Opinion
Civil Action No. 9:11-CV-0459 (GLS/DEP)
03-11-2015
DAVID READ, Plaintiff, v. DAWN M. CALABRESE and M. D. KINDERMAN, Defendants.
APPEARANCES: FOR PLAINTIFF: DAVID READ, Pro Se 10-A-5909 Collins Correctional Facility P.O. Box 340 Collins, NY 14034 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: KEVIN M. HAYDEN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: DAVID READ, Pro Se
10-A-5909
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: KEVIN M. HAYDEN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff David Read, a New York State prison inmate, has commenced this action pursuant 42 U.S.C. § 1983, claiming that his civil rights were violated by two individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). In the claims that remain in the action, plaintiff alleges that the two defendants unlawfully retaliated against him by issuing a misbehavior report in response to his filing of grievances and that his procedural due process rights were violated during the course of the disciplinary hearing conducted to address the charges set forth in the misbehavior report.
Now that discovery in the action is closed, defendants have moved for summary judgment dismissing his claims on various grounds. Specifically, defendants argue that (1) plaintiff is procedurally barred from asserting the claims in this action based upon his failure to exhaust all available administrative remedies before filing suit; (2) plaintiff's due process and retaliation claims are deficient as a matter of law; and (3) in any event, defendants are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently in the custody of the DOCCS. See generally Dkt. No. 39. Beginning in or about January 14, 2011, and during all times relevant to the events giving rise to this action, plaintiff was confined at the Marcy Correctional Facility ("Marcy"), located in Marcy, New York. Dkt. No. 75-3 at 8; Dkt. No. 75-5 at 2; Dkt. No. 75-21 at 2. Reed remained at Marcy until May 31, 2011, when he was transferred into the Groveland Correctional Facility. Dkt. No. 75-3 at 55.
Plaintiff's claims in this case emanate from a decision by defendant Dawn CalaBrese, a DOCCS corrections counselor employed at Marcy, to place plaintiff's wife, Michele Read, on a negative correspondence list pursuant to a DOCCS directive preventing inmates from calling the residence of a victim of a crime or a person listed on an order of protection. Dkt. No. 39 at 3, 22. Defendant CalaBrese made the decision to place plaintiff's wife on the list after learning, through a telephone call with personnel at the Rockland County Sheriff's Office, that an order of protection against Read was issued to his wife by the Town of Haverstraw Justice Court and that plaintiff's wife was the victim of the crime for which plaintiff was incarcerated. Dkt. No. 75-5 at 2. Defendant CalaBrese delivered a DOCCS form entitled "Addition of Name to Negative Correspondence/Telephone List" to plaintiff on January 25, 2011, advising that his wife had been added to his negative correspondence and telephone list. Dkt. No. 75-5 at 2; Dkt. No. 75-6 at 1. That form directed plaintiff to immediately discontinue any form of communication with his wife and advised that any efforts by him to contact his wife would lead to disciplinary action. Dkt. No. 75-6 at 1.
During his deposition, plaintiff admitted that his wife had been granted an order of protection against him. Dkt. No. 75-3 at 5.
On January 31, 2011, following the issuance of the memorandum restricting plaintiff from communicating with his wife, Read sent CalaBrese a handwritten note objecting to the removal of his wife from his correspondence list. Dkt. No. 75-5 at 3; Dkt. No. 75-9. Defendant CalaBrese responded to plaintiff with another memorandum on that same date, explaining her decision. Dkt. No. 75-5 at 3; Dkt. No. 75-10 . Defendant CalaBrese noted that Read's wife was the victim of the criminal offense for which he was incarcerated and that, although there was a temporary order of protection issued to his wife on July 7, 2010, and expiring on January 5, 2011, the Rockland County Sheriff's Office suggested that an order of protection from the Haverstraw Court in favor of plaintiff's wife was still in effect until March 22, 2011. Id. Defendant CalaBrese advised Read to communicate with the Rockland County Court, Haverstraw Court, and Suffern Village Court to request verification that there was no outstanding, active order of protection in place against him in favor of his wife. Dkt. No. 75-10 .
On February 1, 2011, the clerk of the Haverstraw Justice Court provided a written confirmation advising that no active order of protection from that court was in effect at the time against plaintiff and in favor of his wife. Dkt. No. 39 at 4, 23; Dkt. No. 75-12 . Upon receipt of that written confirmation, plaintiff requested that his wife be restored to his permissive correspondence list. Dkt. No. 39 at 4. In an apparent response to that request, defendant Mark D. Kinderman, the Deputy Superintendent of Programs at Marcy, sent plaintiff a memorandum, dated February 3, 2011, informing him that, because his wife was the victim of the crime for which he was incarcerated, and information had been received from the Rockland County Sheriff's Office indicating an order of protection against him was in effect, his wife would remain on the negative correspondence list. Dkt. No. 39 at 4, 24; Dkt. No. 75-13 . In that memorandum, defendant Kinderman made the following further observation:
I additionally note that you have been extremely uncooperative with Counseling staff who attempted to work on the issue and explain the situation more fully. I strongly advise you to take a more positive approach to your programming, which includes 1-to-1 interviews with staff.Dkt. No. 75-13 .
Plaintiff subsequently wrote defendant Kinderman on February 13, 2011, again requesting that his wife be added to correspondence list. Dkt. No. 39 at 5, 25; Dkt. No. 75-14 . In addition, in an undated note received by prison officials at Marcy on February 14, 2011, plaintiff requested that the following telephone numbers be added to his contact list:
| Michelle Read, Wife | 845-918-1230 |
| Heidi Yerwich, Mom | 845-354-1362 |
Dkt. No. 75-15 . In response to that request, defendant CalaBrese added Heidi Yerwich to plaintiff's contact list but denied his request with respect to his wife. Id.; Dkt. No. 75-5 at 4.
Plaintiff submitted another undated note, received by prison officials on February 15, 2011, requesting that the following additional individuals be added to his telephone contact list:
| Michelle Read | 845-918-1230 |
| Heidi Yourwich - Mom | 845-354-1362 |
| Judy - Mom | 845-290-0351 |
Dkt. No. 75-5 at 4; Dkt. No. 75-16 . On the same date, defendant CalaBrese advised plaintiff that Heidi Yerwich (845-354-1362) and Judy Surdak (845-290-0351) were added to plaintiff's contact list, but that his wife (845-918-1230) could not be added due to a potential order of protection and the fact that DOCCS personnel were awaiting responses from the courts regarding whether that order of protection was in effect against him. Dkt. No. 75-5 at 5; Dkt. No. 75-17 .
Plaintiff then submitted a "Phone Change/Add Request" form on February 15, 2011, requesting that "Judy Read," identified in the form by plaintiff as "Mom" and whose phone number is allegedly 845-918-1230, be added to his contact list. Dkt. No. 75-5 at 5; Dkt. No. 75-18 . Defendant CalaBrese denied that request because plaintiff's mother and mother-in-law were both already named on plaintiff's contact list. Id.
This telephone number is the same as the number listed for plaintiff's wife on earlier requests. Dkt. Nos. 75-15, 75-16.
On February 16, 2011, defendant CalaBrese issued plaintiff a misbehavior report accusing him of refusing to follow direct orders to refrain from contacting his wife violating "phone home" rules, and lying. Dkt. No. 75-5 at 5; Dkt. No. 75-20 ; Dkt. No. 75-22 . That misbehavior report was issued based upon a telephone log maintained by the DOCCS indicating that plaintiff had attempted to telephone his wife using the phone number 845-918-1230 on at least fifteen occasions between February 8, 2011 and February 15, 2011. Dkt. No. 75-5 at 5; Dkt. No. 75-19 at 1-4.
The misbehavior report also accused plaintiff of violating prison rules concerning phoning home and lying. Dkt. No. 75-20 .
A Tier III disciplinary hearing was conducted by defendant Kinderman, beginning on February 22, 2011 and concluding on March 4, 2011, to address the allegations in the misbehavior report issued to the plaintiff. Dkt. No. 75-21 at 2; Dkt. No. 75-23 . At the close of the hearing, defendant Kinderman found plaintiff guilty of all charges after concluding that there was overwhelming evidence demonstrating that he had failed to comply with direct orders to refrain from contacting his wife and was dishonest in his attempts to circumvent those orders. Dkt. No. 75-21 at 2; Dkt. No. 75-23 at 19. Defendant Kinderman issued a penalty that included 180 days of disciplinary SHU confinement, 90 days of which were suspended, together with a corresponding loss of telephone, commissary, packages and recreation privileges and the recommended loss of three months of good-time credits. Dkt. No. 75-21 at 3; Dkt. No. 75-23 at 19; Dkt. No. 75-24 at 1. As result of that determination, plaintiff spent seventy-six days in SHU confinement between March 4, 2011, and May 19, 2011. Dkt. No. 75-21 at 3.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; see also Hynes v. Squillace, 143 F.3d 653, 655 n.1 (2d Cir. 1998). Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Hynes, 143 F.3d 655 n.1. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. Id.
The record now before the court discloses two grievances filed by plaintiff concerning the above-described events. Dkt. No. 75-11 ; Dkt. No. 77-7 at 6-7, 9. In both grievances, one of which is dated January 31, 2011, and the other, while not dated, is identified as MCY-15113-11, plaintiff complains that defendant CalaBrese has placed his wife on a negative correspondence list without justification. Dkt. No. 77-7 at 6-7, 9. Neither grievance complains of defendant Kinderman's conduct. Id. Although it is not clear from the record how prison officials responded to the grievance dated January 31, 2011, on February 28, 2011, the Inmate Grievance Review Committee ("IGRC") denied grievance number MCY 15113-11. Id. at 12. According to Jeffrey Hale, the DOCCS Assistant Director of the Inmate Grievance Program, there is no record of plaintiff filing an appeal of any grievance to the agency's Central Office Review Committee ("CORC"). Dkt. No. 75-26 at 2.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about April 22, 2011. Dkt. No. 1. Following initial review of plaintiff's complaint and accompanying in forma pauperis application, which resulted in dismissal of certain claims and the filing of a waiver pursuant to Peralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006), relinquishing any clams affecting the length of plaintiff's confinement, defendants moved for dismissal of plaintiff's complaint on a variety of grounds. Dkt. Nos. 13, 15, 30. Chief Judge Gary L. Sharpe granted defendants' motion, with leave to replead, by decision and order issued on August 2, 2012. Dkt. No. 37.
On August 29, 2012, plaintiff submitted an amended complaint, the operative pleading currently before the court. Dkt. No. 39. The next day, defendants filed a motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted. Dkt. No. 40. On August 29, 2013, I issued a report recommending that all claims be dismissed with the exception of plaintiff's procedural due process and First Amendment retaliation causes of action. Dkt. No. 51. The report was adopted by Chief Judge Sharpe on October 4, 2013. Dkt. No. 53.
On May 5, 2014, following the close of discovery, defendants moved for summary judgment seeking dismissal of plaintiff's remaining claims. Dkt. No. 75. In their motion, defendants CalaBrese and Kinderman assert that plaintiff is procedurally barred from pursuing his claims based upon his failure to exhaust available administrative remedies before commencing suit. Dkt. No. 75-28 at 9-11. In addition, they argue that plaintiff's due process and retaliation claims lack merit, and that they are entitled to qualified immunity from suit. Id. at 11-17. Defendants' motion, to which plaintiff has since responded, Dkt. Nos. 77, 78, is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Exhaustion of Available Administrative Remedies
As a threshold, procedural matter, defendants argue that plaintiff's remaining claims should be dismissed based upon his failure to exhaust available administrative remedies before commencing suit. Dkt. No. 75-28 at 9-11. The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In accordance with the PLRA, the DOCCS has instituted a grievance procedure, entitled the Inmate Grievance Program ("IGP"), and made it available to inmates. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's inmate grievance resolution committee ("IGRC") has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS CORC, which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can be seen, at each step of the IGP process a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).
In this case, the undisputed record establishes that plaintiff did not file a grievance alleging either that defendant CalaBrese's issuance of the misbehavior report to plaintiff was in retaliation for his having filed earlier grievances against her or that defendant Kinderman denied him procedural due process during the course of the disciplinary hearing that followed. Dkt. No. 77-7 at 6-7, 9. As was noted above, the only two grievances disclosed in the record, one dated January 31, 2011 and the other identified as MCY-15113-11, addressed the underlying issue regarding whether his wife was properly placed on his list of prohibited contacts, rather than focusing on the issues involved in the instant action. Id. Moreover, even if the grievances had marked the commencement of plaintiff's efforts to present his procedural due process and retaliation arguments to prison authorities, he failed to fully satisfy his exhaustion requirement by pursuing those grievances through to the CORC. Dkt. No. 75-26 at 2; Dkt. No. 75-27 .
Before accepting defendants' argument concerning failure to exhaust, the court must further inquire into whether plaintiff should be excused from his failure to exhaust based upon the circumstances of this case. In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g., Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004); see also Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.
There is nothing in the record now before the court that suggests plaintiff should be excused from failing to exhaust administrative remedies. In his response to defendants' statement of undisputed material facts, filed in support of the pending motion pursuant to rule 7.1(a)(3) of the local rules of practice for this court, plaintiff appears to suggest that prison officials interfered with his ability to file an appeal of his grievance while he was confined in the SHU. Dkt. No. 77-1 at 3. Specifically, plaintiff alleges as follows:
There was an appeal sent to the Marcy Facility and it was from the [SHU] plaintiff used the [Prison mailbox Rules[.] This was done when a prisoner is in [SHU] confinement , [sic] the submitte [sic] the appeal thru the side of the cell door.The [sic] Correctional officers pick this up in the morning.At [sic] time when the officer's [sic] see the content's [sic] of such appeal they are known to destroy the mail by the prisoner whom is confined in [Shu] [sic] box.However , [sic] Plaintiff did submit this appeal and never received a reply .Plaintiff [sic] would never know if a reply was given due to his being[Moved].Id. (all brackets and bracketed text, except [sic], in original). Assuming the allegation is true, and assuming plaintiff makes reference to a grievance that complains of the retaliation and due process violations by defendants CalaBrese and Kinderman alleged in the amended complaint, his explanation is not sufficient to excuse his failure to exhaust administrative remedies for four reasons. First, the allegation is not sworn and there is no evidence in the record to support this allegation, including any mention of the interference in plaintiff's amended complaint. See generally Dkt. No. 39. Although the Second Circuit has cautioned that "[w]hen a pro se's represented opponent files a motion for summary judgment supported by affidavits, the pro se litigant cannot be presumed to aware of the fact that he must file his own affidavits contradicting his opponent's," this premise does apply in this instance, where plaintiff filed no less than eleven affidavits in opposition to defendants' motion. Dkt. Nos. 77-2 - 77-10, 77-12, 78. Forsyth v. Fed'n Employment & Guidance Serv., 409 F.3d 565, 570 (2d Cir. 2005).
Second, although the allegation suggests that some corrections officers destroy prisoners' mail, plaintiff does not explicitly contend that a corrections officer destroyed either his mail or his appeal that relates to this case. Dkt. No. 77-1 at 3.
Third, assuming plaintiff contends that his appeal of a grievance related to his retaliation and/or due process allegations was destroyed by a corrections officer, plaintiff does not allege that either defendant CalaBrese or defendant Kinderman participated in destruction of the appeal. See Atkins v. Menard, No. 11-CV-9366, 2012 WL 4026840, at *3 (N.D.N.Y. Sept. 12, 2012) (Suddaby, J.) ("Generally, a defendant in an action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies based on the actions (or inactions) of other individuals." (quotation marks omitted) (collecting cases)).
Fourth, the PLRA requires that inmates appeal to the next level within the IGP if they do not receive a timely response to a grievance. See, e.g., Rosado v. Fessetto, No. 09-CV-0067, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010) (Baxter, M.J.), report and recommendation adopted by 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010) (Hurd, J.), ("Courts have consistently held . . . that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement."); Murray v. Palmer, No. 03-CV-1010, 2008 WL 2522324, at *15, 18 & n.46 (N.D.N.Y. June 20, 2008) (Hurd, J., adopting report and recommendation by Lowe, M.J.) ("[E]ven if Great Meadow C.F. did not . . . have a functioning grievance-recording process (thus, resulting in Plaintiff's alleged grievance never being responded to), Plaintiff still had the duty to appeal that non-response to the next level."); Veloz v. N.Y., 339 F. Supp. 2d 505, 515-16 (S.D.N.Y. 2004), aff'd, 178 F. App'x 39 (2d Cir. 2006), (rejecting the plaintiff's argument that the prison's grievance procedure had been rendered unavailable by the practice of prison officials' losing or destroying his grievances because, inter alia, he should have "appeal[ed] these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming"); Croswell v. McCoy, No. 01-CV-0547, 2003 WL 962534, at *4 (N.D.N.Y. Mar. 11, 2003) (Sharpe, M.J.) ("If a plaintiff receives no response to a grievance and then fails to appeal it to the next level, he has failed to exhaust his administrative remedies as required by the PLRA.").
Turning now to plaintiff's petition pursuant to Article 78 of the New York Civil Practice Law and Rules ("Article 78"), a careful review of the materials submitted in support of the petition reveals that it relates directly to defendant CalaBrese's conduct regarding the negative correspondence list. Dkt. No. 77-7 at 16-31. The petition does not allege facts regarding retaliatory animus on the part of defendant CalaBrese or alleged procedural due process violations committed by defendant Kinderman during the Tier III disciplinary hearing. Id. Accordingly, to the extent plaintiff intends to demonstrate that he exhausted available administrative remedies by appealing his disciplinary conviction, that argument fails.
See Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *3 (Mar. 31, 2010) (Suddaby, J.) ("[U]nder certain circumstances, an inmate may exhaust his administrative remedies by raising his claim during a related disciplinary proceeding." (citing cases)).
For all of these reasons, and in light of the absence of any other record evidence suggesting that plaintiff should be excused from the PLRA's exhaustion requirement, I recommend plaintiff's complaint in this action be dismissed for failing to exhaust all administrative remedies before commencing this action.
Notwithstanding this recommendation to dismiss for failure to exhaust, I have addressed the merits of plaintiff's claims out of an abundance of caution.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Merits of Plaintiff's Claims
1. Retaliation
Plaintiff alleges that defendant CalaBrese issued him a misbehavior report in retaliation for the grievances filed against her. Dkt. No. 38 at 3-6; Dkt. No. 75-3 at 46. An inmate's First Amendment rights are abridged when a prison official takes adverse action against him motivated by his exercise of a constitutional right. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). To establish a claim under section 1983 for retaliatory conduct, a plaintiff must prove that (1) he engaged in protected conduct; (2) the defendant took adverse action against him, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99- CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
Because of the relative ease with which claims of retaliation can be incanted, the Second Circuit has advised courts to scrutinize the claim with particular care. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). The Second Circuit explained that
[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.Dawes, 239 F.3d at 491.
In this instance, plaintiff has offered no evidence from which a reasonable factfinder could conclude that defendant CalaBrese issued him a misbehavior report motivated by retaliatory animus. In a sworn declaration, provided in support of defendants' motion, defendant CalaBrese denies any retaliatory motives and states that she issued the misbehavior report "because Plaintiff refused several direct orders, provided false information and violated the facility phone policy." Dkt. No. 75-5 at 5. Plaintiff, on the other hand, has advanced only his speculation that defendant CalaBrese issued a misbehavior report against him in retaliation for his complaints against her. Such conclusory allegations, unsupported by any evidence that may give rise to an inference of retaliatory animus, are insufficient to support a retaliation claim. See, e.g., Ayers v. Stewart, 101 F.3d 687, *1 (2d Cir. 1996) (unpublished opinion) ("Ayers' allegation that a meeting had transpired among the defendants, during which they allegedly agreed to confine Ayers, is conclusory and totally unsupported by the record. As such, it cannot defeat summary judgment."). To the extent that plaintiff relies solely upon the temporal proximity between his complaints and the issuance of the misbehavior report to support his retaliation claim, it is not, on its own, sufficient to give rise to a genuine dispute of material fact on summary judgment. See, e.g., Ayers, 101 F.3d at *1 (affirming the district court's grant of summary judgment where the plaintiff's offer of proof with respect to the retaliation claim amounted to (1) conclusory allegations and (2) temporal proximity between "the disciplinary action [and] his [grievance]").
In light of the absence of any evidence offered by plaintiff to support his allegations of retaliation, and given defendant CalaBrese's denial of retaliatory animus and the hearing officer's finding of guilt with regard to the charges lodged in the misbehavior report at issue, no reasonable factfinder could conclude that defendant CalaBrese issued the misbehavior in retaliation for plaintiff having engaged in protected activity. Accordingly, I recommend plaintiff's retaliation claim be dismissed.
Notwithstanding the fact that the amended complaint does not assert a retaliation claim against defendant Kinderman, see generally Dkt. No. 39, even if the court were to construe plaintiff's pleading as setting forth such a claim, I would recommend its dismissal based on the following testimony from plaintiff provided at his deposition:
Q. Okay. So - what action was [Kinderman] retaliating -- what did you do or what happened that caused him to retaliate against you?Dkt. No. 75-3 at 47. This testimony only conclusorily suggests defendant Kinderman retaliated against plaintiff for objecting to the placement of his wife on the negative correspondence list. Id. Because it represents the only evidence in the record regarding a retaliation claim against defendant Kinderman, and in light of the fact that plaintiff's amended complaint does not appear to assert a retaliation claim against defendant Kinderman, in the event plaintiff's amended complaint can be construed to assert such a cause of action, I recommend its dismissal.
A. What caused him to retaliate?
Q. Yeah.
A. I have no idea what makes him retaliate, sir . . . . [He was reacting t]o the fact that an inmate was denying his allegations and fighting for his rights.
2. Procedural Due Process
Plaintiff's remaining claim stems from his allegation that defendant Kinderman denied him procedural due process during the disciplinary hearing conducted in connection with the misbehavior report. See generally Dkt. No. 39. To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). Defendants seek dismissal of plaintiff's claim based on their contention that the record evidence does not support either element of the cause of action. Dkt. No. 75-28 at 11-14.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. The prevailing view in this circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.). Accordingly, to determine whether plaintiff may succeed on the pending motion, I must inquire whether the allegations related to the conditions of plaintiff's SHU confinement rise to the level of an atypical and significant hardship under Sandin.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Atypicality in a Sandin inquiry is normally a question of law. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). "[W]hether the conditions of a segregation amount to an 'atypical and significant hardship' turns on the duration of the segregation and a comparison with the conditions in the general population and in other categories of segregation." Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998) (citing Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997)). In cases involving shorter periods of segregated confinement where the plaintiff has not alleged any unusual conditions, however, a court may not need to undergo a detailed analysis of these considerations. Arce, 139 F.3d at 336; Hynes, 143 F.3d at 658.
As to the duration of the disciplinary segregation, restrictive confinement of less than 101 days, on its own, does not generally rise to the level of an atypical and significant hardship. Davis, 576 F.3d at 133 (citing Colon v. Howard, 215 F.3d 227 (2d Cir. 2000)). Accordingly, when the duration of restrictive confinement is less than 101 days, proof of "conditions more onerous than usual" is required. Davis, 576 F.3d at 133 (citing Colon, 215 F.3d at 232-33 n.5). The court must examine "the [actual] conditions of [the plaintiff's] confinement 'in comparison to the hardships endured by prisoners in general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.'" Davis, 576 F.3d at 134 (quoting Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir.1999)). On the other hand, the Second Circuit has suggested that disciplinary segregation under ordinary conditions of more than 305 days rises to the level of atypicality. See Colon, 215 F.3d at 231 ("Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.").
In this case, while plaintiff was sentenced to a period of six months of SHU confinement, half of that sanction was suspended, and he served only seventy-six days in SHU confinement, between March 4, 2011 and May 19, 2011. Dkt. No. 75-21 at 3. There is no record evidence, including any allegation in plaintiff's amended complaint, that suggests plaintiff was subjected to conditions more harsh than ordinary SHU confinement. Accordingly, if the suspended portion of the penalty was not reinstated, the fact that plaintiff served only seventy-six days in disciplinary SHU confinement under ordinary conditions would fail to establish the requisite liberty interest deprivation to support a procedural due process claim. See, e.g., Monroe v. Janes, 06-CV-0859, 2008 WL 508905, at *9 (N.D.N.Y. Feb. 21, 2008) (Scullin, J., adopting report and recommendation by Peebles, M.J.), (dismissing the plaintiff's due process claim where he was sentenced to ninety days SHU confinement); Rivera v. Coughlin, No. 92-CV-3404, 1996 WL 22342, at *4 (S.D.N.Y. Jan. 22, 1996) (finding that the plaintiff's eighty-nine days in keeplock disciplinary confinement did not constitute an atypical or significant hardship sufficient to create a liberty interest).
Pursuant to defendant Kinderman's determination, which was issued on March 4, 2011, plaintiff was required to serve ninety days in SHU confinement. Dkt. No. 75-21 at 3. He was given credit, however, for the time served between the issuance of the misbehavior report on February 16, 2011, when he was immediately placed into SHU confinement, and the date of the determination, thereby accounting for the discrepancy between the days served in SHU confinement and defendant Kinderman's sentence.
The record, however, suggests that following plaintiff's transfer into the Groveland Correctional Facility on May 31, 2011, he was returned to SHU confinement on June 25, 2011. Dkt. No. 75-3 at 55-56; Dkt. No. 77-12 at 102. Although plaintiff testified at his deposition that he "went back to the SHU for something [he] did wrong," it is not clear if he returned as a result defendant Kinderman's sanction. Dkt. No. 75-3 at 55-56. There is evidence suggesting plaintiff was found guilty of other disciplinary infractions, including violent conduct, threats, and smuggling. Nonetheless, mindful of an obligation to draw all inferences in plaintiff's favor. I acknowledge that, on the record before me, it appears possible that he served some or all of the SHU confinement at Groveland as a direct result of the remaining sanction imposed by defendant Kinderman. Dkt. No. 77-12 at 102.
Even if plaintiff served the entire six-months SHU confinement imposed by defendant Kinderman, however, it is not likely, based on the record, that a reasonable factfinder could conclude that plaintiff was deprived a liberty interest. Again, plaintiff has not alleged, and there is no record evidence suggesting, that plaintiff's SHU confinement was anything out of the ordinary. See Colon, 215 F.3d at 232 (suggesting that, when reviewing the SHU confinement lasting between 101 and 305 days, the district courts should review the entire record and make particularized findings regarding atypicality).
Even assuming, for the sake of argument, that plaintiff was deprived of a cognizable liberty interest, the record now before the court fails to reflect any due process deprivation. The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well established, the contours of the requisite protections having been articulated in Wolff v. McDonnell, 418 U.S. 539, 564-69 (1974). Under Wolff, the constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564-70; see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88.
While plaintiff contends that defendant Kinderman was not impartial when acting as a hearing officer, this allegation is made in only conclusory fashion, without any evidentiary support. See, e.g., Dkt. No. 77 at 12. Plaintiff also suggests that defendant Kinderman precluded him from presenting witnesses during the disciplinary hearing. Id. at 11, 13. Once again, however, there is no record evidence demonstrating that Read was denied an adequate opportunity to present witnesses and evidence at the hearing, subject to legitimate safety and penological concerns. A review of the hearing transcript reflects that plaintiff requested only defendant CalaBrese as a witness, and she provided testimony in response to questions presented by both defendant Kinderman and plaintiff. Dkt. No. 75-23 at 3, 7, 10-18. In addition, although plaintiff now complains of the assistance he was provided prior to the disciplinary hearing, Dkt. No. 77 at 10, during the hearing, he did not voice any objection or complaint regarding the matter to defendant Kinderman. Dkt. No. 75-23 at 3.
According to plaintiff, "[t]he thrust of [his] Procedural Due Process Claim" is that defendant Kinderman's determination is not supported by sufficient evidence. Dkt. No. 77 at 17. A review of hearing transcript, however, proves otherwise. Defendant CalaBrese testified that (1) she directed plaintiff to not attempt any communication with his wife on January 25, 2011; (2) plaintiff thereafter did attempt to contact his wife on multiple occasions; and (3) plaintiff attempted to mislead corrections staff regarding the telephone number for his wife by listing his wife's phone number but identifying it as belonging to someone else. Dkt. No. 75-23 at 13-16. According to defendant Kinderman's disposition, he relied on defendant CalaBrese's testimony in finding plaintiff guilty of refusing a direct order, violating the "phone home" ethics, and lying. Id. at 19; Dkt. No. 75-24 at 2. Based on all of this evidence, I find that no reasonable factfinder could conclude that plaintiff was deprived of any process afforded him by the Constitution during the disciplinary hearing. For this reason, and because the record is devoid of any evidence that plaintiff suffered an atypical or significant hardship with respect to his SHU confinement, I recommend that his procedural due process claim against defendant Kinderman be dismissed on the merits.
IV. SUMMARY AND RECOMMENDATION
The record now before the court firmly establishes that plaintiff failed to file and pursue to completion a grievance concerning his retaliation and due process claims. Accordingly, he is procedurally barred from asserting those claims in this action. Turning to the merits of plaintiff's claims, no reasonable factfinder could conclude that the misbehavior report issued to him by defendant CalaBrese was in retaliation for earlier grievances filed by the plaintiff, or that plaintiff was denied procedural due process by defendant Kinderman during the course of his disciplinary hearing. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 75) be GRANTED, and that plaintiff's remaining claims in this action be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: March 11, 2015
Syracuse, New York