253 F. Supp.2d 735, 749, 753-54 (S.D.N.Y. 2003) ("I conclude by rejecting defendants' argument for the adoption of 'total' or dimick 'complete' exhaustion rule — that, under the PLRA, all of [plainiff's] claims must be dismissed for the failure to exhaust administrative remedies as to even one claim."); Dimick v. Baruffo, 02 Civ. 2151, 2003 WL 660826 at *5 (S.D.N.Y. Feb. 28, 2003) ("As Magistrate Judge Peck has noted, courts nationwide are divided on this issue, as are courts within this district. The Court agrees with the line of cases that allows the exhausted claims to proceed, despite the fact that claims against other defendants are unexhausted."); Espinal v.Coughlin, 98 Civ. 2579, 2002 WL 10450 at *1 (S.D.N.Y. Jan. 3, 2002) (dismissing unexhausted claims while ruling on merits of exhausted claims, without discussing why court could do so).

The Court need not try to predict what the Second Circuit (and eventually the Supreme Court) will do, nor take its own position in this general debate. At least on the particular facts of this case, the Court believes it appropriate to address the merits of the exhausted due process claim while dismissing the freedom to exercise and conspiracy claims without prejudice. see also Nelson v.Rodas, 2002 WL 31075804 at *5-6 (taking same approach);cf. Byers v. Strachan, 2003 WL 21456241 at *2 (district court may, but is not required to, address merits of exhausted claims and dismiss unexhausted claims).

Here, it is significant that the free exercise and the conspiracy claims are easily separated from the due process claim since they involve discrete events and can be analyzed independently. Even under these facts, the Court could dismiss the entire action without prejudice. However, I see no reason why the Court cannot exercise its discretion in these particular circumstances to dismiss without prejudice the separable freedom of religion and conspiracy claims while reaching the merits of the fully exhausted due process claims. Accordingly, Muhammad's free exercise and conspiracy claims²⁶ are dismissed without prejudice as unexhausted, while the separable exhausted due process claims will be adjudicated on the merits in the following sections of this Opinion.²⁷

26 In the event that Muhammad exhausts administrative remedies with regard to the alleged conspiracy claim and files a new action, he is advised to adequately plead (and be able to prove) the elements of conspiracy to violate § 1983. "To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v.Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); accord,e.g., Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002) ("'complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct'") (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)); Stein v. Janos, 02 Civ. 01295, 2003 WL 21354605 at *5 (S.D.N.Y. June 4, 2003); Bullard v.City of New York, 240 F. Supp.2d 292, 301-02 (S.D.N.Y. 2003) (questioning whether Pangburn —Ciambriello standard for pleading survives the Supreme Court's "notice pleading" decision in Swierkiewicz v.Sorema N.A., 534 U.S. 506, 513-14, 122 S.Ct. 992, 998-99 (2002)); Nelson v. Rodas, 2002 WL 31075804 at *16; Espinal v. Goord, 00 Civ. 2292, 2001 WL 476070 at *10 (S.D.N.Y. May 7, 2001) (Peck, M.J.);Cipolla v. County of Rensselaer, 129 F. Supp.2d 436, 449 (N.D.N.Y.), aff'd, 20 Fed. Appx. 84, 2001 WL 1220521 (2d Cir. 2001); Santiago v. City of New York, 98 Civ. 6543, 2000 WL 1532950 at *8 (S.D.N.Y. Oct.17, 2000).

27 Muhammad's complaint can be liberally construed to include claims of medical indifference (Am. Comp. Attach. at 5) ("[I have been] deprived of needed daily meds prescribed by an outside neuro-specialist"), racial discrimination (Id. at 6) ("it was only Nubians (latinos [and] Blacks) targeted for punishment in the whole affair"), and excessive force (Id. at 7) ("I was assaulted by jack-booted security elites"). However, to the extent that these claims are separate from Muhammad's other claims, they should be dismissed for failure to exhaust administrative remedies, since there is no evidence in the record that Muhammad satisfied the grievance requirement of the PLRA.See cases cited in this section.

II. SUMMARY JUDGMENT AS TO THE DEFENDANTS IN GENERAL IS DENIED WITH RESPECT TO MUHAMMAD'S DUE PROCESS CLAIMS

A. Summary Judgment Standards in Section 1983 Cases ²⁸

28 For additional cases authored by this Judge discussing the summary judgment standards in Section 1983 cases, in language substantially similar to that in this entire section of this Opinion,see, e.g., Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *9-10 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *4-5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Espinal v.Goord, 00 Civ. 2242, 2001 WL 476070 at *5-7 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *5 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.);Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *4 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v.Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *4 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.);Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.).

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also,e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants.see, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. see, e.g.,Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord,e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513; see also, e.g.,Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36;Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party — here, Muhammad — only after determining that such inferences are reasonable, considering all the evidence presented.See, e.g., Apex Oil Co. v.DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v.TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. see,e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v.United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. see, e.g.,Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted."Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" such as Muhammad and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v.Coughlin, 999 F. Supp. at 535 (citations internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted" 'to raise the strongest arguments that they suggest'").²⁹ Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. see,e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic.");McPherson v. Coombe, 174 F.3d at 280-81 ("'[t]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted).³⁰ Defendants here served the appropriate notices on Muhammad. (Dkt. No. 36: Notice of Mot. for Summ. J.; Dkt. No. 39: 4/23/03 Notice to Pro Se Litigant Opposing Mot. for Summ. J.)

29 see also, e.g., Commer v.American Fed'n of State, County Mun. Employees, 02 Civ. 7930, 2003 WL 21698637 at * 1 (S.D.N.Y. July 17, 2003) ("[T]he Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held to 'less stringent standards than formal pleadings drafted by lawyers. . . .'"); Douglas v. Portuondo, 232 F. Supp.2d 106, 113 (S.D.N.Y. 2002).

30 see also, e.g., Trammell v.Coombe, No. 97-2622, 201 F.3d 432 (table), 1999 WL 1295856 at *2 (2d Cir. Dec. 23, 1999); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v.Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see generally S.D.N.Y. Local Civil Rule 56.2 (requiring service of notice explaining the requirements of Rule 56 on litigant proceeding pro se).

"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases);see also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.); Smith v.Planas, 975 F. Supp. 303, 305 n. 2 (S.D.N.Y. 1997).

B. Application of Sandin Analysis to Muhammad's 138 Days in Keeplock Confinement

Defendants' summary judgment motion on Muhammad's keeplock due process claim turns on the application of the Supreme Court's decision inSandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), which significantly changed the prisoner due process landscape. The Supreme Court there held:

[W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

515 U.S. at 483-84, 115 S.Ct. at 2300 (fns. citations omitted).³¹

31 In Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 2978-80 (1974), the Supreme Court set forth the minimum procedural due process requirements for prison disciplinary hearings. To meet these requirements, an inmate must receive: (1) "advance written notice of the claimed violation"; (2) "a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken"; and (3) the opportunity "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Cross-examination and the right to counsel are not required.Id. at 566-70, 94 S.Ct. at 2980-81. The Supreme Court also suggested (but did not order) that if the inmate is illiterate or the issue complex, he be given assistance from another inmate or a staff member. Id. at 570, 94 S.Ct. at 2982.

In Sandin, the prisoner was charged with a disciplinary infraction for physical interference with a correction officer, for using abusive or obscene language and for harassing employees. Id. at 475-76, 115 S.Ct. at 2295-96. The disciplinary committee refused the prisoner's request to present witnesses, found him guilty of the alleged misconduct, and sentenced him to thirty days disciplinary segregation in the prison's Special Holding Unit ("SHU"). Id. The Supreme Court found that the inmate was not entitled to the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974). Sandin v. Conner, 515 U.S. at 487, 115 S.Ct. at 2302. The Supreme Court stated:

We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. We note also that the State expunged Conner's disciplinary record with respect to the "high misconduct" charge nine months after Conner served time in segregation. Thus, Conner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction. Indeed, the conditions at Halawa [prison] involve significant amounts of "lockdown time" even for inmates in the general population. Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment.

Id. at 486, 115 S.Ct. at 2301 (fns. omitted).

As a result of Sandin, the Second Circuit follows a two-part standard that prisoners must satisfy to establish a procedural due process claim due to segregated confinement:

To prevail, [the plaintiff inmate] must establish both that [1] the confinement or restraint creates an "a typical and significant hardship" under Sandin, and that [2] the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.

Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996); accord, e.g., Anderson v.Recore, 317 F.3d 194, 199-200 (2d Cir. 2003); Taylor v. Rodriguez, 238 F.3d 188, 195-96 (2d Cir. 2001);Cruz v. Gomez, No. 99-0129, 2000 WL 85202 at *3 (2d Cir. Jan. 26, 2000); Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); Arce v. Walker, 139 F.3d 329, 333-34 (2d Cir. 1998); Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998).³²

32 see also, e.g., Gill v.DeFrank, 98 Civ. 7851, 2000 WL 270854 at *17 (S.D.N.Y. Mar. 9, 2000) (Peck, M.J.), report rec. adopted as modified on other grounds, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.),aff'd, 8 Fed. Appx. 35, 2001 WL 388057 (2d Cir. Apr. 16, 2001);Jackson v. Johnson, 15 F. Supp.2d 341, 356-57 (S.D.N.Y. July 23, 1998) (Kaplan, D.J. Peck, M.J.); Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *9-10 (S.D.N.Y. Apr. 24, 1998) (Peck, M.J.); Williams v. Keane, 95 Civ. 0379, 1997 WL 527677 at *4 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.);Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *5 (S.D.N.Y. Mar. 4, 1997) (Peck, M.J.); Santana v.Keane, 90 Civ. 6309, 1996 WL 465751 at *3 (S.D.N.Y. Aug. 14, 1996).

A prisoner who satisfies both of these elements would be entitled to the procedural due process protections enunciated by Wolff v.McDonnell, 418 U.S. at 556-58, 94 S.Ct. at 2974-75, and its progeny. see, e.g., Giano v.Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (findingSandin liberty interest and remanding to district court to consider whether plaintiff had received due process with respect to his placement in segregation);Gill v. DeFrank, 2000 WL 270854 at *17;Jackson v. Johnson, 15 F. Supp.2d at 357;Silva v. Sanford, 1998 WL 205326 at *10.³³

33 see also, e.g., Foxworth v.Selsky, No. 95-CV-1168, 1998 WL 59448 at *2, *4 (N.D.N.Y. Feb. 9, 1998); Charles v. Coughlin, 985 F. Supp. 88, 93 (E.D.N.Y. 1997); Nicholas v. Remillard, No. 92-CV-900, 1997 WL 711385 at *5 (N.D.N.Y. Nov. 13, 1997);Williams v. Keane, 1997 WL 527677 at *3 n. 1;Ruiz v. Selsky, 1997 WL 137448 at *5;Pacheco v. Vanwyck, No. 94-CV-456, 1997 WL 642540 at *8 (N.D.N.Y. Oct. 15, 1997); Barnes v. Starks, 95 Civ. 4891, 1996 WL 648956 at *3 n. 4 (S.D.N.Y. Nov. 6, 1996);Santana v. Keane, 1996 WL 465751 at *3 n. 1.
Because Muhammad's Tier III punishment did not involve loss of any good time credit, his Sandin due process claim is not barred by the Supreme Court's decision in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1554 (1997). see, e.g.,Sims v. Artuz, 230 F.3d 14, 24 (2d Cir. 2000);Jenkins v. Haubert, 179 F.3d at 25; Gill v.DeFrank, 2000 WL 270854 at *17 n. 29; Davis v.State of New York, No. 99-CV-0307, 1999 WL 1390247 at *4 n. 1 (W.D.N.Y. Dec. 14, 1999); Porter v. Coombe, 97 Civ. 2394, 1999 WL 587896 at *3 (S.D.N.Y. Aug. 4, 1999); Ramirez v.McGinnis, 75 F. Supp.2d 147, 151 (S.D.N.Y. 1999);Jackson v. Johnson, 15 F. Supp.2d at 347-50, 357-60;Silva v. Sanford, 1998 WL 205326 at *10-13. Indeed, defendants did not raise the Edwards issue in moving for summary judgment.

The Second Circuit has clearly instructed that the Sandin analysis requires a factual inquiry as to both the length and conditions of confinement. Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) (The Second Circuit's prior decisions "made clear that duration is not the only relevant factor. The conditions of confinement are a distinct and equally important consideration in determining whether a confinement in SHU rises to the level of 'atypical and severe hardship' as required by Sandin."); Taylor v.Rodriguez, 238 F.3d at 195 ("The inquiry into the severity of confinement assesses whether differences in conditions between a restrictive housing status and the general population or other restrictive statuses constitute a significant hardship. . . . Equally important, we have emphasized . . . that the duration of the claimed deprivation is to be taken into account in deciding whether the prisoner's confinement constitutes an atypical and significant hardship."); Colon v.Howard, 215 F.3d 227, 231 (2d Cir. 2000); Sealey v.Giltner, 197 F.3d 578, 586 (2d Cir. 1999) ("Both the conditions [of confinement] and their duration must be considered . . ., since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.").³⁴

34 see also, e.g., Hanrahan v.Doling, 331 F.3d 93, 98 n. 5 (2d Cir. 2003) ("The length of disciplinary confinement is one of the guiding factors in applyingSandin's 'atypical and significant hardship' test. Although highly relevant, the duration of confinement need not be the sole consideration in analyzing procedural due process claims underSandin."); Giano v. Selsky, 238 F.3d at 225; Sims v. Artuz, 230 F.3d at 22-23;Welch v. Bartlett, 196 F.3d 389, 393-94 (2d Cir. 1999), Arce v. Walker, 139 F.3d at 336;Wright v. Coughlin, 132 F.3d at 137; Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997) (noting the "desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement");Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) ("The language and analysis in Sandin make clear that the Court did not intend to suggest that discipline in segregated confinement could never present such an 'atypical, significant deprivation.' . . . [W]e now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. . . . [D]istrict courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest."); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997); Gill v. DeFrank, 2000 WL 270854 at *15.

Duration is one of the most important factors in that analysis.see, e.g., Sims v. Artuz, 230 F.3d at 23; Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998); Arce v. Walker, 139 F.3d at 336-37;Wright v. Coughlin, 132 F.2d at 136-37;Brooks v. DiFasi, 112 F.3d at 48-49; Gill v. DeFrank, 2000 WL 270854 at *18 n. 30 (citing cases).

Since Sandin, there has been considerable litigation regarding the issue of what duration of segregated confinement within a prison meets the Supreme Court's standards in Sandin. The Second Circuit has not set a bright line rule that any particular duration does, or does not, constitute an atypical and significant hardship. see, e.g., Sims v.Artuz, 230 F.3d at 23 ("We have not established a bright-line rule as to how lengthy a SHU confinement will be considered atypical and significant."); Colon v.Howard, 215 F.3d at 232-34 (Judge Newman proposed "establishing a bright-line rule that confinement in normal SHU conditions of more than 180 days meets the Sandin standard" of atypical and significant hardship, but the "majority of the panel . . . decided not to proceed with a bright-line approach"); Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999).

Muhammad served 138 days in keeplock.³⁵ (see page 10 above.) The Second Circuit has "advise[d] the district courts of this Circuit that in cases challenging SHU confinements of durations within the range bracketed by 101 days and 305 days, development of a detailed record will assist appellate review." Colon v.Howard, 215 F.3d at 232 (fn. omitted). Moreover, "[a]ggregative sentences of 125-288 days are 'relatively long,' requiring a district court to articulate specific findings before determining whether such confinement is atypical or significant." Taylor v.Rodriguez, 238 F.3d at 195; accord, e.g.,Sims v. Artuz, 230 F.3d at 23; Hynes v.Squillace, 143 F.3d 653, 658 (2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246 (1998). The Second Circuit has remanded numerous cases that dismissed Sandin claims on summary judgment, requiring "amplification of the record and more refined fact-finding." E.g., Colon v. Howard, 215 F.3d at 230 (citing Welch v. Bartlett, 196 F.3d at 393-95;³⁶ Brooks v. DiFasi, 112 F.3d at 49; Miller v. Selsky, 111 F.3d at 9 (2d Cir.);see also, e.g., Ortiz v. McBride, 323 F.3d at 196 (appointing appellate counsel for pro se appellant because of the "complexity" of the Sandin issues);LaBounty v. Kinkhabwala, No. 99-0329, 2 Fed. Appx. 197, 201, 2001 WL 99819 at *3 (2d Cir. Feb. 5, 2001) ("in most instances, [we] have remanded these cases for amplification of the record");Sims v. Artuz, 230 F.3d at 22-24;Kalwasinski v. Morse, 201 F.3d at 107-08 n. 10;Jermosen v. Coughlin, 1999 WL 822528 at *2. District court decisions in this circuit similarly have denied summary judgment where the inmate's segregation is between 101 and 305 days.see, e.g., Knight v. Keane, 247 F. Supp.2d 379, 392-93 (S.D.N.Y. 2002) (denying motion to dismiss where plaintiff confined to keeplock for 365 days); Cox v.Malone, 199 F. Supp.2d 135, 143 (S.D.N.Y. 2002) (dicta: "Other courts have held that . . . periods of confinement [of one year or less] raise an issue of material fact not suitable to summary judgment.") (citing cases), aff'd, No. 02-161, 56 Fed. Appx. 43, 2003 WL 366724 (2d Cir. Feb. 20, 2003); Amaral v. Greis, No. 00-CV-6299, 2001 WL 1705112 at *2 (W.D.N.Y. Nov. 5, 2001);Alvarez v. Coughlin, No. 94-CV-985, 2001 WL 118598 at *4 (N.D.N.Y. Feb. 6, 2001); Scott v. Coughlin, 78 F. Supp.2d 299, 306-12 (S.D.N.Y. 2000); Hutchinson v.Blaetz, 94 Civ. 3695, 1996 WL 374164 at *4 (S.D.N.Y. July 1, 1996); Hernandez v. Tiede, No. 94-CV-908S, 1996 WL 863453 at *5 (W.D.N.Y. May 29, 1996).

35 The durational test applies not to the potential penalty or even the penalty imposed, but to the actual period the plaintiff served in segregation. see, e.g., Hanrahan v.Doling, 331 F.3d at 99 n. 7; Colon v.Howard, 215 F.3d at 231 n. 4; Sealey v.Giltner, 197 F.3d at 587-88 n. 7; Scott v.Albury, 156 F.3d at 284, 286-88; Dixon v.Goord, 224 F. Supp.2d 739, 748 (S.D.N.Y. 2002);Jackson v. Johnson, 15 F. Supp.2d. at 361;Silva v. Sanford, 1998 WL 205326 at *14-15, 17 ( cases cited therein).

36 In remanding, the Second Circuit in Welch noted that: "Although confinement to one's cell for half the day has some similarity to such confinement for 23 hours a day, the difference seems to us to be great." Welch v. Bartlett, 196 F.3d at 393.

Because Muhammad's 138 day confinement falls between 101 and 305 days, the Second Circuit requires a detailed factual analysis that the Court cannot make on the current summary judgment record. Although theSandin standard of "atypical and significant hardship" involves an issue of law, factual disputes regarding the conditions and duration of the confinement must be resolved by the jury. see,e.g., Sealey v. Giltner, 197 F.3d at 585. Because the question of whether Muhammad has a protected liberty interest in not being confined to keeplock for 138 days raises a genuine issue of fact, the issue will be more appropriately decided at trial — at which Muhammad will have the assistance of appointed pro bono counsel.³⁷ C. Due Process at Muhammad's Disciplinary Hearing

37 The Court previously granted Muhammad's application for appointment of counsel (Dkt. No. 26: 3/7/03 Order; see also Dkt. No. 48: 3/6/03 Conf. Tr. at 35), but the Court's Pro Se Office has not yet found pro bono counsel for Muhammad. Now that the case is trial ready, it should be easier to find volunteer counsel, and the Court will make sure Muhammad has such counsel for his trial.

In addition to alleging that 138 days in keeplock confinement does not trigger a liberty interest under Sandin, defendants claim that Muhammad's due process claim should be dismissed because Muhammad did receive procedural due process protection at his Tier III disciplinary hearing. (Dkt. No. 36: State S.J. Br. at 9-16.)

The Court cannot grant summary judgment on this issue because the parties provide diverging views of whether proper procedures were followed before and at the hearing. As just one example, the parties disagree about whether Muhammad was allowed to call certain witnesses at his hearing: Muhammad claims that defendant Hearing Officer Pico violated his due process rights by refusing to allow him to call inmate Kevin Coppege and other inmates as witnesses and by failing to provide adequate explanations for curtailing Muhammad's questioning (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 131-32), while defendants claim that Coppege refused to testify on Muhammad's behalf and in any event his testimony would have been redundant. (Dkt. No 44: Pico Aff. ¶ 11;see also Dkt. No. 37: State S.J. Br. at 12.)

Summary judgment might have been possible if the Court were able to review the tape or transcript of Muhammad's Tier III hearing. Unfortunately, however, defendants have failed to provide the hearing tape or a transcript. (see Dkt. No. 37: State S.J. Br. at 14.) The Court cannot resolve the issues of material fact without the hearing tape or transcript, and therefore denies defendants' summary judgment motion.³⁸

38 Defendants also have raised a qualified immunity defense. (State S.J. Br. at 16-20.) The Court believes that such a defense is inappropriate in this case because qualified immunity is unavailable where the allegedly violated right is "clearly established."See, e.g., Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002); Martinez v.Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000); Young v. County of Fulton, 160 F.3d 899, 903 (2d. Cir. 1998);Espinal v. Goord, 00 Civ. 2242, 2001 WL 476070 at *11 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Freeman v.Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.). The rights to be afforded an inmate at a disciplinary hearing were "clearly established" in Wolff v.McDonnell (see page 30 fn.31 above) andSandin, before Muhammad's Tier III hearing. See,e.g., Hanrahan v. Doling, 331 F.3d 93, 98-99 (2d Cir. 2003); Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir. 1989) (material issues of fact as to whether prisoner charged with violating state prison regulations was given hearing before biased hearing officer and whether he was informed about and had opportunity to comment on evidence against him precluded summary judgment in official's favor on grounds of qualified immunity in inmate's § 1983 action); Farid v. Goord, 200 F. Supp.2d 220, 246 (W.D.N.Y. 2002) (Because "the basic standards regarding a prisoner's right to call witnesses and present evidence at a disciplinary hearing were articulated in Wolff v. McDonnell . . . [i]t is objectively reasonable that defendant . . . would have been aware of such precedent. Thus, there are genuine issues of material fact" as to whether defendant's actions were reasonable, so "qualified immunity does not provide him a defense on this ground."); Alvarez v.Coughlin, 2001 WL 118598 at *7-8 (fact issues preclude summary judgment on hearing officer's qualified immunity defense);Scott v. Coughlin, 78 F. Supp.2d 299, 313 (S.D.N.Y. 2000) ("Since a trial is necessary to determine whether [defendant] violated [plaintiff's] right to call witnesses under Wolff, the Court cannot conclude on summary judgment that [defendant] did not violate a clearly established right of which a reasonable person would have known."); Wright v. Miller, 973 F. Supp. 390, 395-96 (S.D.N.Y. 1997) ("As the constitution provides inmates with a limited right to call witnesses on their behalf [citing Wolff v. McDonnell], plaintiffs have raised an issue of fact as to whether their constitutional rights were violated. As this right to call witnesses is clearly established . . . defendants' qualified immunity defense fails.") (citations omitted); Dawes v.Carpenter, 899 F. Supp. 892, 898 (N.D.N.Y. 1995) (Because plaintiff's right under Wolff were clearly established at the time of his hearings and "the hearing officers reasonably should have known of this right at the time of these hearings[,] [d]efendants therefore are not protected by qualified immunity."). Since the right was clearly established, and there is a factual dispute about the defendants' conduct, the Court cannot grant defendants summary judgment on qualified immunity grounds.

The same reasoning applies to defendant Selsky's claim that he did not violate Muhammad's due process rights by affirming Hearing Officer Pico's decision. (see State S.J. Br. at 15-16.) Because the hearing tape and transcript is unavailable, and the parties dispute what happened at the hearing, the Court cannot decide on summary judgment whether it was reasonable for Selsky to affirm the verdict. see,e.g., Samuels v. Selsky, 01 Civ. 8235, 2002 WL 31040370 at *11 (S.D.N.Y. Sept. 12, 2002) (denying motion to dismiss because "[d]efendants have failed to submit . . . a transcript of the disciplinary hearing . . . without [which] . . . it is difficult for this Court fully to evaluate the merits of the parties' arguments").

For the foregoing reasons, defendants' summary judgment motion on behalf of all defendants as to Muhammad's prison disciplinary hearing due process claim is denied.

III. MUHAMMAD'S DUE PROCESS CLAIM AGAINST DEFENDANTS CONNOLLY AND DOLAN IS DISMISSED BECAUSE NEITHER DEFENDANT WAS PERSONALLY INVOLVED IN THE ALLEGED CONSTITUTIONAL VIOLATION

"It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).³⁹ "It is [equally] well established that in order to be personally liable for an alleged due process violation, including in connection with a Tier III hearing, a defendant must have either: (1) . . . participated directly in the alleged constitutional violation, (2) . . . after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) . . . created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) [been] grossly negligent in supervising subordinates who committed the wrongful acts, or (5) . . . exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."Jackson v. Johnson, 30 F. Supp.2d 613, 616-17 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) (internal quotations omitted); see, e.g., Colon v.Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also,e.g., Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (Plaintiff did not demonstrate DOCS Commissioner was personally involved in depriving him of any constitutional rights at his administrative segregation hearing; plaintiff failed to allege DOCS Commissioner "(1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation.") (citingWilliams v. Smith, 781 F.2d 319, 323-34 (2d Cir. 1986)).

39 Accord, e.g., Johnson v.Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001);see also, e.g., Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001); Gaston v.Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) ("Proof of an individual defendant's personal involvement in the alleged wrong is . . . a prerequisite to his liability on a claim for damages under § 1983.").

Muhammad argues that because Sgt. Dolan prepared and Lt. Connolly approved a misbehavior report that allegedly was "defective as a matter of law" and that led to Muhammad's Tier III disciplinary hearing at issue, they deprived him of his constitutional right to due process. (Dkt. No. 23: Am. Compl. Attach. at 2.) However, this "but for causation" argument is not the standard for Section 1983 liability. see,e.g., Williams v. Smith, 781 F.2d at 324 (prisoner's but for argument as to guard who prepared misbehavior report but was not involved in Tier III hearing rejected; "The filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing."); see also,e.g., Freeman v. Rideout, 808 F.2d 949, 951-53 (2d Cir. 1986) (filing of false charges does not constitute a § 1983 violation), cert. denied, 485 U.S. 982, 108 S.Ct. 1273 (1988); Hattley v. Goord, 02 Civ. 2339, 2003 WL 1700435 at *10 (S.D.N.Y. Mar. 27, 2003) ("[T]he 'mere filing' of a misbehavior report does not satisfy the 'personal involvement' requirement of § 1983 liability. Furthermore, '[l]ike one who simply writes a misbehavior report, one who reviews the report does not violate an inmate's rights. . . .'"); Hyman v. Holder, 96 Civ. 7748, 2001 WL 262665 at *3 (S.D.N.Y. Mar. 15, 2001) (Plaintiff's "allegation that defendants conspired to file a false inmate misbehavior report does not in and of itself state a constitutional claim.");Cherry v. Selsky, 99 Civ. 4636, 2000 WL 943436 at *6 (S.D.N.Y. July 7, 2000); Scott v. Coughlin, 78 F. Supp.2d 299, 314 (S.D.N.Y. 2000) ("[T]he claims against these defendants [cannot] survive summary judgment under the theory that because they filed false charges against [plaintiff], they are liable for any deprivation of due process occurring at the disciplinary hearings which followed. The Second Circuit has clearly established that '[t]he filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing.'") (quoting Williams v. Smith, 781 F.2d at 324); Taylor v. Macomber, 97 Civ. 4127, 1999 WL 349696 at *4 (S.D.N.Y. May 27, 1999); Jackson v.Johnson, 30 F. Supp.2d at 618; Kingwood v.Coombe, 96 Civ. 0432, 1997 WL 323913 at *3 (S.D.N.Y. June 13 1997) ("It is well established in this Circuit that even the filing of false charges against an inmate does not amount to a constitutional violation, and that the mere filing of a misbehavior report does not satisfy the 'personal involvement' requirement for § 1983 liability. [This] rationale . . . is equally applicable here. Defendant . . . merely reviewed the Inmate Misbehavior Report and recommended that a disciplinary hearing be held. He cannot be liable for any subsequent due process violations that occurred at the disciplinary hearing.") (citations omitted). A defendant must have been involved personally in the allegedly unconstitutional action — here, the Tier III hearing — in order to be liable under Section 1983.

Although defendants Sgt. Dolan and Lt. Connolly testified before Hearing Officer Pico (Dkt. No. 39: Pico Aff. ¶ 10), Muhammad does not allege any facts in his complaint (or his deposition or summary judgment papers) that would support a finding of personal involvement on the part of defendants Sgt. Dolan or Lt. Connolly in the alleged deprivation of his constitutional rights during the Tier III disciplinary hearing. Muhammad's due process claim against these defendants is limited to the fact that Sgt. Dolan filed and Lt. Connolly reviewed a misbehavior report against him alleging that he was responsible for the "Terror Campaign" against the cell shop inmate employees. These facts alone are insufficient to find personal involvement as defined in § 1983 jurisprudence, in the alleged disciplinary hearing due process violations. Accordingly, the Court grants summary judgment to defendants Sgt. Dolan and Lt. Connolly dismissing Muhammad's due process claim.⁴⁰ IV. DEFENDANT EASTER'S RULE 12(B)(6) MOTION TO DISMISS MUHAMMAD'S DUE PROCESS CLAIM AGAINST HER IS DENIED

40 The Court therefore need not decide defendant Sgt. Dolan's motion to dismiss for lack of personal jurisdiction.

Defendant Easter has moved to dismiss pursuant to Rule 12(b)(6) claiming that Muhammad's complaint does not state a claim upon which relief can be granted against her, since she claims that she was not personally involved in the alleged constitutional deprivation. (Dkt. No. 51: State Mot. to Dismiss Br. at 2-4.)⁴¹

41 For a discussion of the legal standard applicable to a Rule 12 motion to dismiss, see, e.g., Pierce v.Marano, 01 Civ. 3410, 2002 WL 1858772 at *3 (S.D.N.Y. Aug. 13, 2002) (Peck, M.J.); Bolanos v. Norwegian Cruise Lines Ltd., 01 Civ. 4182, 2002 WL 1465907 at *3 (S.D.N.Y. July 9, 2002) (Peck, M.J.); see also, e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 508, 514, 122 S.Ct. 992, 996, 998 (2002); Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003). Defendant Easter's motion to dismiss does not rely on the summary judgment record (see Dkt. No. 51: State Mot. to Dismiss Br. at 2-4) and thus the motion is not converted into a summary judgment motion.

Defense counsel summarily asserts that Easter is not liable under § 1983 because deciding that Muhammad "'could not have the documentary evidence'" does not amount to material participation in the alleged constitutional deprivation. (Dkt. No. 51: State Mot. to Dismiss Br. at 4.) Defense counsel further suggests that if there was a deprivation of Muhammad's due process rights, it was not on the part of defendant Easter but of defendant Baltuch, who was responsible for providing Muhammad with meaningful assistance. (Id.)⁴²

42 The Court notes that defense counsel did not submit an affidavit from Easter explaining what she did, or did not, do.

In his response to the motion to dismiss, Muhammad reaffirms his claims that defendant Easter participated in the deprivation of his constitutional rights. (Dkt. No. 56: Muhammad Response to Defs.' Mot. to Dismiss ¶ 1 at 1.) He states that her participation amounted to personal involvement as required in § 1983 actions because she played an active role in depriving him of due process: Easter "interjected herself into a role not hers (i.e. controller of documents within the Tier Office that were needed by and due to the plaintiff [for] his defense" at the Tier III hearing, and that she "over-stepp[ed]" her bounds, and that she "li[ed] to def[endant] N. Baltuch." (Id.)

The Court cannot say that there are no facts that Muhammad could present to prove his due process claim against defendant Easter. For example, if the proof were to show that defendant Baltuch asked for the documents that Muhammad wanted for his hearing defense and defendant Easter refused without good cause to provide them, she may have been personally involved in the deprivation of Muhammad's due process hearing rights.

Defendant Easter's Rule 12(b)(6) motion to dismiss is denied.

V. DEFENDANT BALTUCH'S MOTION TO DISMISS MUHAMMAD'S DUE PROCESS CLAIM IS DENIED BECAUSE THE AMENDED COMPLAINT ADDING BALTUCH AS A DEFENDANT "RELATES BACK" TO THE ORIGINAL COMPLAINT FILED BEFORE EXPIRATION OF THE STATUTE OF LIMITATIONS

Defendant Baltuch has moved to dismiss, claiming that Muhammad's claim against him was time-barred because the complaint was not amended to include him as a defendant within the applicable limitations period. (Dkt. No. 51: State Mot. to Dismiss Br. at 4-5.)

A. The § 1983 Statute of Limitations

The statute of limitations for a § 1983 action is three years.see, e.g., Holiday v. Martinez, No. 02-7848, 2003 WL 21242641 at *2 (2d Cir. May 29, 2003) (three-year statute of limitations applies to § 1983 due process claim, which accrues when plaintiff knows or has reason to know of the injury which is the basis of his action); Warren v. Altieri, No. 02-69, 59 Fed. Appx. 426, 427, 2003 WL 1191173 at *1 (2d Cir. Mar. 13, 2003) (plaintiff's "§ 1983 action is governed by New York's three-year statute of limitations as set out in N.Y. C.P.L.R. § 214, the provision applicable to actions for personal injury."); Pearl v.City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002), cert. denied, 123 S.Ct. 1574 (2003); Paige v. Police Dep't, 264 F.3d 197, 199 n. 2 (2d Cir. 2001); Connolly v.McCall, 254 F.3d 36, 40-41 (2d Cir. 2001); Bristow v.Smith, 03 Civ. 2663, 2003 WL 21437005 at *1 (S.D.N.Y. June 18, 2003) (Peck, M.J.); cf. Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *12 (S.D.N.Y. July 21, 2000) (Peck, M.J.)report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.). Because the alleged acts about which Muhammad complains took place in May 1997, the filing of an amended complaint on February 21, 2003 came long after the expiration of the three-year limitations period.

B. The Relation Back Doctrine

Where a complaint is amended to include an additional defendant after the statute of limitations has run, the amended complaint is not time-barred if it "relates back" to a timely filed complaint.See Fed.R.Civ.P. 15(c). The rule allows amendments to relate back to the date of original filing for purposes of the statute of limitations in appropriate circumstances "to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitation defense." Fed.R.Civ.P. 15 Advisory Committee Notes (1991). Federal Rule of Civil Procedure 15(c) provides:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint [i.e., 120 days], the party to be brought in by amendment

(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and

(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

The delivery or mailing of process to the United States Attorney, or United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

Fed.R.Civ.P. 15(c). Thus, "[t]hree requirements must be met under Rule 15(c) for an amended complaint that names a new party to be deemed to relate back to the original timely complaint: (i) both complaints must arise out of the same conduct, transaction, or occurrence, (ii) the additional defendant must have been omitted from the original complaint by mistake, and (iii) the additional defendant must not be prejudiced by the delay." S.E.C. v. Montle, No. 02-6115, 65 Fed. Appx. 749, 754, 2003 WL 21182299 at *3 (2d Cir. May 16, 2003);accord, e.g., VKK Corp. v. National Football League, 244 F.3d 114, 128 (2d Cir. 2001); Soto v.Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996);Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *13-14 (S.D.N.Y. July 21, 2000) (Peck, M.J.), report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.); Byrd v. Abate, 964 F. Supp. 140, 144-45 (S.D.N.Y. 1997); William H. McGee Co., v. M/V Ming Plenty, 164 F.R.D. 601, 604-05 n. 3 (S.D.N.Y. 1995) (Griesa, D.J. Peck, M.J.).

Muhammad's amendment to add a claim against defendant Baltuch meets these requirements.⁴³ 1. Arising Out of the Same Conduct

43 As a preliminary matter, defendants do not dispute that the original complaint was timely. (See page 11 fn.14 above.)

The first factor is easily satisfied, since the claim against defendant Baltuch clearly arises out of the same conduct referred to in the original complaint — the Tier III disciplinary hearing. Indeed, the original complaint contains Muhammad's claim against his hearing assistant, but merely failed to name Baltuch as that assistant. (Dkt. No. 2: Compl. ¶ 4 "Statement of Claim.")

2. Notice

Defendant Baltuch has not submitted an affidavit on this motion, and so the Court cannot determine if he received actual notice of the allegations in the original complaint within the applicable limitations period. Although Muhammad made several allegations regarding his Tier III disciplinary hearing assistant without specifically naming Baltuch (Dkt. No. 2: Compl. ¶ 4 "Statement of Claim"), it is possible that defendant Baltuch did not receive actual notice of Muhammad's suit until he was served with the amended complaint on March 27, 2003, almost three years after the expiration of the limitations period (see Dkt. No. 35: U.S. Marshall's Process Receipt Return of Service). Actual notice is irrelevant here, however, since Baltuch had "constructive notice."

"Under the constructive notice doctrine, 'the court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the officials originally sued, so long as there is some showing that the attorney[s] knew that the additional defendants would be added to the existing suit.'"Scott v. Coughlin, 944 F. Supp. 266, 270 (S.D.N.Y. 1996) (quoting Velez v. Koehler, 87 Civ. 2019, 1991 WL 130913 at *2 (S.D.N.Y. July 18, 1991)), vacated on other grounds, 138 F.3d 474 (2d Cir. 1998); see also,e.g., Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989) (in deciding whether the government attorney possessed the requisite knowledge, the question is whether the attorney "knew or should have known that the defendants . . . would be named"); Mosley v. Jablonsky, 209 F.R.D. 48, 53 (E.D.N.Y. 2002);Almeda v. City of New York, No. 00-CV-1407, 2001 WL 868286 at *3 (E.D.N.Y. July 26, 2001); Mills v.Fenger, No. 98-CV-0034, 2001 WL 135824 at *3 (W.D.N.Y. Feb. 15, 2001); Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *15 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (warden's "attorney is the same as that of the other defendants . . . and thus notice may be imputed"), report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 21, 2001) (Wood, D.J.); Gonzalez v.Officer in Charge of Barber Shop on Duty on May 13, 1999, 99 Civ. 3455, 2000 WL 274184 at *5 (S.D.N.Y. Mar. 13, 2000) ("notice to [added defendant] may be imputed through the Attorney General's office, which represents both [added defendant] and the previously named defendants"); Blaskiewicz v. County of Suffolk, 29 F. Supp.2d 134, 139 (E.D.N.Y. 1998); Byrd v. Abate, 964 F. Supp. 140, 146 (S.D.N.Y. 1997) ("Notice of a lawsuit can be imputed to a new defendant state official through his attorney, when the attorney also represents the officials originally sued.");Samuels v. Dalsheim, 81 Civ. 7050, 1995 WL 1081308 at *14 (S.D.N.Y. Aug. 22, 1995) ("[W]hen both original and added defendants are state officials who are represented by the same attorney, a court can find that the added defendants received constructive notice of the action through their attorney which satisfies Rule 15(c)."; "It is sufficient for the purpose of constructive notice that . . . defendants' counsel knew or should have known that a particular category of defendants would be added to the action, without necessarily knowing the actual identity of each defendant to be added.").

The doctrine of constructive notice applies to Muhammad's claim against Baltuch, satisfying the notice factor. As a DOCS employee, defendant Baltuch is entitled to representation by the Attorney General of the State of New York, whose office is representing Baltuch and all of the other defendants in this case. (see, e.g., Dkt. No. 38: Singleton Aff. ¶ 1; Dkt. No. 51: State Mot. to Dismiss Br.) Muhammad's original complaint clearly made a claim against the unnamed counselor who Muhammad claimed provided ineffective assistance during the Tier III disciplinary hearing: "I got a . . . Counselor from D-state who didn't know a thing about his duties or my rights so I was denied basic meaningful asst." (Dkt. No. 2: Compl. ¶ 4 "Statement of Claim"); DOCS "ordered the asst. . . . back to this writer. Let me be completely clear[:] at our [first] meeting the asst. never ascertained if I was in-fact whom he was to assist . . ." (Compl. Attach. at 1); the assistant failed "to ascertain certain things about me[:] if I speak, read understand English, did I understand the [severity] of the charge(s)[,] which he did not even know was his job" (Id.); "he allowed the key-punch spec[ialist] Betty E. to decide that I couldn't have the documentary-evid[ence] requested so I could mount a meaningful defense" (Id. at 1-2). The Amended Complaint merely added defendant Baltuch's name to the allegations.

The Assistant Attorney General has appeared and vigorously litigated the case on behalf of the originally named defendants since the onset of the litigation. From that time, the Assistant Attorney General was on notice to prepare a defense for the unnamed — but easily identifiable (from the "Assistant Form" relating to the hearing,see Dkt. No. 38: Singleton Aff. Ex. F; and the "Hearing Record Sheets, Id. Ex. G) — assistant mentioned in Muhammad's original complaint. The facts and the law pertaining to defendant Baltuch's defense to the due process claim are closely related to that of the other defendants, and Baltuch will not be prejudiced in maintaining a defense on the merits.

3. Mistake

The meaning of "mistake" takes on a particular definition in the context of pro se litigation. see, e.g.,Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 36-37 (2d Cir. 1996) (a "mistake" includes mistakes of fact or law and specifically including where plaintiff did not know that he needed to name the individual defendants); Mills v. Fenger, No. 98-CV-0034, 2001 WL 135824 at *2 (W.D.N.Y. Feb. 15, 2001);Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, 90 Civ. 3455, 2000 WL 274184 at *4 (S.D.N.Y. Mar. 13, 2000); Robinson v. Matos, 97 Civ. 7144, 1999 WL 225938 at *4 (S.D.N.Y. Apr. 19, 1999); Thomas v. Arevalo, 95 Civ. 4704, 1998 WL 427623 at *14-15 (S.D.N.Y. July 28, 1998) (Sotomayor, D.J.); Byrd v. Abate, 964 F. Supp. 140, 145-47 (S.D.N.Y. 1997). Here, Muhammad needed to obtain the assistant's name from DOCS and he initially was unsuccessful because as a pro se he did not have the ability to conduct an adequate investigation.⁴⁴ His failure to name Baltuch as a defendant until the filing of the amended complaint is a "mistake" that satisfies the third factor of the relation-back rule. see, e.g., Valentin v.Dinkins, 121 F.3d 72, 75 (2d Cir. 1997).

44 Furthermore, Muhammad alleges that not only was the information uniquely within the knowledge of DOCS, but also that his inability to obtain the name of the assistant was due to DOCS' "game-playing . . . it was good ole [DOCS] employees who told me the wrong info[rmation]." (Dkt. No. 56: Muhammad Response to Defs.' Mot. to Dismiss ¶ 1 at 1.)

Because Muhammad's amended complaint satisfies the three factors in Rule 15(c), the Court rules that it relates back to the original complaint. Therefore, Muhammad's claim against defendant Baltuch is not time-barred. Defendant Baltuch's motion to dismiss is denied.

CONCLUSION

For the reasons set forth above: (1) Muhammad's free exercise and conspiracy claims are dismissed without prejudice for failure to exhaust administrative remedies; (2) defendants' summary judgment motion on Muhammad's due process claim is denied due to lack of evidence in the record and issues of material fact in dispute; (3) defendants Sgt. Dolan and Lt. Connolly are granted summary judgment dismissing Muhammad's due process claim for lack of personal involvement; (4) defendant Easter's motion to dismiss Muhammad's due process claim is denied; and (5) defendant Baltuch's motion to dismiss Muhammad's due process claim is denied because the amended complaint relates back to the timely filed original complaint.

The case will proceed to trial in the Fall on plaintiff Muhammad'sSandin disciplinary due process claim against defendants Pico, Selsky, Easter, and Baltuch.

The Court previously approved Muhammad's application for pro bono counsel. The Court's Pro Bono Office is directed to make further efforts to obtain pro bono trial counsel for Muhammad.

SO ORDERED