Opinion
9:21-CV-0901 (DNH/ML)
07-20-2023
JAY BRADSHAW, Plaintiff, v. UHLER, Superintendent Upstate Corr. Facility; FENNESSY, Superintendent, Mid-State Corr. Facility; S. DOMINIC, Upstate Corr. Facility; R. CANTWELL, Comm'r Hearing Officer, Upstate Corr. Facility; J. TATRO, Lieutenant, Upstate Corr. Facility; WOODRUFF, Superintendent for Security, Upstate Corr. Facility; R. BARBOSA, CHO, Mid-State Corr. Facility; HOLLENBECK, Upstate Corr. Facility; LAMICA, Upstate Corr. Facility; GRAVELL, Mental Health Therapist, Upstate Corr. Facility, formerly known as Gravlin; VENETTOZZI, Director of Special Housing Unit; JENNIFER WALDRON, Mental Health Unit Chief, Upstate Corr. Facility; and BRIAN LOWNSBURY, Corrections Officer, Upstate Corr. Facility, Defendants.
JAY BRADSHAW Pro Se Plaintiff Great Meadow Correctional Facility LETITIA A. JAMES Attorney General for the State of New York Counsel for Defendant The Capitol MARK MITCHELL, ESQ. Assistant Attorney General
APPEARANCES:
JAY BRADSHAW Pro Se Plaintiff Great Meadow Correctional Facility
LETITIA A. JAMES Attorney General for the State of New York Counsel for Defendant The Capitol
OF COUNSEL:
MARK MITCHELL, ESQ. Assistant Attorney General
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Jay Bradshaw (“Plaintiff”) against Uhler, Fennessy, S. Dominic, R. Cantwell, J. Tatro, Woodruff, R. Barbosa, Hollenbeck, Lamica, Gravell, Venettozzi, Jennifer Waldron, and Brian Lownsbury (collectively “Defendants”), is (1) Plaintiff's motion for partial summary judgment, and (2) Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 and to revoke Plaintiff's IFP status. (Dkt. Nos. 119, 120.) For the reasons set forth below, I recommend that (1) Plaintiff's motion be denied, and (2) Defendants' motion be granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Overview
On or about August 11, 2021, Plaintiff Jay Bradshaw (“Plaintiff”) commenced this pro se action by filing a civil rights complaint against numerous state employees at various correctional facilities pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis (“IFP”) and a motion for preliminary injunctive relief. (Dkt. Nos. 1, 2, 3.) By order dated September 27, 2021, United States District Judge David N. Hurd granted Plaintiff's IFP application in accordance with 28 U.S.C. § 1915(g), and, following a review of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), dismissed some of Plaintiff's claims, transferred some of Plaintiff's claims to the Western District of New York, terminated some of the defendants, and directed service and a response to the claims against the named defendants that survived sua sponte review. (Dkt. No. 5.)
1. Initial Determination of Imminent Danger
Prior to commencing this action, Plaintiff had filed at least twenty-two other civil actions in the district courts in the Second Circuit since 2008. (Dkt. No. 5 at 3.) In at least four of those actions, Plaintiff acquired “strikes” as defined in 28 U.S.C. § 1915(g). (Id. at 4 n.5.) Notwithstanding this determination, Plaintiff's IFP application was granted because the Court found that the allegations in the Complaint were sufficient to plausibly suggest that Plaintiff “was ‘under imminent danger of serious physical injury' when he signed his complaint on August 1, 2021.” (Id. at 7.) The Court, however, noted that “this is a preliminary finding which defendants are entitled to challenge or refute in future filings.” (Id. [stating further that “plaintiff's IFP status will be revoked if, as the case progresses, it is determined that he did not face ‘imminent danger' when he commenced this action or is otherwise not entitled to proceed IFP”].)
2. Amended Complaint
On March 2, 2022, Plaintiff filed an amended complaint. (Dkt. No. 43.)
Generally, Plaintiff's Amended Complaint alleges that various corrections officials at Upstate Correctional Facility (“Upstate”) and Mid-State Correctional Facility (“Mid-State”) violated Plaintiff's civil rights related primarily to misbehavior reports and corresponding disciplinary determinations issued between August 2018 and December 2021. (See generally Dkt. No. 43, Dkt. No. 48 at 6-13.) More specifically, the Amended Complaint alleges that between August 2, 2018, and December 22, 2021, Plaintiff was issued thirty-seven misbehavior reports during his incarceration at Upstate and Mid-State. (See generally Dkt. No. 43, Dkt. No. 48 at 6-13.) When Plaintiff received the first misbehavior report at issue in this action, he had been confined in a Special Housing Unit (“SHU”) cell for almost three-hundred consecutive days as a result of disciplinary determinations at another DOCCS facility. (See generally Dkt. No. 43, Dkt. No. 48 at 6-13.) As a result of guilty determinations at disciplinary hearings related to some of the misbehavior reports at issue in this action, Plaintiff is scheduled to remain in the SHU until at least September 14, 2023. (See generally Dkt. No. 43, Dkt. No. 48 at 6-13.) In addition, following Plaintiff's release from the SHU, he is scheduled to serve more than four years of keeplock confinement as a result of several other of the misbehavior reports at issue in this action. (See generally Dkt. No. 43, Dkt. No. 48 at 6-13.)
By order dated April 20, 2022, following a review of the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Judge Hurd dismissed some of Plaintiff's claims, directed the Clerk of the Court to add certain new defendants to the docket, directed that defendant “Jane Doe” be terminated, directed service of the Amended Complaint on the new defendants, and directed that a response be filed for the claims against the named defendants that survived sua sponte review. (Dkt. No. 48.) More specifically, Judge Hurd ordered that the following six claims survived sua sponte review: (1) Plaintiff's First Amendment retaliation claim against Defendant Lamica; (2) Plaintiff's Eighth Amendment excessive force claims against Defendants Hollenbeck and Lamica; (3) Plaintiff's Eighth Amendment conditions-of-confinement claim based on the denial of meals against Defendant Hollenbeck; (4) Plaintiff's Eighth Amendment medical indifference claims against Defendants Gravell and Waldron; (5) Plaintiff's Eighth Amendment excessive SHU confinement claims against Defendants Dominic, Uhler, Cantwell, Tatro, Woodruff, Barbosa, Fennessy, and Venettozzi; and (6) Plaintiff's Fourteenth Amendment disciplinary due process claims against Defendants Uhler, Lownsbury, Cantwell, Tatro, and Venettozzi arising out of the disciplinary determinations associated with the September 2018 Disciplinary Hearing, the January 2019 Disciplinary Hearing, and/or the May 2021 Disciplinary Hearing. (Id.)
The undersigned adopted the definition of this term from the Decision and Order of Judge Hurd dated September 27, 2021. (Dkt. No. 5 at 13.)
The undersigned adopted the definition of this term from the Decision and Order of Judge Hurd dated September 27, 2021. (Dkt. No. 5 at 15.)
The undersigned adopted the definition of this term from the Decision and Order of Judge Hurd dated September 27, 2021. (Dkt. No. 5 at 25.)
3. Recent Procedural History
On January 24, 2022, Judge Hurd denied Plaintiff's motion for a preliminary injunction. (Dkt. No. 31.)
On January 23, 2023, Plaintiff filed a partial motion for summary judgment on his excessive SHU confinement and due process claims. (Dkt. No. 119.) On January 27, 2023, Defendants filed a motion for summary judgment and to revoke Plaintiff's IFP status. (Dkt. No. 120.) Defendants opposed Plaintiff's partial motion for summary judgment. (Dkt. No. 131.) Plaintiff opposed Defendants' motion for summary judgment and to revoke his IFP status. (Dkt. No. 137.)
B. Parties' Briefing on Their Cross-Motions for Summary Judgment
1. Plaintiff's Motion for Partial Summary Judgment
Generally, in support of his motion for partial summary judgment, Plaintiff asserts the following two arguments: (1) he was denied due process at his disciplinary hearings; and (2) his continuous confinement in the SHU violated his Eighth Amendment right. (See generally Dkt. No. 119.)
More specifically, with respect to his first argument, Plaintiff argues that at his October 2018 disciplinary hearing (1) Defendant Lownsbury failed to (a) provide Plaintiff with the DOCCS directive for preserving evidence and for testing a substance for urine, (b) submit Plaintiff's request for video of the incident, and (c) assist Plaintiff in securing the testimony of C.O. Jeffrey as a witness, (2) Defendant Cantwell conducted the disciplinary hearing in Plaintiff's absence without justification and imposed a 250 day SHU penalty despite his knowledge that Plaintiff was already serving a 120 day SHU sanction, and (3) Defendants Woodruff and Venettozzi failed to correct the due process violations and instead, affirmed the 250 day SHU sanction. (Dkt. No. 119 at 5.) In addition, Plaintiff argues that with respect to the January 2019 Disciplinary Hearing, Defendant Trato allegedly relied on the officers' report and video of the incident, but the video squarely contradicts the officers' report and thus, there was no evidence to properly rely on when imposing a sentence of 265 days in the SHU. (Id.) With respect to the May 2021 Disciplinary Hearing, Plaintiff argues that (1) Defendant Cantwell improperly conduced the hearing without Plaintiff present and imposed a SHU sanction for offenses that were not punishable by a SHU sanction, and (2) Defendants Uhler and Rodriguez affirmed Defendant Cantwell's improper SHU sanction. (Id. at 6.)
With respect to his second argument, Plaintiff asserts that he has been confined to the SHU since January 10, 2018, and none of the offenses for which he received a SHU sanction posed an unreasonable and ongoing threat to security and safety and thus were grossly disproportionate to the reason for isolation. (Id. at 6-7.)
2. Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment and to revoke Plaintiff's IFP status, Defendants assert the following six arguments: (1) Plaintiff's IFP status should be revoked because he did not face imminent danger when he filed the complaint; (2) Plaintiff's medical indifference claims should be dismissed; (3) Plaintiff's due process claims should be dismissed; (4) Plaintiff's excessive force and retaliation claims should be dismissed; (5) Plaintiff's conditions-of-confinement claim should be dismissed; and (6) Plaintiff's excessive SHU confinement claim should be dismissed. (See generally Dkt. No. 120, Attach. 8 at 5-27.)
More specifically, with respect to their argument that Plaintiff's IFP status should be revoked, Defendants adduced record evidence, including sworn statements, Plaintiff's deposition testimony, and Plaintiff's medical records, which, they contend, show that Plaintiff was seen by mental health providers on numerous occasions during the time period before and after commencement of this action and there was not an indication that Plaintiff was in imminent danger of harming himself. (Dkt. No. 120, Attach. 8 at 6-7 [citing Dkt. No. 121 at 3-34; Dkt. No. 121, Attach. 3].) Thus, Defendants argue that Plaintiff obtained IFP status based on misrepresentations about his mental health treatment and condition at the time that he commenced this action. (Dkt. No. 120, Attach. 8 at 7.) Moreover, Defendants argue that revocation of Plaintiff's IFP status is justified based on other determinations in the Northern District concerning Plaintiff's condition during the time period in question, which found that (1) on May 31, 2021, Plaintiff did not face an imminent danger of serious physical injury and had access to medical treatment; and (2) on July 4, 2021, Plaintiff did not face an imminent danger of serious physical injury and had access to medical treatment. (Id. at 8.) Defendants argue that there is no factual basis to believe that Plaintiff's condition changed from not being in imminent danger in May and July 2021, to being in imminent danger on August 11, 2021, when he commenced this action. (Id. at 8-9.)
Defendants argue that with respect to Plaintiff's medical indifference claims, Plaintiff's mental health records demonstrate that he was seen by mental health providers on numerous occasions during the time of May 3, 2021 (when he was transferred to Upstate Correctional Facility), and when he commenced this action on August 11, 2021. (Dkt. No. 120, Attach. 8 at 11.) Moreover, Defendant Gravell submitted a sworn statement confirming that she made rounds twice per week and incarcerated individuals were permitted to verbally request a mental health interview. (Id.) Defendants argue that Plaintiff may not manufacture a medical indifference claim by refusing treatment and the proof demonstrates that Plaintiff's mental health providers showed concern for his well-being. (Id. at 11-12.)
With respect to Plaintiff's due process claims, Defendants argue that during the September 2018 Disciplinary Hearing, (1) Defendant Cantwell properly concluded that Plaintiff refused to attend the hearing and was advised of his rights, and (2) Defendant Cantwell properly concluded that Plaintiff's request for urinalysis procedures were irrelevant to the proceeding. (Dkt. No. 120, Attach. 8 at 14-15.) Moreover, Defendants argue that the January 2019 Disciplinary Hearing resulted in a sanction of fourteen-days in the SHU, which does not implicate a liberty interest protected by the Fourteenth Amendment. (Id. at 16-17.) Defendants also argue that, in any event, the Amended Complaint is devoid of specific factual allegations regarding how Plaintiff's due process rights were violated during the January 2019 Disciplinary Hearing and the record is clear that his due process rights were not violated. (Id.) Further, Defendants argue that the May 2021 Disciplinary Hearing resulted in a sanction of ninety-days in the SHU, which does not implicate a liberty interest protected by the Fourteenth Amendment. (Id. at 17-18.) Defendants argue that, in any event, the record demonstrates that Plaintiff's due process rights were not violated by the May 2021 Disciplinary Hearing. (Id.)
Defendants argue that Plaintiff's excessive force claims against (1) Defendant Hollenbeck should be dismissed because the alleged force used was de minimis such that Plaintiff did not seek medical treatment or sustain any diagnosed injuries; and (2) Defendant Lamica should be dismissed because the alleged force used was de minimis such that Plaintiff did not seek medical treatment, the alleged injury healed on its own, and bruises and short-term pain are insufficient to support an excessive force claim. (Dkt. No. 120, Attach. 8 at 19-21.) Defendants argue that Plaintiff's retaliation claim against Defendant Lamica should be dismissed because (1) the allegedly tight waist chains were too de minimis to constitute an adverse action supporting a retaliation claim; (2) Plaintiff cannot raise a triable issue of fact that Defendant Lamica's conduct was causally related to Plaintiff's protected speech in light of Plaintiff's disciplinary convictions on the misbehavior report and Plaintiff's lengthy disciplinary history predating the alleged retaliatory behavior. (Id. at 21-23.)
Defendants argue that Plaintiff's conditions-of-confinement claim should be dismissed because the record demonstrates that Plaintiff engaged in a calculated practice of refusing to comply with feed-up procedures and, in any event, cannot raise an issue of fact for trial that any alleged denial of meals by Defendant Hollenbeck presented an immediate danger to his health or well-being. (Dkt. No. 120, Attach. 8 at 23-25.)
Defendants argue that Plaintiff's Eighth Amendment excessive SHU confinement claim should be dismissed because (1) it is well established that SHU conditions, although restrictive, do not rise to the level of an Eighth Amendment violation, (2) Plaintiff cannot raise a triable issue of fact that Defendants were aware of, and disregarded, a substantial risk of serious harm to Plaintiff in imposing SHU confinement, and (3) in the alternative, Defendants are entitled to qualified immunity. (Id. at 25-27.)
3. Defendants' Opposition to Plaintiff's Partial Motion for Summary Judgment
Generally, in opposition to Plaintiff's motion for partial summary judgment, Defendants argue that (1) Plaintiff's claim of excessive SHU confinement pursuant to the Eighth Amendment should be dismissed and his motion for summary judgment should be denied, and (2) Plaintiff's due process claims should be dismissed and his motion for partial summary judgment should be denied. (See generally Dkt. No. 131, Attach. 4.)
More specifically, Defendants argue that with respect to Plaintiff's excessive SHU confinement claim, it is unclear what standards should be used to evaluate this “potential” claim and it is well established that although SHU conditions are restrictive, they do not rise to the level of an Eighth Amendment violation. (Dkt. No. 131, Attach. 4 at 6-15.) Further, Defendants argue that Plaintiff cannot raise a triable issue of fact that Defendants knew of and disregarded an excessive risk to his health or safety because Plaintiff was seen by mental health providers on a regular basis during his SHU confinement. (Id.) In addition, Defendants argue that the record demonstrates that the sanctions were properly imposed for Plaintiff's numerous and egregious disciplinary violations that threatened the health, safety, and security of staff, incarcerated individuals, and the facilities. (Id.) In the alternative, Defendants argue that Plaintiff's excessive SHU claim should be dismissed based on the doctrine of qualified immunity. (Id.)
With respect to Plaintiff's due process claims, Defendants argue that for the reasons set forth in their memorandum of law filed on January 27, 2023, the disciplinary hearings of September 2018, January 2019, and May 2021, satisfied the requirements of due process and Plaintiff cannot raise a triable issue of fact. (Dkt. No. 131, Attach. 4 at 15-16.)
4. Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment
Generally, in opposition to Defendants' motion for summary judgment and to revoke Plaintiff's IFP status, Plaintiff argues that (1) his IFP status should not be revoked; (2) there is a genuine issue of material fact that precludes summary judgment on his medical indifference claim; (3) there are genuine issues of material fact that preclude summary judgment on his due process claims; (4) there are genuine issues of material fact that preclude summary judgment on his excessive force and retaliation claims; (5) there are genuine issues of material fact that preclude summary judgment on his conditions-of-confinement claim; and (6) there are genuine issues of material fact that preclude summary judgment on his excessive SHU confinement claim. (See generally Dkt. No. 137 at 19-31.)
More specifically, with respect to Defendants' motion to revoke his IFP status, Plaintiff submitted a sworn statement wherein he refutes certain factual information contained in Defendants' documentary evidence, including evidence showing that he refused a private interview, expressed having no concerns during various meetings with mental health providers, and that he did not suffer from depression and anxiety. (Dkt No. 137 at 10-16.) Plaintiff argues that between May 3, 2021, and the signing of the complaint on August 1, 2021, he was placed on a callout for a private interview to discuss his mental health issues on a single occasion-May 24, 2021-despite DOCCS officials' mental health referrals and Plaintiff's request for mental health services due to the impact that Plaintiff's prolonged confinement in the SHU had on his mental health. (Dkt. No. 137 at 19-21.) Plaintiff argues that mental health issues are not discussed cell-side because of the lack of privacy. (Id.)
With respect to Plaintiff's medical indifference claims, Plaintiff argues that his claims against Defendants Gravell and Waldron should not be dismissed because he had a history of serious mental illness that included self-harm, his mental health history was known to medical providers, substantial periods of time in the SHU is a risk factor for mental health, and despite several referrals and Plaintiff's letters and grievance seeking mental health services, Defendant Gravell denied Plaintiff private call-outs to discuss his mental health issues and misrepresented that Plaintiff refused private interviews. (Id. at 21-22.)
With respect to Plaintiff's due process claims, Plaintiff argues that (1) his September 2018 Disciplinary Hearing did not comply with due process because (a) Defendant Lownsbury did not request the video or note that Plaintiff sought Correction Officer Jeffery as a witness, (b) Defendant Lownsbury incorrectly stated that Plaintiff sought the DOCCS directive about preserving evidence and urinalysis testing when, in fact, Plaintiff sought the standard operating procedures for preserving evidence and to determine the presence of urine in a substance, (c) Plaintiff was threatened by Sergeant Fletcher and requested a lieutenant be present for his escort to the hearing but was denied the ability to attend the hearing, and (d) Defendants Cantwell, Uhler, and Venettozzi were aware that Plaintiff was already serving a 120-day SHU sanction before imposing a 250-day SHU sanction; (2) his January 2019 Disciplinary Hearing did not comply with due process because (a) the determination of guilt was not supported by reliable evidence in that, the video evidence showed Plaintiff complaining about the chain around his ribs and Defendant Lamica harassing Plaintiff, (b) while serving his 14-day SHU sanction, Plaintiff was sleep deprived because officers would “bang on his cell” every thirty-minutes to keep him awake, which amounted to an atypical and significant hardship for purposes of implicating a liberty interest, and (c) in any event, Plaintiff was already serving a 250-day SHU sanction which can be aggregated for purposes of determining whether a liberty interest was implicated by the additional SHU sanction; and (3) his May 2021 Disciplinary Hearing did not comply with due process because (a) Defendants Cantwell, Uhler, and Rodriguez do not dispute that the charges Plaintiff was deemed guilty of do not permit a sanction of SHU confinement, (b) Defendants Cantwell, Uhler, and Rodriguez were aware that Plaintiff was already serving a 525-day SHU sanction before imposing an additional 90-day SHU sanction, which can be aggregated for purposes of determining whether a liberty interest was implicated, and (c) the officer transporting Plaintiff to the hearing directed Plaintiff to come out of his cell in socks and when Plaintiff objected to that direction, he was denied access to his disciplinary hearing. (Dkt. No. 137 at 2325.)
Based on the undersigned's reading of Plaintiff's opposition, it appears that Plaintiff intended to argue that Defendant Cantwell incorrectly interpreted the document sought by Plaintiff via Defendant Lownsbury.
With respect to his excessive force and retaliation claims, Plaintiff argues that (1) Defendant Hollenbeck maliciously pushed him in the back causing Plaintiff to hit the wall and the fact that Plaintiff did not seek medical treatment is irrelevant; (2) Defendant Lamica squeezed the waist restraints and aggravated Plaintiff's bruised ribs causing extreme pain, and (3) on December 21, 2018, Plaintiff filed a grievance against Defendant Lamica, and on January 14, 2019, Defendant Lamica referenced Plaintiff's grievance against him then squeezed the waist restraint around Plaintiff's ribs causing Plaintiff extreme pain and aggravating his rib injury. (Id. at 25-27.)
With respect to his conditions-of-confinement claim, Plaintiff argues that Defendant Hollenbeck deprived him of breakfast and lunch on approximately seven occasions between November 26, 2018, and January 1, 2019, and deprived Plaintiff of breakfast and lunch on January 4, 7, and 8, 2019. (Id. at 27.) Plaintiff argues that as a result of being denied meals, he suffered substantial pain and developed GERD. (Id.) Plaintiff also argues that Defendant Hollenbeck issued him three misbehavior reports on January 1, 2019, but the reports were all dismissed after the hearing officer reviewed the video, which showed Defendant Hollenbeck depriving Plaintiff meals. (Id.)
With respect to Plaintiff's excessive SHU confinement claims, he argues that (1) Defendants Dominic, Woodruff, and Venettozzi knew that Plaintiff was already serving a 213-day SHU sanction when he was sentenced to an additional 60-days in the SHU and the 60-day SHU sanction was grossly disproportionate to the non-violent offense that Plaintiff was found guilty of; (2) Defendants Cantwell, Uhler, and Venettozzi knew that Plaintiff was already serving a 120-day SHU sanction when he was sentenced to an additional 250-days in the SHU and the 250-day SHU sanction was grossly disproportionate to the offenses that Plaintiff was found guilty of; (3) Defendants Tatro and Venettozzi knew that Plaintiff was already serving a 250-day SHU sanction when he was sentenced to an additional 14-days in the SHU, the determination of guilt was not supported by some reliable evidence, and the 14-day SHU sanction was grossly disproportionate to the non-violent offense that Plaintiff was found guilty of; (4) Defendants Woodruff, Uhler, and Venettozzi knew that Plaintiff was already serving a 264-day SHU sanction when he was sentenced to an additional 250-days in the SHU and the 250-day SHU sanction was grossly disproportionate to the offenses that Plaintiff was found guilty of; (5) Defendants Barbosa, Fennessy, and Venettozzi knew that Plaintiff was already serving a 514-day SHU sanction when he was sentenced to an additional 300-days and 150-days in the SHU and the additional SHU sanctions were grossly disproportionate to the offenses that Plaintiff was found guilty of; and (6) Defendants Cantwell, Uhler, and Venettozzi knew that Plaintiff was already serving a 525-day SHU sanction when he was sentenced to an additional 90-days in the SHU, the offenses that Plaintiff was deemed guilty of did not permit the imposition of a SHU sanction, and the 90-day SHU sanction was grossly disproportionate to the non-violent offense that Plaintiff was found guilty of. (Dkt. No. 137 at 28-31.) Plaintiff argues that based on the hearings of August 2018, September 2018, January 2019, February 2019, August 2019, and May 2021, he was sanctioned to a total of 864 days in the SHU, which could be considered “atypical and significant” and grossly disproportionate to the underlying offenses that he was found guilty of. (Id. at 31.) Moreover, Plaintiff argues that Defendants are not entitled to qualified immunity under the circumstances. (Id.)
5. Defendants' Reply in Further Support of Their Motion for Summary Judgment and to Revoke Plaintiff's IFP Status
In further support of their motion, Defendants assert the following two arguments: (1) Plaintiff's IFP status should be revoked, and (2) Plaintiff's medical indifference, due process, excessive force, retaliation, conditions-of-confinement, and excessive SHU confinement claims should be dismissed. (See generally Dkt. No. 138, Attach. 2.)
More specifically, with respect to their motion to revoke Plaintiff's IFP status, Defendants argue that (1) their motion should be granted for the reasons stated in their moving memorandum of law because Plaintiff was not in imminent danger at the time he commenced this action, and (2) Plaintiff's financial condition improved based on a $2,000.00 settlement he received in another action. (Dkt. No. 138, Attach. 2 at 3-4.)
Defendants argue that with respect to Plaintiff's medical indifference claims, Plaintiff conceded that he was seen by mental health providers on the dates documented in his mental health records and that mental health providers make rounds at Upstate Correctional Facility. (Dkt. No. 138, Attach. 2 at 4.) Moreover, Defendants argue that Plaintiff's assertion that the mental health interviews were not as private as he would have preferred is insufficient to raise a triable issue of fact and he cannot manufacture a medical indifference claim by refusing treatment. (Id.)
Defendants argue that Plaintiff failed to submit evidence raising a triable issue of fact regarding his due process claims. (Id. at 4-5.)
Defendants argue that the videos they submitted of Defendant Lamica's escort of Plaintiff on January 22, 2019, demonstrate that the escort was appropriate and Defendant Lamica's conduct was too de minimis to support an excessive force or retaliation claim. (Dkt. No. 138, Attach. 2 at 5.)
Defendants argue that for the reasons set forth in their moving memorandum of law, Plaintiff's conditions-of-confinement claim against Defendant Hollenbeck should be dismissed. (Id. at 6.)
Defendants argue that Plaintiff's excessive SHU confinement claim should be dismissed because he cannot raise a triable issue of fact and, in any event, his claim should be dismissed based on the doctrine of qualified immunity. (Id.) Moreover, Defendants argue that Plaintiff does not challenge the adequacy of the mental health treatment he received before his transfer to Upstate Correctional Facility in May 2021, and his claims concerning his confinement at Southport Correctional Facility from October 2019 to May 2021, were severed and transferred and thus, not at issue in this action. (Id.)
6. Plaintiff's Reply in Further Support of His Motion for Partial Summary Judgment
In further support of his motion for partial summary judgment, Plaintiff argues that (1) an issue of fact remains for trial regarding his excessive SHU confinement claim; (2) his due process claims and motion for partial summary judgment should be granted. (Dkt. No. 141.)
More specifically, Plaintiff argues that his excessive SHU sanction claim should survive because (1) with respect to the August 2018 hearing (a) Plaintiff was always handcuffed and placed in waist restraints for all out of cell movement and thus, his mockery of an officer and impractical threat to beat the officer up at 3:00 p.m., in the parking lot could not be considered a serious or credible threat to warrant a SHU sanction that exceeds 30-days, (b) Defendants Dominic, Uhler, and Venettozzi knew that the 60-day SHU sanction was grossly disproportionate to the offenses that Plaintiff allegedly committed, (c) Defendants Dominic, Uhler, and Venettozzi knew that Plaintiff was already serving a 231-day SHU sanction when the 60-day SHU sanction was imposed, and (d) while serving the 60-day SHU sanction, Plaintiff was assaulted on November 25, 2018, and deprived several meals between November 26, 2018, and January 4, 2019; (2) with respect to the January 2019 Disciplinary Hearing, (a) the determination of guilt was not supported by some reliable evidence because the video evidence does not show that Plaintiff committed any of the offenses alleged in the misbehavior report by Defendant Lamica, (b) the 14-day SHU sanction was grossly disproportionate, (c) Defendants Tatro and Venettozzi knew that Plaintiff was already serving a 250-day SHU sanction when the additional 14-day SHU sanction was imposed, and (d) while serving the 14-day SHU sanction, Plaintiff was sleep deprived by officers who banged on his cell during rounds to keep him awake; (3) with respect to the August 2019 hearing, (a) Defendants Barbosa, Fennessy, and Venettozzi knew that the SHU sanctions of 300-days and 150-days were grossly disproportionate to the offenses that Plaintiff was alleged to have committed, and (b) Defendants Barbosa, Fennessy, and Venettozzi knew that Plaintiff was already serving a 514-day SHU sanction before the additional 300-day and 150-day SHU sanctions were imposed; (4) with respect to the February 2019 hearing, (a) the 250-day SHU sanction was grossly disproportionate to the offenses that Plaintiff was alleged to have committed, and (b) Defendants Woodruff, Uhler, and Venettozzi knew that Plaintiff was already serving a 264-day SHU sanction before imposing the additional 250-day SHU sanction; (5) with respect to the September 2018 Disciplinary Hearing, (a) the allegations in the misbehavior report were untrue, (b) Defendants Cantwell, Uhler, and Venettozzi knew that the 250-day SHU sanction was grossly disproportionate to the offenses that Plaintiff was alleged to have committed, and (c) Defendants Cantwell, Uhler, and Venettozzi knew that Plaintiff was already serving a 120-day SHU sanction before imposing the additional 250-day SHU sanction; and (6) with respect to the May 2021 Disciplinary Hearing, (a) Plaintiff did not refuse to attend the disciplinary hearing but merely stated that the direction to walk out of his cell in socks was ridiculous, (b) Defendants Cantwell, Uhler, and Venettozzi knew that SHU confinement could not be imposed for the offenses that Plaintiff was found guilty of committing, and (c) Defendants Cantwell, Uhler, and Venettozzi knew that Plaintiff was already serving a 525-day SHU sanction before imposing the additional 90-day SHU sanction. (Dkt. No. 141 at 8-11.) Moreover, Plaintiff argues that he served more than three and one-half years in the SHU (from January 10, 2018, through August 1, 2021, when he signed the Complaint in this action), which could be considered “atypical and significant” especially in light of his documented history of mental illness and Defendants' failed to provide adequate mental health treatment and ensure that his condition had not deteriorated to the point of constituting cruel and unusual punishment. (Id. at 11-12.)
Plaintiff argues that he should be granted summary judgment on his due process claims because (1) with respect to the September 2018 Disciplinary Hearing, (a) on October 9, 2018, a sergeant threatened Plaintiff which resulted in his absence from the hearing, and (b) Defendant Lownsbury did not (i) provide Plaintiff with the Standard Operating Procedures for preserving evidence and for determining the presence of urine in a substance, (ii) request video of the incident, or (iii) assist in securing the testimony of C.O. Jeffery as a witness; (2) with respect to the January 2019 Disciplinary Hearing, Defendant Tatro's finding of guilt was not supported by some reliable evidence in that, the video did not show Plaintiff committed any of the offenses alleged in the misbehavior report; and (3) with respect to the May 2021 Disciplinary Hearing, (a) SHU confinement was not a proper sanction for the alleged offenses that he was found guilty of committing, and (b) Plaintiff was prohibited from attending the disciplinary hearing because he stated that the direction to exit his cell in socks, was ridiculous. (Id. at 13-14.)
7. Plaintiff's Surreply in Further Opposition to Defendants' Motion for Summary Judgment
Plaintiff simultaneously submitted a request to submit a surreply and a surruply. In his letter surreply, Plaintiff argues that (1) his IFP status should not be revoked because (a) he was in imminent danger at the time his complaint was filed in that, (i) prolonged confinement in the SHU puts him at risk of self-harm, and (ii) Defendants effectively deprived of him mental health services by not providing private mental health interviews, and (b) he has not yet received the $2,000.00 settlement amount and his surcharges exceed $2,000.00, so his financial position has not substantially changed; (2) with respect to his medical indifference claim genuine issues of material fact remain for trial because Defendants denied Plaintiff private interviews and Plaintiff did not refuse private interviews; (3) for the reasons set forth in Plaintiff's opposition papers genuine issues of material fact remain for trial regarding his due process claims and, alternatively, the Court should grant Plaintiff's motion for partial summary judgment of his due process claims; (4) with respect to the excessive force and retaliation claims genuine issues of material fact remain for trial because (a) the videos submitted by Defendants were altered in that the audio does not include Plaintiff's complaints that Defendant Lamica was shoving him, (b) the video does not show Plaintiff engage in the conduct that Defendant Lamica alleged in the misbehavior report, and (c) the application of force was malicious; (5) genuine issues of fact remain for trial regarding the conditions-of-confinement claim for the reasons set forth in Plaintiff's opposition papers; and (6) with respect to his excessive SHU confinement claims, his time at Southport Correctional Facility is relevant for determining whether there was a liberty interest and while confined in the SHU, Plaintiff was subject to inadequate mental health care, assaulted by other prisoners, deprived of meals, deprived adequate medical care, assaulted by officers, sleep deprived, and deprived of phone calls and family visits during the pandemic. (Dkt. No. 142 at 1-4.)
Plaintiff is cautioned that in the future he should seek advance leave to file a surreply. N.D.N.Y. L.R. 7.1(a)(1).
C. Plaintiff's Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Plaintiff in his Statement of Material Facts and not denied by Defendants in their response. (Compare Dkt. No. 119 at 8-13 [Pl.'s Statement of Material Facts], with Dkt. No. 131, Attach. 5 [Defs.' Resp.].)
August 2018 Disciplinary Hearing
1. At the time of rendering his decision, Defendant Dominic knew-from the disciplinary hearing record-that Plaintiff was already serving a 231-day SHU sanction, which was to be followed by 210 days keeplock confinement.
The undersigned deems Defendants' response-referring the Court to the record and failing to admit or deny the fact asserted, which relates to Defendant Dominic's knowledge and thus, cannot be found in the disciplinary history-an admission. First, Defendants fail to include a specific citation to the record to support a denial. Fed.R.Civ.P. 56(c)(1)(A) (requiring a citation to “particular parts of materials in the record”) (emphasis added); N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Rizzo v. Health Research, Inc., 12-CV-1397, 2016 WL 632546, at *2 (N.D.N.Y. Feb. 16, 2016) (“Of these 136 denials, 117 denials do not contain a specific citation to the record. Therefore, the facts ‘denied' by these paragraphs will be deemed admitted.”). Second, Defendants fail to indicate with specificity what is disputed. See N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”) (emphasis added); Willis v. Cnty. of Onondaga, 14-CV-1306, 2016 WL 7116126, at *5 n.10 (N.D.N.Y. Dec. 6, 2016) (“This partial denial is ineffective . . . [because] it fails to specify which part of the fact is denied as required by Local Rule 7.1(a)(3).”); In re Horowitz, No. 14-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“[A] response contending to neither admit or deny an allegation does not create a genuine issue of fact.”).
2. Defendant Dominic imposed a penalty of 60 days SHU.
3. In his appeal, Plaintiff requested that the 60-day SHU sanction to be modified or dismissed arguing that SHU confinement has a detrimental impact on prisoners' mental health.
See, supra, note 6. The Court notes that Defendants appear to cite to the same document as Plaintiff, albeit, in a different location of the record. (Compare Dkt. No. 119 at 8, ¶ 3 [citing Dkt. No. 119, Attach. 1 at 3], with Dkt. No. 131, Attach. 5 at ¶ 3 [citing Dkt. No. 131, Attach. 1 at 3].)
4. Defendant Woodruff, the Deputy Superintendent of Security, reviewed the disposition and made no change to the penalty.
5. At the time of rendering his decision, Defendant Woodruff knew-from the disciplinary hearing record-that Plaintiff was already serving a 231-day SHU sanction.
See, supra, note 6.
6. Defendant Venettozzi reviewed the disciplinary hearing record and affirmed the 60-day SHU sanction.
7. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-that Plaintiff was already serving a 231-day SHU sanction.
See, supra, note 6.
8. Plaintiff served the 60-day SHU sanction from November 5, 2018, to January 4, 2019.
September 2018 Disciplinary Hearing
Referred to as the “October 2018 Disciplinary Hearing” by Plaintiff. (Dkt. No. 5 at 9.)
9. On September 28, 2018, Plaintiff informed Defendant Cantwell at the hearing that he would like to be assigned an Employee Assistant.
10. On October 3, 2018, Defendant Lownsbury, who was assigned as Plaintiff's Employee Assistant, initially met with Plaintiff.
11. Plaintiff requested that Defendant Lownsbury obtain DOCCS procedures for preserving evidence and testing a substance to determine the presence of urine.
See, supra, note 6.
12. Defendant Lownsbury did not provide Plaintiff any information for preserving evidence or testing a substance to determine the presence of urine.
Defendants failed to properly respond to this asserted fact by admitting, denying, or objecting. Fed.R.Civ.P. 56(e)(2) (“If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion ....”); N.D.N.Y. L.R. 7.1(a)(3) (“The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”); In re Horowitz, No. 14-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“[A] response contending to neither admit or deny an allegation does not create a genuine issue of fact.”).
13. Defendant Lownsbury did not mark on the Employee Assistant Form that Plaintiff requested video of the incident.
See, supra, note 12.
14. Defendant Lownsbury did not mark on the Employee Assistant Form that Plaintiff requested a witness.
See, supra, note 12.
15. On October 9, 2018, Defendant Cantwell conducted the hearing in Plaintiff's absence.
16. Defendant Cantwell noted in his decision that the standard operating procedures for urinalysis were inappropriate or unwarranted under the circumstances.
See, supra, note 12.
17. Defendant Cantwell imposed a penalty of 250 days confinement in the SHU.
18. At the time of rendering his decision, Defendant Cantwell knew-from the disciplinary hearing record-that Plaintiff was already serving a 120-day SHU sanction.
See, supra, note 6.
19. Defendant Uhler failed to review the hearing record as required by DOCCS' policy when the SHU sanction exceed 30 days.
Defendants deny this fact and cite to Dkt. No. 120, Attach. 6 at 12-13 in support of their denial. However, the undersigned cannot locate support to dispute Plaintiff's asserted fact at Dkt. No. 120, Attach. 6 at 12-13.
20. In his appeal, Plaintiff argued he was denied an Employee Assistant, the right to be present at the hearing, and the right to present evidence including a witness.
See, supra, note 12.
21. In his supplemental appeal, Plaintiff mentioned (a) his grievance dated October 12, 2018, which related to the incident that occurred on October 9, 2018, and resulted in his absence from the disciplinary hearing, and (b) the video depicting the incident.
Plaintiff's supplemental appeal dated October 29, 2018, is located in the record at Dkt. No. 119, Attach. 1 at 37. Plaintiff incorrectly refers to it as “Exh. 4” however, it is located in a series of pages immediately following a page that he titled “Exhibit 3.” (Compare Dkt. No. 119, Attach. 1 at 36-37, with Dkt. No. 119, Attach. 1 at 38.)
22. On November 28, 2018, Defendant Venettozzi reviewed the disciplinary hearing record and affirmed the 250-day SHU sanction.
23. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-that Plaintiff was already serving a 120-day SHU sanction.
See, supra, note 6.
24. Defendant Venettozzi affirmed the 250-day SHU sanction.
25. Plaintiff served the 250-day SHU sanction from on or about January 4, 2019, to on or about September 12, 2019.
January 2019 Disciplinary Hearing
26. Video of the incident shows Plaintiff complaining about the waist shackles.
27. At the time of rendering his decision, Defendant Tatro knew-from the disciplinary hearing record-that Plaintiff was already serving a 250-day SHU sanction.
See, supra, note 6.
28. Defendant Tatro imposed a penalty of 14 days SHU.
29. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-that Plaintiff was already serving a 250-day SHU sanction.
See, supra, note 6.
30. Plaintiff served the 14-day SHU sanction from September 11, 2019, to September 25, 2019.
February 2019 Disciplinary Hearing
31. At the time of rendering his decision, Defendant Woodruff knew-from the disciplinary hearing record-that Plaintiff was already serving a 264-day SHU sanction.
See, supra, note 6.
32. Defendant Woodruff imposed a 250-day SHU sanction.
33. Defendant Venettozzi affirmed the 250-day SHU sanction on appeal.
34. Plaintiff served the 250-day SHU sanction from September 25, 2019, to June 1, 2020.
35. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-that Plaintiff was already serving a 265-day SHU sanction.
See, supra, note 6.
July 2019 Disciplinary Hearing
Referred to as the “August 2019 Disciplinary Hearing” by Plaintiff. (Dkt. No. 119 at 11.)
36. At the time of rendering his decision, Defendant Barbosa knew-from the disciplinary hearing record-that Plaintiff was consecutively confined in SHU since January 10, 2018.
See, supra, note 6.
37. At the time of rendering his decision, Defendant Barbosa knew-from the disciplinary hearing record-that Plaintiff was already serving a 514-day SHU sanction.
See, supra, note 6.
38. Defendant Barbosa imposed a penalty of 300-days in the SHU based on the misbehavior report issued by Sergeant Roth.
See, supra, note 12.
39. Defendant Barbosa imposed a penalty of 150-days in the SHU for the misbehavior reports issued by non-parties Huntley and Chandler.
See, supra, note 12.
40. In his appeal, Plaintiff requested that the 300-day SHU sanction and 150-day SHU sanction to be reduced because they were disproportionate to the alleged offenses.
41. Defendant Fennessy reviewed the disposition and made no change to the 300-day SHU sanction.
42. At the time of rendering his decision, Defendant Fennessy knew-from the disciplinary hearing record-that Plaintiff was already serving a 514-day SHU sanction.
See, supra, note 6.
43. Defendant Venettozzi affirmed the 300-day SHU sanction on appeal.
44. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-that Plaintiff was confined in SHU consecutively since January 10, 2018.
See, supra, note 6.
45. At the time of rendering his decision, Defendant Venettozzi knew-from the disciplinary hearing record-Plaintiff was already serving a 514-day SHU sanction.
See, supra, note 6.
46. Plaintiff served the 300-day SHU sanction and the 150-day SHU sanction, respectively.
May 2021 Disciplinary Hearing
47. Defendant Cantwell imposed a 90-day SHU sanction.
48. At the time of rendering his decision, Defendant Cantwell knew-from the disciplinary hearing record-Plaintiff was already serving a 525-day SHU sanction.
See, supra, note 6.
49. Defendant Uhler reviewed the hearing disposition and made no change to the 90-day SHU sanction penalty.
50. At the time of rendering his decision, Defendant Uhler knew-from the disciplinary hearing record-Plaintiff was already serving a 525-day SHU sanction.
See, supra, note 6.
51. Acting Director of Special Housing/Inmate Disciplinary Program A. Rodriguez affirmed the 90-day SHU sanction on appeal.
52. At the time of rendering his decision, Acting Director of Special Housing/Inmate Disciplinary Program A. Rodriguez knew-from the disciplinary hearing record-that Plaintiff was already serving a 525-day SHU sanction.
See, supra, note 6.
53. In his appeal, Plaintiff argued that (a) he was improperly excluded from the disciplinary hearing,(b) SHU confinement should not have been imposed for the offenses, (c) he had been confined in SHU for more than three consecutive years, is expected to remain confined until 2025, and isolated confinement has a long-term physical and psychological consequences, and (d) the penalty of 90-days in the SHU was disproportionate to the alleged offenses.
See, supra, note 6.
D. Defendants' Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No. 120, Attach. 7 [Defs.' Statement of Material Facts], with Dkt. No. 137 [Pl.'s Resp.].)
1. Plaintiff is in the midst of serving a prison sentence based on his convictions for rape in the first degree, criminal sexual act in the first degree, burglary in the first degree, robbery in the first degree, and sexual abuse in the first degree.
2. Plaintiff commenced the present action by the filing of a Complaint on August 11, 2021.
3. Defendant Jennifer Gravell is employed by the New York State Office of Mental Health (“OMH”) as a Rehabilitation Counselor.
Although Plaintiff responds that he lacks “sufficient knowledge to admit or deny this fact,” the undersigned deems this fact admitted. Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (Suddaby, J.) (“On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute.”); In re Horowitz, 14-CV-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“On a motion for summary judgment, denials based on a lack of knowledge or information sufficient to form a belief are insufficient to contest a disputed fact .... Similarly, a response contending to neither admit or deny an allegation does not create a genuine issue of fact.”).
4. Defendant Gravell has been employed by OMH since 2015.
See, supra, note 37.
5. Defendant Gravell works at the Central New York Psychiatric Center mental health unit located at Upstate Correctional Facility.
See, supra, note 37.
6. As a Rehabilitation Counselor, Defendant Gravell's duties include conducting rounds, providing mental health counseling, and assessing risk factors.
See, supra, note 37.
7. With respect to Special Housing Unit/Long Term Keep Lock, incarcerated individuals receive an intake evaluation, a 30-day evaluation, and an evaluation every 90 days. In addition, mental health interviews are done in response to referrals and if an incarcerated individual requests one.
8. Defendant Gravell also makes rounds twice a week and incarcerated individuals can verbally request a mental health interview.
Although Plaintiff attempts to place this asserted fact in context, the Local Rules direct that “[t]he opposing party['s] response shall . . . admit[] and/or deny[] each of the movant's assertions . . . in matching numbered paragraphs.” N.D.N.Y. L.R. 56.1(b). Thus, the undersigned deems this fact admitted. Yetman v. Capital Dis. Trans. Auth., 12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015) (citing authority for the point of law that the summary judgment procedure involves the disputation of asserted facts, not the disputation of implied facts); cf. Baity v. Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (noting that plaintiff's responses failed to comply with the court's local rules where “Plaintiff's purported denials . . . improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants' asserted facts without specifically controverting those same facts”); Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case the object of which is to ‘spin' the impact of the admissions plaintiff has been compelled to make”).
9. Defendants contend that incarcerated individuals are offered the opportunity for a private OMH interview in a private interview room; if an incarcerated individual refuses a private interview, OMH staff will follow up about why the incarcerated individual did not want a private interview.
10. The procedure for a mental health interview includes filling out a mental status examination report covering such categories as appearance and attitude, orientation, attention and memory impairment, mood, speech, affect, thought, perception, suicidal/homicidal ideations, prison-specific risk factors, warning signs of imminent suicide risk, insight/judgment, psychiatric history, inmate/patient participation in the evaluation process, and disposition.
See, supra, note 37.
11. Plaintiff was seen by mental health providers for mental health interviews on: April 16, 2021; May 4, 2021; May 24, 2021; July 15, 2021; August 9, 2021; August 19, 2021; September 1, 2021; September 8, 2021; September 30, 2021; October 28, 2021; December 14, 2021; December 21, 2021; and January 13, 2022.
See, supra, note 41.
12. Defendant Gravell performed an intake evaluation of Plaintiff on May 4, 2021. According to Defendant Gravell (a) Plaintiff refused a private interview and indicated that he had no concerns, and (b) there were no warning signs of imminent suicide risk, and no indication for active mental health services.
13. On May 24, 2021, Defendant Gravell conducted a private interview with Plaintiff. According to Defendant Gravell, Plaintiff reported no mental health symptoms, there were no warning signs of imminent suicide risk, and no indication for active mental health services.
14. The record from Plaintiff's mental health interview on July 15, 2021, reflects that Plaintiff refused a private interview, there were no warning signs of suicide risk, and Plaintiff “denies any mental health concerns.”
See, supra, note 41.
15. The record from Plaintiff's mental health interview on August 9, 2021, also states that there were no warning signs of imminent suicide risk, and that Plaintiff “did not elaborate regarding any concerns and said he has no mental health concerns.”
See, supra, note 41.
16. The record from Plaintiff's mental health interview on August 19, 2021, states that Plaintiff refused a private interview, that he had “no concerns,” that there were no warning signs of imminent suicide risk, and that there was “[n]o indication for active mental health services.”
See, supra, note 41.
17. The record from Plaintiff's mental health interview on September 1, 2021, states that Plaintiff refused a private interview, refused to speak to Defendant Gravell, there were no warning signs of imminent suicide risk, and there was no indication for active mental health services.
See, supra, note 41.
18. The record from Plaintiff's mental health interview on September 8, 2021, states that Plaintiff refused a private interview, indicated that he had no concerns, there were no warning signs of imminent suicide risk, and no indication for active mental health services.
See, supra, note 41.
19. Plaintiff was seen by Defendant Gravell for a private OMH interview on September 30, 2021. The Mental Health Interview report states that Plaintiff was unable to describe any mental health symptoms, did not appear to be in any acute distress, did not present as anxious or with low mood, remained future oriented and denied any suicidal ideations, and there were no warning signs of imminent suicide risk.
See, supra, note 41.
20. The record from Plaintiff's mental health interview on October 28, 2021, states that Plaintiff refused a private interview, stated that he was doing fine and had no mental health symptoms at that time, he was future oriented and denied any suicidal ideation, there were no warning signs of imminent suicide risk, and there was no indication for active mental health services.
See, supra, note 41.
21. The record from Plaintiff's mental health interview on December 21, 2021, states that Plaintiff refused a private interview, indicated that he had no concerns, there were no warning signs of imminent suicide risk, and no indication for active mental health services.
See, supra, note 41.
22. The record from Plaintiff's mental health interview on January 13, 2022, states that Plaintiff refused a private interview, and indicated that he had no concerns.
23. Based on her clinical judgment, training, and interviews with Plaintiff, Defendant Gravell determined that there were no warning signs that Plaintiff was in imminent danger of harming himself.
24. Plaintiff testified that he is not a clinician so he cannot diagnose whether his mental health condition changed between July 2021 and August 2021, but that “different environments, different people, different stresses” affected him.
September 2018 Disciplinary Hearing
25. On September 21, 2018, Plaintiff received a written misbehavior report by Correction Officer Russell which charged Plaintiff with unhygienic act, interference with an employee, and threats.
26. According to the misbehavior report, while Correction Officer Russell was collecting feed-up trays, Plaintiff “slid his unopened tray that was filled with a yellow liquid that looked and smelled like urine, forcefully into the hatch causing the liquid to slosh and spill onto the floor.”
27. According to the misbehavior report, Plaintiff also stated “I'm gonna knock you out and send you home.”
28. Plaintiff attended the first day of the disciplinary hearing, on September 28, 2018.
29. When the hearing resumed on October 9, 2018, Plaintiff did not attend.
30. Defendant Cantwell-the Hearing Officer-determined that Plaintiff was properly advised of his right to appear and participate in the hearing, but that Plaintiff chose not to appear.
See, supra, note 41.
31. Based on the misbehavior report, Plaintiff was found guilty of unhygienic act, interference with an employee, and threats.
See, supra, note 41.
32. Defendant Cantwell executed a written disposition setting forth the evidence that he relied on and the reasons for the disciplinary action.
See, supra, note 41.
33. Plaintiff met with his assigned employee assistant, Defendant Lownsbury, on or about October 3, 2018.
34. Plaintiff requested the Standard Operating Procedures for preservation of evidence and for urine testing.
35. Defendant Cantwell determined that Plaintiff's request related to urinalysis procedures was “inappropriate and unwarranted under the circumstances.”
January 2019 Disciplinary Hearing
36. On January 23, 2019, Plaintiff received a misbehavior report dated January 22, 2019, by Defendant Lamica, that charged Plaintiff with harassment, refusing a direct order, interference with an employee, threats, movement violation, and creating a disturbance.
37. Plaintiff participated at the disciplinary hearing.
38. As a result of the disciplinary hearing conducted by Defendant Tatro, Plaintiff was convicted of the charges of harassment, refusing a direct order, interference with employee, and threats, and a penalty of 14 days of SHU confinement was imposed.
See, supra, note 41.
39. Plaintiff received a written statement from Defendant Tatro about the evidence relied on and the reasons for the disciplinary action.
See, supra, note 41.
40. The charges of interference with employee (107.10) and threats (102.10) were dismissed on administrative appeal.
See, supra, note 41.
May 2021 Disciplinary Hearing
41. Plaintiff received advance written notice of the charges in the form of a misbehavior report that charged Plaintiff with refusing a direct order, interference, and a movement violation.
42. At the disciplinary hearing, Correction Officer (“C.O.”) Healy testified that when he attempted to transport Plaintiff to the hearing, Plaintiff refused to comply with directions, and Plaintiff told C.O. Healy to “eat a dick.”
43. Defendant Cantwell-the Hearing Officer-found that the hearing should proceed in Plaintiff's absence, because Plaintiff's conduct posed a risk to safety and security, and C.O. Healy testified that Plaintiff was advised that the hearing would proceed in Plaintiff's absence and a sanction could be imposed.
See, supra, note 41.
44. Based on the hearing, Plaintiff was found guilty of refusing a direct order, interference, and a movement violation.
See, supra, note 41.
45. Plaintiff received a written statement from Defendant Cantwell about the evidence relied on and the reasons for the disciplinary action.
See, supra, note 41.
46. Although Plaintiff alleges that he was pushed into a wall by Defendant Hollenbeck on November 25, 2018, Plaintiff concedes that he was not diagnosed with any injuries as a result of allegedly being pushed into the wall.
See, supra, note 41.
47. Plaintiff's medical records reflect that Plaintiff did not seek any medical treatment related to the alleged incident with Defendant Hollenbeck.
See, supra, note 41.
48. Although Plaintiff alleges that on January 22, 2019, Defendant Lamica placed a waist chain on Plaintiff that was too tight, Plaintiff alleges only that it caused a bruise, that the bruise did not require medical treatment, and that the bruise “heal[ed] on its own.”
See, supra, note 41.
49. Defendant Lamica did not strike Plaintiff.
See, supra, note 41.
50. Documents from Upstate Correctional Facility indicate that Plaintiff engaged in a practice of refusing to comply with feed-up procedures by, among other things, refusing to collect his tray, standing with his back pressed to the door covering his window and feed up hatch, blocking the hatch with his hands, and appearing as though he was going to throw something onto the officer feeding the gallery.
51. Plaintiff's medical records are devoid of any indication that Plaintiff suffered from health problems due to a lack of food during the time period that he alleges he was denied some meals by Defendant Hollenbeck.
See, supra, note 41.
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing “Three Strikes” Rule and the Imminent Danger Exception
Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of four hundred and two dollars ($402.00). The Court must also determine whether the “three strikes” provision of Section 1915(g) bars the plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically, Section 1915(g) provides as follows:
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee . . . at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
The manifest intent of Congress in enacting Section 1915(g) was to curb prison inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007). The question of whether a prior dismissal is a “strike” is a matter of statutory interpretation and, as such, is a question for the court to determine as a matter of law. Tafari, 473 F.3d at 442-43.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
The “imminent danger” exception protects a prison inmate exposed to potential “serious physical injury” from the consequences of his earlier mistakes in filing frivolous litigation. Congress enacted the imminent danger exception contained in the final phrase of § 1915(g) as a “safety valve” to prevent impending harms to prisoners otherwise barred from proceeding in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). “[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint-in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation omitted); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (imminent danger claims must be evaluated at the time the complaint is filed, rather than at the time of the events alleged). In addition, “§ 1915(g) allows a three-strikes litigant to proceed [in forma pauperis] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit instructs the courts to consider “(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint, and (2) whether a favorable judicial outcome would redress that injury.” Id. at 298-99. Both requirements must be met in order for the three strikes litigant to proceed in forma pauperis. Id.
Generally speaking, the allegations relevant to the imminent danger inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). Although the Second Circuit has cautioned against “an overly detailed inquiry into whether the allegations qualify for the exception,” id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)), when a defendant challenges a prisoner's claim of imminent danger, a district court may “reexamine” its provisional determination of imminent danger and “conduct a narrow evidentiary inquiry into the prisoner-litigant's fear of imminent danger” at the time of filing. Shepherd v. Annucci, 921 F.3d 89, 94-95 (2d Cir. 2019). If the evidentiary submissions show the plaintiff's explanation for why he was in imminent danger to be “ridiculous,” “conclusory,” or “without foundation[,]” the district court may revoke the plaintiff's previously granted IFP status. Sheperd, 921 F.3d at 95, 97; see also Chavis, 618 F.3d at 170 (quoting Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)) (“A court may find that a complaint does not satisfy the ‘imminent danger' exception if the complainant's ‘claims of imminent danger are conclusory or ridiculous.'”); Nelson v. Nesmith, 06-CV-1177, 2008 WL 3836387, at *5 (N.D.N.Y. Aug. 13, 2008) (McAvoy, J.) (“The imminent danger claimed by the inmate . . . must be real, and not merely speculative or hypothetical.”); accord, Welch v. Selsky, 06-CV-0812, 2008 WL 238553, at *5 (N.D.N.Y. Jan 28, 2008) (Kahn, J.); Gamble v. Maynard, 06-CV-1543, 2008 WL 150364, at *4 (N.D.N.Y. Jan. 14, 2008) (Hurd, J.).
B. Standard Governing A Motion For Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
III. ANALYSIS
After carefully considering the matter, I recommend that Plaintiff's motion for partial summary judgment be denied, Defendants' motion to revoke Plaintiff's IFP status be denied, and Defendants' motion for summary judgment be granted in part and denied in part.
A. Motion to Revoke IFP Status
Although the Court initially found that the allegations in the Complaint were sufficient to plausibly suggest that Plaintiff was under imminent danger of physical injury when he signed his Complaint on August 1, 2021, there appears to be an issue of fact before the Court now about the veracity of several of Plaintiff's allegations.
More specifically, Defendants presented medical records and a sworn statement from Defendant Gravell indicating that Plaintiff (1) refused private interviews, and (2) stated that he had no mental health concerns on multiple occasions. (Dkt. No. 121 at 3-34; Dkt. No. 121, Attach. 3 at ¶¶ 8, 10-15.) However, Plaintiff presented sworn statements that he did not refuse private interviews or express that he had no concerns. (Dkt. No. 137 at 10-16.) Instead, Plaintiff swore under penalty of perjury that he informed Defendant Gravell that he was not alright, she assured him that he would be placed on a callout to conduct an interview, but that he was never placed on a callout for a private interview. (Id. at 12.)
The determination of whether Plaintiff was denied mental health treatment between May 2021 and the filing of his Complaint in August 2021, is integral to the determination of whether he was in imminent danger of serious physical injury at the time he filed the Complaint. Moreover, there appears to be a dispute of fact whether Plaintiff's financial status has substantially changed since the IFP determination.
As a result, I recommend that Defendants' motion for revocation of Plaintiff's IFP status be denied pending “a narrow evidentiary inquiry into [Plaintiff]'s fear of imminent danger” at the time of filing, pursuant to Shepherd v. Annucci, 921 F.3d 89, 94-95 (2d Cir. 2019). See Bradshaw v. Phillip, 21-CV-0776, 2022 WL 504976, at *3 (N.D.N.Y. Feb. 18, 2022) (Suddaby, C.J.) (holding an evidentiary hearing on the defendants' motion to revoke the plaintiff's IFP status); Bradshaw v. Gordon, 21-CV-0645, 2022 WL 504974, at *3 (N.D.N.Y. Feb. 18, 2022) (Suddaby, C.J.) (same).
B. Motions for Summary Judgment
1. Retaliation Claim Against Defendant Lamica
“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.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second Circuit has repeatedly cautioned, “[c]ourts properly approach prisoner retaliation claims ‘with skepticism and particular care,' 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.'” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see also Phelps v. Kapnolas, 308 F.3d 180, 187 n. 6 (2d Cir. 2002).
“[A]dverse action” for the purposes of a retaliation claim has been defined as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights . . . [o]therwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).
To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors, including “(1) the outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements made by the defendant concerning his motivation; and[] (4) the temporal proximity between the protected activity and the defendant's adverse action.” Williams v. Muller, 98-CV-5204, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) abrogated, in part, on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d 2020)). However, with respect to temporal proximity at the summary judgment stage, the Second Circuit has “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017).
Here, Defendants only challenge the second and third elements of Plaintiff's retaliation claim. (Dkt. No. 120, Attach. 8 at 22-23.) However, the undersigned notes that Plaintiff's use of the prison grievance system constituted protected speech for purposes of his retaliation claim. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (“[T]he use of the prison grievance system” is constitutionally protected conduct under the First Amendment.); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (holding that “retaliation against a prisoner for pursuing a grievance violates the right to petition the government for redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”).
I find that a genuine issue of fact remains for trial regarding whether Defendant Lamica took an adverse action against Plaintiff during the escort incident of January 22, 2019. It is well-settled that excessive force constitutes an adverse action for the purposes of a retaliation analysis. Baskervill v. Blot, 224 F.Supp.2d 723, 731-32 (S.D.N.Y. 2022) (“[The plaintiff's] claim regarding the retaliatory assault sufficiently describes adverse conduct that would deter a reasonable inmate from exercising his constitutional rights.”); see Flemming v. King, 14-CV-0316, 2016 WL 5219995, at *5 (N.D.N.Y. June 20, 2016) (Hummel, M.J.) (“[T]he alleged assault need not rise to the level of an Eighth Amendment excessive force violation in order to be considered an adverse action for purposes of First Amendment retaliation analysis.”), report and recommendation adopted by, 2016 WL 5173282 (N.D.N.Y. Sept. 21, 2016) (Hurd, J.).
Defendants submitted video of the escort during which, Plaintiff can be heard complaining about the waist-chain. (Dkt. No. 134.) In addition, Plaintiff testified that Defendant Lamica put handcuffs on Plaintiff, wrapped the waist chain around Plaintiff's ribs, squeezed the chain, when Plaintiff complained of the squeeze, Defendant Lamica squeezed more, which made the chain tighter, and twisted the chain as they were walking, which caused Plaintiff pain. (Dkt. No. 120, Attach. 2 at 43-44.) Plaintiff testified that this incident aggravated a rib injury that he previously sustained and caused him pain. (Id. at 45-46.)
Plaintiff testified that Defendant Lamica referenced Plaintiff's grievance during the escort on January 22, 2019. (Dkt. No. 120, Attach. 2 at 45-46.) More specifically, Plaintiff's verified Amended Complaint alleged that Defendant Lamica instructed Plaintiff that the next time he writes a grievance about Defendant Lamica, to make sure that Plaintiff files the grievance against “R. Lamica” because there are other officers with the last name Lamica. (Dkt. No. 43 at ¶ 137.)
A reasonable jury could credit Plaintiff's testimony and find that (1) Defendant Lamica took an adverse action against Plaintiff, and (2) a causal connection between Plaintiff's protected speech and the allegedly adverse action. As a result, I recommend that Defendants' motion for summary judgment on Plaintiff's retaliation claim against Defendant Lamica be denied.
2. Excessive Force Claims Against Defendants Hollenbeck and Lamica
Inmates enjoy Eighth Amendment protection against the use of excessive force and may recover damages for its violation under 42 U.S.C. § 1983. Hudson v. McMillian, 503 U.S. 1, 910 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the “unnecessary and wanton infliction of pain.” Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
To bring a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). The objective element is “responsive to contemporary standards of decency” and requires a showing “that the injury actually inflicted [is] sufficiently serious to warrant Eighth Amendment protection.” Hudson, 503 U.S. at 8 (internal quotation marks and citation omitted); Blyden, 186 F.3d at 262. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Sims, 230 F.3d at 22 (internal quotation marks, alteration, and citation omitted). However, “the malicious use of force to cause harm[ ] constitute[s] [an] Eighth Amendment violation per se” regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). “The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10 (internal quotation marks and citations omitted). “The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.” Id. at 7.
The subjective element requires a plaintiff to demonstrate the “necessary level of culpability, shown by actions characterized by wantonness.” Sims, 230 F.3d at 21 (internal quotation marks and citations omitted). Thus, the key inquiry into a claim of excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically [to] cause[ ] harm.” Hudson, 503 U.S. at 7 (internal quotation marks and citations omitted); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (Observing that the Supreme Court has emphasized that the nature of the force applied is the “core judicial inquiry” in excessive force cases-“not whether a certain quantum of injury was sustained.”) (internal quotation marks and citation omitted). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider:
the extent of the injury and the mental state of the defendant[;] . . . the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful responseScott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (internal quotation marks and citations omitted).
a. Defendant Hollenbeck
Viewing the evidence in the light most favorable to Plaintiff, the undersigned declines to recommend dismissal of Plaintiff's excessive force claim against Defendant Hollenbeck because genuine issues of material fact remain for trial. I reject Defendants' argument that the force used was inherently de minimis based on Plaintiff's minimal injury and failure to obtain a medical diagnosis or treatment. (Dkt. No. 120, Attach. 8 at 20.) As set forth above, “[t]he absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.” Hudson, 503 U.S. at 7.
Plaintiff testified that on November 25, 2018, Defendant Hollenbeck pushed into Plaintiff's back causing Plaintiff's upper torso to hit the wall. (Dkt. No. 120, Attach. 2 at 53-54.) Plaintiff testified that his upper torso hitting the wall was very painful. (Id. at 55.) Defendants do not appear to contest any component of Plaintiff's excessive force claim other than that the force was too de minimis to support an excessive force claim. (Dkt. No. 120, Attach. 8 at 19-20; Dkt. No. 138, Attach. 2 at 5.) A reasonable jury could credit Plaintiff's testimony that the push caused him significant pain. See also Abascal v. Fleckenstein, 06-CV-349S, 2012 WL 638977, at *6 (W.D.N.Y. Feb. 27, 2012) (“Plaintiff's purported bruise is certainly ‘slight,' and his allegation of a single elbow blow to his side is also ‘weak.' Crediting Plaintiff's version of events, however, as the Court must in considering Defendants' motion for summary judgment, [the Defendant]'s brief assault was completely unprovoked and unrelated to any effort to maintain or restore discipline.”) (internal citations omitted); Felder v. Steck, 10-CV-0578, 2013 WL 144945, at *3-4 (W.D.N.Y. Jan. 11, 2013) (denying summary judgment where the plaintiff alleged that he was punched repeatedly about the head without provocation resulting in bruising and swelling that he did not report until two weeks later).
As a result, I recommend that Defendants' motion for summary judgment of Plaintiff's excessive force claim against Defendant Hollenbeck be denied.
While I express no view on the ultimate merits of Plaintiff's excessive force claims, if successful, “the relatively modest nature of his alleged injuries will no doubt limit the damages he may recover.” Wilkins v. Gaddy, 559 U.S. 34, 40 (2010).
b. Defendant Lamica
“While handcuffs must be reasonably tight to be effective, overly tight handcuffing may constitute excessive force.” Burroughs v. Petrone, 138 F.Supp.3d 182, 213 (N.D.N.Y. 2015) (Hurd, J.) (internal quotation marks and citation omitted). For example, in Davidson, the plaintiff alleged that correction officers “placed . . . handcuffs and leg irons and waist chain on [him] so tight as to cut into [his] flesh[,] reduce circulation[,] and cause swelling,” which left a scar on his right ankle and numbness in the area, and caused his “wrists [to be] numb for several months afterwards.” Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). Further, the plaintiff alleged that the defendants purposefully placed the handcuffs and chains too tightly in retaliation for filing lawsuits, and that they refused his requests to loosen the restraints. Davidson, 32 F.3d at 29, 30. The Second Circuit concluded that the plaintiff's complaint in Davidson
plainly allege[d] both the objective and subjective components of a cause of action for an Eighth Amendment violation: the handcuffs were allegedly placed on the plaintiff too tightly, leading to serious and permanent physical injury (the objective component), and such excessive force was applied to the plaintiff wantonly and maliciously in retaliation for being a litigious inmate (the subjective component).Id. at 30 (internal quotation marks and brackets omitted).
“By contrast, courts routinely dismiss claims of excessive force based on tight handcuffing where an inmate asserts only a de minimis injury without plausible allegations of wantonness or maliciousness.” Livingston v. Hoffnagle, 19-CV-0353, 2019 WL 7500501, at *4-5 (N.D.N.Y. Nov. 8, 2019) (Hummel, M.J.), report and recommendation adopted by, 2020 WL 95431 (N.D.N.Y. Jan. 8, 2020) (Sharpe, J.). For example, in Wilson v. Woodbourne Corr. Facility, the Pro Se inmate alleged only that the defendants used excessive force by applying “handcuffs . . . too tightly when escorting [him].” Wilson v. Woodbourne Corr. Facility, 11-CV-1088, 2012 WL 1377615, at *4 (N.D.N.Y. Mar. 21, 2012) (Baxter, M.J.), report and recommendation adopted by, 2012 WL 1366590 (N.D.N.Y. Apr. 19, 2012) (Hurd, J.). The court there noted the absence of any facts in the complaint alleging that the defendant correction officers were aware that the restraints were causing pain or that the plaintiff requested the restraints to be loosened. Wilson, 2012 WL 1377615, at *4.
Here, although the evidence presently before the Court indicates that the injury that Plaintiff sustained as a result of Defendant Lamica's alleged twisting of the waist chain was de minimis, that does not end the inquiry. Livingston, 2019 WL 7500501, at *5 (citing Warren v. Purcell, 03-CV-8736, 2004 WL 1970642, at *8 (holding that temporary pain, numbness, and swelling as a result of tight handcuffing was “more than likely to prove de minimis”); Ruggiero v. Fisher, 15-CV-0962, 2018 WL 7892966, at *7 (W.D.N.Y. Sept. 27, 2018) (temporary discomfort resulting from tight restraints held to be de minimis); Hudson v. McMillian, 503 U.S. 1, 9 (1992)) (holding that the plaintiff's allegations that the “tight” handcuffs and chain caused “soreness” was de minimis but did not end the Eighth Amendment inquiry).
Plaintiff testified that Defendant Lamica squeezed Plaintiff with the chain, when Plaintiff complained, Defendant Lamica squeezed further, which made the chain even tighter; then Defendant Lamica wrapped the chain around Plaintiff's ribs, put his hand in between the chain, twisted it, and kept twisting it as they walked. (Dkt. No. 120, Attach. 2 at 44.) Plaintiff testified that the twisting caused him pain, which caused him to complain that it was hurting him, but that Defendant Lamica “kept on and insisted.” (Id.) Plaintiff testified that he told Defendant Lamica the chain was too tight around his waist. (Id. at 45.)
In addition, the videos submitted by Defendants show Plaintiff complaining about the chains being too tight. (Dkt. No. 134.)
Based on this evidence, the undersigned finds that a genuine issue of material fact remains for trial regarding whether the use of force was malicious and done for the purpose to cause harm. Livingston, 2019 WL 7500501, at *5 (citing Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (“[T]he malicious use of force to cause harm constitutes an ‘Eighth Amendment violation per se . . . whether or not significant injury is evident.'”)) (finding that, at the motion to dismiss stage, allegations that the plaintiff asked the defendants to loosen the chains and handcuffs over 10 times, complained about the tightness and soreness, and that the defendants ignored his pleas and cries to loosen the chains and handcuffs, sufficiently alleged facts plausibly suggesting that the use of force was malicious and done for the purpose to cause harm). As a result, I recommend that Defendants' motion for summary judgment of Plaintiff's excessive force claim against Defendant Lamica be denied.
See, supra, note 75.
3. Conditions-of-Confinement Claim Against Defendant Hollenbeck
“[U]nder certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.'” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983); see also Jackson v. Marks, 722 Fed.Appx. 106, 107 (2d Cir. 2018) (summary order) (“[A] substantial deprivation of food can cause serious physical harm sufficient to find cruel and unusual punishment in violation of the Eighth Amendment.”). “To demonstrate that the conditions of his confinement constitute cruel and unusual punishment, the plaintiff must satisfy both an objective test and a subjective test.” Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). “To satisfy the objective element, the plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs.” Burroughs v. Mitchell, 325 F.Supp.3d 249, 272 (N.D.N.Y. 2018) (quotations marks and citation omitted). “[T]he inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). As to the subjective prong, “the plaintiff must demonstrate that the defendants imposed those conditions with ‘deliberate indifference.'” Jolly, 76 F.3d at 480 (citation omitted). “To constitute deliberate indifference, ‘[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety.'” Walker, 717 F.3d at 125 (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)).
The undersigned rejects Defendants' argument suggesting that Plaintiff deserved to be denied meals because of his prior “calculated practice of refusing to comply with feed-up procedures.” (Dkt. No. 120, Attach. 8 at 24.) Plaintiff testified under penalty of perjury that he did not refuse to comply with feed up procedures. (Dkt. No. 120, Attach. 2 at 58-59.) As a result, I find that a genuine dispute of material fact remains for trial whether Plaintiff's actions constituted a refusal of meals.
Moreover, I reject Defendants' argument that no genuine dispute of material fact exists with respect to the objective element of Plaintiff's conditions-of-confinement claim.
Defendants presented Plaintiff's medical records to support their argument that the alleged missed meals did not present an immediate danger to Plaintiff's health or well-being. (Dkt. No. 120, Attach. 8 at 24 [citing Dkt. No. 121, Attach. 1 at 245-250].) Plaintiff swore under penalty of perjury in his verified Amended Complaint that the missed meals caused his “symptoms and stomach condition . . . to worsen.” (Dkt. No. 43 at 4, ¶ 29; Dkt. No. 43 at 6 ¶ 45.) “A condition is serious for constitutional purposes if it presents ‘a condition of urgency that may result in degeneration or extreme pain.'” Lewis v. Zon, 920 F.Supp.2d 379, 387 (W.D.N.Y. 2013) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1988)). Although it is unclear whether Plaintiff's conclusory assertions would be sufficient at this juncture, for the reasons set forth below, I recommend that Defendants' motion for summary judgment of Plaintiff's conditions-of-confinement claim be denied. C.f. Sankara v. Montgomery, 16-CV-0885, 2018 WL 4610686, at *9 (N.D.N.Y. June 25, 2018) (Dancks, M.J.) (finding that the plaintiff's testimony that he was “hungry and emotionally frustrated” as a result of the missed meals was insufficient to sustain an Eighth Amendment conditions-of-confinement claim), report and recommendation adopted by, 2018 WL 3408135 (N.D.N.Y. July 13, 2018) (Scullin, J.).
The Court notes that the handwriting in the cited medical records is largely indecipherable.
In his opposition, Plaintiff asserted that he developed GERD as a result of the missed meals. (Dkt. No. 137 at 27 [citing “Dkt. No. 121: Exh 3 at Bates No. 459-568”].) However, the undersigned's review of the medical records that Plaintiff appears to cite does not reveal support for a GERD diagnosis. (Dkt. No. 121, Attach. 1 at 460-487 [note that “Exhibit 3” contained in Dkt. No. 121 includes documents bates stamped 001 through 486].) In addition, the undersigned could not independently locate admissible evidentiary support in the record for Plaintiff's contention that he was diagnosed with GERD as a result of the missed meals.
Although, “being denied a single meal does not give rise to a constitutional deprivation,” Rush v. Fischer, 923 F.Supp.2d 545, 555-56 (S.D.N.Y. 2013), aff'd sub nom. Rush v. Canfield, 649 Fed.Appx. 70 (2d Cir. 2016) (summary order) (collecting cases) (citations omitted), “[w]hen a prison guard deprives a prisoner of two of the regularly three meals served each day, the objective prong of the Eighth Amendment may be met if the defendants do not satisfy their burden of showing that the one meal is nutritionally adequate.” Beckford v. Portuondo, 151 F.Supp.2d 204, 213 (N.D.N.Y. 2001) (Kahn, J.) (citing Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977) (deprivation of two meals a day establishes “substantial deprivation of . . . food normally served,” shifting burden to defendants to establish that one meal was nutritionally adequate)).
Plaintiff set forth in his verified Amended Complaint that Defendant Hollenbeck deprived him of breakfast and lunch on the following ten dates: (1) November 26, 2018, (2) December 2, 2018, (3) December 7, 2018, (4) December 8, 2018, (5) December 13, 2018, (6) December 26, 2018, (7) December 31, 2018, (8) January 4, 2019, (9) January 7, 2019, and (10) January 8, 2019. (Dkt. No. 43 at 4, ¶ 28; Dkt. No. 43 at 5, ¶ 42.) Plaintiff swore under penalty of perjury that, as a result, he ate once during the twenty-four hour periods of those dates. (Dkt. No. 43 at 4, ¶ 28.)
“Defendants have offered no evidence as to ‘whether the [allegedly] one meal actually provided [to P]laintiff was sufficient to maintain normal health,” therefore there is a material question of fact whether Plaintiff was substantially deprived food in violation of the Eighth Amendment.” Abascal, 2012 WL 638977, at *3 (quoting Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977); citing Williams v. Coughlin, 875 F.Supp. 1004, 1008 (W.D.N.Y. 1995)); see Benitez v. Salotti, 16-CV-6219, 2020 WL 1703208, at *10 (W.D.N.Y. Apr. 8, 2020) (denying the defendants' motion for summary judgment where the record contained evidence that the plaintiff “was deprived of two out of three meals over a three day period”); Simmons v. Kelly, 06-CV-6183, 2009 WL 857410, at *8 (S.D.N.Y. Mar. 31, 2009) (citing Tavarez-Guerrero v. Toledo-Davila, 573 F.Supp.2d 507, 512-13 (D. P.R. 2008)) (denying the defendants' motion to dismiss the plaintiff's claim that he was deprived food for approximately thirty hours because “courts have held that a deprivation of as little as seventeen hours has constitutional implications.”); Beckford v. Portuondo, 151 F.Supp.2d at 213 (finding that a claim of deprivation of two of three meals per day for a period of eight days survived a motion for summary judgment). The parties have not yet developed the record on this issue, and I cannot conclude, at this time, that no rational jury could find in favor of Plaintiff on the issue of the seriousness of the deprivation.
Moreover, assuming the allegations contained in Plaintiff's verified Amended Complaint to be true, as the Court must, the number of denied meals in the approximately six-week period, is sufficient to raise an inference that Defendant Hollenbeck was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed] from the denial of those meals and that he drew such an inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
As a result, I recommend that Defendants' motion for summary judgment of Plaintiff's conditions-of-confinement claim be denied.
4. Medical Indifference Claims Against Defendants Gravell and Waldron
Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove ‘deliberate indifference to [his] serious medical needs.'” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle, 429 U.S. at 104). This standard contains objective and subjective components. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003).
“First, the alleged deprivation must be, in objective terms, sufficiently serious.” Chance, 143 F.3d at 702 (internal quotation marks and citations omitted). Determining whether a deprivation qualifies as objectively serious entails two inquiries: (1) “whether the prisoner was actually deprived of adequate medical care” and (2) “whether the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).
“Second, the defendant must act with a sufficiently culpable state of mind.” Chance, 143 F.3d at 702 (internal quotation marks and citations omitted). That is, the plaintiff must demonstrate the defendant “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 832, 844 (1994); see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (With respect to the subjective element, a plaintiff must also demonstrate that defendant had “the necessary level of culpability, shown by actions characterized by ‘wantonness.'”). “Deliberate indifference is a mental state equivalent to subjective recklessness.” Salahuddin, 467 F.3d at 279 (internal citation omitted). “[R]ecklessness entails more than mere negligence; the risk of harm must be substantial and the official's actions more than merely negligent.” Id.
Additionally, a plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Sonds, 151 F.Supp.2d at 311 (citations omitted). An inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citation omitted). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is an inmate. Id. Thus, any claims of malpractice, negligence, or disagreement with treatment are not actionable under Section 1983.
Here, Defendants presented voluminous mental health records covering the period of May 3, 2021, through August 2021, and beyond, while Plaintiff was confined to Upstate. (Dkt. No. 121 at 5-14.) Although those records indicate that Plaintiff refused private interviews and/or treatment on several occasions, Plaintiff submitted a declaration signed under penalty of perjury contesting the accuracy of those medical records. (Dkt. No. 137 at 10-16.) For example, a “Special Housing Unit (SHU)/Long Term Keep Lock (LTKL) Mental Health Interview” form (hereinafter “Mental Health Interview Form”) dated May 4, 2021, states that (1) Plaintiff refused a private interview, (2) Plaintiff stated he refused the private interview because he did not have any concerns, and (3) Plaintiff did not have depression or anxiety. (Dkt. No. 121 at 5.) However, Plaintiff denies that he (1) refused a private interview, (2) indicated that he had no concerns, and (3) did not suffer from depression and anxiety. (Dkt. No. 137 at 10, ¶ 23.) Moreover, a Mental Health Interview Form dated July 15, 2021, states that (1) Plaintiff refused a private interview, (2) Plaintiff stated that he refused the private interview because he had no issues, and (3) Plaintiff did not have depression or anxiety. (Dkt. No. 121 at 9.) However, Plaintiff denies that he (1) refused a private interview, (2) indicated that he had no concerns, and (3) did not suffer from depression and anxiety. (Dkt. No. 137 at 11, ¶ 32.) More specifically, Plaintiff alleges that during this interaction, Ms. Rogerson (a mental health staff employee) shouted to Plaintiff “I have referral for PREA,” Plaintiff responded that “PREA complaints are confidential and are to be discussed in private,” Ms. Rogerson said nothing further and walked away. (Id. at 11, ¶ 30.)
Further, Plaintiff acknowledged that Defendant Gravell made rounds in the facility, however Plaintiff attested that the rounds were completed while he was at recreation and were not announced so that he could not utilize this avenue to access mental health treatment. (Dkt. No. 137 at 16, ¶ 63.) In addition, Plaintiff testified that Defendant Waldron was supposed to conduct rounds at the facility once per week but that she did not. (Dkt. No. 121, Attach. 2 at 7879.)
Thus, I find that genuine disputes of material facts exist regarding the mental health treatment, if any, that was offered and available to Plaintiff during the relevant time of May 3, 2021, to August 2021. As a result, I recommend that Defendants' motion for summary judgment on Plaintiff's medical indifference claims be denied.
5. Excessive SHU Confinement Claims Against Defendants Dominic, Uhler, Cantwell, Tatro, Woodruff, Barbosa, Fennessy, and Venettozzi
Generally, confining an inmate in the SHU, without more, and notwithstanding the restrictions that such confinement imposes on inmate life, does not constitute cruel and unusual punishment. See Bowens v. Smith, 11-CV-0784, 2013 WL 103575, at *10 (N.D.N.Y. Jan. 8, 2013) (Baxter, M.J.) (“Confinement in SHU, in itself, notwithstanding its additional restrictions on inmates, has not been held to constitute cruel and unusual punishment.”), report and recommendation adopted by 2013 WL 103596 (N.D.N.Y. Jan. 8, 2013) (Shape, J.); Hamilton v. Fisher, 10-CV-1066, 2012 WL 987374, at *8 (N.D.N.Y. Feb. 29, 2012) (Treece, M.J.) (“‘[N]ormal' conditions of SHU confinement do not constitute an Eighth Amendment violation.” (citations omitted)), report and recommendation adopted by 2012 WL 987122 (N.D.N.Y. Mar. 22, 2012) (D'Agostino, J.). “However, courts are also cognizant that ‘the deleterious effects of isolated housing on inmates-especially to those assigned to long-term solitary confinement- are well-known and amply documented,' including the fact that prolonged solitary confinement ‘can and does lead to significant psychological harm.'” Smith v. Annucci, 18-CV-6261, 2019 WL 539935, at *6 (W.D.N.Y. Feb. 11, 2019) (quoting Peoples v. Annucci, 180 F.Supp.3d 294, 299 (S.D.N.Y. 2016)). “Accordingly, courts have found Eighth Amendment violations where inmates are held in solitary confinement for extended periods of time, such that the effects are ‘grossly disproportionate' to the reasons for the isolation.” Smith, 2019 WL 539935, at *6 (citing, inter alia, Peoples v. Fischer, 898 F.Supp.2d 618, 621 (S.D.N.Y. 2012)).
The confines of an excessive SHU confinement claim are not clearly defined. Johnson v. Miller, 20-CV-0622, 2020 WL 4346896, at *8 n.6 (N.D.N.Y. July 29, 2020) (Kahn, J.) (citing Peoples v. Annucci, 11-CV-2694, 2012 WL 1575302, at *9 (S.D.N.Y. May 2, 2012) (“[S]ome courts have recognized a potential Eighth Amendment claim based on alleged excessive SHU confinement.”) (emphasis added). However, based on the undersigned's review of the current state of the law, there appears to be a requirement that the defendant knew or should have known that sentencing the plaintiff to the SHU confinement presented a substantial risk of serious harm. (Dkt. No. 5 at 49; Johnson v. Miller, 2020 WL 4346896, at *8 n.6 (dismissing the plaintiff's Eighth Amendment excessive SHU confinement claim where, inter alia, the complaint was “devoid of any allegations which plausibly suggest that either of these Defendants refused to reduce Plaintiff's SHU confinement period out of deliberate indifference to his health or safety.”); Animashaun v. Fischer, 19-CV-0820, 2020 WL 374578, at *12 (N.D.N.Y. Jan. 23, 2020) (Kahn, J.) (dismissing the plaintiff's Eighth Amendment excessive SHU confinement claim where, inter alia, the complaint “lack[ed] any allegations which plausibly suggest that any of the hearing officers who imposed disciplinary sentences that resulted in plaintiff's SHU confinement . . . were aware that plaintiff was suffering from any mental health problems likely to be impacted by SHU confinement.”).
Moreover, “[n]umerous cases in this circuit have upheld long SHU sentences that were challenged only based on the amount of time prisoners were held in segregation.” Jay v. Venetozzi, 15-CV-0147S, 2020 WL 4382001, at *9 (W.D.N.Y. July 30, 2020) (citing Sostre v. McGinnis, 442 F.2d 178, 193 (2d Cir. 1971) (declining to hold that the plaintiff's confinement in punitive segregation for more than twelve months violated the Eighth Amendment), overruled on other grounds by Davidson v. Scully, 114 F.3d 12 (2d Cir. 1997); Bunting v. Fischer, 14-CV-0578, 2016 WL 4939389, at *4 (W.D.N.Y. Aug. 4, 2016) (dismissing a claim of excessive punishment where the plaintiff was confined to the SHU for approximately four years), report and recommendation adopted by, 2016 WL 4804099 (W.D.N.Y. Sept. 14, 2016); Gulley v. Roach, 02-CV-0908S, 2004 WL 2331922 (W.D.N.Y. Oct. 15, 2004) (holding that seven-month “duration of Plaintiff's confinement alone does not rise to the level of a constitutional violation”)).
Here, as set forth in Defendants' memorandum of law, the record lacks any evidence that Defendants Dominic, Uhler, Cantwell, Tatro, Woodruff, Barbosa, Fennessy, and Venettozzi, were aware of any mental health problems Plaintiff was experiencing that were likely to be impacted by additional SHU confinement. (Dkt. No. 120, Attach. 8 at 25-27.) Further, Plaintiff's mental health records were largely benign, and indicated that Plaintiff was not exhibiting warning signs of imminent suicide risk and did not have thoughts or intent of suicide or self-harm. (Dkt. No. 121 at 3-34.) As set forth in Defendants' memorandum of law, Defendants Dominic, Uhler, Cantwell, Tatro, Woodruff, Barbosa, Fennessy, and Venettozzi- who were not medical providers-were permitted to defer to the determinations of medical staff regarding Plaintiff's conditions. (Dkt. No. 120, Attach. 8 at 26.)
As a result, I recommend that Plaintiff's Eighth Amendment excessive SHU confinement claim be dismissed.
In the alternative, I recommend that Plaintiff's Eighth Amendment excessive SHU confinement claim against Defendants Dominic, Uhler, Cantwell, Tatro, Woodruff, Barbosa, Fennessy, and Venettozzi be dismissed based on the doctrine of qualified immunity for the reasons set forth in Defendants' memorandum of law. (Dkt. No. 120, Attach. 8 at 27.)
6. Due Process Claims Against Defendants Uhler, Lownsbury, Cantwell, Tatro, and Venettozzi
The Fourteenth Amendment's Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause thus “bars arbitrary, wrongful government actions, and guarantees procedural fairness when a state action deprives a citizen of a protected interest in life, liberty, or property.” Wiesner v. Rosenberger, 98-CV-1512, 1998 WL 695927, at *3 (S.D.N.Y. Oct. 6, 1998) (citing Daniels v. Williams, 474 U.S. 327, 330-32 (1986)). “The fundamental requirement of the Due Process Clause is that an individual be given the opportunity to be heard at ‘a meaningful time and in a meaningful manner.'” Patterson v. City of Utica, 370 F.3d 322, 336 (2d Cir. 2004) (quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)).
Thus, to establish a violation of due process rights, a plaintiff must show “(1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). As to the second element, when an inmate's liberty interest is implicated, “[b]ecause prison disciplinary proceedings are not part of a criminal prosecution, . . . the full panoply of rights due a defendant in such proceedings does not apply.” Williams v. Menifee, 331 Fed.Appx. 59, 60 (2d Cir. 2009) (summary order) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, (1974)).
When a prison disciplinary proceeding may impose a punishment sufficient to trigger due process protections, “the Fourteenth Amendment requires inmates receive certain protections including: (1) at least twenty-four hours written notice of the disciplinary charges; (2) the inmate be permitted to call witnesses and present evidence ‘when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals';” “(3) the inmate be judged by a fair and impartial hearing officer; (4) the disciplinary conviction be supported by some evidence; and (5) the inmate be provided with a written statement of fact findings that support the disposition as well as the reasons for the disciplinary action taken.” Tubbs v. Venettozzi, 19-CV-0126, 2022 WL 7274397, at *4 (N.D.N.Y. July 20, 2022) (Stewart, M.J.) (citing Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974)), report and recommendation adopted, 2022 WL 4545542 (N.D.N.Y. Sept. 29, 2022) (Kahn, J.). Nonetheless, “[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses.” Wolff v. McDonnell, 418 U.S. at 566.
Further, it is well established that inmates confined in the SHU have a due process right to “substantive assistance” in disciplinary hearings. Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir. 1988). The assistance provided “certainly should include gathering evidence, obtaining documents . . . and interviewing witnesses. At a minimum, an assistant should perform the investigatory tasks which the inmate, were he able, could perform for himself.” Eng, 858 F.2d at 898. However, “an inmate's right to assistance is limited”; the assistant is not equivalent to legal counsel and is obligated only to act as the inmate's “surrogate-to do what the inmate would have done were he able.” Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (emphasis in original). Moreover, “[t]he assistant is not obliged to go beyond the specific instructions of the inmate,” Silva, 992 F.2d at 22, and as with all other procedural rights in this context, “any violations of this qualified right are reviewed for ‘harmless error,'” Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009) (quoting Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991)).
a. September 2018 Disciplinary Hearing
I recommend that Defendants' motion for summary judgment and Plaintiff's partial motion for summary judgment regarding Plaintiff's due process claim related to the September 2018 Disciplinary Hearing, be denied.
There remain for trial genuine disputes of material fact regarding the circumstances that resulted in a finding of guilt at the September 2018 Disciplinary Hearing. For example, Plaintiff requested that Defendant Lownsbury obtain the standard operating procedures for testing a substance to determine whether that substance is urine. (Dkt. No. 120, Attach. 3 at 28; Dkt. No. 119 at 17, ¶ 19.) Nonetheless, based on the record presently before the Court, Defendant Lownsbury did not obtain that document for Plaintiff. (Dkt. No. 119 at 9, ¶ 13.) Further, Defendant Cantwell appeared to misinterpret the document that Plaintiff was seeking, and instead referred to the DOCCS Directive about urinalysis testing procedures used to verify whether or not an incarcerated individual has used illicit drugs and/or alcohol. (Dkt. No. 120, Attach. 3 at 50 [“I find ah, the SOP or the directive, as I'm interpreting that to mean, ah for a Urine test, for urinalysis is to inappropriate and unwarranted under the circumstances . . . no testing was done to determine with the suspected substance was indeed urine.”]; see Dkt. No. 120, Attach. 8 at 15.) It is unclear what relevance testing urine for alcohol or drug use would have been to Plaintiff given the charges he was facing. However, if the substance that Plaintiff allegedly put on the tray was tested and deemed to not contain urine, that could have impacted Defendant Cantwell's finding that Plaintiff was guilty of the charge “unhygienic act” in violation of 118.22. (Dkt. No. 120, Attach. 3 at 7.) In addition, to the extent that no standard operating procedure existed related to testing a substance to determine whether that substance contained urine, that information would have been relevant to Plaintiff as he sought to build a defense strategy. Moreover, that information could have been relevant to Defendant Cantwell when deciding how much weight to assign the misbehavior report and Correction Officer Russell's statement that the unopened tray was “filled with a yellow liquid that looked and smelled like urine.” (Dkt. No. 120, Attach. 3 at 16.)
Plaintiff swore under penalty of perjury that he also requested Defendant Lownsbury obtain video of the incident and assist with securing the testimony of Correction Officer Jeffrey, who was present during the incident. (Dkt. No. 119 at 17, ¶ 19.) Notwithstanding these requests, the record does not indicate that Defendant Lownsbury assisted in securing them or that Defendant Cantwell considered them and deemed them irrelevant during the disciplinary hearing.
It is unclear whether these evidentiary requests, if they had been secured, would have changed the outcome of the September 2018 Disciplinary Hearing, and thus, whether Defendant Lownsbury's failure to assist with these requests was any harmless error. As a result, I recommend that Plaintiff's motion for summary judgment and Defendants' motion for summary judgment on Plaintiff's due process claim with respect to the September 2018 Disciplinary Hearing be denied because genuine disputes of material fact exist for trial.
Moreover, although Defendants' version of events appears to be far more likely, an issue of fact exists regarding whether Plaintiff refused to attend the hearing. Defendants assert that Plaintiff refused to attend the hearing after informing the escorting officers that he feared someone would beat him up. (Dkt. No. 120, Attach. 3 at 45.) Plaintiff asserts that Sergeant Fletcher threatened him, he requested a lieutenant escort to his hearing, the lieutenant said he would remain present during the escort, but an hour later Plaintiff received a copy of Defendant Cantwell's disposition. (Dkt. No. 119 at 17, ¶¶ 20-23.) A reasonable jury could conclude that Plaintiff's constitutional rights were violated by the continuation of the hearing in his absence if the jury credits his version of events.
b. January 2019 Disciplinary Hearing
Although the Second Circuit has declined to provide a bright-line rule as to what duration of punitive confinement implicates a prisoner's constitutional rights, general guidelines have been defined. See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004). The Second Circuit generally takes the position that normal confinement in a segregated housing unit of 101 days or less does not constitute an “atypical and significant hardship” under Sandin v. Connor, 515 U.S. 472, 484 (1995). Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citing Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir. 1999)). “And while confinements for less than 101 days ‘under normal SHU conditions may not implicate a prisoner's liberty interest,' such confinements nevertheless ‘could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions . . . or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical.'” Rasheen v. Adner, 356 F.Supp.3d 222, 237 (N.D.N.Y. Jan. 28, 2019) (Hurd, J.) (quoting Palmer, 364 F.3d at 65-66).
Moreover, “separate SHU sentences ‘should be aggregated for purposes of the Sandin inquiry' when they constitute a sustained period of confinement.” Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (quoting Sims v. Artuz, 230 F.3d 14, 23-24 (2d Cir. 2000); see also Sealey v. Giltner, 197 F.3d 578, 587-88 (2d Cir. 1999) (aggregating two periods of SHU segregation)). “Generally, it appears from Second Circuit decisions that separate SHU sentences constitute a ‘sustained' period of confinement when (1) they are contiguous, and (2) they either (a) were imposed by the same disciplinary officer or (b) were based on the same administrative rationale and are executed under the same conditions.” Taylor v. Artus, 05-CV-0271, 2007 WL 4555932, at *8 (N.D.N.Y. Dec. 19, 2007) (Kahn, J.)
Here, although Plaintiff was sentenced to fourteen-days in the SHU as a result of the January 2019 Disciplinary Hearing, Plaintiff had been serving a 250-day SHU sentence at the time of the January 2019 Disciplinary Hearing, and had been continuously confined to the SHU-for various infractions-for approximately 405 days. (Dkt. No. 120, Attach. 6 at 1113.)
Plaintiff entered the SHU at Attica on January 10, 2018, and appears to have remained there based on various infractions until some time in the fall of 2018, when he transferred to Upstate.
I find that aggregation in this case is inappropriate.
Plaintiff's SHU sanctions at Upstate, although appended to the existing SHU sentences imposed from Attica, arose from unrelated events that occurred at separate correctional facilities. Thus, the Attica sentences should not be aggregated to the Upstate SHU sentences.
Before Defendant Tatro imposed a sanction of 14-days SHU confinement in the January 2019 Disciplinary Hearing, Plaintiff had received the following two other SHU confinement sanctions at Upstate: (1) 60-days in SHU confinement imposed by Defendant Dominic from an incident that occurred on August 10, 2018, which was served from November 5, 2018, through January 4, 2019 (“August 2018 Disciplinary Hearing”); and (2) 250-days in SHU confinement by Defendant Cantwell from the September 2018 Disciplinary Hearing, which was served from January 4, 2019, until September 11, 2019. (Dkt. No. 120, Attach. 6 at 12-13.) Thus, the sentences were not imposed by the same disciplinary officer.
Moreover, although the Court lacks the records related to the August 2018 Disciplinary Hearing, it is clear that the September 2018 Disciplinary Hearing sanction was not (1) based on the same administrative rationale, and (2) executed under the same conditions as the January 2019 Disciplinary Hearing sanction. (Compare Dkt. No. 120, Attach. 3 at 7-14, with Dkt. No. 120, Attach. 4 at 6-13.) Hence, I find that aggregation of the sanctions imposed from the January 2019 Disciplinary Hearing and the September 2018 Disciplinary Hearing inappropriate.
It would likewise be inappropriate to aggregate the sanctions imposed from the January 2019 Disciplinary Hearing and August 2018 Disciplinary Hearing, because the August 2018 Disciplinary Hearing sanction was imposed and served before imposition of the September 2018 Disciplinary Hearing sanction. Accordingly, the September 2018 Disciplinary Hearing sanction-which should not be aggregated with the January 2019 Disciplinary Hearing sanction-disrupted any aggregation between the sanctions imposed before it because there was no longer continuity between the January 2019 Disciplinary Hearing sanction and those earlier imposed sanctions.
Because I find that Plaintiff cannot aggregate his subsequent penalties, he is left with a 14-day period of confinement resulting from the disciplinary hearing conducted by Defendant Tatro. As stated previously, an inmate generally does not establish an atypical and significant hardship based on a confinement lasting less than 101 days, absent a showing that the conditions of his confinement rise to the level of an atypical and severe hardship. Thousand v. Annucci, 17-CV-0940, 2018 WL 882053, at *2 (N.D.N.Y. Feb. 13, 2018) (Suddaby. C.J.) (“the Second Circuit generally takes the position that confinement in a SHU, without unusual conditions, for a period of up to 101 days will generally not constitute an atypical hardship.”) Accepting as true Plaintiff's assertions in the verified Amended Complaint that he was sleep deprived “[d]uring this period of [SHU] confinement . . . [because] the officers banged on [P]laintiff's cell . . . every half hour round to keep [P]laintiff awake at night, in addition to the fact that [P]laintiff was compelled to sleep under constant illumination (light) that interfered with his sleep” (Dkt. No. 43 at 17, ¶ 148), he fails to state an atypical and significant hardship. See Sealey, 197 F.3d at 587, 589-90 (affirming the district court's conclusion that the plaintiff's 101-day confinement in the facility's special housing unit did not constitute atypical hardship, even where the plaintiff was confined to his cell for twenty-three hours per day, permitted one hour for recreation, limited to three showers per week, subject to noisy neighboring cells, lost various privileges, and had feces thrown at him “a few times”); Jabot v. Corr. Officer Minor, 13-CV-1407, 2016 WL 5322113, at *8 (N.D.N.Y. July 15, 2016) (Dancks, M.J.) (holding that 200 days of disciplinary confinement in the SHU at a county correctional facility, along with loss of privileges such as telephone and visitation, was insufficient to warrant constitutional protections even though the plaintiff also experienced a lack of sleep, difficulty eating, and being shackled during facility transport); but see White v. Marinelli, 17-CV-1094, 2019 WL 1090802, at *12 (N.D.N.Y. Mar. 8, 2019) (Kahn, J.) (“Plaintiff's allegation that he was held in the SHU for 270 days, especially coupled with the sleep-depriving conditions he allegedly experienced there, implicate a liberty interest.”); DuPonte v. Wall, 288 F.Supp.3d 504, 510 (D.R.I. 2018) (concluding that a liberty interest was implicated where the plaintiff was in solitary confinement for one year and alleged, inter alia, that he was deprived of sleep because correction officers banged on door and shone a bright “count light”).
As a result, I recommend that Plaintiff's due process claim related to the January 2019 Disciplinary Hearing be dismissed because it did not implicate a liberty interest protected by the Fourteenth Amendment.
Generally, where there is no due process violation at the disciplinary hearing level, there is no basis for a claim regarding the administrative review of the disciplinary proceedings. Clyde v. Schoellkopf, 714 F.Supp.2d 432, 438 (W.D.N.Y. 2010) (citing Eleby v. Selsky, 682 F.Supp.2d 289, 293 (W.D.N.Y. 2010); Black v. Selsky, 15 F.Supp.2d 311, 318 (W.D.N.Y. 1998)).
In the alternative, I recommend that Plaintiff's due process claim regarding the January 2019 Disciplinary Hearing be dismissed because his due process rights were not violated at the hearing.
Due process in the prison disciplinary hearing context requires only that the hearing officer's decision not be “arbitrary.” Wolff, 418 U.S. at 571. A decision is not “arbitrary” if it is supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455 (1985). “This standard is extremely tolerant and is satisfied ‘if there is any evidence in the record that supports' the disciplinary ruling.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (emphasis in original) (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)).
Here, there was some evidence to support Defendant Tatro's finding of guilt. Although the videos show Plaintiff complaining about the waist chain during the escort, the videos also show Plaintiff refusing to comply with officers' directives to pull his hands into his cell, which required Defendant Lamica to notify an area supervisor. (Dkt. No. 134.) This video, and the report of Defendant Lamica supported Defendant Tatro's January 2019 Disciplinary Hearing findings. Defendant Tatro clearly set forth the support for his finding and noted in his written decision that he considered the written report of Defendant Lamica and video of the incident. (Dkt. No. 120, Attach. 4 at 7, 63-64.)
Therefore, in the alternative, I recommend that Plaintiff's due process claim related to the January 2019 Disciplinary Hearing be dismissed because, as set forth in Defendants' memorandum of law (Dkt. No. 120, Attach. 9 at 17), Plaintiff's due process rights were not violated.
c. May 2021 Disciplinary Hearing
I find that aggregation of Plaintiff's SHU sanctions leading up to the May 2021 Disciplinary Hearing sanction, inappropriate.
Plaintiff's SHU sanctions at Midstate and Southport Correctional Facilities, although appended to the SHU sentence imposed at Upstate from the May 2021 Disciplinary Hearing, arose from unrelated events that occurred at separate correctional facilities. Thus, the Midstate and Southport sentences should not be aggregated to the Upstate SHU sentence. (Dkt. No. 120, Attach. 6 at 6-9); Bernier, 2018 WL 1047103, at *4 (declining to aggregate the plaintiff's SHU sanctions where the sanctions “arose from unrelated events that occurred at a separate correctional facility.”).
Because I find that Plaintiff's SHU sanctions should not be aggregated, he is left with a 90-day period of confinement resulting from the disciplinary hearing conducted by Defendant Cantwell. (Dkt. No. 120, Attach. 6 at 6.) As set forth above, an inmate generally does not establish an atypical and significant hardship based on a confinement lasting less than 101 days, absent a showing that the conditions of his confinement rise to the level of an atypical and severe hardship. Thousand, 2018 WL 882053, at *2. Plaintiff does not set forth any assertions that his confinement to the SHU included any unusual conditions that would constitute an atypical and significant hardship.
As a result, I recommend that Plaintiff's due process claim related to the May 2021 Disciplinary Hearing be dismissed because it did not implicate a liberty interest protected by the Fourteenth Amendment.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendants' motion for summary judgment and to revoke Plaintiff's IFP status (Dkt. No. 120) be GRANTED to the extent that it sought dismissal of the following two claims: (1) an Eighth Amendment claim asserting excessive SHU confinement, and (2) a Fourteenth Amendment procedural due process claim related to (a) the January 2019 Disciplinary Hearing, and (b) the May 2021 Disciplinary Hearing; and DENIED to the extent that sought (1) to revoke Plaintiff's IFP status, and (2) dismissal of the following five claims (a) medical indifference, (b) due process related to the September 2018 Disciplinary Hearing, (c) excessive force, (d) retaliation, and (e) conditions-of-confinement; and it is further respectfully
As set forth above in Part III.A. of this Order and Report-Recommendation, the undersigned recommends that the Court conduct a narrow fact-finding inquiry with respect to Plaintiff's IFP status.
To the extent that the Court adopts the undersigned's Report and Recommendation in its entirety, it is recommended that the Clerk of the Court be directed to terminate Defendants Dominic, Tatro, Woodruff, Barbosa, and Fennessy from this action.
RECOMMENDED that Plaintiff's partial motion for summary judgment (Dkt. No. 119) seeking judgment on claims pursuant to (1) the Eighth Amendment alleging excessive SHU confinement, and (2) the Fourteenth Amendment alleging due process violations, be DENIED; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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. P. 6(a)(1)(C).