Quezada v. Fischer

Full title: JOSE QUEZADA, Plaintiff, v. BRIAN FISCHER, et al., Defendants.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Feb 16, 2016

9:13-CV-00885 (MAD/TWD) (N.D.N.Y. Feb. 16, 2016)

Opinion

9:13-CV-00885 (MAD/TWD)

02-16-2016

JOSE QUEZADA, Plaintiff, v. BRIAN FISCHER, et al., Defendants.

APPEARANCES: JOSE QUEZADA Plaintiff pro se 04-A-3690 Five Points Correctional Facility Caller Box 119 Romulus, New York 14541 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: TIFFINAY M. RUTNICK, ESQ. Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: JOSE QUEZADA
Plaintiff pro se
04-A-3690
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: TIFFINAY M. RUTNICK, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION

This pro se action commenced by Plaintiff under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131, et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ("Rehabilitation Act") has been referred to this Court for Report and Recommendation by the Hon. Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). The matter is now before the Court on Defendants' motion to dismiss certain of the claims in Plaintiff's second amended complaint (Dkt. No. 111) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 116.) Plaintiff has opposed the motion. (Dkt. Nos. 127, 129.) For the reasons explained herein, the Court recommends that Defendants' Rule 12(b)(6) motion to dismiss be granted in part and denied in part.

I. PROCEDURAL HISTORY

On May 7, 2013, Plaintiff filed his original complaint in this action in the Southern District of New York. (Dkt. No. 1.) The complaint named thirty-seven defendants. Id. The case was transferred to the Northern District of New York on July 29, 2013. (Dkt. No. 18.) On March 31, 2014, Judge D'Agostino issued a Decision and Order severing and transferring the claims against twenty of the Defendants relating to Green Haven Correctional Facility ("Green Haven") back to the Southern District of New York.¹ (Dkt. No. 38.)

1 In addition, those claims against Defendant Richard Roy that are related to Green Haven were transferred to the Southern District of New York, while the remaining claim against Roy remains in the Northern District. (Dkt. No. 38 at 13.)

The Defendants against whom the claims remaining in the Northern District of New York have been asserted are Brian Fischer; Karen Bellamy; Richard Roy; Eric Gutwein, incorrectly sued as Cho Gutwein; Donnie C. Riley; Daniel R. King; S. Brown; John Cross; J. Monacelli; Rosanna Lordi; William Chase; Ronald Larocque; Andrew Bouchey; Andrew Streeter; T. Brousseau, incorrectly sued as T. Broussean; R. Lee; and S. Beaudette. Id. at 14. Plaintiff has sued the Defendants in both their official and individual capacities. (Dkt. No. 111 at 1-5².)

2 Unless otherwise noted, page references to documents identified by docket number herein are to the page number assigned by the Court's CM/ECF system. Because the allegations in Plaintiff's second amended complaint (Dkt. No. 111) are not in consecutively numbered paragraphs throughout, references herein to the second amended complaint are to the CM/ECF page numbers rather than paragraph numbers in the pleading.

Plaintiff's first amended complaint (Dkt. No. 26) was accepted for filing on March 31, 2014. (Dkt. No. 39.) The Defendants remaining in the Northern District filed a Rule 12(b)(6) motion to dismiss certain of the claims in the amended complaint on August 12, 2014. (Dkt. No. 88.) Plaintiff thereafter moved to amend his previously filed amended complaint. (Dkt. No. 104.) The Court granted the unopposed motion to amend (Dkt. No. 110), and the second amended complaint was filed as the operative pleading. (Dkt. No. 111.) It is the second amended complaint which Defendants now seek to have dismissed in part under Rule 12(b)(6). (Dkt. No. 116.) The second amended complaint is 158 pages long with more than 800 pages of exhibits.³ (Dkt. No. 111.)

3 Plaintiff is reminded that Federal Rule of Civil Procedure 8(a)(2) provides that a pleading stating a claim for relief must contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

II. DEFENDANTS' MOTION TO DISMISS

Plaintiff has alleged claims against Defendants for violation of Title II of the ADA and the Rehabilitation Act, and claims under 42 U.S.C. § 1983 for violation of his rights under his First, Fifth, Eighth, and Fourteenth Amendments to the Constitution. (Dkt. No. 111 at 6-7.) In their Memorandum of Law, Defendants have identified the claims alleged by Plaintiff and identified which of those claims they seek to have dismissed on their Rule 12(b)(6) motion.⁴ (Dkt. No. 116-1 at 5-7.) The claims alleged by Plaintiff that remain in the Northern District action involve matters that are claimed to have taken place at Shawangunk Correctional Facility ("Shawangunk"), Upstate Correctional Facility ("Upstate"), during Plaintiff's transport from Upstate to Clinton Correctional Facility ("Clinton"), and at Clinton. Id.

4 As discussed herein, in their Memorandum of Law, Defendants have failed to address a number of the claims identified as having been included in their motion to dismiss. (Dkt. No. 116-1). The Court has not treated the unaddressed claims as a part of the motion to dismiss.

A. Shawangunk

Defendants seek dismissal of the following claims arising at Shawangunk:

1. Defendant Eric Gutwein ("Gutwein"), as Hearing Officer at a disciplinary hearing held at Shawangunk involving a misbehavior report from Green Haven, violated Plaintiff's Fourteenth Amendment due process rights and retaliated against him for filing grievances and court actions against Department of Corrections and Community Services ("DOCCS") employees; and

2. retired DOCCS Commissioner Brian Fischer ("Fischer") was informed of Gutwein's alleged wrongdoing upon Plaintiff's administrative appeal.

(Dkt. No. 116-1 at 5, 7.)

B. Upstate

Defendants seek dismissal of the following claims arising at Upstate:

1. Defendants Upstate Sergeants William Chase ("Chase") and J. Monacelli ("Monacelli"), and Corrections Officer Ronald Larocque ("Larocque") harassed him;

2. Defendant Upstate Sergeant Donnie C. Riley ("Riley") harassed Plaintiff and did not stop an assault on Plaintiff by Defendants Larocque and Monacelli and unnamed DOCCS employees⁵;

3. Defendant Upstate Nurse Rosanna Lordi ("Lordi") denied Plaintiff medical care after he had been beaten by

corrections officers in violation of his Eighth Amendment right to adequate medical care; and

4. Lordi conspired with other DOCCS employees to cover up the assault on Plaintiff by Monacelli and Larocque.

(Dkt. No. 116-1 at 5, 7.)

5 Defendants have not included a harassment claim against Defendant Riley in the list of Plaintiff's claims set forth in their Memorandum of Law. (Dkt. No. 116-1 at 5.) They have, however, included a harassment claim against Riley in their legal argument. Id. at 22.

C. Transport from Upstate to Clinton

Defendants seek dismissal of Plaintiff's claim that Defendants Upstate Corrections Officers Andrew Streeter ("Streeter") and Andrew Bouchey ("Bouchey"), and Sergeant Daniel R. King ("King") denied him use of a medical device and threatened, verbally harassed, and assaulted Plaintiff during transport from Upstate to Clinton Mental Health Unit. Id.

D. Clinton

Defendants seek dismissal of the following claims arising at Clinton:

1. Defendant T. Brousseau ("Brousseau"), Clinton Inmate Grievance Supervisor, failed to respond to Plaintiff's complaint/grievance/appeal concerning an alleged assault by Defendants Street, Bouchey, and King because he was covering up staff misconduct and denying him access to court; verbally harassed Plaintiff; destroyed Plaintiff's grievances in retaliation for complaints made to Defendant Karen Bellamy ("Bellamy"), DOCCS Director of the Inmate Grievance Program; and refused to accept a grievance by Plaintiff regarding his request for a transfer to federal prison or a prison in another state;

2. Defendant Fischer failed to respond to Plaintiff's letter requesting an investigation of Defendants Brousseau and DOCCS Inspector General Richard Roy ("Roy");

3. Defendants Roy and Bellamy failed to respond to Plaintiff's complaints about Brousseau;

4. Defendant Fischer ignored Plaintiff's request to be transferred to a federal prison or a prison in another state;

5. Defendant S. Brown ("Brown"), Clinton Deputy Superintendent, retaliated against Plaintiff for complaining to the Inspector General and filing grievances regarding the denial of requests for accommodations for Plaintiff's disabilities and discriminated against him⁶;

6. Defendant Clinton Corrections Officer R. Lee ("Lee") verbally harassed Plaintiff;

7. Defendant Clinton Corrections Officer S. Beaudette ("Beaudette") threw Plaintiff's property in the garbage, verbally harassed him, and denied Plaintiff soap and razors in retaliation for filing grievances; and

8. Defendant Clinton Sergeant Supervisor John Cross ("Cross") violated Plaintiff's rights under Title II of the ADA and the Rehabilitation Act by denying his requests for reasonable accommodations, including special headphones, a shake alarm, a visual smoke detector, the use of a shower chair, something on which to place his knee and back brace during showers, and a chair in his cell so that he could sit when putting on his leg brace; and by posting a memorandum stating Plaintiff was required to sit on the floor while putting on his knee brace.

(Dkt. No. 116-1 at 6-7.)

6 Although Defendants have identified a claim against Brown for harassing Plaintiff in their list of Plaintiff's claims, they have not included that claim among those they seek to have dismissed. (Dkt. No. 116-1 at 6-7.) Because Defendants have addressed a harassment claim against Brown in their Memorandum of Law, id. at 22-23, the Court will consider it herein.

Defendants also seek dismissal of § 1983 claims for money damages against Defendants sued in their official capacities on Eleventh Amendment grounds and dismissal of Plaintiff's claims for injunctive and declaratory relief.⁷ Id. at 12-13, 24.

7 Given the number of Defendants and the number of varied claims being asserted by Plaintiff, the Court finds determination of whether Plaintiff can seek injunctive and declaratory relief on his claims to be premature.

III. FACTUAL BACKGROUND

Plaintiff's supporting allegations cover numerous, disparate issues. To avoid unnecessary repetition, the facts pertinent to claims Defendants seek to have dismissed will be set forth with the Court's analysis of the claim.

IV. LEGAL STANDARD GOVERNING RULE 12(b)(6) MOTIONS TO DISMISS

A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" that he or she is entitled to relief requires that the complaint "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

A complaint may be dismissed, pursuant to Rule 12(b)(6), only where it appears that there are not "enough facts to state a claim that is plausible on its face." Twombly. 550 U.S. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).

"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."⁸ Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

8 If documents attached to a complaint contradict the allegations in the complaint, the Court need not accept the allegations as true. See Hill v. Napoli, No. 6:09-CV-6546-MAT, 2014 WL 1322476, at *8, 2014 U.S. Dist. LEXIS 44018, at *23 (W.D.N.Y. March 31, 2014) (where documents incorporated into plaintiff's complaint contradict his allegations, the court need not accept them as true.); Rapoport v. Asia Electronics Holding Corp., 88 F. Supp. 2d 179, 184 (S.D.N.Y. 2000) (same).

In considering a Rule 12(b)(6) motion, "the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (A court may consider "any written instrument attached [to the complaint] as an exhibit or documents incorporated in it by reference."). "The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the plaintiff's complaint." Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41, 2008 U.S. Dist. LEXIS 110029, at *26-27 and n.41 (N.D.N.Y. Oct. 22, 2008)⁹ (collecting cases); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (where a pro se is faced with a motion to dismiss, a court may consider materials outside of the complaint "to the extent they are consistent with the allegations in the complaint."), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004); see also Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (in reviewing district court's dismissal of pro se plaintiff's claim, Second Circuit considered plaintiff's affidavit submitted in opposition to motion to dismiss). The Court has taken judicial notice of papers filed in other litigation involving Plaintiff and has considered documents in Plaintiff's submissions in opposition to the extent they are consistent with the allegations in Plaintiff's Amended Complaint.

9 The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009).

Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).

Where a pro se complaint fails to state a cause of action, the court generally "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." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that a "better pleading will not cure it." Id. (citation omitted).

V. ANALYSIS

A. Official Capacity Claims for Money Damages

Plaintiff has sued all of the Defendants for money damages under § 1983 in both their individual and official capacities. (Dkt. No. 111 at 2-5, 157.) Defendants seek dismissal of the § 1983 claims for money damages against them in their official capacities on the grounds that the claims are barred by the Eleventh Amendment. (Dkt. No. 116-1 at 12-13.)

The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state. Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006). The Eleventh Amendment bars all money damages claims against state officials acting in their official capacities, including the DOCCS Defendants herein. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (an inmate plaintiff's claims for damages against individual DOCCS employees sued in their official capacities are considered claims against New York and are thus barred by the state's Eleventh Amendment immunity).

Therefore, the Court recommends that all of Plaintiff's § 1983 claims for money damages against Defendants in their official capacities be dismissed with prejudice on Eleventh Amendment grounds.

B. Gutwein

On May 16, 2011, while he was still at Green Haven, a Misbehavior Report was issued against Plaintiff arising out of an incident in which Plaintiff was alleged to have attacked a corrections officer with a razor blade. (Dkt. Nos. 111 at 47; 111-2 at 10.) Plaintiff's disciplinary hearing was held before Defendant Hearing Officer Gutwein following his transfer to Shawangunk. (Dkt. Nos. 111 at 47-54; 111-7 at 2.) Gutwein issued a written disposition on June 17, 2011, finding Plaintiff guilty on all charges and sentenced him to five years in the Special Housing Unit ("SHU") and five years loss of good time and privileges. (Dkt. No. 111 at 53.) The charges on which Plaintiff was found guilty included 104.11 violent conduct, 100.11 assault on staff, 113.10 weapon, 107.10 interference with employee, and 106.10 refusing direct order. (Dkt. No. 111-2 at 131.)

Plaintiff appealed to Defendant Fischer on the grounds that: (1) none of his witnesses had been called; (2) Defendants retaliated and fabricated charges against Plaintiff for pursuing grievances and lawsuits against them; (3) Plaintiff's right to assistance was violated as a result of his assistant's failure to provide and produce documents related to his retaliation defense and failure to inform Plaintiff of the investigation results and to interview witnesses; (4) he was given insufficient written notice of the charges; (5) Defendants showed deliberate indifference to Plaintiff in failing to protect him from harm; and (6) Plaintiff was deprived of the opportunity to fully and fairly litigate his claim before a neutral hearing officer because of Hearing Officer Gutwein's bias and refusal to consider the merits of Plaintiff's defense. (Dkt. No. 111 at 53-54.)

Defendants seek dismissal of claims against Gutwein for violation of Plaintiff's Fourteenth Amendment due process rights in the hearing which resulted in his being placed in SHU, and First Amendment retaliation claim for grievances and legal actions commenced by him. Id. at 47-54; Dkt. No. 116-1 at 13-16.

1. Due Process Claim

In his second amended complaint and opposition papers, Plaintiff claims that Gutwein violated his due process rights in his role as Hearing Officer at Plaintiff's disciplinary hearing by failing to provide Plaintiff with his hearing aid for the hearing; refusing to call witnesses requested by Plaintiff; failing to produce requested documents needed for Plaintiff's defense; failing to inform Plaintiff of investigation results; acting in a biased manner and refusing to consider the merits of Plaintiff's defense; denying Plaintiff the right to assistance because his assistant never reported back with the necessary and available documentary evidence for his defense or the results of her investigation; and placing Plaintiff in SHU for sixty months and taking away sixty months of good time. (Dkt. Nos. 111 at 48-54; 129 at ¶ 6.) Gutwein seeks dismissal of Plaintiff's Fourteenth Amendment due process claim against him on collateral estoppel grounds based upon the Appellate Division Third Department judgment in Plaintiff's Article 78 proceeding challenging the hearing determination. (Dkt. No. 116-1 at 13-15.) See Quezada v. Fischer, 979 N.Y.S.2d 426 (3d Dep't 2014).

Pursuant to the Full Faith and Credit Clause, "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). The rule applies to actions brought pursuant to § 1983. Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996).

Under New York law, collateral estoppel or issue preclusion bars relitigation of an issue when (1) the issues in both proceedings are identical; (2) the issue of law or fact was "actually litigated and actually decided" in the prior proceeding; (3) the party against whom preclusion is sought had a full and fair opportunity for litigation in the prior proceeding; and (4) the previously litigated issues were necessary to support a valid and final judgment on the merits. Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (citations omitted). Collateral estoppel will apply "only if it is quite clear that the requirements have been satisfied, lest a party be precluded from obtaining at least one full hearing on his or her claim." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) (citation and internal quotation marks omitted).

The party seeking to invoke collateral estoppel bears the burden of demonstrating that the nature of the issues is identical, and "they were necessarily decided in the prior action." Kulak v. City of N.Y., 88 F.3d 63, 72 (2d Cir. 1996). The burden of demonstrating that the prior action did not afford a full and fair opportunity to litigate the issue rests with the party opposing application of the doctrine. Id. Issues not raised in the previous Article 78 proceeding cannot be barred by collateral estoppel. Colon, 58 F.3d at 870.

Dismissal under Rule 12(b)(6) on collateral estoppel grounds is appropriate where it is clear from the face of the complaint and matters of which the court may take judicial notice that a plaintiff's claims are barred as a matter of law. Conopco, Inc. v. Roll Intern., 231 F.3d 82, 86-87 (2d Cir. 2000). The applicability of collateral estoppel to Plaintiff's due process claim against Gutwein is not clear from the second amended complaint. Furthermore, because Defendants have not submitted Plaintiff's Article 78 petition or the briefs filed by the parties in that proceeding, the Court has only the Third Department Opinion in the Article 78 for consideration in assessing whether Gutwein is entitled to dismissal of Plaintiff's due process claim on collateral estoppel grounds. Having reviewed the Opinion, the Court concludes that it does not provide sufficient information to determine the applicability of the doctrine.

The Appellate Division confirmed the affirmance on administrative appeal of the finding of guilt following Plaintiff's Tier III disciplinary hearing before Gutwein. Quezada v. Fischer, 979 N.Y.S.2d at 427. The Appellate Division concluded that "the misbehavior report and related documentation, together with the testimony adduced at the hearing, provide[d] substantial evidence supporting the determination of guilt." Id. The Court also found that (1) Plaintiff's argument that the misbehavior report was prepared in retaliation for grievances and complaints filed by him against staff, and that the correction officer inflicted injuries to himself and it was Plaintiff who was injured, had presented a credibility issue for resolution by the Hearing Officer; (2) the misbehavior report was sufficiently detailed to provide Plaintiff with adequate notice of the charges to enable him to prepare a defense; and (3) Plaintiff's argument that he was denied a fair hearing was "unavailing given that there [was] no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias." Id. at 427-28.

The Appellate Division acknowledged that Plaintiff had raised other arguments in his Article 78 but did not identify or specifically address any of those arguments. Instead the Appellate Division wrote that "[t]o the extent that they are properly before us, we have considered petitioner's many remaining contentions, including his challenge to the penalty, and we find them unpersuasive." Id. at 428.

Under Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974), the procedural due process protections to which a prison inmate is entitled include: (1) written notice of the charges; (2) the opportunity to appear and be heard at a disciplinary hearing and to present witnesses and evidence subject to legitimate safety and penological concerns; (3) a limited right to assistance in preparing a defense; and (4) a written statement from the hearing officer explaining his or her decision, and the reasons for the actions taken. A prison inmate is also entitled to a fair and impartial hearing officer, Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004), and a determination that is supported by "some evidence" in the record. Superintendent v. Hill, 472 U.S. 445 (1985).

In this action, Plaintiff has alleged that his procedural due process rights were denied by, among other things: (1) his being denied his hearing aid at the hearing, which arguably impacted negatively on his right to appear and be heard; (2) Gutwein's refusal to call witnesses requested by Plaintiff and provide him with documents needed for his defense; and (3) denial of his right to adequate assistance. (Dkt. No. 129 at ¶ 6.) Because the Court cannot tell from the Appellate Division opinion whether those alleged denials of due process, all of which arguably fall under Wolff, were actually litigated and decided in the Article 78, it recommends that Defendants' motion to dismiss the due process violation claims against Gutwein on collateral estoppel grounds be denied at this time without prejudice.

2. Retaliation

To prevail on a First Amendment retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381.

Defendants have construed Plaintiff's second amended complaint to allege a retaliation claim against Gutwein in connection with the disciplinary hearing at which he was the Hearing Officer. (Dkt. No. 116-1 at 5, 15.) According to Defendants, Plaintiff has accused Gutwein of retaliating against him for grievances and legal proceedings he had commenced. Id. at 15. Defendants have failed to provide a specific citation to Plaintiff's second amended complaint with reference to the retaliation claim, instead referring generally to paragraphs 132-156. Id. at 5.

The Court has found no allegations supporting a retaliation claim against Gutwein with respect to the manner in which he conducted the disciplinary hearing, his decision, or the penalty imposed. The sole reference to retaliation in paragraphs 132-156 of the second amended complaint (Dkt. No. 111 at 47-54) appears to be retaliation by Corrections Officer Macisaac, who had filed the Misbehavior Report that was the subject of the hearing. Id. at ¶ 147. There are no factual allegations identifying specific grievances or legal actions constituting protected conduct by Plaintiff, and there are no factual allegations plausibly showing that Gutwein's allegedly wrongful actions in connection with the disciplinary hearing were causally related to specific protected activity by Plaintiff. Furthermore, Plaintiff 's opposition to Gutwein's motion to dismiss appears to be limited to his procedural due process violation claim. (Dkt. Nos. 127 at 4; 129 at ¶¶ 6-7.)

In light of the foregoing, the Court recommends that to the extent Plaintiff may have intended to allege a retaliation claim against Gutwein that the claim be dismissed without prejudice.

C. Chase, Monacelli, Larocque, and Riley

Plaintiff has alleged that when he was transferred to Upstate on July 21, 2011, Defendant Chase harassed him by asking him during processing how long it had been since he had assaulted Corrections Officer Macisaac and deliberately threatening him with physical harm. (Dkt. No. 111 at 55.) In addition, Plaintiff has alleged that Chase instigated and encouraged corrections officers to physically assault and cause serious harm to Plaintiff by informing them in a strong, audible voice that Plaintiff has assaulted a corrections officer and letting them know that they were going to make sure Plaintiff received a lesson. Id. Chase allegedly informed Defendant Monacelli that Plaintiff had assaulted an officer who needed twenty stitches, and in response Monacelli threatened Plaintiff. Id. at 56-57. Chase then told Monacelli that he had assigned Plaintiff a single cell, to which Monacelli responded that Plaintiff would be by himself with no witnesses. Id.

Chase, Monacelli, and Defendant Larocque escorted Plaintiff to his housing unit. Id. at 57. When they arrived, Chase and Monacelli told Defendant Riley that Plaintiff was the prisoner who had assaulted the officer, and Riley told Plaintiff "you know you are famous around here," but we are going to take care of you. Id. Plaintiff was thereafter taken to the clinic by Monacelli, Larocque, Riley, and other officers to be placed in a room so that his mental health history could be obtained by the staff. Id.

Once Plaintiff was in a room at the clinic, Monacelli directed him to remove his clothes and, along with Larocque and non-defendants, assaulted Plaintiff by violently and repeatedly punching and elbowing him and kicking him all over his body, including his face, back, and head. (Dkt. No. 1. at 58-59.) They slammed his head against the wall repeatedly and kicked him in his testicles. Id. After assaulting Plaintiff, Monacelli and Larocque verbally humiliated him by laughing and joking while they commented on his naked form. Id.

As a result of the beating by Monacelli and Larocque, Plaintiff suffered serious injuries to his face, shoulder, back, and ribs, including a big bump on his forehead. Id. at 59. He was in pain all over his body and head and was very dizzy. Id. Plaintiff requested medical assistance from the Defendants, including Larocque, who denied him assistance and told him to "shut up." Id. Plaintiff has alleged that Larocque falsified the log book by stating that Plaintiff had injured himself by banging his head against the wall to cover up the assault. Id.

Plaintiff called out to Defendant Riley several times during the beating, but Riley just watched and did nothing to prevent or stop it, despite having a realistic possibility of being able to prevent or end the assault. Id. at 58-59. Riley is also alleged to have been involved in falsifying the log book with regard to the assault on Plaintiff. Id. at 59.

1. Harassment Claims Against Monacelli and Larocque

Defendants Monacelli and Larocque seek dismissal of Plaintiff's claims of harassment against them. (Dkt. No. 116-1 at 22-23.) "[Verbal harassment or profanity alone, unaccompanied by any injury no matter now inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983." Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) (citation and internal quotation marks omitted); see also Tafari v. McCarthy, 714 F. Supp. 2d 317, 364 (N.D.N.Y. 2010) ("[Verbal harassment itself does not rise to the level of a constitutional violation[,]" and "verbal abuse, vulgarity, and even threats are insufficient to rise to the level of constitutional violations"); Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996) (allegations of threats or verbal harassment and profanity do not violate an inmate's constitutional rights); Germiston v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) ("Although indefensible and unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation cognizable under § 1983.")

The alleged harassment and threats by Monacelli and Larocque are directly related to the alleged assault of Plaintiff in the clinic, which occurred in close proximity and is alleged to have resulted in serious injury to him.¹⁰ (Dkt. No. 111 at 57-59.) Therefore, the Court finds that Plaintiff's claims of harassment and threats by Monacelli and Larocque are actionable as a part of his Eighth Amendment excessive force claim and recommends that their motion to dismiss the harassment claims be denied. See Aziz Zarif Shabazz, 994 F. Supp. at 474 (distinguishing claims of harassment and threats unaccompanied by injury from those involving injury).

10 Defendants Monacelli and Larocque are not seeking dismissal of Plaintiff's Eighth Amendment excessive force claims against them arising out of the assault that allegedly occurred in the clinic. (Dkt. No. 116-1 at 5, 7.)

2. Harassment Claim Against Chase

Defendant Chase also seeks dismissal of Plaintiff's harassment claim against him. (Dkt. No. 116-1 at 22-23.) The Court finds that Plaintiff has stated a claim under the Eighth Amendment against Chase, who allegedly harassed and threatened Plaintiff by informing other corrections officers about Plaintiff's assault on a corrections officer and encouraging them to physically assault him. (Dkt. No. 111 at 55-56.) One of those corrections officers was Monacelli, who responded by threatening Plaintiff with assault and allegedly making good on the threat a short time later. (Dkt. No. 111 56-59.)

Courts in this Circuit have long recognized that a prisoner can state a claim under the Eighth Amendment against a corrections officer who spreads malicious rumors about him, such as calling him a "snitch" or a "rat" if the rumors "incited other inmates to assault [the plaintiff] . . ., thereby placing him at grave risk of physical harm." See Bouknight v. Shaw, No. 08 Civ. 5187 (P.C.), 2009 WL 969932, at *4, 2009 U.S. Dist. LEXIS 35402, at *10 (S.D.N.Y. April 6, 2009); Campbell v. Gardiner, No. 12-CV-6003P, 2014 WL 906160, at *4, 2014 U.S. Dist. LEXIS 30024, at *10-11 (W.D.N.Y. March 7, 2014) (recognizing an Eighth Amendment claim for deliberate indifference to the safety of an inmate where a corrections officer identifies an inmate as a snitch or informant in front of other inmates, and the inmate faces actual or imminent harm).

The Court finds the allegation that Chase instigated and encouraged corrections officers, including Monacelli, to physically assault and cause serious harm to Plaintiff, followed closely by an assault on Plaintiff by Monacelli that resulted in physical injuries to Plaintiff, to be analogous to spreading malicious rumors that result in an assault on an inmate. Therefore, the Court recommends that Defendants' motion to dismiss Plaintiff's harassment claim against Chase be denied.

3. Harassment and Failure to Intervene Claims Against Riley

Defendant Riley seeks dismissal of Plaintiff's harassment claim against him. (Dkt. No. 116-1 at 5, 7.) The sole allegation of harassment against Riley in Plaintiff's second amended complaint is that he told Plaintiff "you know you are famous around here," but we are going to take care of you. (Dkt. No. 111 at 57.)

Plaintiff has also alleged a claim against Riley for failure to intervene to prevent or stop Monacelli and Larocque from assaulting him in the clinic, despite Plaintiff calling out to him several times during the beating. (Dkt. No. 111 at 58-59.) Although Defendants have identified the failure to intervene claim against Riley as one they seek to have dismissed on their Rule 12(b)(6) motion (Dkt. No. 116-1 at 5, 7), they have not included any argument in support of dismissal in their Memorandum of Law. (Dkt. No. 116-1.) Therefore, the Court does not consider the failure to intervene claim to be a part of Defendants' motion to dismiss.

The Court finds that the threatening comment made to Plaintiff by Riley would not by itself reach the level of a constitutional violation. See Tafari 714 F. Supp. 2d at 364. Given, however, that the comment closely preceded the assault by Monacelli and Larocque, who were present when the comment was made, as well as Riley's presence during the assault and alleged failure to intervene, the Court recommends that Riley's motion to dismiss the harassment claim be denied, and that the harassment claim be considered in conjunction with the Plaintiff's Eighth Amendment failure to intervene claim against Riley which the Court does not consider on this motion.

D. Lordi

The day following the assault, Plaintiff, who had yet to receive medical care, was lying in his clinic room when Lordi, a Nurse at Upstate, walked into the clinic and stopped outside the room of another inmate. (Dkt. No. 111 at 60-61.) Plaintiff overheard Lordi asking about him. Id. Lordi was told about Plaintiff cutting an officer at Green Haven and was also informed that Plaintiff had been banging his head on the wall. Id. Without approaching Plaintiff's room, Lordi asked him if he needed medical assistance. Id. Plaintiff told her that he needed to see a doctor because he had a lot of pain, could not move his head, and was dizzy as the result of a beating. (Dkt. No. 111 at 60-61.) Plaintiff also told Lordi that his whole face was swollen, and that he had not seen a doctor. Id. Lordi never approached Plaintiff's room to evaluate his injuries and went back to her conversation with a corrections officer, with whom she was whispering. Id. She yelled to Plaintiff from outside his room, "I don't see nothing, you don't need nothing." Id.

Plaintiff continued to try to impress upon Lordi the seriousness of his injuries and need to see a doctor to no avail. Id. Lordi, after looking at the log book, again told Plaintiff he did not need medical attention. Id. Plaintiff claims that Lordi conspired with Larocque and Monacelli to cover up the beating and injuries he had sustained. Id. at 62-63.

1. Indifference to Plaintiff's Serious Medical Needs

Plaintiff has alleged that Lordi violated his Eighth Amendment rights by showing deliberate indifference to his serious medical needs. (Dkt. No. 111 at 60-63.) Lordi seeks dismissal of the claim on the grounds that Plaintiff has failed to allege facts showing that she had the requisite mental state for an actionable medical indifference claim. (Dkt. No. 116-1 at 23-24.)

Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A claim that a prison official has intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). "The plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Caiozzo, 581 F.3d at 72 (citation and internal quotation marks omitted). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted). "[Not every lapse in medical care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when the two requirements are met." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citation and internal quotation marks omitted).

A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted); accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.

Under the subjective element, medical mistreatment rises to the level of deliberate indifference only when it "involves culpable recklessness, i.e., an act or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). "Deliberate indifference requires more than negligence but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66.

Lordi does not claim that Plaintiff has failed to make a plausible showing that he had a serious medical condition, (Dkt. No. 116-1 at 23-24), and the Court finds that for purposes of this motion he has made the requisite showing by alleging that as a result of the assault by Monacelli and Larocque, he suffered serious injuries to his face, shoulder, back, and ribs, had a large bump on his forehead, was in pain all over his body and head, and that he was very dizzy. (Dkt. No. 111 at 59.)

Instead, Lordi claims that Plaintiff failed to plausibly allege that she had the requisite mental state to support a medical indifference claim. (Dkt. No. 116-1 at 23-24.) The Court disagrees. The allegations in the second amended complaint reveal that the morning after the assault, Plaintiff informed Lordi of his pain and told her he could not move his head, that his whole face was swollen, that he was dizzy, and that he had not seen a doctor. (Dkt. No. 111 at 60-61.) Plaintiff has alleged that despite being given that information, Lordi told him that he did not need medical attention without ever approaching Plaintiff's room to evaluate his injuries. Id. at 62-63. Instead, she remained in the hall engaged in conversation with a corrections officer. Id.

The Court finds that for purposes of Defendants' motion to dismiss, the allegations in Plaintiff's complaint make a plausible showing of deliberate indifference to Plaintiff's serious medical condition by Lordi and recommends that her motion to dismiss Plaintiff's Eighth Amendment medical indifference claim be denied.

2. Conspiracy Claim

Defendants have construed Plaintiff's complaint as alleging a claim that Lordi engaged in a conspiracy with Monacelli and Larocque to avoid creating any records of Plaintiff's injuries in order to cover up the assault by Monacelli and Larocque. (Dkt. No. 116-1 at 24.) Lordi has moved to dismiss the conspiracy claim as against her under the intracorporate conspiracy doctrine. Id. at 5, 7, 24.

The intracorporate conspiracy doctrine "posits that officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other." Toliver v. Fischer, No. 9:12-CV-00077 (MAD/ATB), 2015 WL 403133, at *8, 2015 U.S. Dist. LEXIS 10139, at *19 (N.D.N.Y. Jan. 29, 2015) (citation and internal quotation marks omitted). The Second Circuit has yet to issue a decision specifically addressing the use of the intracorporate conspiracy doctrine in prisoner civil rights cases brought under § 1983. District courts within the Circuit have applied the doctrine to § 1983 prisoner civil rights claims on a number of occasions. See, e.g., Toliver, 2015 WL 403133, at * 3; Richard v. Dignean, No. 6:11-CV-6013 (EAW), 2015 WL 5175758, at *3, 2015 U.S. Dist. LEXIS 118536, at *7-8 (W.D.N.Y. Sept. 3, 2015) (collecting cases and, finding the reasoning of district courts applying the intracorporate conspiracy doctrine in prisoner civil rights cases to be persuasive, applying the doctrine); Vega v. Artus, 610 F. Supp. 2d 185, 205 (N.D.N.Y. 2009) (conspiracy claims against DOCCS employees barred by the intracorporate conspiracy doctrine). An exception to the intracorporate conspiracy doctrine has been recognized "when individuals pursue personal interests wholly separate and apart from the entity." Id. at 204-05; Richard v. Fischer, 38 F. Supp. 3d 340, 354 (W.D.N.Y. 2014) (same).

The Court finds the reasoning of the district courts applying the intracorporate conspiracy doctrine to prisoner civil rights cases under § 1983 to be persuasive and concludes that there are no allegations in the second amended complaint plausibly suggesting that Lordi was pursuing her own personal interests separate and apart from DOCCS in attempting to cover up the assault by Monacelli and Larocque by failing to document Plaintiff's injuries. Therefore, the Court recommends that Plaintiff's conspiracy claim against Lordi be dismissed under the intracorporate conspiracy doctrine and that the dismissal be without prejudice solely to the extent that Plaintiff can allege facts plausibly showing that Lordi was pursuing her own personal interests separate and apart from those of DOCCS.¹¹

11 The allegations in Plaintiff's second amended complaint fail to support a § 1983 conspiracy claim against Lordi in any event. "To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors . . .; (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) (citations omitted). Plaintiff's second amended complaint construed most liberally contains, at best, conclusory allegations of an agreement among Lordi and other DOCCS employees. (Dkt. No. 111 at 62-63.) "A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (citations and internal quotation marks omitted).

E. Streeter, Bouchey, and King

On July 22, 2011, Defendants Streeter and Bouchey transported Plaintiff from Upstate to Clinton. (Dkt. No. 111 at 64-67) They came to his room in the clinic and threw his clothes in his face, refused Plaintiff's request for his wedding band, eye glasses, knee brace, hearing aid, and cane, ordered him to get dressed, and ordered him to walk to the exit. Id. at 64. As Plaintiff was approaching the van, one of the Defendants pushed him inside, and he landed on his stomach. Id.

According to Plaintiff, during the trip, Streeter or Bouchey struck Plaintiff's head, back, face, and all over his body and said "I should kill you. You like to assault officers, you fucking nigger." (Dkt. No. 111 at 64-65.) While punching Plaintiff, Street or Bouchey began calling him a "nigger," "coward," and "bitch" and repeatedly demanded that Plaintiff repeat the phrases "I love the white man. I love the white officers and I fucked up." Id. at 64-66. Plaintiff appears to allege that King was involved in the assault. Id. Before they arrived at Clinton, Streeter, Bouchey, and King all threatened to kill Plaintiff when he returned to Upstate if he reported being assaulted during transport to the doctor or nurse at Clinton. Id. at 66-67. When they arrived at Clinton, Defendant King told the gate officer that Plaintiff had "cut and assaulted an officer." Id. Plaintiff was asked by the nurse at Clinton if he had any medical problems, and Street, Bouchey, and King, who were present, looked Plaintiff in the face, intimidating him so that he would not report the assault. Id.

Defendants have identified Plaintiff's Eighth Amendment claims for excessive force, harassment, and denial of the use of medical devices against Defendants Streeter, Bouchey, and King as included in their Rule 12(b)(6) motion to dismiss. (Dkt. No. 116-1 at 5, 7.) The only claim addressed in their Memorandum of Law, however, is Plaintiff's harassment claim against Streeter, Bouchey, and King. Id. at 22-23. Therefore, the Court does not consider Plaintiff's excessive force and denial of the use of medical devices claims to be a part of Defendants' motion to dismiss.

Because Plaintiff has alleged that the Defendants' alleged harassment was accompanied by the injuries sustained by him as a result being assaulted by Streeter, Bouchey, and King, the Court recommends that their motion to dismiss Plaintiff's harassment claim be denied. See Aziz Zarif Shabazz, 994 F. Supp. 2d at 474 (unless accompanied by a physical injury, verbal harassment alone does not constitute the violation of any federally protected right).

F. Brousseau

Defendant Brousseau was the Inmate Grievance Procedure ("IGP") Supervisor at Upstate when Plaintiff filed a grievance on August 8, 2011, for assault and battery against Upstate staff. (Dkt. No. 111 at 70.) While the grievance does not identify the individuals against whom it was made, it describes the assaults that involved Monacelli, Larocque, Riley, Streeter, Bouchey, and King. (Dkt. Nos. 111-2 at 157-68; 111-3 at 1-2.) Plaintiff wrote letters to Brousseau requesting status updates on August 31, 2011, and September 5, 2011, and did not receive a response to either letter. (Dkt. No. 111 at 70-71.)

On September 9, 2011, Plaintiff wrote an appeal of the August 8, 2011, grievance to Brousseau due to a lack of response and requested that the appeal be sent to the Superintendent. Id. at 71; Dkt. No. 111-4 at 2. On September 15, 2011, Plaintiff wrote to Defendant Fischer requesting an investigation of Defendant Richard Roy ("Roy") and Brousseau for refusing to respond to his grievance. (Dkt. No. 111 at 71.)

On October 20, 1011, Brousseau sent Plaintiff written notice that there was no record of a grievance having been filed concerning an alleged assault at Upstate. Id.; Dkt. No. 111-4 at 3. On October 23, 2011, Plaintiff wrote to Roy regarding Brousseau's cover-up of staff misconduct, refusal to file Plaintiff's grievance, destruction of the grievance, and refusal to file Plaintiff's appeal. (Dkt. Nos. 111 at 72; 111-4 at 5-16.) Plaintiff also refiled the grievance on October 23, 2011. (Dkt. No. 111 at 72.)

On November 9, 2011, Plaintiff filed a complaint against Brousseau with the Clinton Superintendent alleging harassment, destruction of Plaintiff's grievances, denying Plaintiff access to court, and covering up staff misconduct. Id. On November 21, 2011, Plaintiff wrote a letter to Defendant Fischer requesting an investigation of his August 8, 2011, grievance, and a letter to Defendant Bellamy complaining that Brousseau had destroyed his grievances and refused to file his appeal for the sole purpose of covering up official misconduct. Id. at 73; Dkt. 111-4 at 18-22. Bellamy responded by letter of November 30, 2011, in which she advised Plaintiff that contact with Upstate administration revealed that he had filed no grievances, and that he should address his grievance concerns with the IGP Supervisor. (Dkt. No. 111-4 at 24.)

On November 26, 2011, Plaintiff filed a grievance requesting to be transferred to another state or to federal custody for security reasons. (Dkt. Nos. 111 at 74; 111-4 at 27-29.) The grievance was rejected by Brousseau as untimely. (Dkt. No. 111 at 74.) Plaintiff refiled the grievance on December 12, 2011, and sent a letter to Brousseau asking that the grievance be filed. Id.

On December 22, 2011, Plaintiff filed a complaint against Brousseau with the Superintendent for repeatedly refusing to file his grievances, harassment, and retaliation while acting in concert with others to cover up misconduct by destroying Plaintiff's grievances. Id. at 75. Plaintiff received no response from the administration at Clinton. Id.

In January of 2012, Brousseau came to Plaintiff's cell in SHU and told him he wanted to speak with him about all of the letters and complaints he had sent the Superintendent about him. (Dkt. No. 111. at 76.) According to Plaintiff, Brousseau told him that he had processed every grievance that came through his office. Id. Brousseau also made reference to Plaintiff's assault with a razor blade on a corrections officer and told Plaintiff "what' go (sic) around come around," and informed Plaintiff he answered grievances when he wanted to, and if Plaintiff did not like it to stop filing grievances. Id. at 76-77.

1. Claim for Harassment

Brousseau seeks dismissal of Plaintiff's harassment claim against him. Inasmuch as "[Verbal harassment itself does not rise to the level of a constitutional violation," Tafari, 714 F. Supp. 2d at 364, and there are no allegations that Brousseau's alleged harassment was accompanied by physical injury, the Court recommends that the claim be dismissed with prejudice.

2. Violation of Grievance Procedures

The law is well-settled that inmates do not have a constitutional right to state grievance procedures. See Shell v. Brzezniak, 365 F. Supp. 2d 362, 370 (W.D.N.Y. 2005) ("[i]nmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures do not give rise to a cognizable § 1983 claim"). "[C]omplaints that prison officials tampered with, failed to investigate, or improperly processed grievances, without more, do not give rise to liability under § 1983." Celestin v. Premo, No. 9:12-cv-301 (GLS/RFT), 2014 WL 272443, at *3, 2014 U.S. Dist. LEXIS 8790, at *6 (N.D.N.Y. Jan. 24, 2014) (citing Irvis v. Seally, No. 9:09-cv-543 (GLS/ATB), 2011 WL 454792, at * 2, 2011 U.S. Dist. LEXIS 11095, at *5 (N.D.N.Y. Feb. 4, 2011) ("Thus, regardless of whether and to what extent defendants followed their grievance procedures in investigating or failing to investigate [plaintiff's] complaints, his claims must fail as a matter of law as they are not actionable under § 1983.")); see also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (an inmate's right of access to the courts is not compromised by the refusal to entertain an inmate's grievance because if prison officials ignore a grievance that raises constitutional issues, an inmate can directly petition the government for redress); Shell, 365 F. Supp. 2d at 369-70.

Therefore, the Court recommends that Brousseau's motion to dismiss Plaintiff's claim that he violated the DOCCS grievance procedures by failing to respond to Plaintiff's grievances to cover up for staff, be dismissed with prejudice.

3. Retaliation

Defendants have acknowledged that Plaintiff has alleged a claim against Brousseau for retaliation in connection with destruction of his grievances.¹² (Dkt. No. 116-1 at 5.) Moreover, they identify the claim as one which they seek to have dismissed on their Rule 12(b)(6) motion. (Dkt. No. 116-1 at 7.) Defendants' Memorandum of Law, however, has addressed only Plaintiff's harassment and violation of the DOCCS grievance procedure claims, not the retaliation claim, which is a separate claim from the grievance procedure violation claim. See, e.g., Adams v. Rock, No. 9:12-cv-1400 (GLS/ATB), 2015 WL 1312738, at *13, 2015 U.S. Dist. LEXIS 183061, at *22 (N.D.N.Y. March 24, 2015) (addressing a claim for retaliation for failure to file grievances as distinct from violation of DOCCS grievance procedure claim). As a result of the Defendants' failure to address the retaliation claim in their Memorandum of Law, the Court does not consider the retaliation claim to be a part of Defendants' motion to dismiss.

12 Plaintiff has alleged that Brousseau destroyed Plaintiff's grievances in retaliation for Plaintiff's complaints to Fischer and Bellamy regarding his handling of Plaintiff's grievances. (Dkt. No. 111 at 78.)

G. Brown

Defendants have identified the claims alleged by Plaintiff against Defendant Brown, Deputy Superintendent for Security, as verbal harassment and threats; retaliation for complaining to the Inspector General and filing grievances by denying requests for accommodations for Plaintiff's disabilities; discrimination; and ignoring Plaintiff's complaints about Brousseau. (Dkt. No. 116-1 at 6.) Defendants have identified Plaintiff's claims against Brown for retaliation and discrimination as the only two claims they seek to have dismissed on their Rule 12(b)(6) motion. Id. at 6-7. Because neither of those claims has been addressed in Defendants' Memorandum of Law, neither is considered by the Court to be a part of Defendants' Rule 12(b)(6) motion. (See Dkt. No. 116-1.)

Plaintiff's claim against Brown for verbal harassment and threats has not been included among the list of claims Defendants seek to have dismissed. Id at 6-7. The claim has, however, been addressed in their Memorandum of Law. Id. at 22-23. Because it is clear from Defendants' Memorandum of Law that they are seeking dismissal of the verbal harassment and threats claim against Brown, and Plaintiff has addressed the claim in his opposition (Dkt. No. 127 at 6), the Court finds that consideration of the claim on Defendants' Rule 12(b)(6) motion will not be prejudicial to Plaintiff.

Plaintiff has alleged that Brown came to his cell on January 20, 2012, and told Plaintiff that he was going to have a problem with him if he did not stop filing grievances, and he would never be moved to four gallery as an accommodation for his disability. (Dkt. No. 111 at 81.) Plaintiff became fearful because Brown was screaming at him, and he was concerned if he filed a grievance, it would impact negatively on his request to move to four gallery. Id. at 82.

Although verbal threats or abuse are indefensible and unprofessional, in the absence of physical injury, they are not sufficient to state a constitutional violation cognizable under § 1983. Aziz Zarif Shabazz, 994 F. Supp. 2d at 474; Germiston, 878 F. Supp. at 449. Plaintiff has not alleged that the threats resulted in physical injury. Therefore, the Court recommends that Plaintiff's claim that he was verbally harassed and threatened by Brown be dismissed with prejudice.

H. Lee

Defendants have moved for dismissal of Plaintiff's harassment claim against Defendant Lee. (Dkt. No. 116-1 at 6-7, 22-23.) Plaintiff has alleged that while he was in his cell, he asked Lee to correct documents to reflect that he had three, not two bags. (Dkt. No. 111 at 89.) Lee replied in an aggressive and profane manner that the paper work had three bags listed and told Plaintiff he could start packing his things because he was not going to be in the cell long. Lee also made reference to a letter Plaintiff had written to Captain Lucia which resulted in Lee being ordered to give Plaintiff his legal work. Id.

On June 27, 2012, while escorting Plaintiff to the yard, Lee and another officer told Plaintiff "I don't fucking care if you walk on one leg, you're going to be moved to another company, and I don't care what the Sergeant said. You're lucky that unit 14 has so may cameras up here. You think you're (sic) lawyer can protect you? I'm going to see to that." Id. On July 2, 2012, Lee told Plaintiff he was going to make sure he never got out of SHU, and that if he did Lee would make sure to take care of him. (Dkt. No. 111 at 93-94.) On August 13, 2012, while handing out the mail, Lee screamed to Plaintiff, "Don't make noise or scream when I'm on the Company!" Id. at 94. He also told Plaintiff to stop talking to himself. Id.

Because Lee's harassing and threatening comments are not, in absence of physical injury, sufficient to state a constitutional violation cognizable under § 1983, the Court recommends that Plaintiff's claim that he was verbally harassed and threatened by Lee be dismissed with prejudice. See Aziz Zarif Shabazz, 994 F. Supp. 2d at 474.

I. Beaudette

According to Defendants' Memorandum of Law, they are seeking dismissal of Plaintiff's claims against Defendant Corrections Officer Beaudette for cutting Plaintiff's showers short and making the water too hot; throwing Plaintiff's property in the garbage; verbally harassing Plaintiff; and denying Plaintiff soap and razors in retaliation for filing grievances. (Dkt. No. 116-1 at 6-7.) The only claim addressed in Defendants' Memorandum of Law, however, is Plaintiff's claim that Beaudette destroyed his property, although it appears that the omission of Beaudette's name from the harassment claim argument in Defendants' Memorandum of Law was almost certainly inadvertent and will be construed as such by the Court. Id. at 22-23, 26-27. Therefore, the Court deems Plaintiff's harassment and destruction of property claims to be the sole claims against Beaudette that Defendants seek to have dismissed on their Rule 12(b)(6) motion.

Plaintiff has alleged that on December 17, 2012, while he was being taken to the clinic, Beaudette entered his cell, searched his property, and threw Plaintiff's sheet, lotion, shampoo, and the rest of the property Plaintiff had on the floor in the garbage. (Dkt. No. 111 at 96.) In his Affirmation and Memorandum of Law in Opposition, Plaintiff contends that Beaudette had destroyed Plaintiff's property, including his legal papers, in retaliation for filing grievances. (Dkt. Nos. 127 at 8; 129 at 13.) Therefore, the Court construes Plaintiff's claim regarding the destruction of his property as both a Fourteenth Amendment due process claim and a First Amendment retaliation claim.

1. Destruction of Property in Violation of Due Process Rights

It is well settled that "[w]here a deprivation at the hands of a government actor is 'random and unauthorized,' hence rendering it impossible for the government to provide a pre-deprivation hearing, due process requires only a post-deprivation hearing." DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003); see also Hudson v. Palmer, 468 U.S. 517, 534 (1984) (only post-deprivation remedy was required following intentional destruction of an inmate's personal property by a prison guard, because the state was not "in a position to provide for predeprivation process.") The Second Circuit has held that New York provides an adequate post-deprivation remedy in the Court of Claims with respect to property claims by prison inmates. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Therefore, the Court recommends that Plaintiff's Fourteenth Amendment claim for destruction of property be dismissed with prejudice.

2. Retaliation

The filing of an inmate grievance is protected First Amendment activity for purposes of a retaliation claim. See Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) ("the filing of prison grievances is a constitutionally protected activity" for purposes of a retaliation claim). Furthermore, the retaliatory destruction of a prisoner's personal property can in some instances be sufficient to establish an adverse action. McFadden v. Friedman, No. 9:12-CV-0685 (GTS/CFH), 2015 WL 5603433, at *13, 2015 U.S. Dist. LEXIS 128314, at *29 (N.D.N.Y. Sept. 23, 2015). Nonetheless, the Court finds that in this case Plaintiff has failed to state a plausible claim for retaliation.

Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. Flaherty v. Coughlin, 713 F.3d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. at 506. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Id. Plaintiff has failed to identify the grievances against which Beaudette was allegedly retaliating and failed to allege facts plausibly showing that there was a causal connection between the grievances and Beaudette's actions.

In addition, the only items of personal property specifically described by Plaintiff in this complaint were a sheet, lotion, and shampoo. In his opposition papers, Plaintiff has alleged that legal papers were also thrown away but has provided no information regarding the papers or their significance to any legal matters in which he was involved. Although confiscation or destruction of an inmate's property may constitute an adverse action for purposes of a retaliation claim, that is not always the case. See McFadden, 2015 WL 5603433, at *12 (confiscation of plaintiff's fan would "not [deter] a similarly situated individual of ordinary firmness from exercising his constitutional rights," and is "not substantial enough to deter legitimate grievances against prison officers") (citations and internal quotation marks omitted); see also Smith v. City of New York, No. 03 Civ. 7576 (NRB), 2005 WL 1026551, at *3, 2005 U.S. Dist. LEXIS 7903, at *2 (S.D.N.Y. May 3, 2005) (finding adverse action where prison officials destroyed multiple legal papers and nine hundred dollars worth of personal property). The Court finds that putting Plaintiff's sheet, lotion, and shampoo in the garbage is not in and enough itself sufficient to constitute an adverse action.

An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, including: (I) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has been found insufficient to survive summary judgment. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations omitted).

Plaintiff has failed to allege facts plausibly showing that grievances he filed were a motivating factor in Beaudette's alleged destruction of Plaintiff's personal property. The failure results at least in part from the absence of specific facts regarding the grievances Plaintiff filed and Beaudette's connection, if any, to those grievances. See, e.g., Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a correction officer when the only alleged basis for retaliation was a complaint about an incident involving another corrections officer), Roseboro,791 F. Supp. 2d at 369 (failure by plaintiff to provide any basis to believe corrections counselor would retaliate for a grievance in which she was not personally named).

Based upon the foregoing, the Court recommends that Plaintiff's retaliation claim against Beaudette involving the alleged destruction of his personal property and legal papers be dismissed without prejudice for failure to state a claim.

3. Harassment

On May 25, 2013, after Plaintiff had placed his name on the list for a haircut and was awaiting his turn, Beaudette approached his cell and asked if he wanted a haircut. (Dkt. No. 111 at 116-17. Beaudette then told Plaintiff that the only way he would get a haircut was if he showed Beaudette his dick and cut his beard. Id. The comments attributed by Plaintiff to Beaudette, while crude and unprofessional, do not constitute the violation of any constitutional right. See Aziz Zarif Shabazz, 994 F. Supp. 2d at 474. Therefore, the Court recommends that Plaintiff's harassment complaint against Beaudette be dismissed with prejudice.

J. Fischer, Roy, and Bellamy

Defendants seek dismissal of the claims against DOCCS officials Defendants Fischer, Roy, and Bellamy. (Dkt. No. 116.)

1. Personal Involvement Requirement

"It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted).

"Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6, 2012 U.S. Dist. LEXIS 25367, at *22-23 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).

The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.¹³

13 The Second Circuit has expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

2. Fischer ¹⁴

14 Plaintiff has alleged four distinct claims against Fischer in his second amended complaint. (Dkt. No. 111 at 53-54, 71, 73-74.) Those claims are addressed herein. In addition, in catch all paragraphs 308 and 309, Plaintiff has complained generally and in wholly conclusory fashion that between 2006 and 2013, he wrote Fischer multiple letters and filed numerous grievances and complaints regarding assaults by DOCCS staff, and Fischer failed to correct the wrongs or protect Plaintiff from Fischer's subordinates. (Dkt. No. 111 at 122-23.) Given the generalized and wholly conclusory nature of the allegations against Fischer in paragraphs 308 and 309, id. at 122-23, and the length of the time period involved, the Court has not treated the allegations in the paragraphs as a distinct claim separate and apart from the specific claims asserted against him that are addressed herein.

a. Denial of Due Process Claim Regarding Appeal

Plaintiff has alleged that he appealed Gutwein's decision in his disciplinary hearing to Fischer. (Dkt. No. 111 at 53-54.) The guilty finding was affirmed on appeal. See Quezada v. Fischer, 979 N.Y.S.2d 426, 427 (3d Dep't 2014) (noting that the determination of guilt following his Tier III disciplinary hearing was affirmed on administrative appeal). Although Fischer's actual involvement, if any, in the affirmance, is not clear from allegations in Plaintiff's second amended complaint (Dkt. No. 111 at 53-54), in his Memorandum in Opposition, Plaintiff claims that Fischer "at all time (sic) condoned all the wrongdoing and and (sic) constitutional violations by all the defendants from span of more than eighth (sic) years in particular he was alerted to the Gutwein wrongdoing and entertainer (sic) plaintiff (sic) appeal in which [he] affirmed and denied plaintiff due process." (Dkt. No. 127 at 4.)

"Merely affirming the denial of an inmate's appeal of a disciplinary sanction . . . is insufficient, on its own, to establish personal involvement." Shepherd v. Fischer, No. 9:10-CV-1524 (TJM/DEP), 2015 WL 1246049, at *13, 2015 U.S. Dist. LEXIS 34238, at *42 (N.D.N.Y. Feb. 23, 2015); see also Tafari, 714 F. Supp. 2d at 383 ("The affirming of a disciplinary conviction does not constitute personal involvement."). Therefore, the Court recommends that Plaintiff's Fourteenth Amendment due process claim against Fischer for affirming Gutwein's guilty determination in Plaintiff's disciplinary hearing be dismissed with prejudice.¹⁵

15 If the Court had recommended that Defendants' motion to dismiss the due process claim against Gutwein on collateral estoppel grounds be granted, the same recommendation would have been made with respect to the due process claim against Fischer.

b. September 15, 2011, Letter Requesting an Investigation of Defendants Brousseau and Roy

Plaintiff has alleged that on September 15, 2011, he wrote to Fischer requesting an investigation of Roy and Brousseau for failing to respond to his grievance complaint filed on August 8, 2011. (Dkt. No. 111 at 71.) Plaintiff acknowledges receiving a response to the letter from Deputy Commissioner Lucien J. LeClaire on September 29, 2011, advising Plaintiff that the complaint was currently being investigated at the facility level. Id.

Because by Plaintiff's own admission, his letter to Fischer was referred to the Deputy Commissioner, who responded to Plaintiff, the Court finds that Plaintiff has failed to plausibly allege personal involvement by Fischer with respect to the September 15, 2011, letter requesting an investigation of Roy and Brousseau and recommends that the claim be dismissed with prejudice. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (prison official who received a letter from an inmate and forwarded it to a subordinate for investigation and response was not personally involved in depriving inmate of constitutional right); Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010) (no personal involvement by DOCCS Commissioner where he referred prisoner's complaint letters to a subordinate for handling); Garvin v. Goord, 212 F. Supp. 2d 123, 126 (W.D.N.Y. 2002) ("[W]here a commissioner's involvement in a prisoner's complaint is limited to forwarding of prisoner correspondence to appropriate staff, the commissioner has insufficient personal involvement to sustain a § 1983 cause of action.").

c. November 21, 2011, Letter to Fischer Regarding a FOIL Request

On November 21, 2011, Plaintiff wrote to Fischer seeking his help with regard to the FOIL officer's refusal to respond to his request under FOIL (as codified in N.Y. Pub. Off. Law §§ 84-90) for a copy of the recording done while Plaintiff was being transported to an outside hospital. (Dkt. Nos. 111 at 73-74.) The Court finds that Plaintiff has failed to state a § 1983 claim for violation of his constitutional rights with regard to his FOIL request. See Pub. Off. Law § 89(4)(b) (providing that a person may appeal the denial of access to a record via an Article 78 proceeding); Jaegly v. Couch, 168 F. App'x 480, 482 (2d Cir. 2006) (due process is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy, such as an Article 78 proceeding).

Therefore, the Court recommends that to the extent Plaintiff intends to assert a due process claim against Fischer with regard to the FOIL request, the claim be dismissed with prejudice.

d. November 30, 2011, Letter Requesting Transfer to Federal Prison

On November 30, 2011, Plaintiff wrote to Fischer advising him that he was in constant danger as the result of numerous physical assaults from corrections officers and supervisors from 2006 through 2011. (Dkt. Nos. 111 at 74; 111-4 at 31-32.) Plaintiff requested that Fischer arrange for him to be transferred to a federal prison or a prison in another state. Id. Plaintiff claims in his opposition papers that despite the risks to Plaintiff's safety, Fischer refused to transfer him to federal custody. (Dkt. No. 127 at ¶ 18.)

It is well settled that a prisoner has no constitutional right to serve his sentence in any particular institution or to be transferred from one facility to another. See Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Prins v. Coughlin, 76 F.3d 504, 507 (2d Cir. 1997). The Supreme Court recognized in Turner v. Safley, 482 U.S. 78, 84-85 (1987), that the placement and transfer of inmates are examples of "inordinately difficult" undertakings as to which the courts "accord deference to the appropriate prison authorities." Therefore, "prison officials have broad discretion to transfer prisoners." Meriwether v. Coughlin, 879 F.2d 1037, 1045 (2d Cir. 1989).

Inasmuch as Plaintiff has no constitutional right to be transferred to a federal prison or to an out of state facility, the Court recommends dismissal with prejudice of Plaintiff's claim against Fischer for failing to comply with the transfer request in his November 30, 2011, letter.

3. Roy

Plaintiff has asserted claims against Defendant Roy that relate to his incarceration in both Green Haven and Clinton in his second amended complaint. (Dkt. No. 111 at 20, 34, 38,44-46, 72.) The claims against Roy that arose out of events that occurred at Green Haven were transferred to the Southern District of New York by Judge D'Agostino. (Dkt. No. 38.) Defendants moved to dismiss Plaintiff's claims against Roy in the Southern District of New York action for failure to allege personal involvement, and the motion was granted. See Quezada v. Roy, No. 14 Civ. 4056(CM), 2015 WL 5547277, at *9, 2015 U.S. Dist. LEXIS 126665, at *21-22 (S.D.N.Y. Sept. 18, 2015).

Plaintiff had alleged in his amended complaint in the Southern District that he sent grievances and letters to Roy on several occasions asserting that his life was in danger and asking to be transferred out of Green Haven because of fears for his safety. Quezada, 2015 WL 554277, at *9. The Hon. Colleen McMahon, United States District Judge, granted Roy's motion to dismiss on the grounds that Roy's position as Inspector General was not high enough in the DOCCS hierarchy to hold him liable for the actions of others, the fact that Plaintiff sent grievances to Roy was not enough to hold him liable, and a prison official's failure to investigate a prisoner's grievances or complaints is not actionable under § 1983. Id.

In his second amended complaint, Plaintiff has alleged that he wrote to Roy on October 23, 2011, to notify him of Brousseau's misconduct in refusing to file and in destroying Plaintiff's grievance, and in refusing to file an appeal. (Dkt. No. 111 at 72.) In his letter to Roy, Plaintiff indicated that he was writing to let him know that he had received a letter from Brousseau informing him that there was no record of Plaintiff's August 8, 2011, grievance on file. (Dkt. No. 111-4 at 14.) Plaintiff informed Roy that he had written to the Superintendent requesting an investigation, and that the Superintendent had responded that the letter had been sent to Roy. Id. Plaintiff told Roy that he has also sent a letter to Fischer. Id. Plaintiff enclosed copies of the referenced letters as well as his grievance. Id. Plaintiff also provided Roy with a copy of the grievance. Id. at 15.

As discussed above, inmates do not have a constitutional right to state grievance procedures and violation of the procedures does not give rise to a cognizable claim under § 1983. Shell, 365 F. Supp. 2d at 369-70. Because Brousseau's actions with regard to Plaintiff's grievance do not give rise to liability under § 1983 for violation of Plaintiff's constitutional rights, even if Roy were high enough in the DOCCS hierarchy to be held liable for the actions of others, he has no liability to Plaintiff for violation of § 1983 with respect to Brousseau's actions under any of the Colon factors. See Colon, 58 F.3d at 873. Therefore, the Court recommends that Plaintiff's supervisory liability claim against Roy be dismissed with prejudice.

4. Bellamy

On November 21, 2011, Plaintiff wrote to Bellamy complaining that Brousseau had violated DOCCS Directive 4040 by refusing to file grievances of inmates in SHU. (Dkt. Nos. 111 at 73;111-4 at 21.) Plaintiff informed Bellamy that he had filed several grievances and when he requested information from Brousseau about the grievances he did not respond. (Dkt. No. 111-4 at 21.) Plaintiff identified one of the grievances as an August 1, 2011, grievance against Upstate officers for assault.¹⁶ Id. Plaintiff told Bellamy that when he wrote to Brousseau regarding the grievance, he did not respond, but that after Plaintiff wrote to the Superintendent, Brousseau sent Plaintiff a letter informing him that no grievances had been filed. (Dkt. No. 111- 4 at 21-22.) Bellamy responded in writing on November 30, 2011, informing Plaintiff that contact with the administration at Upstate revealed that Plaintiff had not filed any grievances, and contact with the administration at Clinton revealed that he had filed five grievances to date.¹⁷ Id. at 24.

16 It appears that Plaintiff may have been referring to his August 8, 2011, grievance.

17 As with Fischer, Plaintiff has included catch all allegations in paragraphs 314 through 317 complaining in wholly conclusory fashion that since 2006, Bellamy has personally participated in constitutional violations by her subordinates in relation to destruction of grievances that Plaintiff filed against staff, by protecting her subordinates even after she was advised of their wrongdoing in multiple letters, reports, and complaints from Plaintiff; and that Bellamy was grossly negligent in supervising her subordinates who committed unlawful acts. (Dkt. No. 111 at 125-28.) Given the generalized and wholly conclusory nature of the allegations against Bellamy in paragraphs 314 through 317, the Court has not treated those allegations as a distinct claim or claims separate from the specific claim arising out of Plaintiff's November 21, 2011, letter to Bellamy that is addressed herein.

Because Brousseau's actions in allegedly refusing to file Plaintiff's grievance do not give rise to liability under § 1983 for violation of Plaintiff's constitutional rights, see Shell, 365 F. Supp. 2d at 369-70, Bellamy can not be held liable to Plaintiff for violation of § 1983 under any of the Colon factors. Colon, 58 F.3d at 873. Therefore, the Court recommends that Plaintiff's supervisory liability claim against Bellamy be dismissed with prejudice.

K. Claims Against Defendant Cross Under Title II of the ADA and the Rehabilitation Act

Defendant Cross seeks dismissal of Plaintiff's claim that he violated Plaintiff's rights under Title II of the ADA and the Rehabilitation Act by denying Plaintiff's requests for reasonable accommodations for his physical disabilities including special headphones, a shake alarm, a visual smoke detector, the use of a shower chair, implements to place his knee and back braces on while he was in the shower, and a chair in the back of his cell to sit on while putting on his leg brace.

1. Disabilities

a. Hearing Impairment

Plaintiff has suffered from a hearing impairment since childhood and wears hearing aids in both ears. (Dkt. Nos. 127 at 4; 127-1 at 13.) In or about January of 2013, Plaintiff's request for a reasonable accommodation under Title II of the ADA, which included special headphones, a shake alarm, and a visual smoke detector was denied. (Dkt. Nos. 111 at 96; 111-5 at 68-70.) Plaintiff's grievance from the denial was also denied. (Dkt. No. 111-5 at 104-15.)

On May 28, 2013, Jack Young ("Young"), a staff attorney from Prisoners' Legal Services of New York, wrote to the Clinton Superintendent requesting a review of the denial of Plaintiff's request for reasonable accommodations. (Dkt. No. 127-1 at 13.) According to Young, because Plaintiff has hearing aids that are placed in the ear canal in both ears so he cannot use the earbud style earphones available to SHU inmates, which are also placed in the ear canal. Id. In his letter, Young indicates that Plaintiff's most recent grievance regarding his request for headphones was denied by the Superintendent on March 5, 2013, because the audiologist noted that Plaintiff's hearing aids were functioning within normal limits. Id.; Dkt. No. 111-5 at 69-70. However, as pointed out by Young, Plaintiff is still unable to use earbuds because his hearing aids are in the ear canal. Id. Young also noted that because sleeping with hearing aids in is uncomfortable and would place Plaintiff at increased risk for an infection, he cannot use an auditory alarm. Id.

b. Knee and Back Disabilities

In addition to his hearing impairment, Plaintiff has had three surgeries for injuries to his knee alleged to have been sustained when he was thrown off a two story building in 1999. (Dkt. Nos. 111-6 at 2-59; 127 at 3-4.) The surgeries appear to have been of limited success, leaving Plaintiff with an unstable knee on which he has to wear a brace. Id.; Dkt. No. 111-4 at 77. Plaintiff also has back problems resulting from a fall from his top bunk in 2005 for which he wears a back brace. (Dkt. Nos. 111-4 at 77; 127 at 4.)

According to Plaintiff, from early February 2013 until early May 2013, Cross refused to allow him to sit on his bed to put his knee brace on and insisted he sit on the floor in the back of his cell. (Dkt. Nos. 111 at 271-83; 129 at ¶¶ 39-49.) Even after Plaintiff informed Cross that putting the knee brace on while sitting on the floor caused him excruciating back pain, Cross continued to refuse to allow Plaintiff to sit on the bed. (Dkt. No. 129 at ¶¶ 41-42.) As a result of not being able to sit on the bed to put on his brace, Plaintiff was often required to go to the recreation cage without his brace, and on those occasions could do nothing more than stand in the corner. Id. at ¶¶ 41-44. When Cross learned that other officers were allowing Plaintiff to sit on the bed to put on his leg brace, he posted a memorandum stating that Plaintiff's knee brace was only for out of cell use, the brace was to be kept in the back of his cell, and Plaintiff could stand or sit on the floor to put the brace on and did not need to sit on the bed or on a stool in the back of his cell to put it on. Id. at ¶ 47.

On May 6, 2013, one of the days on which Plaintiff was required to go to recreation without his brace because Cross would not let him sit on the bed to put it on, Plaintiff slipped and fell on a wet spot in front of the shower on the way back from recreation when his knee gave out. (Dkt. No. 129 at ¶ 49.) Plaintiff twisted his knee and back. Id. The same day, a memorandum ordered by Defendant Brown was issued advising staff that a five gallon bucket was to be placed in the back of Plaintiff's cell so that he could sit on it to put on his knee brace. Id. at ¶ 52; Dkt. No. 111 at 111.

According to Plaintiff, Cross also denied him the use of a shower chair, forcing him to sit on the unsanitary, dirty, slippery shower floor. (Dkt. No. 129 at ¶ 37.) In addition, Plaintiff was required to place his hearing aids and knee and back braces on the dirty floor during his shower because Cross would not provide an off the floor surface on which they could be placed. Id.

2. Title II of the ADA and the Rehabilitation Act ¹⁸

18 The elements of claims under Title II of the ADA and the Rehabilitation Act are essentially the same and are treated as such in the Court's analysis. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

Title II of the ADA provides in relevant part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. A "disability" is defined as a "physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1)(A). In general, plaintiffs who seek to state a claim for disability under the ADA "must demonstrate that (1) they are 'qualified individuals' with a disability¹⁹; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities." Henrietta D. v. Bloomberg, 331 F.3d 261, 272-73 (2d Cir. 2003).

19 Under the ADA, the term "disability" with respect to an individual means "a physical or mental impairment that substantially limits one or more major life activities of such individual"; "a record of such impairment"; or "being regarded as having such an impairment." 42 U.S.C. §12102(1). For purposes of "being regarded as having such as impairment," an individual need only establish "that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairments limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3).

"The purpose of [Title II of the ADA] is to 'eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and able-bodied.'" Maccharulo v. New York State Dept. of Corr. Servs., No. 08 Civ 301 (LTS), 2010 WL 2899751, at *2, 2010 U.S. Dist. LEXIS 73312, at *7 (S.D.N.Y. July 21, 2010) (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). Under Title II of the ADA, a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual "to have access to and take a meaningful part in public services." Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir 2004), opinion corrected on other grounds at 511 F.3d 238 (2d Cir. 2004); Disabled In Action v. Board of Elections of New York, 752 F.3d 189, 197 (2d Cir. 2014) ("A public entity discriminates against a qualified individual with a disability when it fails to provide 'meaningful access' to its benefits, programs, or service.") (citation omitted).

The Supreme Court has held that state prisons "fall squarely within the statutory definition of 'public entity'" in Title II of the ADA, and state inmates may maintain ADA claims. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); see also Hilton v. Wright, 673 F.3d 120, 128 (2d Cir. 2012) (DOCCS treated as a public entity under Title II of the ADA).

3. Individual Capacity Claims under Title II of the ADA and the Rehabilitation Act

Neither Title II of the ADA nor the Rehabilitation Act provides for individual capacity suits against state officials. Garcia v. State of N.Y. Health Scis Ctr., 280 F.3d 98, 109-10 (2d Cir. 2001). Therefore, the Court recommends that Plaintiff's ADA and Rehabilitation Act claims against Cross in his individual capacity be dismissed with prejudice.

4. Official Capacity Claims under Title II of the ADA and the Rehabilitation Act

a. Money Damages

The Eleventh Amendment bars claims for money damages against a state and its officials acting in their official capacity in federal court unless the state has waived its sovereign immunity or it has been abrogated by Congress. Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009). In Garcia, 280 F.3d at 109-10, the Second Circuit found that in enacting Title II of the ADA, Congress had exceeded its authority under Section 5 of the Fourteenth Amendment in broadly abrogating Eleventh Amendment sovereign immunity. The Court found that sovereign immunity could still be abrogated under Title II of the ADA if a plaintiff could establish "that the Title II violation was motivated by discriminatory animus or ill will based on plaintiff's disability." Id. at 111.

After Garcia, the Supreme Court reaffirmed that "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). Thereafter, in Bolmer v. Oliveira, 594 F.3d 134, 146-48 (2d Cir. 2010), the Second Circuit clarified that Garcia and its discriminatory animus requirement were based on Congress's enforcement of the Equal Protection Clause. Id. at 146.

The Court held in Bolmer that the Garcia requirement of an additional showing of discriminatory animus or ill will based on plaintiff's disability is not applicable when abrogation is supported by the enforcement of due process rights.²⁰ Id. at 147-48. In Georgia, 546 U.S. at 157-58, the Supreme Court concluded that because the Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment's guarantee against cruel and unusual punishment, a state prison inmate may sue the state or one of its officials in his official capacity, for money damages under Title II of the ADA if the alleged Title II violations also independently violate the Eighth Amendment.

20 In Bolmer, the Second Circuit specifically declined to reach the question of whether Garcia survives Georgia. Id. at148. Recently, in Dean v. University of Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178 (2d Cir. 2015), the Second Circuit acknowledged that the Supreme Court decision in Georgia had called Garcia's validity into question and led to a divergence in the approaches adopted by district courts in the Circuit in their assessment of sovereign immunity under Title II, but again did not decide the issue. Dean, 804 F.3d at 194-95. Because the Second Circuit has yet to rule on the question of Garcia's continued validity, the Court will follow Garcia on the issue of the availability of monetary damages against State officials acting in their official capacities.

b. Injunctive Relief

The Second Circuit has held that under the doctrine set forth in Ex Parte Young, 209 U.S. 123, 155-56 (1908), claims for prospective injunctive relief may be pursued against individual state officers in their official capacities under Title II of the ADA and the Rehabilitation Act. See Henrietta D., 331 F.3d at 287-88 (Eleventh Amendment does not preclude suits against state officers in their official capacity for prospective injunctive relief to prevent a continuing violation of federal law); Harris v. Mills, 572 F.3d 66, 72-73 (2d Cir. 2009) (following Henrietta).

5. Analysis of Plaintiff's Title II of the ADA and Rehabilitation Act Claims Against Defendant Cross

The Court finds that for purposes of this motion to dismiss, Plaintiff has made a plausible showing that he is a qualified individual with a disability for purposes of his Title II of the ADA and the Rehabilitation Act given his hearing impairment, unstable knee requiring a brace, and back problem requiring a brace. Furthermore, as noted above, it is well settled that DOCCS and its officials are subject to the ADA.

The Court also finds that for purposes of this motion Plaintiff has made a plausible showing that he was denied the opportunity to participate in or benefit from the DOCCS services, programs, activities and was discriminated against by reason of his disabilities. Plaintiff has alleged that he requested special headphones because the Clinton Inmate Orientation Manual for SHU provided that "[e]arphones will be issued after 30 days post adjustment period or on box to box transfer of prisoners." (Dkt. No. 111 at 96.) Since Plaintiff cannot use earbuds because of his hearing aids, he is arguably deprived of an activity afforded other inmates, i.e., listening to music or other media with earphones, and is discriminated against as a result of his hearing impairment and need to have hearing aids in his ear canals. Furthermore, it is unclear whether inmates are generally provided with alarm clocks. If that is the case, denying Plaintiff a shake alarm because he does not wear his hearing aids when sleeping is arguably denial of a service provided to other inmates based upon his handicap.

Plaintiff has likewise made a plausible showing that he was denied the recreational activities afforded other inmates by not being allowed to sit on his bed to put on his knee brace. When Plaintiff was unable to put on his brace, he was limited to standing in the corner of the recreation cage. (Dkt. No. 129 at ¶¶ 41-44.) Plaintiff was arguably discriminated against in taking a shower because, unlike other inmates, he was required to sit on the unsanitary dirty shower floor as a result of being unable to stand in the shower and was denied a shower chair. Id. at ¶ 37.)

In addition, the Court finds solely for purposes of this motion that Plaintiff has made a plausible showing of the violation of his Fourteenth Amendment rights inasmuch as Cross has not sought dismissal of Plaintiff's Eighth Amendment claim arising out of his having to sit on the floor in the shower. Thus, the Court finds that Plaintiff has stated a plausible claim for money damages against Cross in his official capacity. See Georgia, 546 U.S. at 157-58. While Defendants are seeking dismissal of Plaintiff's claims for injunctive relief because the second amended complaint does not allege ongoing violations, the Court finds it premature to assess the continued viability of Plaintiff's claims for injunctive relief under Title II of the ADA and Rehabilitation at this point in the litigation.

In light of the foregoing, the Court recommends that Plaintiff's Title II of the ADA and Rehabilitation Act claims against Cross in his individual capacity be dismissed with prejudice, and that Defendants' motion to dismiss Plaintiff's Title II of the ADA and Rehabilitation Act claims against Cross in his official capacity be denied.

VI. CLAIMS IDENTIFIED BY DEFENDANTS AND NOT ADDRESSED ON DEFENDANTS' RULE 12(b)(6) MOTION

In their Memorandum of Law, Defendants listed the claims they believe Plaintiff to have alleged in his second amended complaint. (Dkt. No. 116 at 5-7.) As noted above, Defendants identified a number of those claims as being included in their Rule 12(b)(6) motion but failed to address those claims in their Memorandum of Law. Those unaddressed claims, which the Court did not consider on Defendants' motion are: (1) Eighth Amendment failure to intervene claim against Defendant Riley; (2) Eighth Amendment claims for excessive force and denial of a medical device to Plaintiff against Defendants Streeter, Bouchey, and King; (3) First Amendment retaliation claim against Defendant Brousseau; (4) First Amendment retaliation claim and discrimination claim against Defendant Brown; and (5) Eighth Amendment claim for making Plaintiff's showers too short and the water too hot, and First Amendment retaliation claim for the adverse action denying Plaintiff razors and soap against Beaudette.

The claims identified by Defendants which they have not included in their Rule 12(b)(6) motion are: (1) excessive force and possibly a §1983 conspiracy by Defendants Monacelli and Larocque to cover up use of excessive force on Plaintiff; (2) Defendant Brown ignoring complaints about Defendant Brousseau; (3) Defendant Lee planting a weapon in Plaintiff's cell; retaliating against Plaintiff for turning in the weapon by denying him supplies for legal work and filing a false misbehavior report; and sexually assaulting him; (4) Defendant Cross retaliating against Plaintiff for filing grievances by moving Plaintiff to an unsanitary cell; moving him five times in less than eight months; denying Plaintiff's request to sit on the bed while putting on his knee brace; denying Plaintiff recreation; denying Plaintiff a shower chair; destroying Plaintiff's legal papers and personal property; and violating Plaintiff's Eighth Amendment rights by forcing him to sit on the floor to put on his leg brace; (5) Defendants Brown, Cross, and Lee's negligence in connection with Plaintiff's because they had actual notice of a dangerous condition; and (6) Defendants Brown and Cross for destruction of videotape evidence of Plaintiff's fall. (Dkt. No. 116 at 5-7.)

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' Rule 12(b)(6) motion to dismiss certain claims in Plaintiff's second amended complaint (Dkt. No. 116) for failure to state a claim be GRANTED in part and DENIED in part; and it is further

RECOMMENDED that Defendants' motion to dismiss be GRANTED as to the following claims and that the DISMISSAL OF THOSE CLAIMS BE WITH PREJUDICE: (1) all claims for money damages against Defendants in their official capacities on Eleventh Amendment grounds; (2) Eighth Amendment harassment claim and First Amendment claim for violation of DOCCS inmate grievance procedures against Defendant Brousseau; (3) Eighth Amendment harassment claim against Defendant Brown; (4) Eighth Amendment harassment claim against Defendant Lee; (5) Eighth Amendment harassment claim and Fourteenth Amendment claim against Defendant Beaudette for destruction of personal property; (6) supervisory liability claim against Defendant Fischer; (7) supervisory liability claim against Defendant Roy; (8) supervisory liability claim against Defendant Bellamy; and (9) individual capacity claims against Defendant Cross for violation of Title II of the ADA and the Rehabilitation Act; and it is further

RECOMMENDED that Defendants motion to dismiss be GRANTED as to the following claims and that the DISMISSAL OF THOSE CLAIMS BE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND: (1) Section 1983 conspiracy claim against Defendant Lordi (with leave to amend solely to the extent Plaintiff can allege facts plausibly showing that Lordi was pursuing her own personal interests separate and apart from DOCCS); (2) First Amendment retaliation claim against Defendant Gutwein; and (3) First Amendment retaliation claim against Defendant Beaudette; and it is further

RECOMMENDED that Defendants' motion to dismiss be DENIED as to the following claims: (1) Fourteenth Amendment due process claim against Defendant Gutwein on collateral estoppel grounds (without prejudice); (2) Eighth Amendment harassment claim against Defendant Monacelli; (3) Eighth Amendment harassment claim against Defendant Larocque; (4) Eighth Amendment harassment claim against Defendant Chase; (5) Eighth Amendment harassment claim against Defendant Riley; (6) Eighth Amendment denial of adequate medical care claim against Defendant Lordi; (7) Eighth Amendment harassment claim against Defendant Streeter; (8) Eighth Amendment harassment claim against Defendant Bouchey; ( 9) Eighth Amendment harassment claim against Defendant King; and (10) Title II of the ADA and Rehabilitation Act claims asserted against Defendant Cross in his official capacity; and it is further

RECOMMENDED that the case be DISMISSED against Defendants Fischer, Roy, and Bellamy; and it is further

RECOMMENDED that Plaintiff be directed that any amended complaint submitted by him in response to the District Court's Order on this Court's Report-Recommendation: (1) shall supersede and replace in its entirety the second amended complaint, and therefore must be a complete pleading which sets forth all of the claims that Plaintiff wants the District Court to consider as a basis for awarding relief herein, including all claims that are not dismissed as a result of the District Court's Order; (2) must set forth a short and plain statement of the facts Plaintiff relies on in support of his claims, and which names one or more individuals who engaged in acts of misconduct or wrongdoing which violated his constitutional rights; and (3) must contain a brief description in the body of the amended complaint of each exhibit annexed thereto, referencing the exhibit with its designated exhibit number or letter therein; and it is hereby

ORDERED that the Clerk provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: February 16, 2016

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge