Opinion
Civil Action No. 9:11-CV-1331 (GLS/DEP)
03-30-2016
PRINCE PILGRIM, Plaintiff, v. THOMAS LaVALLEY, et al. Defendants.
APPEARANCES: FOR PLAINTIFF: PRINCE PILGRIM, Pro Se 92-A-8847 Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788 OF COUNSEL: FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 JOHN F. MOORE, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: PRINCE PILGRIM, Pro Se
92-A-8847
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, NY 12788 OF COUNSEL: FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 JOHN F. MOORE, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is an action originally brought by pro se plaintiff Prince Pilgrim, a New York State prison inmate, against two named and one unidentified "Doe" defendants employed at the prison facility in which he was confined at the relevant times, pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights. In the claims that remain in the action, plaintiff alleges that (1) defendant John Doe violated plaintiff's First Amendment rights by ordering him to be transferred to a different correctional facility in retaliation for filing a grievance related to the taxation of cigarettes in the prison commissary; and (2) defendant Drown violated plaintiff's Fourteenth Amendment right to due process at a disciplinary hearing relating to plaintiff's refusal to comply with the scheduled transfer.
Currently pending before the court is a motion brought by defendants seeking the entry of summary judgment based on (1) the plaintiff's failure to ascertain the identity of the John Doe defendant, and (2) defendants' contention that the due process claim against defendant Drown lacks merit. For the reasons set forth below, I recommend that defendants' motion for summary judgment be granted. I. BACKGROUND
In their motion defendants also seek dismissal of plaintiff's claims against defendant Thomas LaValley, the superintendent at the Clinton Correctional Facility. As will be seen, LaValley was added as a defendant solely to facilitate plaintiff's efforts to ascertain, through discovery, the identity of the Doe defendant. In light of this fact and the lack of any allegations in plaintiff's complaint of wrongdoing on the part of Superintendent LaValley, plaintiff's claims against him will be dismissed.
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 New York State prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1. While he is now incarcerated elsewhere, at the times relevant to his claims in this action, plaintiff was confined in the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Id.
On November 3, 2008, plaintiff read a memorandum, dated April 20, 2007, and issued by Ted Meskunas, an institutional steward at Clinton, advising that inmates at Clinton would be required to pay the New York state excise tax on cigarettes purchased in the prison commissary. Dkt. No. 1 at 8. Later that day, plaintiff submitted a grievance regarding the collection of that excise tax. Id. Plaintiff's grievance regarding the cigarette tax was filed with the facility's inmate grievance program ("IGP") on or about November 12, 2008. Id.; see also Dkt. No. 62-4 at 2. Following the denial of that grievance at the facility level, plaintiff appealed the matter to the DOCCS Central Office Review Committee ("CORC"); that grievance appeal was received by the CORC on December 17, 2008. Dkt. No. 1 at 9.
On December 18, 2008, plaintiff was informed that he was being transferred from the Clinton-Main, a maximum level security facility, to the Clinton-Annex, a medium facility. Dkt. No. 1 at 9. Plaintiff refused, however, to be transferred to the Clinton-Annex. Dkt. No. 62-5 at 15. As a result, a misbehavior report was issued to the plaintiff on December 18, 2008, accusing him of failing to follow a staff directive on movement and disobeying a direct order, in violation of prison regulations. Dkt. No. 62-5 at 3; see Dkt. No. 62-6 at 6. A Tier III disciplinary hearing was convened, beginning on December 26, 2008, by Hearing Officer C. Drown to address the charges set forth in that misbehavior report. See Dkt. No. 62-5. At the conclusion of the hearing, plaintiff was found guilty on both counts, and a penalty that included five months of disciplinary special housing unit ("SHU") confinement, with a corresponding loss of package and commissary privileges, and a recommended forfeiture of three months of good time credits, was imposed. Dkt. No. 62-5 at 34. See also Dkt. No. 62-6 at 2. That determination was affirmed on review by Norman R. Bezio, the DOCCS Director of Special Housing/Inmate Disciplinary Program, on February 24, 2009. Dkt. No. 62-6 at 1.
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 at 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.
In his complaint, plaintiff claims that the issuance of the December 18, 2008, misbehavior report was in retaliation for his having filed a grievance concerning the cigarette excise tax issue. See generally Dkt. No. 1. Plaintiff also contends that during the course of the disciplinary hearing conducted to address the disciplinary charges, his due process rights were violated when defendant Drown "coerc[ed] one of Plaintiff's witnesses," and "became hostile and difficult in allowing Plaintiff to question his witness" and "had a pre-determined disposition of 3 months already written out" beforehand. Dkt. No. 1 at 11-12.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on November 10, 2011, by the filing of a complaint and an accompanying application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Plaintiff's complaint named, as defendants, Ted Meskunas, an institutional steward at Clinton; John Doe, an unidentified corrections officer who allegedly authorized plaintiff's transfer; and Hearing Officer Curtis Drown. Dkt. No 1 at 1-2. Liberally construed, plaintiff's complaint asserted three distinct constitutional claims, alleging that (1) defendant Meskunas violated plaintiff's rights under the Fifth and Fourteenth Amendments to the U.S. Constitution by collecting taxes without due process; (2) defendant John Doe violated plaintiff's First Amendment rights by ordering a retaliatory transfer and denying his right to free speech; and (3) defendant Drown violated plaintiff's Fourteenth Amendment right to procedural due process at the Tier III disciplinary hearing. Dkt. No. 1 at 12-14; Dkt. No. 8 at 7.
Plaintiff's complaint is dated October 28, 2011. See Dkt. No. 1 at 14.
Plaintiff's claim against defendant Meskunas was dismissed in its entirety on February 22, 2012, as a result of the court's initial review of plaintiff's complaint under 28 U.S.C. §§ 1915(e) and 1915A, leaving only the Doe defendant and defendant Drown. Dkt. No. 8 at 8-11. Shortly thereafter, it was discovered that defendant Drown died prior to the commencement of this action, and was therefore never properly made a party or served. Dkt. No. 13. Drown's estate was substituted in his place as party to this action on July 12, 2013. Dkt. No. 35. A subsequent motion to dismiss the estate as a party was denied. Dkt. Nos. 49, 51.
On November 30, 2012, at a point when plaintiff's claim against defendant Meskunas had been dismissed, and defendant Drown's estate had not yet been served, leaving only John Doe as a defendant, the court added the superintendent at Clinton, Thomas LaValley, as a party "for discovery purposes only in an effort to assist plaintiff in identifying defendant John Doe. Text Order Dated November 30, 2012. It was the court's intention, in issuing that text order, that defendant LaValley would be dismissed from the suit following the close of discovery in light of the absence of any allegations in plaintiff's complaint concerning his personal involvement in the conduct forming the basis for Pilgrim's claims.
On May 4, 2015, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 62. In their motion, defendants request dismissal of (1) plaintiff's claims against the John Doe defendant, based both upon his failure to identify and serve that defendant and the contention that plaintiff's retaliation cause of action lacks merit; (2) plaintiff's due procedural due process cause of action claim against defendant Drown's estate, as lacking in merit; and (3) all claims against defendant LaValley, based upon the closure of discovery, and the lack of his involvement in the matter. Id.
Since the filing of defendants' motion, plaintiff has requested and has been granted three extensions of time to oppose the motion. Dkt. Nos. 65, 69, and 71. The last extension granted by the court required plaintiff to file a response by November 13, 2015, and warned him that it was the final extension of the deadline. Dkt. No. 71, 73. On January 15, 2016, plaintiff made a partial submission in opposition to the motion, and moved to extend the deadline a fourth time, for an additional period of 120 days. Dkt. No. 72. That motion was denied by the court, and the accompanying partial opposition was stricken from the record. Dkt. No. 73.
On February 8, 2016, plaintiff filed a letter requesting leave to withdraw his complaint. Dkt. No. 74. He has not, however, executed a stipulation of discontinuance that was prepared and forwarded to him by defendants' counsel in March 2016 following the announcement of his intention to abandon the action. Dkt. No. 79 at 4-6.
Defendants' motion for summary judgment 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. Plaintiff's Failure to Oppose Defendants' Motion
As the foregoing reflects, plaintiff has not properly responded in opposition to defendants' motion. By failing to timely oppose defendant's motion, plaintiff has effectively consented to the granting of the relief sought. The court's local rules provide, in pertinent part, as follows:
Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").
Defendants' motion was properly filed, and defendants, through their motion, have met their burden of demonstrating entitlement to the relief requested. With respect to the question of whether defendants have met their burden, I note that their "burden of persuasion is lightened such that, in order to succeed, [their] motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *2 (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that whether a movant has met its burden to demonstrate entitlement to a dismissal under local rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)). Because defendants have accurately cited both proper legal authority and evidence in the record supporting the grounds upon which their motion is based, and plaintiff has failed to respond in opposition to the summary judgment motion and their motion is facially material, I recommend that the court grant defendants' motion on this basis.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Notwithstanding my recommendation to dismiss plaintiff's complaint based on his failure to oppose the defendants' motion, out of an abundance of caution, I will address the substantive issues raised in defendants' motion. See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) ("[D]istrict courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant.").
In the event the court chooses to overlook plaintiff's failure to respond to defendants' motion and does not treat that failure as consent to the granting of the motion, the court should nonetheless invoke the local rule that speaks to his failure to properly respond to defendants' statement of material facts, submitted pursuant to Local Rule 7.1(a)(3). By its terms, that rule provides, in part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced a non-movant's failure to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, J.) (listing cases).
Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Pub. Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.).
Here, because plaintiff was warned of the consequences of not properly responding to defendants' Local Rule 7.1 Statement, and he has failed to do so, I recommend that the court deem the facts contained in defendants' Local Rule 7.1(a)(3) Statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). As to any facts not contained in defendants' Local Rule 7.1(a)(3) Statement, in light of the procedural posture of this case, the court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
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 fact 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 N.Y., 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 non-moving 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. Retaliation Claim Against Defendant John Doe
1. Failure to Identify and Serve
Despite the court's assistance, included by naming Superintendent LaValley as a defendant, plaintiff was unable to identify a person defendant who authorized his transfer from Clinton-Main to Clinton-Annex. Defendants now seek dismissal of plaintiff's claims against the Doe defendant based upon his failure to identify and serve that defendant.
Defendants maintain that the transfer order was generated by a "scheduler," independent of human input, and thus there is no individual who ordered the transfer. See Dkt. No. 62-8 at 2.
When this action was filed, Rule 4(m) of the Federal Rules of Civil Procedure authorized dismissal of a plaintiff's claims against a defendant where a summons and complaint were not served upon that party within 120 days after filing of the complaint, absent a showing of good cause. Fed. R. Civ. P. 4(m); Shuster v. Nassau Cty., No. 96 Civ. 3635, 1999 WL 9847, at *1 (S.D.N.Y. Jan. 11, 1999) (Rule 4(m) authorizes dismissal where no service within 120 days after filing of the complaint); Romand v. Zimmerman, 881 F. Supp. 806, 809 (N.D.N.Y. 1995) (McAvoy, C.J.) (120-day period for service of a summons and complaint by a plaintiff under Fed. R. Civ. P. 4(m) applies to pro se plaintiffs as well as those represented by counsel). When "Doe" defendants have not been served or otherwise appeared in the action within this time period, the court does not acquire jurisdiction over the defendant, and the plaintiff's complaint should be dismissed as against that defendant. See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (citing Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)) (court lacks jurisdiction until defendants properly served with summons and complaint).
Effective December 1, 2015, Rule 4(m) was amended to require service of a summons within ninety days. It should be noted, moreover, that the period specified in Rule 4(m) is further restricted by the local rules of this court, which require that service be effected within sixty days. See Northern District of New York Local Rule § 4.1(b).
Here, plaintiff was permitted to pursue a claim against the unnamed defendant who, he alleges, retaliated against him by ordering his transfer to a different cell, provided that he "take reasonable steps to ascertain the identity of that defendant." Text Order Dated Nov. 30, 2012. That text order warned that "[i]f plaintiff fails to ascertain the identity of defendant John Doe so as to permit the timely service of process, this action will be dismissed in its entirety." Id.
Following that text order discovery, which is now closed, took place over a period of roughly two years, ending in December 2014. Dkt. No. 20, Dkt. No. 57. In that time, plaintiff has been unable to identify any individual responsible for the decision to transfer him. See generally docket. Dismissal of a claim is appropriate "[w]here discovery has closed and the Plaintiff has had ample time and opportunity to identify and serve John Doe defendants" but has failed to do so. Jones v. Rock, No. 9:12-CV-0447, 2015 WL 791547 at *21, (N.D.N.Y. Feb. 24, 2015) (quoting Delrosario v. City of New York, No. 07 Civ. 2027, 2010 WL 882990 at *5, (S.D.N.Y. Mar. 2010)). Accordingly, the claim against defendant John Doe should be dismissed, and the defendants' motion should be granted, on this basis.
2. Merits of Plaintiff's Retaliation Claim
A prison inmate's First Amendment rights are violated when a prison official takes adverse action against the prisoner, motivated by his exercise of a right protected under the free speech provision of that Amendment. To prove his claim of unlawful retaliation, the plaintiff must establish that (1) he engaged in protected conduct; (2) the defendants took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action - that is, 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. 7, 2003) (Sharpe, M.J.).
The Second Circuit has cautioned that such claims of retaliation are easily incanted, and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus; courts must therefore approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (same).
In the instant case, plaintiff meets the first element of this required showing. It is well-established that the filing of a grievance by a prison inmate constitutes protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). The third element arguably is also met as well; the transfer of a prison inmate from one facility to another can, under appropriate circumstances, represent adverse action. Meriwether v. Coughlin, 879 F.2d 1037, 1045-45 (2d Cir. 1989) (prison officials may not transfer solely for the exercise of constitutional rights); see also Johnson v. Connolly, No. 07-CV-1237, 2010 WL 2628720, *6 (N.D.N.Y. Mar. 15, 2010) (Peebles, M.J.) ("plaintiff's transfer from one facility into another [could] represent an adverse action sufficient to support a retaliation cause of action") (citing Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998).
Plaintiff's retaliation claim fails, however, based upon his inability to establish the requisite causal nexus between his filing of a grievance and his transfer. The record evidence clearly shows that the decision to transfer the plaintiff to the Clinton-Annex was made on October 30, 2008. Dkt. No. 22-3, Dkt. No. 62-5 at 19-20. Plaintiff's grievance regarding the cigarette taxation issue that allegedly caused defendants to retaliate against Pilgrim was filed on November 12, 2008, two weeks after the transfer order was issued. Dkt. No. 1 at 8, Dkt. No. 62-4 at 2. As the allegedly retaliatory event preceded in time the relevant protected conduct, simple logic compels the conclusion that the transfer decision could not have been motivated by plaintiff's grievance. Accordingly, plaintiff's claim of retaliation must fail.
For both of the reasons stated above, I recommend that defendants' motion be granted as to defendant John Doe.
D. Plaintiff's Claim Against Defendant LaValley
In their motion, defendants seek dismissal of plaintiff's claims against defendant LaValley. As was previously discussed, defendant LaValley was added as a defendant solely for discovery purposes, in order to permit Pilgrim to attempt to ascertain the identity of the unidentified, John Doe defendant. Dkt. No. 57. Discovery is now closed. Since plaintiff's complaint contains no allegations of wrongdoing on the part of defendant LaValley, nor does it suggest his involvement in any of the conduct giving rise to plaintiff's claims, this portion of defendants' motion should be granted, and plaintiff's claims against defendant LaValley should be dismissed.
E. Plaintiff's Due Process Claim Against Defendant Drown
In his complaint, plaintiff asserts a due process violation claim against defendant Drown, stemming from defendant Drown's oversight of plaintiff's hearing. Dkt. No. 1 at 12-13. In support of their motion, defendants argue that plaintiff was provided with constitutionally adequate process during his disciplinary hearing. Dkt. No. 62-1 at 6-7.
1. Legal Standard Governing Due Process Claims
To establish a procedural due process claim under section 1983, the 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). The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally significant liberty interest are well established under Wolff v. McDonnell, 418 U.S. 539 (1974). Specifically, 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. Id. at 564-69; 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 also 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.
Defendants do not argue that the hearing officer's sentence, which included five months of disciplinary SHU confinement, did not constitute the deprivation of a cognizable liberty interest.
The due process clause of the Fourteenth Amendment also guarantees that an "inmate subject to a disciplinary hearing is entitled to . . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff, 418 U.S. at 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). "The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Id. citing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1996)). "A hearing officer may satisfy the standard of impartiality if there is 'some evidence in the record' to support the findings of the hearing." Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at *5 (W.D.N.Y. Oct. 5, 2010) (quoting Hill, 472 U.S. at 455).
2. Analysis
The record now before the court demonstrates that in carrying out his responsibilities, Hearing Officer Drown satisfied the procedural due process requirements laid out in Wolff. Plaintiff received a misbehavior report and a written notice of the charges against him. Dkt. Nos. 1 at 8, 62-10 at 5-6. Defendant Drown began the Tier III disciplinary hearing by reciting the charges against the plaintiff. Dkt. No. 62-5 at 3. Plaintiff was provided an opportunity to speak in his own defense. Id. at 3-33. In addition, he was allowed to, and in fact did, call witnesses to testify in his defense, including the Superintendent of Clinton, Dale Artus. Id. at 29-33. At the conclusion of the hearing, defendant Drown presented plaintiff with a written copy of his disposition. Id. at 34-35. The record of the Tier III hearing contains no evidence from which a reasonable factfinder could conclude defendant Drown was biased or otherwise unfair. Simply stated, I am unable to conclude that plaintiff was not afforded the required due process during the course of the hearing conducted by defendant Drown.
Included in the record is a transcript of the Tier III hearing as well as the hearing officer's determination. See Dkt. Nos. 62-5, 62-6. From a careful review of the hearing transcript I conclude that the decision of defendant Drown, finding plaintiff guilty on both counts, is supported by some evidence, as constitutionally required. Plaintiff admitted that he refused the orders which he was charged with disobeying. Dkt. No. 62-5 at 6, 15. Testimony from Superintendent Artus refuted plaintiff's contention that he would be justified in refusing the order based on his position on the facility's Inmate Liaison Committee. Id. at 30. Because the decision by defendant Drown is supported by some evidence in the record, the hearing passes muster under the standard of impartiality required by the Supreme Court in Hill. 472 U.S. at 455.
In sum, I find that no reasonable factfinder could conclude that plaintiff was denied due process by defendant Drown. Accordingly, summary judgment should be entered dismissing this remaining claim.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's claims against defendant LaValley, the facility superintendent who was added as a defendant solely to assist plaintiff in his efforts to secure pretrial discovery and ascertain the identity of the John Doe defendant, should be dismissed now that discovery is closed and based upon the lack of any allegation of plaintiff's complaint suggesting his personal involvement in any of the conduct giving rise to plaintiff's claims.
Turning to remaining portions of defendants' motion, I conclude, first that because defendants have established their entitlement to the relief sought, their motion should be granted based upon plaintiff's failure to properly oppose the motion. In the event the court chooses to address the substantive arguments raised by the defendants, I recommend a finding that because no reasonable factfinder could conclude that John Doe retaliated against the defendant, or that Hearing Officer Drown deprived him of procedural due process, defendants are entitled to the entry of summary judgment dismissing plaintiff's remaining claims.
Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 62) be GRANTED in its entirety; and it is further hereby respectfully
RECOMMENDED that plaintiff's letter motion requesting leave to withdraw his complaint in this action (Dkt. No. 74) be DENIED, as moot.
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 30, 2016
Syracuse, New York