Williams v. Novak

Full title: WONDER WILLIAMS, Plaintiff, v. MRS. NOVAK, as representative of the estate…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Aug 9, 2018

9:16-CV-1211 (GTS/TWD) (N.D.N.Y. Aug. 9, 2018)

Opinion

9:16-CV-1211 (GTS/TWD)

08-09-2018

WONDER WILLIAMS, Plaintiff, v. MRS. NOVAK, as representative of the estate of Novak, et al., Defendants.

APPEARANCES: WONDER WILLIAMS 10-A-0102 Plaintiff, pro se Mid-State Correctional Facility P.O. Box 2500 Marcy, NY 13403 BARBARA D. UNDERWOOD Attorney General of the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: AIMEE M. PAQUETTE, ESQ. Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: WONDER WILLIAMS
10-A-0102
Plaintiff, pro se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403 BARBARA D. UNDERWOOD
Attorney General of the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224 OF COUNSEL: AIMEE M. PAQUETTE, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

Plaintiff Wonder Williams commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983 on October 6, 2016. (Dkt. No. 1.) Plaintiff has alleged the following violations of his First and Eighth Amendment rights while he was incarcerated at Auburn Correctional Facility ("Auburn"): (1) acts of retaliation by Defendant Auburn Corrections Officer ("C.O.") Christopher Novak ("Novak") and Auburn Sergeant Patrick Donnelly ("Donnelly")¹ against Plaintiff for filing grievances and making verbal and written complaints, in violation of Plaintiff's First Amendment rights; and (2) Eighth Amendment conditions of confinement claims against Novak and Donnelly for moving him to, and forcing him to remain in, allegedly uninhabitable cell I-3, and against Novak for denying Plaintiff's request for cleaning materials despite the deplorable conditions; (3) supervisory liability claims against Auburn Superintendent Harold Graham ("Graham"), Auburn Captain Brian Chuttey ("Chuttey"), Auburn First Deputy Superintendent Grafton Robinson ("Robinson"), Department of Corrections and Community Supervision ("DOCCS") Commissioner Anthony Annucci ("Annucci"), Auburn Lieutenant Timothy Quinn ("Quinn"), and Auburn Captain Edward Fagan ("Fagan") for failure to correct their subordinates Novak and Donnelly's retaliatory conduct against Plaintiff and failure to remedy Plaintiff's allegedly deplorable conditions of confinement in cell I-3, despite receiving notice thereof, in violation of Plaintiff's First and Eighth Amendment rights; and (4) a supervisory liability claim against Donnelly, as Novak's supervisor, for knowing of Novak's retaliatory harassment and threats against Plaintiff and failing to take action to correct the situation. Defendants have been sued solely in their individual capacities. (Dkt. No. 1.)

1 Novak is now deceased and Mrs. Novak, in her capacity as representative of her late husband's estate (referred to herein as "Novak"), has been substituted as a Defendant. (Dkt. No. 67.)

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 39.) Plaintiff has responded in opposition to the motion, and Defendants have replied. (Dkt. Nos. 61 and 69.) Plaintiff has moved for the imposition of spoliation sanctions against Defendants pursuant to Rule 37 of the Federal Rules of Civil Procedure relating to the tape over of videotapes Plaintiff had requested be preserved for litigation following the incidents out of which his claims arise. (Dkt. No. 62.) Defendants have opposed the motion. (Dkt. No. 68.)

For reasons explained below, the Court recommends that Defendants' summary judgment motion be granted in part and denied in part, and that Plaintiff's motion for spoliation sanctions be denied without prejudice to renewal at trial.

II. FACTUAL BACKGROUND

A. October 15, 2013, Incident with Novak

Plaintiff was placed in administrative segregation in the Special Housing Unit ("SHU") at Auburn on or about March 15, 2010. (Dkt. No. 39-10 at 11.²) Plaintiff was still in administrative segregation in SHU on October 15, 2013, when a nurse approached his cell for sick call. (Dkt. Nos. 61-3 at ¶ 4³; 61-4 at 2.) Plaintiff asked the nurse for pain medication in a low tone to maintain confidentiality. Id. According to Plaintiff, Novak did not like that he and the nurse were speaking in low tones and later returned to Plaintiff's cell to question him about what he and the nurse had discussed. (Dkt. Nos. 61-3 at ¶ 5; 61-4 at 2.) Plaintiff told Novak that his confidential medical information was none of his business. Id. Novak became angry and told Plaintiff if he wanted to know something, Plaintiff had better tell him. Id.

2 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.

3 Paragraph numbers are used where documents identified by CM/ECF docket number contain consecutively numbered paragraphs.

Plaintiff wrote a grievance (AUB-63882-13) regarding the incident on October 15, 2013. (Dkt. No. 61-4 at 2-3.) The grievance was filed on November 5, 2013, and on December 4, 2013, the Superintendent denied Plaintiff's request for relief finding that a thorough investigation revealed no support for his allegations of misconduct by Novak. Id. at 6. The Inmate Grievance Program ("IGP") Central Office Review Committee ("CORC") likewise found insufficient evidence to substantiate malfeasance. Id. at 8.

The grievance record included a memorandum from Novak to Lieutenant Vasile ("Vasile"), dated November 7, 2013, stating that Novak had spoken to Plaintiff regarding his inappropriate behavior towards the nurse on October 15, 2013, but at no time had he harassed Plaintiff and did not recall using foul language. (Dkt. No. 61-4 at 5.) RN Hoover, the nurse involved in the October 15, 2013, incident, submitted a November 21, 2013, statement to Vasile disclosing that Plaintiff had spoken loudly at her to "be quiet and use a lower tone of voice," when she was doing sick call with Novak on October 15, 2013. Id. at 7.

B. Move to Cell I-3

Plaintiff claims that later in the day on October 15, 2013, Novak and Donnelly came to his cell and ordered him to pack up to be moved to SHU cell I-3. (Dkt. No. 61-3 at ¶ 10.) Plaintiff did not want to move to the cell but was ordered to do so by both Novak and Donnelly, whom Plaintiff claims were responsible for escorting him to the cell, moving him in, and leaving him there. Id. at ¶¶ 10, 21.

According to Plaintiff, the cell had not been cleaned or sanitized before he moved in and was in an unsanitary, hazardous state unfit for human habitation. Id. at ¶¶ 10-11. Plaintiff described the cell as barren with a cold cracked concrete floor and a broken sink with used toothpaste, dried human spit, hair, blood, and other unsanitary substances on it. Id. at ¶ 12. Plaintiff claims the toilet, which was not functioning properly, was repulsive and unsanitary with dried spit, feces (inside and smeared on the bowl), and urine splashed up on the walls, giving off a sickening and noxious odor, which left Plaintiff nauseous and dizzy and gave him headaches and watery eyes. (Dkt. No. 61-3 at ¶¶ 13-14.) Plaintiff claims Novak denied his request for cleaning supplies, and that he never received cleaning supplies during his stay in cell I-3. (Dkt. No. 39-2 at 27-28.)

Plaintiff has described the mattress as badly damaged, torn and shredding, very flat, stained with dried ejaculate and blood, and smelling of feces and urine. (Dkt. No. 61-3 at ¶ 16.) The pillow was ripped, soiled, and dirty and stained with food, dirt, ejaculate, and urine. Id. at ¶ 17. Plaintiff also noticed while in the cell that it had an insect and vermin problem. Id. at ¶ 19. Plaintiff claims cell I-3 contained no clean drinking water, and although he was given water with chow, no one came around with buckets of water, and he experienced painful headaches and dehydration. (Dkt. Nos. 1 at ¶ 17; 39-2 at 28, 68.) In his affidavit in opposition to Defendants' motion, Plaintiff goes further suggesting he was only given four or five ounces of water once or twice every two days or so, and that as a result he suffered painful headaches, lethargy, and constipation. (Dkt. No. 61-3 at ¶¶ 68-70.) Plaintiff states in his affidavit, that he complained of stomach pains, an upset stomach, constipation, and cracked lips due to dehydration. Id. at ¶¶ 72-74.

According to Plaintiff, on October 17, 2013, he stopped Robinson and spoke with him about the inhumane living conditions in cell I-3. Id. at ¶ 11. Plaintiff complained to Robinson about the cell's deplorable state, not being given cleaning supplies, and Robinson's subordinates Novak and Donnelly's retaliation against him. Id. Plaintiff asked Robinson to have him moved and to preserve the SHU video for October 15 and 17, 2013, for future court proceedings. Id. Plaintiff claims Robinson showed disinterest and told Plaintiff he would see about it. Id. at ¶ 12; see also Dkt. No. 39-2 at 30. Robinson did not have Plaintiff moved from the cell after being shown the conditions. (Dkt. No. 61-3 at ¶ 12.) Plaintiff remained in cell I-3 for thirty-four days until his transfer to another cell on November 17, 2013. (Dkt. No. 39-12 at ¶ 8.)

C. Grievances Regarding Cell I-3 Conditions

1. October 18, 2013, Grievance (AUB-63832-13)

Plaintiff submitted a grievance, dated October 18, 2013, and filed on October 23, 2013, regarding the condition of the mattress in cell I-3. (Dkt. No. 39-3 at 4.) Plaintiff described the mattress as flat and tearing. Id. Plaintiff claimed the mattress aggravated his back pain, was difficult to sleep on, and needed to be replaced with a brand new mattress. Id. According to Plaintiff, the area supervisor had been made aware of the mattress issue on the previous three days, and Plaintiff had yet to receive a new mattress. Id.

The Inmate Grievance Resolution Committee ("IGRC") found, based upon the investigation done on the grievance, that Plaintiff's mattress was not flat and was the same as most mattresses. Id. at 7. The decision also noted that the facility tries to swap out the oldest mattresses with the newest. Robinson, acting for the Superintendent agreed with the findings of the IGRC. Id. at 5; Dkt. No. 39-18 at ¶ 6. On appeal to CORC, Plaintiff argued that staff never investigated his complaints about the mattress or interviewed him and had never seen the mattress. (Dkt. No. 39-3 at 5.) CORC noted the investigative finding that the mattress had been inspected and found in serviceable condition. Id. at 1. According to Plaintiff, at no point did grievance investigators come to his cell to inspect the mattress or interview him regarding the grievance, and throughout the grievance process no one identified the SHU staff personnel who said the mattress was not flat. (Dkt. No. 61-3 at ¶ 39.)

2. October 19, 2013, and November 15, 2013, Consolidated Grievances (AUB-63881-13)

Plaintiff submitted an October 19, 2013, grievance, which was filed on November 5, 2013, and a November 15, 2013, grievance complaining about the conditions in cell I-3 and claiming he was placed in the inadequate cell by Novak and Donnelly in retaliation for writing letters and grievances. (Dkt. No. 61-4 at 12-14.) In his declaration, Donnelly states that Plaintiff was not transferred to cell I-3 due to retaliation and, in fact, Donnelly was unaware of any grievances Plaintiff had filed against him or any other officer at the time of the move. (Dkt. No. 39-12 at ¶ 7.)

The conditions complained of in the grievances were essentially the same as those listed above but also included a clogged vent and the absence of a mirror. (Dkt. No. 61-4 at 12.) Plaintiff complained in the October 19, 2013, grievance that he had requested cleaning supplies and hot water from Novak, and Novak had responded "[d]eal with it, I'm not giving you shit . . . [n]ot my problem, maybe you'll learn your lesson about writing people up." Id. According to Plaintiff, Novak laughed and walked away. Id. Plaintiff claimed that as of the date of the grievance, he had not received any cleaning supplies, and the sink had not been fixed. Id. Plaintiff testified at his deposition that he never received cleaning supplies during the time he was in cell I-3, and the plumbing was never repaired. (Dkt. No. 39-2 at 27-28.)

On November 10, 2013, Vasile interviewed Plaintiff regarding the October 19, 2013, grievance. (Dkt. Nos. 61-3 at ¶ 49; 61-4 at 16.) In a November 12, 2013, written report to Chuttey, Vasile indicated he had interviewed Plaintiff regarding the grievance, and Plaintiff reiterated the complaints in the grievance and told Vasile he had received cleaning materials and cleaned up cell I-3. (Dkt. No. 61-4 at 16.) According to Plaintiff, when Vasile came to the cell to interview him, Plaintiff informed him of the gross conditions in the cell and showed him the plumbing that was out of order. (Dkt. No. 61-3 at ¶ 49.) Contrary to Vasile's report to Chuttey, Plaintiff claims he told Vasile he had not received cleaning materials and had been unable to adequately clean the cell, although he had tried to do so with his t-shirt and sock. Id. Plaintiff requested that Vasile pull the surveillance videos and review them for use as evidence in his grievance and to preserve them as evidence for any intended litigation. Id.

As a part of the October 19, 2013, grievance investigation, Novak submitted a November 7, 2013, written statement that the cell Plaintiff moved into on October 15, 2013, had been cleaned out before Plaintiff moved in and the toilet, sink, and light were fully operational. (Dkt. No. 61-4 at 17.) In a November 9, 2013, statement in the grievance record, Donnelly stated that cells are cleaned after they are vacated according to SHU cleaning procedures, Plaintiff never complained to him about a dirty cell or broken sink, and as of November 9, 2013, the sink in cell I-3 worked properly. Id. at 21. In his declaration, Donnelly states that he recalls Plaintiff complaining about his sink not working properly subsequent to November 9, 2013, and Plaintiff was moved to a new cell shortly thereafter. (Dkt. No. 39-12 at ¶ 11.) Donnelly also denied having told Plaintiff "if you stop writing people and things up maybe I'll eventually have you moved to a better cell" as Plaintiff claimed in his grievance. Id.

The Superintendent denied Plaintiff's consolidated grievances, stating that a thorough investigation had been conducted, and there was no evidence to support Plaintiff's allegations of staff misconduct. Id. at 15. CORC wrote in part in its decision on Plaintiff's appeal:

CORC notes that this matter has been properly investigated by the facility administration. Sergeant D . . . and Officer N . . . deny making unprofessional comments, and state that grievant's cell was fully operational and cleaned before he moved into it. Further, Sergeant D . . . states that the grievant did not stop him at any time to address concerns regarding the condition of his cell. It is also noted that the mattress was not flat, they are replaced as new ones become available, and that the grievant was moved to a different cell on 11/17/13.

(Dkt. No. 39-4 at 1.) CORC noted in its decision on the consolidated grievances that Plaintiff had made a request to Vasile during the investigation that he be allowed to use the SHU surveillance camera as a witness, and wrote "[w]ith respect to grievant's appeal, CORC upholds the discretion of the facility administration to review videotapes when deemed necessary based on security concerns, unusual interests, etc." Id. at 18.

Plaintiff claims that neither Vasile nor any other investigator investigated his November 15, 2013, grievance, and that no follow up investigations or reports were done on the appeal of the grievance to CORC. (Dkt. No. 61-3 at ¶ 60.)

D. October 19, 2013, Written Complaints to DOCCS Officials Regarding Cell Conditions and Verbal and Written Follow Up By Plaintiff

On October 19, 2013, Plaintiff sent written complaints regarding conditions in cell I-3 to Defendants Annucci, Graham, Robinson, Chuttey, and Quinn. (Dkt. No. 1-3 at 3-19.)

1. Annucci

In an October 19, 2003, letter to Annucci, Plaintiff complained of being kept in a gross and inhumane isolation cell as a result of his write ups on facility staff. The specific complaints regarding the cell conditions and mattress are essentially the same as those described above. Id. at 3. Plaintiff also complained he was denied cleaning supplies and was told by staff to "deal with it," and that they might move him to a functioning cell if he stopped writing complaints. (Dkt. No. 1-3 at 3.) Plaintiff requested that Annucci move him to a more acceptable cell and discipline his subordinates. Id. The letter does not name either Novak or Donnelly. Id. At his deposition, Plaintiff testified he did not know if he received responses to his written complaints from Annucci. (Dkt. No. 39-2 at 58.)

2. Graham

Plaintiff wrote to Graham on October 19, 2013, to complain about being ordered by Novak and Donnelly to move into an out-of-order cell that was "terrible and completely inhumane, indecent, and unacceptable." (Dkt. No. 1-3 at 9.) The letter describes generally the same complaints about cell conditions and denial of cleaning supplies as described above. Id. Plaintiff also complains in the letter about being unable to adequately hydrate himself due to the broken sink. Id. Plaintiff informed Graham that Novak and Donnelly were aware of the terrible condition of the cell when they moved him in and despite Plaintiff's verbal complaints had done nothing to fix the conditions or move him to another cell. Id. He also informed Graham that Novak had told him placement in the cell was intentional because of Plaintiff's write-ups on staff, and that Donnelly, acting in concert, had told Plaintiff if he stopped writing grievances he would be moved out eventually. Id.

Plaintiff told Graham he had seen Graham making rounds in SHU on October 17, 2013, and complained that Graham had ignored him when Plaintiff called out to him. Id. Plaintiff noted in the letter that he had spoken to Robinson that day, but that Robinson had done nothing. Id. Plaintiff asked Graham to move him out of the cell and discipline the officers. Id.

Plaintiff wrote to Graham again on November 4, 2013, reminding him, inter alia, of the problems with the cell. (Dkt. No. 1-3 at 21.) According to Plaintiff, on November 5, 2013, he saw Graham on SHU rounds and stopped Graham at his cell, and told Graham about Novak and Donnelly's retaliatory conduct and the cruel punishment of being confined in cell I-3. (Dkt. No. 61-3 at ¶ 89.) Plaintiff claims to have shown Graham the deplorable conditions in his cell, including the major problems and the leaks. Id. Graham showed no concern and walked away and did not order Plaintiff moved from cell I-3. Id. Plaintiff sent another letter to Graham regarding the condition of the cell on November 6, 2013, and again asked for Graham's assistance. (Dkt. Nos 1-3 at 23; 61-3 at ¶ 90.)

Plaintiff testified at his depositions that he did not recall if he received responses from Graham to his written complaints. (Dkt. No. 39-2 at 57.)

3. Robinson

In an October 19, 2013, letter to Robinson, Plaintiff reminded him of their October 17, 2013, conversation regarding the condition of his cell in which Robinson had told Plaintiff he would see about it, and that Robinson had not come back and Plaintiff had not been moved. (Dkt. No. 1-3 at 13.) Plaintiff told Robinson he was on notice of the conditions and in his position had the authority to move Plaintiff to a better cell immediately. Id. Plaintiff again asked Robinson to order that he be removed from the cell and placed in another one and to place Plaintiff's letter in the appropriate files. Id. Plaintiff wrote to Robinson again on November 3, 2013, complaining, inter alia, about still being confined in the gross conditions of cell I-3. (Dkt. Nos. 1-3 at 19; 61-3 at ¶ 35.)

4. Chuttey

On October 19, 2013, Plaintiff sent a written complaint to Chuttey as a member of the executive team and a captain supervising SHU. (Dkt. No. 1-3 at 6.) Plaintiff articulated generally the same complaints about the condition of the cell, and headaches and lack of hydration, and complained that Novak and Donnelly were fully aware that placing him in that cell was wrong and a violation of his rights. Id. Plaintiff asked Chuttey to immediately order that he be placed in another cell and have his sink repaired. Id. Plaintiff testified at his deposition that he did not recall if he received responses from Chuttey to any written complaints. (Dkt. No. 39-2 at 60.)

5. Quinn

Plaintiff's final letter of October 19, 2013, was to Quinn. Plaintiff reiterated his complaints about the cell and lack of cleaning supplies, and told Quinn he had been placed in the cell by Donnelly and Novak in retaliation for making meritable complaints about Quinn's subordinate staff in SHU. (Dkt. No. 1-3 at 16.) Plaintiff asked Quinn to investigate and correct the wrongs committed by his staff. Id. Plaintiff testified at his deposition that he did not recall if he received responses from Quinn to any written complaints. (Dkt. No. 39-2 at 59.)

E. November 2 and 3, 2013, Incidents with Novak

1. Incidents as Described by Plaintiff

Plaintiff claims that on November 2, 2013, Novak approached his cell and began to harass him about filing grievances and complaining to Novak's superiors. (Dkt. No. 61-3 at ¶ 76.) According to Plaintiff, Novak said "Williams, you're a real piece of shit, you know that. Because you've been complaining on me, first chance that comes around I'm gonna make something bad happen to you, this is my world, nobody can help you in here" and "I'm gonna jam you up really nice for those complaints on me." Id. Novak then walked away, and Plaintiff wrote a grievance regarding the alleged retaliatory threat the same day. (Dkt. No. 61-3 at ¶ 76.)

Plaintiff claims Novak engaged in more retaliation over his grievances and complaints against Novak and others the next day, November 3, 2013. Id. at ¶ 79. Novak approached Plaintiff's cell and destroyed the cell's wall radio and jacks preventing Plaintiff from passing the time listening to programs or music on the SHU headphones. Id. Afterwards Novak told Plaintiff "you don't deserve no fucking headphones for all these complaints you wrote . . . ." and to "sit in there and be miserable asshole." Id. Novak followed up with "[i]f you write this up on me, I'll break your fucking neck, got that?" Id. According to Plaintiff, Novak continued "If you're smart we won't be hearing anymore complaints from you . . . . those grievances won't get you no where, nothing is gonna change, forget all that bullshit about how you prisoners got rights . . . You're in the wrong place for that and as far as I am concerned, you don't have any . . . ." Id. Plaintiff wrote a grievance the same day. Id. at ¶ 80.

2. Plaintiff's Grievances

Plaintiff's November 2 and 3, 2013, grievances were consolidated under the grievance number AUB-63978-13. (Dkt. Nos. 61-3 at ¶ 61; 61-4 at 59, 67.) The contents of the November 2 and 3, 2013, grievances is essentially the same as Plaintiff's description of the harassment by Novak on the dates set forth. (Dkt. Nos. 61-3 at ¶¶ 76, 79; 61-4 at 59, 67.) Novak submitted a statement to Donnelly denying he harassed and threatened Plaintiff and denying he made the statements attributed to him by Plaintiff. (Dkt. No. 61-4 at 62.) Donnelly submitted a statement concluding that the matter consisted of an inmate's word versus an employee's word, and that the allegations could not be substantiated by fact. Id. at 63. Therefore, Donnelly found no evidence to support the grievance. Id. The combined grievances were denied by the Superintendent based upon a lack of evidence supporting Plaintiff's allegations of staff misconduct. (Dkt. No. 61-4 at 64.) On his appeal, Plaintiff requested the SHU area cameras as his witness to the actions on which his grievances were based, and indicated he had informed Lieutenant Blowers of the witness. Id. CORC upheld the Superintendent's determination. Id. at 65.

3. Written Complaints

In his November 3, 2013, written complaint to Robinson, Plaintiff complained of being harassed by Novak on November 2, 2013, and asked that the surveillance video and audio recordings from 9:00am to 11:00am be preserved for presentation as evidence in a court of law. (Dkt. No. 61-4 at 69.)

In his November 4, 2013, written complaint to Graham, Plaintiff complained that on November 2 and 3, 2013, Novak had wrongfully harassed, threatened, and retaliated against him for writing and pursuing grievances. Id. at 71. Plaintiff told Graham that Novak constantly caused him problems, and he had written and spoken to supervisors regarding staff violations against him but it had just kept getting worse, and he asked Graham to investigate. Id. In his November 6, 2013, written complaint to Graham, Plaintiff reminded Graham of the November 4, 2013, written complaint he had sent him and wrote "This has not been my first letter to you, you said that you've received my prior letter(s) in your mailbox. So when are you gonna take any action to help me or do something." Id. at 75.

Plaintiff also made a written complaint to Chuttey on November 4, 2013, letting him know that his subordinates continued to wrongfully and unlawfully retaliate, harass, and threaten Plaintiff due to his grievances and complaints. Id. at 73. Plaintiff described his November 2 and 3, 2013, encounters with Novak and told Chuttey that Novak tried to intimidate him to stop him from writing grievances. (Dkt. No. 61-4 at 73.) Plaintiff asked Chuttey to step up and handle the matter. Id.

F. December 9, 2013, Incident with Novak

Plaintiff claims Novak approached his cell on December 9, 2013, and stated "[y]ou still bitching and complaining to people about me. I'm gonna make your life a living hell." Novak then threatened to move Plaintiff into another "fucked up dirty infested cell" even worse than the last if he attempted to write any more grievances. (Dkt. No. 61-3 at ¶ 96.) According to Plaintiff, Novak's actions were in retaliation for grievances he had written against Novak dated October 15 and 19, and November 2, 3, and 15, 2013, and written complaints he had sent to Novak's superiors. Id. Plaintiff claims to have notified the area supervisor about Novak's threats and reprisals, and that no action was taken. Id. at ¶ 98.

Plaintiff wrote a grievance (AUB-64154-13) on December 9, 2013, complaining of the retaliatory encounter with Novak that day and stating that the area supervisor had been made aware of the incident. (Dkt. No. 61-4 at 77.) The grievance also mentioned in passing harassment by Novak on November 15 and 27, 2013, which Plaintiff had attempted resolve informally. Id. Plaintiff complained about the grievance system and its so-called "investigations." Id. He requested that Novak be properly disciplined, supervised, and ordered to stop taking adverse actions against him. Id

The grievance was denied by the Superintendent based upon Novak's denial and the lack of evidence supporting Plaintiff's claim. Id. at 81, 82, 84. In his appeal statement, Plaintiff indicated that he had advised staff that the SHU cameras were his evidence and witness. Id. at 81. CORC also denied the grievance. Id. at 78.

G. December 21 and 22, 2013, Incidents

1. December 21, 2013, as Described by Plaintiff

Plaintiff claims that on December 21, 2013, Novak committed acts of retaliation against him for his October 15 and 19, 2013, grievances and his complaint letters to superiors regarding Novak's actions. (Dkt. No. 61-3 at ¶ 100.) According to Plaintiff, Novak approached his cell and told him to pack up because he was going to be moved to another "fucked up" and "out of service cell" because he had filed grievance AUB-63978-13 (the November 2 and 3, 2013, incidents) against Novak and had not dropped the complaints. Id. Novak told Plaintiff that his complaints did "not mean shit" to anybody, and Plaintiff was in a no-win situation because it was his word against Novak's. Id.

Novak and Donnelly came back minutes later. Id. at ¶ 101. Donnelly had grievance AUB-63978-13 and asked Plaintiff if he had anything to add or wanted to drop the complaint against Novak. Id. Plaintiff told Donnelly he wanted the SHU video camera recordings to be used as evidence in support of his complaint and for future litigation, and Donnelly said "that ain't gonna happen." Id.

2. December 22, 2013, Incident as Described by Plaintiff

Plaintiff claims Novak came to his cell again the next day, threw some plastic bags into the slot and told Plaintiff to pack up because he was being moved to another out-of-service and "fucked-up cell." (Dkt. No. 61-3 at ¶ 104.) When Plaintiff asked why, Novak told him he had given Plaintiff fair warning about writing grievances and making verbal and written complaints. Id. Novak allegedly told Plaintiff he was going to break his arms and kick all his teeth out as soon as he had the opportunity and threatened Plaintiff's life. (Dkt. No. 61-3 at ¶ 104.) Novak told Plaintiff to be packed when he came back. Id. When Donnelly came by later, Plaintiff asked him if he had ordered Novak to move Plaintiff to another cell and Donnelly said he had not ordered any move. (Dkt. No. 1 at ¶ 56.)

Plaintiff has submitted a declaration from inmate Ronald Mask, dated December 23, 2013, stating that Novak told Plaintiff to pack up and threatened bodily harm to Plaintiff due to grievances against Novak and complaints against another corrections officer. (Dkt. No. 61-4 at 108-09.) Mask also heard Novak threaten to kick Plaintiff's teeth out. Id. Plaintiff was not moved to another cell on December 22, 2013. (Dkt. No. 39-2 at 50.)

3. Consolidated Grievances (AUB-64191-14)

Plaintiff filed grievances regarding the December 21 and 22, 2013, incidents, and the grievances were again consolidated. (Dkt. No. 61-4 at 86, 96.) The grievances essentially followed the averments in Plaintiff's affidavit in opposition. (Dkt. No. 61-3 at 100, 104.) Novak denied threatening and harassing Plaintiff on December 21 and 22, 2013, and telling him he had to pack his cell to move. (Dkt. No. 64-1 at 93.) Donnelly denied that Plaintiff asked for the video footage for December 21 and 22, 2013, and claimed Plaintiff never told him about anything Novak had done. Id. at 92.

The Superintendent denied the consolidated grievances based on Novak and Donnelly's denials and found no evidence to support Plaintiff's grievance. Id. at 87. CORC upheld the Superintendent's determination and upheld "the discretion of the facility administration to review videotapes when deemed necessary based on security concerns, unusual incidents, etc." Id. at 89.

4. Written and Verbal Complaints

Plaintiff sent a written complaint, dated December 22, 2013, to Chuttey, complaining of Novak's behavior and Donnelly not only failing to stop it but seemingly encouraging it. (Dkt. No. 61-4 at 98.) Plaintiff chided Chuttey for his lack of concern with correcting the problems and violations of his staff and with failing to respond to Plaintiff's written complaints. Id. Plaintiff placed Chuttey on notice to preserve SHU-I-tank's video and audio recording, cameras CS-85 and CS-84, for 7:30am through 9:30am on December 21, 2013, and from 7:30am to 3:00pm on December 22, 2013, for evidence in intended litigation regarding the incidents with Novak and Donnelly. Id.

On December 26, 2013, Plaintiff stopped Graham while he was on his SHU rounds and spoke to him about the December 21, 2013, incident with Novak and a host of other incidents with Novak and Donnelly. (Dkt. No. 61-3 at ¶ 108.) Plaintiff informed Graham he wanted SHU security camera recordings for I-tank on those dates properly preserved for evidence in intended litigation regarding the incidents with Novak and Donnelly. Id.

On December 28, 2013, Plaintiff sent written notices to Graham, Robinson, and Quinn to preserve the SHU surveillance recordings for 7:30am through 9:30am on December 21, 2013, and from 7:30am to 3:00pm on December 22, 2013, for evidence in intended litigation regarding the incidents with Novak and Donnelly. (Dkt. No. 61-4 at 100-105.)

H. January 25, 2014, Incident with Donnelly

1. January 25, 2014, Incident as Described by Plaintiff

According to Plaintiff, on January 25, 2014, Donnelly approached him during TV recreation time, snatched the TV power cord out of the socket and, referring to grievance AUB-64191-4 which Plaintiff had filed against Novak and Donnelly, said "[i]s there gonna be anymore of these[?]" (Dkt. No. 61-3 at ¶ 111.) Donnelly then threatened that if Plaintiff wrote any more grievances, there would be no more TV time. Donnelly proceeded to order an officer to handcuff Plaintiff and return him to his SHU cell, which meant Plaintiff's TV time was terminated approximately an hour early. (Dkt. No. 61-3 at ¶ 111.) Plaintiff claims the entire episode was recorded in video and audio on SHU surveillance equipment. Id.

2. January 30, 2014, Grievance (AUB-642-64289-14)

On January 30, 2014, Plaintiff wrote a grievance against Donnelly regarding the January 25, 2014, television incident. (Dkt. No. 61-4 at 114-15.) Plaintiff explained in the grievance that he had been taken out of his cell for a couple of hours of TV and to eat his commissary, which was allowed while he was in administrative segregation in SHU. Id. at 114. Plaintiff then described the incident as set forth above. Id. at 114; Dkt. No. 61-3 at ¶ 111. Plaintiff identified the SHU surveillance cameras and audio in the TV room as witnesses to the incident with Donnelly. Id. (Dkt. No. 61-4 at 114.)

During investigation of the grievance, Donnelly denied threatening Plaintiff. (Dkt. No. 61-4 at 118.) Donnelly acknowledged unplugging the television but claimed to have done so when the two hours of administrative segregation television was done. Id.; Dkt. No. 39-12 at ¶ 14. Donnelly also acknowledged asking Plaintiff about grievance AUB-64191-14 at the end of television time. (Dkt. No. 61-4 at 118.) The Superintendent denied the grievance based on lack of evidence to support staff misconduct. Id. at 116. The Superintendent noted that the unit video was reviewed and did not substantiate Plaintiff's claim of retaliation. Id. at 116-17.

On his appeal to CORC, Plaintiff requested that a copy of the reviewed surveillance video be preserved for CORC review and asked to purchase a copy of the video. Id. CORC upheld the Superintendent's determination and advised Plaintiff he could initiate a Freedom of Information Act Request for consideration to obtain the videotape he was requesting in accordance with facility procedures. Id. at 111.

3. Written and Verbal Complaints

On January 25, 2014, Plaintiff wrote to Robinson complaining about the encounter with Donnelly in the television room and asking Robinson to conduct an investigation of his own regarding the continuous harassment and threats by his staff. (Dkt. No. 61-4 at 121.) Plaintiff also asked that the SHU surveillance video be retained for future litigation. Id.

Plaintiff made a written complaint to Graham on January 27, 2014, complaining of Donnelly's actions in the television room on January 25, 2014, and further complaining that the harassment and retaliation had been allowed to go on for too long without Annucci, Graham, Robinson, or Chuttey putting an end to it, or even taking it seriously. Id. at 126. Plaintiff asked why Graham had not done anything. Id. Plaintiff attached a notice to safely preserve the SHU surveillance video and audio from specific cameras and microphones from approximately 10:30am to 10:50am on January 25, 2014. Id. at 124-25.

On January 28, 2014, Plaintiff wrote letters to Annucci and Fagan complaining of continued inaction by them with regard to repeated mistreatment, threats, and punishment sustained in retaliation for filing meritorious grievances expressing his concerns, despite being all too aware of the continued adverse actions taken against him. Id. at 122-23. Plaintiff also informed them of the incident with Donnelly on January 25, 2014, and requested that video and audio recordings be safely preserved for litigation. Id.

III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit.⁴ Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).

4 The Court finds that Plaintiff's complaint is properly verified. (Dkt. No. 1 at 26.)

In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." (emphasis in original). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).

In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). 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." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999)⁵ (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

5 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Defendants have argued that the New York State Dead Man's Statute, N.Y. C.P.L.R. § 4519 applies with respect to decedent Novak, and that Rule 56(e) "requires exclusion of evidence on summary judgment motions which the dead man's statute would exclude at trial." (Dkt. No. 39-21 at 9-10.) The Court finds the Dead Man's Statute inapplicable in this civil rights action.

Federal Rule of Evidence 601, which generally determines the admissibility of evidence in federal court, provides that "in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision." F.R.E. 601. (emphasis supplied). State dead man's statutes have been found inapplicable in federal civil rights actions in which federal, not state law, supplies the rule of decision. See, e.g., Savarese v. Aggriss, 883 F.2d 1194, 1200 n. 10 (3^rd Cir. 1989) (finding the Pennsylvania dead man's act would not apply to a federal civil rights action); Longoria v. Wilson, 730 F.2d 330, 304 (5^th Cir. 1984) (finding no error by district court in refusing to apply state dead man's statute to a federal question based civil rights action under § 1983); see also Dilegge v. Gleason, 131 F. Supp. 2d 520, 525 (S.D.N.Y. 2001) (under F.R.E. 601, the dead man's statute applies only where state law provides the rule of decision and is inapplicable in a Title VII discrimination action); L.H. Pittson Area Sch. Dist., 130 F. Supp. 3d 918, 932 n.18 (M.D. Pa. 2015) (dead man's statute only applies in federal cases where state substantive law applies, not to any claim under federal law); Estate of Sharkey v. Pine Tree Distributors, Inc., 174 F. Supp. 2d 380, 384 (D. Md. 2001) (holding state Dead Man's Statute inapplicable in federal question case).

IV. LEGAL STANDARDS FOR PLAINTIFF'S CLAIMS

A. Eighth Amendment Conditions of Confinement

Plaintiff has alleged Eighth Amendment conditions of confinement claims against Defendants Novak and Donnelly with regard to his placement in cell I-3 from October 15, 2013, through November 17, 2013. (Dkt. No. 1 at 24-25.) The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The prohibition extends to prison conditions. Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998). "The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and internal quotation marks omitted). "Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient" to support a claim for unconstitutional conditions of confinement. Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).

To state a claim under the Eighth Amendment based upon conditions of confinement, an inmate must satisfy both an objective and a subjective element. Farmer, 511 U.S. at 834, 837. To satisfy the objective element, a plaintiff must establish that he was incarcerated under conditions that resulted in a "sufficiently serious" deprivation, such as the denial of a "life[ ] necessit[y]" or a "substantial risk of harm." Id. at 834. To satisfy the subjective element, a plaintiff must establish that the "defendant official acted with a sufficiently culpable state of mind . . ., such as deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citations and internal quotation marks omitted).

To establish the objective element, an inmate must show "that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Id. Health includes the risk of serious damage to "physical and mental soundness." Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). Prison officials violate the Eighth Amendment when they "deprive an inmate of his 'basic human needs' such as food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125(quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam)). There is no "static test" for determining whether a deprivation is serious enough to violate an inmate's Eighth Amendment rights. Id. (citing Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). "The conditions themselves must be evaluated in light of contemporary standards of decency." Jabbar, 683 F.3d at 57 (citation and internal quotation marks omitted).

When the challenged prison conditions include exposure to unsanitary conditions, the Second Circuit has been unwilling "to set a minimum duration and minimum severity of an exposure for it to reach the level of a constitutional violation." Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). There is no "bright-line durational requirement for a viable unsanitary conditions claim. Nor is there some minimal level of grotesquerie required . . . ." Id. Courts must "evaluate the product of these two components [on a case-by-case basis and] whether exposure to human waste is cruel and unusual depends on both the duration and severity of exposure." Id. "The severity of an exposure may be less quantifiable than its duration, but its qualitative offence to a prisoner's dignity should be given due consideration." Id.

"Even if no single condition of confinement would be unconstitutional in itself, exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment." Rhodes v. Chapman, 452 U.S. 337, 363 (1981) (internal quotation marks and citation omitted). "Conditions of confinement may be aggregated to rise to the level of a constitutional violation, but 'only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise." Walker, 717 F.3d at 125 (quoting Seiter, 501 U.S. at 304). Sanitary living conditions have been found by the Second Circuit to constitute a "basic human need." Id.

To constitute deliberate indifference under the subjective element, "[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety." Jabbar, 683 F.3d at 57; see also Trammel v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003) (the state of mind for the subjective element in cases involving prison conditions is "deliberate indifference to inmate health or safety."). "The official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Mere negligence is not enough. Id. at 835.

B. First Amendment Retaliation

Plaintiff has asserted First Amendment retaliation claims against Defendants Novak and Donnelly. (Dkt. No. 1 at 24.) 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) that there was a causal connection between the protected [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. Otherwise, the retaliatory act is simply de minimis and outside the scope of constitutional protection. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 366 (S.D.N.Y. 2011) (citing Dawes, 239 F.3d at 492-93). The adverse action inquiry is a contextual one. Mateo v. Fischer, 682 F. Supp. 2d 423, 433 (S.D.N.Y. 2010) (citing Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). "Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse." Dawes, 239 F.3d at 493 (quoting Thaddeus X v. Blatter, 175 F.3d 378, 398 (6^th Cir. 1999) (en banc)).

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 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 generally been found insufficient to survive summary judgment. See Roseboro,791 F. Supp. 2d at 370 (citations omitted).

Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. at 506. As the Second Circuit has noted,

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official--even those otherwise not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act.

Dawes, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Flaherty, 713 F.2d at 13; see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at *11 (N.D.N.Y. Mar. 31, 2009) ("Analysis of retaliation claims . . . requires thoughtful consideration of the evidence presented concerning the protected activity in which the inmate Plaintiff has engaged and the adverse action taken against him or her, as well as the evidence tending to link the two. When such claims, which ordinarily are exceedingly case specific, are alleged in only conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, the entry of summary judgment dismissing plaintiff's retaliation claims is warranted.").

Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action even in the absence of the protected conduct. See Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (defendant may be entitled to summary judgment upon showing that the alleged retaliatory action would have taken even without the improper motivation).

C. Supervisory Liability

Plaintiff has asserted supervisory liability claims against Defendants Annucci, Graham, Robinson, Chuttey, Quinn, Fagan, and Donnelly with respect to the conditions of confinement and retaliation claims asserted against Novak and Donnelly. (Dkt. No. 1 at 24-25.) The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "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." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). ("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 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); 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") (citing 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 873.⁶

6 The Second Circuit has thus far not determined 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).

"Fundamentally, for a supervisor to be liable under Section 1983, there must 'of course' have 'been an underlying constitutional deprivation' by a subordinate, Blyden,186 F.3d at 265, and a 'causal link' between the supervisor's conduct and the violation of the plaintiff's civil rights." Nicholson v. Fischer, No. 13-CV-6072-FPG-MWP, 2018 WL 2009432, at *5 (W.D.N.Y. April 28, 2018) (citing Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002)).

V. ANALYSIS OF CONDITIONS OF CONFINEMENT CLAIM AGAINST NOVAK AND DONNELLY

Plaintiff has alleged Eighth Amendment conditions of confinement claims against Novak and Donnelly based upon their actions in moving him to cell I-3 on October 15, 2013, denial of Plaintiff's request for cleaning supplies, and their alleged failure to move him to another cell, despite the unsanitary and uninhabitable condition of cell I-3, and to have the allegedly broken sink repaired. (Dkt. No. 61-3 at ¶¶ 10-19, 68-74.) Plaintiff has claimed, upon information and belief based on his own personal experience, that the officer in charge of SHU, in this case Donnelly, has the authority to arrange to have an inmate relocated to another cell. (Dkt. No. 61-3 at 30.) Other than Donnelly's statement that the move was not made in retaliation for grievances by Plaintiff, there appears to be no record evidence as to who, if not Donnelly, made the decision to move Plaintiff to cell I-3 and why Plaintiff was moved. (Dkt. No. 39-12 at ¶ 7.)

A. Objective Element

As explained above, an Eighth Amendment conditions of confinement claim has both objective and subjective elements. With regard to the objective element, Plaintiff claims, inter alia, that the cell had a broken sink with used toothpaste, dried human spit, hair, blood, and other unsanitary substances on it; an improperly functioning toilet with repulsive and unsanitary dried spit and feces inside and smeared on the bowl and urine splashed up on the wall; feces crusted on the floors, walls, ceiling, ceiling light, and wall desk; excess dust that could not go out clogged vents; a puddle of water from a leaking toilet; flying insects and vermin, including spiders and spider webs and roaches; and a torn, damaged, dirty mattress and pillow stained with dried ejaculate and blood, and smelling like urine and feces. (Dkt. No. 1 at ¶¶ 8-16.) According to Plaintiff, the broken plumbing, sink, and toilet gave off a noxious odor that made him sick to his stomach and caused him to vomit and experience dizziness, nausea, burning and watery eyes, and painful headaches. Id. at ¶ 16. Plaintiff also claims there was no drinking water and he was given an inadequate amount of water each day which led to dehydration and constipation. Id. at ¶¶ 17; Dkt. No. 63-1 at ¶¶ 68-70, 72-74. Plaintiff contends Novak refused to give him any cleaning supplies leaving him with only a sock and a t-shirt with which to try to clean. (Dkt. No. 1 at ¶¶ 21, and 27.)

There is significant conflict in the record evidence regarding the condition of cell I-3 while Plaintiff was being housed there from October 15, 2013, through November 17, 2013. (Dkt. Nos. 1 at ¶ 10; 39-12 at ¶ 8.) Donnelly has stated in his declaration that cells are cleaned out in accordance with SHU cleaning procedures after they are vacated, and the filthy conditions Plaintiff described in his grievances with regard to cell I-3 are simply not true. (Dkt. No. 39-12 at ¶ 10.) Donnelly also claims that Plaintiff never stopped him to complain about the conditions in his cell until November 9, 2013, when he complained that his sink, which Donnelly claims had theretofore been working properly, was not working.⁷ Id. at ¶¶ 9-11. Novak submitted a statement in response to Plaintiff's grievance regarding the conditions of cell I-3 claiming that the cell had been cleaned out before Plaintiff moved in and the toilet, sink, and light were fully operational, and that Plaintiff never complained to him about the condition of the cell. (Dkt. No. 61-4 at 4.)

7 The Court notes that Plaintiff complained of the sink in his October 19, 2013, grievance. (Dkt. No. 39-4 at 5.) Cell repair records show repair for "sink running" in cell I-3 requested on November 20, 2103. (Dkt. No. 39-5 at 1.)

Defendants submitted records of cell repairs and repair requests for cell I-3 from October 2013, to December 2013, which show no repair orders during Plaintiff's occupancy in the cell. (Dkt. No. 39-5.) Plaintiff claims that during the duration of his stay in cell I-3, he requested SHU staff to submit a work maintenance order for repair of the sink, toilet, and plumbing both verbally and in writing. (Dkt. No. 61-3 at ¶¶ 55-56.) According to Plaintiff, he had no control over if and when maintenance work orders were submitted by SHU staff, and that inmates had no ability to submit work orders themselves. Id. at ¶¶ 57-58. The Court has found no visual or documentary evidence, i.e., video, photographs, or inspection reports, in the summary judgment record documenting the condition of the cell when Plaintiff was moved in, or at any time during the thirty-four days he was confined there, that would resolve the factual conflict on summary judgment.

As discussed above, where challenged prison conditions include exposure to unsanitary conditions, the court must consider both the duration and severity of the conditions on a case-by-case basis. Willey, 801 F.3d at 68. The Court finds that evidence presented by Plaintiff regarding the unsanitary conditions and broken sink in cell I-3, the thirty-four day duration and the medical problems suffered by him as a result, if believed, could lead a reasonable jury to conclude that the cumulative effect of the conditions to which Plaintiff claims to have been exposed to deprived him of safe and sanitary living conditions and an adequate supply of potable water, both basic human needs, and also constituted a significant offence to Plaintiff's dignity. See id. (confinement in an unsanitary cell exposed to human waste supports an unconstitutional conditions of confinement claim depending on both the duration and severity of the exposure ); Wright v. McMann, 387 F.2d 519, 522 (2d Cir. 1967) (holding prisoner in a cell that was "fetid and reeking from the stench of the bodily waste of previous occupants which . . . covered the floor, sink, and toilet," would violate the Eighth Amendment); Garraway v. Griffin, 707 F. App'x 16, 18 (2d Cir. 2017) (claim that plaintiff was knowingly placed in a cell with a feces-soiled mattress and defendants refused to replace it despite his documented complaints sufficient to raise an issue of fact on conditions of confinement claim); Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992) (noting that the denial of "basic sanitation . . . is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose), superseded by statute on other grounds as stated in Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 1992); Benitez v. Mailloux, No. 9:05-1160 (NAM/RFT), 2009 WL 1953752, at *2 (N.D.N.Y. July 2, 2009) (factfinder may properly consider that SHU was grossly unsanitary, with fecal matter and dead insects on the floor and walls, that plaintiff was deprived of cleaning materials for some period of time thereafter, as well as allegations of lack of running water and bitter cold for a longer time in evaluating Plaintiff's conditions of confinement claim).

It is well established that "[a]ssessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment," Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The Court finds that an assessment of credibility is clearly required with regard to the objective element of Plaintiff's conditions of confinement claims.

B. Subjective Element

The Court finds that there is also a substantial issue of material fact on the question of whether Novak and Donnelly acted with deliberate indifference to Plaintiff's health and safety, given the parties' contrasting evidence regarding Novak and Donnelly's knowledge of the conditions and allegedly intentional conduct in placing and keeping Plaintiff in an unsanitary cell with a broken sink for thirty-four days, without any real ability on Plaintiff's part to remedy the conditions. Walker, 717 F.3d at 125. Plaintiff claims that Novak and Donnelly moved him to cell I-3, and neither Defendant has denied having a role in the decision to move Plaintiff, identified the person or persons who made the decision, or provided any insight as to the reason for the move. (Dkt. No. 61-3 at ¶ 11.) According to Plaintiff, when Novak denied him cleaning materials, Novak said "Deal with it. I'm not giving you shit," and in response to Plaintiff's complaint about the plumbing problems and lack of clean water, Novak said "not my problem" and smile and laughed at Plaintiff as he walked away. (Dkt. No. 61-3 at ¶ 26.)

As with the objective element, the Court finds that a reasonable jury could, if Plaintiff's claims were believed, conclude that Novak and Donnelly had acted with deliberate indifference to Plaintiff's health and safety by intentionally moving Plaintiff into a cell with allegedly unsanitary conditions of confinement and a broken sink and refusing his requests to be moved and for cleaning materials, thereby satisfying the subjective element of Plaintiff's claim. Therefore, the Court recommends that Novak and Donnelly be denied summary judgment on Plaintiff's Eighth Amendment conditions of confinement claim.

VI. ANALYSIS OF RETALIATION CLAIMS AGAINST NOVAK AND DONNELLY

A. Placement and Retention in Cell I-3 and Denial of Cleaning Products Against Novak and Donnelly

Plaintiff claims that Novak and Donnelly ordered him to pack his belongings and then moved him to cell I-3, which was not fit for human occupation, on October 15, 2013, in retaliation for writing grievances and complaint letters. (Dkt. Nos. 1 at ¶ 29; 61-3 at ¶¶ 10-11, 21; 61-4 at 12-4.) Donnelly has denied that Plaintiff was transferred to cell I-3 for writing grievances and does not recall whether on that date he was aware of any grievances Plaintiff had filed against him or any other officer. (Dkt. No. 39-12 at ¶ 7.)

The law is clear that "[t]he filing of grievances is a constitutionally protected activity" for purposes of a retaliation claim. Davis, 320 F.3d at 352-53. Plaintiff, however, has failed to identify any grievances or complaints he made against either Novak or Donnelly, or for that matter anyone else, prior to October 15, 2013, when he was moved to cell I-3.

In his October 19, 2013, and November 15, 2013, consolidated grievances, Plaintiff included statements allegedly made to him by Novak and Donnelly suggesting the move to cell I-3 had been made because of Plaintiff's grievances. (Dkt. No. 61-4 at 12-14.) When questioned at his deposition, however, Plaintiff testified he did not know exactly why Novak was retaliating against him but thought it might have to do with the incident with the nurse a short time earlier that day. (Dkt. No. 39-2 at 20-21.)

Plaintiff did write a grievance dated October 15, 2013, against Novak with respect to Novak's alleged harassment regarding Plaintiff's conversation with RN Hudson at sick call that day, but that grievance was not filed until November 5, 2013, long after the move. (Dkt. No. 61-4 at 2-3.) Moreover, according to Plaintiff, he was told to pack his belongings to move to a new cell several minutes after Plaintiff had refused to disclose the nature of his conversation with the nurse, which would not have left Plaintiff time to write the grievance before the move. (Dkt. No. 1 at ¶ 7.) A grievance filed after the allegedly retaliatory action, cannot not be a substantial factor in the alleged retaliation. See Diaz v. Fischer, No. 08-CV-1208 (LEK/DRH), 2010 WL 1132772, at *9 (N.D.N.Y. Feb. 23, 2010). Furthermore, even assuming for purposes of this motion that Novak and Donnelly were involved in the decision to move Plaintiff to cell I-3, Plaintiff's failure to specify what grievances or written complaints he had made and the causal connection, if any, between the identified grievances or complaints, and Novak and Donnelly's alleged adverse action, is fatal to Plaintiff's cell I-3 retaliation claim. See, e.g., Houston, 2009 WL 890658, at *11 (entry of summary judgment dismissing a retaliation claim is warranted where the claim is alleged in only conclusory fashion not supported by evidence "establishing the requisite nexus between any protected activity and the adverse action complained of"); Diaz, 2010 WL 1132772, at *9 (conclusory and general conclusions that plaintiff was retaliated against because of his reputation for filing grievances in the past is insufficient to maintain plaintiff's retaliation claim); Ochoa v. DeSimone, No. 9:06-CV-119 (DNH/RFT), 2008 WL 4517806, at *5 (N.D.N.Y. Sept. 30, 2008) (failure to specify what grievances he filed and against whom fatal to plaintiff's retaliation claim).

Therefore, the Court recommends that summary judgment be granted in Novak and Donnelly's favor on Plaintiff's cell I-3 retaliation claim.

B. Remaining Retaliation Claims Against Novak

1. Description of Claims

Plaintiff has alleged a number of harassing and threatening actions by Novak, which Novak told him were taken because of grievances and complaints Plaintiff had written. Plaintiff claims that on November 2, 2013, Novak harassed and threatened him by calling Plaintiff "a real piece of shit," and telling Plaintiff that he was going to "make something bad" happen to him, and "jam" him up for filing complaints. (Dkt. No. 61-3 at ¶ 76.) Plaintiff further claims that on November 3, 2013, Novak pulled the radio jack for Plaintiff's cell out of the wall, told Plaintiff he did not deserve headphones and to "sit in there and be miserable asshole," and told him "[i]f you write [destruction of the cell's wall radio and jacks] up on me, I'll break your fucking neck, got that?" Id. at ¶ 79. The record of repairs to cell I-3 submitted by Defendants show that the wall jacks were out and a request for repair was submitted on November 20, 2013, after Plaintiff had been moved from cell I-3. (Dkt. No. 39-5 at 2.)

According to Plaintiff, on December 9, 2013, Novak threatened to make his life a living hell and to move him into another "fucked up dirty infested cell" if he wrote any more grievances. Id. at ¶ 96. On December 21, 2013, Novak allegedly told Plaintiff to pack up to move to a "fucked up" and "out of service cell" for being hardheaded and continuing to file grievances. (Dkt. No. 1 at ¶ 51.) On December 22, 2013, Novak allegedly again told Plaintiff to pack up to move to another out-of-service and "fucked-up cell," threatened to break his arms and kick all his teeth out as soon as he had the opportunity, and threatened Plaintiff's life. Id. at ¶ 104.

2. Protected Conduct

As noted above, the filing of a grievance constitutes protected First Amendment conduct on a retaliation claim. Davis, 320 F.3d at 352-53. Inmate's written and verbal complaints to corrections officers and prison officials have also been found to constitute activity protected by the First Amendment. See e.g., Monko v. Cusak, No. 9:11-CV-1218 (GTS/TWD), 2013 WL 5441724, *10 (N.D.N.Y. Sept. 27, 2013); Decayette v. Goord, No. 9:06-CV-783, 2009 WL 1606753, at *9 (N.D.N.Y. June 8, 2009); Brewer v. Kamas, 533 F. Supp. 2d 318, 329 (W.D.N.Y. 2008); Smith v. Woods, No. 9:03-CV-480, 2006 WL 1133247, at *10 (N.D.N.Y. April 24, 2006), aff'd, 219 F. App'x 110 (2d Cir. 2007). Therefore, the record evidence establishes that Plaintiff's remaining retaliation claim against Novak satisfies the first element of a retaliation claim.

3. Adverse Action

a. Legal Standard

"It is well-settled that 'verbal harassment, or even threats, are generally held not to rise to the level of adverse action that will support a First Amendment retaliation claim.'" Thomas v. Pingotti, No. 9:17-CV-0300 (GTS/DEP), 9:17-CV-0377 (GTS/ATB), 2017 WL 3913018, at *4 (N.D.N.Y. Sept. 6, 2017) (quoting Rosales v. Kikendall, 677 F. Supp. 2d 643, 648 (W.D.N.Y. 2010)); see also Reed v. Doe No. 1, No. 9:11-CV-0250 TJM), 2013 WL 5441503, at *6 (N.D.N.Y. Sept. 27, 2013) ("it is well-established, however, that verbal harassment and derogatory comments by prison workers aimed at an inmate, however unprofessional, do not rise to a level of constitutional significance, and therefore cannot constitute adverse action sufficient to support a retaliation cause of action."); Grays v. Elmira Correctional Facility, No. 1:13-CV-00532 EAW, 2017 WL 2779751, at *3 (W.D.N.Y. June 26, 2017) ("broad illusions to possible future injury, are insufficient to state a First Amendment claim for retaliation); Kemp v. LeClaire, No. 03-0844, 2007 WL 776416, at *15 (W.D.N.Y. Mar. 12, 2007) (statements like "your day is coming," "you'll be sent to your mother in a black box," and you'll get your black ass kicked" not adverse actions); Bartley v. Collins, No. 95 Civ. 10161, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) ("[V]erbal threats such as 'we going to get you, you better drop the suit,' do not rise to the level of adverse action.").

"[S]ome verbal threats, even if not serious enough to implicate the Eighth Amendment, can constitute an adverse action." Mateo, 682 F. Supp. 2d at 434; Barrington v. New York, 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011) (holding that verbal threats may constitute adverse action for purpose of a First Amendment retaliation if the threat is sufficiently specific). Whether threats constitute adverse action in a particular case is dependent upon the specificity of the threat and the context in which it was made. See Sharpe v. Taylor, No. 9:05-CV-1003 (GTS/GHL), 2009 WL 1743987, at *9 (N.D.N.Y. Mar. 26, 2009); Hofelich v. Ercole, No. 06 Civ. 13697 (PKC), 2010 WL 1459740, at *2 (S.D.N.Y. Apr. 8, 2010) ("whether [verbal threats] constitute adverse action seems to depend on their specificity and the context in which they are uttered"); Lunney v. Brureton, No. 04 Civ. 2438 (LAK)(GWG), 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007) (collecting cases); Hepworth v. Suffolk Cty., No. 02-CV-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (numerous verbal threats that inmate "would receive another beating or be killed" was enough evidence that a "reasonable jury could find that the officers unconstitutionally retaliated against" inmate); see also Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir. 2001) (officer's statement to plaintiff that he "would teach [plaintiff] a lesson and give him something to sue for" stated a retaliation claim); Quezada v. Roy, No. 14-CV-4056, 2015 WL 5970355, at *23 (S.D.N.Y. Oct. 13, 2015) ("threat to kill someone for filing a grievance is sufficiently serious that it might well deter a person of ordinary firmness from exercising his First Amendment rights").

In Ford v. Palmer, 539 F. App'x 5 (2d Cir. 2013), the Second Circuit found that threats need not always be definite and specific to constitute adverse action and determined that a retaliation claim based on a corrections officer's threat to poison plaintiff by putting some kind of substance in his hot water in retaliation for filing grievances should not have been dismissed sua sponte as a matter of law. Id. at 7. The Court reasoned that in the context presented "the vague nature of the alleged threat i.e., not telling Ford when or how Officer Law planned to poison him could have enhanced its effectiveness as a threat and increased the likelihood that a person of ordinary firmness would be deterred from filing."

A pattern of harassment and vague threats may be considered collectively in determining whether there has been adverse action for purposes of a First Amendment retaliation claim. See Morgan v. Luft, No. 9:15-CV-0024 (GTS/DJS), 2017 WL 9511158, at *5 (N.D.N.Y. June 22, 2017) (a persistent pattern of threats over a period of time makes the threats more credible and could allow a reasonable factfinder to conclude that the threats were sufficient to deter a person of ordinary firmness from filing further grievances); Tirado v. Shutt, No. 13 Civ. 2848 (LTS) (AJP), 2015 WL 774982, at *12 (S.D.N.Y. Feb. 23, 2015) (a pattern of harassment and vague threats can potentially constitute adverse action); Dabney v. Maddock, No. 10-CV-519, 2011 WL 7479164, at *4 (N.D.N.Y. Nov. 29, 2011) (isolated instances that alone do not rise to the level of adverse actions, may "collectively . . . suffice to constitute adverse actions").

b. Analysis of Novak's Alleged Adverse Action

Even if true, calling Plaintiff "a real piece of shit" on November 2, 2103, and any other verbally harassing comments Novak is claimed to have made were by themselves de minimis and do not constitute adverse action for purposes of a retaliation claim. See Reed, 2013 WL 5441503, at *6 (verbal harassment does not constitute adverse action for purposes of a retaliation claim). The Court also finds that Novak's alleged threats to "make something bad" happen to Plaintiff and "jam" him up (Dkt. No. 61-3 at ¶ 76), and to make his life a living hell, id. at ¶ 96, if he continued to write grievances and complaints, even when considered together, are too vague to constitute adverse action for purposes of a retaliation claim. See, e.g., Kemp, 2007 WL 776416, at *15; Sharpe v. Taylor, No. 05-CV-1003, 2009 WL 1743987, at *9 (N.D.N.Y. June 18, 2009) ("vague intimations of some unspecified harm generally will not rise to the level of adverse action for purposes of a retaliation claim").

Given the context in which Novak's alleged threats to Plaintiff on December 9, 21 and 22, 2013, that Plaintiff was being moved into a "fucked up" and "out of service cell" for continuing to write grievances and complaints, the Court finds those statements standing alone also fail to constitute adverse action for purposes of a retaliation claim, largely because no move occurred on any of those days, and a few hours after Novak's alleged threat on December 22, 2013, Donnelly told Plaintiff no move was planned. (Dkt. Nos. 1 at ¶ 56; 61-3 at ¶¶ 100-04.)

However, the Court reaches a different conclusion with regard to the issue of adverse action when it considers collectively the harassing and vaguely threatening comments attributed to Novak by Plaintiff; Novak's conduct in pulling Plaintiff's radio jack out of the wall; and Novak's specific threats to Plaintiff on November 3, 2013, that if he did not stop writing grievances and complaints he would "break Plaintiff's fucking neck," and on December 22, 2013, that he was going to break his arms and kick all his teeth out as soon as he had the opportunity, and kill Plaintiff. (Dkt. No. 61-3 at ¶¶ 79,104.) See Lunney, 2007 WL 1544629, at *23 (threat to break plaintiff's "fuckin' neck" if he did not stop writing grievances sufficient to support retaliation claim); Quezada, 2015 WL 5970355, at *23 (threat to kill plaintiff found to support retaliation claim).

The Court finds that a reasonable fact finder, considering collectively the alleged pattern of harassment and threats by Novak, could conclude they were sufficient to deter a person of ordinary firmness from filing further grievances. See Morgan, 2017 WL 9511158, at *5 (a persistent pattern of threats over a period of time makes the threats more credible and could allow a reasonable fact finder to conclude that the threats were sufficient to deter a person of ordinary firmness from filing further grievances); Tirado, 2015 WL 774982, at *12 (a pattern of harassment and vague threats can potentially constitute adverse action); Dabney v. Maddock, No. 10-CV-519, 2011 WL 7479164, at *4 (N.D.N.Y. Nov. 29, 2011) (isolated instances that alone do not rise to the level of adverse actions, may "collectively . . . suffice to constitute adverse actions").

4. Causal Connection between the Protected Conduct and Adverse Action

a. Temporal Relationship

The alleged harassing and threatening statements by Novak and his pulling Plaintiff's radio jack out of the wall occurred during the period from November 2, 2013, through December 22, 2013. (Dkt. No. 61-3 at ¶¶ 76, 79, 96, 100, 104.) The first grievance filed by Plaintiff against Novak identified in the record relates to the incident on October 15, 2013, was written on October 15, 2013, and was filed in the grievance office on November 5, 2013, subsequent to the November 2 and 3, 2013, instances of retaliation alleged against Novak by Plaintiff. (Dkt. 61-4 at 2-3, 6.) Therefore, Novak cannot be found to have retaliated against Plaintiff for his October 15, 2013, grievance on November 2 and 3, 2013.

Plaintiff's October 19, 2013, grievance regarding the conditions in cell I-3, Novak's alleged refusal to give Plaintiff cleaning supplies, and Novak's alleged response, "[n]ot my problem, maybe now you'll learn your lesson about writing people up," when Plaintiff told him the sink was broken, was also filed in the grievance office on November 5, 2013, subsequent to the alleged retaliation on November 2 and 3, 2013. Id. at 61-4 at 12, 15. The November 15, 2013, grievance with which it was consolidated, also post-dated the November 2 and 3, 2013, incidents of alleged retaliation by Novak.

However, Plaintiff's October 19, 2013, written complaints to Annucci, Graham, Robinson, Chuttey, and Quinn regarding the conditions of cell I-3, and Novak and Donnelly's alleged retaliatory conduct in placing Plaintiff in cell I-3, which were also protected conduct, preceded the incidents of November 2 and 3, 2013. (Dkt. No. 1-3 at 3-19.) Moreover, the alleged retaliation by Novak on December 9, 21, and 22, 2013, came after the filing of Plaintiff's grievances regarding Novak's alleged retaliation on November 2 and 3, 2013, on November 25, 2013. (Dkt. No. 61-4 at 59, 64, 67.) In addition, Plaintiff's grievance regarding Novak's alleged retaliation on December 9, 2013, was filed on December 20, 2013, a day before the December 21, 2013, and two days before the December 22, 2013, incidents of alleged retaliation. Id. at 64.

b. Alleged Statements by Novak Concerning Motivation

Plaintiff claims that on November 2, 2013, Novak told Plaintiff that "[b]ecause you've been complaining on me, first chance that comes around I'm gonna make something bad happen to you, this is my world, nobody can help you in here" and "I'm gonna jam you up really nice for those complaints on me." (Dkt. No. 61-3 at ¶ 76.) Plaintiff also claims that on November 3, 2013, when Novak destroyed the cell's wall radio Nowak told him he didn't deserve "no fucking headphones for all these complaints you wrote." Id. at ¶ 79. According to Plaintiff on December 9, 2013, Novak told him "[y]ou still bitching and complaining to people about me, I'm gonna make your life a living hell." Id. at ¶ 96. On December 21, 2013, Novak allegedly told Plaintiff he was going to be moved to another "fucked up" cell because he had filed grievance AUB-63978-13 against Novak regarding the November 2 and 3, 2013, incidents. Id. at ¶ 100.

The Court finds that the temporal relationship between Plaintiff's specifically identified grievances and written complaints and the alleged instances of retaliation, along with the evidence submitted by Plaintiff showing that Novak himself causally connected the harassment and threats to Plaintiff's grievances and written complaints against him, are sufficient to create a genuine issue of fact on the issue of causation with regard to Plaintiff's November 2 and 3, 2013, and December 9, 22, and 23, 2013, retaliation claims against Novak. See Morgan v. Luft, No. 9:15-CV-0024 (GTS/DJS), 2017 WL 4326082, at *6 (N.D.N.Y. June 22, 2017) (finding a substantial issue of fact on causation where plaintiff claimed defendant explicitly connected his threats to a grievance written by plaintiff) (quoting Colon, 58 F.3d at 873).

Based upon the foregoing, the Court recommends that Novak be denied summary judgment on Plaintiff's November 2 and 3 and December 9, 21, and 22, 2013, First Amendment retaliation claims.

C. Remaining Retaliation Claims Against Donnelly

Plaintiff claims that on January 25, 2015, Donnelly pulled the television power cord out of the socket during Plaintiff's television time, asked if Plaintiff was going to file any more grievances, and had him taken back to his cell early with a threat to take away his television privileges if there were more grievances. (Dkt. No. 1 at ¶¶ 68-69.) The Court finds that no reasonable jury could conclude that the alleged retaliatory actions "would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381. The acts were de minimis and outside the scope of constitutional protection. Roseboro,791 F. Supp. 2d at 366.

Plaintiff has also asserted a general supervisory liability claim against Donnelly based upon his alleged knowledge of Novak's retaliatory harassment and threats and failure as Novak's supervisor to take action to correct Novak's behavior. (Dkt. No. 1 at ¶ 40.) More specifically, Plaintiff claims that on November 3, 2013, when he complained to Donnelly about Novak's harassing and threatening conduct concerning moving him again a short time earlier, Donnelly "in a deliberately indifferent manner, simply shrugged his shoulders and giggled like a little school girl about what he heard, and walked away." Id. at ¶ 56. Donnelly denies it occurred and claims that Plaintiff never complained to him about Novak. (Dkt. No. 39-12 at ¶ 7.)

The Court finds that even if Donnelly had responded in that manner, the Court has already determined that Novak's action in telling Plaintiff he was going to move to another "fucked up" cell on November 3, 2013, was not in and of itself sufficient to constitute adverse action for purposes of a retaliation claim. Absent an underlying constitutional deprivation by a subordinate, there can be no supervisory liability. Blyden, 186 F.3d at 265.

Based on the foregoing, the Court recommends that Defendant Donnelly be granted summary judgment on Plaintiff's remaining retaliation and supervisory liability claims. VII. ANALYSIS OF SUPERVISORY LIABILITY CLAIMS AGAINST ANNUCCI, GRAHAM, ROBINSON, CHUTTEY, QUINN, AND FAGAN

"Fundamentally, for a supervisor to be liable under Section 1983, there must of course have been an underlying constitutional deprivation by a subordinate . . ., and a causal link between the supervisor's conduct and the violation of the plaintiff's civil rights." Nicholson v. Fischer, No. 13-CV-6072-FPG-MWP, 2018 WL 2009432, at *5 (W.D.N.Y. April 30, 2018) (quoting Blyden, 186 F.3d at 265 and Poe, 282 F.3d at 140) (internal quotations marks omitted). Plaintiff's supervisory liability claims in this case are based upon the Defendant supervisory officials' allege failure to correct the wrongs regarding the condition of cell I-3 and retaliation by Novak and Donnelly, despite having been placed on notice. (Dkt. No. 39-2 at 56-62.) See Colon, 58 F.3d at 873. Plaintiff relies largely on grievances filed by him, written complaints he sent to the supervisory official Defendants, and verbal complaints made to them in support of his supervisory liability claims.

A. Annucci

Plaintiff wrote to Annucci on October 19, 2013, complaining of the conditions in cell I-3 and complaining of un-named staff telling him he might be moved out if he stopped writing complaints. ((Dkt. No. 1-3 at 3.) Plaintiff also wrote to Annucci on January 28, 2014, complaining of his failure to take action with regard to repeated mistreatment and punishment in retaliation for filing grievances despite being aware of the continued adverse action against him and informing Annucci of the allegedly retaliatory act by Donnelly on January 25, 2014. (Dkt. No. 61-4 at 122-23.) There is no acknowledgment or response from Annucci to either letter in the summary judgment record, and Plaintiff testified at his deposition he did not know if Annucci responded to the October 19, 2013, letter. (Dkt. No. 39-2 at 58.) There is also no evidence in the record that Annucci took any action in response to Plaintiff letters.

Writing letters and grievances to a supervisory official in insufficient to establish notice of a constitutional violation and personal involvement. See Flynn v. Ward, No. 9:15-CV-1028 (TJM/CFH), 2018 WL 3195095, at *13 (N.D.N.Y. June 7, 2018) (citing Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) ("Commissioner . . . cannot be held liable on the sole basis that he did not act in response to letters of protest sent by [plaintiff] . . . ."); Thompson v. Pallito, 949 F. Supp. 2d 558, 575-76 (D.Vt. 2013) (if merely writing an unanswered letter to a prison official were sufficient to establish personal involvement, it would "contravene the black-letter principle that § 1983 does not allow for respondeat superior liability.")

Therefore, the Court recommends that Annucci be granted summary judgment.

B. Graham

On October 19, 2013, Plaintiff wrote to Graham complaining of the inhumane conditions in cell I-3; Novak and Donnelly's role in placing Plaintiff in the cell and ignoring his complaints about the conditions and his requests to be moved; Novak and Donnelly working in concert to force Plaintiff to stop writing grievances; and Robinson's failure to respond to Plaintiff's request to take remedial action and have Plaintiff moved to another cell. (Dkt. No. 1-3 at 9-10.) On November 4, 2013, Plaintiff wrote to Graham reminding him of the problems with the cell and complaining about the November 2 and 3, 2013, incidents with Novak. Id. at 21.

Plaintiff claims to have stopped Graham in SHU on November 5, 2013, told him about the retaliatory conduct by Novak and Graham, and shown him the inhumane conditions in cell I-3. (Dkt. No. 61-3 at ¶ 89.) On November 6, 2013, Plaintiff wrote to Graham again and reminded him of their discussion the day before and writing "[y]ou are well aware that this cell is not up to minimum standards and is indecent. You've seen it with your own eyes while speaking to me its horrible state of condition You told me that you would 'take care of the matter.'" Id. at 23. (unaltered text).

Plaintiff wrote to Graham on December 26, 2013, to complain about the December 21, 2013, incident with Novak, and on December 28, 2013, wrote complaining about wrongdoing by Novak and Donnelly on December 21 and 22, 2013. (Dkt. Nos. 61-3 at ¶ 108; 61-4 at 102.) On January 27, 2014, Plaintiff wrote to Graham to complain about the television incident with Donnelly on January 25, 2014. (Dkt. No. 61-4 at 102.) At his deposition, Plaintiff was unable to recall if he received responses to his written complaints to Graham, and there is no evidence in the summary judgment record showing that Graham responded to Plaintiff's written complaints. (Dkt. No. 39-2 at 57.)

Plaintiff's written complaints to Graham regarding the conditions in cell I-3 and alleged acts of retaliation by Novak and Donnelly, absent a response, investigation, or action by Graham, are insufficient to show personal involvement for purposes of supervisory liability. See Flynn, 2018 WL 3195095, at *13; Smart, 441 F. Supp. 2d at 643; Thompson, 949 F. Supp. 2d at 575-76. Therefore, the Court finds that Plaintiff's complaints to Graham regarding Novak and Donnelly's alleged retaliation, without response or action from Graham, are not enough to raise an issue of fact on personal involvement with regard to Plaintiff's retaliation claims, and that Graham is entitled to summary judgment with regard to the retaliation claims. However, according to Plaintiff, Graham personally observed the conditions in the cell, and after seeing the inhumane conditions in the cell on October 17, 2013, Graham did nothing. Graham has not submitted a declaration in support of his motion. Therefore the Court that there is an issue of fact as to whether Graham was personally involved in the conditions of confinement violation of Plaintiff's Eighth Amendment rights under the fourth Colon criteria precluding summary judgment.

In his capacity as Superintendent at Auburn, Graham issued decisions on Plaintiff's grievances AUB-63978-13 (November 2 and 3, 2013, incidents with Novak); AUB-64154-13 (December 9, 2013, incident with Novak); AUB-64191-14 (December 21 and 22, 2013, incidents with Novak and Donnelly); and AUB-642-64289-14 (January 25, 2014, incident with Donnelly).⁸ (Dkt. No. 61-4 at 64, 81, 87, 116-17.) As a general rule, the review denial or affirmance of a grievance insufficient to establish personal involvement by a supervisory official. Perilla v. Fischer, No. 13-CV-398M, 2013 WL 5798557, at *7 (W.D.N.Y. Oct. 28, 2013) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). There is no indication Graham did anything more than rely upon the investigation conducted by subordinate officers in summarily denying Plaintiff's grievances. Therefore, the Court finds that Graham was not personally involved by virtue of his decisions on Plaintiff's three retaliation grievances against Novak.

8 Because the Court has determined that the television incident with Donnelly on January 25, 2013, did not involve adverse action for purposes of a retaliation claim, there can be no supervisory liability against Graham or any of the other Defendants with respect to the related retaliation claim. See Blyden, 186 F.3d at 265.

Based upon the foregoing, the Court recommends that Graham be granted summary judgment except as to Plaintiff's supervisory liability claim regarding the conditions of confinement claim with respect to which the Court recommends denial of the motion.

C. Robinson

Plaintiff claims that on October 17, 2013, he stopped Robinson in SHU, told him about the deplorable state of cell I-3, not being given cleaning supplies, and Novak and Donnelly's retaliation against him.⁹ (Dkt. Nos. 39-2 at 30, 62; 61-3 at ¶ 11.) According to Plaintiff, Robinson showed disinterest but told Plaintiff he would see about it. (Dkt. Nos. 39-2 at 30; 61-3 at ¶ 12.) Robinson did not have Plaintiff moved after the conversation. Id. Plaintiff wrote to Robinson on October 19, 2013, complaining about the cell and reminding Robinson about their conversation on October 17, 2013, when Robinson had told Plaintiff he would see about it but did not come back or have Plaintiff moved. (Dkt. No. 1-3 at 13.) Plaintiff wrote to Robinson again on November 3, 2013, complaining about retaliatory conduct by Novak on November 2 and 3, 2013. (Dkt. Nos. 1-3 at 19; 61-3 at ¶ 35.) Plaintiff also wrote to Robinson on January 25, 2013, complaining of the television incident of that date with Donnelly and other harassment and threats by staff. (Dkt. No. 61-4 at 121.)

9 In his complaint and in his October 19, 2013, letters to both Robinson and Graham Plaintiff referenced verbally complaining to Robinson about the inhumane conditions in cell I-3 with no reference to having shown Robinson the conditions in the cell. (Dkt. Nos. 1 at ¶ 31; 1 3 at 9, 13.) At his deposition, Plaintiff testified he believed Robinson had seen the cell but offered no details. (Dkt. No. 61-1 at 62.) It was not until his declaration in opposition to Defendants' motion for summary judgment that Plaintiff specifically claimed to have also shown Robinson the conditions in the cell on October 17, 2013. (Dkt. No. 61-3 at ¶ 41).While it is not within the district court's purview to weigh the credibility of the parties at the summary judgment stage, where Plaintiff relies exclusively on his own testimony, and where as here, the testimony is contradictory and incomplete it is appropriate for the court to make some assessment of the Plaintiff's account. Jeffreys, 426 F.3 at 554. The Court does not find Plaintiff's claim that he showed Robinson the inside of his cell in opposition to Defendants' motion sufficient to avoid summary judgment.

In his declaration in support of his motion for summary judgment, Robinson has stated he does not recall Plaintiff complaining to him verbally or in writing about the conditions of his cell or actions of Novak. (Dkt. No. 39-18 at ¶ 4.) The Court finds nothing in the record showing that Robinson responded to, investigated, or took other action with regard to Plaintiff's written or verbal complaints about the alleged condition of his cell and alleged retaliation by Novak and Donnelly, or that he had personal knowledge beyond Plaintiff's written and verbal complaints. Therefore, the Court recommends summary judgment in Robinson's favor. See Burns v. Fischer, No. 13-CV-0486 (LEK/CFH), 2014 WL 1413387, at *7 (N.D.N.Y. Feb. 3, 2014); Alvarado v. Westchester Cty., 22 F. Supp. 3d 208, 215 (S.D.N.Y. 2014) ("[B]ecause Section 1983 liability cannot be predicated on a theory of respondeat superior, . . . a defendant's mere receipt of a letter or grievance, without personally investigating or acting thereon, is insufficient to establish [personal involvement]." (internal quotation marks and citations omitted)).

D. Chuttey

On October 19, 2013, Plaintiff wrote to Chuttey complaining about the cell I-3 conditions, lack of potable water, and lack of cleaning supplies. (Dkt. No. 1-3 at 16.) Plaintiff also complained that Novak and Donnelly were fully aware of the cell conditions when they moved him there. Id. He asked Chuttey to order that Plaintiff be placed in another cell and have the sink repaired. Plaintiff wrote to Chuttey again on November 4, 2013, to complain about harassment, threats, and retaliation by Novak, inform Chuttey of the encounters with Novak on November 2 and 3, 2013, and to ask Chuttey to intervene. (Dkt. No. 61-4 at 73.) Plaintiff claims that on November 18, 2013, he stopped Chuttey in the hall and asked if he had received Plaintiff's November 4, 2013, complaint letter, with Chuttey responding that he had received and read the letter. (Dkt. No. 1 at ¶ 47.) In a December 22, 2013, written complaint to Chuttey, Plaintiff again complained of Novak's behavior and of Donnelly seemingly encouraging it and chided Chuttey for his failure to intervene and correct the problem. (Dkt. No. 61-4 at 98.)

Plaintiff testified at his deposition that he could not recall if he received any response to his letters from Chuttey. (Dkt. No. 39-2 at 60.) There are no responses from Chuttey, nor is there any evidence in the record showing that Chuttey took any action with respect to any of Plaintiff's complaints. Moreover, even if Chuttey did acknowledge receipt of Plaintiff's November 4, 2013, letter, "a defendant's mere 'receipt' of a letter . . . without personally investigating or acting [thereon] is insufficient to establish personal responsibility." Burns, 2014 WL 1413387, at * 7. Therefore, the Court recommends that Chuttey be granted summary judgment.

E. Quinn

Plaintiff wrote to Quinn about the cell I-3 conditions and lack of cleaning supplies on October 19, 2013, and asked Quinn to investigate and correct the wrongs being done Plaintiff. (Dkt. No. 1-3 at 16.) Plaintiff wrote to Quinn again on December 28, 2013, informing him of Novak and Donnelly's threats and intimidation on December 21 and 22, 2013, in violation of his rights, complaining about the ineffectiveness of the inmate grievance program, noting that Quinn had not responded to Plaintiff's prior letters informing him of staff misconduct, and asking that Quinn perform his duty to correct the situation. (Dkt. No. 61-4 at 100-01.)

Plaintiff testified at his deposition that he did not recall if he received a response from Quinn to any of his written complaints (Dkt. No. 39-2 at 59), and there are no responses from Quinn in the summary judgment record. There is also no evidence that Quinn took any action with respect to Plaintiff's complaints. Therefore, the Court recommends that Quinn be granted summary judgment. See Flynn, 2018 WL 3195095, at *13.

F. Fagan

Plaintiff wrote to Fagan on January 28, 2014, informing him of the incident with Donnelly on January 25, 2014, and complaining of his continued inaction with regard to Plaintiff's repeated retaliatory mistreatment, despite being aware of the continued adverse actions taken against him. (Dkt. No. 61-4 at 122-23.) Plaintiff testified at his deposition that he did not recall if he spoke directly to Fagan about his complaints or if Fagan responded to his letter. (Dkt. No. 39-2 at 61.) There is no written response from Fagan, nor is there evidence of any action by Fagan in response to Plaintiff's letter in the summary judgment record. Therefore, the Court recommends that Fagan be granted summary judgment.

VIII. QUALIFIED IMMUNITY

Defendants have collectively included a request for qualified immunity in which they recite boilerplate law on entitlement to qualified immunity and state as conclusion, without analysis of the manner in which the Defendants have satisfied the criteria for qualified immunity in this case, that "[f]or all of the reasons already outlined above, it is clear that Defendants acted reasonably under the circumstances and are entitled to summary judgment on the grounds of qualified immunity." (Dkt. No. 39-21 39.)

Under a qualified immunity defense, "[a] governmental official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate clearly established rights or if it would have been objectively reasonable for the official to believe his conduct did not violate plaintiff's rights." Reuland v. Hynes, 460 F.3d 409, 419 (2d Cir. 2006) (quoting Mandell v. Cty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003)). A defendant's motion for summary judgment on the basis of qualified immunity must fail where a factual question exists on the issue of intent or motive. Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003).

The Court has determined that Plaintiff has raised an issue of fact with regard to his conditions of confinement claim against Novak and Donnelly. The courts have long recognized that depriving an inmate of "basic human needs," which has been found to include "safe and sanitary living conditions" violates his rights under the Eighth Amendment. Phelps, 308 F.3d at 185); see also Farmer, 511 U.S. at 837. In Garraway, 707 F. App'x at 18, the Second Circuit concluded that "[the constitutional magnitude" of failing to respond to an inmate's complaints of unsafe and unsanitary conditions, "if proved, was clearly established by [the date of plaintiff's claims] so as to defeat defendant's claim of qualified immunity." Likewise, an inmate's right to be free from retaliation for the exercise of a First Amendment right was clearly established at the time of the alleged retaliation against Plaintiff in this case. See Pidlypchak, 389 F.3d at 380. Moreover, Defendants' argument for qualified immunity is devoid of any evidence showing that it was objectively reasonable for them to believe their alleged conduct did not violate plaintiff's constitutional rights in this case with respect to the claims on which the Court has recommended denial of summary judgment. Id. at 39.

Based on the foregoing, the Court recommends that Defendants all be denied summary judgment on qualified immunity grounds without prejudice.

IX. CONCLUSION

In sum, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 39) be granted in part as follows: (1) judgment in Novak's favor on Plaintiff's First Amendment retaliation claim related to cell I-3; (2) judgment in Donnelly's favor on all of Plaintiff's First Amendment retaliation and supervisory liability claims; (3) judgment in Robinson, Chuttey, Quinn, and Fagan's favor on Plaintiff's supervisory liability claims; and (4) judgment in Graham's favor on all of Plaintiff's supervisory liability claims related to Plaintiff's First Amendment retaliation claims against Novak and Donnelly. The Court further recommends that Defendants' motion for summary judgment be denied in part as follows: (1) denial as to Plaintiff's Eighth Amendment conditions of confinement claim against Novak and Donnelly; (2) denial as to Plaintiff's First Amendment retaliation claims against Novak, with the exception of the retaliation claim related to cell I-3; and (3) denial as to Plaintiff's supervisory liability claim against Graham on Plaintiff's Eighth Amendment conditions of confinement claim. In addition, the Court recommends denial of Defendants' motion for summary judgment on qualified immunity grounds without prejudice.

If the District Court accepts this Report-Recommendation, the following § 1983 claims will remain for trial: (1) Plaintiff's Eighth Amendment conditions of confinement claims against Novak and Donnelly related to cell I-3; (2) Plaintiff's First Amendment retaliation claims against Novak, with the exception of the retaliation claim related to cell I-3; (3) Plaintiff's supervisory liability claim against Graham on Plaintiff's Eighth Amendment conditions of confinement claim; and (4) to the extent allowed by the District Court, Defendants' claim of entitlement to qualified immunity.

X. PLAINTIFF'S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE

Plaintiff has moved pursuant to Rule 37 of the Federal Rules of Civil Procedure for the imposition of sanctions against Defendants for spoliation of evidence, namely, tape over of SHU I-tank surveillance audio and video recordings for the locations and time periods of the incidents relevant to Plaintiff's claims, despite Plaintiff's timely notice to Defendants to preserve the tapes for expected litigation. (Dkt. No. 62-1.) In their opposition, Defendants challenge the adequacy and timing of Plaintiff's notices to preserve the tapes. (Dkt. No. 68 at 7-9.) Defendants also point out Plaintiff's failure to show exactly what he believes the tapes would show, although Defendants themselves offer no evidence that the videos would not be probative on Plaintiff claims. Id. at 6. In addition, Defendants argue Plaintiff has failed to produce evidence that Defendants destroyed the videos with the requisite culpable state of mind. Id. at 9. Aside from alluding generally to the videos being recorded over, neither party provides evidence regarding what constitutes "the Department of Correction and Community Supervision's good faith operation of it's video system," relied upon by Defendants or the timing and circumstances of any relevant tape over vis-a-vis the notices to preserve provided by Plaintiff. Id.

The Court has concluded that there is insufficient information in the parties' motion papers on which to rule on the issue of spoliation. The Court has also concluded, however, that for purposes of its recommendation on Defendants' motion for summary judgment it is not necessary to do so. The Court's recommendation that Novak and Donnelly be granted summary judgment on Plaintiff's retaliation claim relating to his placement in cell I-3 is based upon a legal determination regarding the absence of evidence showing protected First Amendment conduct. The Court has denied summary judgment with regard to Plaintiff's remaining retaliation claims and his Eighth Amendment conditions of confinement claim against Novak and Donnelly based on the evidence in the summary judgment record. The Court has recommended that Donnelly be granted summary judgment on the retaliation claim involving the television based upon a legal determination that the incident, as described by Plaintiff himself, did not constitute adverse action.

Because the motion papers provide inadequate information on which to properly determine Plaintiff's motion for spoliation sanctions, and the Court finds it unnecessary to do so for purposes of this Report-Recommendation, the Court denies Plaintiff's motion without prejudice to reconsideration or renewal including, if necessary, a hearing in the District Court in connection with any trial held in the matter.

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 39) be GRANTED in part and DENIED in part; and it further

RECOMMENDED that summary judgment be GRANTED to Defendant Novak on Plaintiff's First Amendment retaliation claims related to his being moved to and kept in cell I-3, and GRANTED to Donnelly on all of Plaintiff's retaliation and supervisory liability claims; and it is further

RECOMMENDED that summary judgment be DENIED to both Novak and Donnelly on Plaintiff's Eighth Amendment conditions of confinement claim with regard to cell I-3, and DENIED to Novak on all of Plaintiff's First Amendment retaliation claims with the exception of the claim related to his being moved to and kept in cell I-3; and it is further

RECOMMENDED that summary judgment be GRANTED to Defendants Robinson, Chuttey, Quinn, and Fagan on Plaintiff's supervisory liability claims; and it is further

RECOMMENDED that summary judgment be GRANTED to Defendant Graham on Plaintiff's supervisory liability claim related to his First Amendment retaliation claims, and that it be DENIED on Plaintiff's supervisory liability claim related to his Eighth Amendment conditions of confinement claim; and it is further

RECOMMENDED that Defendants' motion for summary judgment on qualified immunity grounds be denied as to all Defendants without prejudice to reconsideration at trial; and it is hereby

ORDERED that Plaintiffs motion for sanctions against Defendants for spoliation of evidence (Dkt. No. 62) be denied without prejudice to a request for reconsideration or renewal at trial; and it is hereby

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.¹⁰ 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. Dated: August 9, 2018

10 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge