Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 1 of 252 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ KHAILAIRE ALLAH, Plaintiff, 9:14-CV-0438 v. (GTS/TWD) SGT. MURPHY, et. al., Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: KHAILAIRE ALLAH Plaintiff pro se 01-B-0997 Marcy Correctional Facility P.O. Box 3600 Marcy, New York 13403 HON. ERIC T. SCHNEIDERMAN TIMOTHY P. MULVEY, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for the Defendants 615 Erie Boulevard West Syracuse, New York 13204 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION This pro se civil rights action, commenced by Plaintiff Khailaire Allah pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Glenn T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). Plaintiff claims that while he was in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") and confined at Great Meadow Correctional Facility ("Great Meadow C.F."), Defendants violated his First, Fourteenth, and Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 2 of 252 Eighth Amendments rights. (See generally Dkt. No. 1-1.) Plaintiff seeks declaratory relief, injunctive relief, and compensatory damages. Id. at 13. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 47, 61.) Plaintiff filed papers in opposition to the motion. (Dkt. Nos. 57 and 58.) For the reasons that follow, the Court recommends that the motion for summary judgment (Dkt. No. 47) be granted in its entirety. I. FACTUAL BACKGROUND From June 2013 until October 2013, Plaintiff was confined in the Behavioral Health Unit ("BHU") at Great Meadow C.F.1 (Dkt. No. 1, generally.) On June 24, 2013, Plaintiff noticed "irregularities" in the frequency and amount of mail he received. (Dkt. No. 1-1 at 2.) Plaintiff discussed the issue with Defendant Sgt. Murphy ("Murphy") and Murphy responded that Plaintiff received "all of the mail that he will receive, at this time." Id. On June 25, 2013, Murphy gave Plaintiff one letter and told Plaintiff, "if [Murphy] got around to it, [Murphy would] bring the rest of [Plaintiff's] mail later." Id. Later the same day, Plaintiff walked by the officer's station and noticed a large, yellow envelope containing mail with Plaintiff's name and cell location. Id. Plaintiff asked Murphy why he had not received the large, yellow envelope and Murphy responded that Plaintiff, "received [his] mail for the night" and "don't worry about what's in the officers station." (Dkt. No. 1-1 at 2.) 1 The BHU is a program that includes a separate housing location within a correctional facility. The BHU provides services to a target population of incarcerated inmates who have a demonstrated history of treatment resistance and poor custodial adjustment/behavior and who would otherwise be serving a confinement sanction in a Special Housing Unit. This program has an emphasis on cognitive and behavioral interventions. See http://www.docs.ny.gov (last visited May 6, 2016). 2 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 3 of 252 On June 26, 2013, Plaintiff addressed his concerns regarding his mail with C.O. Gordon and Sgt. Bottane. (Dkt. No. 1-1 at 3.) Bottane directed Gordon to issue Plaintiff's mail. Id. On the same day, Plaintiff wrote several grievances regarding his mail deprivation. (Dkt. No. 1-1 at 3; Dkt. No. 58 at 6.) Plaintiff also spoke to Defendants Captain Goodman ("Goodman") and A.D.S.P. Tynon ("Tynon"). (Dkt. No. 1-1 at 3; Dkt. No. 58 at 6.) On July 5, 2013, Plaintiff received a misbehavior report charging him with lewd conduct and harassment. (Dkt. No. 57 at 12-13.) C.O. Londrigan ("Londrigan")2 issued the report on July 4, 2013, and described the incident as follows: . . . while assisting in the BHU evening rec run, [I] witnessed inmate Allah Khalaire [sic] masterbating [sic] at his cell gate while blowing me kisses. I informed additional staff and the inmate retreated to the back of his cell. I entered the gallery and informed the area supervisor. (Dkt. No. 57 at 12.) After receiving the misbehavior report, Plaintiff met with an employee assistant to prepare for his disciplinary hearing related to the charges. (Dkt. No. 1-1 at 7.) Plaintiff asked the assistant to preserve video evidence for the hearing and to contact inmate/witnesses including Inmate Stanley, who agreed to testify on Plaintiff's behalf. (Dkt. No. 1-1 at 7.) "Immediately" after the misbehavior report was issued, the Acting Deputy Superintendent of Security authorized an Exposer Control Order directing that a colored Exposer Placard be placed on Plaintiff's cell door from July 5, 2013, until August 5, 2013.3 (Dkt. No. 57 at 17; Dkt. 2 On November 20, 2014, Londrigan was terminated as a defendant. 3 The Order is not dated and the record does not establish when the Order was executed. The name of the Captain/Acting DSS who issued the Order is not clearly legible but Plaintiff does not allege that any named defendant was responsible for issuing the Order. 3 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 4 of 252 No. 58 at 7.) The Order also directed Plaintiff to wear an Exposer Control Suit (the "jumpsuit") for thirty days. Id. The jumpsuit was "thick, tear-proof material" that was secured at the back of a neck with a padlock and worn over Plaintiff's pants and shirt. (Dkt. No. 1-1 at 8.) Plaintiff was required to wear the jumpsuit while in group counseling sessions, during visits with family, during private interviews, in exercise areas and in the hospital. (Dkt. No. 57 at 17.) The Order was issued in response to the July 4, 2013, incident where Plaintiff "purposely exposed himself and masterbated [sic] outside his clothing at female staff." Id. On July 18, 2013, Defendant Steven E. Racette ("Racette"), Superintendent of Great Meadow C.F., forwarded a memorandum to Plaintiff regarding the Exposure Control Policy. (Dkt. No. 57 at 18.) Racette indicated that, "[a]fter review by Central Office, the exposure control suits are being used appropriately by Great Meadow." Id. On the same day, the disciplinary hearing related to the July 2013, misbehavior report commenced with Tynon presiding over the proceedings. (Dkt. No. 57 at 13.) Londrigan testified outside of Plaintiff's presence, via speaker phone and Inmate Jason Lara was called to testify on Plaintiff's behalf. (Dkt. No. 1-1 at 8; Dkt. No. 58 at 7.) Tynon did not review the video evidence and refused to permit Inmate Stanley to testify. (Dkt. No. 1-1 at 8.) On July 22, 2013, Plaintiff submitted a Disbursement Form (#2706), for Tynon's approval, in the amount of $400.00 for filing fees for a civil action in the United States District Court for the Northern District of New York. (Dkt. No. 1-1 at 3.) After Plaintiff submitted the request, Plaintiff made several inquiries about the form because he was concerned that officers were tampering with his mail. Id. at 4. On August 2, 2013, Plaintiff received his monthly statement which indicated that $400.00 was deducted from his account. Id. 4 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 5 of 252 On August 8, 2013, after several extensions of the disciplinary hearing, Plaintiff was found guilty of lewd conduct and harassment and sentenced to forty-five days in the SHU. (Dkt. No. 1-1 at 8; Dkt. No. 57 at 13.) Plaintiff's SHU confinement was scheduled to begin on November 12, 2018, and terminate on December 22, 2018. (Dkt. No. 57 at 13.) The sentence also included a loss of recreation, package, and phone privileges. Id. The loss of recreation would commence on April 28, 2018, and expire on June 12, 2013. Id. The loss of packages was scheduled to begin on November 20, 2022 and terminate on January 4, 2023 and the loss of phone privileges extended from December 6, 2022, until January 23, 2023. Id. On September 28, 2013, Defendant C.O. Fuller ("Fuller") conducted a search of Plaintiff's cell and filed a misbehavior report charging Plaintiff with "ripping state sheets." (Dkt. No. 1-1 at 6.) At a subsequent hearing related to the misbehavior report, the charges were dismissed. Id. On October 1, 2013, Plaintiff received notification that his lawsuit in the United States District Court for the Northern District of New York, Allah v. Karandy, et. al., No. 9:13-CV- 0826 (FJS/TWD) ("Allah I") was dismissed for failure to timely remit filing fees. (Dkt. No. 1-1 at 4; Dkt. No. 57 at 2.) On October 4, 2013, Plaintiff provided the District Court with a letter enclosing a copy of his monthly statement with verification that the filing fees were deducted from his account. (Dkt. No. 1-1 at 4.) On October 7, 2013, Tynon provided Plaintiff with "another" Disbursement Form so that Tynon could mail "another" check to the Court for the filing fee. Id. On October 15, 2013, the Court received the appropriate filing fee for the action. Id. On October 29, 2013, Tynon's disciplinary determination was reviewed and reversed by non-party Albert Prack ("Prack"), Director of Special Housing/Inmate Disciplinary Program. 5 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 6 of 252 (Dkt. No. 57 at 19.) On October 31, 2013, Plaintiff received a Memorandum from non-party Captain K. Brown ("Brown") advising Plaintiff that Tynon's decision was reversed. Id. at 20. Brown notified Plaintiff that he would be released from "special housing" on March 11, 2017. Id. In addition, recreation, package, and phone privileges would be restored on April 27, 2014, November 19, 2018 and December 6, 2018, respectively, provided Plaintiff did not incur any additional sanctions. Id. II. PROCEDURAL HISTORY Plaintiff filed his Complaint and applied for leave to proceed in forma pauperis in this action on April 17, 2014. (Dkt. Nos. 1 and 9.) In a Decision and Order filed on November 20, 2014 (the "November Order"), the Court reviewed the Complaint in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. (Dkt. No. 12.) Upon review of the allegations, the Court directed: (1) Fuller to respond to Plaintiff's retaliation claims related to a September 2013, misbehavior report; (2) Tynon to respond to Plaintiff's due process claims; (3) Tynon, Racette, Goodman, and J. Gleason ("Gleason"), BHU Chief, to respond to Plaintiff's Eighth Amendment claims related to his conditions of confinement; and (4) Murphy and Tynon to respond to Plaintiff's First Amendment mail claims. (Dkt. No. 12 at 11, 13, 15 and 17.) On November 25, 2015, Defendants filed the motion for summary judgment now before me for Report and Recommendation. (Dkt. No. 47.) III. APPLICABLE LEGAL STANDARD Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 6 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 7 of 252 242, 251-252 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff’s] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). The nonmovant must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party’s] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) ("pro se parties are to be given special latitude on summary judgment motions.") (citations and internal 7 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 8 of 252 quotation marks omitted). However, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).4 While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' summary judgment motion, Plaintiff failed to respond to the Statement of Material Facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3).5 Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record,6 and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of 4 Copies of unpublished decisions cited herein will be mailed to Plaintiff as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 5 L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant’s assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." 6 L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted). 8 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 9 of 252 failing to respond to the motion.7 See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, I have opted to review the entire record in determining if there are material facts in dispute. A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). Where, as here, the Court elects to conduct an independent review of the record on a motion for summary judgment, a plaintiff's verified complaint should be treated as an affidavit.8 Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted). Plaintiff's Sworn Affidavits (Dkt. No. 57 at 2-6; Dkt. No. 58 at 2-4), which were signed under 7 Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. No. 47 at 1.) 8 Plaintiff’s Complaint was properly verified by declaration under 28 U.S.C. § 1746. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with 28 U.S.C. §1746). 9 Case 9:14-cv-00438-GTS-TWD Document 63 Filed 05/16/16 Page 10 of 252 penalty of perjury, also constitute admissible evidence that can be considered in opposition to Defendants' motion. See 28 U.S.C. § 1746 (authorizing the use of declarations made under penalty of perjury when an affidavit is required or permitted to be used). Plaintiff's unsworn statements are generally inadmissible in opposition to a motion for summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827, 2009 WL 1033395, at *11 (E.D.N.Y. April 14, 2009) (holding that unsworn declarations are inadmissible for purposes of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment). Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503, 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court considered unsworn statements in his opposition papers but only to the extent based on personal knowledge or supported by other admissible evidence in the record, on the assumption that if the allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574, at *7 (W.D.N.Y. June 25, 2012). In deference to Plaintiff’s pro se status, the Court will consider Plaintiff's unsworn "Plaintiff's Brief in Opposition to Defendant's Summary Judgment Motion" and the Affidavit of Jason Lara. (Dkt. No. 57 at 9-11; Dkt. No. 58 at 5-7.) IV. ANALYSIS Defendants move for judgment as a matter of law and dismissal of all of Plaintiff's allegations.9 Defendants argue that the "de minimus" delay in delivering Plaintiff's mail did not 9 In the Complaint, Plaintiff attempts to assert claims against "each defendant [. . .] in their individual and official capacity." (Dkt. No. 1-1 at 1.) Insofar as plaintiff seeks an award of money damages pursuant to Section 1983 against the state defendants in their official capacities, 10