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, )

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Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 1 O n ly the W e s tla w citation is currently available. U n ite d States District Court, N . D . New York. D e r e k A. DEAL, Plaintiff, v. T o d d YURACK and Paul Almstead, FN1 Defendants. F N 1 . Defendant Paul Almstead, who is alleged to h a v e been a corrections lieutenant at the Oneida C o r r e c tio n a l Facility during the times relevant to p la in tiff's claims, was mistakenly named by the p la in tiff in his complaint as "Paul Armstead." B e c a u s e it now appears that the proper spelling o f this defendant's name is Almstead, I request th a t the clerk of the court revise his records a c c o r d in g ly. * 1 This matter comes before the Court following a R e p o r t-R e c o m m e n d a tio n filed on August 31, 2007 by the H o n o r a b le David E. Peebles, United States Magistrate J u d g e , pursuant to 28 U.S .C. 636(b) and L.R. 72.3 of th e Northern District of New York. Report-Rec. (Dkt. No. 7 9 ) . After ten days from the service thereof, the Clerk has s e n t the entire file to the undersigned, including the o b j e c tio n s by Plaintiff Derek Deal and Defendants Todd Y u r a c k and Paul Almstead, which were each filed on S e p te m b e r 17, 2007. Plntf's Objections (Dkt. No. 83); D e fts ' Objections (Dkt. No. 84). N o . 9:04-CV-0072 (LEK/DEP). I t is the duty of this Court to "make a de novo d e te r m in a tio n of those portions of the report or specified p r o p o s e d findings or recommendations to which objection is made."28 U.S.C. 636(b)."A [district] judge ... may a c c e p t, reject, or modify, in whole or in part, the findings o r recommendations made by the magistrate judge."Id. T h i s Court has considered the objections and has u n d e r ta k e n a de novo review of the record and has d e te r m i n e d that the Report-Recommendation should be a p p r o v e d for the reasons stated therein. S e p t. 24, 2007. A c c o r d in g ly , it is hereby D e r e k A. Deal, pro se. O R D E R E D , that the Report-Recommendation (Dkt. No. 7 9 ) is APPROVED and ADOPTED in its ENTIRETY; a n d it is further H o n . Andrew Cuomo, Attorney General of the State of N e w York, Jaime Irene Roth, Esq., Assistant Attorney G e n e r a l, of Counsel, Albany, NY, for Defendants. O R D E R E D , that Plaintiff's Motion for leave to amend his C o m p la in t (Dkt. No. 71) is DENIED; and it is further D E C I S I O N AND ORDER O R D E R E D , that Defendant's Motion for summary L A W R E N C E E. KAHN, U.S. District Judge. 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 2 j u d g m e n t (Dkt. No. 69) is GRANTED IN PART, in that P la in tiff's procedural due process claim and assault and b a tte r y causes of action, as well as the portion of Plaintiff's r e t a lia tio n claim related to the January 18, 2003 m is b e h a v io r report be DISM I S S E D , but DENIED IN P A R T , in that Plaintiff's excessive force claims against D e fe n d a n t and retaliation cause of action against D e f e n d a n t Almstead, related to the issuance of the F e b r u a r y 2 and February 3, 2003 misbehavior reports r e m a in pending for trial; and it is further O R D E R E D , that the Clerk serve a copy of this Order on a ll parties. file d by the parties. The motion process was initiated by th e defendants with the filing of a motion seeking the entry o f summary judgment dismissing plaintiff's claims on a n u m b e r of bases. Plaintiff has opposed that motion and c r o s s -m o v e d for leave to file an amended complaint in w h ic h , inter alia, he seeks to add claims against seven n e w ly -n a m e d defendants. For the reasons set forth below, I recommend that defendants' motion be granted, in part, a n d that plaintiff's procedural due process claims, state law c a u s e s of action, and portions of his retaliation cause of a c tio n be dismissed, but that their motion otherwise be d e n ie d . Turning to plaintiff's motion, I recommend that his a p p lic a tio n for leave to amend be denied, principally in lig h t of the current status of the action and the amount of tim e which has elapsed since the commencement of suit. I T IS SO ORDERED. I . BACKGROUND FN2 R E P O R T AND RECOMMENDATION F N 2 . In light of the procedural posture of the c a s e the following recitation is drawn from the r e c o r d now before the court, with all inferences d r a w n , and ambiguities resolved, in favor of the p la in tiff. See Wells-Williams v. Kingsboro P s y c h ia tr ic Ctr., No. 03-CV-134, 2007 W L 1 0 1 1 5 4 5 , at *2 (E.D.N.Y. Mar. 30, 2007) ( c ita tio n s omitted). It should be noted, however, th a t many if not most of plaintiff's allegations are s h a r p ly contested by the defendants. D A V I D E. PEEBLES, U.S. Magistrate Judge. P la in tiff Derek Deal, a New York State prison inmate who is proceeding pro se and in forma pauperis, has c o m m e n c e d this action pursuant to 42 U.S.C. 1983 a g a in s t certain corrections workers assigned to the prison fa c ility in which he was located at the relevant times, a lle g in g deprivation of his civil rights. In his complaint, p la in tiff maintains that he was assaulted by one of the n a m e d defendants and verbally harassed by others, and th a t in retaliation for having complained regarding the m a tte r he was subjected to further harassment and verbal a b u s e and endured other forms of recrimination, leading to two disciplinary hearings and sixty days of disciplinary k e e p lo c k confinement. Plaintiff further alleges that during th e course of those disciplinary proceedings he was d e p r iv e d of procedural due process. * 2 Currently pending before the court are cross-motions A t the times relevant to his claims plaintiff was a prison i n m a te entrusted to the custody of the New York State D e p a r tm e n t of Correctional Services ("DOCS"), and d e s i g n a t e d to the Oneida Correctional Facility ( " O n e id a " ) . FN3 The events giving rise to plaintiff's claims h a v e , as their genesis, an incident which occurred on J a n u a r y 17, 2003. On that date, plaintiff was summoned to th e officers' station by defendant Todd Yurack, a c o r r e c tio n s officer at the facility. Amended Complaint ( D k t. No. 5) 7; Plaintiff's Aff. (Dkt. No. 76) 1. F o llo w in g an initial conversation, during which defendant 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 3 Y u r a c k asked the plaintiff what was wrong with his face, Y u r a c k ordered Deal to accompany him outside onto a s m a ll porch area enclosed with steel mesh bars; once th e r e , Yurack grabbed the plaintiff around the neck, s h o v in g him into a brick wall. Amended Complaint (Dkt. N o . 5) 7; Plaintiff's Aff. (Dkt. No. 76) 2. As Yurack c o n t i n u e d to squeeze the plaintiff's neck, making it d iffic u lt for him to breathe, he pulled Deal to an adjacent b r ic k wall, causing him to scrape his hand and elbow. A m e n d e d Complaint (Dkt. No. 5) 7; Plaintiff's Aff. (Dkt. N o . 76) 2. During the course of the incident Yurack s ta te d to the plaintiff "don't f__k with me while you are on th is dorm[,]" adding "I could put you in the box anytime I want to."Amended Complaint (Dkt. No. 5) 7; Plaintiff's A ff. (Dkt. No. 76) 3. 8(b). * 3 On January 22, 2003 plaintiff lodged a grievance, c o m p la in in g of defendant Yurack's assault. Following an in v e s tig a tio n , which did not yield evidence supporting p la in tiff's version of the events, that grievance was denied b y the acting superintendent at Oneida. FN5Y u r a c k Aff. ( D k t. No. 69-11) 4-5, Exh. A. F N 5 . The record does not disclose whether the p la in tiff pursued an appeal of that determination to the DOCS Central Office Review Committee ("C O R C "). F N 3 . W h ile plaintiff was released on parole from D O C S custody in March of 2004, after the e v e n ts giving rise to his claim transpired, he was r e -a r r e s te d in May of 2005 and is once again a D O C S inmate. Roth Aff. (Dkt. No. 69-14) Exh. A at pp. 86-87. F o llo w in g the incident, plaintiff was taken to the prison in fir m a r y where he was examined, and photographs of his in j u r ie s were taken. Amended Complaint (Dkt. No. 5) 8; P la in tiff's Aff. (Dkt. No. 76) 6. A report of that e x a m in a tio n , which was conducted by Registered Nurse L o r i Cook, reveals that plaintiff's injuries included a skin a b r a s io n on the right elbow, a red mark on the right side of th e neck, scrapes on the fingers, and scratches on the s h o u l d e r , upper arm and wrist. FN4C o o k Aff. (Dkt. No. 6 9 -1 3 ) 6; see also Roth Aff. (Dkt. No. 69-14) Exh. A at p p . 49-50.No bleeding was reported, and Nurse Cook n o te d that plaintiff refused medical treatment for his in j u r ie s , other than to accept Bacitracin. Id. D u r in g the relevant time period, plaintiff was issued three s e p a r a te misbehavior reports for violating prison rules. T h e first of those, issued on January 18, 2003, accused D e a l of smoking in the bathroom. Amended Complaint ( D k t. No. 5) 10. Two days later plaintiff admitted the v io la tio n , apparently during a tier hearing conducted by C o r r e c tio n s Lieutenant Santos. FN6Id . Plaintiff's disciplinary r e c o r d lists the sanction associated with that guilty plea as " c o u n s e l." See Roth Aff. (Dkt. No. 69-14) Exh. C; see a ls o Amended Complaint (Dkt. No. 5) 10(b). F N 4 . In his complaint, plaintiff describes the i n j u r ie s resulting from the incident as " s u p e r fic ia l. " Amended Complaint (Dkt. No. 5) F N 6 . 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 in fr a c tio n s , and can result in penalties which i n 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). The record is u n c le a r as to which of these levels applies to the 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 4 J a n u a r y 20, 2003 hearing. O n January 28, 2003, plaintiff was instructed to go to the tie r office, where he was questioned by Corrections L ie u te n a n t Paul Almstead regarding the alleged assault by O ffic e r Yurack. Amended Complaint (Dkt. No. 5) 11; P la in tiff's Aff. (Dkt. No. 76) 10. During that meeting, a fte r inquiring about the incident, defendant Almstead a tte m p te d to convince the plaintiff to withdraw his g r ie v a n c e regarding the assault. Plaintiff's Aff. (Dkt. No. 7 6 ) 10. th a t the hearing officer was biased against him. Amended C o m p la in t (Dkt. No. 5) 14; Plaintiff's Aff. (Dkt. No. 76) 16-17. At the close of the hearing plaintiff was found g u ilty of the violation charged and a penalty of thirty days o f keeplock confinement, with a corresponding loss of r e c r e a t i o n , package, commissary, and telephone p r iv ile g e s , was ordered, the hearing officer noting that " p a s t dispositions of a less severe nature have been u n s u c c e s s fu l in convincing [the plaintiff] not to smoke in u n d e s ig n a te d areas."Almstead Aff. (Dkt. No. 69-9) Exh. A at 6. Hearing Officer Almstead's determination was u p h e ld on appeal to the facility superintendent. FN7S e e A m e n d e d Complaint (Dkt. No. 5) Exh. C; see also Roth A ff. (Dkt. No. 76) Exh. C. P la in tiff was again taken to the tier office on the following d a y at which time, at the directive of defendant Almstead, h e was locked in a cell next to the tier hearing room. A m e n d e d Complaint (Dkt. No. 5) 12; Plaintiff's Aff. ( D k t. No. 76) 11. Plaintiff was later removed from the c e ll and brought before defendant Almstead, who verbally h a r a s s e d and threatened Deal, stating in substance that in lig h t of the plaintiff's actions Almstead was going to in s tr u c t corrections officers at the facility to issue m is b e h a v io r reports to him. Amended Complaint (Dkt. N o . 5) 12; Plaintiff's Aff. (Dkt. No. 76) 11. F N 7 . Plaintiff alleges that in addition to these s a n c tio n s imposed during this and a subsequent d is c ip lin a r y hearing resulting in further SHU d is c ip lin a r y confinement, he also forfeited good tim e credits. * 4 During the course of the February 2, 2003 hearing, p la in tiff challenged defendant Almstead's impartiality and in te r r u p te d the proceedings in an effort to voice various o b j e c tio n s . Almstead Aff. (Dkt. No. 69-9) 5 and Exh. A a t p. 6;see also Amended Complaint (Dkt. No. 5) 1 5 -1 6 . After warning Deal that if he continued to engage in that conduct he would be issued a misbehavior report fo r refusing a direct order, without success, defendant A lm s te a d instructed Corrections Officer Hodge to prepare a n d issue a misbehavior report setting forth a new charge b a s e d upon the discrepancies. Almstead Aff. (Dkt. No. 76) 5 and Exh. A. O n February 2, 2003 plaintiff was issued a second m is b e h a v io r report, also for smoking in an unauthorized a r e a , this time by Corrections Officer Velardi. Amended C o m p la in t (Dkt. No. 5) 13; Plaintiff's Aff. (Dkt. No. 76) 13. Plaintiff attributes the issuance of that misbehavior r e p o r t to retaliatory motives, based upon his proclaimed in n o c e n c e of the charge and defendant Almstead's earlier s ta te m e n t regarding his instruction to corrections officers to issue misbehavior reports to the plaintiff. Plaintiff's Aff. ( D k t. No. 76) 14. A tier hearing was subsequently c o n d u c te d regarding the incident on February 3, 2003, w ith defendant Almstead presiding as the hearing officer. A m e n d e d Complaint (Dkt. No. 5) 14; Plaintiff's Aff. ( D k t. No. 76) 16-17. Plaintiff maintains that at that h e a r in g he was not properly advised of his rights, and was d e n ie d the opportunity to call witnesses on his behalf, and A third tier hearing was conducted on February 6, 2003, w ith Corrections Lieutenant Santos presiding, to address th is latest disciplinary charge, resulting in a finding of g u ilt and a penalty which included an additional thirty d a y s of keeplock confinement, with a corresponding loss o f privileges. Roth Aff. (Dkt. No. 69-14) Exh. C. That d e te r m in a tio n was upheld on appeal to the office of the 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 5 fa c ility 's superintendent. See id.;Deal Aff. (Dkt. No. 76) 1 8 . As a result of the latter two disciplinary proceedings, p la in tiff was placed in the special housing unit ("SHU") at O n e id a for a period of sixty days, and additionally was r e m o v e d from the Alcohol and Substance Abuse T r e a tm e n t ("A.S.A.T.") program. FN8A m e n d e d Complaint ( D k t. No. 5) 16; Deal Aff. (Dkt. No. 76) 18. F N 8 . In New York, SHU cells are utilized for s e g r e g a tin g prisoners from general population a r e a s fo r v a r i o u s r e a s o n s inc l u d i n g , p r e d o m in a n tly , disciplinary purposes. Lee v. C oughlin, 26 F.Supp.2d 615, 618 ( S .D . N . Y . 1 9 9 8 ) (citing 7 NYCRR pts. 253, 254, a n d 301). The conditions typically experienced b y inmates confined in an SHU include two s h o w e r s per week; one hour of outdoor exercise p e r day; unlimited legal visits; one non-legal visit p e r week; access to counselors; access to sick c a ll; cell study programs; and access to library b o o k s . Husbands v. McClellan, 990 F.Supp. 214, 2 1 8 (W . D . N . Y . 1 9 9 8 ) (citing 7 NYCRR pt. 304). F N 9 . Plaintiff's amended complaint also named C o r r e c tio n s Sergeant Beverly as a defendant. P la in tiff's claims against that defendant, h o w e v e r , were subsequently dismissed as a result o f a report and recommendation issued by me on D e c e m b e r 6, 2004, addressing a motion on d e fe n d a n t Beverly's behalf seeking dismissal of p la in tiff's complaint for failure to state a cause of a c tio n upon which relief may be granted, Dkt. N o . 21, and a subsequent order issued by District J u d g e Lawrence E. Kahn on April 28, 2005 a c c e p tin g that recommendation in its entirety. D k t. No. 26. I I . PROCEDURAL HISTORY P la in tiff commenced this action on January 21, 2004. Dkt. N o . 1. Following a finding by the court that plaintiff's in itia l complaint failed to satisfy the applicable pleading r e q u i r e m e n ts of Rules 8 and 10 of the Federal Rules of C iv il Procedure, seeDkt. No. 4, plaintiff submitted an a m e n d e d complaint, filed on March 10, 2004. Dkt. No. 5. I n his complaint, as amended, plaintiff has asserted claims u n d e r the First, Eighth and Fourteenth Amendments to the U n ite d States Constitution, alleging the use of excessive fo r c e , retaliation, and procedural due process violations s te m m in g from the disciplinary hearings conducted, and a d d itio n a lly interposing pendent state law tort claims of a s s a u lt and battery. Named as defendants in plaintiff's c o m p la in t, inter alia, are Corrections Officer Yurack and C o r r e c tio n s Lieutenant Almstead. FN9 O n November 30, 2006, following the completion of p r e tr ia l discovery, defendants moved seeking the entry of s u m m a r y judgment dismissing plaintiff's complaint. Dkt. N o . 69.In their motion, defendants argue that 1) plaintiff's E ig h th Amendment excessive force claims are legally d e fic ie n t in that the assault allegedly perpetrated by d e fe n d a n t Yurack did not rise to a level of constitutional s ig n ific a n c e , either objectively or subjectively; 2) p la in tiff's pendent tort law claims are barred by N.Y. C o r r e c tio n Law 24; 3) plaintiff has failed to allege a c o g n i z a b le retaliation claim, in that he cannot establish e ith e r adverse action taken by defendants or a nexus b e t w e e n the adverse action alleged and his protected a c tiv ity ; 4) plaintiff's procedural due process claims are d e fic ie n t, both because he did not experience a liberty d e p r iv a tio n sufficient to trigger the protections of the F o u r te e n t h Amendment and because, in any event, he r e c e iv e d the full panoply of due process rights guaranteed; 5 ) plaintiff's procedural due process claims are barred u n d e r Heck and Balisok; FN10 and 6) in any event d e fe n d a n ts are entitled to qualified immunity. Plaintiff has r e s p o n d e d in opposition to the motion by affidavit, m e m o r a n d u m and supporting documents all filed on M a r c h 22, 2007. Dkt. No. 76. 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 6 F N 1 0 . This portion of defendants' motion is p r e d ic a te d upon the Supreme Court's decisions in H e c k v. Humphrey, 512 U.S. 477, 114 S.Ct. 2 3 6 4 (1994) and Edwards v. Balisok, 520 U.S. 6 4 1 , 117 S.Ct. 1584 (1997). A . Motion To Amend * 5 In addition to opposing defendants' summary judgment m o tio n , by motion filed on November 30, 2006 plaintiff h a s requested permission to file a second amended c o m p la in t adding various claims, including against a d d itio n a l defendants not named in his original and first a m e n d e d complaints. Dkt. No. 71.By letter brief filed on D e c e m b e r 18, 2006, defendants have opposed that motion. D k t. No. 73. P la in tiff's motion implicates not only Rules 15(a) and 21 o f the Federal Rules of Civil Procedure, both of which, as w ill be seen, prescribe a fairly generous standard to be a p p l i e d in connection with such motions, but a d d itio n a lly -s in c e the established deadline for the filing of s u c h motions has long since expired under the applicable s c h e d u lin g order entered in the case-Rule 16 of the F e d e r a l Rules of Civil Procedure, which is significantly m o r e exacting in its requirements. T h e parties' cross-motions, which are now ripe for d e te r m in a tio n , have been referred to me for the issuance o f a report and recommendation, pursuant to 28 U.S.C. 6 3 6 ( b ) ( 1 ) ( B ) and Northern District of New York Local R u le 72.3(c).FN11S e e alsoFed.R.Civ.P. 72(b). F N 1 1 . As a non-dispositive matter, plaintiff's m o tio n for leave to amend would ordinarily fall w ith in my jurisdiction pursuant to the reference m a d e by the court to me as the assigned m a g is tra te judge. See Rubin v. Valicenti Advisory S e r v s . , Inc., 471 F.Supp.2d 329, 333 ( W .D . N . Y . 2 0 0 7 ) . In light of the fact that I am is s u in g a report and recommendation addressing d e fe n d a n ts ' summary judgment motion, which is d is p o s itiv e and thus exceeds my non-consensual j u r i s d ic tio n , however, I have chosen to cast my d e te r m in a tio n regarding plaintiff's motion for le a v e to amend in the form of a recommendation to the district judge. M o tio n s for leave to amend are governed by Rule 15(a) of th e Federal Rules of Civil Procedure which provides, in p e r tin e n t part, that unless amendment as a matter of right is permitted based upon the procedural circumstances of th e case-something which is not applicable in this action-a p a r ty may amend its pleading "only by leave of court or by w r itte n consent of the adverse party; and leave shall be fr e e ly given when justice so requires." F e d .R .C iv .P . 15(a). U n d e r Rule 15(a), leave to amend ordinarily should be fr e e ly granted absent undue delay, bad faith, dilatory ta c tic s , undue prejudice in being served with the proposed p le a d in g , or futility. Foman v. Davis, 371 U.S. 178, 182, 8 3 S.Ct. 227, 230 (1962); Elma R.T. v. Landesmann Int'l M k tg . Corp., No. 98 CIV 662, 2000 W L 297197, at *3 ( S .D .N .Y . Mar. 22, 2000) (citing Foman ). I I I . DISCUSSION N o tw ith s ta n d in g the familiar and well-accepted precept th a t such leave should be granted freely and amendment is ty p ic a lly permitted, where a claim contained in a proposed a m e n d e d complaint would be vulnerable in the face of a R u le 12(b)(6) motion, then allowing amendment would be a n act of futility which should not be countenanced. See, e .g ., Saxholm AS v. Dynal, Inc., 938 F.Supp. 120, 124 ( E .D .N .Y .1 9 9 6 ) ; In re Boesky Sec. Litig., 882 F.Supp. 1 3 7 1 , 1379 (S.D.N.Y.1995). If, on the other hand, a p r o p o s e d claim sets forth facts and circumstances which m a y entitle the pleader to relief, futility is not a proper b a s is on which to deny the right to amend. Saxholm, 938 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 7 F .S u p p . at 124 (citing Allstate Ins. v. Administratia A s ig u r a r ilo r De Stat, 875 F.Supp. 1022, 1029 ( S .D .N .Y .1 9 9 5 ) and Mathon v. Marine Midland Bank, N .A ., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (leave to r e p le a d granted where court could not say that under no c ir c u m s ta n c e s would proposed claims provide a basis for r e l i e f) ) . E x p o c o n s u l Int'l, Inc. v. A/E Sys., Inc., 145 F.R.D. 336, 3 3 7 (S.D.N.Y.1993)). * 6 Generally speaking, while any delay in making a m o tio n to amend pleadings must be weighed as a factor in d e c id in g whether or not to grant the motion, delay in and o f itself will not ordinarily suffice as a reason to deny the m o tio n . Phaneuf v. Tenneco, Inc., 938 F .Supp. 112, 115 ( N .D .N .Y .1 9 9 6 ) (Hurd, J.). A court must weigh any good c a u s e shown for the delay in moving against any in d ic a tio n of dilatoriness of the moving party which results in last minute surprise and the inability of opposing party to address the newly added material. Id. W h e n considering th e issue of prejudice to the nonmoving party, a court may p r o p e r ly find that the longer the period of unexplained d e la y , the less that should be required of the nonmoving p a r ty in terms of a showing of prejudice. Id. P la in tiff's motion for leave to add new defendants also im p lic a te s Rule 21 of the Federal Rules of Civil P r o c e d u r e . That rule authorizes a court, "on motion of any p a r ty or of its own initiative at any stage of the action and o n such terms as are just ..." to order the addition of p a r tie s to an action.Fed.R.Civ.P. 21; see City of Syracuse v . Onondaga County, 464 F.3d 297, 308 (2d Cir.2006). T h e provision also permits joinder "of a person, who th r o u g h inadvertence, mistake, or for some other reason, h a d not been made a party and whose presence as a party is later found necessary or desirable." Oneida Indian N a tio n of New York State v. County of Oneida, 199 F.R.D. 6 1 , 72 (N.D.N.Y.2000) (McCurn, S.J.) (quoting, inter a lia , United States v. Hansel, 999 F.Supp. 694, 697 ( N .D .N .Y .1 9 9 8 ) ) . A decision as to whether to permit j o in d e r under Rule 21 is informed by the same general p r in c ip le s as those which govern motions for leave to a m e n d under Rule 15(a).See, e.g., id. at 72-73 (citing O v e r la id against the standard typically governing motions fo r leave to amend and to join parties in this instance is R u le 16(b) of the Federal Rules of Civil Procedure . See K a s s n e r v. 2nd Ave. Delicatessen, Inc., --- F.3d ----, 2007 W L 2119769, at *8-10 (2d Cir. July 24, 2007) . A s c h e d u lin g order was issued in this case on November 23, 2 0 0 4 establishing, inter alia, a deadline of January 30, 2 0 0 5 for making non-dispositive motions, specifically d e fin e d within that order to include motions to join parties o r to amend pleadings. SeeDkt. No. 20 at 1-2.A party may o b ta in relief from such a scheduling order deadline only u p o n a showing of good cause. Fed.R.Civ.P. 16(b); see K a s s n e r , 2007 W L 2119769, at *8. Despite this r e q u ir e m e n t, plaintiff has offered nothing in support of his m o tio n , which was filed more than a year and a half after th e passage of the controlling deadline, which even a p p r o a c h e s a level sufficient to establish such good cause. I n d e e d , in his papers the plaintiff evinces his longstanding a w a r e n e s s of the identities of the proposed new defendants a n d the facts giving rise to his allegations against them, yet d e s p ite this offers virtually no justification for the delay in s e e k in g leave to amend. * 7 Even if the court were to overlook this fatal deficiency u n d e r Rule 16 and apply the more liberal standard a s s o c ia te d with Rules 15(a) and 21, I would nonetheless r e c o m m e n d against the granting of the application. P la in tiff's motion seeks leave to assert claims against s e v e n additional defendants not previously sued in the c a s e . W h ile defendants have argued, with at least facial p la u s ib ility , the futility of the claims sought to be added a g a in s t those seven individuals, the far greater concern is o n e of prejudice and undue delay. Discovery in this case, h a v in g been extended on several occasions at plaintiff's r e q u e s t, is now virtually completed and the case is well in to the dispositive motion phase. This action has been p e n d in g for three and a half years. Under these c i r c u m s ta n c e s it would be both manifestly unfair to the 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 8 d e fe n d a n ts , and an imprudent exercise of this court's d is c r e tio n , to prolong the matter and overlook the undue a n d unexplained delay in plaintiff seeking leave to amend a t this late stage. See, e.g., MacDraw, Inc. v. CIT Group E q u ip . Financing, Inc., 157 F.3d 956, 962 (2d Cir.1998) ( a ffi r m i n g district judge's denial of leave to amend c o m p la in t where plaintiff inexplicably delayed the motion u n til the action was pending for several years and d is c o v e r y was closed, and defendants would be unduly p r e j u d ic e d ) ; Sly Magazine, LLC v. Weider Publications L .L .C ., 241 F.R.D. 527, 532-33 (S.D.N.Y.2007) (denying le a v e to file amended complaint to add twelve new parties w h e r e plaintiff provided no explanation for delay, d i s c o v e r y had closed, dispositive motion practice was im m in e n t, and undue prejudice would thus result to the d e fe n d a n t) . Accordingly, I recommend that plaintiff's m o tio n for leave to amend be denied. m o t i o n s , they must establish more than mere " m e ta p h ys ic a l doubt as to the material facts." Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 1 0 6 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith M e d . Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting o b lig a tio n of court to consider whether pro se plaintiff u n d e r s to o d nature of summary judgment process). B . Summary Judgment Standard * 8 W h e n summary judgment is sought, the moving party b e a r s an initial burden of demonstrating that there is no g e n u in e dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to m e e t this burden warrants denial of the motion. Anderson, 4 7 7 U.S. at 250 n.4, 106 S.Ct. at 2511 n.4; Security Ins., 3 9 1 F.3d at 83. In the event this initial burden is met, the o p p o s in g party must show, through affidavits or otherwise, th a t there is a material issue of fact for trial.Fed.R.Civ.P. 5 6 ( e ) ; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; A n d e r s o n , 477 U.S. at 250, 106 S.Ct. at 2511 . S u m m a r y judgment is governed by Rule 56 of the Federal R u le s of Civil Procedure. Under that provision, summary j u d g m e n t is warranted when "the pleadings, depositions, a n s w e r s to interrogatories, and admissions on file, together w ith the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c); see C e lo te x Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2 5 4 8 , 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security I n s . Co. of Hartford v. Old Dominion Freight Line, Inc., 3 9 1 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for p u r p o s e s of this inquiry, if it "might affect the outcome of th e suit under the governing law." Anderson, 477 U.S. at 2 4 8 , 106 S.Ct. at 2510;see also Jeffreys v. City of New Y o r k , 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ) . A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the n o n m o v in g party." Anderson, 477 U.S. at 248, 106 S.Ct. a t 2510. Though pro se plaintiffs are entitled to special la titu d e when defending against summary judgment W h e n deciding a summary judgment motion, a court must r e s o lv e any ambiguities, and draw all inferences from the f a c ts , in a light most favorable to the nonmoving party. J e ffr e y s , 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 1 3 3 , 137-38 (2d Cir.1998). Summary judgment is in a p p r o p r ia te where "review of the record reveals s u ffic ie n t evidence for a rational trier of fact to find in the [ n o n -m o v a n t's ] favor." Treglia v. Town of Manlius, 313 F .3 d 713, 719 (2d Cir.2002) (citation omitted); see also A n d e r s o n , 477 U.S. at 250, 106 S.Ct. at 2511 (summary j u d g m e n t is appropriate only when "there can be but one r e a s o n a b le conclusion as to the verdict"). C . Excessive Force Claim T h e centerpiece of plaintiff's complaint is his claim against d e fe n d a n t Yurack, alleging his use of excessive force w h ic h , in turn, set in motion a series of ensuing events a lle g e d ly resulting in further constitutional violations. 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P age 9 A r g u in g that the use of force alleged by plaintiff was de m in im is , and Deal's injuries suffered were legally in s ig n ific a n t, defendants assert their entitlement to j u d g m e n t as a matter of law dismissing the excessive force c la im . FN12 F N 1 2 . Plaintiff also asserts that he was verbally h a r a s s e d by both defendants Yurack and A lm s te a d , as well as other prison officials. "It is w e ll settled that verbal harassment, inexcusable a s it may be, does not rise to the level of a c o n s titu tio n a l violation." Zimmerman v. Seyfert, N o . 03-CV-1389, 2007 W L 2080517, at *28 ( N .D . N . Y . July 19, 2007) (McAvoy, J.) (citing P u r c e ll v. Coughlin, 790 F.2d 263, 265 (2d C ir .1 9 8 6 ) and Rameriz v. Holmes, 921 F.Supp. 2 0 4 , 210 (S.D.N.Y.1996)). A plaintiff's constitutional right against cruel and unusual p u n is h m e n t is violated by an "unnecessary and wanton in flic tio n of pain." Whitley v. Albers, 475 U.S. 312, 319, 1 0 6 S.Ct. 1076, 1084 (1986) (citations and quotations o m itte d ) ; Griffen v. Crippen, 193 F.3d 89, 91 (2d C ir .1 9 9 9 ) . The lynchpin inquiry in deciding claims of e x c e s s iv e force against prison officials is "whether force w a s applied in a good-faith effort to maintain or restore d is c ip lin e or maliciously and sadistically for the very p u r p o s e of causing harm." Hudson v. McMillian, 503 U.S. 1 , 6-7, 112 S.Ct. 995, 998 (1992) (applying Whitley to all e x c e s s iv e force claims); Whitley, 475 U.S. at 320-21, 106 S .C t. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1 0 3 3 (2d Cir.) (Friendly, J.), cert. denied sub nom., John v . Johnson, 414 U.S. 1033, 94 S.Ct. 462 (1973)). a t 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 2 8 5 , 290 (1976)). W h e n addressing this component of an e x c e s s iv e force claim under the Eighth Amendment c a lc u lu s , the court can consider the extent of the injury s u ffe r e d by the inmate plaintiff. W h ile the absence of s ig n ific a n t injury is certainly relevant, it is not dispositive, a s the defendants seemingly suggest. Hudson, 503 U.S. at 7 , 112 S.Ct. at 999. The extent of an inmate's injury is but o n e of the factors to be considered in determining a prison o ffic ia l's use of force was "unnecessary and wanton"; c o u r ts should also consider the need for force, whether the fo r c e was proportionate to the need, the threat reasonably p e r c e iv e d by the officials, and what, if anything, the o ffic ia ls did to limit their use of force. Whitley, 475 U.S. a t 321, 106 S.Ct. at 1085 (citing Johnson, 481 F.2d at 1 0 3 3 ) . Under Hudson, even if the injuries suffered by a p la in ti f f " `were not permanent or severe' ", a plaintiff m a y still recover if " `the force used was unreasonable and e x c e s s i v e . ' " Corselli v. Coughlin, 842 F.2d 23, 26 (2d C ir .1 9 8 8 ) (quoting Robinson v. Via, 821 F.2d 913, 924 ( 2 d Cir.1987)). E ig h th Amendment analysis requires both objective and s u b j e c tiv e examinations. Hudson, 503 U.S. at 8, 112 S.Ct. a t 999; Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2 3 2 1 , 2324 (1991); Griffen, 193 F.3d at 91. The objective p r o n g of the inquiry is contextual, and relies upon " c o n te m p o r a r y standards of decency." Hudson, 503 U.S. * 9 Seizing upon acknowledgment by the plaintiff that the in j u r ie s suffered by him at the hands of defendant Yurack w e r e "minor" and "superficial", defendants allege that th e y are entitled to dismissal of plaintiff's excessive force c la im as a matter of law, based upon Deal's failure to s a tis fy the objective element of the controlling test. The r e c o r d now before the court, however, reveals that at least a c c o r d in g to the plaintiff, he was assaulted by defendant Y u r a c k , without provocation, on the date in question. The r e c o r d also substantiates that plaintiff experienced some s o r t of incident on that date, causing him injuries which r e q u ir e d medical attention. SeeDkt. No. 68 (filed under s e a l) ; see generally Cook Aff. (Dkt. No. 69-13). The fact th a t Deal suffered injuries requiring medical attention d is tin g u is h e s this case from others in which the lack of i n j u r y has justified the entry of summary judgment d is m is s in g excessive force claims under the Eighth A m e n d m e n t. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 8 6 2 (2d Cir.1997) (the fact that the plaintiff, who claims h e was "bumped, grabbed, elbowed, and pushed" by the 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 10 d e fe n d a n ts did not rise to a level of constitutional s ig n i f ic a n c e since plaintiff did "not maintain that he e x p e r ie n c e d any pain or injury as a result of the physical c o n ta c t" ) ; Cunningham v. Rodriguez, No. 01 Civ. 1123, 2 0 0 2 W L 31654960, at *5 (S.D.N.Y. Nov. 22, 2002). U n d e r these circumstances it would be inappropriate to fin d , objectively, as a matter of law that plaintiff's injuries w e r e not sufficiently serious to rise to a constitutionally c o g n iz a b le level. * 1 0 Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations o m itte d ) ; Velasquez v. O'Keefe, 899 F.Supp. 972, 973 ( N .D .N .Y .1 9 9 5 ) ( McAvoy, C.J.) (quoting Hudson, 503 U .S . at 9, 112 S.Ct. at 1000);see Romaine v. Rewson, 140 F .S u p p .2 d 204, 211 (N.D.N.Y.2001) (Kahn, J.). Even a de m in im is use of physical force can constitute cruel and u n u s u a l punishment if it is "repugnant to the conscience of m a n k in d ." FN13 Hudson, 503 U.S. at 9-10, 112 S.Ct. 1000 ( c ita tio n s omitted). T u r n in g to the subjective element, as defendants argue, to p r e v a il, plaintiff must establish defendant Yurack acted w ith a sufficiently culpable state of mind. Davidson v. F ly n n , 32 F.3d 27, 30 (2d Cir.1994) (citing Hudson, 503 U .S . at 8, 112 S.Ct. at 999). That determination is in fo r m e d by four factors, including 1) the need for a p p lic a tio n of force; 2) the relationship between that need a n d the amount of force used; 3) the threat reasonably p e r c e iv e d by the responsible officials; and 4) any efforts m a d e to temper the severity of a forceful response. W h itle y , 475 U.S. at 321, 106 S.Ct. at 1085. The principal fo c u s of this inquiry "turns on `whether force was applied in a good faith effort to maintain discipline or maliciously a n d sadistically for the very purpose of causing harm.' " W h itle y , 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting J o h n s o n v. Glick, 481 F.2d at 1033. W h e n considering the s u b j e c tiv e element of the governing Eighth Amendment te s t, a court must consider that the absence of serious in j u r y , though relevant, does not necessarily negate a fin d in g of wantonness since, as the Supreme Court has n o te d , F N 1 3 . It should be noted, however, that in p r a c tic e a truly de minimis use of force will r a r e ly suffice to state a constitutional claim. H u d s o n , 503 U.S. at 9-10, 112 S.Ct. at 1000 ( " [ N o t] every malevolent touch by a prison guard g iv e s rise to a federal cause of action"); Griffen, 1 9 3 F.3d at 91 (citing Romano v. Howarth, 998 F .2 d 101, 105 (2d Cir.1993)); Johnson, 481 F.2d a t 1033 ("Not every push or shove, even if it la te r may seem unnecessary in the peace of a j u d g e ' s chambers, violates a prisoner's c o n s titu tio n a l rights"). [ w ] h e n prison officials maliciously and sadistically use fo r c e to cause harm, contemporary standards of decency a lw a y s are violated.... This is true whether or not s ig n ific a n t injury is evident. Otherwise, the Eighth A m e n d m e n t would permit any physical punishment, no m a tte r how diabolic or inhuman, inflicting less than s o m e arbitrary quantity of injury. I n this instance defendant Yurack has submitted an a ffid a v it denying summoning the plaintiff to the officer's d e s k or making a physical or verbal attack against him. Y u r a c k Aff. (Dkt. No. 69-11) 5. Given this denial and th e i r assertion that there are no witnesses, nor any e v id e n c e , to support plaintiff's version of the facts, d e fe n d a n ts invite the court to find as a matter of law that d e fe n d a n t Yurack did not act with a sufficiently culpable s ta te of mind. Because such a determination would entail e n c r o a c h m e n t upon the prerogative of the factfinder and r e q u ir e the court to make a credibility determination in a p p r o p r i a te for a motion on summary judgment, I d e c lin e that invitation and instead recommend against the g r a n tin g of summary judgment on this issue, finding the e x is te n c e of genuine issues of material fact with respect to th e subjective elements as well, requiring resolution at tr ia l and precluding the entry of judgment on plaintiff's e x c e s s iv e force claim at this juncture. 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 11 D . Pendent State Law Tort Claims I n his complaint, plaintiff has asserted pendent state law to r t claims of assault and battery against plaintiff Yurack. D e f e n d a n ts argue that plaintiff's state law claims for a s s a u l t and battery are subject to dismissal, as they are p r e c lu d e d by section 24 of the N.Y. Correction Law. FN14 F N 1 4 . That statute provides, in relevant part, that [ n ] o civil action shall be brought in any court o f the state, except by the attorney general on b e h a lf of the state, against any officer or e m p lo y e e of the department, in his personal c a p a c ity , for damages arising out of any act d o n e or the failure to perform any act within t h e scope of the employment and in the d is c h a r g e of the duties by such officer or e m p lo ye e . A c c o r d in g to the New York Court of Appeals, if an act is d o n e "while the servant [is] doing his [or her] master's w o r k , no matter how irregularly, or with what disregard of in s tr u c tio n s ," it is performed within the scope of e m p lo y m e n t. Riviello v. Waldron, 47 N.Y.2d 297, 302, 4 1 8 N.Y.S.2d 300, 302 (1979) (citations omitted). C o n s is te n t with this precept, various courts have held that a correctional officer who uses force while on duty is a c tin g within the scope of employment, and therefore is e n title d to the protections of section 24. FN15 Cepeda v. C o u g h lin , 128 A.D.2d 995, 996-97, 513 N.Y.S.2d 528, 5 3 0 (3d Dept' 1987) (excessive force by correctional o ffic e r was within scope of employment when in response to assault by inmate in course of duty); see also Boyd v. S e lm e r , 842 F.Supp. 52, 57 (N.D.N.Y.1994) (McAvoy, J .) ; Parker v. Fogg, No. 85-CV-177, 1994 W L 49696, at * 9 (N.D.N.Y. Feb. 17, 1994) (McCurn, J.); Wright v. K e lly , No. 950CV-0688H, 1998 W L 912026, at *3 ( W .D .N .Y . Oct. 16, 1998). The proper remedy in a federal c o u r t for inmates who feel they have excessive force c la im s is under section 1983, not through the assertion of to r t claims precluded by section 24 of the state Correction L a w . Arteaga, 72 N.Y.2d at 221, 532 N.Y.S.2d at 62. N .Y . Correct. Law 24(1). S e c tio n 24 protects employees of state correctional fa c ilitie s from claims for damages in state or federal courts a r is in g out of actions taken in the scope of their e m p lo y m e n t, and in the discharge of their duties. SeeN.Y. C o r r e c t. Law 24; see also Ierardi v. Sisco, 119 F.3d 183, 1 8 6 -8 7 (2d Cir.1997); Baker v. Coughlin, 77 F.3d 12, 1 4 -1 5 (2d Cir.1996) (holding that section 24 applies to fe d e r a l courts as well). The statute is designed to allow c o r r e c tio n s officers to maintain safety and security at their fa c ilitie s at their discretion, without fear of exposure to in m a te lawsuits. Ierardi, 119 F.3d at 187; Arteaga v. S t a t e , 72 N.Y .2d 212, 218-20, 532 N.Y.S.2d 57, 60-62 ( 1 9 8 8 ) (discussing policies behind immunity). F N 1 5 . I am somewhat hesitant to summarily r e c o m m e n d dismissal of plaintiff's state law c la im s in this instance, as I think that the Third D e p a r tm e n t might well view plaintiff's claims d iffe r e n tly . Among the Riviello factors to be w e ig h e d in determining scope of employment are th e extent of departure from normal methods of p e r fo r m a n c e and whether the act was one that w a s reasonably foreseeable. Riviello, 47 N.Y.2d a t 303, 418 N.Y.S.2d at 302. C e p e d a v. Coughlin, relied upon by state and fe d e r a l cases alike, partially considered p la in tiffs ' provocation of the excessive force in h o ld in g that state claims are precluded under C o r r e c tio n Law 24, suggesting that a d iffe r e n t result might obtain if, as I am 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 12 r e q u ir e d to assume for purposes of this motion, t h e force upon plaintiff was unprovoked. 128 A .D . 2 d 995, 996, 513 N.Y.S.2d 528, 530 (3d D e p 't 1987); see also Murray v. Reif, 36 A .D . 3 d 1157, 1168, 828 N.Y.S.2d 669, 670 ( 3 d Dep't 2007) (reversing lower court's c o n c lu s io n on motion to dismiss, noting that if p la in tiff's allegations of unprovoked assault by c o r r e c tio n s officer were true, it cannot be c o n c lu d e d that defendant was acting within the s c o p e of his employment under N.Y. C o r r e c tio n Law 24). N o . 950CV-0688H, 1998 W L 912026, at *3 ( W .D .N .Y . Oct. 16, 1998). W i t h o u t clear c o n tr a r y guidance from the Second Circuit, N e w York Court of Appeals, or Third D e p a rtm e n t, I feel constrained under principles o f stare decisis to recommend dismissal of p la in tiff's state law claims. * 1 1 Based upon the foregoing, I recommend that d e fe n d a n t s ' motion for summary judgment dismissing p la in tiff's state law claims of assault and battery under s e c tio n 24 of the N.Y. Correction Law be granted. I n Sharrow v. State, when considering the S ta te 's duty to indemnify under Public Officers L a w 17, the Third Department specifically d is tin g u is h e d its holding in Cepeda on the g r o u n d s that unjustified force is such a s u b s t a n t i a l departure from correctional o ffic e r s ' goal of maintaining order, discipline, a n d control that the State could not possibly be r e q u ir e d to indemnify correctional officers for s u c h unnecessary force. 216 A.D.2d 844, 845, 6 2 8 N.Y.S.2d 878, 880 (3d Dep't 1995). I n d e e d , under Sharrow, based on the fourth a n d fifth Riviello factors, plaintiff's claim w o u ld seem to involve conduct which is o u ts id e the scope of employment. E . Retaliation I n addition to complaining of the use of excessive force a g a in s t him, plaintiff also asserts a claim of retaliation, in v io la tio n of the First Amendment, alleging that in response to his complaints regarding defendant Yurack's actions p r is o n officials retaliated against him through the issuance o f multiple misbehavior reports. Defendants contend that p l a in tiff's retaliation claim is subject to dismissal as a m a tte r of law. N e w York courts have not explicitly addressed th is argument in the context of section 24, h o w e v e r , and federal courts both here and in t h e W e s te r n District which have encountered th e issue since Sharrow have held otherwise. H e y lig e r v. Gebler, --- F.Supp.2d ----, No. 0 6 -C V -6 2 2 0 , 2007 W L 2153235, at *2 ( W . D . N . Y . July 24, 2007); Boyd v. Selmer, 8 4 2 F. Su pp. 52, 57 (N.D.N.Y.1994) ( M c A v o y , J.); Parker v. Fogg, No. 8 5 -C V -1 7 7 , 1994 W L 49696, at *9 (N.D.N.Y. F e b . 17, 1994) (McCurn, J.); Wright v. Kelly, A t the outset it should be noted that "claims by prisoners th a t particular administrative decisions have been made fo r retaliatory purposes are prone to abuse. Virtually every p r is o n e r can assert such claims as to every decision which h e or she dislikes." Flaherty v. Coughlin, 713 F.2d 10, 13 ( 2 d Cir.1983). For this reason, "courts must approach p r is o n e r claims of retaliation with skepticism and p a r tic u la r care." Dawes v. Walker, 239 F.3d 489, 491 (2d C ir .2 0 0 1 ) (citing Flaherty, 713 F.2d at 13),overruled on o th e r grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 5 0 6 , 122 S.Ct. 992 (2002). I n order to state a prima facie claim under section 1983 fo r retaliatory conduct, a plaintiff must advance 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 13 n o n -c o n c luso ry allegations establishing that 1) the conduct a t issue was protected; 2) the defendants took adverse a c tio n against the plaintiff; and 3) there was a causal c o n n e c tio n between the protected activity and the adverse a c tio n -in other words, that the protected conduct was a s u b s ta n tia l or motivating factor in the prison officials' d e c is io n to take action against the plaintiff. Mount Healthy C ity Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 9 7 S.Ct. 568, 576 (1977); Dawes, 239 F.3d at 492. If the p la in tiff carries this burden, the defendants must show by a preponderance of the evidence that they would have ta k e n action against the plaintiff "even in the absence of th e protected conduct." Mount Healthy, 429 U.S. at 287, 9 7 S.Ct. at 576. If taken for both proper and improper r e a s o n s , then, state action may be upheld if the action w o u ld have been taken based on the proper reasons alone. G r a h a m v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) ( c ita tio n s omitted). As can be seen, evaluation of a claim o f retaliation is a particularly fact-laden exercise, since s u c h claims generally revolve around both the engaging in p r o te c te d conduct, as well as establishment of a nexus b e tw e e n that conduct and an adverse action ultimately ta k e n by the defendants. p r e d a te d plaintiff's grievance against defendant Yurack, a n d thus could not have been caused by retaliatory animus s te m m in g from that grievance. FN16T o this limited extent, d e fe n d a n ts are entitled to summary judgment with regard to plaintiff's retaliation claim. F N 1 6 . Although listed in plaintiff's c o m p la in t as a relevant event, Deal a p p e a r to press this incident as one of fo r his retaliation claim, undoubtedly th is fact. amended does not the bases owing to I n their motion, defendants concede that plaintiff's filing o f a grievance on January 22, 2003 addressing defendant Y u r a c k 's actions is properly regarded as protected activity u n d e r the First Amendment. Defendants' Memorandum ( D k t . No. 69-3) at 11.Similarly, defendants do not s e r io u s ly assert that the issuance of misbehavior reports d o e s not constitute adverse action sufficient to satisfy the s e c o n d element of the governing test. See id.; see also W e lls v. Wade, No. 96 Civ. 1627, 2000 W L 1239085, at * 3 -4 (S.D.N.Y. Aug. 31, 2006). The focus of defendants' m o tio n is upon the nexus requirement, with defendants a r g u in g that no reasonable factfinder could conclude that th e issuance of misbehavior reports to the plaintiff was the r e s u lt of retaliatory animus stemming from the Yurack g r ie v a n c e . * 1 2 Undeniably, the January 18, 2003 misbehavior report T h e remaining two misbehavior reports, issued on F e b r u a r y 2, 2003, for smoking in the bathroom, and on F e b r u a r y 3, 2003, for refusal to obey a direct order by c o n tr a s t, occurred relatively shortly after the filing of p la in tiff's grievance regarding corrections officer Yurack. T h is factor, particularly in view of the lack of any e v id e n c e of disciplinary action against the plaintiff from th e time he entered the prison system in 1999 until the first m is b e h a v io r report on January 18, 2003, at a minimum c o u ld well support an inference that retaliatory animus p r o m p te d the issuance of the second and third misbehavior r e p o r ts . See generally Bennett v. Goord, 343 F.3d 133, 1 3 8 (2d Cir.2003) (citing Gayle v. Gonyea, 313 F.3d 677, 6 8 3 (2d Cir.2002) (noting that "the temporal proximity of a n alleged retaliatory misbehavior report to a grievance m a y serve as circumstantial evidence of retaliation"); see a ls o Lewis v. Blazejewski, No. 03-CV-943S, 2007 W L 5 4 2 1 1 7 , at *5 (W .D .N .Y . Feb. 16, 2007) (Skretny, D.J. a n d Schroeder, M.J.). W h e n , coupled with the statement a ttr ib u te d to defendant Almstead, to the effect that he was g o in g to instruct prison officials to issue misbehavior r e p o r ts to the plaintiff, these circumstances present g e n u in e issues of material fact concerning the nexus e le m e n t of the retaliation test thereby precluding the entry o f summary judgment in connection with plaintiff's r e ta lia tio n claim. For this reason, I recommend against the e n tr y of summary judgment dismissing plaintiff's r e ta lia tio n claim as it relates to the February 2, 2003 and F e b r u a r y 3, 2003 misbehavior reports. 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 14 F . Due Process I n his complaint, plaintiff also contends that he was denied p r o c e d u r a l due process during the course of the d is c ip lin a r y hearings conducted with regard to his m is b e h a v io r reports. Defendants now seek dismissal of th a t due process claim, based both upon the lack of any s h o w in g that plaintiff experienced a liberty deprivation s u ffic ie n t to trigger the Fourth Amendment's due process p r o te c tio n s , and because in any event the record reveals t h a t he received due process during the course of the r e le v a n t disciplinary hearings. A lv a r e z v. Coughlin, No. 94-CV-985, 2001 W L 118598, a t *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.), I must find that th e conditions of plaintiff's SHU confinement as alleged d o not rise to the level of an atypical and significant h a r d s h ip under Sandin in order to recommend that d e fe n d a n ts ' motion be granted based upon the lack of a s h o w in g that he experienced a cognizable liberty interest d e p r iv a t i o n . T o successfully state a claim under 42 U.S.C. 1983 for d e n ia l of due process arising out of a disciplinary hearing, a plaintiff must show that he or she (1) possessed an actual lib e r ty interest, and (2) was deprived of that interest w ith o u t being afforded sufficient process. See Tellier v. F ie ld s , 260 F.3d 69, 79-80 (2d Cir.2000) (citations o m itte d ) ; Hynes v. Squillance, 143 F.3d 653, 658 (2d C ir .1 9 9 8 ) ; Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d C ir .1 9 9 6 ) . * 1 3 Atypicality in a Sandin inquiry is normally a question o f law .FN17 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 liberty interest, district courts must examine the specific c ir c u m s ta n c e s of confinement, including analysis of both th e length and conditions of confinement. See Sealey, 197 F .3 d at 586; Arce v. Walker, 139 F.3d 329, 335-36 (2d C ir .1 9 9 8 ) ; Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d C ir .1 9 9 7 ) . In cases involving shorter periods of segregated c o n fin e m e n t where the plaintiff has not alleged any u n u s u a l conditions, however, a detailed explanation of this a n a ly s is is not necessary. FN18 Hynes, 143 F.3d at 658; A r c e , 139 F.3d at 336. I n Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 ( 1 9 9 5 ) , the United States Supreme Court determined that to establish a constitutionally significant liberty interest u n d e r the circumstances now presented, a plaintiff must s u ffic ie n tly demonstrate that (1) the State actually created a protected liberty interest in being free from segregation; a n d that (2) the segregation would impose an "atypical and s ig n ific a n t hardship on the inmate in relation to the o r d in a r y incidents of prison life." Id. at 483-84, 115 S.Ct. a t 2300;Tellier, 280 F.3d at 80; Hynes, 143 F.3d at 658. S in c e the prevailing view is that by its regulatory scheme N e w York State has created a liberty interest in remaining fr e e from disciplinary confinement, thus satisfying the first S a n d in factor, see, e.g., LaBounty v. Coombe, No. 95 CIV 2 6 1 7 , 2001 W L 1658245, at *6 (S.D.N.Y. Dec. 26, 2001) ; F N 1 7 . 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). F N 1 8 . 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 i le 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 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 15 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 le v e l of atypicality, whereas normal SHU c o n fi n 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). a r g u m e n t is raised in view of the fact that the disciplinary h e a r in g s at issue appear to have resulted in a combination o f sanctions which included the loss of good time credits, a n d those determinations were not set aside through a p p lic a b le , internal channels before this action was c o m m e n c e d . In his response to defendants' motion, p la in tiff asserts that he does not challenge the duration of h is confinement, nor does he seek a restoration of good tim e credits. Under these circumstances, plaintiff has s a tis fie d the requirements of Peralta v. Vasquez, 467 F.3d 9 8 (2d Cir.2006), thus permitting this court to adjudicate t h e section 1983 claims directed toward his disciplinary h e a r i n g s notwithstanding his failure to succeed in o v e r tu r n in g the results of those hearings. I n his complaint and opposing motion papers, plaintiff a s s e r ts that he served sixty days of disciplinary c o n fin e m e n t in the Oneida SHU as a cumulative result of th e two disciplinary hearings. Plaintiff makes no further s h o w i n g , however, regarding the conditions of his d is c ip lin a r y confinement, and specifically does not allege th a t during that time he was subjected to conditions more s e v e r e than those ordinarily associated with such SHU c o n fin e m e n t. It is well-established that absent a greater s h o w in g , disciplinary confinement of such a modest d u r a tio n does not rise to a level of constitutional s ig n ific a n c e necessary to support a procedural due process c la im under the Fourteenth Amendment. See Colon, 215 F .3 d at 231-32. Accordingly, I recommend that plaintiff's p r o c e d u r a l due process claim be dismissed as deficient as a matter of law, and find it unnecessary to examine w h e th e r Deal was afforded procedural due process during th e course of the disciplinary proceedings at issue. H . Qualified Immunity G . Heck and Edwards In their motion, defendants argue that plaintiff's procedural d u e process claims are barred under Heck v. Humphrey, 5 1 2 U.S. 477, 114 S.Ct. 2364 (1994) and Edwards v. B a lis o k , 520 U.S. 641, 117 S.Ct. 1584 (1997).See D e fe n d a n ts ' Memorandum (Dkt. No. 69-3) at 20-21.That A s an alternative basis for dismissing plaintiff's claims a g a in s t them, defendants assert their entitlement to q u a lifie d immunity from suit. Qualified immunity shields g o v e r n m e n t officials performing discretionary functions fr o m liability for damages "insofar as their conduct does n o t violate clearly established statutory or constitutional r ig h ts of which a reasonable person would have known." H a r lo w v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2 7 3 8 (1982) (citations omitted). Accordingly, g o v e r n m e n ta l officials sued for damages "are entitled to q u a lifie d immunity if 1) their actions did not violate c le a r ly established law, or 2) it was objectively reasonable fo r them to believe that their actions did not violate such la w ." Warren v. Keane, 196 F.3d 330, 332 (2d Cir.1999) ( c itin g Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996)); see a ls o Zellner v. Summerlin, 494 F.3d 344, 2007 W L 2 0 6 7 9 3 2 , at *20-21 (2d Cir. July 20, 2007); Iqbal v. H a s ty , 490 F.3d 143 (2d Cir.2007). The law of qualified im m u n ity seeks to strike a balance between overexposure b y government officials to suits for violations based upon a b s t r a c t rights and an unduly narrow view which would in s u la te them from liability in connection with virtually all d is c r e t io n a r y decisions. Locurto v. Safir, 264 F.3d 154, 1 6 2 - 6 3 (2d Cir.2001); Warren, 196 F.3d at 332. As the 2009 Thomson Reuters/W e s t. No Claim to Orig. US Gov. W o r k s . Not Reported in F.Supp.2d N o t Reported in F.Supp.2d, 2007 W L 2789615 (N.D.N.Y.) ( C ite as: 2007 W L 2789615 (N.D.N.Y.)) P a g e 16 S e c o n d Circuit has observed, r e p o r ts issued to him during the relevant time period, t h o s e claims are the appropriate focus of the qualified im m u n ity analysis. * 1 4 [q]ualified immunity serves important interests in our p o litic a l system, chief among them to ensure that d a m a g e s suits do not unduly inhibit officials in the d is c h a r g e of their duties by saddling individual officers w ith personal monetary liability and harassing litigation. Provost v. City of Newburgh, 262 F.3d 146, 160 (2d C ir .2 0 0 1 ) (internal quotations omitted) (citing, inter alia, B iv e n s v. Six Unknown Named Agents of the Fed. Bureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir.1972)). Q u a lifie d immunity analysis involves a three step inquiry. H a r h a y v. Town of Ellington Bd. of Educ., 323 F.3d 206, 2 1 1 (2d Cir.2003). As a threshold matter it must first be d e te r m in e d whether, based upon the facts alleged, plaintiff h a s facially established a constitutional violation. Id. If the a n s w e r to this inquiry is in the affirmative, the court must th e n turn its focus to whether the right in issue was clearly e s ta b lis h e d at the time of the alleged violation. Id. (citing S a u c ie r v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 2 1 5 6 (2001)); see also Poe v. Leonard, 282 F.3d 123, 1 3 2 -3 3 (2d Cir.2002). Finally, if the plaintiff had a clearly e s ta b lis h e d , constitutionally protected right that was v io la te d , he or she must demonstrate that it was not o b j e c tiv e ly reasonable for the defendant to believe that his a c tio n did not violate such law. Harhay, 323 F.3d at 211; P o e , 282 F.3d at 133 (quoting Tierney v. Davidson, 133 F . 3 d 189, 196 (2d Cir.1998) (quoting, in turn, Salim, 93 F .3 d at

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