Decayette v. Goord et al

Filing 44

REPORT AND RECOMMENDATIONS that the 36 MOTION for Summary Judgment filed by Martin, Michael Allard, Volpe, Sgt. Berry, Suggs, Glenn S. Goord, Meeks be Granted in Part and Denied in Part. Objections to R&R due by 4/14/2009 Case Review Deadline 4/20/2009. Signed by Magistrate Judge George H. Lowe on 3/31/09. [Report Recommendation and electronically available only cases served on Plaintiff via regular mail]. (Attachments: # 1, # 2, # 3, # 4, # 5, # 6, # 7 )(rjb, )

Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2005 W L 3531464 (N.D.N.Y.) ( C ite as: 2005 W L 3531464 (N.D.N.Y.))

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O n ly the W e s tla w citation is currently available.

U n ite d States District Court, N . D . New York. R o b e r to CIAPRAZI, Plaintiff, v. G le n n S. GOORD; et al. Defendants. N o . Civ.9:02CV00915(GLS/.

A m e n d m e n t rights. Pending are Ciaprazi's objections to M agistrate Judge David E. Peebles' R e p o r t-R e c o m m e n d a tio n . Upon careful consideration of th e arguments, the relevant parts of the record, and the applicable law, the court adopts the R e p o r t-R e c o m m e n d a tio n in its entirety. FN1

F N 1 . The Clerk is hereby directed to attach the R e p o r t - R e c o m m e n d a t i o n to constitute a c o m p le te record of the court's decision in this m a tte r .

D e c . 22, 2005. I I . Procedural History R o b e r t o Ciaprazi, Clinton Correctional D a n n e m o r a , New York, Plaintiff pro se. Facility, C ia p r a z i commenced this action on July 15, 2002. Dkt. N o . 1. On February 27, 2003, the defendants moved for s u m m a r y judgment. Dkt. No. 39.On March 14, 2004, J u d g e Peebles issued a Report-Recommendation which r e c o m m e n d e d that the defendants' motion for summary j u d g m e n t be granted in part, and denied in part. Dkt. No. 4 7 .C ia p r a z i objected. Dkt. No. 48.His objections are now b e fo r e this court.

H o n . Eliot Spitzer, Attorney General, State of New York, T h e Capitol, Albany, New York, for the Defendants.

P a tr ic k F. MacRae, Assistant Attorney General, of c o u n s e l.

I I I . Discussion FN2 M E M O R A N D U M - D E C I S I O N AND ORDER F N 2 . The court adopts the factual summary in Magistrate Judge Peebles' R e p o r t-R e c o m m e n d a tio n and assumes familiarity w ith the facts alleged in Ciaprazi's Complaint. D k t. Nos. 47,1.

S H A R P E , J.

I . Introduction

* 1 Plaintiff pro se Roberto Ciaprazi brings this action p u r s u a n t to 42 U.S.C. § 1983. Ciaprazi alleges that the d e fe n d a n ts violated his First, Eighth, and Fourteenth

A . Standard of Review

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W h e n o b jectio ns to a m a g is tr a te j u d g e 's R e p o r t-R e c o m m e n d a tio n are lodged, the Court makes a " d e novo determination of those portions of the report or s p e c ifie d proposed findings or recommendations to which o b j e c tio n is made."See28 U.S.C. § 636(b)(1). After such a review, the court may "accept, reject, or modify, in w h o l e or in part, the findings or the recommendations m a d e by the magistrate judge."Id. Having reviewed the u n o b je c te d to portions of the Report-Recommendation, the c o u r t adopts them in their entirety because they are not c le a r ly erroneous.

r e a s o n s for the their denial. See Report R e c o m m e n d a tio n p. 10-11 n. 5, Dkt. No. 47.

C . Objections

1 . First Amendment Claim

B . Report-Recommendation

A lth o u g h Judge Peebles examined the merits of the case a n d found that many of Ciaprazi's claims were meritless, th is court only conducts de novo review of the objected to p o r tio n s of the Report-Recommendation. Specifically, J u d g e Peebles found no evidence tending to establish that th e adverse actions taken against Ciaprazi were motivated b y disciplinary animus, and thereby recommended d is m is s in g Ciaprazi's First Amendment retaliation claim. R e p o r t and Recommendation, pp. 13-23, 45, Dkt. No. 4 7 .H e further found that Ciaprazi lacked standing to bring a cause of action challenging the Tier III disciplinary s ys te m under the Eighth Amendment. Id. at 27.Lastly, J u d g e Peebles dismissed both of Ciaprazi's claims under in te r n a tio n a l law and his personal involvement claim a g a in s t defendant Goord. Id. at 41, 43-4. FN3

F ir s t, Ciaprazi contends that his retaliation claim under the F ir s t Amendment should not have been dismissed because th e defendants did not satisfy their initial evidentiary b u r d e n . Pl. Objs. pp. 1-7, Dkt. No. 48.Specifically, he a r g u e s that Judge Peebles did not properly consider the fa ls ity of a misbehavior report as evidence of retaliation b y the defendants.

T h e court rejects Ciaprazi's argument because as Judge P e e b le s noted, a prisoner does not have a right to be free fr o m false misbehavior reports. Freeman v. Rideout, 808 F .2 d 949, 951 (2d Cir.1986). As Judge Peebles further n o te d , the defendants have shown sufficient evidence to e s ta b l i s h that there is no specific link between Ciaprazi's g r ie v a n c e s and the defendants' actions. Accordingly, C ia p r a z i's retaliation claim is dismissed.

2 . Eighth Amendment

F N 3 . Ciaprazi also makes several procedural o b j e c tio n s . For instance, he asserts that d e fe n d a n ts ' motion is procedurally defective s in c e none of the moving papers are signed, as r e q u ir e d by FRCP 11. Second, Ciaprazi objects to the defendants' alteration of the case caption. T h ir d , Ciaprazi objects to the defendants' use of a name that did not appear in the original c o m p la in t. These arguments are without merit a n d this court adopts Judge Peebles articulated

* 2 Next, Ciaprazi objects to Judge Peebles' finding that he d id not have standing to challenge the disciplinary a u th o r ity of the Tier III system. Pl. Objs. p. 7, Dkt. No. 4 8 .T h is objection is without merit. As Judge Peebles n o te d , since the length of Ciaprazi's disciplinary c o n fin e m e n t was within the bounds of constitutionally a c c e p ta b le levels, he has no standing to sue. Second, as J u d g e Peebles further noted, any generalized complaints C ia p r a z i has against the Tier III system are more a p p r o p r ia te ly addressed as part of his due process claims. A c c o r d in g ly , Ciaprazi's claims against the Tier III system

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a r e dismissed.

3 . Human Rights Claims

C ia p r a z i also objects to Judge Peebles' finding that he did n o t have claims under the Universal Declaration of Human R ig h ts (UDHR) and the International Covenant on Civil a n d Political Rights (ICCPR). Ciaprazi's contention is w ith o u t merit. As Judge Peebles noted, Ciaprazi has failed to establish that these treaties provide private causes of a c t i o n . See Report Recommendation p. 41, Dkt. No. 4 7 .A c c o r d in g ly , Ciaprazi's claims under international law a r e dismissed.

( D k t. No. 39) be GRANTED in part, and that all of p la in tiff's claims against defendant Goord, and all of p la in tiff's claims against the remaining defendants except h is procedural due process and Eighth Amendment c o n d itio n s of confinement causes of action, be D I S M I S S E D , but that to the extent of those claims, with r e s p e c t to which triable issues of fact exist, the defendants' m o tio n be DENIED.

I T IS SO ORDERED.

R E P O R T AND RECOMMENDATION

P E E B L E S , Magistrate J. 4 . Personal Involvement P la in tiff Roberto Ciaprazi, a New York State prison in m a te who by his own account has frequently lodged c o m p la in ts against prison officials and been openly critical o f their practices, has commenced this proceeding against th e Commissioner of the New York State Department of C o r r e c tio n a l Services ("DOCS") and several of that a g e n c y 's employees pursuant to 42 U.S.C. § 1983, c o m p la in in g of constitutional violations occurring during th e course of his confinement. In his complaint, Ciaprazi a lle g e s that 1) a misbehavior report was filed against him in retaliation for his having previously engaged in p r o te c te d activity; 2) he was deprived of procedural due p r o c e s s during the course of the hearing and resulting a d v e r s e finding associated with that misbehavior report; a n d 3) the conditions which he faced while in disciplinary c o n fin e m e n t, following that hearing, were cruel and u n u s u a l . Plaintiff asserts claims pursuant to the First, E ig h th and Fourteenth Amendments to the United States C o n s titu tio n , as well as under certain international human r ig h ts accords.

C ia p r a z i also objects to Judge Peebles' dismissal of his p e r s o n a l involvement claim against defendant Goord. As J u d g e Peebles noted, Ciaprazi merely made allegations a g a in s t Goord in his supervisory capacity. Accordingly, th e personal involvement claim against Goord was p r o p e r ly dismissed.

I V . Conclusion

H a v in g reviewed the objected-to portions of the Report a n d Recommendation de novo, the remainder under a c le a r ly erroneous standard, and Ciaprazi's objections, this c o u r t accepts and adopts the recommendation of Judge P e e b le s for the reasons stated in the March 14, 2004 R e p o rt-R e c o m m e n d a tio n .

W H E R E F O R E , for the foregoing reasons, it is hereby * 3 Currently pending before the court is a motion by the d e fe n d a n ts seeking summary judgment dismissing

O R D E R E D that defendants' summary judgment motion

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p la in tiff's complaint in its entirety. Having carefully r e v ie w e d the record in light of Ciaprazi's claims and d e fe n d a n ts ' arguments, I find that many of plaintiff's c a u s e s of action are devoid of merit, as a matter of law, a n d thus subject to dismissal. Because I find the existence o f genuinely disputed issues of material fact surrounding c e r ta in of plaintiff's claims, however, including notably his d u e process claim against defendants Melino, Kohl, G r a h a m , Fitzpatrick, and Rogers, I recommend denial of d e fe n d a n ts ' motion seeking dismissal of plaintiff's claims a g a in s t them.

e m p lo y e e (Rule 107.10), harassment (Rule 107.11), r e fu s a l to obey a direct order (Rule 106.10), and making th r e a ts (Rule 102.10). FN1 Defendants' Motion (Dkt. No. 3 9 ) Exh. A.

F N 1 . Keeplock confinement is defined by r e g u la tio n to include restriction to one's prison r o o m or cell. See, e.g.,7 N.Y.C.R.R. 251-2.2.

I . BACKGROUND

A t the times relevant to his complaint, Ciaprazi was a p r is o n e r entrusted to the custody of the DOCS. Plaintiff a lle g e s that after having been confined within the Clinton C o r r e c tio n a l Facility since February, 1997, he was tr a n s fe r r e d into the Coxsackie Correctional Facility in A p r il of 1998. Complaint (Dkt. No. 1) ¶ 3. Ciaprazi a s s e r ts that while at Coxsackie he was administered more th a n a dozen allegedly false misbehavior reports, resulting in disciplinary cell confinement of over 200 days as well a s other "deprivations" of an unspecified nature. Id. ¶ 3. P la in tiff contends that the issuance of those misbehavior r e p o r ts was motivated by his having filed multiple c o m p la in ts involving conduct of corrections workers and s ta ff at Coxsackie.

O n July 31, 1999, following the underlying events and the im p o s itio n of keeplock confinement but prior to receiving th e misbehavior report, plaintiff filed a grievance r e g a r d in g the incident; plaintiff followed the filing of that g r ie v a n c e with a request on August 3, 1999 for prehearing r e le a s e from confinement. Complaint (Dkt. No. 1) ¶ 19. P la in tiff received no response to that grievance. Id.

A t the heart of plaintiff's claims in this action is an in c id e n t which occurred at Coxsackie on July 31, 1999. O n that date, Ciaprazi and various other prisoners were ta k e n to an enclosed holding area to provide specimens for u s e in conducting drug screening urinalysis testing. As a r e s u lt of an interaction occurring during the course of that te s tin g between the plaintiff and defendant Fitzpatrick, a c o r r e c tio n s lieutenant at the facility, plaintiff was placed in keeplock confinement and issued a misbehavior report o n the following day, charging him with creating a d is tu r b a n c e (Rule 104.13), interference with a prison

A Tier III disciplinary hearing in connection with the c h a r g e s stemming from the July 31, 1999 incident was c o n d u c te d by defendant Melino, a corrections counselor a t Coxsackie, beginning on August 4, 1999, and c o n c lu d in g on August 10, 1999. Defendants' Motion (Dkt. N o . 39) Exh. A at 2; id.Exh. B at 17, 152. FN2D e fe n d a n t C o le , who according to the plaintiff is a civilian employee w o r k in g at Coxsackie, was assigned as plaintiff's inmate a s s i s t a n t in connection with that hearing. The evidence a d d u c e d at that hearing included the misbehavior report, a s well as testimony from the plaintiff, Corrections L ie u te n a n t Fitzpatrick, Corrections Officer Marshal, C o r r e c tio n s Counselor Cole, Corrections Officer Rogers, C o r r e c tio n s Officer Simonik, Corrections Lieutenant M c D e r m o tt, and Corrections Officer Phillips. Defendants' M o tio n (Dkt. No. 39) Exh. B.

F N 2 . The DOCS conducts three types of inmate d is c ip lin a r y hearings. Tier I hearings address the le a s t serious infractions, and can result in minor p u n is h m e n ts such as the loss of recreation p r iv ile g e s . Tier II hearings involve more serious

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in fr a c tio n s , and can result in penalties which in c lu d e confinement for a period of time in the S p e c ia l Housing Unit (SHU). Tier III hearings c o n c e r n the most serious violations, and could r e s u lt in unlimited SHU confinement and the loss o f "good time" credits. See Hynes v. Squillace, 1 4 3 F.3d 653, 655 (2d Cir.), cert. denied, 525 U .S . 907, 119 S.Ct. 246 (1998).

* 4 At the conclusion of the hearing, plaintiff was found g u ilty on all five counts, and a penalty of ten months of d is c ip li n a r y confinement within the Coxsackie Special H o u s in g Unit ("SHU"), with a corresponding loss of c o m m i s s a r y , telephone and package privileges, was im p o s e d . FN3D e fe n d a n ts ' Motion (Dkt. No. 39) Exh. A at 0 0 . Ciaprazi was not present when Hearing Officer Melino r e a d her decision into the record, having previously been r e m o v e d from the proceeding for engaging in what the h e a r in g officer regarded as disruptive behavior. See D e fe n d a n ts ' Motion (Dkt. No. 39) Exh. B at 152. Plaintiff a p p e a le d the hearing officer's decision to Donald Selsky, t h e DOCS Director of Special Housing/Inmate D is c ip lin a r y Program, who on September 27, 1999 a ffir m e d the determination. Complaint (Dkt. No. 1) ¶ 51.

h is complaint, until September 16, 1999 when he was tr a n s fe r r e d into Clinton and exposed to similarly u n p le a s a n t conditions. Id. ¶¶ 53-55; Ciaprazi Aff. (Dkt. N o . 46) ¶¶ 54-57. Plaintiff describes the keeplock c o n f in e m e n t conditions at Coxsackie as even more u n p l e a s a n t than those experienced in SHU, having in c lu d e d the deprivation of certain personal items such as fo o d and snacks, toiletries, musical instruments, and other s im ila r amenities. Ciaprazi Aff. (Dkt. No. 46) ¶ 54. The d e p r iv a tio n s experienced by the plaintiff while in keeplock c o n fin e m e n t at Coxsackie also entailed being subjected to " lo u d and non-stop noise from other frustrated prisoners y e llin g and banging on the doors," as well as the denial of a c c e s s to the law library, books and other reading m a te r ia ls , and various programs available to those in g e n e r a l population. Id. ¶ 55.W h ile at Upstate, plaintiff c o n te n d s that he was exposed to cell lighting between 6:00 a m and 1:00 am; he was denied reading materials; his m e d ic a l requests "were ignored"; and he experienced cold c o n d iti o n s and the inability to participate in available r e c r e a tio n due to the lack of warm clothing. Id. ¶ 57; C o m p la in t (Dkt. No. 1) ¶ 53. Similar conditions were e x p e r ie n c e d by the plaintiff while at Clinton, including e x p o s u r e to cold and lack of warm clothing and blankets, to g e th e r with the deprivation of medical and mental health s e r v ic e s . Ciaprazi Aff. (Dkt. No. 46) ¶ 57; Complaint ( D k t. No. 1) ¶ 54..

F N 3 . Of those sanctions, five months were s u s p e n d e d and deferred for a to tal of one h u n d r e d eighty days. Defendants' Motion (Dkt. N o . 39) Exh. A at 00. The record is unclear r e g a r d in g the amount of disciplinary confinement a c tu a lly served by the plaintiff as a result of the h e a r in g determination.

I I . PROCEDURAL HISTORY

O n August 20, 1999, plaintiff was transferred into the U p s ta te Correctional Facility, where he was apparently p la c e d in SHU confinement to serve his disciplinary s e n te n c e . Complaint (Dkt. No. 1) ¶ 52. Plaintiff asserts th a t during that period, as well as while in keeplock c o n fin e m e n t at Coxsackie, he was subjected to significant d e p r iv a tio n s , which are described in summary fashion in

T h e plaintiff, who is proceeding pro se and in forma p a u p e r is , commenced this action on July 15, 2002. Dkt N o . 1. Named as defendants in plaintiff's complaint are N e w York DOCS Commissioner Glenn S. Goord; Ellen J. C r o c h e , Chair of the New York State Commission of C o r r e c tio n ; Fred Lamey, a member of the New York C o m m is s i o n of Correction; Donald Selsky, the DOCS D ir e c to r of Special Housing/Inmate Disciplinary Program; C o r r e c t i o n s Counselor Melino, whose first name is u n k n o w n ; Cole, another DOCS employee whose complete n a m e is unknown to the plaintiff; H.D. Graham, Deputy

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S u p e r in te n d e n t for Security at Coxsackie; Corrections L ie u te n a n t Fitzpatrick; and Corrections Officer Rogers. Id. I n his complaint, plaintiff asserts nine separate causes of a c tio n , including claims 1) against defendants Rogers and F itz p a tr ic k , for infringement of his First Amendment right to free speech, and due process and equal protection v io la tio n s under the United States Constitution, as well as u n d e r the Universal Declaration of Human Rights ( " U D H R " ) and the International Covenant on Civil and P o litic a l Rights ("ICCPR"); 2) against defendant Graham, fo r failure to investigate plaintiff's grievance and to take a c tio n s to prevent infringement of his constitutional rights; 3 ) against defendant Cole, for failing to properly perform h is duties as Ciaprazi's inmate assistant; 4) against d e fe n d a n t Melino, for deprivation of due process, based u p o n her conduct and bias during the disciplinary hearing; 5 ) of retaliation against defendant Melino, asserting that h e r actions were taken in response to the filing of c o m p la in ts and grievances by the plaintiff; 6) against d e fe n d a n ts Goord and Selsky, based upon their failure to o v e r tu r n plaintiff's disciplinary conviction and remediate th e constitutional deprivations suffered by him; 7) against d e fe n d a n ts Goord and Selsky for retaliation, based on p la in tiff's prior filing of complaints and grievances; 8) a g a in s t defendants Croche, Lamey and Goord, in their s u p e r v i s o r y capacities, for failure to properly oversee D O C S employees and enact policies to prevent such a b u s e s ; and 9) against defendants Goord, Croche and L a m e y, for maintaining and fostering a policy of w id e s p r e a d and disportionate disciplinary punishments w ith in the state's prison system. Complaint (Dkt. No. 1) at 1 4 -1 6 .P la in tif f 's complaint seeks both injunctive and m o n e ta r y relief. Id.

in te rn a l disciplinary proceedings against the plaintiffs, and a n s w e r s by plaintiff to defendants' interrogatories, and w it h o u t the benefit of either a transcript of plaintiff's d e p o s itio n or any affidavits, other than from their counsel, d e fe n d a n ts have moved for summary judgment seeking d is m is s a l of plaintiff's claims on various grounds. Id. In th e ir motion, defendants argue that 1) plaintiff has failed to offer proof from which a reasonable factfinder could c o n c lu d e that cognizable constitutional violations have o c c u r r e d ; 2) defendants Goord and Selsky lack the r e q u is ite personal involvement in the constitutional v io la tio n s alleged; and 3) plaintiff should be denied the in j u n c tiv e relief which he seeks. Id. Plaintiff has since s u b m itte d papers in opposition to defendants' summary j u d g m e n t motion. FN5D k t. No. 46.Defendants' motion, w h ic h is now ripe for determination, has been referred to m e for the issuance of a report and recommendation, p u r s u a n t to 28 U.S.C. § 636(b)(1)(B) and Northern D is tr ic t of New York Local Rule 72.3(c).See a ls o F e d .R .C iv .P . 72(b).

F N 4 . There is no indication on the docket sheet th a t defendant Fitzpatrick has been served in the a c tio n . W h ile plaintiff requested and obtained the e n tr y of that defendant's default on June 20, 2 0 0 3 , see Dkt. Nos. 20, 21, his default was s u b s e q u e n tly vacated by order issued by District J u d g e David N. Hurd on January 13, 2004, based u p o n plaintiff's failure to prove that defendant F itz p a tr ic k had in fact been served. SeeDkt. No. 35.

* 5 Following the filing of an answer on behalf of the eight d e fe n d a n ts who have been served in the action on D e c e m b e r 3, 2002, generally denying plaintiff's a lle g a tio n s and setting forth various affirmative defenses, D k t. No. 13, and pretrial discovery, on February 27, 2004 th o s e defendants moved seeking entry of summary j u d g m e n t on various bases. FN4D k t. No. 39.Aided only by p la in tiff's complaint, the record related to the relevant

F N 5 . In his papers in opposition to defendants' s u m m a r y judgment motion, plaintiff has raised s e v e r a l procedural objections to defendants' m o tio n papers. In addressing those objections I a m mindful of the preference that matters before th e court, whenever possible, be decided on their m e r its rather than on the basis of technical p r o c e d u r a l shortcomings. See, e.g., Upper H u d s o n Planned Parenthood, Inc. v. Doe, 836

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F .S u p p . 939, 943 n. 9 (N.D.N.Y.1993) (McCurn, S .J .) . In any event, plaintiff's procedural o b j e c tio n s are not well-founded.

I n his opposition papers, plaintiff asserts that d e fe n d a n ts ' motion is procedurally defective s in c e none of the moving papers are signed, as r e q u ir e d under Rule 11 of the Federal Rules of C iv il Procedure. See Plaintiff's Memorandum ( D k t. No. 46) at 1. W h ile not bearing s ig n a tu r e s in the traditional sense, all of d e fe n d a n ts ' original moving papers, which w e r e filed electronically with the court in a c c o r d a n c e with this court's case management a n d electronic case filing requirements (see N o r th e r n District of New York Local Rule 5 .1 . 2 and General Order No. 22), were p r o p e r ly signed.

7 .1 ( a ) ( 3 ) statement of uncontested, material fa c ts , submitted along with the various other p a p e r s in support of their motion, indicates th a t it is submitted on behalf of a defendant L a n d r y , even though there is no person by that n a m e identified as a defendant in plaintiff's c o m p la in t. SeeDkt. No. 39.Because this is an o b v io u s typographical error, and the contents o f the statement obviously relate to the facts of th is case, I decline plaintiff's invitation to r e j e c t and treat the statement as a nullity on th is basis.

P la in tiff also complains of alterations by the d e fe n d a n ts to the caption of the case as set fo r th in his complaint. Specifically, Ciaprazi c h a lle n g e s defendants' addition of the word " u n k n o w n " in relation to defendants Melino a n d Cole, who are identified in plaintiff's c o m p la in t only by last names. Since it is well e s ta b lis h e d that the caption of a pleading is not s u b s ta n tiv e in nature, and therefore does not c o n tr o l, the addition of that word does not p r o v id e a basis to reject defendants' motion p a p e r s . See 5 Charles A. W r ig h t & Arthur R. M ille r , Federal Practice & Procedure Civil § 1 3 2 1 (3d ed. 2004) ("Although helpful to the d i s t r ic t court ... the caption is not d e te r m in a tiv e as to the identity of the parties to th e action"); see also Prisco v. State of New Y o r k , 804 F.Supp. 518, 521 (S.D.N.Y.1992) ( c itin g an earlier edition of W r ig h t & Miller).

I note that Ciaprazi, who appears to be well v e r s e d in the applicable requirements of the fe d e r a l and local rules, himself has overlooked t h e important requirement that legal m e m o r a n d a submitted in connection with m o ti o n s to not exceed twenty-five pages in le n g th . Northern District of New York Local R u le 7.1(a)(1). Plaintiff's memorandum, which is thirty-four pages in length, has been a c c e p te d by the court, without objection by the d e fe n d a n ts , despite his failure to obtain prior p e r m is s io n to file an oversized brief. Plaintiff is admonished that in the future, just as he s e e k s to hold defendants to the requirements of th e governing rules, he too must conform to th o s e requirements.

I I I . DISCUSSION

A . Summary Judgment Standard

A s plaintiff notes, defendants' Local Rule

S u m m a r y judgment is warranted when "the pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file , together with the affidavits ... show that there is no g e n u in e issue as to any material fact and that the moving p a r ty is entitled to a judgment as a matter of

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la w ." F e d .R .C iv . P . 56(c); see Celotex Corp. v. Catrett, 477 U .S . 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2 5 0 9 -1 0 (1986); Security Insurance Co. of Hartford v. O ld Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d C ir .2 0 0 4 ) . W h e n summary judgment is sought, the moving p a r ty bears an initial burden of demonstrating that there is n o genuine dispute of material fact to be decided with r e s p e c t to any essential element of the claim in issue; the fa ilu r e to meet this burden warrants denial of the motion. A n d e r s o n , 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; S e c u r ity Insurance, 391 F.3d at 83.

C tr ., 168 F.3d 615, 620-21 (2d Cir.1999) (noting o b lig a t i o n of court to consider whether pro se p la in tiff understood nature of summary judgment p ro c ess).

B . Plaintiff's First Amendment Retaliation Claim

I n the event this initial burden is met, the opposing party m u s t show, through affidavits or otherwise, that there is a m a te r ia l issue of fact for trial. FN6F e d . R . C iv .P . 56(e); C e lo te x , 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 4 7 7 U.S. at 250, 106 S.Ct. at 2511. W h e n deciding a s u m m a r y judgment motion, the court must resolve any a m b ig u itie s , and draw all inferences from the facts, in a lig h t most favorable to the nonmoving party. Wright v. C o u g h lin , 132 F.3d 133, 137-38 (2d Cir.1998). Summary j u d g m e n t is inappropriate where "review of the record r e v e a ls sufficient evidence for a rational trier of fact to fin d in the [nonmovant's] favor." Treglia v. Town of M a n liu s , 313 F.3d 713, 719 (2d Cir.2002) (citation o m itte d ) ; see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2 5 1 1 (summary judgment is appropriate only when "there c a n be but one reasonable conclusion as to the verdict.").

F N 6 . A material fact is genuinely in dispute "if th e evidence is such that a reasonable jury could r e tu r n a verdict for the nonmoving party." A n d e r s o n , 477 U.S. at 248, 106 S.Ct. at 2510. T h o u g h pro se plaintiffs are entitled to special la titu d e when defending against summary j u d g m e n t motions, they must establish more than m e r e ly "metaphysical doubt as to the material fa c ts . " Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1 3 5 6 (1986); but see Vital v. Interfaith Med.

* 6 Plaintiff's complaint asserts several claims of unlawful r e ta lia tio n . In his first cause of action, plaintiff asserts that th e actions of defendants Rogers and Fitzpatrick in c o n fin in g him to a cell and issuing, or directing the is s u a n c e of, misbehavior reports were taken in retaliation fo r his having filed prior grievances and complaints r e g a r d in g DOCS officials, including those working at C o x s a c k ie . Complaint (Dkt. No. 1) First Cause of Action. P la in tiff's second claim alleges that defendant Rogers' fa ilu r e to investigate plaintiff's complaint regarding the a lle g e d ly false misbehavior report, and to order his release f r o m confinement pending a disciplinary hearing, were s im ila r ly retaliatory. Id. Second Cause of Action. Plaintiff fu r th e r alleges in his fifth cause of action that the actions o f Hearing Officer Melino, including in finding him guilty o n all five counts, were motivated by Ciaprazi's filing of p r io r grievances and complaints. Id. Fifth Cause of Action. P la in tiff's seventh claim similarly attributes the failure of d e fe n d a n ts Goord and Selsky to reverse the hearing o ffic e r 's determination, on appeal, to retaliation for his h a v in g engaged in protected activity. Id. Seventh Cause of A c tio n . Defendants maintain that these retaliation claims a r e legally deficient, and that the record contains no e v id e n c e upon which a factfinder could conclude that u n la w fu l retaliation occurred.

C la im s of retaliation like those asserted by the plaintiff fin d their roots in the First Amendment. See Gill v. P id ly p c h a k , 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that in a prison setting, c o r r e c ti o n s officials may not take actions which would h a v e a chilling effect upon an inmate's exercise of First A m e n d m e n t rights. See id. at 81-83.Because of the relative

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e a s e with which claims of retaliation can be incanted, h o w e v e r , as exemplified by plaintiff's claims in this action, th e courts have scrutinized such retaliation claims with p a r tic u la r care. See Flaherty v. Coughlin, 713 F.2d 10, 13 ( 2 d Cir.1983). As the Second Circuit has noted,

ta k e n for both proper and improper reasons may be upheld if the action would have been taken based on the proper r e a s o n s alone. Graham v. Henderson, 89 F.3d 75, 79 (2d C ir .1 9 9 6 ) (citations omitted).

[ t] h is is true for several reasons. First, claims of retaliation a r e difficult to dispose of on the pleadings because they in v o lv e questions of intent and are therefore easily fa b r ic a te d . Second, prisoners' claims of retaliation pose a s u b s ta n ti a l risk of unwarranted judicial intrusion into m a tte r s of general prison administration. This is so b e c a u s e virtually any adverse action taken against a p r is o n e r by a prison official-even those otherwise not r is in g to the level of a constitutional violation-can be c h a r a c te r iz e d as a constitutionally proscribed retaliatory a c t.

* 7 As can be seen, evaluation of claims of retaliation is a p a r tic u la r ly fact-laden exercise, since such claims revolve a r o u n d both the engaging in protected conduct and e s ta b lis h m e n t of a nexus between that conduct and the a d v e r s e action ultimately taken. In making the required a n a ly s is in this case, however, the court is somewhat d i s a d v a n ta g e d by virtue of the fact that defendants' s u m m a r y judgment motion is not particularly enlightening a s to the basis for their claim that the court is positioned to fin d , as a matter of law, that plaintiff's retaliation claims a r e lacking in merit.

Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) ( c ita tio n s omitted), overruled on other grounds, S w ie r k e w ic z v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2 0 0 2 ).

I n order to state a prima facie claim under section 1983 fo r unlawful retaliation in a case such as this, a plaintiff m u s t advance non-conclusory allegations establishing that 1 ) the conduct or speech at issue was protected; 2) the d e fe n d a n ts took adverse action against the plaintiff; and 3) t h e r e was a causal connection between the protected a c tiv ity and the adverse action-in other words, that the p r o te c te d conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the p la in tiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. D o y le , 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Gill, 3 8 9 F.3d at 380 (citing Dawes, 239 F.3d at 492). If the p la in tiff carries this burden, the defendants must then s h o w , by a preponderance of the evidence, that they would h a v e taken action against the plaintiff "even in the absence o f the protected conduct ." Mount Healthy, 429 U.S. at 2 8 7 , 97 S.Ct. at 576. Under this analysis, adverse action

I n their motion the defendants, in the context of the n o w -fa m i l i a r standard governing analysis of First A m e n d m e n t retaliation claims, acknowledge that the p la in tiff, who has lodged formal complaints of prison c o n d iti o n s and treatment of inmates, has engaged in p r o te c te d activity. That plaintiff has filed an unusually la r g e number of grievances and lawsuits, and taken other s te p s to complain publicly about matters associated with h is confinement by the DOCS, is both apparent from the r e c o r d before the court, and not controverted by the d e fe n d a n ts . Indeed, in his response to defendants' s u m m a r y judgment motion, plaintiff proudly states that he h a s "systematically exposed, vehemently criticized, and e v e n ridiculed the inappropriate and arbitrary policies and a c tio n s of the staff at Coxsackie, including the actions of d e fe n d a n t Goord and of the Superintendent and Deputy S u p e r in te n d e n ts of Coxsackie." FN7P la in tiff's Affidavit ( D k t . No. 46) ¶ 32. Plaintiff has therefore established, at le a s t for purposes of the instant motion, that he was e n g a g e d in protected activity sufficient to trigger First A m e n d m e n t rights against acts taken in retribution for h a v in g voiced those types of complaints. Graham, 89 F.3d a t 80; Morello v. James, 810 F.2d 344, 346-47 (2d C ir.1 9 8 7 ) .

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F N 7 . Plaintiff has referred to his efforts in this r e g a r d as a "blitz of grievances and c o m p la in ts [ . ] " Plaintiff's Aff. (Dkt. No. 46) ¶ 52.

D e fe n d a n t s argue, however, that the record is lacking in e v id e n c e to establish the requisite connection between that p r o te c te d activity and the adverse actions taken against C ia p r a z i by prison officials. Defendants' legal position is a d v a n c e d , in part, in an affidavit from their counsel, P a t r ic k F. MacRae, Esq., outlining the evidence relied u p o n b y th e d e f e n d a n t s i n m a k i n g t h e i r m o tio n s.FN8D e fe n d a n ts also note, in further support of their m o tio n , the requirement that retaliation claims rest upon m o r e than mere conclusory allegations regarding the state o f mind of prison officials. SeeDkt. No. 39 at 8-9;e.g., F la h e r ty , 713 F.2d at 13.

* 8 In this case the defendants have satisfied their initial, m o d e s t threshold burden of establishing the lack of e v id e n tia r y support for plaintiff's retaliation claims. T h o u g h conventional wisdom might dictate the submission o f affidavits from the primary actors, including notably d e fe n d a n t s Rogers and Fitzpatrick, disavowing any r e ta lia to r y motives associated with their actions, d e fe n d a n ts ' decision to rely instead upon the lack of e v id e n tia r y support for plaintiff's retaliation claims, in c lu d in g through plaintiff's responses to defendants' in te r r o g a to r ie s as well as the proceedings associated with th e underlying disciplinary matter, is sufficient to cast the b u r d e n upon the plaintiff to come forward with evidence d e m o n s tr a tin g the existence of genuinely disputed material is s u e s of fact for trial with regard to those claims. Celotex, 4 7 7 U.S. at 323-34, 106 S.Ct. at 2553;see also Anderson, 4 7 7 U.S. at 249, 106 S.Ct. at 2511. There is no r e q u ir e m e n t under Rule 56 of the Federal Rules of Civil P r o c e d u r e or otherwise that a party affidavit be submitted to support such a motion, which instead can be based upon a n y admissible evidence. Id.

F N 8 . The attorney's affirmation in and of itself is , of course, of no evidentiary value in d e te r m i n i n g the motion for summary judgment s in c e none of the facts upon which such a finding w o u ld ostensibly be based are within his personal k n o w le d g e . Kamen v. American Tel. & Tel. Co., 7 9 1 F.2d 1006, 1011-12 (2d Cir.1986).

A s plaintiff correctly notes, the applicable pleading r e q u ir e m e n t s , including Rule 8 of the Federal Rules of C iv il Procedure, provide for mere "notice" pleading, and d o not require that complaints contain every detail a s s o c ia te d with a plaintiff's claims except in categories not a p p lic a b le to this case. See Leatherman v. Tarrant Cty. N a r c o tic s Intelligence & Coordination Unit, 507 U.S. 1 6 3 , 167-69, 113 S.Ct. 1160, 1162-63 (1993). A c c o r d in g ly, the mere fact that the plaintiff's retaliation c la im s are pleaded in non-specific, conclusory terms does n o t alone entitle defendants to summary dismissal of those c la im s .

T o demonstrate that a reasonable factfinder could discern a nexus between plaintiff's filing of grievances and the d is c ip lin a r y matters associated with the incident at issue, C ia p r a z i essentially makes two arguments. First, he c o n te n d s that the manifest falsity of the misbehavior report a s well as testimony proffered during the disciplinary h e a r in g give rise to an inference that the disciplinary m a tte r s were motivated toward retaliatory animus. S e c o n d ly , plaintiff argues that the sheer number of g r ie v a n c e s and formal complaints lodged by him, in c lu d in g some close in temporal proximity to the u n d e r l y i n g incident, similarly gives rise to a legitimate in fe r e n c e of retaliatory motivation. See Ciaprazi M e m o r a n d u m (Dkt. No. 46) at 14.

P la in tiff's argument in this regard is significantly diluted b y the sheer number of complaints lodged by him over tim e . By his own admission, plaintiff has regularly and o p e n ly complained of prison policies and practices and

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d u r in g the relevant time period prior to the July 31, 1999 in c id e n t, and indeed had filed many formal complaints r e g a r d in g his treatment while at Coxsackie. Yet, plaintiff h a s submitted no evidence that any of those complaints r e la te d to defendants Rogers or Fitzpatrick, the two p r in c ip a l actors in this case, nor has he pointed to any c o lla b o r a tio n between those named in his prior complaints a n d Fitzpatrick and Rogers. At best, plaintiff has argued th a t prior to July 31, 1999 he "filed complaints and/or g r ie v a n c e s against Lieutenants Sweeney, Armstrong, S k r o c k y and McDermott, all colleagues of defendant F itz p a tr ic k of the same rang [sic] with defendant F itz p a tr ic k ." I d . ¶ 32.

c ir c u m s ta n c e s would be presented, and summary judgment w o u ld not be warranted. In this case, however, plaintiff c a n point to no complaints lodged by him against or im p lic a tin g the conduct of defendant Fitzpatrick, who is s u e d the disputed misbehavior report. Accordingly, I fin d that the defendants have established that they are e n title d to summary dismissal of plaintiff's retaliation c la im s based upon plaintiff's failure to establish a basis on w h ic h a reasonable factfinder could find the requisite c o n n e c tio n between plaintiff's grievance activities and the is s u a n c e of the misbehavior report and subsequent d is c ip lin a r y hearing. FN9E .g ., Williams v. Goord, 111 F .S u p p .2 d 280, 290 (S.D.N.Y.2000); Mahotep v. DeLuca, 3 F.Supp.2d 385, 389 (W .D .N .Y .1 9 9 8 ) .

I n an equally tenuous attempt to link his protected activity w ith the issuance of a misbehavior report, plaintiff notes th a t on May 26, 1999 he filed a grievance for harassment a g a in s t an employee named Fitzpatrick, who was assigned to assist him in connection with another Tier III d is c ip lin a r y hearing, stating his naked belief, lacking in e v id e n tia r y support, that the employee named in that c o m p l a in t "may be and apparently is a relative of d e fe n d a n t Fitzpatrick."Id. ¶ 33, Exh. 39. Plaintiff also n o te s that on July 21, 1999 he filed a grievance accusing d e fe n d a n t Goord of "gross abuse of power", requesting an in v e s tig a tio n of defendant Goord by the New York State P o lic e and federal authorities, and that five days later, on J u ly 26, 1999, he filed a complaint with various agencies in c lu d in g the United States Department of Prisons c o m p la in in g of mistreatment. Id. ¶¶ 34, 35.

* 9 W h ile there is some appeal to finding the requisite fact is s u e to avoid the entry of summary judgment on plaintiff's r e ta lia tio n claims based upon the timing of these events, th a t factor is undermined by the steady stream of g r ie v a n c e s filed by him on a regular and continuing basis. W e r e the plaintiff someone who had rarely if ever c o m p l a in e d about prison conditions, but shortly before b e in g issued a misbehavior report had lodged a formal c o m p la in t against or implicating the conduct of the officer w h o issued the disciplinary citation, a very different set of

F N 9 . Prior to the Second Circuit's recent d e c is io n in Gill, defendants perhaps could have e ffe c tiv e ly argued that defendants' actions were n o t likely to deter, and in fact have not chilled, p la in tiff's exercise of his First Amendment rights, a n d therefore do not give rise to a retaliation c la im . E.g., Colombo v. O'Connell, 310 F.3d 1 1 5 , 117 (2d Cir.2002); Curley v. Village of S u ffe r n , 268 F.3d 65, 72-73 (2d Cir.2001); Spear v . Town of West Hartford, 954 F.2d 63, 68 (2d C ir .1 9 9 2 ) . In its recent decision in Gill, however, th e Second Circuit clarified that such a finding d o e s not end the inquiry, since the critical focus is not upon the subjective element, but is instead o b j e c tiv e , examining whether the retaliatory c o n d u c t alleged "would deter a similarly situated in d iv id u a l of ordinary firmness from exercising ... constitutional rights." Gill, 389 F.3d at 381 ( q u o tin g Davis v. Goord, 320 F.3d 346, 353 (2d C ir .2 0 0 3 ) , superseded by 2003 U.S.App. LEXIS 1 3 0 3 0 (2d Cir. Feb. 10, 2003)). C . Plaintiff's Eighth Amendment Cruel And Unusual P u n is h m e n t Claim

I n his complaint Ciaprazi, in somewhat indiscriminate

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fa s h io n , asserts that the actions taken against him by the v a r io u s defendants resulted in his exposure to cruel and u n u s u a l punishment, in violation of the Eighth A m e n d m e n t.FN10 Plaintiff's cruel and unusual punishment c la im s appear to center upon the conditions which he fa c e d as a result of the disciplinary proceedings against h im and resulting in SHU confinement initially at C o x s a c k ie , and later at Upstate and at Clinton. In their m o t i o n , defendants assert that these claims are similarly d e fic ie n t as a matter of law.

W ils o n v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991)); W a ld o v. Goord, No. 97-CV-1385, 1998 W L 713809, at * 2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.); s e e also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. D e lib e r a te indifference exists if an official "knows of and d is r e g a r d s an excessive risk to inmate health or safety; the o ffic ia l must both be aware of facts from which the in fe r e n c e could be drawn that a substantial risk of serious h a r m exists, and he must also draw the inference." F a r m e r , 511 U.S. at 837, 114 S.Ct. at 1978; Leach, 103 F . S u p p .2 d at 546 (citing Farmer ); Waldo, 1998 W L 7 1 3 8 0 9 , at *2 (same).

F N 1 0 . That amendment provides, in pertinent p a r t, that "[e]xcessive bail shall not be required, n o r excessive fines imposed, nor cruel and u n u s u a l punishments inflicted."U.S. Const. a m e n d . VIII.

T h e Eighth Amendment's prohibition of cruel and unusual p u n is h m e n t encompasses punishments that involve the " u n n e c e s s a r y and wanton infliction of pain" and are in c o m p a tib le with "the evolving standards of decency that m a r k the progress of a maturing society." Estelle v. G a m b le , 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 ( 1 9 7 6 ) ; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S .C t. 1076, 1084 (1986) (citing, inter alia, Estelle ). The E ig h th Amendment does not mandate comfortable prisons, b u t yet it does not tolerate inhumane ones either; thus the c o n d itio n s of an inmate's confinement are subject to E ig h th Amendment scrutiny. Farmer v. Brennan, 511 U.S. 8 2 5 , 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. C h a p m a n , 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1 9 8 1 )).

A claim alleging that prison conditions violate the Eighth A m e n d m e n t must satisfy both an objective and subjective r e q u ir e m e n t-th e conditions must be "sufficiently serious" fr o m an objective point of view, and the plaintiff must d e m o n s tr a te that prison officials acted subjectively with " d e lib e r a te indifference".See Leach v. Dufrain, 103 F .S u p p .2 d 542, 546 (N.D.N.Y.2000) (Kahn, J .) (citing

* 1 0 Plaintiff's cruel and unusual punishment claim c h a lle n g e s the fact that 1) he was placed in a double bunk c e ll at Upstate; 2) was placed in isolation and exposed to lig h t except for five hours each night; 3) was deprived of s u c h amenities such as writing paper and envelopes, p r o p e r access to the law library, medical care, access to n e w s p a p e r s , magazines and books, access to the courts, a n d legal papers; 4) was exposed to loud and boisterous b e h a v io r on the part of other inmates; 5) was denied e s s e n tia l clothing and bedding as well as personal hygiene m a te r i a l s , radios or headphones, books, newspapers and m a g a z in e s ; and 6) was exposed to cold conditions, leading h im to suffer at least one case of the flu. Complaint (Dkt. N o . 1) ¶¶ 52-56; see also Plaintiff's Affidavit (Dkt. No. 4 6 ) ¶¶ 53-57. To counter these allegations, defendants h a v e submitted nothing to reflect the lack of a basis upon w h ic h a reasonable factfinder could conclude that plaintiff w a s exposed to cruel and unusual punishment while in d is c ip lin a r y isolation as a result of the Tier III d e te r m in a tio n now at issue. Instead, defendants' motion fo c u s e s upon a narrow aspect of plaintiff's Eighth A m e n d m e n t claim, in which they assert that the lack of p o lic ie s guaranteed to result in uniformity throughout the D O C S system of punishments to result in a Eighth A m e n d m e n t violation.

A s skeptical as perhaps one may be regarding plaintiff's a b ility to ultimately persuade a factfinder that the

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a d m itte d ly unpleasant conditions to which he was a p p a r e n tly exposed and the deprivations suffered while in d is c ip lin a r y confinement rise to a constitutionally s ig n ific a n t level, I am unable to state, based upon the r e c o r d as currently constituted, that no reasonable fa c tfin d e r could so conclude. I therefore recommend d e n ia l of defendants' motion to dismiss plaintiff's Eighth A m e n d m e n t cruel and unusual punishment claim relating to the conditions of his confinement. FN11

d u r in g the course of the disciplinary hearing which r e s u lte d in his disciplinary confinement for a period of fiv e months. In support of their motion, defendants argue b o th that plaintiff was not deprived of a constitutionally c o g n iz a b le liberty interest, and that even assuming he was, h e was afforded the requisite process due under the F o u r te e n th Amendment in connection with that d e p r iv a t i o n .

F N 1 1 . In their motion, defendants have not a r g u e d lack of personal involvement with regard to their Eighth Amendment claims. It therefore r e m a in s to be seen whether plaintiff can establish th e defendants' participation in the Eighth A m e n d m e n t violations alleged.

* 1 1 To successfully state a claim under 42 U.S.C. § 1983 fo r denial of due process arising out of a disciplinary h e a r in g , a plaintiff must show that he or she both (1) p o s s e s s e d an actual liberty interest, and (2) was deprived o f that interest without being afforded sufficient process. S e e Tellier v. Fields, 260 F.3d 69, 79-80 (2d Cir.2000) ( c ita tio n s omitted); Hynes, 143 F.3d at 658; Bedoya v. C o u g h lin , 91 F.3d 349, 351-52 (2d Cir.1996).

I n c lu d e d within his Eighth Amendment claim, though m o r e appropriately grouped with his due process cause of a c tio n , is plaintiff's contention that because the Tier III h e a r in g officer was provided the unfettered discretion, in th e event of finding of guilt, to impose a penalty of w h a te v e r magnitude seen fit, the disciplinary scheme in p la c e at the DOCS is constitutionally infirm. In plaintiff's c a s e , however, the imposed penalty of ten months of d i s c ip lin a r y confinement, 180 days of which were d e fe r r e d , fell comfortably within the bounds of acceptable le v e l s under the Eighth Amendment. Consequently, w h a te v e r may be said about plaintiff's arguments r e g a r d i n g the discretion affording to hearing officers, he la c k s standing to raise such a claim. See Trammell v. M a n te llo , No. 90-CV-382, 1996 W L 863518, at *8-*9 ( W .D .N .Y . June 10, 1996) (Tier III regulations pass c o n s titu tio n a l muster).

1 . Liberty Interest

A d d r e s s in g the first of these required showings, in Sandin v . Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), the U n ite d States Supreme Court determined that to establish a liberty interest, a plaintiff must sufficiently demonstrate th a t (1) the State actually created a protected liberty in te r e s t in being free from segregation; and that (2) the s e g r e g a tio n would impose an "atypical and significant h a r d s h ip on the inmate in relation to the ordinary incidents o f prison life." Id. at 483-84, 115 S.Ct. at 2300;Tellier, 2 8 0 F.3d at 80; Hynes, 143 F.3d at 658.

D . Plaintiff's Procedural Due Process Claim

I n their motion, defendants also challenge plaintiff's c o n te n tio n that he was denied procedural due process

D e fe n d a n ts challenge the applicability of both of these fa c to r s . Initially, defendants question whether New York h a s , by statute or otherwise, created a protected liberty in te r e s t in prisoners remaining free from segregation, in c lu d in g for disciplinary reasons, arguing that it has not. D e fe n d a n ts ' Memorandum (Dkt. No. 39) at 14.The cases c ite d in support of that proposition, however, which relate to whether there is a constitutional or liberty interest in

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b e in g assigned to a particular program, job assignment, or fa c ility , are inapposite. See, e.g., Klos v. Haskell, 48 F.3d 8 1 , 87-88 (2d Cir.1995) (involving revocation of a s s ig n m e n t to "shock incarceration" program); Hall v. U n k n o w n Named Agents of N.Y. State Dept. for Corr. S e r v s . for APPU Unit at Clinton Prison, 825 F.2d 642, 6 4 5 -4 6 (2d Cir.1987) (involving assignment to A s s e s s m e n t Program and Preparation Unit); see also M o n ta n y e v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2 5 4 7 (1976) (no constitutional right of inmate to be placed in any particular facility); Frazer v. Coughlin, 81 F.3d 3 1 3 , 318 (2d Cir.1996) ("no protected liberty interest in a p a r tic u la r job assignment"). Despite defendants' assertion to the contrary, it is now firmly established that through its r e g u la to r y scheme, New York State has created a liberty in te r e s t in prisoners remaining free from disciplinary c o n fin e m e n t, thus satisfying the first Sandin factor. See, e .g ., Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d C ir .2 0 0 4 ) (citing Welch v. Bartlett, 196 F.3d 389, 394 n. 4 (2d Cir.1999); see also LaBounty v. Coombe, No. 95 C I V 2617, 2001 W L 1658245, at *6 (S.D.N .Y. Dec. 26, 2 0 0 1 ) ; Alvarez v. Coughlin, No. 94-CV-985, 2001 W L 1 1 8 5 9 8 , at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.).

A r c e , 139 F.3d at 336.

F N 1 2 . In cases where there is factual dispute c o n c e r n in g the conditions or duration of c o n fin e m e n t, however, it may nonetheless be a p p r o p r ia te to submit those disputes to a jury for r e s o lu tio n . Colon v. Howard, 215 F.3d 227, 2 3 0 -3 1 (2d Cir.2000); Sealey v.. Giltner, 197 F .3 d 578, 585 (2d Cir.1999).

H a v in g rejected defendants' contention that the State has n o t created such an interest, I next turn to examination of w h e th e r the conditions of plaintiff's disciplinary c o n fin e m e n t, as alleged by him, rise to the level of an a ty p ic a l and significant hardship under Sandin.Atypicality in a Sandin inquiry normally presents a question of la w .FN12 Colon v. Howard, 215 F.3d 227, 230-31 (2d C ir .2 0 0 0 ) ; Sealey v. Giltner, 197 F.3d 578, 585 (2d C ir.1 9 9 9 ) . W h e n determining whether a plaintiff possesses a cognizable liberty interest, district courts must examine th e specific circumstances of confinement, including a n a ly s is of both the length and conditions of confinement. S e e Sealey, 197 F.3d at 586; Arce v. Walker, 139 F.3d 3 2 9 , 335-36 (2d Cir.1998); Brooks v. DiFasi, 112 F.3d 46, 4 8 -4 9 (2d Cir.1997). In cases involving shorter periods of s e g r e g a te d confinement where the plaintiff has not alleged a n y unusual conditions, however, a detailed explanation of th is analysis is not necessary. FN13 Hynes, 143 F.3d at 658;

F N 1 3 . W h ile not the only factor to be c o n s id e r e d , the duration of a disciplinary k e e p lo c k confinement remains significant under S a n d in . Colon, 215 F.3d at 231. Specifically, w h ile under certain circumstances confinement o f less than 101 days could be shown to meet the a ty p ic a lity standard under Sandin (see id. at 232 n .5), the Second Circuit generally takes the p o s itio n that SHU confinement under ordinary c o n d itio n s of more than 305 days rises to the l e v e l of atypicality, whereas normal SHU c o n fin e m e n t of 101 days or less does not. Id. at 2 3 1 -3 2 (305 days of SHU confinement c o n s titu te s an atypical and sufficient departure). I n fact, in Colon v. Howard a Second Circuit p a n e l split markedly on whether or not adoption o f a 180-day "bright line" test for examining S H U confinement would be appropriate and h e lp fu l in resolving these types of cases. See id. a t 232-34 (Newman, C.J.), 235-37 (W a lk e r , C.J. a n d Sack, C.J., concurring in part). * 1 2 Given that plaintiff has shown that he was subjected to disciplinary confinement for a period of five months, a n d has alleged his exposure to conditions beyond those n o r m a lly associated with such SHU confinement, as d e s c r ib e d in the applicable regulations, at this juncture I a m unable to conclude, as a matter of law, that he was not d e p r iv e d of a constitutionally significant liberty interest as a result of the disciplinary proceeding at issue. I therefore r e c o m m e n d against summary dismissal of plaintiff's due

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p r o c e s s claims on this basis.

is s u a n c e of a false misbehavior report. FN14

2 . Due Process

T h e procedural protections to which a prison inmate is e n title d before being deprived of a recognized liberty in te r e s t are well established, the contours of the requisite p r o te c tio n s having been articulated in Wolff v. McDonnell, 4 1 8 U.S. 539, 564-67, 94 S.Ct. 2963, 2978-80 (1974). U n d e r Wolff, the constitutionally mandated due process r e q u ir e m e n ts include 1) written notice of the charges; 2) th e opportunity to appear at a disciplinary hearing and p r e s e n t witnesses and evidence, subject to legitimate s a fe ty and penological concerns; 3) a written statement by th e hearing officer explaining his or her decision and the r e a s o n s for the action being taken; and 4) in some c ir c u m s ta n c e s , the right to assistance in preparing a d e f e n s e . Wolff, 418 U.S. at 564-67, 94 S.Ct. at 2 9 7 8 -8 0 ; s e e also Eng v. Coughlin, 858 F.2d 889, 897-98 ( 2 d Cir.1988).

F N 1 4 . Among the due process violations alleged in plaintiff's complaint is the claim that by taking in to account his prior disciplinary record when d e te r m in in g the appropriate punishment to be im p o s e d based upon the finding of guilt, hearing o ffic e r Melino violated the constitutional g u a r a n ty against double jeopardy. Since it is well e s ta b lis h e d that the double jeopardy clause does n o t apply in the prison disciplinary setting, this c l a i m lacks merit. Bolanos v. Coughlin, No. 91 C iv . 5330, 1993 W L 762112, at *13 (S .D.N.Y. O c t. 15, 1993). Plaintiff's contention that the h e a r in g officer's actions in this regard also v i o la te d an unspecified New York regulation fa r e s no better, since such an allegation does not a u to m a tic a lly support a claim of civil rights v io la tio n s under 42 U.S.C. § 1983. Alnutt v. C le a r y , 913 F.Supp. 160, 168 (W .D .N .Y .1 9 9 6 ) .

P la in tiff's procedural due process claim is multi-faceted. I n that claim, Ciaprazi maintains that 1) he was denied m e a n in g fu l assistance by defendant Cole, who refused his r e q u e s t to interview potential witnesses identified by the p la in tiff; 2) Hearing Officer Melino effectively denied the p la in tiff access to witnesses since witness waiver forms, n o t to plaintiff's liking in form, were allegedly presented b y an unknowledgeable corrections officer to those in m a te s whose testimony was requested by Ciaprazi, fo llo w in g which those inmates apparently refused to sign th e waiver forms and appear to testify on his behalf; 3) the h e a r in g officer was biased and partial, and demonstrated o p e n hostility toward the plaintiff; 4) the hearing officer's d is c ip lin a r y determination was not supported by the e v id e n c e ; and 5) the hearing officer refused plaintiff's s u g g e s tio n to administer polygraph tests to defendants R o g e r s and Fitzpatrick, as well as to Ciaprazi. Also im p lic it in plaintiff's due process claim is his contention th a t his constitutional rights were violated through the

P la in tiff's arguments relating to the sufficiency of evidence s u p p o r tin g the hearing officer's finding of guilt can be s w iftly discounted. The Constitution, including its Due P r o c e s s Clause, requires only that there be some evidence o f guilt supporting a prison disciplinary determination. S u p e r in te n d e n t, Massachusetts Corr. Inst., Walpole v. H ill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774 (1985). H a v in g reviewed the record of plaintiff's disciplinary p r o c e e d i n g in light of his submissions, I find that this s ta n d a r d has been met.

* 1 3 Plaintiff's claims regarding the allegedly false m is b e h a v io r report also lack merit. It is well established th a t in the absence of other aggravating factors, an inmate e n j o y s no constitutional right against the issuance of a fa ls e misbehavior report. FN15 Freeman v. Rideout, 808 F .2 d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 1 0 8 S.Ct. 1273 (1988). The rationale supporting this g e n e r a l rule is that an inmate's procedural due process

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r ig h ts are adequately safeguarded by the opportunity to c h a lle n g e and present evidence to rebut the false a c c u s a tio n s at a disciplinary hearing. Freeman, 808 F.2d a t 953.

F N 1 5 . Unquestionably, a prisoner does enjoy a s u b s ta n tiv e due process right against the issuance o f a false misbehavior report as retribution for h a v in g engaged in protected activity. Jones v. C o u g h lin , 45 F.3d 677, 679-80 (2d Cir.1995). In l i g h t of my finding of no connection between p l a in tiff's complaints and the issuance by d e fe n d a n t Fitzpatrick of the misbehavior report, h o w e v e r , such a claim does not lie in this action.

id e n tifie d certain witnesses critical to his defense, but that h is assistant refused to interview those witnesses with an e y e toward requesting their testimony during the hearing. C o m p la in t (Dkt. No. 1) ¶¶ 20-21; Ciaprazi Aff. (Dkt. No. 4 6 ) ¶ 40. This, if true, could establish a due process v io la tio n based on the inadequacy of the inmate assistance p r o v id e d to the plaintiff. See Ayers v. Ryan, 152 F.3d 77, 8 1 (2d Cir.1998).

A s for plaintiff's contention that his due process rights w e r e violated when polygraph tests were not administered to key corrections officials, as requested by him, plaintiff h a s cited no cases-nor is the court aware of any-which r e q u ir e the administering of polygraph tests in connection w ith parties and witnesses in the context of an inmate d is c ip lin a r y determination. See Hinebaugh v. Wiley, 137 F .S u p p .2 d 69, 79 (N.D.N.Y.2001) ("some evidence" does n o t require independent examination of credibility and t h e r e fo r e "certainly does not require" court to order p e r s o n n e l to submit to polygraph to ascertain if hearing te s tim o n y was truthful). This issue, then, provides no basis fo r finding the existence of a procedural due process v i o l a t io n .

I n light of my inability to find, as a matter of law, that p la in tiff did not suffer the deprivation of a liberty interest a s a result of his five month period of disciplinary c o n fin e m e n t , and additionally to conclude that no r e a s o n a b l e factfinder could find the existence of a due p r o c e s s violation associated with that disciplinary c o n fin e m e n t, I recommend denial of the portion of d e fe n d a n ts ' summary judgment motion which seeks d is m is s a l of plaintiff's due process claims.

F . Equal Protection

I n his complaint plaintiff also complains of the alleged d e p r iv a tio n of equal protection. Defendants contend that th is claim is al