Samms v. Fischer et al

Filing 71

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Lowe's Report-Recommendation (Dkt. No. 61 ) is ACCEPTED and ADOPTED in its entirety. ORDERED, that Defendants' motion for judgment on the pleadings (Dkt. No. 44 ) is GRANTED in part and DENIED in part as described herein. ORDERED, that Plaintiff is granted leave to file an amended complaint correcting the deficiencies as described herein within 30 days of the filing of this Decision and Order. ORDERED, that if Plaintiff fails, in his Amended Complaint, to so correct the deficiencies in the four claims described herein, those claims shall be DISMISSED with prejudice without further Order of the Court. ORDERED, that upon receipt from Plaintiff of his Amended Complain t, the Clerk shall forward that Amended Complaint to Magistrate Judge Lowe for further review. If plaintiff does not file an Amended Complaint within 30 days from the date of this order, this case is referred to Magistrate Judge Lowe to issue pretrial scheduling deadlines on the remaining claims as described herein. Signed by Judge Glenn T. Suddaby on 8/31/11. (Served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
MICHAEL SAMMS,
Plaintiff,
v.
BRIAN FISCHER, Comm’r of the Dep’t of
Corr. Servs.; LUCIEN J. LeCLAIRE, JR.,
Deputy Comm’r of Corr. Facilities;
S.B. DUNCAN, Senior Investigator;
NORMAN BEZIO, Dir. of Special Housing
and Inmate Disciplinary Programs;
JAMES FERRO, Staff Inspector Gen.;
H. REINHOLD, Staff Counsel;
MICHAEL HOGAN, Chairman Facility
Operation; MR. DROWN, Comm’r Hearing
Officer; DALE ARTUS, Superintendent of
Clinton Corr. Facility; S.E. RACETTE,
Deputy Superintendent of Sec. and Comm.
Chairman; and JOSEPH P. PORCELLI,
Guidance Counselor,

9:10-CV-0349
(GTS/GHL)

Defendants.
_______________________________________
APPEARANCES:

OF COUNSEL:

MICHAEL SAMMS, 07-A-4065
Plaintiff, Pro Se
Attica Correctional Facility
Box 149
Attica, New York 14011
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

CHARLES J. QUACKENBUSH, ESQ.
Assistant Attorney General

HON. GLENN T. SUDDABY, United States District Judge

MEMORANUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Michael
Samms (“Plaintiff”) against the eleven above-captioned individuals (“Defendants”), are the
following: (1) Defendants’ motion for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c) (Dkt. No. 44); (2) United States Magistrate Judge George H. Lowe’s ReportRecommendation recommending that Defendants’ motion be granted in part and denied in part
such that certain of Plaintiff’s claims be conditionally dismissed unless the deficiencies in them
are corrected in an Amended Complaint (Dkt. No. 61); and (3) Plaintiff’s Objection to the
Report-Recommendation (Dkt. No. 63). For the following reasons, Magistrate Judge Lowe’s
Report-Recommendation is accepted and adopted in its entirety; certain of Plaintiff’s claims are
conditionally dismissed; and Plaintiff is permitted thirty (30) days from the filing date of this
Decision and Order to file an Amended Complaint correcting the deficiencies in those claims or
they will be dismissed with prejudice.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Plaintiff filed his Complaint in this action on March 25, 2010. (Dkt. No. 1.) Generally,
in his Complaint, Plaintiff alleges that, on January 11, 2008, he was transferred to Clinton
Correctional Facility from Downstate Correctional Facility, and immediately placed in the
Special Housing Unit without cause, where he remained housed for a period of approximately
two years. (Dkt. No. 1.) For a more detailed recitation of the factual allegations asserted in
Plaintiff’s Complaint, the Court refers the reader to that Complaint in its entirety, and Magistrate
Judge Lowe’s Report-Recommendation, which accurately describes those factual allegations.
(See generally Dkt. Nos. 1, 61.)
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Construed with the utmost of special liberality, Plaintiff’s Complaint asserts the
following five claims against Defendants: (1) a claim that Defendants denied him the right to
procedural due process in violation of the Fourteenth Amendment arising from his initial and
continued confinement in administrative segregation; (2) a claim that Defendants denied him the
right to substantive due process in violation of the Fourteenth Amendment arising from his
confinement in administrative segregation (and his conditions of confinement in that
segregation); (3) a claim that Defendants denied him equal protection in violation of the
Fourteenth Amendment; (4) a claim that Defendants caused him to suffer cruel and unusual
conditions of confinement in violation the Eighth Amendment; and (5) a claim that Defendants
conspired to cause him to suffer cruel and unusual conditions of confinement (under the Eighth
Amendment) in violation of 42 U.S.C. § 1983. (Dkt. No. 1.) For a more detailed recitation of
Plaintiff’s claims, the Court refers the reader to the Complaint in its entirety, and Magistrate
Judge Lowe’s Report-Recommendation, which accurately describes those claims. (Dkt. Nos. 1,
61.)
B.

Defendants’ Motion

On August 20, 2010, Defendants filed a motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c). (Dkt. No. 44.) Generally, in their motion, Defendants argue as follows:
(1) to the extent that Plaintiff’s Fourteenth Amendment due process and equal protection claims
are based on his initial confinement in administrative segregation, those claims should be
dismissed because the factual allegations of Plaintiff’s Complaint, and the documents attached to
his Complaint, do not plausibly suggest that his initial confinement in administrative segregation
violated his rights under the Fourteenth Amendment; (2) to the extent that Plaintiff’s Fourteenth
Amendment due process and equal protection claims are based on his continued confinement in
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administrative segregation (i.e., for a period of approximately two years), those claims should be
dismissed because the factual allegations of Plaintiff’s Complaint, and the documents attached to
his Complaint, do not plausibly suggest that his continued confinement in administrative
segregation violated his rights under the Fourteenth Amendment; and (3) Plaintiff’s Eighth
Amendment conditions-of-confinement claim and Section 1983 conspiracy claim must be
dismissed because his allegations with regard to those claims are entirely conclusory. (Id.)
On November 22, 2010, Plaintiff filed a response to Defendants’ motion. (Dkt. No. 56.)
In his response, Plaintiff argues that none of his claims should be dismissed because the
allegations in his Complaint, coupled with the documents attached to his Complaint, plausibly
suggest each of the claims asserted. (Id.)
C.

Magistrate Judge Lowe’s Report-Recommendation

On March 25, 2011, Magistrate Judge Lowe issued a Report-Recommendation
recommending that Defendants’ motion be granted in part and denied in part. (Dkt. No. 61.)
More specifically, Magistrate Judge Lowe recommended that the following claims be
conditionally dismissed unless the deficiencies in them are corrected in an Amended Complaint:
(1) Plaintiff’s Fourteenth Amendment procedural due process claim to the extent it is based on
his continued confinement in administrative segregation; (2) Plaintiff’s Fourteenth Amendment
substantive due process claim in its entirety; (3) Plaintiff’s Fourteenth Amendment equal
protection claim in its entirety; and (4) Plaintiff’s Section 1983 conspiracy claim in its entirety.
(Dkt. No. 61, at Parts III.A., III.B., and III.C.)
Magistrate Judge Lowe further recommended that the following claims survive
Defendants’ motion for judgment on the pleadings: (1) Plaintiff’s Fourteenth Amendment
procedural due process claim to the extent it is based on his initial confinement in administrative
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segregation; and (2) Plaintiff’s Eighth Amendment conditions-of-confinement claim. (Dkt. No.
61, at Parts III.D and III.E.)
D.

Plaintiff’s Objection

On April 11, 2011, Plaintiff filed an Objection to the Report-Recommendation. (Dkt.
No. 63.) In his Objection, Plaintiff argues as follows: (1) his procedural due process claim based
on his retention in administrative segregation should not be dismissed because the allegations in
his Complaint and the attached exhibits plausibly suggest that Defendants periodic reviews were
“perfunctory” and not “meaningful[,]” as required by administrative segregation requirements;
(2) his substantive due process claim should not be dismissed because the allegations in his
Complaint and the attached exhibits plausibly suggest that Defendants decision to keep him in
administrative segregation was arbitrary, a fact Magistrate Judge Lowe failed to address in his
Report-Recommendation; and (3) his equal protection claim should not be dismissed because the
allegations in his Complaint and the attached exhibits plausibly suggest that Defendants treated
Plaintiff differently than similarly situated inmates by confining him to administrative
segregation for twenty-two months without adequate due process. (Id.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a “de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C).1
1

On de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1)(C). However, a district court will ordinarily refuse to consider evidentiary material
that could have been, but was not, presented to the Magistrate Judge in the first instance. See,
e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a
magistrate's report before the district court, a party has no right to present further testimony
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When only general objections are made to a magistrate judge's report-recommendation,
or where the objecting party merely reiterates the same arguments taken in its original papers
submitted to the magistrate judge, the Court reviews the report-recommendation for clear error
or
manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).2 Similarly, when a party makes no objection to a portion of a report-recommendation, the
Court reviews that portion for clear error or manifest injustice. See Batista v. Walker,
94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations
omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted].
After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard Governing Review of Motions for Judgment on the Pleadings

Magistrate Judge Lowe correctly recited the legal standard governing motions for

when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”).
2

See also Camardo v. Gen. Motors Hourly-Rate Empl. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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judgment on the pleadings. (Dkt. No. 61, at Part II.) As a result, this standard is incorporated by
reference in this Decision and Order, which is intended primarily for the review of the parties.
The Court will add only a few words regarding what documents are considered when a dismissal
for failure to state a claim (or a dismissal on a motion for judgment on the pleadings) is
contemplated.
Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered
without triggering the standard governing a motion for summary judgment: (1) documents
attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the
complaint (and provided by the parties), (3) documents that, although not incorporated by
reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial
notice for the factual background of the case.3 Moreover, in the Second Circuit, a pro se
plaintiff’s papers in response to a defendant’s motion to dismiss for failure to state a claim may
be considered as effectively amending the allegations of his complaint–to the extent those papers
3

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted); L-7 Designs, Inc. v. Old Navy, LLC,
No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a
motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary
under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents
attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case).
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are consistent with the allegations in the complaint.4
III.

ANALYSIS
As an initial matter, Plaintiff has not objected to the portion of Magistrate Judge Lowe’s

Report-Recommendation recommending the dismissal of Plaintiff’s conspiracy claim. As a
result, the Court need review that portion of the Report-Recommendation for only clear error or
manifest injustice. After carefully reviewing all of the papers in this action, including Magistrate
Judge Lowe's Report-Recommendation, and Plaintiff's Objection thereto, the Court concludes
that this portion of the Report-Recommendation is thorough, well-reasoned and correct.
Magistrate Judge Lowe employed the proper legal standards, accurately recited the facts, and
reasonably applied the law to those facts. As a result, the Court adopts the portion of the ReportRecommendation recommending dismissal of Plaintiff’s conspiracy claims for the reasons stated
therein. The Court notes that this portion of Magistrate Judge Lowe’s Report-Recommendation
would survive even a de novo review.
With regard to the portion of Magistrate Judge Lowe’s Report-Recommendation
recommending the dismissal of Plaintiff’s equal protection claim, Plaintiff argues in his
Objection that he has been “treated differently from a slew of other inmates that have similar
4

See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n. 1 (2d Cir. 1998) (per
curiam) (“[W]e deem Drake's complaint to include the facts contained in his memorandum of
law filed in response to Delta's 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d
Cir. 1987) (“In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts
that Mooney's actions amounted to deliberate and willful indifference. Liberally construed under
pro se pleading standards, Gill's allegations against Mooney involve more than ordinary lack of
due care for the prisoner's interests or safety, . . . and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted);
Donhauser v.Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.) (“[I]n cases where a
pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider
materials outside of the complaint to the extent they “are consistent with the allegations in the
complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160
(N.D.N.Y. 2004) (Hurd, J.).
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records . . . and even those that have worse, in which they were not stripped of their liberty
interest and subjected to all the atrocities and hardships that [he] was forced to endure[,]” and
that “the other inmates . . . mentioned . . . in the ‘same newspaper article that was used to confine
[him] in admin seg’ remained in the general population without being singled out and stripped of
their liberty interest[.]” (Dkt. No. 61.) As an initial matter, this argument was introduced by
Plaintiff for the first time through an affirmation attached to his memorandum of law in response
to Defendants’ motion for judgment on the pleadings. (Dkt. No. 56.) Because Plaintiff merely
reiterates the same arguments taken in his original papers submitted to Magistrate Judge Lowe,
the Court need review this portion of the Report-Recommendation for only clear error or
manifest injustice. See, supra, Part II.A. of this Decision and Order. After carefully reviewing
all of the papers in this action, the Court finds that this portion of the Report-Recommendation
survives such a review.
Moreover, even if the Court were to subject this portion if the Report-Recommendation
to de novo review, it would survive that review. This is because the Court need not, and would
not, construe Plaintiff’s affirmation as effectively amending his Complaint because (1) its
omission from Plaintiff’s descriptive and lengthy Complaint (which totals 103 pages in length,
including exhibits) is conspicuous, rendering it inconsistent with that Complaint, and (2) it is not
integral to the Complaint and/or incorporated by reference therein.5 In any event, and more
importantly, even if the Court were to so construe Plaintiff’s Complaint, the factual allegations
contained in Plaintiff’s affirmation do not satisfy the rigorous class-of-one standard. This is
because Plaintiff has failed to allege facts plausibly suggesting that (1) these “similarly situated”
5

See, e.g., Mortimer Excell v. Fischer, 08-CV-0945, 2009 WL 3111711, at *1
(N.D.N.Y. Sept. 24, 2009) (Treece, M.J. adopted by Hurd, J.) (declining to consider exhibits
attached to supplemental briefs filed by plaintiff in opposition to defendant’s motion to dismiss).
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inmates were incarcerated at the same facility as him (such that Defendants could have treated
him differently), and/or (2) his continued confinement in administrative segregation was either
“irrational and wholly arbitrary,” or “motivated by animus.”6
With regard to the two remaining portions of Magistrate Judge Lowe's ReportRecommendation to which Plaintiff's Objection does specifically challenge–i.e., Magistrate
Judge Lowe's recommendation regarding Plaintiff's procedural due process claim under the
Fourteenth Amendment, and Magistrate Judge Lowe's recommendation regarding Plaintiff’s
substantive due process claim under the Fourteenth Amendment–a de novo review is appropriate.
See, supra, Part II.A. of this Decision and Order. After carefully reviewing all of the papers in
this action (including Plaintiff's Complaint, the documents attached to the Complaint, the
referenced portions of the Magistrate Judge Lowe’s Report-Recommendation, and Plaintiff's
Objection), the Court concludes that the referenced portions of the Report-Recommendation are
correct in all respects. Magistrate Judge Lowe employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Court also accepts and
adopts these portions of the Report-Recommendation for the reasons stated therein. The Court
would add only two points.
First, with regard to Plaintiff’s procedural due process claim based on his continued
confinement in administrative segregation, contrary to the argument raised in his Objection,
Plaintiff’s Complaint does not allege facts plausibly suggesting that the newspaper article that

6

To state a class-of-one equal protection claim, “a plaintiff must allege (1) that he
was intentionally treated differently from other similarly situated individuals[,] and (2) that the
disparate treatment was either (a) ‘irrational and wholly arbitrary[,]’ or (b) motivated by
animus.” McCarroll v. Matteau, 09-CV-0355, 2010 WL 2346327, at *7 (N.D.N.Y. May 17,
2010) (Lowe, M.J.), adopted by 2010 WL 2346324 (N.D.N.Y. June 9, 2010) (Mordue, C.J.).
10

described Plaintiff a “violent-prone criminal[] who need[s] extra attention” is “incorrect/wrong
and false.” Moreover, the factual allegation that the facility committee recommended that
Plaintiff be placed in a "closely monitored population" rather than administrative segregation in
March 2009 does not, by itself, plausibly suggest Defendant LeClaire’s decision not to follow
that recommendation constitutes a violation of Plaintiff’s due process rights. See Giano v. Kelly,
89-CV-0727, 2000 WL 876855, at *17 (W.D.N.Y. May 16, 2000) (noting that periodic reviews
do not require the presence of the accused and do not require the reviewer to “always consider
new information, since the original reasons for placing the inmate in [administrative segregation]
may continue to be compelling”).
Second, and finally, with regard to Plaintiff’s substantive due process claim, as
Magistrate Judge Lowe pointed out, “[s]ubstantive due process protects individuals against
government action that is arbitrary, . . . conscience-shocking, . . . or oppressive in a
constitutional sense, . . . but not against constitutional action that is incorrect or ill-advised.”
Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) [emphasis added]. Thus, the Court rejects
Plaintiff’s argument that this claim should survive because Magistrate Judge Lowe failed to
address whether Defendants’ actions were arbitrary. Moreover, based on Plaintiff’s own factual
allegations and the documents attached to his Complaint, it is clear that Plaintiff has a history of
violent conduct; and “a violent history, as well as a history for disobeying orders, creates ‘at
least the potential for disruption of the order and security of the prison.’” Proctor v. Kelly,
05-CV-0692, 2008 WL 5243925, at *6 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.) (quoting
Lowrance, 20 F.3d at 537). As a result, Plaintiff has failed to allege facts plausibly suggesting
that his administrative confinement was arbitrary or conscience-shocking in the constitutional

11

sense. See Proctor, 2008 WL 5243925, at *6.7
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lowe’s Report-Recommendation (Dkt. No. 61) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for judgment on the pleadings (Dkt. No. 44) is
GRANTED in part and DENIED in part as follows:
(1) Defendants’ motion is GRANTED without prejudice with respect to the following
four claims:
(a) Plaintiff’s Fourteenth Amendment procedural due process claim to the extent
that it is based on continued confinement to administrative segregation;
(b) Plaintiff’s Fourteenth Amendment substantive due process claim in its
entirety;
(c) Plaintiff’s Fourteenth Amendment equal protection claim in its entirety; and
(d) Plaintiff’s Section 1983 conspiracy claim in its entirety; and
(2) Plaintiff is granted leave to file an AMENDED COMPLAINT correcting the
deficiencies in the four claims described above in Paragraph “1” (and reasserting the two

7

The Court notes also that, even if it found the allegations in Plaintiff’s Complaint
(coupled with the attached documents) plausibly suggest the occurrence of substantive due
process violation, it could not find that Plaintiff’s Complaint plausibly suggests that Defendants
committed such a violation recklessly. See Hudson v. Palmer, 468 U.S. 517, 531 (1984) (“[T]he
Due Process Clause of the Fourteenth Amendment is not violated when a state employee
negligently deprives an individual of property . . . .”); Pena v. Deprisco, 432 F.3d 98, 112 (2d
Cir. 2005) (“In order to establish a violation of a right to substantive due process, a plaintiff must
demonstrate not only government action but also that the government action was so egregious,
so outrageous, that it may fairly be said to shock the contemporary conscience. . . . [N]egligently
inflicted harm is categorically beneath the threshold of constitutional due process.”) [internal
quotation marks and citations omitted].
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claims described below in Paragraph “5”) within THIRTY (30) DAYS of the filing of
this Decision and Order; and
(3) If Plaintiff fails, in his Amended Complaint, to so correct the deficiencies in the four
claims described above in Paragraph “1,” those claims shall be DISMISSED with
prejudice without further Order of the Court; and
(4) any Amended Complaint filed by Plaintiff must be a complete pleading, which will
supersede his original Complaint in all respects, and which may not incorporate any
portion of his original Complaint by reference; and
(5) Defendants’ motion is DENIED with respect to the remainder of Plaintiff’s
Complaint, specifically, the following two claims:
(a) Plaintiff’s Fourteenth Amendment procedural due process claim to the extent
that it is based on Plaintiff’s initial placement in administrative segregation; and
(b) Plaintiff’s Eighth Amendment conditions-of-confinement claim; and it is
further
ORDERED that, upon receipt from Plaintiff of his Amended Complaint, the Clerk shall
forward that Amended Complaint to the Magistrate Judge Lowe for further review. If plaintiff
does not file an Amended Complaint within 30 days from the date of this order, this case is
referred to Magistrate Judge Lowe to issue pretrial scheduling deadlines on the remaining claims
as described in paragraph “5" above.
Dated: August 31, 2011
Syracuse, New York

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