King v. McIntyer

Full title: JAMEL KING, Plaintiff, v. C.O. MCINTYER, LT. MCDERMOTT, C.O. STEVENS, SGT…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Mar 17, 2015

9:11-CV-1457 (DNH/TWD) (N.D.N.Y. Mar. 17, 2015)

Opinion

9:11-CV-1457 (DNH/TWD)

03-17-2015

JAMEL KING, Plaintiff, v. C.O. MCINTYER, LT. MCDERMOTT, C.O. STEVENS, SGT. YOUNG, C.O. KANE, C.O. HESSLE, C.O. CATLIN, DEPT. C. MILLER, COMM. BRIAN FISCHER, SUP. MARTUSCELLO, Defendants.

APPEARANCES: JAMEL KING, 01-A-4949 Plaintiff pro se Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: MICHAEL G. MCCARTIN, ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: JAMEL KING, 01-A-4949
Plaintiff pro se
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: MICHAEL G. MCCARTIN, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION and ORDER

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Jamel King alleges that an unnamed corrections officer asked Plaintiff to assault another inmate and that, based on Plaintiff's refusal to do so, the named Defendants retaliated against Plaintiff by: (1) issuing false misbehavior reports; (2) placing Plaintiff in keeplock; (3) finding Plaintiff guilty in disciplinary hearings; and (4) affirming Plaintiff's guilt on appeal. (Dkt. No. 9.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 90.) For the reasons discussed below, I recommend that the motion be granted in part and denied in part.

I. BACKGROUND

Plaintiff alleges that in November 2010, while he was incarcerated at Coxsackie Correctional Facility, an unnamed non-party corrections officer asked Plaintiff to assault another inmate. (Dkt. No. 9 ¶ 7.) The officer stated, "We have someone who like [sic] to touch kids, and if you will like to beat him up I would not see nothing." Id. Plaintiff refused to assault the other inmate, telling the officer, "I'm not down with that and can you please not approach me with something like that." Id. The officer stated, "[I]f you're not going to beat him up, then you must be down with touching kids to [sic]." Id. Plaintiff replied to the officer, "No you have that wrong, you are the one that touch [sic] kids." Id. ¶ 8. The officer became upset and stated, "Your ass is going to cellblock C or D, the house of pain so pack your things and I will let my pals up their [sic] know that you are an asshole." Id.

Plaintiff alleges that Defendant Corrections Officers Jeffry Hoessle,¹ Patrick McIntyre,² Jerrad V. Catlin, and James Stevens issued several misbehavior reports to him over the next six months in retaliation for his refusal to assault the other inmate and for his complaints to prison officials about the alleged retaliation. (Dkt. No. 9.) Plaintiff alleges that Defendant McDermott retaliated against him and violated his due process rights during disciplinary hearings conducted as a result of the misbehavior reports. Id. He alleges that Defendant Sergeant Jason Young made threatening comments to him and that Defendant Corrections Officer Robert Kane separated him from other inmates. Id. ¶¶ 24, 29. Finally, Plaintiff alleges that Defendants Daniel F. Martuscello and Christopher Miller violated his constitutional rights by affirming the results of the disciplinary hearings. Id. ¶ 28. These incidents will be discussed in more detail in Section III, below.

1 This Defendant's name is spelled "Hessle" in the caption. Defendant spells his surname "Hoessle" according to the declaration he filed in support of the motion for summary judgment. (Dkt. No. 90-7.) The Clerk is directed to amend the caption to reflect the correct spelling of Defendant's last name.

2 This Defendant's name is spelled "McIntyer" in the caption. Defendant spells his surname "McIntyre" according to the declaration he filed in support of the motion for summary judgment. (Dkt. No. 90-10.) The Clerk is directed to amend the caption to reflect the correct spelling of Defendant's last name.

Plaintiff filed his original complaint in this action on December 14, 2011. (Dkt. No. 1.) Plaintiff amended his complaint on January 5, 2012. (Dkt. No. 9.) Defendants filed a motion for partial summary judgment, which upon Defendants' request was considered as a motion to dismiss. (Dkt. Nos. 58, 68-69.) The Court granted the motion in part and denied it in part. (Dkt. No. 83.)

Defendants now move for summary judgment. (Dkt. No. 90.) Plaintiff has opposed the motion. (Dkt. No. 99.)

II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations . . . of [the plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material³ fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).

3 A fact is "material" only if it would have some effect on the outcome of the suit. Anderson, 477 U.S. at 248.

III. ANALYSIS

Plaintiff claims that Defendants retaliated against him by issuing false misbehavior reports, placing him in keeplock, finding him guilty in disciplinary hearings, and affirming his guilt on appeal. (Dkt. No. 9.) The Court will discuss Plaintiff's claims and Defendants' motion incident by incident in chronological order.

A. November 30, 2010, Misbehavior Report

1. Facts

Plaintiff alleges that after he refused to assault the other inmate, he was moved to Cellblock D-3, where Defendant Hoessle placed him in keeplock. (Dkt. No. 9 ¶ 9.) When Plaintiff asked Defendant Hoessle why he was in keeplock, Defendant Hoessle responded, "[B]ecause you wouldn't take care of business over in cellblock B-1 for my pal so you're [an] asshole." Id. Defendant Hoessle denies that he made that statement. (Dkt. No. 90-7 ¶ 9.) Indeed, he declares that he was not aware until April 2012 of Plaintiff's allegation that he had refused to assault another inmate. Id. ¶ 5.

The record shows that Defendant Hoessle issued a misbehavior report to Plaintiff on November 30, 2010. (Dkt. No. 90-18 at 4.) The report states that Defendant Hoessle

observed [Plaintiff] enter the school with bulging pockets. I gave [him] a direct order to come back to my desk, he refused and kept walking. A second direct order was given. He complied. I then pat frisked [him] and found the following items of contraband. 5 cassette tapes, 1 tooth brush with case, 1 tooth paste, 1 Bare Necessity's magazine.

Id. Defendant Hoessle charged Plaintiff with smuggling, possessing items in an unauthorized area, and refusing a direct order. Id. Plaintiff was confined to keeplock as a result of the incident. Id. At his deposition, Plaintiff admitted that he had the tooth brush, tooth paste, magazine, and cassettes that morning and that he intended to give the cassette tapes to another inmate. (Dkt. No. 90-13 at 33:22-34:24.⁴)

4 Citations to page numbers in Plaintiff's deposition transcript refer to the page numbers in the original document rather than to the page numbers assigned by the Court's electronic filing system.

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on December 3, 2010. (Dkt. No. 90-18 at 1.) Plaintiff pleaded guilty to the charge of possessing items in an unauthorized area and not guilty to the charges of smuggling and refusing a direct order. Id. at 3. Defendant McDermott found Plaintiff not guilty of refusing a direct order and guilty of smuggling and possessing items in an unauthorized area. Id. at 1. Defendant McDermott sentenced Plaintiff to fourteen days of keeplock and loss of privileges. Id. Plaintiff served that keeplock sentence between November 30, 2010, and December 14, 2010. Id.

Broadly construed, the complaint asserts retaliation claims against Defendants Hoessle and McDermott and a due process claim against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Hoessle and McDermott retaliated against him for his refusal to assault the other inmate by issuing the misbehavior report and finding him guilty. (Dkt. No. 9 ¶¶ 9-10.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.⁵) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss these claims.

5 Citations to page numbers in Defendants' memorandum of law refer to the page numbers in the original document rather than to the page numbers assigned by the Court's electronic filing system.

Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). The Second Circuit has noted the following:

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

Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

To succeed on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the speech or conduct at issue was "protected"; (2) the defendants took "adverse action" against the plaintiff - namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). Once a plaintiff meets this burden, "[t]he burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report." Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (citations omitted).

Regarding the first element, Defendants argue that Plaintiff cannot establish that he was engaged in protected conduct because "[w]hile Plaintiff contends that he was issued the misbehavior report[] because he refused to beat up a child molester . . . , he can offer nothing to substantiate his allegation other than his own conclusory allegations." (Dkt. No. 90-2 at 22, citations omitted.) Plaintiff has offered more than "conclusory allegations." He has offered sworn testimony in the form of his verified complaint. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d. Cir. 2004) ("[A] verified pleading . . . has the effect of an affidavit and may be relied upon to oppose summary judgment."); Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001) (holding that the plaintiff "was entitled to rely on [his verified amended complaint] in opposing summary judgment"); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit for summary judgment purposes . . . .") (citations omitted). The issue, though, is not whether Plaintiff has offered any evidence of his version of events. The issue is whether an alleged refusal to commit an illegal act constitutes protected conduct. The parties have not cited, and the Court has not found, any cases on point. However, it is logical to conclude that citizens have a right to refuse to commit crimes at the request of law enforcement officers. Therefore, the Court will assume for the purposes of this motion that Plaintiff has raised a triable issue of fact that he was engaged in protected conduct.

Regarding the second element, the Second Circuit defines "'adverse action' objectively, as retaliatory conduct 'that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Gill, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003), superseded by 320 F.3d 346, 2003 U.S. App. LEXIS 13030, 2003 WL 360053 (2d Cir. Feb. 10, 2003)). Defendants implicitly concede that Plaintiff has shown adverse action. (See Dkt. No. 90-2 at 23, proceeding directly from "protected conduct" element to "causal connection" element.) Indeed, it is black-letter law that filing allegedly false misbehavior reports and imposing keeplock sentences constitute adverse action. Gill, 389 F.3d at 384.

Regarding the third element, Defendants argue that Plaintiff cannot establish a causal connection between the protected conduct and the adverse action. (Dkt. No. 90-2 at 23-25.) Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002). Those factors include: (1) the temporal proximity between the protected activity and the alleged retaliatory act; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant concerning his or her motivation. Id. "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id.

Regarding temporal proximity, Plaintiff alleges that he refused to assault the other inmate in November 2010. (Dkt. No. 9 ¶ 7.) Defendant Hoessle issued the misbehavior report on November 30, 2010. (Dkt. No. 90-18 at 4.) Defendant McDermott conducted the disciplinary hearing on December 3, 2010. Id. at 1. The Second Circuit has held that the passage of "only six months" is sufficient to support an inference of a causal connection. Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 555 (2d Cir. 2001)). Here, Defendant Hoessle issued the misbehavior report in the same month that the alleged protected conduct occurred, and Defendant McDermott conducted the disciplinary hearing three days later. Therefore, Plaintiff has established temporal proximity between the alleged protected conduct and the adverse action.

Regarding Plaintiff's prior disciplinary record, Defendants assert that it was "dismal." (Dkt. No. 90-2 at 24.) Defendants are correct. Plaintiff was issued misbehavior reports and found guilty of multiple charges each year for the seven years preceding his alleged refusal to assault the other inmate. (Dkt. No. 90-15.) Indeed, Plaintiff admitted at his deposition that his disciplinary record was extensive because he was "out of control at one time." (Dkt. No. 90-13 at 24:1-5.) Therefore, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct.

Regarding vindication at the hearing on the matter, Plaintiff was found guilty of two of the three charges in the misbehavior report. (Dkt. No. 90-18 at 1.) Indeed, Plaintiff pleaded guilty to one of those charges. Id. at 3. Therefore, Plaintiff has not established that he was vindicated at the hearing.

Finally, Plaintiff alleges that Defendant Hoessle stated that he was placing Plaintiff on keeplock "because you wouldn't take care of business over in cellblock B-1 for my pal." (Dkt. No. 9 ¶ 9.) Defendant Hoessle denies making that statement. (Dkt. No. 90-7 ¶ 9.) Neither the complaint nor Plaintiff's opposition to the motion for summary judgment assert any statements by Defendant McDermott concerning his motivation at the disciplinary hearing on this matter. (Dkt. No. 9 ¶¶ 9-10; Dkt. No. 99 ¶¶ 24-29.) Therefore, Plaintiff has raised a triable issue of fact as to this factor regarding Defendant Hoessle, but not regarding Defendant McDermott.

Accordingly, Plaintiff has raised a triable issue regarding two of the causal connection factors regarding Defendant Hoessle. Given the skepticism with which retaliation claims must be viewed, it is unlikely that this is sufficient to establish a causal connection. But even assuming that Plaintiff has established a causal connection, this would simply shift the burden to Defendants to demonstrate "that there is no dispute that the plaintiff 'committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.'" Gayle, 313 F.3d at 681 (quoting Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998)). Defendants have met that burden. Plaintiff pleaded guilty to the charge of possessing items in an unauthorized area (Dkt. No. 90-18 at 3) and admitted at his deposition that he intended to pass the cassette tapes to another inmate. (Dkt. No. 90-13 at 34:14-24.) The prison rule against smuggling states that "[a]n inmate shall not . . . attempt to smuggle . . . any item . . . from one area to another." N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(15)(i) (2014). Transferring items that are classified as contraband-such as items carried by an inmate into an unauthorized area-constitutes smuggling under the rule. See Farid v. Ellen, 593 F.3d 233, 237 (2d Cir. 2010) (discussing the connection between Rule 113.23-the "catch-all" contraband provision of the prison rules-and the rules prohibiting smuggling). Plaintiff has, accordingly, conceded that he was guilty of the two most serious charges in the misbehavior report. Thus, Defendants have met their burden of showing the Plaintiff would have received the same punishment absent a retaliatory motive. Therefore, I recommend that the Court grant Defendants' motion for summary judgment of this claim.

3. Procedural Due Process

Plaintiff alleges that Defendant McDermott violated his right to due process during the December 3, 2010, disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

Due process is satisfied if an inmate facing disciplinary charges receives (1) advanced written notice of the charges against him; (2) a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; (3) a fair and impartial hearing officer; and (4) a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).

Here, Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-18 at 3.) He did not request any witnesses. Id. Defendants were not able to locate the audio recording of the disciplinary hearing (Dkt. No. 90-12 ¶ 8), so the Court cannot determine whether Plaintiff was afforded a reasonable opportunity to present documentary evidence. Plaintiff received a written statement of Defendant McDermott's disposition, which stated that Defendant McDermott relied on Defendant Hoessle's misbehavior report and Plaintiff's plea of guilty to the charge of possessing items in an unauthorized area and imposed the punishment on Plaintiff to "impress upon [him] not to bring items into the school building that are not authorized." (Dkt. No. 90-18 at 2.)

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, it is well settled "that 'the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally.'" Espinal v. Goord, 180 F. Supp. 2d 532, 539 (S.D.N.Y. 2002) (quoting Francis v.. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). Due process in this 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)). Prison officials acting as hearing officers are entitled to a rebuttable presumption that they are unbiased. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996).

Here, evidence in the record supports Defendant McDermott's ruling. Defendant Hoessle's misbehavior report described his observation that Plaintiff initially refused a direct order to return to his desk and Defendant Hoessle's discovery of contraband on Plaintiff's person. (Dkt. No. 90-18 at 4.) Plaintiff admitted that he had taken the items into the school building. Id. at 3. Based on this evidence, it was not arbitrary for Defendant McDermott to find Plaintiff guilty. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this due process claim against Defendant McDermott.

B. December 2, 2010, Misbehavior Report

1. Facts

The record shows that on December 2, 2010, Plaintiff was issued another misbehavior report by a non-defendant officer. (Dkt. No. 90-33 at 4.) Plaintiff was charged with refusing two direct orders, interfering, blocking visibility into his cell, and delaying the evening count. Id. at 3.

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on December 13, 2010. (Dkt. No. 90-33 at 1.) Plaintiff pleaded guilty to the visibility obstruction charge and not guilty to the other charges. Id. at 3. Defendant McDermott found Plaintiff guilty of the visibility obstruction charge and not guilty of the other charges. Id. at 1. Defendant McDermott sentenced Plaintiff to fifteen days of keeplock and loss of privileges, suspended and deferred sixty days. Id.

Broadly construed, the complaint asserts retaliation and due process claims against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McDermott retaliated against him for his refusal to assault the other inmate by finding him guilty after the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.⁶

6 Defendants make the same arguments for each of Plaintiff's retaliation claims. Having addressed those arguments explicitly in Section III(A)(2), the Court will not repeat the arguments in the subsequent sections.

As discussed above, Plaintiff has raised a triable issue of fact that he engaged in protected conduct by refusing to assault the other inmate. As discussed above, imposing a keeplock sentence constitutes adverse action. The issue, then is whether Plaintiff has raised a triable issue of fact that Defendant McDermott's adverse action was causally connected to Plaintiff's protected conduct.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and an adverse action. Baskerville, 224 F. Supp. 2d at 732. As with the claim discussed above, Plaintiff has established temporal proximity between his protected conduct and the adverse action because he refused to assault the other inmate in November 2010 and the hearing at issue here occurred the next month. As discussed above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Likewise, Plaintiff has not established that he was vindicated at the hearing because he, in fact, pleaded guilty to one charge. And finally, as with the claim discussed above, Plaintiff has not alleged that Defendant McDermott made any statements concerning his motivation. (See Dkt. No. 9; Dkt. No. 99.) Thus, the only factor weighing in favor of a finding of a causal connection is the temporal proximity factor.

The Second Circuit has held that where "timing is the only basis for a claim of retaliation . . . an inference of retaliation does not arise," particularly where other adverse actions preceded the protected conduct. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).⁷ Here, timing is the only basis for Plaintiff's retaliation claim. Moreover, Plaintiff's disciplinary record shows that he was routinely subject to disciplinary sanctions for years before the alleged protected conduct. (Dkt. No. 90-15.) Thus, other adverse actions preceded the protected conduct. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this claim.

7 Slattery was an employment law case. The Second Circuit routinely cites to employment cases when discussing retaliation in the prison law context. See e.g. Espinal, 558 F.3d at 129 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). Thus, it is appropriate to apply the Slattery rule here.

3. Due Process

Plaintiff alleges that Defendant McDermott violated his due process rights during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-33 at 3.) He did not request any witnesses. Id. Plaintiff received a written statement of Defendant McDermott's disposition, which stated that Defendant McDermott relied on the misbehavior report and Plaintiff's plea of guilty to the visibility obstruction charge in reaching his disposition and imposed the punishment on Plaintiff to "impress upon [him] not to block your cell door window." (Dkt. No. 90-33 at 2.)

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports Defendant McDermott's ruling. Most importantly, Plaintiff pleaded guilty to the only charge of which Defendant McDermott found him guilty. (Dkt. No. 90-33 at 1, 3.) Indeed, Plaintiff admits in his opposition to the motion for summary judgment that he "did block visibility," although he states that he did so "because he was showing a female officer respect because after he worked out he was washing up." (Dkt. No. 99 ¶ 34.) Based on this evidence, it was not arbitrary for Defendant McDermott to find Plaintiff guilty. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this due process claim against Defendant McDermott.

C. December 20, 2010, Misbehavior Reports

1. Facts

Plaintiff alleges he was moved to Cellblock C-2 after the December 2, 2010, misbehavior report. (Dkt. No. 9 ¶ 11.) He alleges that Defendant McIntyre then started harassing him. (Dkt. No. 9 ¶ 12.) Plaintiff alleges that he wrote a complaint to Defendant Brian Fischer regarding Defendant McIntyre's conduct.⁸ Id. Plaintiff alleges that Defendant McIntyre retaliated against him for that complaint by issuing three false misbehavior reports. (Dkt. No. 9 ¶ 13.) From the record, it appears that two of these misbehavior reports were issued on December 30, 2010, and that the third was issued on January 3, 2011. (Dkt. No. 90-19 at 4-5; Dkt. No. 90-21 at 4.) This section will address the December 30, 2010, reports.

8 Defendants assert that "Plaintiff never produced his letters of complaint[] to Defendants during the course of this litigation." (Dkt. No. 90-3 ¶ 14.) Plaintiff asserts that he gave the letters to a hearing officer on January 5, 2011, and that the officer confiscated them. (Dkt. No. 99 ¶ 14.) Given the special solicitude that must be given to pro se plaintiffs, the Court has assumed that Plaintiff actually wrote to Defendant Fischer.

The record shows that Defendant McIntyre issued two misbehavior reports against Plaintiff on December 30, 2010. (Dkt. No. 90-19 at 4-5.) In the first, Defendant McIntyre stated that Plaintiff had exchanged an item from his kosher meal tray for a chicken patty from another inmate's regular meal tray. Id. at 4. Defendant McIntyre charged Plaintiff with unauthorized exchange and violating mess hall serving policies. Id. In the second misbehavior report, Defendant McIntyre stated that Plaintiff asked him to "exchange an unknown item with an inmate on the opposite side of the division." Id. at 5. The report states that after Defendant McIntyre refused, he observed Plaintiff hand off the unknown item. Id. Defendant McIntyre charged Plaintiff with refusing a direct order and unauthorized exchange. Id.

Plaintiff alleges that Defendant McDermott conducted the disciplinary hearing on the misbehavior reports. (Dkt. No. 9 ¶¶ 14-16.) In opposition to the motion for summary judgment, Plaintiff asserts that a non-defendant lieutenant conducted a hearing on one of the misbehavior reports, but that Defendant McDermott conducted the other. (Dkt. No. 99 ¶ 50.) However, the record shows that the non-defendant lieutenant conducted the disciplinary hearing on both of the misbehavior reports.⁹ (Dkt. No. 90-15 at 5; Dkt. No. 90-19 at 1.) The hearing was conducted on January 12, 2011. Id. Plaintiff pleaded not guilty to all of the charges. (Dkt. No. 90-19 at 3.) The lieutenant found Plaintiff guilty of all four charges and sentenced him to fifteen days of keeplock and loss of privileges, suspended and deferred for ninety days. Id. at 1.

9 Plaintiff alleges that Defendant McDermott made comments indicating retaliatory animus during this hearing. (Dkt. No. 9 ¶¶ 14-15.) However, it is clear from the record that he did not conduct any part of the hearing.

Plaintiff alleges that he appealed the finding of guilt to Defendant Martuscello and Defendant Miller. (Dkt. No. 9 ¶ 16.) According to the complaint, Defendant Martuscello and Defendant Miller affirmed Defendant McDermott's finding of guilt. Id. The record shows that Defendant Miller affirmed the finding of guilt. (Dkt. No. 90-15 at 5.)

Broadly construed, the complaint asserts a retaliation claim against Defendant McIntyre and a due process claim against Defendant Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McIntyre retaliated against him for writing to Defendant Fischer by issuing the misbehavior report. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

The filing of a grievance against prison officials is constitutionally protected conduct. Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir. 2003); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). "Complaining to a superior officer about a subordinate officer's misbehavior, while not equivalent to the filing of a grievance, is conduct at least arguably protected by the First Amendment." Jones v. Harris, 665 F. Supp. 2d 384, 398 (S.D.N.Y. 2009). As discussed above, filing a misbehavior report constitutes an adverse action. Gill, 389 F.3d at 384. The issue, then, is whether Plaintiff has established a causal connection between his protected conduct and Defendant McIntyre's adverse action.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and an adverse action. Baskerville, 224 F. Supp. 2d at 732. First, regarding temporal proximity, Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer sometime after December 2, 2010. (Dkt. No. 9 ¶¶ 11-12.) Defendant McIntyre issued the misbehavior reports on December 30, 2010. (Dkt. No. 90-19 at 4-5.) Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Second, as discussed above, Plaintiff cannot establish that he had a good disciplinary record before writing the letter of complaint. (Dkt. No. 90-15.) Third, Plaintiff was not vindicated at the disciplinary hearing. (Dkt. No. 90-19 at 1.) Fourth, regarding statements by Defendant McIntyre regarding his motivation, Plaintiff has alleged only that Defendant McIntyre was "upset" and "retaliated." (Dkt. No. 99 ¶ 40.) He has not alleged any specific statements by Defendant McIntyre. Thus, timing appears to be the only factor supporting a finding of causal connection. As discussed above, timing alone is insufficient to support a finding of causal connection. Slattery, 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection element of his retaliation claim against Defendant McIntyre. Therefore, I recommend that the Court grant Defendants' motion and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendant Miller is personally responsible for the alleged violation of due process rights at the disciplinary hearing because he affirmed the finding on appeal. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 16-18, 25-28.) Defendants argue that Defendant Miller was not personally involved, that there was no violation of due process on the merits, and that Defendant Miller is entitled to qualified immunity. Id. For the reasons discussed below, I recommend that the Court find that Defendant Miller was personally involved, find that there was no due process violation on the merits, decline to address the qualified immunity argument, and dismiss this claim against Defendant Miller.

a. Personal Involvement

Defendants argue that Defendant Miller was not personally involved in the alleged constitutional violation. (Dkt. No. 90-2 at 16-18.) For the reasons discussed below, I recommend that the Court reject this argument.

Under Second Circuit precedent, "'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some "tangible connection" between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere linkage to the unlawful conduct through the prison chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). In other words, supervisory officials may not be held liable merely because they held positions of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citations omitted). Rather, supervisory personnel may be considered personally involved if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon, 58 F.3d at 873 (citations omitted).¹⁰

10 In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court ruled that where the underlying constitutional claim is a claim of intentional discrimination, a supervisory official's liability must be judged by the official's purpose rather than the official's knowledge of subordinates' actions or policies. The Second Circuit has not yet issued a decision discussing Iqbal's effect on the Colon categories. Several district courts in the Second Circuit have determined that Iqbal nullified some of the Colon categories. See Sash v. United States, 674 F. Supp. 2d 531, 543-44 (S.D.N.Y. 2009) (collecting cases). The Second Circuit itself has noted that "Iqbal has . . . engendered conflict within our Circuit about the continuing vitality of the supervisory liability test set forth in Colon." Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012). The Second Circuit declined to address the issue in Reynolds, however, and has not addressed it since that time. I will assume for the purposes of this motion that Colon remains good law.

Earlier in this litigation, Defendants moved to dismiss the claims against Defendant Miller for lack of personal involvement. (Dkt. No. 58-3 at 5-7.¹¹) The Court denied that motion, noting that, while district courts are split on the issue, the better view is that affirming a disciplinary decision constitutes personal involvement. (Dkt. No. 80 at 18-20; Dkt. No. 83.) Defendants have not addressed that aspect of the Court's earlier decision. (Dkt. No. 90-2 at 16-18.) For instance, Defendants have not argued that the Court should change course and adopt the view of the district courts holding that affirming a disciplinary decision is not sufficient to constitute personal involvement. Id. Instead, Defendants' personal involvement argument centers on distinguishing the case of Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013). That case deals with a personal involvement issue-the receipt of letters of complaint-that is different than the issue presented here regarding Defendant Miller. Because Defendants have not advanced any argument sufficient to alter the Court's earlier ruling, I recommend that the Court decline to dismiss the due process claim against Defendant Miller on personal involvement grounds.

11 Citations to page numbers in Defendants' earlier memorandum of law refer to the page numbers in the original document rather than to the page numbers assigned by the Court's electronic filing system.

b. Merits

Defendants argue that Plaintiff's due process rights were not violated during the January 12, 2011, disciplinary hearing and that, accordingly, Defendant Miller cannot be held liable for affirming the decision. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion for summary judgment on this ground and dismiss this claim against Defendant Miller.

Plaintiff received advanced written notice of the claims against him. (Dkt. No. 90-19 at 3.) Plaintiff received a written statement of the disposition, which stated that the hearing officer relied on the misbehavior reports and Plaintiff's testimony in reaching his disposition and imposed the punishment "to serve as a deterrent for future misconduct." Id. at 2. Plaintiff did not request any witnesses, not even the inmate with whom he exchanged food and the inmate to whom he exchanged the "unknown item." Id. at 3. At the hearing Plaintiff asserted that he had requested a copy of the video from the date in question. (Dkt. No. 90-20 at 2.) The hearing officer stated that he had "no indication" of that request. Id. Plaintiff stated that "the video I requested, would show that-I didn't pass nothing on." Id. at 5. Testimony from the other inmates presumably could have served as an adequate proof for this assertion, but Plaintiff did not request it. Thus, he cannot raise a triable issue of fact that he was prejudiced by the denial of the video evidence.

Regarding the issue of whether the non-defendant lieutenant was a fair and impartial hearing officer, evidence in the record supports his ruling. Specifically, he had the misbehavior reports and was present to judge Plaintiff's credibility in the hearing room. Thus, I recommend that the Court find that the hearing officer did not violate Plaintiff's due process rights. Accordingly, Defendant Miller, who simply affirmed the decision, cannot be held liable and I recommend that the Court grant Defendants' motion and dismiss this claim against Defendant Miller.

Because I have recommended that the Court grant the motion for summary judgment of this claim on the merits, I decline to address Defendants' qualified immunity argument.

D. January 3, 2011, Misbehavior Report

1. Facts

The record shows that Defendant McIntyre issued another misbehavior report against Plaintiff on January 3, 2011. (Dkt. No. 90-21 at 4.) The report stated that Defendant McIntyre, while walking behind Plaintiff from the C Block to the school, noticed that Plaintiff's rear pocket was bulging. Id. Defendant McIntyre ordered Plaintiff to take all items out of his pockets and place them on the desk. Id. After Plaintiff did so, Defendant McIntyre frisked Plaintiff and found matches, a pen, and some pictures still in his pockets. Id. The report states that Plaintiff then became verbally abusive and threatened to write Defendant McIntyre up. Id. Despite Defendant McIntyre's order to be quiet, Plaintiff yelled that Defendant McIntyre was harassing him. Id. Defendant McIntyre charged Plaintiff with refusing to obey a direct order, threats, failure to comply with frisk procedures, possessing articles in an unauthorized area, and harassment. Id. Plaintiff pleaded not guilty to all of the charges. Id. at 3.

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on January 5, 2011. (Dkt. No. 90-21 at 1.) During his testimony, Plaintiff admitted that he had pictures in his pocket. (Dkt. No. 90-22 at 4-5.) Defendant McDermott found Plaintiff not guilty of threats and guilty of possessing property in an unauthorized area, harassment, refusing a direct order, and failing to comply with frisk procedures. (Dkt. No. 90-21 at 1.) Defendant McDermott sentenced Plaintiff to fifteen days of keeplock and loss of privileges, along with fifteen days that had previously been deferred. Id. Plaintiff served the keeplock sentence from January 3, 2011, through February 2, 2011. Id.

Broadly construed, the complaint asserts retaliation claims against Defendants McIntyre and McDermott and a due process claim against Defendant McDermott.

2. Retaliation

Plaintiff claims that Defendants McIntyre and McDermott retaliated against him for his complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss these claims.

Regarding the first element of Plaintiff's retaliation claim, as discussed above, writing a letter of complaint to a superior officer is at least arguably protected conduct. Jones, 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill, 389 F.3d at 384. Thus, the issue is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As discussed above, courts consider four factors in determining whether there was a causal connection between protected conduct and adverse action. Baskerville, 224 F. Supp. 2d at 732. First, as with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer sometime after December 2, 2010. (Dkt. No. 9 ¶¶ 11-12.) The record shows that Defendant McIntyre issued the misbehavior report on January 3, 2011, and that Defendant McDermott conducted the disciplinary hearing on January 5, 2011. (Dkt. No. 90-21 at 1, 4.) Thus, Plaintiff has established temporal proximity. Second, as noted above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Third, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-21 at 1.) Finally, Plaintiff does not allege any specific statements by either Defendant McIntyre or Defendant McDermott connecting his letter of complaint to Defendant Fischer to this misbehavior report and disciplinary hearing. (Dkt. No. 9; Dkt. No. 99.) Thus, again, timing appears to be the only factor supporting a finding of causal connection. As established above, timing alone is insufficient. Slattery, 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection of his retaliation claims against Defendants McIntyre and McDermott. Therefore, I recommend that the Court grant Defendants' motion and dismiss this claim.

3. Due Process

Plaintiff claims that Defendant McDermott violated his right to due process during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

Plaintiff received advanced written notice of the charges against him. (Dkt. No. 90-21 at 3.) He did not request any witnesses. Id. Plaintiff received a written statement of Defendant McDermott's disposition, which stated that Defendant McDermott relied on the misbehavior report in reaching his disposition and imposed the punishment "[t]o impress upon this inmate not to act in this manner." Id. at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports Defendant McDermott's ruling. Specifically, Plaintiff admitted in his hearing testimony that he had pictures in his pocket. (Dkt. No. 90-22 at 4-5.) Accordingly, Defendant McDermott's decision was not arbitrary. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this claim.

E. January 21, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about January 12, 2011, he wrote to Defendant Fischer complaining about the "constant harassment" by the staff at Coxsackie Correctional Facility. (Dkt. No. 9 ¶ 16.)

The record shows that a non-defendant correctional officer issued two misbehavior reports to Plaintiff on January 21, 2010. (Dkt. No. 90-23 at 5-6.) In the first, the officer charged Plaintiff with disobeying a direct order and creating a disturbance because he refused to stop yelling across the tier to another inmate. Id. at 5. In the second, issued a little more than an hour later, the officer charged Plaintiff with unauthorized exchange, lying to staff, and disobeying a direct order after seeing Plaintiff exchange stamps for tobacco via a "string-like line" between Plaintiff's cell and another inmate's cell. Id. at 6. Plaintiff pleaded not guilty to all charges. Id. at 3.

Defendant McDermott conducted the disciplinary hearing on the misbehavior reports on January 25, 2011. (Dkt. No. 90-23 at 1.) Defendant McDermott found Plaintiff guilty of all charges and sentenced him to forty-five days of keeplock and loss of privileges. Id. Plaintiff served the keeplock sentence from February 2, 2011, to March 19, 2011. Id. Defendant Miller affirmed the decision. (Dkt. No. 90-15 at 5-6.)

Broadly construed, the complaint asserts retaliation and due process claims against Defendant McDermott and a due process claim against Defendant Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendant McDermott retaliated against him for his letter of complaint to Defendant Fischer by finding him guilty at the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

Regarding the first element of Plaintiff's retaliation claim, as discussed above, writing a letter of complaint to a superior officer is at least arguably protected conduct. Jones, 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, imposing a keeplock sentence constitutes adverse action. Gill, 389 F.3d at 384. Thus, the issue is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As noted above, courts consider four factors when determining the causal connection issue. Baskerville, 224 F Supp. 2d at 732. Regarding the first factor, Plaintiff has raised a triable issue of fact as to temporal proximity by alleging that he wrote to Defendant Fischer on January 12, 2011, and that Defendant McDermott conducted the disciplinary hearing on January 25, 2011. (Dkt. No. 9 ¶ 16; Dkt. No. 90-23 at 1.) Regarding the second factor, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter or on appeal. (Dkt. No. 90-15 at 5-6; 90-23 at 1.) Regarding the fourth factor, Plaintiff has not alleged that Defendant McDermott made any comments regarding his motivation at the January 25, 2011, disciplinary hearing. (Dkt. No. 9; Dkt. No. 99 ¶¶ 64-73.) Thus, timing appears to be the only factor supporting a finding of causal connection. As previously discussed, timing alone is insufficient to support such a finding. Slattery, 248 F.3d at 95. Thus, Plaintiff has not raised a triable issue of fact regarding the causal connection element of his retaliation claim against Defendant McDermott. Therefore, I recommend that the Court grant Defendants' motion and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendants McDermott and Miller violated his due process rights by finding him guilty at the disciplinary hearing and affirming that decision. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant the motion and dismiss these claims.

Plaintiff received advanced written notice of the claims against him. (Dkt. No. 90-23 at 3.) Plaintiff requested that Inmate Bush testify, and that request was granted.¹² Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior reports in reaching his decision and that he imposed the punishment "[t]o impress upon this inmate that this type of misconduct will not be tolerated." Id. at 2.

12 Unfortunately, the transcript of the majority of Inmate Bush's testimony states that it was inaudible on the audio tape. (Dkt. No. 90-24 at 6-8.)

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior reports, Inmate Bush's testimony, and Plaintiff's testimony. (Dkt. No. 90-24.) He was able to weigh the credibility of the witnesses who appeared before him. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff's due process rights during his conduct of the hearing or that Defendant Miller violated Plaintiff's due process rights by affirming the decision. Therefore, I recommend that the Court grant Defendants' motion and dismiss these claims.

F. March 28, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about March 27, 2011, he wrote another letter to Defendant Fischer complaining about harassment. (Dkt. No. 9 ¶ 17.) Plaintiff alleges that after writing the letter, he was released from keeplock confinement and moved back to Cellblock C-3 where he "became a target of harassment" by Defendant McIntyre. (Dkt. No. 9 ¶ 18.)

Plaintiff alleges that on or about March 28, 2011, he returned to his cell block from the prison law library. (Dkt. No. 9 ¶ 19.) Defendant McIntyre saw Plaintiff and stated to Defendant Catlin, "King like[]s to write complaint[]s against officer[]s in Coxsackie and you know what we do to people like him." Id. Defendant Catlin smiled and stated, "[Y]es, we do like we always do, jump on them and write tickets." Id. Defendant Catlin declares that this exchange "never happened and is fabricated." (Dkt. No. 90-5 ¶ 6.)

Plaintiff alleges that on or about March 28, 2011, Defendant Catlin wrote Plaintiff a false misbehavior report and stated, "[T]his is only the beginning, you will be seeing move [sic] from my pals soon." (Dkt. No. 9 ¶ 20.) The record shows that in the report, Defendant Catlin stated that when he instructed Plaintiff to stop smoking in his cell, Plaintiff said "You caught me. I may as well finish my smoke." (Dkt. No. 90-25 at 4.) Defendant Catlin charged Plaintiff with disobeying a direct order and smoking. Id. Defendant Catlin declares that he issued the misbehavior report because he witnessed Plaintiff engaging in prohibited conduct, not in retaliation for protected conduct. (Dkt. No. 90-5 ¶ 7.) Indeed, he declares that he was not aware at the time that Plaintiff had written any letters of complaint. Id. Plaintiff pleaded not guilty to both charges. (Dkt. No. 90-25 at 3.)

The record shows that Defendant McDermott conducted the disciplinary hearing on the misbehavior report on April 6, 2011. (Dkt. No. 90-25 at 1.) Plaintiff alleges that he explained to Defendant McDermott that the misbehavior report was motivated by his complaints against staff. (Dkt. No. 9 ¶ 23.) Plaintiff alleges that he explained to Defendant McDermott that he had been threatened in response to his complaints. Id. Plaintiff testified that he was not smoking and that the misbehavior report was false. (Dkt. No. 90-26 at 3-4.) Defendant McDermott found Plaintiff guilty and sentenced him to thirty days in keeplock, suspended and deferred, plus loss of privileges. (Dkt. No. 90-25 at 1.) Plaintiff alleges that when the disciplinary hearing was over, Defendant McDermott turned off the tape recorder and stated, "[Y]ou picked the wrong one to write a complaint against, Officer McInty[re] is my brother in law." (Dkt. No. 9 ¶ 23.)

Broadly construed, the complaint asserts retaliation claims against Defendants Catlin and McDermott and a due process claim against Defendant McDermott as a result of this incident.

2. Retaliation

Plaintiff claims that Defendants Catlin and McDermott retaliated against him for his letters of complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court deny Defendants' motion.

Regarding the first element of Plaintiff's retaliation claim, complaining to a superior officer is at least arguably protected conduct. Jones, 665 F. Supp. 2d at 398. Regarding the second element, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill, 389 F.3d at 384. The issue, then, is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Catlin issued the misbehavior report on March 28, 2011. (Dkt. No. 90-25 at 4.) Defendant McDermott conducted the disciplinary hearing on April 6, 2011. Id. at 1. Thus, Plaintiff has established temporal proximity. Regarding the second factor, as reviewed above, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. Id.

Regarding the fourth factor, Plaintiff alleges statements by both Defendant Catlin and Defendant McDermott suggesting that they had retaliatory motives for their actions. Plaintiff alleges that Defendant Catlin said that "we always . . . write tickets" on inmates who write complaints. (Dkt. No. 9 ¶ 19.) Defendant Catlin declares that he never made that statement (Dkt. No. 90-5 ¶ 6) Plaintiff alleges that Defendant McDermott said, "[Y]ou picked the wrong one to write a complaint against, Officer McInty[re] is my brother in law." Id. ¶ 23. Defendant McDermott declares that he "never retaliated against Mr. King for filing grievances or letters of complaint." (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff's allegations about their statements are "baseless" because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) The parties' contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. "Credibility determinations . . . are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment."). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show "that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report." Gayle, 313 F.3d at 681 (citations omitted). Unlike the November 30, 2010, misbehavior report discussed in Section III(A)(2) above, the parties dispute whether Plaintiff committed the conduct charged in the misbehavior report. Unlike situations in which Plaintiff admitted, either at the disciplinary hearing or at his deposition, that he committed some or all of the charged conduct, Plaintiff flatly denies that he was smoking in his cell. (Dkt. No. 90-26 at 3-4; Dkt. No. 99 ¶¶ 74-75.) Therefore, Plaintiff has raised a triable issue of fact that Defendants Catlin and McDermott retaliated against him. Accordingly, I recommend that the Court deny Defendants' motion for summary judgment of this claim.

3. Due Process

Plaintiff claims that Defendant McDermott violated his right to due process during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss this claim.

Plaintiff received written notice of the charges against him. (Dkt. No. 90-25 at 3.) Plaintiff did not request any witnesses. Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior report in reaching his decision and that he imposed the punishment "[t]o impress upon the inmate to follow the smoking policy." Id. at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report and Plaintiff's testimony. (Dkt. No. 90-26.) He was able to weigh Plaintiff's credibility. Accordingly, his decision was not arbitrary.¹³ Thus, there is no triable issue of fact that Defendant McDermott violated Plaintiff's due process rights during his conduct of the hearing. Therefore, I recommend that the Court grant Defendants' motion and dismiss this claim.

13 As discussed above, Plaintiff has raised a triable issue of fact that the decision was retaliatory. Although these two conclusions may seem mutually exclusive, they do not contradict each other because different legal standards apply to the two claims.

G. April 5, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about April 5, 2011, Defendant Stevens stated to Plaintiff, "I heard that you like to write complaint[]s against staff. Well you pick[ed] the wrong one this time." (Dkt. No. 9 ¶ 21.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 8.)

Plaintiff alleges that later that day, upon returning to his cell from a program, his cell had been searched and he had received a misbehavior report issued by Defendant Stevens. (Dkt. No. 9 ¶ 22.) The record shows that the misbehavior report charged Plaintiff with possessing unauthorized expired medication, creating a fire safety hazard, and being noncompliant with cell orderliness rules. (Dkt. No. 90-27 at 4.) In the misbehavior report, Defendant Stevens stated that, while making a security round, he noticed an antenna hanging out of Plaintiff's cell window. Id. The antenna was constructed of bare wires, covered wires, and a can opener. Id. While investigating the antenna, Defendant Stevens also confiscated twenty Naproxen pills and a vial of cream that had been issued to Plaintiff at Attica Correctional Facility. Id. Defendant Stevens declares that, at the time he issued the misbehavior report, he was not aware that Plaintiff had written letters of complaint. (Dkt. No. 90-11 ¶ 9.)

The record shows that Defendant McDermott conducted the disciplinary hearing on April 15, 2011.¹⁴ (Dkt. No. 90-27 at 1.) Plaintiff pleaded not guilty to all charges. Id. at 3. Plaintiff alleges that he explained to Defendant McDermott that the misbehavior report was false and motivated by retaliation for Plaintiff having written complaints against prison staff concerning Plaintiff's refusing the request to assault another inmate. (Dkt. No. 9 ¶ 26.) Plaintiff alleges that Defendant McDermott stated that he did not care about Plaintiff's defense and that Plaintiff picked the wrong person to complain about. Id. Defendant McDermott stated that Plaintiff should have done what the correctional officers wanted and that doing so would have saved him from all of his problems. Id. Defendant McDermott found Plaintiff guilty and sentenced him to fifteen days loss of privileges.¹⁵ (Dkt. No. 90-27 at 1.)

14 The record shows that on April 15, 2011, Defendant McDermott also conducted the disciplinary hearing regarding a misbehavior report issued by former Defendant Doty. (Dkt. No. 90-29 at 1.) Plaintiff pleaded not guilty to both charges. Id. at 3. Defendant McDermott found Plaintiff guilty and sentenced him to sixty days in keeplock and loss of privileges. Id. at 1. Plaintiff served the keeplock sentence from April 15, 2011, through June 14, 2011. Id. As discussed further below in Section I, Defendant McDermott also began the disciplinary hearing regarding an April 13, 2011, misbehavior report on April 15, 2011. (Dkt. No. 90-31.)

15 Plaintiff alleges that on or about April 16, 2011, Plaintiff appealed Defendant McDermott's decision to Defendant Martuscello. (Dkt. No. 9 ¶ 28.) Plaintiff alleges that he explained to Defendant Martuscello the circumstances behind all of the misbehavior reports. Id. The record shows that this appeal related only to the decision regarding former Defendant Doty's misbehavior report. (Dkt. No. 90-15 at 6.) Defendant Miller affirmed that decision. Id. This appeal did not involve Defendant Stevens' misbehavior report and will not be discussed here.

Broadly construed, the complaint asserts retaliation claims against Defendants Stevens and McDermott and a due process claim against Defendants McDermott as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Stevens and McDermott retaliated against him for writing letters of complaint by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss these claims.

Regarding the first element of Plaintiff's retaliation claim, as discussed above, complaining to a superior officer is at least arguably protected conduct. Jones, 665 F. Supp. 2d at 398. Regarding the second element, as discussed above, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill, 389 F.3d at 384. The issue, then, is whether Plaintiff has raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse actions.

As with the claims discussed above, Plaintiff has established temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Stevens issued the misbehavior report on April 5, 2011. (Dkt. No. 90-27 at 4.) Defendant McDermott conducted the disciplinary hearing on April 15, 2011. Id. at 1. Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Regarding the second factor, as previously shown, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-27 at 1.)

Regarding the fourth factor, Plaintiff alleges that both Defendant Stevens and Defendant McDermott made statements suggesting that they had retaliatory motives for their actions. Plaintiff alleges that Defendant Stevens said "I heard that you like to write complaint[]s against staff. Well you pick[ed] the wrong one this time." (Dkt. No. 9 ¶ 21.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 8.) Plaintiff declares that Defendant McDermott said that he did not care about Plaintiff's defense and that Plaintiff picked the wrong person to complain about. (Dkt. No. 9 ¶ 26.) Defendant McDermott declares that he "never retaliated against Mr. King for filing grievances or letters of complaint." (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff's allegations about their statements are "baseless" because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) The parties' contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. "Credibility determinations . . . are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Rule, 85 F.3d at 1011 ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment."). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show "that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report." Gayle, 313 F.3d at 681 (citations omitted). Under Rule 118.21, which Plaintiff was charged with violating, "[i]nmates shall not create a fire, health or safety hazard in any area of the facility by improperly storing flammable materials or other property." N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(19)(iii). At the disciplinary hearing, Plaintiff asserted that he had not created a fire hazard but admitted that he attached a can opener to wires and hung it out a window. (Dkt. No. 90-28 at 4.) Courts are required to grant prison officials deference in their decisions regarding prison safety. Cutter v. Wilkinson, 544 U.S. 709, 723 (2009). Here, prison officials determined that the presence of a can opener and wires-which Plaintiff admitted having-created a safety hazard. Thus, there is no dispute that Plaintiff committed the conduct charged in the misbehavior report. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this claim.

3. Due Process

Plaintiff alleges that Defendant McDermott violated his due process rights during the disciplinary hearing. (Dkt. No. 9.) Defendants move for summary judgment of this claim. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court dismiss this claim.

Plaintiff received advanced notice of the claims against him. (Dkt. No. 90-27 at 3.) Plaintiff did not request any witnesses. Id. Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that relied on the misbehavior report in reaching his decision and that he imposed the punishment "[t]o impress upon this inmate not to act in this manner." Id. at 2.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report and Plaintiff's testimony before him. (Dkt. No. 90-28.) He was able to weigh Plaintiff's credibility. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff's due process rights during the hearing. Therefore, I recommend that the Court grant Defendants' motion and dismiss this claim.

H. Statements by Defendant Young

Plaintiff alleges that on April 9, 2011, Defendant Young had him brought to the dayroom area of Cellblock C-1. (Dkt. No. 9 ¶ 24.) Plaintiff alleges that in the presence of approximately five other officers, Defendant Young threatened Plaintiff. Id. Defendant Young allegedly told Plaintiff to "drop [Plaintiff's] complaints and the problems will stop." Id. Defendant Young allegedly stated that if Plaintiff continued to write complaints, that Plaintiff would "have a hard time here in Coxsackie." Id. Plaintiff alleges that he refused to drop his complaint and was returned to his cell. Id.

Plaintiff alleges that later in 2011, Defendant Young told Defendant Kane that Plaintiff likes to write complaints and to make sure that Plaintiff gets "the special treatment" while on keeplock. (Dkt. No. 9 ¶ 29.)

Broadly construed, the complaint asserts retaliation claims against Defendant Young as a result of these incidents. Defendants have not addressed these claims. (Dkt. No. 90-2.) For the reasons discussed below, I recommend that the Court sua sponte dismiss these claims because Plaintiff has not alleged any facts plausibly suggesting that Defendant Young took adverse action against him.

Under some circumstances, verbal threats may constitute adverse action, depending on their degree of specificity and the context in which they are uttered. See, e.g., Hepworth v. Suffolk County, No. 2:02-cv-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (denying summary judgment where "continued verbal threats" that inmate "would receive another beating or be killed" was sufficient "evidence . . . such that a reasonable jury could find that the officers unconstitutionally retaliated against [inmate] . . . for exercising his First Amendment" rights). Thus, vague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim. See, e.g., Bartley v. Collins, No. 95 Civ. 10616, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (stating that "verbal threats such as 'we going to get you, you better drop the suit,' do not rise to the level of adverse action") (citing Dawes, 239 F.3d at 493, for the proposition

that "[n]ot every unnecessary statement of a prison guard regarding an inmate's exercise of free speech violates the First Amendment"); Alicea v. Howell, 387 F. Supp.2d 227, 237 (W.D.N.Y.2005) (defendant's "alleged statements to plaintiff about there being 'no secrets in prison' and that plaintiff would 'have to pay the consequences' for filing a grievance against [defendant] d[id] not give rise to a First Amendment retaliation claim"); Cruz v. Hillman, No. 01 Civ. 4169, 2002 WL 31045864, at *7 (S.D.N.Y. May 16, 2002) (allegation that defendant made statement which "expressed his dislike for inmates who file civil lawsuits, and later came to plaintiff's cell and said 'Green Haven is an open battlefield, so be careful' " was insufficient to state retaliation claim).

Bumpus v. Canfield, 495 F. Supp. 2d 316, 326 (W.D.N.Y. 2007) (allegation that correctional officer "chastised" prisoner and said that he was "getting tired of" prisoner filing grievances insufficient to state a retaliation claim). Plaintiff's allegations about Defendant Young are not distinguishable from the type of statements held to be non-actionable. Therefore, I recommend that the Court dismiss the retaliation claims against Defendant Young sua sponte pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2).

I. April 13, 2011, Misbehavior Report

1. Facts

Plaintiff alleges that on or about April 13, 2011, Defendant Stevens stated to Plaintiff, "[Y]ou [are] still here, you're not [on] keeplock. Well I will take care of that." (Dkt. No. 9 ¶ 25.) Defendant Stevens declares that he never made that statement. (Dkt. No. 90-11 ¶ 11.)

The record shows that Defendant Stevens issued a misbehavior report to Plaintiff on April 13, 2011, charging him with possessing gang-related literature, possessing handwritten material to a potential hate crime, possession of altered state property, possession of prohibited items, and possession of excess property. (Dkt. No. 90-31 at 4.) According to the misbehavior report, Defendant Stevens discovered seven categories of contraband in Plaintiff's cell during an assigned daily cell search. Id. These ranged from altered sheets and extra sweatshirts to twelve photographs "depicting gang hand signs and potential criminal activity including an order to murder." Id. A note on the back of one of the photographs said, "If you see this cat don't trust him or just kill him!" Id. at 10. A note on the back of another said, "Silk the bitch ass cat!" Id. Defendant Stevens declares that he did not issue the misbehavior report in order to retaliate against Plaintiff. (Dkt. No. 90-11 ¶ 12.) Rather, he declares, he issued the misbehavior report because Plaintiff was in violation of facility rules. Id. In particular, he declares that, based on his training in gang recognition and signs of gang activities, he was concerned about the photographs. Id. ¶¶ 13-15.

The record shows that Defendant McDermott began conducting the disciplinary hearing regarding the misbehavior report on April 15, 2011. (Dkt. No. 90-31 at 1.) Plaintiff pleaded not guilty to all charges. Id. at 3. The hearing was continued to May 6, 2011. Id. at 1. Defendant McDermott found Plaintiff guilty of all charges and sentenced him to thirty days of keeplock, loss of privileges, and confiscation of some property. Id. Plaintiff served the keeplock sentence from June 14, 2011, to July 14, 2011. Id. Defendant Miller affirmed the decision. (Dkt. No. 90-15 at 6.)

Broadly construed, the complaint asserts retaliation claims against Defendants Stevens and McDermott and due process claims against Defendants McDermott and Miller as a result of this incident.

2. Retaliation

Plaintiff alleges that Defendants Stevens and McDermott retaliated against him for writing letters of complaint to Defendant Fischer by issuing the misbehavior report and finding him guilty. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 19-25.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss these claims.

Regarding the first element of Plaintiff's retaliation claims, complaining to a superior officer is at least arguably protected conduct. Jones, 665 F. Supp. 2d at 398. Regarding the second element, both filing a misbehavior report and imposing a keeplock sentence constitute adverse action. Gill, 389 F.3d at 384. The issue, then, is whether Plaintiff has a raised a triable issue of fact that there was a causal connection between the protected conduct and the adverse action.

As with the claims discussed above, Plaintiff has raised a triable issue of fact regarding temporal proximity. Plaintiff alleges that he wrote a letter of complaint to Defendant Fischer on March 27, 2011. (Dkt. No. 9 ¶ 17.) Defendant Stevens issued the misbehavior report on April 13, 2011. (Dkt. No. 90-31 at 4.) Defendant McDermott began the disciplinary hearing on April 15, 2011. Id. at 1. Thus, Plaintiff has raised a triable issue of fact as to temporal proximity. Regarding the second factor, Plaintiff has not established that he had a good disciplinary record before the alleged protected conduct. (Dkt. No. 90-15.) Regarding the third factor, Plaintiff was not vindicated at the hearing on the matter. (Dkt. No. 90-31 at 1.)

Regarding the fourth factor, Plaintiff alleges that Defendant Stevens said "[Y]ou're not [on] keeplock. Well I will take care of that" on the same day he issued the misbehavior report. (Dkt. No. 9 ¶ 25.) Defendant Stevens denies making that statement. (Dkt. No. 90-11 ¶ 11.) Plaintiff declares that Defendant McDermott said that he did not care about Plaintiff's defense and that Plaintiff picked the wrong person to complain about. (Dkt. No. 9 ¶ 26.) Defendant McDermott declares that he "never retaliated against Mr. King for filing grievances or letters of complaint." (Dkt. No. 90-9 ¶ 6.) Defendants argue that Plaintiff's allegations about their statements are "baseless" because they have denied making those statements. (Dkt. No. 90-2 at 24-25.) Again, the parties' contrasting version of events raises credibility issues that cannot be resolved on a motion for summary judgment. "Credibility determinations . . . are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Rule, 85 F.3d at 1011 ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment."). Thus, Plaintiff has raised a triable issue of fact regarding the fourth factor.

Having raised a triable issue of fact as to two of the causal connection factors, the burden shifts to Defendants to show "that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report." Gayle, 313 F.3d at 681 (citations omitted). Defendants have met that burden. Plaintiff admitted in testimony at the disciplinary hearing that he did, indeed, have altered sheets, extra sweatshirts, fifty cassette tapes, and two pillows. (Dkt. No. 90-32 at 4.) Plaintiff does not dispute that he possessed the photographs or the content of the notes on the back of them. Viewing the photographs, it was not arbitrary for Defendants to conclude that they depicted gang activity. (Dkt. No. 90-31 at 5-11.) Thus, Defendants have shown that Plaintiff committed the prohibited conduct charged in the misbehavior report. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss these claims.

3. Due Process

Plaintiff alleges that Defendants McDermott and Miller violated his right to due process during the disciplinary hearing and by affirming the result of that hearing. (Dkt. No. 9.) Defendants move for summary judgment of these claims. (Dkt. No. 90-2 at 25-27.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and dismiss these claims.

Plaintiff received advanced notice of the charges against him. (Dkt. No. 90-31 at 3.) Plaintiff received a written statement of the disposition, in which Defendant McDermott stated that he relied on the misbehavior report in reaching his decision and that he imposed the punishment "[t]o impress upon this inmate that this type of misconduct will not be tolerated." Id. at 2.

Plaintiff requested six witnesses, and Defendant McDermott allowed two of them to testify. (Dkt. No. 90-31 at 3.) Defendant McDermott refused to call the package room sergeant to testify about Plaintiff's attempts to get rid of the excessive cassette tapes because "I don't see what the package room Sergeant is going to tell me other than what I already know, that you have more tapes than you['re] supposed to and yeah, you may have been making a step toward getting rid of them, but you didn't." (Dkt. No. 90-32 at 8.) Defendant McDermott refused to call two mental health staff members, who Plaintiff said would testify that he had informed them about harassment by correctional officers. Id. at 8-12. It is not clear from the record why Defendant McDermott refused to call Defendant Superintendent Martuscello as a witness.

Defendant McDermott's refusal to call the witnesses did not violate Plaintiff's right to due process. An inmate's right to call witnesses is not the same as a defendant's in a criminal trial, but rather is qualified by the circumstances of prison life. Wolff, 418 U.S. at 566-67. The Supreme Court has stated that disciplinary hearing officers must have the discretion to deny witnesses, noting that valid bases for the denial of witnesses would include irrelevance, lack of necessity, and other hazards particular to each case. Id. Here, Defendant McDermott reasonably concluded that the proposed witnesses would offer duplicative testimony.

Regarding the issue of whether Defendant McDermott was a fair and impartial hearing officer, evidence in the record supports his ruling. Defendant McDermott had the misbehavior report, Plaintiff's testimony, and the testimony of two witnesses before him. (Dkt. No. 90-32.) He was able to view the photographs and property discovered in Plaintiff cell. Id. He was able to weigh the witnesses' credibility. Accordingly, his decision was not arbitrary. Thus, there is no triable issue of fact that he violated Plaintiff's due process rights during the hearing or that Defendant Miller violated Plaintiff's due process rights by affirming the decision. Therefore, I recommend that the Court grant Defendants' motion and dismiss these claims.

J. June 6, 2011, Separation From Other Inmates

Plaintiff alleges that on or about June 6, 2011, Defendant Kane separated Plaintiff from the rest of the inmates during keeplock recreation as retaliation for the complaints Plaintiff wrote against Defendants. (Dkt. No. 9 ¶ 29.) Defendants have not addressed this claim. (Dkt. No. 90-2.) I recommend that the Court dismiss this claim sua sponte for lack of adverse action. "Case law suggests that the isolated or sporadic denial of privileges do not suffice to state a claim of actionable retaliation." Lunney v. Brureton, No. 04 Civ. 2438 (LAK) (GWG), 2007 U.S. Dist. LEXIS 38660, at *65-66, 2007 WL 1544629, at *20-21 (S.D.N.Y. May 29, 2007¹⁶) (collecting cases).¹⁷ Here, Plaintiff does not even allege that he was denied privileges. He alleges that he was separated from other inmates during recreation, not that he was denied recreation. Therefore, I recommend that the Court dismiss this claim sua sponte.

16 Lexis and Westlaw list different dates for this decision. The Court has used the date listed by Westlaw.

17 The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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K. Defendants Fischer and Martuscello

Defendants move for summary judgment of the claims against Defendants Fischer and Martuscello for lack of personal involvement. (Dkt. No. 90-2 at 16-18.) The claims against Defendant Martuscello should be dismissed for lack of personal involvement because there is no evidence that he was involved in any way with the surviving claim against Defendants Catlin and McDermott. (See Dkt. No. 90-15 at 6.) Similarly, given the lack of record evidence about what any letters that Plaintiff wrote to Defendant Fischer said or whether those letters were sent to Defendant Fischer's proper address, it is recommended that the claims against Defendant Fischer also be dismissed for lack of personal involvement.

ACCORDINGLY, it is

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 90) be GRANTED IN PART AND DENIED IN PART . Specifically, I recommend that the Court dismiss all claims except the retaliation claims against Defendants Catlin and McDermott arising from the March 28, 2011, misbehavior report and the April 6, 2011, disciplinary hearing on that report; and it is further

RECOMMENDED that the Court sua sponte dismiss the claims against Defendants Young and Kane; and it is further

ORDERED that the Clerk provide Plaintiff with a copy of Lunney v. Brureton, No. 04 Civ. 2438 (LAK) (GWG), 2007 U.S. Dist. LEXIS 38660, 2007 WL 1544629 (S.D.N.Y. May 29, 2007); and it is further

ORDERED that the Clerk amend the caption to change the spelling of Defendant "C.O. Hessle"'s last name to "Hoessle" and the spelling of Defendant "C.O. McIntyer"'s last name to "McIntyre."

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: March 17, 2015

Syracuse, New York

/s/_________

Théfèse Wiley Dancks

United States Magistrate Judge