Pilgrim v. Bruce

Full title: PRINCE PILGRIM, Plaintiff, v. P. BRUCE, Correction Officer, Great Meadow…

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

Date published: May 7, 2008

Civil Action No. 9:05-cv-198 (GLS/GHL) (N.D.N.Y. May. 7, 2008)

Opinion

Civil Action No. 9:05-cv-198 (GLS/GHL).

May 7, 2008

FOR THE PLAINTIFF: PRINCE PILGRIM, 92-A-8847, Plaintiff Pro Se, Clinton County Correctional Facility, Dannemora, New York.

FOR THE DEFENDANTS: HON. ANDREW M. CUOMO, Attorney General for the State of New York, Counsel for Defendants, STEVE H. SCHWARTZ, Assistant Attorney General, Albany, New York.

ORDER

GARY SHARPE, Magistrate Judge

The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge George H. Lowe, duly filed February 21, 2008. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED, that the Report-Recommendation of Magistrate Judge George H. Lowe filed February 21, 2008 is ACCEPTED in its entirety for the reasons state therein, and it is further

ORDERED, that Plaintiff's cross-motion (Dkt. No. 41) is DENIED to the extent that it requests relief that is dispositive in nature such as the voluntary dismissal without prejudice of plaintiff's "defamation of character" and "[loss of] religious services" claims, and it is further

ORDERED, that Defendants' motion for summary judgment (dkt. No. 38) is GRANTED and that all of the claims asserted in Plaintiff's Amended Complaint (Dkt. No. 9) is DISMISSED with prejudice, and it is further

ORDERED, that the court certifies in writing, for the purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this order in this action would not be taken in good faith, and it is further

ORDERED, that the Clerk enter judgment in favor of the defendants against the plaintiff.

IT IS SO ORDERED

ORDER and REPORT-RECOMMENDATION

This pro se prisoner civil rights action has been referred to the undersigned for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Currently pending before the Court is Defendants' motion for summary judgment, and Plaintiff's cross-motion for an Order (1) reopening the discovery period in this action so that Plaintiff may serve interrogatories on Defendants, (2) adjourning the Court's decision regarding Defendants' motion, pending Plaintiff's receipt their responses to his referenced interrogatories, as well as responses to various outstanding discovery demands, (3) imposing sanctions against Defendants for intentionally failing to provide Plaintiff with the discovery mandated by the Court's discovery order of March 14, 2007, and (4) permitting Plaintiff to withdraw his claims of defamation and interference with his right to participate in religious services. ( Id.) (Dkt. Nos. 38, 41.) For the reasons set forth below, I deny Plaintiff's cross-motion to the extent that it requests non-dispositive relief, I recommend that the Court deny Plaintiff's cross-motion to the extent that it requests dispositive relief, and I recommend that the Court grant Defendants' motion for summary judgment with regard to all of the claims asserted in Plaintiff's Amended Complaint.

I. BACKGROUND

A. Plaintiff's Claims

Prince Pilgrim ("Plaintiff") filed his Complaint in this action on February 14, 2005, and his Amended Complaint on July 18, 2005. (Dkt. Nos. 1, 9.) Generally, in his Amended Complaint, Plaintiff alleges that, while he was incarcerated at Great Meadow Correctional Facility ("Great Meadow C.F.") between December of 2003 and June of 2004, six employees of the New York State Department of Correctional Services ("DOCS")¹ violated his constitutional rights in a variety of ways, all revolving around a false and retaliatory misbehavior report that was filed against Plaintiff which, after an allegedly procedurally defective disciplinary hearing, resulted in a disciplinary conviction and punishment. ( See generally Dkt. No. 9, Part 1 [Plf.'s Am. Compl.].)

1 These six employees are as follows: (1) Phillip Bruce, a correction officer at Great Meadow C.F., (2) B. Murray, a sergeant at Great Meadow C.F., misidentified by Plaintiff as Sergeant "Murphy," (3) Andrew Harvey, a hearing officer at Great Meadow C.F., (4) Gary Greene, the Great Meadow C.F. Superintendent, (5) Glenn Goord, the DOCS Commissioner, and (6) Donald Selsky, the Director of the DOCS Special Housing/Inmate Grievance Program. (Dkt. No. 9, Part 1 [Plf.'s Am. Compl.]; Dkt. Nos. 16, 17, 19 [Acknowledgments of Service for Defs. Harvey, Murray, and Bruce].)

More specifically, Plaintiff alleges as follows:

(1) Defendant Phillip Bruce (a correctional officer) violated Plaintiff's rights under the First, Fifth, Eighth and Fourteenth Amendments by (1) refusing to permit Plaintiff "to go to [a] notary" on December 23, 2003, (2) "singl[ing]" Plaintiff out of a group of inmates going to recreation on February 22, 2004, (3) "conspir[ing]" with and "instruct[ing] a co-worker to harass Plaintiff through the disguise [sic] of a pat-frisk" on March 10, 2004, (4) "singl[ing]" him out of a group of inmates going to mess hall in order to subject him to a harassing and retaliatory pat-frisk on March 11, 2004, and (5) filing a false misbehavior report against Plaintiff on March 11, 2004, in retaliation against him for having filed grievances against Defendant Bruce on December 23, 2003, February 22, 2004, and March 10, 2004 ( id. at ¶¶ 1, 5, 8-11, 13, 27);

(2) Defendant B. Murray (a correctional sergeant, misidentified by Plaintiff as Sergeant "Murphy") violated Plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments by deliberately failing to provide Plaintiff with adequate legal assistance before, and during, Plaintiff's disciplinary hearing on March 22, 2004, and March 26, 2004 ( id. at ¶¶ 13-16, 19-20, 29);

(3) Defendant Andrew Harvey (a hearing officer) violated Plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments by (a) failing to ensure that Defendants provided Plaintiff with all documents necessary to marshal a defense at his disciplinary hearing, (b) failing to grant him an extension of time to prepare for the hearing, (c) failing to dismiss the charges against Plaintiff due to the lack of legal assistance he had received, (d) failing to conduct a hearing within seven days of the incident, (e) fabricating an "extension request," which falsely stated that Plaintiff had requested an extension of time before the hearing so that he could meet with his legal assistant, (f) failing to conduct a fair and impartial hearing on March 22, 2004, and March 26, 2004, (g) failing to sustain Plaintiff's objection to the use of Defendant Bruce as a witness at the hearing, (h) wrongfully convicting Plaintiff of the offenses with which he had been charged, and (i) imposing on Plaintiff an overly harsh disciplinary sentence ( id. at ¶¶ 19-20, 22-24, 31);

(4) Defendant Gary Greene (the Great Meadow C.F. Sperintendent) violated Plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments by (a) "refus[ing] to intervene" in the "foreseeable conflict" between Defendant Bruce and Plaintiff, despite knowing of some or all of Plaintiff's grievances against Defendant Bruce, (b) failing to protect Plaintiff from the filing of a false and retaliatory misbehavior report by Defendant Bruce, and (c) "engaging [in] and influencing a predetermination of guilt" with respect to disciplinary charges pending against Plaintiff by "moving [him] unlawfully to long term keep lock housing" on March 19, 2004 (three days before his disciplinary hearing commenced), or at least failing to rectify that unjustified transfer after learning about it through a letter from Plaintiff ( id. at ¶¶ 1-2, 6-7, 12, 16-19, 21, 33);

(5) Defendant Glenn Goord (the DOCS Commissioner) violated Plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments by (a) "refus[ing] to intervene" in the "foreseeable conflict" between Defendant Bruce and Plaintiff, despite knowing of some or all of Plaintiff's grievances against Defendant Bruce, (b) failing to protect Plaintiff from the filing of a false and retaliatory misbehavior report by Defendant Bruce, and (c) failing to reverse Plaintiff's disciplinary conviction on appeal ( id. at ¶¶ 5, 8, 12, 25, 35); and

(6) Defendant Donald Selsky (the Director of the DOCS Special Housing/Inmate Grievance Program) violated Plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments by failing to reverse Plaintiff's disciplinary conviction on appeal ( id. at ¶¶ 25, 37).

Finally, Plaintiff alleges that each of the six Defendants, through their various forms of misconduct, caused Plaintiff to suffer, inter alia, "defamation of character" and "[loss of] religious services." ( Id. at ¶¶ 27, 29, 31, 33, 35, 37.)

B. Defendants' Motion and Plaintiff's Cross-Motion

Defendants filed their motion for summary judgment on August 30, 2007. (Dkt. No. 38.) Generally, Defendants' motion for summary judgment is premised on eight grounds: (1) Plaintiff's asserted failure to exhaust his available administrative remedies with regard to various of his claims prior to filing this action in federal court; (2) Plaintiff's asserted failure to state an actionable claim of defamation; (3) Plaintiff's asserted failure to state an actionable claim of the denial of his right to participate in religious services; (4) Plaintiff's asserted failure to state an actionable claim of conspiracy; (5) Plaintiff's asserted failure to allege facts plausibly suggesting, or adduce evidence establishing, the personal involvement of Defendant Greene (a supervisor) in any of the constitutional violations alleged; (6) the protection from liability that Defendants Goord, Greene, Selsky, Harvey and Murphy assertedly enjoy under the circumstances, pursuant to the doctrine of qualified immunity; (7) Plaintiff's asserted failure to state an actionable due process claim due to his failure to allege facts plausibly suggesting that he enjoyed a protected liberty interest in remaining free from the disciplinary confinement alleged; and (8) Plaintiff's asserted failure to adduce evidence establishing a claim of retaliation by Defendant Bruce. (Dkt. No. 38, Part 15, at 2-25 [Defs.' Memo. of Law].)

Defendants' motion included a detailed notification of the consequences of failing to respond to their motion. (Dkt. No. 38, Part 1.) Plaintiff clearly read, and understood, this notification since he requested (and was granted) a liberal extension of the deadline by which he had to respond to Defendants' motion. (Dkt. No. 40 [Request and Order granting Plf. a 54-day extension of the response deadline].) Moreover, Plaintiff, who is no stranger to the court system, had (when he filed his response papers in this action) previously faced at least five motions for summary judgment, and responded to at least four of those motions, in other prisoner civil rights cases.² Moreover, when Plaintiff received a copy of Defendants' motion for summary judgment, he was (and is still) incarcerated in a New York State correctional facility whose law library contains a copy of both the Local Rules of Practice for this Court and this District's Pro Se Manual, both of which advise pro se prisoner-plaintiffs of the consequences of failing to properly oppose a defendant's motion for summary judgment.

2 See, e.g., Pilgrim v. Wright, 01-CV-0098 (N.D.N.Y.) ( pro se civil rights action in which Plaintiff responded to defendants' motion for summary judgment on 9/23/02); Pilgrim v. Brown, 01-CV-0700 (N.D.N.Y.) ( pro se civil rights action in which Plaintiff had to, but failed to, respond to defendants' motion for summary judgment by 1/31/03); Pilgrim v. Luther, 01-CV-8995 (S.D.N.Y.) ( pro se civil rights action in which Plaintiff responded to defendants' two motions for summary judgment on 5/24/02, 7/16/02, and 10/14/04); Pilgrim v. Wolczyl, 02-CV-0901 (N.D.N.Y.) ( pro se civil rights action in which Plaintiff responded to defendants' motion for summary judgment on 4/29/05).

Despite having received this detailed notice and liberal deadline-extension, Plaintiff failed to respond to the substance of Defendants' motion for summary judgment. Rather, on November 41, 2007, Plaintiff filed "response" papers that contained a cross-motion. (Dkt. No. 41.) The cross-motion requested four types of relief from the Court: (1) the reopening of the discovery period in this action so that Plaintiff may serve interrogatories on Defendants; (2) an adjournment of the Court's decision regarding Defendants' motion, pending Plaintiff's receipt of their responses to his referenced interrogatories, as well as responses to various outstanding discovery demands; (3) the imposition of sanctions against Defendants for intentionally failing to provide Plaintiff with the discovery mandated by the Court's discovery order of March 14, 2007; and (4) the withdrawal of his claims of defamation and interference with his right to participate in religious services. ( Id.)

II. ANALYSIS

1. Request for Reopening of Discovery

A. Plaintiff's Cross-Motion

Plaintiff requests to reopen discovery in this action so that he can file various interrogatories. (Dkt. No. 41.) I deny that request based on the fact that Plaintiff has failed to show the sort of cause that is required to support the granting of such a request under Fed.R.Civ.P. 7, 16, 26 and/or 33.

Among other things, Plaintiff has not identified (1) what information he would attempt to elicit from Defendants through his interrogatories ( see Dkt. No. 41), (2) why he needs that information ( id.), or (3) why he delayed in making a motion to reopen discovery until now — approximately ten months after the close of discovery in this action, which occurred on April 14, 2007 ( see Dkt. No. 26 [Order filed 10/30/06, resetting deadline for close of discovery as 1/17/07]; Dkt. No. 32 [Order filed 3/14/07, directing Defs. to respond to Plf.'s outstanding discovery requests by 4/14/07]; Dkt. No. 33 [Defs.' Status Report filed 4/12/07, attaching copies of discovery provided to Plf.]).

I note that the one-page letter that Plaintiff submitted to the Court on or about August 30, 2007, requesting an extension of 60 days by which to file a motion to compel Defendants to produce documents in response to Plaintiff's outstanding discovery demands did not constitute a motion to reopen discovery in this action so that Plaintiff could serve interrogatories on Defendants. (Dkt. No. 39.)

2. Request for Stay of Decision Regarding Summary Judgment Motion

Plaintiff also requests an adjournment of the Court's decision regarding Defendants' motion for summary judgment pending Plaintiff's receipt of his outstanding discovery demands. (Dkt. No. 41.) I deny this request based on the fact that Plaintiff has failed to show the sort of cause that is required to support the granting of such a request under Fed.R.Civ.P. 56(f).

Rule 56(f) provides as follows:

Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed.R.Civ.P. 56(f). "To request discovery under Rule 56(f), a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful." Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) [citation omitted], accord, Concourse Rehab. Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 146, n. 3 (2d Cir. 2001) [citation omitted].

Here, Plaintiff has failed to satisfy the first, second, and third requirements. First, Plaintiff has failed to demonstrate precisely which of his discovery demands are allegedly outstanding. ( See Dkt. No. 41) I have sua sponte compared Defendants' supplemental discovery responses and my discovery Order of March 14, 2007, and I am unable to find any reason to believe that Defendants' supplemental discovery responses were deficient in any regard. ( Compare Dkt. No. 33, Parts 3-6 [Defs.' Status Report] with Dkt. No. 32 [Order].) I note that, taking into account the 89 pages of documents that Defendants provided to Plaintiff on April 12, 2007, Defendants have now provided Plaintiff with some 171 pages of documents in response to his discovery demands. ( See Dkt. No. 33, Parts 4, 6.) Despite his possession of these documents, he has adduced no evidence in opposition to Defendants' motion for summary judgment.

Second, Plaintiff has not demonstrated how the (unidentified) information sought is reasonably expected to create a genuine issue of material fact on any of the issues presented by Defendants' on their motion. An opposing party's "mere hope" that further evidence may develop to create a genuine issue of fact is an insufficient basis upon which to justify the granting of such a stay. Contemporary Mission, Inc. v. USPS, 648 F.2d 97, 107 (2d Cir. 1981) [citation omitted]; accord, Sanders v. Quickstak, Inc., 889 F. Supp. 128, 132 (S.D.N.Y. 1995); Witter v. Abbell-Howe Co., 765 F. Supp. 1144, 1150 (W.D.N.Y. 1991); Dixon v. Bowen, 126 F.R.D. 483, 486 (S.D.N.Y. 1989). Here, a "mere hope" of such further evidence is all that Plaintiff has offered.

Moreover, I note that Defendants' motion — although it is submitted as a "motion for summary judgment" under Fed.R.Civ.P. 56 — is almost entirely based on arguments that Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). ( See generally Dkt. No. 38, Part 15, at 2-25 [Defs.' Memo. of Law].) Of course, such arguments are entirely permissible under Fed.R.Civ.P. 56,³ and the issues presented by such arguments are purely legal in nature and in no way evidentiary in nature (all material facts alleged in Plaintiff's Amended Complaint being accepted as true, and all reasonable inferences construed in Plaintiff's favor).⁴ As a result, it would appear extremely unlikely that any further evidence developed by Plaintiff during discovery could defeat the vast majority of Defendants' arguments, which, again, are based on the factual assertions contained within the four corners of Plaintiff's Amended Complaint.

3 Schwartz v. Compagnise General Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) ("Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.") [citations omitted], accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) ("This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.").

4 Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (affirming grant of motion to dismiss) [citation omitted]; Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

Third, Plaintiff has failed to explain why he delayed approximately four-and-a-half months in complaining about the discovery responses Defendants sent Plaintiff on April 12, 2007, causing Defendants to go to the effort and expense of preparing and filing a motion for summary judgment on August 30, 2007. ( See Dkt. No. 41; compare Dkt. No. 33, Part 2 [Defs.' Status Report filed 4/12/07, attaching Declaration of Service.] with Dkt. No. 39 [Plf.'s Request dated 8/30/07, asking for an "extension" of the deadline by which he must file a motion to compel].) I note that the docket is conspicuously absent of any motion to compel, or motion for sanctions, by Plaintiff during the referenced four-and-a-half-month period. ( See generally Docket Sheet.)

3. Request for Sanctions

Plaintiff also requests the imposition of sanctions against Defendants for intentionally failing to provide Plaintiff with the discovery mandated by the Court's discovery order of March 14, 2007. (Dkt. No. 41.) I deny this request based on the fact that Plaintiff has failed to show the sort of cause that is required to support the granting of such a request under Fed.R.Civ.P. 16, 26, and/or 37. I note that, as explained above in Part II.A. 2. of this Order and Report-Recommendation, Plaintiff has not even shown that Defendants indeed failed to provide Plaintiff with the discovery mandated by the Court's discovery order of March 14, 2007. He certainly has not shown that any such failure was willful. Under the circumstances, I find that this request is so lacking in merit as to be frivolous.

4. Request to Withdraw Two Claims

Finally, Plaintiff requests the withdrawal of his claims of defamation and interference with his right to participate in religious services. (Dkt. No. 41.) The relief requested in this portion of Plaintiff's cross-motion (i.e., dismissal) is dispositive in nature. However, the dismissal requested by Plaintiff is voluntary in nature. Authority exists for the proposition that a magistrate judge may decide such a request without issuing a report-recommendation.⁵ However, out of an abundance of caution, I will express my conclusion with regard to this request as part of a recommendation to District Judge Sharpe, rather than as an Order.

5 See 28 U.S.C. § 636(b)(1)(A) (providing that a district judge "may designate a magistrate to hear and determine any pretrial matter," with certain enumerated exceptions — including a decision on a motion "to involuntarily dismiss an action").

Plaintiff's request, which is more properly construed as one for voluntary dismissal of these two claims without prejudice, is governed by, or at least guided by, Fed.R.Civ.P. 41(a). I say "guided" because Fed.R.Civ.P. 41(a) speaks of the dismissal of "actions," not "claims." In any event, under the principles set forth by that Rule, since Defendants have already filed an Answer in this action, Plaintiff may not obtain the dismissal of the two claims without either (1) a stipulation of dismissal signed by all parties who have appeared in the action (which he has not filed), or (2) an Order of the Court issued "upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(1), (2).

Simply stated, I do not believe it would be at all proper to permit Plaintiff to expressly assert claims of "defamation of character" and interference with his right to "religious services,"⁶ sit idly by as Defendants defend themselves against those claims,⁷ and then snatch those claims from the jaws of Defendants' properly filed and facially meritorious motion for summary judgment, just so that this extremely litigious plaintiff may again assert them in another action. The claims have been litigated and should be decided.

6 In his Amended Complaint, filed on June 18, 2005, Plaintiff expressly alleges that each of six Defendants, through their various forms of misconduct, caused Plaintiff to suffer, inter alia, "defamation of character" and "[loss of] religious services." (Dkt. No. 9, Part 1, ¶¶ 27, 29, 31, 33, 35, 37 [Plf.'s Am. Compl.].)

7 I note that in their Answer, filed on February 16, 2006, Defendants interposed defenses regarding, inter alia, Plaintiff's Amended Complaint to the extent that it asserted "state law claims" and claims for "mental or emotional injury." (Dkt. No. 21, Part 1, ¶¶ 15, 23 [Defs.' Answer to Plf.'s Am. Compl.].) Even if Plaintiff did not appreciate the reasonable meaning of the words he expressly used in his Amended Complaint, these defenses should have alerted him as to the way in which Defendants were reasonably interpreting those words, and the effort and expense to which the words would put them during discovery. I note also that the discovery period in this action was more than a year long. ( Compare Dkt. No. 23 [Pretrial Scheduling Order filed 4/10/06, initially setting discovery deadline as 10/30/06] with Dkt. No. 32 [Order filed 3/14/07, extending deadline by which Defs. had to respond to Plf.'s outstanding discovery demands to 4/14/07].)

For these reasons, I recommend that the Court deny that request based on the fact that Plaintiff has failed to show the sort of cause that is required to support the granting of such a request under Fed.R.Civ.P. 7(b) and 41(a)(2).

B. Defendants' Motion for Summary Judgment

1. Legal Standard Governing Unopposed Motion for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted 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). In determining whether a genuine issue of material⁸ fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party.⁹

8 A fact is "material" only if it would have some effect on the outcome of the suit. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

9 Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) [citation omitted].

However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."¹⁰ The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts."¹¹ Rather, "[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."¹²

10 Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations . . . of the [plaintiff's] pleading, but the [plaintiff's] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the [plaintiff] does not so respond, summary judgment, if appropriate, shall be entered against the [plaintiff]."); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986).

11 Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations . . . of the [plaintiff's] pleading. . . ."); Matsushita, 475 U.S. at 585-86; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

12 Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at *8 (W.D.N.Y. Mar. 29, 2004) [internal quotations omitted] [emphasis added].

What this burden-shifting standard means when a plaintiff has failed to properly respond to a defendant's motion for summary judgment is that "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically."¹³ Rather, practically speaking, the Court must (1) determine what material facts, if any, are disputed in the record presented on the defendants' motion, and (2) assure itself that, based on those undisputed material facts, the law indeed warrants judgment for the defendants.¹⁴ However, the plaintiff's failure to respond to the defendant's motion for summary judgment lightens the defendant's burden on the motion.

13 Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

14 See Champion, 76 F.3d at 486 ("Such a motion may properly be granted only if the facts as to which there is no genuine dispute show that . . . the moving party is entitled to a judgment as a matter of law.") [internal quotation marks and citation omitted]; Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.) (stating that, where a plaintiff has failed to respond to a defendant's motion for summary judgment, "[t]he Court must review the merits of Plaintiff's claims"). This requirement (that the Court determine, as a threshold matter, that the movant's motion has merit) is also recognized by Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court, which provides that "the non-moving party's failure to file or serve . . . [opposition] papers . . . shall be deemed as consent to the granting . . . of the motion . . . unless good cause is shown," only where the motion has been "properly filed" and "the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein." N.D.N.Y. L.R. 7.1(b)(3) [emphasis added].

More specifically, where a plaintiff has failed to respond to a defendant's statement of material fact contained in its Statement of Material Facts (a/k/a its "Rule 7.1 Statement"), the facts as set forth in that Rule 7.1 Statement will be accepted as true¹⁵ to the extent that (1) those facts are supported by the evidence in the record,¹⁶ and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the consequences of failing to respond to the movant's motion for summary judgment.¹⁷

15 See N.D.N.Y. L.R. 7.1(a)(3) ("Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.") [emphasis in original].

16 See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir. 2004) ("[W]here the non-movant party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. . . . If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented. . . . [I]n determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 Statement. It must be satisfied that the citation to evidence in the record supports the assertion.") [internal quotation marks and citations omitted]; Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003) (Sharpe, M.J.) ("In this case, [the plaintiff] did not file a statement of undisputed facts in compliance with Local Rule 7.1(a)(3). Consequently, the court will accept the properly supported facts contained in the defendants' 7.1 statement.") [emphasis added]; Adirondack Cycle Marine, Inc. v. Am. Honda Motor Co., Inc., 00-CV-1619, 2002 U.S. Dist. LEXIS 4386, at *2-3 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) ("Local Rule 7.1 requires a party opposing summary judgment to respond to the statement of undisputed material facts submitted by the movant. To the extent such facts are not controverted, the properly supported facts will be taken as true.") [emphasis added; citation omitted]; cf. Fed.R.Civ.P. 83(a)(1) ("A local rule shall be consistent with . . . Acts of Congress and rules adopted under 28 U.S.C. §§ 2072 and 2075 [which include the Federal Rules of Civil Procedure]. . . ."); Fed.R.Civ.P. 56(e) (requiring that, "if the non-movant does not . . . respond [to a summary judgment motion], summary judgment, if appropriate, shall be entered against the non-movant," and requiring that, as a threshold matter, the motion for summary judgment must be "made and supported as provided in this rule") [emphasis added].

17 See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); cf. N.D.N.Y. L.R. 56.2 (imposing on movant duty to provide such notice to pro se opponent).

Similarly, where a plaintiff has failed to respond to a defendant's properly filed and facially meritorious memorandum of law (submitted in support of its motion for summary judgment), the plaintiff is deemed to have "consented" to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court.¹⁸ Stated another way, where a defendant has properly filed a memorandum of law (in support of a properly filed motion for summary judgment), and the plaintiff has failed to respond to that memorandum of law, the only remaining issue is whether the legal arguments advanced in the defendant's memorandum of law are facially meritorious. ¹⁹ A defendant's burden in making legal arguments that are facially meritorious has appropriately been characterized as "modest."²⁰

18 N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown."); N.D.N.Y. L.R. 7.1(a) (requiring opposition to motion for summary judgment to contain, inter alia, a memorandum of law); cf. Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.") [emphasis added]; see, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to "aspect" of defendant's motion to exclude expert testimony as "a concession by plaintiff that the court should exclude [the expert's] testimony" on that ground).

19 Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local Rule 7.1[b][3], "the court must review the motion to determine whether it is facially meritorious") [emphasis added; citations omitted]; accord, Topliff v. Wal-Mart Stores East LP, 04-CV-0297, 2007 U.S. Dist. LEXIS 20533, at *28 n. 43 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05-CV-0380, 2007 U.S. Dist. LEXIS 24356, at *5-6 n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v. Kooi, 04-CV-1311, 2007 U.S. Dist. LEXIS 26583, at *28-29 n. 40 (N.D.N.Y. Feb. 12, 2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele v. Pelkey, 03-CV-0170, 2006 U.S. Dist. LEXIS 95065, at *5 n. 2 (N.D.N.Y. Dec. 19, 2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).

20 See Ciaprazi v. Goord, 02-CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec. 22, 2005) (Sharpe, J.; Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as "modest") [citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986)]; accord, Saunders v. Ricks, 03-CV-0598, 2006 WL 3051792, at *9 n. 60 (N.D.N.Y. Oct. 18, 2006) (Hurd, J., adopting Report-Recommendation of Lowe, M.J.), Smith v. Woods, 03-CV-0480, 2006 WL 1133247, at *17 n. 109 (N.D.N.Y. Apr. 24, 2006) (Hurd, J., adopting Report-Recommendation of Lowe, M.J.); cf. Race Safe Sys. v. Indy Racing League, 251 F. Supp.2d 1106, 1109-1110 (N.D.N.Y. 2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3]); Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3], but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers) , adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-CV-989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F. Supp. 595 (N.D.N.Y. 1996) (Pooler, J.).

Implied in the above-stated standard is the fact that, where a non-movant fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute, even if that non-movant is proceeding pro se. ²¹

21 See Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) ("We agree with those circuits that have held that Fed.R.Civ.P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.") [citations omitted]; accord, Lee v. Alfonso, No. 04-1921, 2004 U.S. App. LEXIS 21432 (2d Cir. Oct. 14, 2004), aff'g, 97-CV-1741, 2004 U.S. Dist. LEXIS 20746, at *12-13 (N.D.N.Y. Feb. 10, 2004) (Scullin, J.) (granting motion for summary judgment); Fox v. Amtrak, 04-CV-1144, 2006 U.S. Dist. LEXIS 9147, at *1-4 (N.D.N.Y. Feb. 16, 2006) (McAvoy, J.) (granting motion for summary judgment); Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. Oct. 29, 2003) (Sharpe, M.J.) (granting motion for summary judgment); Prestopnik v. Whelan, 253 F. Supp.2d 369, 371-372 (N.D.N.Y. 2003) (Hurd, J.).

2. First Ground for Dismissal of Plaintiff's Amended Complaint: Facial Merit of Defendants' Unopposed Motion for Summary Judgment

As an initial matter, I find that Defendants' motion papers were "properly filed" for purposes of Local Rule 7.1(b)(3). N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown."). For example, their Statement of Material Facts — to the extent one is even needed to decide Defendants' arguments that Plaintiff has failed to state a claim upon which relief may be granted — contains 16 assertions of fact, each of which is supported by an accurate record citation. ( See Dkt. No. 38, Part 2 [Defs.' Rule 7.1 Statement].) Moreover, Defendants' motion is, as it must be, supported by a memorandum of law that contains a table of contents and citations to legal authorities, and that does not exceed 25 pages in length. (Dkt. No. 38, Part 15 [Defs.' Memo. of Law].)

Moreover, I find that Plaintiff was advised of the consequences of failing to properly respond to Defendants' motion for summary judgment and, clearly, he understood those consequences, for the reasons stated above in Part I.B. of this Order and Report-Recommendation. However, despite having received this detailed notice and liberal deadline-extension, Plaintiff failed to respond to the substance of Defendants' motion for summary judgment. (Dkt. No. 41.)

As a result, the only issue remaining before the Court is whether the legal arguments advanced in Defendants' Memorandum of Law are facially meritorious. ²² After reviewing these legal arguments, and the undisputed facts upon which they rely, I find that each of these legal arguments is, at the very least, facially meritorious, for the reasons stated by Defendants in their Memorandum of Law. ( See Dkt. No. 38, Part 15, at 2-25 [Defs.' Memo. of Law].) I note that several cases exist from this District granting summary judgment against a pro se litigant based on a similar facial analysis of Defendants' unopposed motion papers.²³

22 See, supra, note 19 of this Order and Report-Recommendation.

23 See, e.g., Race Safe Sys. v. Indy Racing League, 251 F. Supp.2d 1106, 1109-1110 (N.D.N.Y. 2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3]); Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3], and recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers) , adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-CV-989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F. Supp. 595 (N.D.N.Y. 1996) (Pooler, J.).

For these reasons, I recommend that the Court grant Defendants' motion for summary judgment.

3. Alternative Ground for Dismissal of Plaintiff's Amended Complaint

Because I have already found that an adequate ground exists upon which to base a recommendation that Plaintiff's Amended Complaint be dismissed, I do not believe there is a need to proceed to a more in-depth analysis of Defendants' arguments in favor of dismissal. Furthermore, I recommend that the Court decline to sua sponte conduct such a detailed analysis, especially given the backlog of prisoner civil rights cases on its docket.²⁴ However, in the interest of aiding the Court should it decide to conduct such an analysis, I have subjected Defendants' legal arguments to the more rigorous scrutiny that would be appropriate on a contested motion, and I find that I am persuaded by those legal arguments, which I list and discuss below. ( See Dkt. No. 38, Part 15, at 2-25 [Defs.' Memo. of Law].)

24 I note that the Second Circuit had, between 2000 and 2005, the longest median time to disposition for prisoner civil rights cases, among the twelve circuits (including the D.C. Circuit) — specifically, 9.8 months, as compared to a national average of 5.7 months.

(i) Plaintiff's Asserted Failure to Exhaust His Available Administrative Remedies with Regard to Various of His Claims Prior to Filing this Action in Federal Court

Defendants accurately describe the Prison Litigation Reform Act's exhaustion requirement, and New York State DOCS' formal grievance process. ( See Dkt. No. 38, Part 15, at 2-5 [Defs.' Memo. of Law].) For the sake of brevity, I will not repeat these well-known points of law. I will only add that the Second Circuit has held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA.²⁵ First, "the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact 'available' to the prisoner."²⁶ Second, if those remedies were available, "the court should . . . inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it . . . or whether the defendants' own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense."²⁷ Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, "the Court should consider whether 'special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements."²⁸

25 See Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir. 2004).

26 Hemphill, 380 F.3d at 686 (citation omitted).

27 Id. [citations omitted].

28 Id. [citations and internal quotations omitted].

Here, Defendants essentially argue that administrative remedies were available to Plaintiff, but he failed to pursue (and exhaust) them. (Dkt. No. 38, Part 15, at 6-8 [Defs.' Memo. of Law].) Defendants further argue that no special circumstances exist justifying this failure. ( Id. at 8.)

Although I agree with the main thrust of this argument (i.e., that several of Plaintiff's claims should be dismissed due to Plaintiff's failure to exhaust his available administrative remedies before filing this action in federal court), I disagree somewhat with Defendants' reasoning. Specifically, I disagree with Defendants' argument to the extent that it is based simply on the allegations of Plaintiff's Amended Complaint (i.e., on a failure-to-state-a-claim analysis).

For some years now, it has been the majority rule (followed by the Second Circuit) that a prisoner's fulfillment of his duty to exhaust his available administrative remedies under the Prison Litigation Reform Act ("PLRA") is not a fact that the prisoner had to plead in order to state a claim under 42 U.S.C. § 1983 but a fact that may be challenged by a defendant through an affirmative defense (such as on a motion for summary judgment pursuant to Fed.R.Civ.P. 56, or a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12[b][1]) established by the PLRA. See, e.g., Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) ("Because, under the PLRA, a prisoner must exhaust administrative remedies before filing a § 1983 suit . . ., a defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."); Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999) ("A court may not dismiss for failure to exhaust administrative remedies unless the court determines that such remedies are available. Snider's answers [on a form complaint] cannot establish that.").

Last year, the Supreme Court upheld this interpretation of the exhaustion requirement, prohibiting circuits (such as the Sixth, Tenth and Eleventh Circuits) from using exhaustion as a heightened pleading requirement in prisoner civil rights case. See Jones v. Block, 127 S. Ct. 910, 914-915, 918-923 (2007). A prisoner has no independent duty to plead facts plausibly suggesting that he exhausted his available administrative remedies, in order to state an actionable claim under 42 U.S.C. § 1983. Block, 127 S. Ct. at 919-21. "[T]his is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim." Id. at 921. If a prisoner chooses to plead facts regarding exhaustion, and those facts plausibly suggest that he failed to exhaust his available administrative remedies, then his Complaint may be dismissed for failure to state a claim. Id. at 920-21.

Simply stated, if a prisoner says nothing or little about exhaustion in his pro se civil rights complaint, he is likely protected from a Fed.R.Civ.P. 12(b)(6) motion to dismiss premised on failure to exhaust. However, if he says too much about exhaustion in that complaint so that his non-exhaustion is readily apparent, he may "plead himself out of court," as the saying goes. I find that this is not what has happened here. While Plaintiff alleges that he sent various officials letters of complaint about certain actions (allegedly) taken by Defendant Bruce, Plaintiff (an experienced litigant and drafter of pleadings) has remained reticent or outright silent about any efforts he did or did not take to appeal the denial of any grievance or complaint to CORC. ( See Dkt. No. 9, Part 1 [Plf.'s Am. Compl.].)

Fortunately for Defendants, they also assert an argument based on the uncontroverted record evidence in this action (i.e., on a summary-judgment analysis). Specifically, they argue that the uncontroverted record evidence in this action establishes that Plaintiff never appealed to CORC the denial of any grievances regarding several of his claims against Defendant Bruce. ( See Dkt. No. 38, Part 15, at 6-8 [Defs.' Memo. of Law].) In support of this argument, Defendants have adduced the Declaration of Karen R. Bellamy, the Director of the Inmate Grievance Program for the New York State DOCS. (Dkt. No. 38, Part 9 [Decl. of Bellamy].) Exhibit 1 to that Declaration attaches a computer printout demonstrating that Plaintiff never appealed to CORC the denial of any grievances regarding the following four claims: (1) Defendant Bruce's (alleged) refusal to permit Plaintiff "to go to [a] notary" on December 23, 2003; (2) Defendant Bruce's (alleged) "singl[ing]" Plaintiff out of a group of inmates going to recreation on February 22, 2004; (3) defamation by any Defendant; and (4) interference, by any Defendant, with Plaintiff's right to participate in religious services. ( Id. at ¶ 3 [citing, and attaching, Ex. 1 to Decl. of Bellamy].)²⁹

29 As for Plaintiff's claims regard the (allegedly) harassing pat-frisks on March 10 and 11, 2004, the computer printout provided by Ms. Bellamy does indicate that, on March 13, 2003, Plaintiff filed a grievance at Great Meadow C.F. (GM-34283-03) entitled "Moorish Pat Frisk." ( Id. at 4 [Ex. 1 to Decl. of Bellamy].) Of course, I am giving Plaintiff the benefit of the doubt here, since the title of his grievance suggests that the pat frisk at issue was objectionable because of it was due to Plaintiff's apparent Muslim religion, and not due to Plaintiff's having filed grievances against Defendant Bruce.

I note that the computer printout establishes that, during the 2002-2003 period, the grievance procedure at Great Meadow C.F. was working properly so as to be available to Plaintiff. I note also that no record evidence (nor even a conclusory allegation) exists suggesting that any Defendant in this matter, through his own actions, inhibited Plaintiff's exhaustion of remedies so as to estop that Defendant from raising Plaintiff's failure to exhaust as a defense. Finally, I note also that no record evidence exists supporting a conclusion that any special circumstances existed that justified any attempts by Plaintiff to appeal the denial of any complaint to Defendant Goord rather than to CORC, as is required by 7 N.Y.C.R.R. §§ 701.5(d), 701.8(g), (h).³⁰

30 ( See, e.g., Dkt. No. 38, Part 7, at 10-11 [Ex. E to Defs.' Motion, attaching Plf.'s letter of 2/22/04 to Def. Goord regarding Defendant Bruce's alleged misconduct on 2/22/04]; Dkt. No. 38, Part 8, at 3-4 [Ex. F to Defs.' Motion, attaching Plf.'s letter of 3/11/04 to Def. Goord regarding "harassment unlawful discrimination" by Def. Bruce].)

Based on the current record, I find that the uncontroverted record evidence establishes that, before filing this action in federal court, Plaintiff failed to exhaust his available administrative remedies regarding the following four claims: (1) Defendant Bruce's (alleged) refusal to permit Plaintiff "to go to [a] notary" on December 23, 2003; (2) Defendant Bruce's (alleged) "singl[ing]" Plaintiff out of a group of inmates going to recreation on February 22, 2004; (3) defamation by any Defendant; and (4) interference, by any Defendant, with Plaintiff's right to participate in religious services. As a result, I recommend that the Court dismiss those four claims with prejudice.

(ii) Plaintiff's Asserted Failure to State an Actionable Claim of Defamation

Under even the most liberal of constructions, Plaintiff's Amended Complaint has failed to allege facts plausibly suggesting ³¹ that any Defendant in this action defamed Plaintiff during the relevant time period. ( See Dkt. No. 9, Part 1, ¶¶ 27, 29, 31, 33, 35, 37 [Plf.'s Am. Compl.].) Moreover, as Defendants argue, even if Plaintiff had stated a claim for defamation, no reason exists for the Court to assert supplemental jurisdiction over that claim, under the circumstances. ( See Dkt. No. 38, Part 15, at 8-10 [Defs.' Memo. of Law].) As a result, I recommend that, in the alternative, the Court dismiss Plaintiff's defamation claim with prejudice.

31 See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (holding that, for a plaintiff's complaint to state a claim upon which relief might be granted under Fed.R.Civ.P. 8 and 12, his "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," or, in other words, there must be "plausible grounds to infer [actionable conduct]"), accord, Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) ("[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly] is . . . requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") [emphasis in original].

(iii) Plaintiff's Asserted Failure to State an Actionable Claim of the Denial of His Right to Participate in Religious Services

Under even the most liberal of constructions, Plaintiff's Amended Complaint has failed to allege facts plausibly suggesting that any Defendant in this action interfered with Plaintiff's right to participate in religious services. ( See Dkt. No. 9, Part 1, ¶¶ 27, 29, 31, 33, 35, 37 [Plf.'s Am. Compl.].) As a result, I recommend that, in the alternative, the Court dismiss this claim with prejudice.

(iv) Plaintiff's Asserted Failure to State an Actionable Claim of Conspiracy Against Defendant Bruce

As explained above in Part I.A. of this Order and Report-Recommendation, among Plaintiff's claims against Defendant Bruce is a claim that he "conspir[ed]" with and "instructed a co-worker to harass Plaintiff through the disguise [sic] of a pat-frisk" on March 10, 2004, at Great Meadow C.F. ( See Dkt. No. 9, Part 1, ¶ 8 [Plf.'s Am. Compl.].)

Defendants challenge the pleading sufficiency of this claim to the extent that it alleges a conspiracy by Defendant Bruce. ( See Dkt. No. 38, Part 15, at 11-12 [Defs.' Memo. of Law].) I agree. Under even the most liberal of constructions, Plaintiff's Amended Complaint has failed to allege facts plausibly suggesting that Defendant Bruce engaged in a conspiracy with the unidentified corrections officer to harass Plaintiff by subjecting him to a pat-frisk on March 10, 2004. ( See Dkt. No. 9, Part 1, ¶ 8 [Plf.'s Am. Compl.].)

Moreover, I find that Plaintiff's claim fails to the extent he alleges that Defendant Bruce was personally involved in any constitutional violation that occurred with regard to the pat-frisk. As an initial matter, I note that, generally, prisoners retain only a limited Fourth Amendment privacy interest in being free from such searches when they walk through the prison doors.³² Plaintiff does not allege that the pat-frisk violated his right to privacy under the Fourth Amendment. Rather, Plaintiff claims that the search was retaliatory in nature, and thus violated his First Amendment rights. The problem is that Plaintiff has alleged no facts in support of his conclusory allegation that Defendant Bruce "instructed" the unidentified corrections officer to perform the pat-frisk. Nor does Plaintiff alleges any facts plausibly suggesting that the pat-frisk (which occurred in a maximum-security correctional facility) would not have occurred even without such an instruction. Thus, Plaintiff fails to allege facts plausibly suggesting the second and third elements of a retaliation claim (i.e., the taking of adverse action against the plaintiff by the defendant, and a causal connection between the plaintiff's protected speech or activity and the taking of the adverse action).³³

32 See Bell v. Wolfish, 441 U.S. 520, 556-57 (1979) ("[G]iven the realities of institutional confinement, any reasonable expectation of privacy that a detainee retain[s] necessarily [is] of a diminished scope.").

33 To prevail on a First Amendment claim under 42 U.S.C. § 1983, a Plaintiff must prove by the preponderance of the evidence that: (1) the speech or conduct at issue was "protected"; (2) the defendants took "adverse action" against the plaintiff — namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action — in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill v. Pidylpchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing Dawes v. Walker, 239 F.3d 489, 492 [2d. Cir. 2001]). Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).

I note that, under the circumstances, the Court has the power (and duty) to sua sponte address the pleading sufficiency of Plaintiff's other claims, under two authorities: (1) 28 U.S.C. § 1915(e)(2)(B)(ii), which provides that "the court shall dismiss [a] case [brought by a prisoner proceeding in forma pauperis] at any time if the court determines that . . . the action . . . is frivolous or malicious[,] . . . fails to state a claim on which relief may be granted[,] . . . or . . . seeks monetary relief against a defendant who is immune from such relief"; and (2) 28 U.S.C. § 1915A(b), which provides that, "[o]n review, the court shall . . . dismiss the [prisoner's] complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted. . . ."

For these reasons, I recommend that the Court dismiss with prejudice both Plaintiff's conspiracy claim regarding the pat-frisk on March 11, 2004, and the retaliation claim regarding that pat-frisk.

(v) Plaintiff's Asserted Failure to Allege Facts Plausibly Suggesting, or Adduce Evidence Establishing, the Personal Involvement of Defendant Greene (a Supervisor) in any of the Constitutional Violations Alleged

Defendants accurately recite the law regarding the personal involvement of supervisory officials in constitutional violations alleged in prisoner civil rights actions. ( See Dkt. No. 38, Part 15, at 12-14 [Defs.' Memo. of Law].) For the sake of brevity, I will not repeat these well-known points of law.

In arguing that Defendant Greene was not personally involved in any of the constitutional violations alleged, Defendants employ alternative arguments: (1) Plaintiff has failed to allege facts plausibly suggesting that Defendant Greene was personally involved in any of the constitutional violations alleged; and (2) Plaintiff has failed to adduce any evidence establishing that Defendant Greene was personally involved in any of the constitutional violations alleged. ( Id.)

I have some reservation accepting the first argument given Plaintiff's allegations in his Amended Complaint that he submitted written complaints to Defendant Greene on three occasions regarding various of the claims at issue in this action, and that Defendant Greene responded in writing to Plaintiff on four occasions. ( See Dkt. No. 9, Part 1, ¶¶ 1, 2, 5, 6, 7, 12, 17, 18 [Plf.'s Am. Compl., alleging that he submitted written complaints to Def. Greene on or about 12/23/03, 2/22/04 and 3/19/04, and that Def. Greene sent written responses to Plf. on or about 12/26/03, 3/1/04, 3/8/04 and 3/19/04].)

However, I have no reservation accepting the second argument, given the undisputed record on Defendants' motion for summary judgment. More specifically, I find that no rational fact-finder could conclude from Plaintiff's written communications to Defendant Greene that Defendant Greene was notified that any constitutional violations were occurring.³⁴ Nor could a rational fact-finder conclude from Defendant Greene's (or his subordinates') written communications to Plaintiff that Defendant Greene's response was in any way reckless or even negligent.³⁵ It bears emphasizing that, following his receipt of Plaintiff's letters, Defendant Greene rather promptly assigned the matter to a subordinate officer for investigation, notified Plaintiff of that assignment, and then relied on the results of that subordinate officer's investigation. Defendants have accurately cited authorities supporting the (correct) point of law that a superintendent's adoption of a recommendation by an investigating officer cannot by itself demonstrate that he failed to remedy misconduct. Shabazz v. Lee, 03-CV1520, 2007 WL 119429, at *7, n. 4 (N.D.N.Y. Jan. 10, 2007) (Homer, M.J.) [citations omitted]. Finally, I note that the fact that Defendant Greene did not reverse Plaintiff's disciplinary conviction (a conviction, by the way, that was not subsequently overturned on appeal)³⁶ is not evidence of any constitutional violation by Defendant Greene.

34 (Dkt. No. 38, Part 6, at 10-11 [Ex. D to Defs.' Motion, attaching Plf.'s letter of 12/23/03 to Def. Greene regarding Def. Bruce's statement to Plf. on 12/23/04 that no notary was available]; Dkt. No. 38, Part 7, at 6-8, 11-13 [Ex. E to Defs.' Motion, attaching Plf.'s letter of 2/22/04 to Def. Greene regarding his "harassment unlawful discrimination" against Plaintiff by [1] singling Plaintiff out of a group of inmates going to recreation on 2/22/04, thus preventing him from going to recreation, [2] "illegally" posting a sign on a menu board reading "Bruce Almighty," and [3] "over stepping his duties into other officers' duties," for example, by "commanding two posts" when he is only assigned to one such post; and stating, "[I]f I am attacked by this officer, I will defend my life" and requesting that action be taken "before something serious incidents [sic] occur with myself, this officer, or co-worker"].)

35 (Dkt. No. 38, Part 6, at 9 [Ex. D to Defs.' Motion, attaching Def. Greene's memorandum of 12/26/03 to Plf., stating "Your 12/23/04 letter to me complaining about security staff has been forwarded to DSS Vanguilder for his investigation and response to you"]; Dkt. No. 38, Part 6, at 2 [Ex. D to Defs.' Motion, attaching Captain Kelly's memorandum of 2/6/04 to Plf., reporting that "Superintendent Greene has referred your recent communication regarding the above subject to me for an investigation and response," and that, following a thorough investigation of Plf.'s complaint about the notary issue, it has been concluded that there was no malfeasance by Def. Bruce on 12/23/04]; Dkt. No. 38, Part 7, at 5 [Ex. E to Defs.' Motion, attaching Def. Greene's memorandum of 3/1/04 to Plf., stating "Your 2/22/04 letter to me complaining about C.O. Bruce has been forwarded to DSS Vanguilder for his investigation and response to you. I resent the statement made by you that I or members of the Executive Team have condoned inappropriate behavior. I did not see a sign 'Bruce Almighty' posted in the Mess Hall Foyer and, if I had, I would have assumed it listed the movie to be shown to you by that title. You are extremely paranoid and this latest letter to me borders on threats by you. If I continue to believe you to be a threat here, I will address that issue."]; Dkt. No. 38, Part 7, at 2 [Ex. E to Defs.' Motion, attaching P. Vanguilder's memorandum of 3/12/04 to Plf., reporting that, following a thorough investigation of Plf.'s complaint about the notary issue, it has been concluded that there was no harassment by Def. Bruce on 2/22/04])

36 ( See Dkt. No. 38, Part 5, at 2 [Ex. C to Defs.' Motion, attaching appellate decision dated 6/8/04, by Def. Selsky regarding Plf.'s disciplinary conviction].)

For these reasons, I recommend that the Court dismiss with prejudice Plaintiff's claims against Defendant Greene based on his lack of personal involvement in any of the constitutional violations alleged.

(vi) The Protection from Liability that Defendants Goord, Greene, Selsky, Harvey and Murphy Assertedly Enjoy Under the Circumstances, Pursuant to the Doctrine of Qualified Immunity

Defendants accurately recite the legal standard governing the application of the doctrine of qualified immunity. ( See Dkt. No. 38, Part 15, at 14-17 [Defs.' Memo. of Law].) For the sake of brevity, I will not repeat this well-known legal standard.

Applying that legal standard to the record before the Court on Defendants' motion for summary judgment, I find that no rational fact-finder could conclude from the current record that Defendants Goord, Greene, Selsky, Harvey or Murphy violated a clearly established statutory or constitutional right of which a reasonable corrections officer would have known, for the reasons stated by Defendants in their Memorandum of Law. ( Id. at 15-17.)

Stated more simply, "officers of reasonable competence could disagree on [the legality of defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Ramirez v. Holmes, 921 F. Supp. 204, 211 (S.D.N.Y. 1996); Malsh v. Correctional Officer Austin, 901 F. Supp. 757, 764 (S.D.N.Y. 1995) [citing cases]. As the Supreme Court explained,

[T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law. . . . Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Malley, 475 U.S. at 341.

For these reasons, I recommend that the Court dismiss with prejudice Plaintiff's claims against Defendants Goord, Greene, Selsky, Harvey and Murphy based on the doctrine of qualified immunity.

(vii) Plaintiff's Asserted Failure to State an Actionable Due Process Claim Due to His Failure to Allege Facts Plausibly Suggesting that He Enjoyed a Protected Liberty Interest in Remaining Free from the Disciplinary Confinement Alleged

Defendants accurately recite the legal standard governing Plaintiff's due process claim regarding the manner in which his prison disciplinary hearing was conducted. ( See Dkt. No. 38, Part 15, at 17-21 [Defs.' Memo. of Law].) For the sake of brevity, I will not repeat this well-known legal standard other than to emphasize that, in order to establish that he possessed a protected liberty in remaining free from the disciplinary confinement at issue, Plaintiff must establish that the confinement imposed on him an atypical and significant hardship in relation to the ordinary incidents of prison life.

Applying this legal standard to the allegations of Plaintiff's Amended Complaint, I agree with Defendants that Plaintiff has failed to allege facts plausibly suggesting that he enjoyed a protected liberty interest in remaining free from the disciplinary confinement alleged, for the reasons stated by Defendants in their Memorandum of Law. ( Id. at 20-21.) Plaintiff alleges that his disciplinary conviction resulted in a sentence of sixty (60) days of keep-lock confinement and a corresponding loss of privileges. ( See Dkt. No. 9, Part 1, ¶¶ 24 [Plf.'s Am. Compl.].) More specifically, Plaintiff alleges that the conditions of his keep-lock confinement subjected Plaintiff to the following:

[L]ost telephone privileges, commissary privileges, package privileges, special events privileges, regular visits, 23-hour confinement, one (1) Exercise period, three ten-minute showers weekly, deprivation of access to Law library, deprivation of Access to the Courts, Lost [sic] of Sao Shop Industry Program earnings [of] 42 cents an hour, deprivation of paying Court fees, deprivation of paying for copies of legal material, injuring eligibility for constructive transfer, defamation of character, [denial of] liberty interest and religious services, and that such lost [sic] was malicious, cruel and unusual punishment. . . .

( Id. at ¶¶ 27, 29, 31, 33, 35, 37.)

Both the Supreme Court and Second Circuit have made clear that a "short" period of disciplinary confinement (i.e., under 101 days) under generally "normal" conditions (i.e., even if some of those conditions are harsher than those in disciplinary confinement or the general population) usually does not rise to the level of atypicality.³⁷ Here, setting aside the often-conclusory nature of Plaintiff's allegations, the allegations generally state the ordinary conditions of disciplinary confinement in a correctional facility within the New York State DOCS. See Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000) (describing the following conditions as "normal" conditions of SHU confinement in New York: "Colon was placed in a solitary confinement cell, kept in his cell for 23 hours a day, permitted to exercise in the prison yard for one hour a day . . ., limited to two showers a week, and denied various privileges available to general population prisoners, such as the opportunity to work and obtain out-of-cell schooling. Visitors were permitted, but the frequency and duration was less than in general population. The number of books allowed in the cell was also limited. As to duration, Colon was required to serve 305 days of the 360-day sentence imposed.") (citing N.Y.C.R.R. §§ 304.1-304.14). For example, conspicuously missing from this litany are any allegations that, while in keeplock confinement, Plaintiff was denied food, clothing, bedding, heat, running water, toiletries, or medicine. ( Id. at ¶¶ 27, 29, 31, 33, 35, 37.)

37 See, e.g., Sandlin v. Conner, 515 U.S. 472, 475-476, 486 (1995) (30 days of disciplinary confinement in SHU under conditions that mirrored those of normal administrative segregation "with insignificant exceptions" did not rise to the level of atypicality); Sealey v. Giltner, 197 F.3d 578, 589-590 (2d Cir. 1999) (101 days of disciplinary confinement in SHU under conditions that were "doubtless unpleasant and somewhat more severe than those of general population" did not rise to the level of atypicality).

For these reasons, I recommend that, in the alternative, the Court dismiss with prejudice Plaintiff's due process claims.

(viii) Plaintiff's Asserted Failure to Adduce Evidence Establishing a Claim of Retaliation by Defendant Bruce

As explained above in Part I.A. of this Order and Report-Recommendation, Plaintiff asserts five discrete instances of retaliation by Defendant Bruce: (1) refusing to permit Plaintiff "to go to [a] notary" on December 23, 2003; (2) "singl[ing]" Plaintiff out of a group of inmates going to recreation on February 22, 2004; (3) "conspir[ing]" with and "instruct[ing] a co-worker to harass Plaintiff through the disguise [sic] of a pat-frisk" on March 10, 2004; (4) "singl[ing]" Plaintiff out of a group of inmates going to mess hall in order to subject him to a harassing and retaliatory pat-frisk on March 11, 2004; and (5) filing a false misbehavior report against Plaintiff on March 11, 2004, in retaliation against him for having filed grievances against Defendant Bruce on December 23, 2003, February 22, 2004, and March 10, 2004. ( id. Dkt. No. 9, Part 1, ¶¶ 1, 5, 8-11, 13, 27 [Plf.'s Am. Compl.].)³⁸

38 I note that Defendants characterize these five discrete claims as four discrete claims, after combining the fourth and fifth claims described above into one claim. (Dkt. No. 38, Part 15, at 23-24 [Defs.' Memo. of Law].

Defendants accurately recite the legal standard governing Plaintiff's claim of retaliation by Defendant Bruce. ( See Dkt. No. 38, Part 15, at 21-23 [Defs.' Memo. of Law].) For the sake of brevity, I will not repeat this well-known legal standard other than to emphasize two facts a plaintiff must prove by a preponderance of the evidence in order to prevail on a First Amendment claim. First, the plaintiff must prove that the defendant (as opposed to some third-person) took "adverse action" against the plaintiff³⁹ Second, the plaintiff must prove that there was a causal connection between the protected speech in which the plaintiff was engaging and the adverse action allegedly taken against him — in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff.⁴⁰ Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone.⁴¹

39 Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill v. Pidylpchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing Dawes v. Walker, 239 F.3d 489, 492 [2d. Cir. 2001]).

40 Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287; Gill, 389 F.3d at 380.

41 Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) [citations omitted].

Applying that legal standard to the record before the Court on Defendants' motion for summary judgment, I find that no rational fact-finder could conclude from the current record that Defendant Bruce retaliated against Plaintiff, for the reasons stated by Defendants in their Memorandum of Law. ( Id. at 23-25.) In particular, Defendants have adduced record evidence establishing, among other things, that (1) no notary was on duty at Great Meadow C.F. on December 23, 2003, (2) Defendant Bruce was not present at Great Meadow C.F. when Plaintiff went to recreation at or after 2:30 p.m. on February 22, 2004, (3) Defendant Bruce (a correctional officer, not a correctional sergeant or lieutenant) possessed no authority to instruct a co-worker to pat-frisk Plaintiff on March 10, 2004 (or at any time), (4) Defendant Bruce's personal pat frisk of Plaintiff on March 11, 2004 would have occurred even without the improper motive alleged, and (5) Defendant Bruce would have filed a misbehavior report against Plaintiff on March 11, 2004, even without the improper motive alleged. ( Id. at 23-24 [providing accurate citations to record evidence].) Furthermore, Plaintiff has failed to adduce evidence creating a genuine issue with regard to these facts.

For these reasons, I recommend that the Court dismiss with prejudice Plaintiff's retaliation claim against Defendant Bruce.

4. Miscellaneous Issues

(i) Whether Any Claims Remain

I have carefully compared my detailed summary of the claims asserted in Plaintiff's Amended Complaint ( see, supra, Part I.A. of this Order and Report-Recommendation) with Defendants' meritorious arguments in favor of dismissal ( see, supra, Part II.B. 3. of this Order and Report-Recommendation), and I report that, should the Court adopt this Report-Recommendation, all of the claims asserted in Plaintiff's Amended Complaint would be dismissed from this action. Indeed, several of those claims would be dismissed on two or more alternative grounds.

(ii) Whether Plaintiff Should Be Afforded Another Chance to Amend

Generally, when addressing a pro se complaint, a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."⁴²

42 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citation omitted); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires").

For the sake of brevity, I will set aside the fact that one of the reasons for this rule is that the pro se plaintiff should be afforded special leniency due to his lack of experience with the court system and litigation process, and here Plaintiff need be afforded no such special leniency because he is experienced with the court system and litigation process (having filed at least 11 other federal or state court actions or appeals regarding his imprisonment).⁴³

43 See, e.g., Pilgrim v. Keane, 97-CV1517 (E.D.N.Y.); Pilgrim v. Wright, 01-CV-0098 (N.D.N.Y.); Pilgrim v. Brown, 01-CV-0700 (N.D.N.Y.); Pilgrim v. Luther, 01-CV-8995 (S.D.N.Y.); Pilgrim v. Wolczyl, 02-CV-0901 (N.D.N.Y.); Pilgrim v. Artus, 07-CV-1001 (N.D.N.Y.); Pilgrim v. Wright, No. 03-0086 (2d Cir.); Pilgrim v. Greene, Index No. 505332/2003 (N.Y.Sup.Ct., Washington County); Pilgrim v. Greene, No. 95400 (N.Y.App.Div., 3d Dept.); Pilgrim v. Greene, Nos. 3-10, 526 (N.Y.); Pilgrim v. New York, UID 2001-005-512, Claim No. 103678 (N.Y. Ct. Cl.).

Rather, the problem with applying this leave-to-amend rule to Plaintiff under the circumstances is that granting a pro se plaintiff an opportunity to amend is not required where the plaintiff has already been given a chance to amend his pleading.⁴⁴ Here, Plaintiff has already had such a chance to amend his pleading. ( See Dkt. No. 9, Part 1 [Plf.'s Am. Compl.].)

44 Cagle v. Perry, 04-CV-1151, 2007 WL 3124806, at *6, n. 45 (N.D.N.Y. Oct. 24, 2007) (McAvoy, J., adopting report-recommendation of Lowe, M.J.); Savage v. Brue, 05-CV-0857, 2007 WL 3047110, at *5, n. 35 (N.D.N.Y. Oct. 18, 2007) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Koehl v. Greene, 06-CV-0478, 2007 WL 2846905, at *3, n. 13 (N.D.N.Y. Sept. 26, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Muniz v. Goord, 04-CV-0479, 2007 WL 2027912, at *2, n. 14 (N.D.N.Y. July 11, 2007) (McAvoy, J., adopting report-recommendation of Lowe, M.J.); Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *5, n. 34 (N.D.N.Y. Jan. 23, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Ariola v. Onondaga County Sheriff's Dept., 04-CV-1262, 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan. 10, 2007) (Hurd, J., adopting report-recommendation of Lowe, M.J.); Collins v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL 37404, at *4, n. 30 (N.D.N.Y. Jan. 4, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Goros v. Cent. Office Review Comm., 03-CV-0407, 2006 WL 2794415, at *5, n. 18 (N.D.N.Y. Sept., 26, 2006) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Williams v. Weaver, 03-CV-0912, 2006 WL 2799417, at *4, n. 16 (N.D.N.Y. Sept. 26, 2006) (Kahn, J., adopting report-recommendation of Lowe, M.J.).

Moreover, even when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."⁴⁵ In particular, an opportunity to amend should be denied where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it."⁴⁶ Here, the problems with Plaintiff's causes of action are substantive, not merely formal. Simply stated, if Plaintiff (an experienced, prolific litigant) could have alleged sufficient facts to state viable claims, he would have done so.

45 Stinson v. Sheriff's Dep't of Sullivan County, 499 F. Supp. 259, 262 n. 9 (S.D.N.Y. 1980); accord, Standley v. Dennison, 05-CV-1033, 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. Aug. 21, 2007) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Muniz, 2007 WL 2027912, at *2 (McAvoy, J., adopting report-recommendation of Lowe, M.J.); DiProjetto v. Morris Protective Serv., 489 F. Supp.2d 305, 307 (W.D.N.Y. 2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL 853203, at *3 (S.D.N.Y. Feb. 9, 2007); Lopez v. Wright, 05-CV-1568, 2007 WL 388919, at *3, n. 11 (N.D.N.Y. Jan. 31, 2007) (Mordue, C.J., adopting report-recommendation of Lowe, M.J.); Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *5 (N.D.N.Y. Jan. 23, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Ariola v. Onondaga County Sheriff's Dept., 04-CV-1262, 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan. 10, 2007) (Hurd, J., adopting report-recommendation of Lowe, M.J.); Collins, 2007 WL 37404, at *4 (Kahn, J., adopting report-recommendation of Lowe, M.J.).

46 Cuoco, 222 F.3d at 112 (finding that repleading would be futile) [citation omitted]; see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (affirming, in part, dismissal of claim with prejudice) [citation omitted].

For all of these reasons, I recommend that the dismissal of Plaintiff's Amended Complaint be with prejudice.

(iii) Whether the Court Should Permit Plaintiff to Supplement the Record on Any Appeal to District Court from this Report-Recommendation

In light of Plaintiff's prolific nature as a litigant, I anticipate that, during his likely objections to this Report-Recommendation, he will attempt to supplement the record on Defendants' Motion for Summary Judgment. I respectfully recommend that the Court, in exercising its discretion on the matter, decline to permit him to so supplement the record.

The Second Circuit recognizes that the decision of whether or not to accept such evidence as resting in the sound discretion of the district court: "Considerations of efficiency and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's consideration, and we have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review." Hynes v. Squillance, 143 F.3d 653, 656 (2d Cir. 1998) (affirming decision by Scullin, J., of the Northern District of New York) [citations omitted].

The Fifth Circuit has suggested four factors that a court might consider in deciding whether to accept additional evidence after a magistrate judge's recommendation has been issued:

(1) the moving party's reasons for not originally submitting the evidence; (2) the importance of the omitted evidence to the moving party's case; (3) whether the evidence was previously available to the non-moving party when it responded to the summary judgment motion; and (4) the likelihood of unfair prejudice to the non-moving party if the evidence is accepted.

Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F, 3d 847, 862 (5^th Cir. 2003) [citation omitted].

Here, I find that these four factors — particularly the third and fourth factors — weigh against permitting Plaintiff to supplement the record on Defendants' motion for summary judgment during any appeal to the District Court from this Report-Recommendation. This action has been pending now since February 14, 2005, past the eighteen months envisioned by Congress when the Civil Justice Reform Act of 1990 was passed.⁴⁷ Plaintiff has had a full and fair opportunity to be heard on his claims, including a full and fair opportunity to (1) conduct discovery in this matter, (2) object to any (allegedly) deficient responses to his discovery demands, and (3) respond with evidence and argument to Defendants' motion for summary judgment. For whatever reason, he chose not to do so, perhaps because he was too busy litigating other actions, or more probably because the evidence simply did not support his claims. In any event, Defendants are entitled to have their motion decided within a reasonable time frame and on a level playing field (based on evidence and arguments to which they could properly reply).

47 See Adelman v. Hobbie, 03-CV-0032, 2006 WL 2639359, at *8 (N.D.N.Y. Sept. 13, 2006) (Sharpe, J., adopting Report-Recommendation by Treece, M.J.) (dismissing pro se civil rights action for failure to prosecute under Rule 41[b] in part because "[o]ver three years has passed since this litigation was commenced, well past the eighteen months envisioned by Congress when the Civil Justice Reform Act of 1990 was instituted").

For these reasons, I recommend that the Court, in exercising its discretion on the issue, deny any request by Plaintiff to supplement the record on Defendants' motion for summary judgment, during any objections to this Report-Recommendation.

ACCORDINGLY, it is

ORDERED that Plaintiff's cross-motion (Dkt. No. 41) is DENIED to the extent that it requests relief that is non-dispositive in nature (i.e., the reopening of the discovery period in this action, the adjourning of the Court's decision regarding Defendants' motion, and the imposition of sanctions against Defendants); and it is further

RECOMMENDED that Plaintiff's cross-motion (Dkt. No. 41) be DENIED to the extent that it requests relief that is dispositive in nature (i.e., the voluntarily dismissal without prejudice of Plaintiff's "defamation of character" and "[loss of] religious services" claims); and it is further

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 38) be GRANTED , and that all of the claims asserted in Plaintiff's Amended Complaint (Dkt. No. 9) be DISMISSED with prejudice; and it is further

RECOMMENDED that the Court DENY any request by Plaintiff to supplement the record on Defendants' motion for summary judgment during any appeal to the District Court from this Report-Recommendation; and it is further

RECOMMENDED that the Court certify in writing, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from the Court's final judgment in this action would not be taken in good faith.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 [2d Cir. 1989]); 28 U.S.C. § 636(b); Fed.R.Civ.P. 6(a), 6(e), 72.